Wharerimu v Police

[2015] NZHC 526

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-003 [2015] NZHC 526

BETWEEN

MAUI TAUPOKI WHARERIMU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 March 2015
Appearances:	J Natusch for Appellant R Guthrie for Respondent
Judgment:	19 March 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

WHARERIMU v NEW ZEALAND POLICE [2015] NZHC 526 [19 March 2015]

[1]      Mr Wharerimu pleaded guilty in the District Court to charges of burglary, intentional  damage  and  breach  of  bail.    On  10  December  2014,  Judge Adeane sentenced Mr Wharerimu to an effective term of 15 months imprisonment.1   In doing so he rejected a submission that a sentence of home detention was appropriate.

[2]      Mr Wharerimu appeals against the sentence on the basis that the Judge erred in principle.   He contends that errors in the Judge’s reasoning process led him to impose a sentence of imprisonment, when a sentence of home detention was appropriate.

The facts

[3]      The facts underlying the offending were contained in two summaries of fact that Mr Wharerimu accepted for sentencing purposes.  These record that on 30 July

2014, a police patrol vehicle was parked in a residential street and unattended.  Mr Wharerimu was walking along the street and noticed the police car.  He walked up to the police car and kicked the left hand side of it causing a large dent in the panelling. He then ran away through a number of properties before being tracked by a police dog handler and arrested.  Mr Wharerimu subsequently denied responsibility for this offending.

[4]      The  burglary  charge  arose  after  a  residential  property  in  Gisborne  was burgled at some stage over the night of 11 August 2014.  By his plea, Mr Wharerimu accepted that he burgled the property.  He did so by smashing a bedroom window and gaining entry to the house.  He then ransacked several rooms whilst searching for items of value.  He took a large number of items from the property, including a computer, electronic equipment and keys to a vehicle parked in the garage.   He endeavoured to start the vehicle, no doubt in order to steal it, but was unsuccessful because the owners of the vehicle had immobilised the vehicle before going on holiday.

[5]      The police later learned that Mr Wharerimu was using the victims’ computer to gain access to the internet.  They executed a search warrant on his home address

1      New Zealand Police v Wharerimu DC Gisborne CRI-2014-016-001634, 10 December 2014.

on  15 August  2014  and  located  the  stolen  computer  there,  together  with  other property belonging to the victims.

[6]      When spoken to by the police, Mr Wharerimu initially denied any knowledge of the burglary and any involvement in it.   He said that he had purchased the computer from an associate some days before the date of the burglary.

[7]      The summary of facts in respect of the charge of breaching bail are not on the file, but the Judge convicted and discharged Mr Wharerimu on that charge.  For that reason it is not necessary to say anything further about it.

The Judge’s decision

[8]      The Judge took a starting point of 18 months imprisonment on the burglary charge.   He then added an uplift of two months to reflect the charge of wilful damage.  This led to a starting point of 20 months imprisonment before taking into account mitigating factors.

[9]      The only mitigating factor the Judge was prepared to take into account was Mr Wharerimu’s early guilty plea.  He allowed a discount of five months, or 25 per cent, to reflect that factor. This led to the end sentence of 15 months imprisonment.

[10]     The Judge explained his decision not to impose a sentence of home detention in the following paragraph:

[5]       Mr Wharerimu is a 23 year old.  He is a first offender for burglary. He has a short previous history of drunkenness and disorder.  There are no tariffs for burglary.  In R v Columbus inform sentencing of the kind.  But for dwellinghouse burglaries where property measured in some thousands of dollars is involved, in my view the correct starting point is a sentence of imprisonment.  That is so because the eastern policing region, Hawkes Bay and Gisborne, has a burglary per capita rate as high as any other place in New Zealand as revealed by recent police statistics.  That has been the case for some years.  It needs to be spelt out consistently and clearly to anyone, first offender or otherwise, who are prepared to ransack someone else’s private home that they will not be serving a sentence in the comfort of their own home.  I am not prepared to entertain the application for home detention here.

(emphasis added)

The appeal

[11]     Mr Natusch does not challenge the starting point the Judge adopted or the discount he gave Mr Wharerimu for his guilty plea.  He contends, however, that the Judge erred in the way in which he dealt with the defence submission that Mr Wharerimu should receive a sentence of home detention rather than imprisonment.

