Waara v Police

[2024] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-3 & 4

[2024] NZHC 1726

BETWEEN

ANDREW RICHARD WAARA

Appellant

AND

POLICE

Respondent

Hearing:	8 May 2024
Appearances:	E A Hall for Appellant N H Brown for Crown
Judgment:	27 June 2024

JUDGMENT OF CULL J

[1]    Mr Waara appeals his sentence of two years and seven months’ imprisonment1 following a guilty plea to the charges of burglary,2 receiving a vehicle,3 unlawful possession of ammunition,4 dangerous driving (x 3),5 failing to stop,6 failing to stop (aggravated x 3),7 driving while suspended,8 driving while suspended (third or

1      Police v Waara [2024] NZDC 2595.

2      Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.

3      Sections 246(1) and 247(a). Maximum penalty of seven years’ imprisonment.

4      Arms Act 1983, 51(1)(b). Maximum penalty of three years’ imprisonment.

5      Land Transport Act, s 35(1)(b) and subs (2). Maximum penalty of three months’ imprisonment or a $4,500 fine. Mandatory disqualification from holding or obtaining a driver licence for at least six months.

6      Section 52A(1)(a) and subs (2). Maximum penalty of $10,000 fine.

7      Section 52A(1)(a) and subs (2) and (3). Maximum penalty of $10,000 fine. Mandatory disqualification from holding or obtaining a driver licence for six months.

8      Section 32(1)(c) and subs (3). Maximum penalty of three months’ imprisonment or a $4,500 fine. Mandatory disqualification from holding or obtaining a driver licence for at least six months.

WAARA v POLICE [2024] NZHC 1726 [27 June 2024]

subsequent x 2),9 reckless driving,10 careless driving,11 possession of methamphetamine pipe (x 2),12 possession of cannabis (x 2),13 possession of cannabis resin,14 common assault15 and resisting police.16

[2]    In summary, the sentencing Judge’s approach, although described as concurrent, was cumulative in effect. After taking into account the challenges to the starting points and the duplication of the charges, as well as the Judge’s reduction of 18 months for totality, I find that the end sentence is not manifestly excessive.

What happened?

[3]    The offending occurred over a period of one year and five months, between 25 June 2022 and 10 November 2023. On 25 June 2022, Mr Waara drove past police in Palmerston North approximately 30 kph over the speed limit. The police followed him and signalled him to stop. He continued to drive at speed, weaving between traffic, before he eventually came to a stop. This was one of the instances of dangerous driving and failing to stop.

[4]    On 18 October 2022, Mr Waara was suspended from driving for three months due to excess demerit points. The police observed him driving while the suspension was still in place on 20 November 2022, 30 December 2022, and 14 January 2023. On 20 November 2022, Mr Waara was observed driving at excessive speeds and overtaking vehicles in a dangerous manner, resulting in further dangerous driving offending.

9      Section 32(1)(c) and subs (4). Maximum penalty of two years’ imprisonment or $6,000 fine. Mandatory disqualification from holding or obtaining a driver licence for at least one year.

10     Section 35(1)(a) and subs 2. Maximum penalty of three months’ imprisonment or a $4,500 fine. Mandatory disqualification from holding or obtaining a driver licence for at least six months.

11     Section 37. Maximum penalty of $3,000 fine. Discretionary disqualification from holding or obtaining a driver licence.

12     Misuse of Drugs Act 1975, s 13(1)(a) and subs (3). Maximum penalty of one year’s imprisonment and/or $500 fine.

13     Section 7(1)(a) and subs (2)(b). Maximum penalty of three months’ imprisonment and/or $500 fine.

14     Section 7(1)(a) and subs (2)(b). Maximum penalty of three months’ imprisonment and/or $500 fine.

15     Crimes Act, s 196. Maximum penalty of one year’s imprisonment.

16     Summary Offences Act 1981, s 23(a). Maximum penalty of three months’ imprisonment or $2,000 fine.

[5]    On 12 February 2023, Mr Waara was arrested at a bar in Wellington for breaching bail. When he was searched, police found him in possession of 7.55 grams of cannabis and 5.17 grams of cannabis resin. Ten days later, Mr Waara was found by police in Palmerston North in breach of his bail and he was arrested. When the Officer attempted to arrest Mr Waara, Mr Waara pulled his arms away to prevent the handcuffs from being applied. Mr Waara then struck the Officer on the head.

[6]    On 18 March 2023, Mr Waara was driving in Palmerston North at speed. He was pursued by police and failed to stop. The vehicle was ultimately stopped with spikes and Mr Waara fled on foot. In searching the vehicle, the police found five rounds of shotgun ammunition, two methamphetamine pipes, and 7.34 grams of cannabis.

[7]    On 1 May 2023, Mr Waara was driving a stolen vehicle worth $7,000 and failed to stop for police. He accelerated away at high speed and overtook other vehicles. A short while later he was located and crashed the vehicle into another vehicle, which was the reckless driving offending. He then fled on foot and was eventually arrested. During a post-arrest search, a methamphetamine pipe was located on his person. He explained to police that the car was his friend’s car, which is why Mr Waara was charged with receiving stolen property as opposed to theft.

[8]    On 8 November 2023, Mr Waara drove himself and others to a food market, breaking a lock to gain access. Once they gained entry in the food market, Mr Waara and others took a variety of items including cash, cigarettes, and vapes. Two days later, Mr Waara was driving in Palmerston North and was signalled to stop by police. He accelerated at speed and the pursuit was abandoned. When the car was located again, the police spiked the vehicle twice before it came to a stop.

[9]    Ms Hall provided a helpful table summarising the offences with the maximum penalties to assist in understanding the nature and gravity of each of the offences. I reproduce it below.

Table Summarising Offences and Penalties

Charge	CRN	Offence	Maximum Penalty
Burglary	230540004803	Section 231(1)(a), Crimes Act 1961	10 years’ imprisonment
Receiving a vehicle	23054001675	Sections 246 & 247(a), Crimes Act 1961	7 years’ imprisonment
Unlawful possession of ammunition	23054001666	Section 51, Arms Act 1983	3 years’ imprisonment
Driving related offences
Dangerous driving x 3	22054002576 22054004743 23054004802	Section 35(1)(b), Land Transport Act 1998	3 months’ imprisonment, $4,500 fine, mandatory 6 month disqualification
Failing to stop x 4 (three aggravated)	23054001665 23054001669 22054002298 23054004801	Sections 52A(1)(a)(ii), 52A(3), 52A(6) & 114(2), Land Transport Act 1998	$10,000 fine, mandatory 6 month disqualification
Driving while suspended	22054004742	Sections 32(1)(c) and 32(3), Land Transport Act 1998	3 months’ imprisonment, $4,500 fine, mandatory 6 month disqualification
Driving while suspended (third or subsequent) x 2	23083000016 23082000212	Sections 32(1)(c) and 32(4), Land Transport Act 1998	2 years’ imprisonment, $6,000 fine and mandatory disqualification of one year or more
Reckless driving	23054001670	Section 35(1)(a), Land Transport Act 1998	3 months’ imprisonment, $4,500 fine and mandatory 6 month cumulative disqualification
Careless driving	23054001671	Section 37, Land Transport Act 1998	$3,000 fine, discretionary disqualification
Drugs Charges
Possession of methamphetamine pipe x 2	23054001667 23054001672	Sections 13(1)(a) and 13(3), Misuse of Drugs Act 1975	1 year imprisonment, $500 fine
Possession of cannabis x 2	23054001668 23085000634	Sections 7(1)(a) and 7(2), Misuse of Drugs Act 1975	3 months imprisonment, $500 fine
Possession of Class B controlled drug (cannabis resin)	23085000635	Sections 7(1)(a) and 7(2), Misuse of Drugs Act 1975	3 months imprisonment, $500 fine
Assault / Resist Charges
Common assault	23054000873	Section 196, Crimes Act 1961	1 year imprisonment
Resisting a constable	23054000872	Section 23(a), Summary Offences Act 1981	3 months imprisonment, $2,000 fine

[10]   The Judge took the burglary offending as the lead offence. He considered the offending as moderately serious, as although it concerned a commercial premises and there was no real risk of confrontation with people involved with the business, it was organised, and other people were involved. A starting point of 18 months was adopted.17 The following starting points were then adopted for the other offences:

17     Police v Waara, above n 1, at [18].

(a)12 months for receiving a vehicle;18

(b)six months for unlawful possession of ammunition;19

(c)12 months for all the driving while suspended offending;20

(d)12 months for all of the other driving offences;21

(e)four months for assault and resisting police;22 and

(f)two months for all the drug offending.23

[11]   This totalled five and a half years’ imprisonment. The Judge deducted 18 months to reflect totality principles, resulting in a global starting point of four years’ imprisonment.24 The Judge then increased the starting point by 10 per cent for Mr Waara’s offending on bail and for his criminal history.25

[12]   The Judge allowed a 20 per cent discount for Mr Waara’s guilty plea, 15 per cent for Mr Waara’s personal background, five per cent for rehabilitative prospects and a two-and-a-half-month discount for the time Mr Waara spent on electronically- monitored bail.26

[13]   Allowing for some “favourable rounding”,27 this resulted in an end sentence of two years and seven months’ imprisonment,28 with an order of disqualification from holding or obtaining a driver licence for two years.29

Approach on appeal

[14]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that:

18 At [19].

19 At [19].

20 At [20].

21     At [21]–[22].

22 At [23].

23 At [23].

24 At [24].

25 At [25].

26     At [26]–[29].

27 At [28].

28     At [28] and [29].

29     At [31]–[32].

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[15]   Unless these two requirements are met, the appeal must be dismissed. When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.30

Positions of the parties

Mr Waara

[16]   Ms Hall, for Mr Waara, submits the starting point of 18 months for the burglary was too high considering the seriousness of the burglary compared to other cases31 and the 30 months’ imprisonment for the balance of the offending was also out of range. There was an element of double counting in the driving offences, Ms Hall submits, in that the reckless, careless, and dangerous driving charges were each accompanied by discrete failing to stop charges. The degree of overcharging by the prosecution was not able to be remedied because of Mr Waara’s early guilty plea and Ms Hall argues that this overcharging should be tempered through sentencing.32 She submits the cumulative impact of the starting points for the balance of the offending, which are also challenged, resulted in the overall starting point being too high.33

Crown

[17]   Mr Brown, for the Crown, submits that although the 18-month starting point for burglary was stern, it was not outside of the available range. He submits that 30 months’ imprisonment for the rest of the offending was not outside the available range and there was no double counting in respect of the driving charges. The police were obliged to particularise the charges against Mr Waara and 24 months for this offending

30     Tutakangahau v R [2014] NZCA 279 at [32]–[35].

31     Relying on Price v Police [2021] NZHC 3625; R v Columbus [2008] NZCA 192; and Lenihan v R [2020] NZHC 2543 at [27].

32     Citing Fitzgerald v Attorney-General [2022] NZHC 2465, [2023] 2 NZLR 214 at [75]–[76].

33     Price v Police, above n 31; and Hamilton v Police [2016] NZHC 938.

was within range. He submits that neither the starting points nor the end sentence were manifestly excessive.

Was there an error in the sentencing decision?

Approach to sentencing

[18]   Although the Judge purported to impose concurrent sentences, in calculating discrete starting points for the burglary offence, the receiving offence, each set of driving offences, the assault and resisting arrest offences, and the drug offences, he adopted a cumulative sentencing approach, reaching an initial starting point of five and a half years’ (66 months’) imprisonment.

[19]   Section 84 of the Sentencing Act gives guidance on the use of cumulative and concurrent sentences of imprisonment. Section 84(1) provides that where the offences are different in kind, cumulative sentences should usually be imposed, regardless of whether or not the offences were a connected series of offences.34 In R v Wharewaka, this Court held that determining whether two or more offences are different or similar in kind is “a factual common-sense appraisal of what would the ordinary sensible New Zealander make of it.”35 Where the offences are similar in kind and are a connected series of offences, concurrent sentences are usually appropriate. Subsection (3) provides that determining whether two or more offences are a connected series of offences involves considering the time at which the offences occurred, the overall nature of the offending and any other relationship between the offences that the court considers relevant.

[20]   I consider that a cumulative approach was warranted when imposing sentences for much of Mr Waara’s offending. The various charges are clearly different in kind, ranging from burglary to driving offences to drug offences, and do not make up a connected series of offences, having been incurred on eleven discrete occasions across one year and five months. However, as the sentencing Judge noted, the driving charges “interconnect to some extent” in that they were incurred during the same incident. A concurrent approach should be applied in respect of these charges.

