Wharerau v Police

[2017] NZHC 72

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000403 [2017] NZHC 72

BETWEEN

HENARE WHARERAU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 February 2017
Counsel:	J M Hudson for Appellant I S Ko for Respondent
Judgment:	3 February 2017

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

J M Hudson, Manukau.

Kayes Fletcher Walker, Manukau.

WHARERAU v POLICE [2017] NZHC 72 [3 February 2017]

The issue

[1]      On 29 November 2016 Judge Ingram sentenced the appellant to a 25-month term of imprisonment in relation to burglary offending, possession of ammunition and a breach of bail.1   The appellant contends that sentence is manifestly excessive. The respondent submits it is within range.

Background

[2]      On 7 February 2015 the appellant was drinking with friends. When there was nothing left to drink, he and his friends decided to get more alcohol by burgling a Countdown supermarket.   The appellant took with him a large rock.   At approximately 12.20 am, he threw the rock through the supermarket’s front window. The window smashed.  The appellant and two friends entered the store and collected casks of wine.  Countdown lost $500.

[3]      The appellant committed similar offending in the early hours of 26 November

2015.  He smashed the front window to a New World supermarket, entered the store and stole two boxes of Steinlager beer and other items.  He returned home and drank the beer.  New World lost $609.

[4]      The summary of facts records the appellant’s pithy explanation to Police: “I

broke into both of those shops because I wanted more alcohol”.

[5]      The appellant was  granted bail in relation to the burglary offending; the charges in relation to which were laid in late 2016.   The appellant breached an associated curfew and was arrested on 26 October 2016.   When searched, Police found two .375 rounds of magnum ammunition in his pocket.

[6]      Judge  Ingram  considered  an  appropriate  starting  point  for  the  burglary offending was “something in the region of two years” imprisonment.2   In relation to the first burglary, the Judge adopted a starting point of 18 months, which His Honour

uplifted by three months in light of the appellant’s “bad record”.   The Judge then

1      Police v Wharerau [2016] NZDC 24188.

2 At [10].

afforded the appellant a six-month discount for his guilty plea, resulting in a sentence of 15 months’ imprisonment.   The Judge adopted a starting point of nine months’ imprisonment for the second burglary, mitigated by three months for the guilty plea and offer of reparation.  The six-month sentence was made cumulative.  The Judge adopted a starting point of six months’ imprisonment in relation to the ammunition offence, mitigated by two months for the guilty plea.  The four-month sentence was also made cumulative.   The Judge imposed a concurrent period of one month’s imprisonment in relation to the breach of bail; an overall sentence of 25 months’ imprisonment. The Judge also ordered reparation of $1,109.

The parties’ cases

[7]      The appellant contends the Judge erred by adopting an excessive starting point in relation to the first burglary offence, and further erred by uplifting that starting point in light of the appellant’s criminal history.   He contends both errors resulted in a manifestly excessive sentence.   Attention is also invited to the cumulative term in relation to the ammunition offending.

[8]      The respondent submits the sentence is  within range  given the appellant committed two discrete burglaries, and then possessed ammunition while on bail for both.  And, it invites attention to the ultimate sentence rather than the process by which it was achieved.

Analysis

[9]      The Court of Appeal has declined to establish a tariff for the offence of burglary because the circumstances in connection with it are so variable.  However, that Court has identified a number of factors relevant to culpability.3   These include the degree of planning in connection with the offending, its sophistication, nature of premises entered, kind  and value of property stolen, amount of damage, victim impact, and extent of offending where multiple burglaries are in issue.  The present case is characterised by intrusion to commercial rather than residential premises,

unsophisticated offending, and modest victim impact.

3      R v Nguyen CA110/01, 2 July 2001 at [17].

[10]     Four cases are relevant:

(a)      In R v Stevens,4 the Court of Appeal held a starting point of not more than 18 months’ imprisonment was warranted for a burglary in which the value of stolen goods was approximately $350.  The burglary was of commercial premises.  There was a degree of premeditation.  That case involved a breach of trust as the appellant had keys to his former workplace and knew the alarm code.

