Tawhai v Police

[2013] NZHC 3408

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000052 [2013] NZHC 3408

BETWEEN  HAKI TAWHAI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 December 2013

Appearances:           S M Nicholson for Appellant

M B Smith for Respondent

Judgment:                16 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors/Counsel:

S M Nicholson, Barrister, Kerikeri

Crown Solicitor, Whangarei

TAWHAI v NEW ZEALAND POLICE [2013] NZHC 3408 [16 December 2013]

Introduction

[1]      On 17 October 2013, the appellant was sentenced by Judge G Davis in the District Court at Kaikohe on one charge each of cultivating cannabis and possessing equipment to cultivate cannabis, one charge each of burglary and unlawfully taking a vehicle, and four charges of theft from a motor vehicle.  The appellant was sentenced to a total of two years and five months imprisonment.1    The sentence comprised a sentence of 20 months imprisonment on the cannabis charges, a sentence of nine months imprisonment on the burglary (cumulative on this cannabis sentence) and a sentence of three months imprisonment (concurrent with the burglary sentence) on

the theft charges.

[2]      The  appellant  has  appealed  against  sentence  on  the  grounds  that  it  is manifestly excessive.   It is submitted that there were insufficient discounts for the appellant’s youth, guilty pleas on the property offending, and his lack of previous convictions, and insufficient consideration of totality, whether imprisonment was the least restrictive available sentence, and the desirability of keeping offenders in the community.    It  is  submitted that  the end sentence should  have been  24 months imprisonment, in which case home detention should have been imposed.

Background facts

[3]      The appellant was 18 at the time of the offending, and 19 at the time of his sentencing.  On 17 March 2013 he, together with his brother Levi Morunga (who is three years older) and three associates forced entry into a house and stole items valued at about $1,000 in total.  The same day the group smashed the windows of a car and removed three large bags, belonging to three separate victims.   The items taken were valued at about $6,390.   They then removed a handbag and purse containing items valued at $1,795 from another car.  The appellant was spoken to by the Police and admitted handling the stolen items.

[4]      On 23 March 2013, the owner of a car which had been reported stolen about two weeks earlier saw it being driven, and followed it to an address at Waitangi.  The

1      R v Tawhai; Police v Tawhai DC Kaikohe CRI 2013-027-536, 17 October 2003.

appellant was spoken to by the Police and said that he had been picked up in the car by another person the previous day, and had then been left with the car.

[5]      The appellant appeared in the Kaikohe District Court on 18 March 2013 in relation to the 17 March offending.  He was bailed with a curfew and a condition not to associate with his co-offenders.  The Police went to the bail address on 21 March for a bail check.   They were told that the appellant was living next door in a converted shed.  On checking the shed, the Police found Mr Morunga’s belongings, as well as a tent containing 32 cannabis plants.   There were high wattage lights hanging over the plants with an extractor fan, as well as reflective silver paper lining the tent.  Seventeen of the plants were almost ready to be harvested.

[6]      The  appellant  was  charged  summarily  for  the  property  offending,  and indictably on the cannabis offending.   He entered guilty pleas on the property offending charges one month after the offending.  He entered guilty pleas as to the cannabis charges approximately three months after the offending, but before committal.

District Court sentencing

[7]      Unfortunately, the Judge’s sentencing notes are not complete, as they begin at the point where the Judge has imposed a sentence of 20 months imprisonment for the cannabis offending, and noted that this was the same sentence as had been imposed on Mr Morunga for that offending.2    In this Court Mr Smith submitted, based on information from the prosecutor, that the Judge had adopted a starting point of two years three months imprisonment, then allowed a reduction of seven months (that is, approximately 25 per cent) to arrive at 20 months after giving credit for the appellant’s guilty plea.

[8]      It  appears  that  the  Judge  then  adopted  starting  points  of  12  months imprisonment for the burglary charge, and six months for the unlawful taking and theft  charges.3      (I  note  that  at  this  point,  the  combined  starting  point  for  the appellant’s total offending was 45 months imprisonment.)  The Judge then allowed a

discount of six months on account of the appellant’s youth, and a further three months to recognise the appellant’s previously clean record, to arrive at an adjusted sentence for the property offending of nine months imprisonment.4

[9]      That, together with the 20 months for the cannabis offending, resulted in the end sentence of 29 months imprisonment.

