Wanahi v Police HC Hamilton CRI 2009-419-84
[2010] NZHC 587
•31 March 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2009-419-84
REECE TE ORA WANAHI
Appellant
v
POLICE
Respondent
Hearing: 4 February and 29 March 2010
Appearances: N Brodnax for appellant
J O'Sullivan for respondent
Judgment: 31 March 2010
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 12 pm on Wednesday 31 March 2010
Solicitors:
N Brodnax, Hamilton [email protected]
Crown Solicitor Hamilton
WANAHI V POLICE HC HAM CRI 2009-419-84 31 March 2010
[1] Mr Wanahi appeals against a sentence of three years imprisonment imposed upon him by Judge Burnett in the Hamilton District Court on 23 November 2009. On that occasion he was before the Court in respect of four quite separate matters. The Judge sentenced him to two and a half years imprisonment for burglary, with a concurrent sentence of eight months imprisonment for receiving. He was further sentenced to three months imprisonment for failing to answer Court bail, cumulative upon the sentence of two and a half years imprisonment.
[2] Finally, the Judge dealt with an application by the probation officer for cancellation of a sentence of community work and the substitution of a sentence of imprisonment. The sentence of community work had earlier been imposed for two discrete offences. On a charge of possession of an offensive weapon (a hammer), he had been sentenced to 100 hours community work, and on a charge of excess breath alcohol to 70 hours community work. Of that total of 170 hours, 144.75 hours remained unserved.
[3] Judge Burnett cancelled the sentence of community work and imposed in substitution a sentence of three months imprisonment on each of the charges of possession of an offensive weapon and of excess breath alcohol, concurrently as between those two charges, but cumulative upon the sentences imposed for burglary and receiving, and for failing to answer Court bail.
[4] Ms Brodnax submits that the resultant sentence of three years imprisonment was, in all the circumstances of the case, manifestly excessive.
The burglary charge
[5] At about 7 pm on Tuesday 5 May 2009, the appellant threw a rock through a glass window at the rear of a Hamilton residence, reached inside the window and unlocked the window latches. In doing so he cut himself and left blood on the net curtains inside the window. Having climbed through the window, he made his way
through the house, activating a burglar alarm. He then left the house through the window; nothing was taken.
[6] Some time later the police obtained a DNA blood sample which matched that of the appellant. Although initially denying responsibility, the appellant subsequently accepted he had been the offender, given the DNA match and the fact that he had sustained a cut to his hand, for which he was unable to account. At the time of the offence he had been under the influence of magic mushrooms, and had no recollection of the incident.
The receiving charge
[7] Earlier, on 7 March 2009 at about 2.40 pm, a different Hamilton residence was burgled. The offender stole a quantity of valuable equipment along with a shoulder bag. Following police inquiries, a search warrant was executed on
10 March 2009 at the appellant’s home. There the police located the shoulder bag and a Vodafone SIM card from a cell phone taken in the burglary. But the appellant denied any involvement in the burglary itself. He explained that he had been given both the bag and the SIM card by an unknown person.
[8] Initially the appellant was charged with burglary, but he later pleaded guilty immediately following the withdrawal of that charge and the substitution of a charge of receiving.
Failing to answer bail
[9] The appellant was scheduled to appear in Court on 14 September 2009 for the hearing of the burglary charge laid against him in respect of the March incident. Prior to that date, the police had agreed that the burglary charge would not proceed, and that a receiving charge would be substituted. So the case was not to proceed on a defended basis on that day, but the appellant’s attendance was still required. Nevertheless, he failed to appear and was subsequently arrested and brought before the Court. By then the DNA evidence was available in respect of the March
burglary, to which the appellant pleaded guilty on 8 October 2009. He offered no explanation for his failure to attend Court on 14 September.
The substituted sentences
[10] All that is known of the factual background to the offensive weapon charge, is that it involved a hammer. Because I was concerned at the absence of any useful information about this charge, I adjourned the appeal part heard in February, with a view to obtaining the District Court file, but it has not turned up. Neither is Ms Brodnax in a position to convey to the Court any information from her client.
