Tepu v Police

[2012] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000218 [2012] NZHC 2580

BETWEEN  BRENDAN THOMAS TEPU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 September 2012

Appearances: G H Vear for Appellant

K D W Snelgar for Respondent

Judgment:      5 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 5 October 2012 at 12:00 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Public Defence Service, P O Box 21448, Henderson, Waitakere 0650

Fax: [phone] – G Vear

Meredith Connell, P O Box 2213, Auckland 1141

Fax: [phone] – K Snelgar

TEPU V NZ POLICE HC AK CRI-2012-404-000218 [5 October 2012]

[1]      The appellant,  Brendan Tepu, appeals the sentence of two  years and  six months’ imprisonment imposed on him by Judge C Ryan in respect of the following charges to which he pleaded guilty:

(a)       One of receiving pursuant to ss 246 and 247(c) of the Crimes Act

1961;

(b)      Two of using a document pursuant to s 228(b) of the Crimes Act;

(c)       One  of  unlawfully  interfering  with  a  motor  vehicle  pursuant  to s 226(2) of the Crimes Act;

(d)      One of possession of methamphetamine pursuant to ss 7(1)(a) and (2)

of the Misuse of Drugs Act 1975;

(e)       One of possession of explosives pursuant to s 45(1) of the Arms Act

1983;

(f)       One  of  breaching  release  conditions  pursuant  to  s  96(1)  of  the

Sentencing Act 2002.

[2]      The Judge treated these offences as falling into four groups.  The first related to the offences committed between 7 and 9 May 2011 of receiving, unlawfully interfering with a car and using a document.   Mr Tepu received a stolen handbag containing items valued at $5,000, used an ANZ bankcard found in the handbag and unlawfully interfered with a motor vehicle.

[3]      Secondly, on 25 May 2011 Mr Tepu, who had been released from prison earlier that month, breached his release conditions.

[4]      Thirdly, between 16 and 18 September 2011 Mr Tepu used a stolen ASB Visa card 47 times, amassing $10,783.63.

[5]      Finally, on 29 October 2011 Mr Tepu was found in possession of two .223 calibre bullets, a round of .44 calibre hollow-point Magnum ammunition and a small quantity of methamphetamine.

[6]      In sentencing the Judge took the following approach:

[7]       For the offences that took place on 7 May 2011 I consider a ten month  term  of  imprisonment  is  appropriate.    For  the  receiving  of  the handbag, that is 10 months.  For using the ANZ bankcard it is six months. Unlawfully interfering with a motor vehicle it is six months.  Those terms are all imposed concurrently so it is a total of 10 months for those three offences.

[8]       For breaching your release conditions I impose an additional term of two months imprisonment.   For the possession of explosives and the procuring of methamphetamine I consider that an additional 12 month term of imprisonment is appropriate.   For the misuse of the ASB Visacard by spending $10,000, I consider a 12 month term of imprisonment on top of that.  That reaches 36 months or three years imprisonment.  In addition to that, I look at your past history which is not helpful and I impose an uplift of four months. That leads me to 40 months.

[9]       I am going to give you the maximum discount of 25 per cent … So I

am taking 10 months off the sentence of 40 months.

[10]     That leads me to an end sentence of 30 months, which is two years and six months imprisonment, and that is the term of imprisonment I impose on you.

[7]      The appellant asserts the following errors:

(a)       The starting point taken for the 7 May 2011 offending was excessive; (b)     The  starting  point  taken  for  the  29  October  2011  offending  was

excessive and outside the maximum penalty available for the lead charge;

(c)      The Judge failed to consider the totality of the sentence imposed as required by s 85(4) of the Sentencing Act 2002; and

(d)      The Judge did not give sufficient recognition to the appellant’s efforts

at rehabilitation;

(e)      The Judge imposed concurrent sentences of two years and six months on  all  charges,  meaning  the  sentences  for  some  of  the  charges exceeded the maximum penalty available.

[8]      The Crown acknowledged that the Judge’s approach of adopting cumulative starting points, applying a global discount and then imposing concurrent terms of two years and six months meant that the sentences imposed on some of the charges

were above the maximum penalty prescribed.  As a result, those sentences cannot stand.  I therefore begin afresh in terms of the affected sentences.[1]

7-9 May 2011 offending

[1] The appellant does not challenge the starting point or ultimate sentence imposed in respect of the 16-

18 September offending.

[9]      On 7 May 2011 Mr Tepu stole a handbag from a parked car which contained property worth $5,000 and used an ANZ Visa card in the handbag to obtain goods to a value of $262.73.  The Judge adopted a starting point of ten months’ imprisonment for the receiving of the handbag, six months for using the Visa card and six months for   unlawfully   interfering   with   the   vehicle,   these   starting   points   to   apply concurrently.

[10]     The receiving charge, which the Judge took as the lead offence for this group of  offences,  carries  a  maximum  penalty  of  three  months’ imprisonment  so  the starting point of ten months imposed on that charge exceeded the maximum.