[12]     Mr Natusch submits that the highlighted portion of the passage cited above indicates that the Judge has closed his mind to sentences of home detention being imposed in cases of residential burglaries.  He submits that this is a serious error, and that it led the Judge to conclude that a sentence of home detention was inappropriate without considering factors personal to Mr Wharerimu.

[13]     In particular, Mr Natusch submits that the Judge failed to take into account the fact that Mr Wharerimu was just 23 years of age at the time of the offending, and did not have any previous history for dishonesty offending.  Given that background, he submitted that the Judge ought to have placed greater weight on the need to impose a sentence that provided rehabilitative aspects for Mr Wharerimu.  He points out that the recommendation in the pre-sentence report was for a sentence of community detention, or home detention.   He submits that Mr Wharerimu’s background is such that the Judge should therefore have imposed a sentence of home detention rather than imprisonment.

[14]     The  decision  to  impose  a  sentence  of  imprisonment  rather  than  home detention is a discretionary decision.   It is a discretion fettered, however, by the purposes and principles of sentencing contained in the Sentencing Act 2002.

[15]     For that reason, it would be wrong for any sentencing Judge to undertake a sentencing exercise having a pre-determined notion of the type of sentence that is the appropriate outcome without taking into account the facts of the offending or the circumstances of the offending.   Burglaries will differ widely, both in nature and extent.   The circumstances of offenders will also vary widely.   For that reason it would be manifestly wrong in principle for any sentencing Judge to proceed on the basis that all persons appearing for sentence in relation to a residential burglary

regardless of the nature of the offending or the circumstances of the offender, must automatically receive a sentence of imprisonment.

Decision

[16]     I do not read the Judge’s remarks, however, as going that far.  The Judge was clearly concerned that this particular offending involved the ransacking of the victims’ home.  This view of the facts is borne out by the victim impact statement that the Judge had before him.  This confirmed that the owners of the property that Mr Wharerimu burgled were aged more than 80 years.  Fortunately, they were away on holiday at the time of the burglary.  The victim impact statement makes it clear that the burglary has had a devastating impact for the victims.  They have lost more than $3,000 worth of property, and the fact that they were uninsured means that they have to bear the whole of this loss.

[17]     They were traumatised by the sight of their home when they returned after the burglary.   They say that every room had been searched and their bedroom in particular had been tipped upside down.  This has had long-lasting effects for them. They do not feel safe in their house anymore.  They wake up regularly and check the house to ensure that everything is in order.

[18]     I take the view that the Judge was stating that persons who are involved in serious residential burglaries can generally expect to receive a sentence of imprisonment, rather than home detention.

[19]    The only mitigating factor that Mr Natusch can point to is that of Mr Wharerimu’s  age.   He points out that in  Churchward v R the  Court  of Appeal emphasised  that  youthful  offenders  may  not  be  as  culpable  as  adult  offenders because of the fact that they have not fully matured.2   A sentence of imprisonment is also likely to be more difficult for a youthful offender rather than a mature adult.

[20]     At 23 years of age, however, I do not consider that Mr Wharerimu can truly be regarded as a youthful offender.  He may be at the very upper end of adolescence,

2      Churchward v R [2015] NZCA 531.

but as Mr Natusch concedes, the credit or discount to be given in relation to youth dissipates the older the offender becomes.

[21]     Although it cannot be said that Mr Wharerimu is a person who will not respond to rehabilitative efforts, the pre-sentence report does not suggest he is particularly motivated  in  this  area.    He  is  described  as  having  only  a  medium motivation to participate in counselling to address his offending behaviour.   The report also records that he showed no remorse or insight towards the effect of his offending on the victims.  His only remorse has been for the effect that his offending has had on his mother.

[22]     In those circumstances, I consider that the Judge was entitled to impose a sentence that reflected the fact that the need for deterrence and denunciation for a serious burglary overrode the fact that this was the first  occasion on which Mr Wharerimu has committed an offence of this type and the fact that he is still a relatively young man.

[23]     It follows that I am not satisfied that the Judge erred in the manner in which he exercised his discretion.

Result

[24]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier