Whatarau v Police HC Napier CRI 2008-441-24

[2008] NZHC 2245

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-000024

BETWEEN  WILLIAM ROBERT WHATARAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 September 2008

Counsel:         R D Stone for the appellant

J Rielly for the respondent

Judgment:      25 September 2008

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Elvidge & Partners, P.O. Box 609, Napier 4001

Sousness Stone Law, P.O. Box 975, Hastings 4156

WHATARAU V NEW ZEALAND POLICE HC NAP CRI 2008-441-000024  25 September 2008

Introduction

[1]      William   Robert   Whatarau   appeals   against   a   sentence   of   one   year’s imprisonment imposed on him by Judge Adeane in the District Court at Napier on 17

July 2008 following a defended hearing which resulted in Mr Whatarau being found guilty on charges of burglary, being unlawfully in an enclosed yard and taking a motor cycle valued at $1,000.

Background facts

[2]      Mr Whatarau and his co-offender Mr Gillies were interrupted by the owner of a property who, returning home, found them in the back of her property wheeling her son’s motor cycle which was stored at the back of the property.  The two offenders immediately took off into the suburb of Flaxmere and shortly afterwards were apprehended by Police quite close by.

Sentence

[3]      The Judge stated that both accused had denied guilt “to the bitter end of this matter”.    He said  it  was  an  ironic  situation  that  having  denied  committing  the offences expressions of remorse were then offered.   (He was unimpressed with a letter provided by Mr Whatarau dated 7 July 2008).   The Judge recorded that Mr Whatarau was aged 23 and had previous convictions for dishonesty (I understand they number five) and violence, and had previously served a prison term.  He noted there were fines outstanding of $4,800.

[4]      At [9] of his sentencing notes the Judge referred to the offenders giving the system “a run for its money”, then expressing remorse.   He stated they were not suitable candidates for home detention, in his view.

[5]      He imposed a sentence of 12 months imprisonment for the offending of Mr Whatarau and his fines were cancelled.  Mr Gillies received a sentence of 14 months imprisonment, reflecting other charges.

Submissions

[6]      Mr Stone in thoughtful submissions for Mr Whatarau, referred to an affidavit that has been filed which attaches certificates in relation to educational pursuits that Mr Whatarau has undertaken.  It also refers to the fact that he is the father of a baby born in March of this  year and that he had the care of the child until he was committed to prison.

[7]      Mr  Stone  noted  that  the  pre-sentence  assessment  report  provided  for sentencing purposes, assessed Mr Whatarau as being of low risk of re-offending and recommended community work and supervision.   He further noted that while Mr Whatarau has previous convictions for dishonesty he has no dishonesty convictions since 2002.  That is so, but I note in 2007 Mr Whatarau has convictions for common assault and breath alcohol.

[8]      Mr Stone submitted that the sentencing Judge at [9] adopted an incorrect approach to sentencing in rejecting home detention and giving no consideration to the community based sentence recommended in the probation report, a sentence of community  work  and  supervision  with  special  conditions.    He  submitted  that therefore this Court should consider afresh the sentence to be imposed on Mr Whatarau on the basis of the authority of R v Finau (2003) 20 CRNZ 333 (CA). However,  Mr  Stone  accepted  that  this  Court  had  no  information  about  home detention and it was not an option that he could responsibly advance to the Court. He emphasised that Mr Whatarau has never received a sentence of supervision and submitted that was a sentence that should have, and should now be considered, particularly because of his responsibility in respect of his young child.

[9]      He submitted that the authorities relied on by the Crown: R v Columbus

[2008] NZCA 192, Pearse v The Police HC HAM CRI 2005-419-117 13 October

2005, Williams J and Peka v New Zealand Police HC Napier CRI 2004-441-56 and

CRI 2004-441-57 14 February 2005 to which I shall shortly refer related to more serious offending.  He also referred to a judgment of this Court in R v Gough HC Gisborne CRI 2006-416-12 2 August 2006, Heath J where on appeal the Judge undertook a fresh sentencing exercise and from a starting point of four months imprisonment  imposed  a  sentence  of  three  months  imprisonment,  a  guilty  plea having been entered in relation to two burglaries of commercial premises.