[11]     The charge of using a document should properly have been taken as the lead charge. There did not seem to be any suggestion that the six months starting point adopted on that charge was inappropriate in itself, though a necessary uplift to reflect the other offences would have increased that starting point to seven months. Concurrent starting points of two months and six months respectively for the receiving and unlawful interfering charges would have been appropriate.

25 May 2011

[12]     On 25 May 2011, Mr Tepu breached his release conditions.  The maximum penalty for that is one year’s imprisonment and so the two-and-a-half years’ imprisonment ultimately imposed exceeded the maximum.  However, the two-month starting point used was not challenged and so I adopt that starting point.

29 October 2011 offending

[13]     On 29 October 2011 Mr Tepu was a passenger in a vehicle that was stopped by the Police.  A point bag of heroin, four point bags of methamphetamine and a

slightly larger bag containing methamphetamine was found in the appellant’s backpack.  Also found were two bullets and a round of .44 ammunition.  The Judge imposed “an additional 12 month term of imprisonment”.  Although phrased as an “additional term” the subsequent application of discounts indicate that this was a starting point.  There was no breakdown as to what starting points were adopted in respect of the various charges arising from that offending.  Ms Vear submitted that, in any event, 12 months was excessive.

[14]     The charge of possessing ammunition carries a maximum penalty of four years’ imprisonment so the starting point of 12 months could, theoretically, stand. However, that offending was very much at the lower end of the spectrum given that there was no firearm located.   A starting point of six months would have been reasonable with an uplift of two months for totality.  There was no reference in the sentencing notes as to the amount of methamphetamine contained in the bags but given that there were multiple amounts I consider a starting point of four months imprisonment on the possession charge reasonable.

Uplift for previous offending

[15]     These  starting  points  require  an  uplift  to  reflect  to  recognise  Mr Tepu’s extensive list of previous convictions, being over 200 convictions including several dishonesty offences for which he had been imprisoned previously.   The Judge imposed an uplift of four months for this factor and this was not challenged.  I agree that it appropriately reflects Mr Tepu’s history.  The best course is to apply this uplift to the 16-18 September 2011 offending which attracted the longest starting point of

12 months, meaning the starting point is uplifted to 16 months for that offence.

Insufficient credit for personal factors

[16]     During  sentencing  Judge  Ryan  referred  to  the  issue  of  rehabilitation, indicating that she intended to take it into account:

[6]       The pre-sentence  report says  you  are unlikely to comply with  a community based sentence, and I agree.  As you know, you are going to jail. You have told me that you are going to turn your life around. Well, you have shown me that you are just starting to do so and that you have made good use of the time you have spent in prison.  I will take that into account but I

do have to imprison you and I do have to impose cumulative sentences on you for the different offences that took place at different times.

[17]     Despite that indication the Judge went on to impose the sentences I have previously discussed without any reference to a discount for efforts made towards rehabilitation.  In her submissions Ms Vear provided a copy of Mr Tepu’s letter to the Court on sentencing and also certificates relating to courses completed while in custody, these being a certificate of completion of an alcohol and other drug programme, certificate of achievement of Parents Inc toolbox course for middle years, a certificate of participation in the “Power to Protect” shaken baby prevention programme and a clean drug and alcohol test from April 2012.  In his letter Mr Tepu conveyed his sincere apologies to the victims of his offending and to his family, and spoke about his incentive to change for the sake of his family.  I accept that, having given the indication of an intention to take these efforts into account and looking at the material provided, some allowance should have been made for this factor.

[18]     In response, Mr Snelgar, for the Crown, submitted that although no discrete credit had been identified for this factor it could fairly be viewed as being incorporated into the discount of 25 per cent given on the guilty plea on the basis that a more appropriate discount for that factor would have been 20 per cent.

[19]     However,  Ms  Vear  filed  supplementary  submissions  which  showed  that, taking into account some of the necessary communications to enable resolution on some of the charges, the pleas were entered at a relatively early stage and the Court’s approach was not unreasonably generous.

[20]     I accept that the full discount for the guilty pleas was justified and that a separate allowance should have been made to recognise Mr Tepu’s rehabilitative efforts.  A 10 per cent discount in addition to the 25 per cent discount for the guilty plea would have been appropriate.

Result

[21]     With  the  adjustments  identified  above,  the  starting  points  now  total  33 months before the discounts.  The discounts would bring the effective end sentence to slightly over 21 months which fairly reflects the totality of the offending.

[22]     The appeal is allowed.  The sentences previously imposed are quashed and the following substituted:

(a)      7-9 May 2011 offending – Four-and-a-half months for receiving, five weeks  for  using  a  document  and  four  months  for  unlawfully interfering with a vehicle, to be served concurrently;

(b)Breach of release conditions – Five weeks, to be served cumulatively with the sentences for the 7-9 May 2011 offending;

(c)      16-18 September 2011 – Ten-and-a-half months for using a document, to be served cumulatively with the sentences imposed at (a) and (b) for the previous offences;

(d)29 October 2011 – Ten-and-a-half weeks for possession of methamphetamine and five months for possession of explosives, to be served  concurrently  with  one  another  but  cumulatively  with  the

sentences imposed at (a), (b) and (c) for the previous sentences.

P Courtney J