[11] The brief summary of facts relevant to the excess breath alcohol charge is before the Court but it reveals nothing of great significance. The breath alcohol reading was relatively moderate. But it seems it was sufficient to affect the appellant’s driving. He was first apprehended because he had been noticed weaving across the road in his vehicle in the middle of the night.
District Court sentencing
[12] Judge Burnett dealt with each of the offences in turn. She first addressed the receiving charge which she noted involved just a SIM card and the bag, although a great deal more was stolen in the burglary.
[13] However, the Judge observed on two occasions that the receiving charge carried a maximum penalty of seven years imprisonment. It is common ground that the value of the property received by the appellant was less than $500. Section
247(c) of the Crimes Act 1961 therefore applies. It provides a maximum penalty of just three months imprisonment in such circumstances, so the Judge was wrong in respect of her identification of the maximum penalty for receiving. I will return to the significance of that error later. The Judge noted that penalties for receiving must be sufficient to deter burglars, because those who commit burglaries are often dependent upon the activities of receivers in order to make a profit out of their offending.
[14] In respect of the May burglary, the Judge noted that a pattern had developed. There were five burglary notations in the Youth Court, and four more in the District Court, the present offending constituting a fifth District Court burglary conviction. The Judge noted also that the current conviction for failing to answer Court bail was the appellant’s third such conviction, and on the resentencing application she noted, as is accepted in this Court, that the only appropriate outcome was a term of imprisonment in substitution for the cancelled sentence of community work.
[15] More generally, the Judge noted the appellant’s unimpressive list of previous convictions. Aside from burglary convictions, he has at the age of 20 years, a list which includes common assault, fighting in a public place, wilful damage, escaping from custody, failing to answer bail, and excess breath alcohol.
[16] Having noted the detail of the burglary offence and observing (as Ms Brodnax accepted in the District Court), that the primary considerations must be the protection of the public and the need to deter, the Judge adopted a starting point of three and a half years imprisonment for the burglary, which she treated as the lead offence. That starting point took account of the appellant’s past convictions for burglary, and so must be taken to include an uplift for the appellant’s poor previous record. It must also be assumed that the starting point includes an uplift for the receiving conviction, for which she imposed a concurrent sentence of eight months imprisonment. The Judge adopted separate six month starting points on the charge of failing to answer Court bail, and concurrently for possession of the offensive weapon and the charge of excess breath alcohol. That produced a combined starting point of four and a half years imprisonment. From that she allowed a discount of one-third for the guilty pleas. The resultant sentence was three years imprisonment, which she imposed in the following manner:
a) Two and a half years imprisonment for the burglary;
b)Eight months imprisonment for the receiving (concurrent with the burglary sentence);
c) Three months imprisonment cumulative on the burglary sentence for failing to answer Court bail;
d)Three months imprisonment on each of the charges of possession of the offensive weapon and of driving with excess breath alcohol (concurrently between themselves but cumulative upon the burglary sentence).
Discussion
[17] Ms Brodnax submits that the starting point of three and a half years imprisonment chosen by the Judge was too high, even assuming that it included an uplift on account of the appellant’s prior record, and a further uplift to recognise the receiving charge. Because the Judge did not engage in a detailed analysis of the various factors which led to her starting point, a degree of reconstruction is necessary.
[18] The burglary itself was not especially serious, although a residential burglary can seldom be regarded as minor. Nothing was taken, and damage seems to have been limited to the broken window. Plainly, it was opportunistic in character, the appellant having been under the influence of an intoxicating substance and having no subsequent recollection of the event. It is of course necessary to take into account the owner’s natural sense of violation and intrusion, and to recognise the trauma of the offending for the victim. But the burglary itself would not ordinarily justify a starting point of more than perhaps 15-18 months imprisonment.
[19] In making that assessment I have not lost sight of various Court of Appeal authorities which emphasise the need for deterrence in the case of habitual burglars. Examples are R v Southon CA314/02 13 February 2003 and R v Rohloff CA193/03
24 September 2003. Ms O’Sullivan submits that the appellant can properly be characterised as a recidivist burglar in the sense that he has had a number of convictions for burglary. There is some justification for that label. But as the learned District Court Judge noted, a number of the earlier offences were dealt with in the Youth Court.
