Torbarina v Police - [2014] NZHC 3221

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-29 [2014] NZHC 3221

BETWEEN JOSIP TORBARINA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2014 (Heard at Rotorua)

Appearances:

J Holmes for Appellant
N Belton for Respondent

Judgment:

15 December 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TORBARINA v NEW ZEALAND POLICE [2014] NZHC 3221 [15 December 2014]

[1] Mr Torbarina pleaded guilty in the District Court to three charges of theft. Each charge related to an incident in which he had shoplifted goods from a shop. On
18 November 2014, Judge Wolff sentenced Mr Torbarina to an effective sentence of one year four months imprisonment.1

[2] Mr Torbarina appeals to this Court against sentence on the basis that the Judge adopted a starting point that was too high, and applied insufficient discount to reflect his early guilty pleas. He contends that this produced an end sentence that was manifestly excessive.

Background

[3] The charges arise out of incidents that occurred between 16 and 26

September 2014. On 16 September 2014, Mr Torbarina went into a stationery shop in Tauranga. He approached a display of laptops and computers, and used an implement to cut a safety cord attached to the bottom of a Hewlett Packard laptop computer. He then concealed the computer in the front of his clothing, and left the premises without making any attempt to pay. The laptop had a value of $1399, and has not yet been recovered.

[4] Five days later, on 21 September 2014, Mr Torbarina went to the Bayfair Shopping Centre in Mt Maunganui. He went to a shop called The Sunglass Hut and took a pair of Prada sunglasses off a display rack. He placed the sunglasses on top of a cabinet. He then removed a second pair of Prada sunglasses and placed these with the first pair. He then took both pairs of sunglasses and put them in his pocket before leaving the store. He made no attempt to pay for these items, which had a combined value of $730.

[5] The final charge related to an incident on 26 September 2014, when Mr Torbarina returned to the same shop in the Bayfair Shopping Centre. He again employed the same technique to remove two further pairs of sunglasses from the shop without paying for them. These had a combined value of $1045. None of the
sunglasses have been recovered.

1 New Zealand Police v Torbarina DC Tauranga CRI-2014-070-003603, 18 November 2014.

Structure of the sentence

[6] The Judge took a starting point of 18 months imprisonment in respect of all three charges. Mr Torbarina has nearly 50 previous convictions for theft and shoplifting since 1997. The Judge did not apply an uplift to reflect this factor, however, because he considered it was already reflected adequately in the starting point he had adopted. The Judge then applied a discount of ten per cent, or two months, to reflect Mr Torbarina’s guilty pleas. He noted that these had not come…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 3221
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Josip Torbarina appealed against his sentence for theft, which had been imposed by Judge Wolff in the District Court. Mr Torbarina had pleaded guilty to three charges of theft, each related to shoplifting incidents that occurred in September 2014. The court was required to decide whether the sentence imposed was excessive, specifically whether the starting point of 18 months imprisonment was too high and whether the discount for early guilty pleas was insufficient. The court noted that the starting point was influenced by the significant value of the stolen items and Mr Torbarina's extensive criminal history, which included nearly 50 previous convictions for theft and shoplifting since 1997. The court considered whether a starting point of six months imprisonment would have been more appropriate, and whether a discount of 25 per cent for the early guilty pleas would have been warranted.

The court concluded that a starting point of 18 months imprisonment was within the range available to the sentencing judge. The judge had noted that Mr Torbarina had only been released from a six-month sentence for similar offences a week before the present offending. The court found that a discount of around 20 per cent for the guilty pleas would have been appropriate, but decided not to interfere with the sentence imposed, as the starting point was arguably generous. The appeal against sentence was dismissed, and the sentence of one year four months imprisonment was upheld as not manifestly excessive.

Orders