[10]     Because parity with the sentence imposed on Mr Morunga is an issue raised on appeal, it is necessary to refer to his sentence.  Mr Morunga was sentenced by Judge de Ridder on 26 June 2013.  Mr Morunga had pleaded guilty to the same two cannabis charges, and the charges of burglary and theft from motor vehicles, but appears to have also been convicted on two charges of receiving stolen motor vehicles.

[11]     For the cannabis offending, the starting point for Mr Morunga was two years three months imprisonment, reduced to 20 months by a discount for guilty pleas. For the burglary offending, the starting point was 12 months imprisonment, uplifted by nine months on account of the other property offending. The starting point for the property offending was therefore 21 months imprisonment, which was then reduced to 16 months by a guilty plea discount, then to 13 months by a further discount for Mr Morunga’s youth.  Mr Morunga’s overall end sentence was, therefore, two years nine months imprisonment.

Approach on appeal

[12]     This appeal is to be considered pursuant to the provisions of the Summary Proceedings Act 1957.  Under s 121(3)(b) of the Act, an appeal against sentence is a general appeal, by way of rehearing.  A sentence may be quashed or varied if it is established that it is “clearly excessive or inadequate or inappropriate”.   However, the High Court will not intervene where a sentence is within the range that can properly be justified by accepted sentencing principles.5

[13]     Further, while it is important to look at how a sentence is constructed, it is the end result that counts.6

Discussion

[14]     The appellant’s submissions raise two general points:  first, that insufficient discount was given for personal mitigating factors, namely the appellant’s youth and lack of previous convictions; and secondly, that a discount should have been given for the appellant’s guilty pleas to the property charges.

[15]     I turn first to the personal mitigating factors.  I note that in the District Court Mr Nicholson submitted that there was a marked contrast between the appellant and his brother (in particular, that his brother is three  years older and has  12 prior convictions for offending, including similar property offending between December

2008 and July 2011), and that the contrast would not be acknowledged by a sentence which  merely  fell  short  of  Mr  Morunga’s  sentence.     In  the  District  Court Mr Nicholson  submitted  that  reductions  should  be  given  of  six  months  for  the appellant’s youth, three months for his lack of previous convictions, and then a further three months to recognise the desirability of a “concerted rehabilitation and integration of a young first offender”.   Thus, in the District Court, Mr Nicholson submitted that that would have resulted in a sentence of two years imprisonment, in which case, home detention should be imposed.

[16]     In this Court, Mr Nicholson submitted that the appellant should have had a discount  for  youth  of  nine  months  (that  is,  three  months  more  than  what  was applied), and a discount for his lack of previous convictions of six months (that is, three months more than what was applied).

[17]     I have also been referred to the commentary on “youth” as a mitigating factor in sentencing and the judgment of the Court of Appeal in Churchward v R.7   In that case,  the  appellant’s  youth  was  relevant  to  the  length  of a minimum  period  of imprisonment  imposed  in  a  life  sentence  for  murder;  in  particular,  whether  the

minimum period should be 17 years, which was otherwise appropriate for the offending. The Court said:8

[76]      We accept the submission made on behalf of Ms Churchward that, although there is no automatic displacement of a 17 year minimum period on the basis of youth alone, the age of a defendant can be a mitigating factor and falls naturally for consideration under the broadly worded test of “manifestly unjust”.

...

[77]     Youth has been held to be relevant to sentencing in the following ways:

(a)       There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b)       The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c)       Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

(Footnotes omitted)

[18]     Mr  Smith  submitted  that  the  Judge  gave  specific  consideration  to  the appellant’s youth in this case.  When the discount of six months is viewed against the property offending alone, it was a reduction of one third; if it were considered against the total of the starting points for the cannabis and property offending, it is a reduction of approximately 13 per cent.  Taken on its own, and bearing in mind that the reduction given for the appellant’s youth is that which was sought in the District Court, I am not persuaded that a greater reduction should have been given.

[19]     Turning to the reduction for the appellant’s lack of previous convictions, I note first that the Judge referred first to a reduction of six months, but later in the same paragraph made it clear that the reduction was to be three months, to bring the overall end sentence to 29 months imprisonment.  A reduction of three months is approximately 16 per cent of the overall starting point for the property offending, and approximately 7 per cent of the overall starting point.  On its own, a reduction of

three months for a lack of previous convictions was open to the Judge.  This was not

8      At [76]–[77].

a case of an offender with a previously unblemished record who had made a single error of judgment that led to his being on the wrong side of the law.  The appellant here committed multiple offences, on separate occasions.  While a reduction for a previous good character was properly given, in the context of the appellant’s offending, a reduction of three months could be said to have been within range.

[20]     I turn now to the discount for the appellant’s guilty pleas.  I accept that it is apparent that the Judge applied a discount of seven months for the appellant’s guilty pleas to the cannabis charges.   That was 25 per cent of the starting point for that offending.   It is also apparent that the Judge did not, at least expressly, apply any further discount in respect of the appellant’s guilty pleas for the property offending. If the discount on the cannabis charges were applied to the overall starting point of

45 months on all the appellant’s offending, it is a discount of about 15 per cent.

[21]     As the Supreme Court observed in Hessell v R, the extent of any discount given for a guilty plea should remain within the discretion of the sentencing Judge.9

The Court held that the credit given must reflect all the circumstances in which the plea is entered in which the true mitigatory effect of the plea is identified.10    The reduction given is not a matter of formalistic quantification.11     In this case, the prosecution case against the appellant on both the property and cannabis offences was very strong.  As the Supreme Court put it, the appellant may have had “little

choice but to plead guilty”.12

[22]     Following that somewhat technical review of  the makeup of the appellant’s sentence, I come back to the comment I made earlier that it is the end result that counts rather than the construction of the sentence.  I come back to ask whether a sentence of two  years five months  imprisonment was,  in  all  the circumstances, manifestly excessive.  In totality, does the sentence of 29 months imprisonment give appropriate recognition to the similarities to, and differences from, the offending of

the appellant’s older brother who was sentenced to 33 months imprisonment.

9      Hessell v R [2010] NZSC 40; [2011] 1 NZLR 607, at [57].

10 At [74].

11 At [75].

12 At [60].

[23]     However the sentence is constructed I am satisfied, in this case, that the end result does not appropriately reflect the similarities, and in particular the differences. I am not satisfied that a substantial difference is required but I am left with the view that the difference between 29 months and 33 months does not adequately reflect the appellant’s different circumstances, particularly in respect of his younger age, his lack of previous convictions, and Mr Morunga’s additional offending.

[24]     I have concluded that it is appropriate to give a further four months reduction which would take the appellant’s end sentence down to 25 months imprisonment.  I appreciate that that does not take the appellant to a sentence at which home detention is available for consideration, however, I comment that had I reached that position I would have accepted the Judge’s  conclusion that home detention should not be applied.    In  particular,  I note  that  the  appellant  had  been  before  the  Court  for breaches of bail, he was in breach of bail when the cannabis offending was disclosed, and he was before the Court for a breach of bail again in July 2013.   In those circumstances,  the Judge did  not  err in  observing that  home  detention  was  not appropriate.

Result

[25]     The end result is that the appeal is allowed to the extent that the sentence of

29 months imprisonment is quashed, and a sentence of 25 months imprisonment is imposed in its place.

Addendum

[26]     After dictating this judgment, it was brought to my attention that I had not specified to which sentence the reduction was to apply.  In the light of the fact that the submissions focussed on the sentence imposed on the property offences, it is appropriate that the reduction be applied to that sentence.  Accordingly, the sentence of nine months imprisonment (cumulative upon the sentence of 20 months imprisonment on the cannabis charges) is quashed and a sentence of five months

imprisonment (again cumulative).

Andrews  J