[20] In addition, there is nothing in the present burglary offence to suggest that it was committed for financial gain. Rather, it was a mindless offence committed under the influence of a mind-altering substance, so this is not a case of an offender who burgles as a matter of habit for financial gain. But Mr Wanahi would do well to take note of the observation of Judge Burnett, that he has developed an offending pattern at an early age which can only lead to ever-increasing penalties.
[21] Then there is the need for an uplift arising from Mr Wanahi’s previous offending. As the Judge observed, there is something of a trend in that this is the tenth occasion upon which the appellant has been found to be responsible for a burglary, but five of those occasions were dealt with in the Youth Court, and as Ms Brodnax submits, three of the District Court offences comprised a youthful spree undertaken at the age of 17 years. There are numerous other offences as well which I have listed earlier. In my view, they could not justify an uplift of more than a further nine months imprisonment.
[22] By way of comparison, the Court of Appeal in R v Columbus [2008] NZCA
192, considered the case of an appellant who, at 35 years of age had 89 previous convictions, of which 13 were for burglary and another 34 for property related offences. He had been sentenced to imprisonment on 15 occasions since 1989, most recently for two years for burglary and related offences in January 2003. The Court added 12 months for the appellant’s previous history. That case, which involved one charge of burglary, two of theft and one of possession of cannabis and of a pipe, involved a previous list that was plainly worse than that of the appellant. The Court of Appeal applied an uplift of 12 months imprisonment from an adjusted starting point of one and a half years imprisonment for the burglary.
[23] Ms O’Sullivan submits that an added aggravating feature of the offending is the fact that during the early part of 2009, the appellant was before the Court on several occasions in close succession. The receiving offence occurred between 7-
10 March 2009. On 20 April 2009 he was in Court for possession of cannabis. The burglary occurred on 5 May 2009, and then on 28 May 2009 he was sentenced for fighting in a public place, after which he failed to answer District Court bail.
[24] It is time for the appellant to give effect to the letter he wrote to the sentencing Judge, in which he expressed in firm terms his intention to turn his life around. In the meantime, I am satisfied that the uplift which I have allowed on the burglary charge sufficiently recognises all of the aggravating features present in this case, including those expressly alluded to by Ms O’Sullivan.
[25] Finally, there is the question of the receiving charge. The Judge dealt with that by way of the imposition of a concurrent sentence, but it must have been a matter to which she had regard in adopting her eventual starting point. Given the maximum available sentence of three months imprisonment on the receiving charge, an allowance of only one-two months could be made in order to achieve an appropriate outcome based on totality principles.
[26] Drawing all of these considerations together, I consider that a starting point of no more than two years three months imprisonment was justified on the burglary and receiving charges.
[27] I turn to the bail breach. The maximum penalty for this offence is a sentence of 12 months imprisonment. The appellant had two previous convictions for failing to answer District Court bail, and a conviction for escaping lawful custody in the District Court, as well as a case proven for escaping in the Youth Court. He had previously served a sentence of seven days imprisonment for a bail breach. There is no tariff for offending of this type. The outcome must be dictated by the circumstances, both of the offending and the offender.
[28] Ms Brodnax submits that a concurrent sentence was sufficient, or in the alternative that a minimal cumulative sentence might have been justified.
[29] Ms O’Sullivan says that, having regard to the appellant’s poor previous history, the six months starting point chosen by the learned Judge was plainly within range.
[30] In my opinion the Judge was perfectly entitled to impose a cumulative sentence of imprisonment, having regard in particular to Mr Wanahi’s apparent
previous inability to abide by the terms of his bail conditions, and his preparedness to escape from custody should the opportunity present itself.
[31] But the six months starting point chosen by the Judge was too severe. The charge upon which the appellant was required to appear in Court for trial was, to his knowledge, to be withdrawn. The witnesses had been stood down. The case was not to proceed on the day in question. This was not a case in which a defendant knowingly wastes the time and resources of the Judge, counsel and witnesses. His failure to attend the 14 September hearing remains unexplained. In all the circumstances a cumulative sentence of three months imprisonment was justified, but no more.