[10]     The Crown submitted that while the sentence was stern it was within the range available to the sentencing Judge and was not manifestly excessive.   The Crown placed considerable reliance, correctly in my view, on the recent judgment of the Court of Appeal in Columbus.  In that case Mr Columbus forced open a garage door at a residential property in Christchurch and stole a mountain bike, gardening tools and a tool box.  He later pawned the bike.  Shortly afterwards he stole a lawn mower from the rear of a residential property.  He was charged with theft in relation to that offending.  He also drove to a service station in Christchurch about two weeks later and pumped $68 worth of petrol into his vehicle for which he did not pay.  On a search warrant he was found in possession of a cannabis pipe and some loose cannabis.

[11]     The Court of Appeal endorsed the approach in R v Taueki [2005] 3 NZLR

372, a decision of the Full Court, the first step being that the starting point identified should reflect the culpability inherent in the offending by reference to its circumstances.   The Court emphasised that the circumstances of the offending predominate when fixing the starting point.  In the case of Mr Columbus the Court considered the offending to be “at the minor end of the scale” and not justifying a starting point of more than one year’s imprisonment.

[12]     At step 2, the Court adjusted the starting point upwards by applying the totality principle to reflect the offending other than the burglary offending which the Court took as the lead offence.  It added a further six months imprisonment to the starting point.  It added again for the previous dishonesty offending of Mr Columbus which was significant, including 13 burglary offences.   A further increase of one year was added to the starting point.  The sentence was then discounted to reflect the guilty plea to reach an end sentence of one year ten months.

Discussion

[13]    The approach to sentencing in Columbus is the appropriate approach to sentencing in this case.  It is not an approach which is demonstrated in the sentencing notes of the sentencing Judge.  He simply reached the conclusion that a sentence of

12 months imprisonment should be imposed.

[14]     Mr Stone submitted that the offending in Columbus was more serious and there were aggravating circumstances that do not apply here.  I accept that is so.  He also referred to the cases of Pearse and Peka as involving more serious offending.  I note in both those cases the end sentences imposed were after discounts for guilty pleas, and that in the case of Peka the personal circumstances placed that case in a particular category which makes it of limited relevance in this case.  In Pearse the sentence was six months after allowing a discount for the guilty plea where $10,000 worth  of  property  was  involved.     In  Peka  the  sentence  was  nine  months imprisonment for three charges of burglary and one of unlawful conversion of a motor vehicle.

[15]     I  consider  this  appeal  must  be  approached  on  the  basis  of  considering whether the sentence imposed by the sentencing Judge was manifestly excessive.  I do not consider that a fresh sentencing exercise is justified.  While the reasons given by the sentencing Judge were somewhat sparse, he referred to the potential for a sentence of home detention.  He rejected it.  In doing so his approach was consistent with that identified by Tipping J in Tawa v Police HC DUN AP20/95 17 March 1995 where he said:

… if there is any feeling abroad that the Courts will give people one or two free runs at dwellinghouse burglaries before sentencing to imprisonment that feeling had better be dissipated quite quickly.

[16]     A  sentence  of  imprisonment  was  in  my  view  clearly  available  to  the sentencing Judge in this case.  The sentence of 12 months imprisonment could be regarded as stern.  Another Judge may have adopted a lower starting point than that which apparently the Judge adopted in reaching the end sentence of 12 months imprisonment.    A  modest  increase  would  be required  to  reflect  Mr  Whatarau’s

history of offending.   But there  was here no  guilty plea in respect of  which  a discount in the range of 25% to 33% could have been expected.  While, as I say, the sentence might be regarded as stern, any justifiable reduction in the term of imprisonment, would be merely an exercise in tinkering and it is inappropriate for this Court to intervene in such a manner on appeal.

Result

[17]     The appeal is therefore dismissed.