34     See also Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA84.02(1)].

35     R v Wharewaka HC Auckland CRI-2004-092-4373, 28 April 2005 at [47].

[21]   After reaching an initial starting point of five and a half years’ (66 months’) imprisonment, the sentencing Judge questioned whether it was wholly out of proportion to the overall gravity of the offending and concluded that it was. He then reduced the starting point by 18 months to four years’ imprisonment without explaining how that figure was reached. Plainly, it signalled that the Judge thought a five-and-a-half-year starting point was excessive.

[22]   The challenges raised on appeal are to the starting points for the burglary, receiving and driving charges. Although this Court must assess whether the end sentence is excessive, the process by which the sentence was reached deserves scrutiny, particularly where a substantial reduction has been made in the totality assessment, as here. Although the Judge decided to impose concurrent sentences, he has in effect calculated the adjusted starting point by adding together each of the discrete starting points for all the offences.

[23]I deal then with each of the challenges to the starting points imposed.

Burglary starting point

[24]   The courts have not produced a tariff judgment for burglary because the range of circumstances in which the offence can be committed is so varied.36 This Court in Lenihan v R provided a helpful table of factors the courts have considered in assessing the appropriate starting point for burglary:37

Aggravating

Neutral

Planned/sophisticated

Opportunistic/basic

Vandalism/wantonness

Care in entry/nil damage

High value theft/loss of sentimental items

Low value theft/loss of non-sentimental items

Residential premises

Business premises

Actual danger to occupants

No confrontation

High risk of potential harm

-     Residence at night

-     Business during work hours

-     Property stolen e.g. Class A drugs

Low risk of potential harm

-     Residence at day

-     Business outside work hours

-     Stolen property unlikely to cause harm

Targeted

Random/untargeted

Premises where security is of public importance (e.g. Police Stations, Parliament)

Premises of no particular security significance

36     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

37 Lenihan v R, above n 31, at [27].

[25]   Mr Waara’s offending was categorised by the Judge as a moderately serious burglary of commercial premises. The burglary was not spontaneous and had an element of planning, but it was a commercial premises and there was no risk of confrontation. A lock was broken and the Judge found that the stolen cash, cigarettes and vapes were not particularly valuable. The Judge accepted that the offending was not at the upper end of seriousness that might warrant a starting point of about two and a half years. Instead, the Judge adopted a starting point of 18 months.

[26]   Mr Brown relies on the Court of Appeal’s decision in Arahanga v R, where the Court observed that domestic dwelling house burglaries at the relatively minor end of the scale usually attract a starting point between 18 months’ and two years and six months’ imprisonment.38 However, the Court there also held that burglarising a domestic dwelling, as opposed to a commercial premises, is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.39 Further, on a review of the authorities in Nelson v Police, this Court found that the Court of Appeal’s guidance had not been strictly applied, and that a “more realistic range” for dwelling house burglaries at the relatively minor end of the scale is one year’s to two and a half years’ imprisonment.40

[27]   Ms Hall submits the present burglary offending is similar to Milne v Police, which involved the offender and an associate breaking into a commercial premises, being the garage of a hotel, and stealing primarily alcohol.41 She says the burglary in Milne was of a more serious nature because the risk of confrontation was higher as the premises was semi-residential and the stolen property was more valuable (primarily alcohol to the value of $944) than in the present offending. A 10-month starting point was upheld on appeal, with this Court recognising that one year starting points have been upheld or imposed on appeal for burglaries of property in the vicinity of occupants, or in the company of associates. Higher starting points, Jagose J noted, were available for burglaries of occupied premises such as the hotel involved in that

38     Arahanga v R, above n 36, at [78].

39 At [78].

40     Nelson v Police [2019] NZHC 2434 at [33].

41     Milne v Police [2022] NZHC 1227.

offending.42 Ms Hall submits that a 10-month starting point would also be appropriate in the present offending.

[28]   By contrast, in Price v Police, no issue was taken with a starting point of 18 months’ imprisonment on appeal for “a reasonably serious” lead burglary charge which involved the defendant breaking into a residential property while the victim was home asleep and stealing the victim’s car keys and car.43

[29]   I consider this offending was more akin to R v Columbus, where the Court of Appeal considered a range of 10 months to one year was an appropriate starting point for burglaries of low to moderate seriousness.44 In Columbus, the defendant forced open a garage of a residential property and stole a mountain bike, gardening tools and a tool box. The Court of Appeal considered the burglary was at the lower end of the scale because it was spontaneous, the mountain bike was later recovered and there was otherwise limited financial loss. The Court held that a starting point of no more than one year’s imprisonment was appropriate.