(b)In  Rangi  v  Police,5   the  defendant  climbed  through  a  hole  in  a padlocked wire mesh gate.  He then smashed an office window to gain entry to the premises.  He was disturbed by a security guard.  There was a confrontation but no violence.   Fogarty J adopted a starting point of 18 months’ imprisonment.

(c)      In Craigie v R,6  the High Court concluded a starting point of two years’ imprisonment was appropriate for a single burglary of commercial premises involving premeditation and significant damage and loss.  The offender stole $1,000 from the till and several cases of alcohol. The till, worth $1,200, was damaged beyond repair.

(d)In  Hewitt  v  Police,7   the  defendant  gained  entry  to  commercial premises by smashing an office window.  He stole a laptop and other items to the value of $3,570. Woolford J concluded the 18 month start point adopted in the District Court was excessive.  The Judge settled upon a starting point of 15 months as appropriate.

[11]     These cases imply the Judge’s starting point of 18 months’ imprisonment in relation to the first burglary was too high, and by approximately three months. Unlike Stevens, there was no breach of trust.  And unlike Rangi, a guard was not

confronted.    Craigie  and  Hewitt  involved  greater  loss.    As  foreshadowed,  the

4      R v Stevens [2009] NZCA 190.

5      Rangi v Police [2013] NZHC 465.

6      Craigie v R [2012] NZCA 67.

7      Hewitt v Police [2012] NZHC 3332.

decisive  factors  are  the  commercial  nature  of  the  premises,  the  unsophisticated nature of the offending, and modest victim impact.  This is not to treat the offending, however, as anything other than serious.

[12]     In   isolation,   the   second   burglary   warranted   a   similar   starting   point (15 months), but the totality principle required a global starting point of not more than 24 months’ imprisonment.  And while the Judge said a starting point of that order was appropriate for the two burglary offences, His Honour effectively adopted an overall starting point of 27 months’ imprisonment, which the Judge then uplifted by three months for the appellant’s criminal history.

[13]     Care is required in this area so as not to re-punish an offender for previous offending.8   The appellant’s criminal record is unenviable, but he has no convictions for dishonesty as an adult, apart from the two burglary offences in question.  He has two Youth Court notations for other unlawful takings/conversion, and one Youth Court  notation  for  burglary.    The  instant  offending  was  committed  when  the appellant was 21 years of age, and so some years after his Youth Court offending. Against this background, little if any uplift was warranted.

[14]     The respondent acknowledges the six-month starting point in relation to the ammunition offending is at the top of the available range.  However, the appellant was on bail for both burglary offences when he committed this offence and the type of ammunition is troubling.   So, as the Judge recognised, a deterrent response in relation to that offence was required.

[15]     This leaves the deductions for guilty pleas.   In relation to the offences of burglary  and  possession  of  ammunition,  the  Judge  afforded  the  appellant  a

33 percent discount. The Supreme Court has held the maximum discount for a guilty plea is 25 percent,9  so the Judge must have increased the discount to reflect the appellant’s offer to make full reparation.  However, the discount remained generous

because:

8      Tiplady-Koroheke v R [2012] NZCA 477 at [23]–[24].

9      Hesssell v R [2010] NZSC 135, [2011] 1 NZLR 607.

(a)       The appellant confessed to the burglary offending.

(b)Strength of the prosecution case is relevant to the level of discount afforded a guilty plea.

[16]     It follows the Judge’s benevolent approach on this aspect offsets, to an extent, the unduly high starting point for the burglary offending and associated uplift for the appellant’s criminal history.

[17]     Adopting a starting point  of 24  months’ imprisonment  in  relation  to  the burglary offending, and mitigating that figure by 25 percent for the pleas of guilty and reparation offer, produces an end sentence of 22 months’ imprisonment if one adopts the Judge’s methodology in relation to the balance of the offending—as I do. Reasonable minds could disagree as to whether the substitution of this term constitutes tinkering, something appeal courts have said consistently said they will not do.   However, the appellant is still young.   And more importantly, the term imposed was beyond the available range.

[18]     The appeal is allowed and the sentence quashed.   A term of 22 months’

imprisonment is substituted.

……………………………..

Downs J