[32] Finally, there is the question of the substituted sentence of six months imprisonment in lieu of accumulated fines. Ms Brodnax submits that the starting point of six months imprisonment chosen by the Judge was out of proportion to the level of fines which it was designed to replace.
[33] The approach to be adopted in such cases was helpfully discussed by the Court of Appeal in R v Morgan [2008] NZCA 232. There, Arnold J delivering the judgment of the Court of Appeal, said:
[13] As Heath J said in White, in re-sentencing under s 68(3)(c) the Judge is concerned to impose a sentence that could have been imposed on the offender originally. The substituted sentence should not include any element of sanction for the failure to comply with the community work sentence (see R v Phillips CA 379/90 22 May 1991 at 3, dealing with failure to complete a sentence of periodic detention). Section 71 of the Sentencing Act creates a specific offence of breach of a community work sentence, and this is the appropriate mechanism to deal with that issue.
[14] Where imprisonment is imposed in substitution for a community-based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender’s rehabilitation, that factor may assume less weight on re-sentencing given the offender’s failure to comply with the community-based sentence.
[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.
[34] In Morgan the appellant had entered a plea of guilty to a charge of assault with a weapon. He was sentenced to 150 hours community work, but had completed only four hours before the expiration of the completion date. On a probation officer’s application the District Court Judge cancelled the sentence of community work and imposed a sentence of eight months imprisonment in substitution. The Court of Appeal quashed that sentence and substituted a sentence of three months imprisonment, which the Court considered adequately served the purposes and principles of sentencing, and reflected the Judge’s original assessment that the assault was at the low end of the spectrum.
[35] As earlier noted, little is known of the circumstances in which the offensive weapon charge was committed, but it cannot have been a serious offence of its type, given that a sentence of community work was initially thought to have been appropriate. As for the breath alcohol offence, the maximum penalty was three months imprisonment, as the Judge noted. At least notionally, the Judge must have allocated a penalty of at least three months imprisonment to the offensive weapon charge and the balance to the excess breath alcohol charge, in reaching her final sentence of six months imprisonment.
[36] There is simply insufficient information before the Court to make a proper assessment of the Judge’s approach. It was for the appellant, who bears the burden of proof on appeal, to show that a substituted sentence of six months imprisonment was not within range. Although on the face of it the six months sentence appears to be stern, I am not satisfied that the appellant has shown it to be manifestly excessive.
Conclusion
[37] I have concluded that the starting points adopted by the learned Judge in respect of all but the substituted sentence were too high, and that, in total, the starting point ought to have been three years imprisonment. From that, as did the Judge, I deduct one-third for an early guilty plea, so producing an end sentence of two years imprisonment.
[38] Ms O’Sullivan was inclined to argue that the guilty plea on the lead charge (burglary) did not come at the first available opportunity, but Ms Brodnax was able to show that the appellant did indeed plead guilty at the first opportunity to that charge, and also to the receiving charge, as soon as it replaced the other burglary charge.
Result
[39] For the foregoing reasons the appeal is allowed. The sentence of three years imprisonment imposed upon the appellant is quashed. I substitute the following sentences:
a) On the charge of burglary, a sentence of 18 months imprisonment;
b)On the charge of receiving, a concurrent sentence of two months imprisonment;
c) On the charge of failing to answer Court bail, a sentence of two months imprisonment, cumulative upon the sentence imposed in respect of the burglary charge;
d)On each of the charges of possession of an offensive weapon and of excess breath alcohol, substituted concurrent sentences of four months imprisonment, cumulative on the burglary sentence.
[40] It will be noted that the cumulative substituted sentence is increased from three months, as imposed by the Judge, to four months imprisonment. That is simply to reflect the principle that there ought to be a one-third discount for the appellant’s early guilty pleas. The overall result is that the end sentence of three years imprisonment imposed in the District Court is reduced to two years imprisonment.
C J Allan J
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