[30]   Taking those respective starting points into account in conjunction with the guidance in Arahanga, I consider the starting point of 18 months’ imprisonment was excessive for this offending. A starting point of one year is more appropriate and commensurate with comparable cases.

Driving offences

Driving while suspended offences

[31]   For the driving while suspended charges, the Judge recognised that they “interconnect to some extent” with the other driving charges because Mr Waara was found driving while suspended when committing the other offences. As noted, the Judge adopted a 12-month starting point for the three driving while suspended charges.

42     Milne v Police, above n 41, at [9].

43     Price v Police, above n 31.

44     R v Columbus, above n 31.

[32]   Mr Waara does not challenge this starting point. Mr Brown submits a 12- month starting point was lenient when looking at relevant cases, considering Mr Waara had 15 prior convictions for driving while suspended.45

[33]I consider the 12-month starting point to be appropriate.

Other driving offences

[34]   The other driving offences consisted of three charges of dangerous driving, one of reckless driving, one of careless driving and three of failing to stop for the police in the aggravated form. The Judge considered that the “seriously aggravating” fact about the offending was that Mr Waara was “running from the police” without care for others’ safety. On one occasion, Mr Waara crashed into another vehicle. The Judge stated that “the risk to the public is clear.”46

[35]   Ms Hall does not dispute the Judge’s finding that the driving offences were serious. However, she submits that the Judge found the failing to stop offences were aggravated because Mr Waara was attempting to escape from the police. She says this was double counting because the failing to stop charges were all accompanied by charges for reckless, careless and/or dangerous driving. Ms Hall illustrates this with reference to the offending on 1 May 2023, where Mr Waara was charged with aggravated failing to stop, reckless driving and careless driving as a result of a single pursuit. In addition, Ms Hall submits that the number of driving offences with which Mr Waara was charged reflects a degree of over-charging by the prosecution.

[36]   Mr Waara pleaded guilty to all the charges despite this alleged over-charging. Ms Hall points to Fitzgerald v Attorney-General, where this Court recognised that sentencing is one means by which the impact of prosecutorial decisions can be tempered.47 However, the Court there also observed that “judicial willingness to inquire into the exercise of prosecutorial discretion has undoubtedly been marked by restraint.”48

45     See Cadle v Police [2017] NZHC 3042 at [23].

46     Waara v Police, above n 1, at [21].

47     Fitzgerald v Attorney-General, above n 32, at [75]–[76].

48 At [75].

[37]   It is correct, as Ms Hall submits, that of the nine charges that fell under this category of driving offences, four (the dangerous driving and reckless driving charges) had a maximum penalty of three months’ imprisonment and the remainder were fineable only. I accept that the Judge, in essence, imposed the maximum penalty for this offending before eventually adjusting for totality.

[38]   I also accept Ms Hall’s submission that there was an element of double- counting with regard to the aggravated failing to stop charges coupled with the dangerous and reckless driving charges. I accept that the aggravating feature was already accounted for in the dangerous and reckless driving charges. I also recognise that many of the driving charges were incurred in the same incident, meaning they warrant a concurrent sentencing approach involving less significant uplifts rather than a cumulative approach with discrete starting points.

[39]   I consider that the 24 months’ imprisonment imposed both for all of the driving offences was too high. I have already found that 12 months for the driving while suspended charges was comparable to other cases and appropriate. The driving offences were serious and involved a grave risk to the public and a disregard for the police.

[40]   I consider that a lesser uplift of six months for the careless, dangerous and reckless driving charges is appropriate here because of the over-charging. The gravamen of these offences was that they occurred when Mr Waara was suspended from driving for which 12 months’ imprisonment was appropriate.

