Whakatau v Police HC Rotorua CRI 2010-463-63

[2010] NZHC 1767

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2010-463-63

KEPA JACK WHAKATAU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 October 2010

Appearances: I Farquhar for the Appellant

N Tahana for the Respondent

Judgment:      4 October 2010

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr K Farquhar, Solicitor, Taupo

Ms N Tahana, Fletcher Pilditch, Office of the Crown Solicitor, Rotorua

WHAKATAU V NEW ZEALAND POLICE HC ROT CRI 2010-463-63  4 October 2010

[1]      Mr Whakatau appeals against an overall sentence imposed in the District Court of 2 years and 3 months imprisonment for one offence of burglary, three thefts, two bail breaches by failing to attend Court and four breaches of conditions imposed following release on an earlier prison sentence.

[2]      I will summarise the offending in an essentially chronological order coupled with a note of the dates of Court appearances.   This is of some significance in relation to the offending and the offender – that is to say, the offending by this appellant and in respect of the appellant himself.

[3]      On 6 January 2010 Mr Whakatau was released from prison on conditions. This followed sentences totalling 1 year and 6 months imposed on 29 May 2009 for assaults and other offences.

[4]      On 25 February 2010 Mr Whakatau appeared in the District Court having been arrested for the first of the thefts that are the subject of this appeal.  That was a theft of meat from a supermarket on 18 February 2010.   It was, in terms of the summary admitted by Mr Whakatau, a brazen attempt to steal.  On 25 February 2010

Mr Whakatau was remanded on bail.

[5]      On 2, 5 and 16 March 2010 there were four separate breaches of the prison release conditions.  There was a failure to report to a probation officer, a failure to attend a domestic violence program, a failure to attend a scheduled home visit and a failure to notify a change of address.  Summonses were issued.

[6]      On  a  date  between  11  and  31  March  2010  Mr  Whakatau  committed  a burglary.   This was discovered by Police in June 2010 when executing a search warrant in respect of another matter.   Police found at Mr Whakatau’s daughter’s home, where he was living, a baby’s pram and two baby gyms.  They spoke to Mr Whakatau about this.  He admitted that he had stolen these items on some date in March 2010 from a property in Rotorua, although he could not remember the exact address.   He said that he had gone to the house with the intention of stealing a bicycle.  He opened an unlocked garage door and saw the pram and baby gyms.  He

said he took them to give to his daughter.  These items still had their price tags on with a total value of $569.  Mr Whakatau was not arrested for this burglary until he was arrested for another theft in June.

[7]      On 15 April Mr Whakatau again appeared in Court for theft of a pair of shoes and socks from a supermarket.  These had a value of $69.  He was again released on bail.

[8]      On 28 April 2010 Mr Whakatau breached bail by failing to attend Court and a summons was issued.

[9]      On 23 June 2010 Mr Whakatau appeared in Court having been arrested for a further theft, the burglary, the breach of bail in April and what appears to be the second breach of bail.  The third theft occurred on 12 June 2010.  It was another theft from a store, in this case ladies underwear valued at $25.

[10]     At the beginning of his comments on sentencing Judge Weir said:

[2]       All of this offending occurred since you were released from prison on 6 January this year, and the summary of facts outlines basically that you have just carried on with your criminal behaviour as you had essentially since 1975.  Your offending has continued unabated since 1975 and this time when you were released into the community, it has just continued.  The issue is how I deal with you today.  I have read the letter that you have written to the Court and that is also reflected in the probation officer’s report.

[11]     He then noted matters in the pre-sentence report, both positive and negative. The overall impact from the pre-sentence report was noted as being the assessment that Mr Whakatau remained at high risk of re-offending.  The Judge then said:

[6]       Your offending on this occasion is right across the board.  The most serious is the burglary, but it is also the thefts which you have continued to commit, and also the breach of your release conditions.   Time and time again, you just have not complied with release conditions and, of course, there was also the breach of bail charge.  So your offending occurred whilst you were on bail and also, of course, while you were subject to release conditions.

[7]       You have to be regarded as a recidivist offender.  Your offending is across the board; 98 convictions for fraud, 26 for theft, 15 for burglary, five for aggravated robbery.  How then do I deal with you today?

[12]     It is apparent from the further observations that careful submissions were made by Mr Farquhar, who appeared in the District Court for Mr Whakatau, and by the prosecutor.  Counsel or the prosecutor – or both – referred the Judge to Senior v Police[1], R v Southon[2], and R v Columbus[3].  The Judge then directed himself to the need to establish a starting point in terms of R v Taueki.[4]   He said:

[1] Senior v Police (2000) 18 CRNZ 340 (HC).

[2] R v Southon (2003) 20 CRNZ 104.

[3] R v Columbus [2008] NZCA 192.

[4] R v Taueki [2005] 3 NZLR 372.

[9]       Your  position  has  to  be  addressed  now  though  in  terms  of  the principles  of  R  v  Taueki  [2005] 3 NZLR 372, which applies to all sentencings of this type. In other words, when fixing a starting point, the circumstances of the offending need to predominate not the circumstances of the offender, but I think having said that and taken on board the fact that because of this recent change in methodology, the starting point level reduces. At the end of the day, I do not believe that that case means that end sentences are to be reduced for recidivist offenders, and I gain comfort from the observations of [sic] in Sunnex v Police (HC Christchurch, CRI-2010-

404-43, 17 June 2010, French J) where at paragraph 9 she said exactly that.

