Wharepapa v Police HC Gisborne CRI 2010-416-5

[2010] NZHC 2271

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-416-005

BETWEEN  HIRA WHAREPAPA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 December 2010

Counsel:         A W Clarke for Appellant

R J Collins for Respondent

Judgment:      15 December 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Burnard Bull, PO Box 946, Gisborne

Crown Solicitor, PO Box 906, Napier

WHAREPAPA V NEW ZEALAND POLICE HC GIS CRI 2010-416-005  15 December 2010

The appeal

[1]      Mr Wharepapa seeks leave to appeal out of time and, if granted, leave to appeal against sentence.

[2]      On 18 August 2010, Mr Wharepapa was sentenced to an effective term of imprisonment of three years and three months on charges involving burglary, conspiracy to commit burglary, cultivation of cannabis, possession of cannabis and being found without reasonable excuse in an enclosed yard.

[3]      The sentence appeal is brought on the basis that the effective term imposed is manifestly excessive.  Mr Clarke, for Mr Wharepapa, submits that the Judge erred in failing to apply the totality principle adequately when he decided to accumulate sentences on three of the burglary charges.  In addition, there is an argument based on unjust disparity in relation to the treatment of co-offenders.  In the circumstances, it will not be necessary for me to address that latter point.

Facts

[4]      In brief, Mr Wharepapa engaged in a series of burglaries beginning on 17

February 2010.   The first was at premises at Tuparoa Road, in Ruatoria, on 17

February 2010.  There followed two burglaries at the Te Puia Springs Store, on 3 and

4 March 2010.  A further burglary of the Hikurangi Supermarket took place on 24

March 2010.

[5]      On the first two of those burglaries, Mr Wharepapa was sentenced to a period of  18  months  imprisonment  with  cumulative  sentences  of  12  months  and  nine months respectively in respect of the burglaries that occurred on 4 March 2010 and

24 March 2010.   Lesser sentences were imposed in respect of the balance of the offending, all on a concurrent basis.  An order for reparation was made in the sum of

$5120 to meet losses incurred by the proprietors of each of the premises.

Analysis

[6]      Mr Clarke has submitted that the Judge’s  error arose primarily out of a misapplication of the methodology required when sentencing burglars.   Reference was made to R v Columbus.[1]   In that decision the Court of Appeal took the view that “it was important for sentencing Judges to guard against the risk of undue emphasis on past dishonesty convictions in fixing the starting point for sentencing on a current charge by imposing a sentence which is primarily a punishment for previous offending”.[2]

[1] R v Columbus [2008] NZCA 192 at [12]-[15].

[2] Ibid, at para [15].

[7]      Mr Wharepapa was sentenced in the District Court at Gisborne by Judge Connell.   The Judge was unimpressed with his conduct.   It appears from the sentencing  notes  that  he  was  particularly  concerned  about  the  impact  of  the offending on a number of people who had built up businesses in Ruatoria which may have become unsustainable as a result.

[8]      The Judge was also concerned about previous convictions for burglary, of which Mr Wharepapa had six.  The Judge regarded the primary sentencing goals as denunciation and the effect on victims.  Having said that, Judge Connell was aware that Mr Wharepapa was only 22 years of age and that the least restrictive sentencing option ought to be imposed.

[9]      With respect, I agree with Mr Clarke that the sentencing methodology did not comply with R v Columbus.   What the Judge did in sentencing on the burglaries, other than the Tuparoa Road and the first Te Puia Springs Store burglaries, was to fix a starting point and then reduce that by one-third to provide a credit for early guilty pleas that had been acknowledged to that point by the Court of Appeal’s judgment in R v Hessell.[3]

[3] Hessell v R [2010] 2 NZLR 298 (CA).

[10]     The difficulty with the Judge taking that course is that there was a real risk that he may have triple-counted the effect of recidivist behaviour in the manner against which the Court of Appeal warned in Columbus.

[11]     In making those observations, I have sympathy for the Judge, who in the course of a busy sentencing list, was confronted with a difficult sentencing task.  I record also Mr Clarke’s acknowledgement that those were the circumstances that confronted the Judge on the day.

[12]     In my view, the appropriate approach in this case was to fix the lead charge and  to  determine  a  starting  point  by reference  to  all  aggravating  circumstances including the recidivist conduct.  Taking that approach based on relevant authorities, it would be difficult to find a starting point in excess of four years imprisonment.

[13]     Nevertheless, the conduct was bad and a starting point at the top of the available range was  appropriate.   While there was little prospect of brining his intention to fruition, Mr Wharepapa acknowledged to the Police that the conspiracy to burgle the Hikurangi Supermarket was intended to target pharmaceutical products, something that the Court of Appeal in R v Harding[4]has indicated aggravates the offending.

[4] R v Harding CA289/04, 26 October 2004.

[14]     Taking  a  starting  point  of  four  years  imprisonment,  one-third  should  be deducted for the credit then available under Hessell.   That leaves a period of 32 months or two years eight months imprisonment.

[15]     Having taken account of past offending, I see no basis upon which it could realistically be asserted that a total sentence of more than that could be imposed.  I find that, for reasons relating to the methodology applied, the sentence imposed by the District Court Judge was manifestly excessive.

Result

[16]     Leave to appeal out of time is granted and the appeal against sentence is allowed.

[17]     The sentences imposed on the burglary charges are each set aside.   The sentences on the cultivation of cannabis, possession of cannabis, conspiracy to commit burglary and unlawfully being in an enclosed yard offences remain and will be served concurrently with a term of imprisonment of two years eight months, which I impose on the charge relating to the burglary of the Hikurangi Supermarket. On the other burglary charges, a term of imprisonment of two years is imposed.

[18]     All the sentences being concurrent, the effective term of imprisonment is one of two years and eight months.  Remaining sentences stand.

P R Heath J