Receiving

[41]   Ms Hall submits the starting point for receiving should have been between four and eight months, having regard to the relevant authorities.49 The value of the vehicle was low and Mr Waara was charged on the basis of recklessness as to whether the vehicle was stolen as opposed to actual knowledge. Mr Brown sought to distinguish

49     Citing Whittaker v Police [2017] NZHC 2747; and Wheeler v R [2018] NZHC 356.

the cases relied on by Ms Hall by the level of recklessness involved in this case and the value of the property stolen. 50

[42]   I consider a 12-month starting point was too high here. It was plain that Mr Waara did not have knowledge that the vehicle was stolen, as the car was borrowed from his friend. The gravity of the offending was reflected in the charge and I consider that a more proportionate starting point, even taking into account the level of recklessness, is six months’ imprisonment.

Remaining starting points, uplifts and reductions

[43]   For completeness, the two-month starting point on the drug charges was accepted to be within range for this set of offences, although Ms Hall submits that the cannabis possession charges would not generally attract a term of imprisonment. It was also accepted that the starting point for resisting arrest and the assault on the Police Officer of four months’ imprisonment was within range. No issue was taken with the 10 per cent uplift for Mr Waara’s offending on bail and his criminal history apart from the submission that there was duplication in respect of the driving while suspended charges.

[44]   I consider the uplifts were appropriate. In relation to the 10% uplift, the Judge specifically reminded himself that he must keep any increase for previous convictions proportional, bearing in mind that previous convictions were an essential element of some of the traffic charges. I consider his adoption of the 12 months for the driving while suspended charges and the 10% uplift for Mr Waara’s extensive criminal history was in proportion and fair. No issue was taken with the discounts given for his guilty plea, his personal background factors and his time spent on EM bail.

Is the sentence manifestly excessive?

[45]   As noted, the Judge carried out this sentencing assessment by imposing starting points for each of the offences, which is consistent with a cumulative sentencing

50     Andrews v Police [2015] NZHC 2496 at [32].

approach. However, contemplating whether cumulative sentences should be imposed at the outset, the Judge ultimately “decided on concurrent sentences.”51

[46]   Ms Hall has asked this Court to consider the overall offending in the case of Price v Police.52 She submits it is more serious in nature, yet the end starting point for 32 separate and comparable charges was held on appeal to be 40-45 months’ imprisonment. However, there are different features to the offences Mr Waara faces, including drugs offending, his common assault and resisting a constable, the burglary, driving offences and receiving. Mr Waara’s substantial previous convictions and criminal history also differentiates the present offending from the offending in Price v Police. Each sentencing exercise has to be assessed on the specific facts of the offending and the offender, rather than engaging in a direct comparison with other offences and offenders.

[47]   In order to satisfy myself that the sentence was not manifestly excessive, I have compared the starting points given by the sentencing Judge with the adjusted starting points as I have assessed them.

[48]The contrast is as follows:

Offence	Starting points applied by the sentencing Judge	Adjusted starting points
Burglary	18 months	12 months
Receiving	12 months	6 months
Unlawful        possession        of ammunition	6 months	6 months
Driving while suspended offences	12 months	12 months
Other driving offences	12 months	6 months
Assault & resisting Police Officer	4 months	4 months
Drugs offences	2 months	2 months
Totality adjustment	- 18 months	Nil
Global starting point	48 months	48 months

51 Police v Waara, above n 1, at [30].

52 Price v Police, above n 31.

[49]   The total of the starting points adopted by the Judge is 66 months’ imprisonment. The Judge, in undertaking his totality assessment, deducted 18 months from that total. That left a global starting point of 48 months. My calculation arrives at the same figure. I have considered whether this global starting point is proportionate to the gravity of the overall offending and after comparing this offending with comparable offending, as noted, I conclude that it is. I am satisfied, therefore, that the global starting point reached by the Judge was fair and within range.

[50]   Although I have found that the starting points for the burglary, receiving and driving offences were too high, in reassessing the appropriate starting points, the disproportionality has levelled. The need for the sentencing Judge to reduce his initial starting point for totality occurred because the starting points imposed for the burglary, receiving and driving offending was too high.

[51]   The relevant assessment is whether the end sentence is manifestly excessive. I consider the end sentence of two years and seven months for the 23 offences that occurred over the period of a year and a half, together with Mr Waara’s personal aggravating and mitigating factors, was not manifestly excessive.

[52]   I find that the end sentence of two years and seven months’ imprisonment was not manifestly excessive.

Result

[53]The appeal is dismissed.

Cull J

Solicitors:

Pipitea Chambers, Wellington, for Appellant. Crown Solicitor, Palmerston North, for Respondent.