[10]      I accept, however, in applying the principles of Taueki and looking at the lead charge, which is the burglary charge, the starting point has to be lower than what would normally have applied and, in my view, in your case, the appropriate starting point on the burglary charge is one of two years imprisonment.  That needs to be substantially uplifted however, because of your list of previous convictions and, indeed, the facts that you offended whilst you were on conditions of release and also some of the offending occurred while you were on bail.  That would therefore be uplifted to three years imprisonment.   You pleaded guilty to the burglary at the earliest possible opportunity.  For that reason, you are entitled to the full deduction that applies, which is one-third, which leaves you with an end sentence on the burglary charge of two years imprisonment.

[13]     In  relation  to  the  thefts  the  Judge  imposed  sentences  of  3  months imprisonment for each offence.  That was the maximum that could be imposed on charges dealt with summarily.   Those sentences were imposed concurrently with each other but cumulative on the sentence of 2 years imprisonment for the burglary. Further concurrent sentences of 3 months imprisonment were imposed for the other offences.   The end sentence, in other words, was one of 2 years and 3 months imprisonment.    Standard  release  conditions  for  6  months  were  imposed  but  no special  release conditions.    I apprehend  that  no  special  release conditions  were imposed having regard to the observations of the probation officer in respect of Mr Whakatau’s  failure  to  respond  on  earlier  occasions  and  having  regard  to  Mr

Whakatau’s attitude conveyed, to an extent, to the probation officer and made plain by his own actions.

[14]     Mr Farquhar focussed on the starting point for the burglary.   This is the appropriate focus.  He submitted that a starting point of 2 years as adopted by the Judge is manifestly excessive and that a starting point of 12 months for the particular offending should have been adopted.  In this context Mr Farquhar emphasised that Mr Whakatau entered the garage through an unlocked door and, in particular, that without the advice he gave the Police it was likely that the Police would not have been able to prove the charge against anybody.  Mr Farquhar submitted that an uplift for all aggravating features, referring in particular to the extensive previous convictions, offending on bail and offending while on probation, could not be more than 12 months.  That would produce a total of 24 months and an end sentence for the burglary of 16 months, allowing a one-third reduction for the guilty pleas which reduction was not in issue in the District Court or on this appeal.  Mr Farquhar did not quarrel with a cumulative sentence of a total of 3 months for the other offences.

[15]     Having made those submissions, and in greater detail than my bare outline, Mr Farquhar did acknowledge that the submission he had made in the District Court as to a starting point for the burglary was between 1 year and 2 years.  That was a responsible acknowledgment to the Court and made with the further submission, as would be expected, that the firm submission for Mr Whakatau was nevertheless for a starting point of 12 months.   That is, of course, relevant but I must nevertheless consider the appeal on its overall merit.

[16]     Ms Tahana began her submission by emphasising that the Court was dealing with somebody who is without question a recidivist burglar and thief.  I note in that respect that Mr Farquhar did not endeavour to argue to the contrary.  In that context Ms Tahana submitted that on an appeal the ultimate question is whether the final sentence imposed is manifestly excessive even though the route by which it was reached in the District Court was different from the route that might be taken in another situation.  I will come back to that.

[17]     Ms Tahana submitted that the starting point adopted by the Judge of 2 years could perhaps be regarded as severe, but not excessive.   So far as the uplift is concerned there is no material difference between counsel and there is no need to go into that any further.  The same broad observation applies to the sentence imposed for the thefts and the other offending.

[18]     I am in the end not persuaded that the overall sentence imposed on this offender for all of the particular offending in question, when this is assessed also in relation to the seriously aggravating personal factors, is manifestly excessive.

[19]     The starting point adopted by the Judge for the burglary is probably severe. But it is unnecessary to analyse that if the end sentence, having regard to all of the factors  I  have  mentioned,  cannot  be  said  to  be  manifestly  excessive.    For  the purposes of this appeal the point I am seeking to make is perhaps sufficiently dealt with by what really amounts to a hypothetical alternative – hypothetical because I am not wanting to embark on a new sentencing exercise as if I was the Judge dealing with the sentence at first instance.   Mr Farquhar, with his experience and responsibility, had submitted that a starting point could be up to 2 years.   I have already indicated that that may be regarded as severe.  But that is at least indicative of a starting point of 18 months being something less than severe (although again possibly reasonably high when looking solely at the facts of the offending itself). But if the starting point was taken as 18 months, with an uplift of 12 months for the aggravating factors, and then with the individual offences of three thefts and six instances of casually ignoring other obligations added in, an end sentence of 2 years and 3 months can be arrived at by another route.  Again, this might be regarded as a reasonably severe sentence, but not manifestly excessive.

[20] There is a point at which the persistent offending over a very long period of time, and an apparent complete indifference to the law in other respects, does begin to have real prominence in determination of a sentence. That was the point understandably referred to by the Judge in his comments on sentencing and, in particular, at [9].

[21]     For all of these reasons I am not persuaded that the end sentence is manifestly

excessive.  In consequence the appeal is dismissed.

Peter Woodhouse J