Wikaira v Police

[2021] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-139

[2021] NZHC 3262

BETWEEN

JENNETTE TE AROHA WIKAIRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 November 2021
Appearances:	D J Matthews and S-C Kim for Appellant J E Lancaster for Respondent
Judgment:	1 December 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 1 December 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

WIKAIRA v NEW ZEALAND POLICE [2021] NZHC 3262 [1 December 2021]

[1]    Jennette Wikaira was sentenced by Judge Hix in the Christchurch District Court on two sets of charges that concerned dishonesty offending. Ms Wikaira was initially sentenced to intensive supervision in respect of the first batch of offences but soon after that sentence was imposed committed further similar offences which comprised the second group of charges. An end sentence of 21 months’ imprisonment was imposed. Ms Wikaira now appeals that sentence.

Factual background

[2]    The first set of charges spans events that occurred between August and October 2020. On 10 August, Ms Wikaira shoplifted food items from the New World Fendalton Supermarket valued at $368.95. On 12 October, Ms Wikaira entered The Warehouse in Belfast with an associate and shoplifted items of clothing valued at $250. This offending gave rise to two charges of theft (under $500).1

[3]    On 17 October 2020, Ms Wikaira and an associate entered a Subway restaurant in Temuka. While the associate distracted the person working behind the counter,  Ms Wikaira picked up the keys to the cash register that were behind the counter and unsuccessfully attempted to open it. She then went into the kitchen area of the restaurant and stole the shop assistant’s cell phone valued at $2,000, and her driver’s licence and debit card before driving away. The victim’s debit card was used to make three separate transactions at a service station to the value of $94.90 and a purchase at another station to the value of $55. In respect of this offending, Ms Wikaira was charged with theft (over $1,000),2 and four charges of using a document for pecuniary advantage.3

[4]    On 10 February 2021 Ms Wikaira was sentenced by Judge Hix on these charges, together with a further charge of failing to report as directed by a probation officer in breach of her release conditions,4 to 18 months’ intensive supervision with judicial monitoring.

1      Crimes Act 1961, ss 219 and 223(d) – maximum penalty of three months’ imprisonment.

2      Crimes Act, ss 219 and 223(b) – maximum penalty of seven years’ imprisonment.

3      Crimes Act, s 228(1)(b) – maximum penalty of seven years’ imprisonment.

4      Sentencing Act 2002, s 96(1) – maximum penalty of one year’s imprisonment or a fine of $2,000.

[5]    Two days later on 12 February 2021, Ms Wikaira and an associate went to Ballantynes department store. Ms Wikaira selected four clothing items valued at $956 and attempted to leave the store without paying for them. She was confronted by store security. When the security guard was distracted by her associate, Ms Wikaira attempted to flee the store with the items. However the guard grabbed the clothing from Ms Wikaira’s hands and a short struggle ensued, during which she tried to punch the guard. When she was informed the police would be called, Ms Wikaira threw the items still in her possession at the guard and fled. However, she was followed and subsequently arrested by the police. She was charged with theft ($500 – $1,000).5

[6]    When she appeared on this charge on 17 February Ms Wikaira was searched prior to entering the Court building. Located in her possession was a glass pipe used for consuming methamphetamine and a small amount of cannabis. She was also charged with breaching her intensive supervision sentence.6 Ms Wikaira was bailed to appear for sentencing on 10 March but failed to appear and a warrant was issued for her arrest.

[7]    In July, Ms Wikaira was finally arrested on the outstanding warrant and she entered guilty pleas to charges of possession of cannabis7, possession of utensils8 and the failure to answer District Court bail.9 On 24 August Ms Wikaira pleaded guilty to the outstanding theft charge and was remanded for sentencing.

District Court’s sentencing

[8]    In respect of the resentencing exercise on the first set of charges, Judge Hix cancelled the intensive supervision sentence and adopted a starting point of 15 months’ imprisonment. That starting point included an uplift for Ms Wikaira’s previous convictions. Four months’ credit was allowed for Ms Wikaira’s guilty pleas to those charges and a further deduction allowed for personal circumstances (an overall credit of 27 per cent), which resulted in a sentence of 11 months’ imprisonment. A further

5      Crimes Act, ss 219 and 223(c) – maximum penalty of one year’s imprisonment.

6      Sentencing Act, s 70A(a) — maximum penalty of six months’ imprisonment or a fine of $1,500.

7      Misuse of Drugs Act 1975, s 7(1)(a) and (2) – maximum penalty of three months’ imprisonment or a fine of $500.

8      Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year’s imprisonment and/or a fine of $500.

9      Bail Act 2000, s 38(a) – maximum penalty of one year’s imprisonment or a fine of $2,000.

charge of breaching release conditions that had run alongside the original charges was the subject of a concurrent sentence of one month’s imprisonment.

[9]    In relation to the second set of charges, the Judge took the theft as the lead offence. After noting the aggravating factor of the attempted assault of the security guard and the fact Ms Wikaira had been accompanied by another person, Judge Hix took a starting point of nine months’ imprisonment for all the new charges. The Judge considered a “relatively minimum discount” would  be  appropriate  to  recognise  Ms Wikaira’s guilty plea to the theft charge that he considered had been entered at a relatively late stage. Taking into account Ms Wikaira’s criminal history, and that her latest offending occurred whilst she was on bail and subject to a sentence, along with any discount available for the guilty pleas, an overall uplift of one month resulted.

[10]   The sentence of 10 months’ imprisonment on the second set of charges, when combined with the substitute sentence of 11 months' imprisonment for the original charges, made an effective total sentence of 21 months’ imprisonment.

The appeal

[11]   Ms Wikaira’s appeal is based on two grounds. First, it is submitted that the Judge erred in failing to extend credit for Ms Wikaira’s personal background in respect of the second set of charges.  It  was  argued  that  addiction  issues  and  sexual abuse suffered earlier in her life should have been recognised as a mitigating factor. Mr Matthews, who appeared on behalf of Ms Wikaira, submitted the Judge had recognised personal mitigating factors beyond the guilty pleas in respect of the first set of charges, albeit without articulating the quantum of the guilty plea credit or the extent to which those personal factors were recognised in providing a discount of 27 per cent. However, Mr Matthews argued the Judge had failed to do the same in respect of the second set of charges despite such considerations having equal application.

[12]   Second, Mr Matthews submitted that, while Ms Wikaira’s guilty pleas in respect of the second set of charges, in particular the theft, were not prompt, they should have attracted greater recognition. He argued the pleas were entered at the first case review hearing, well before any trial. It was submitted credit in the region of 20 per cent should have been extended for the guilty pleas. Mr Matthews argued that had

the Judge followed an orthodox methodology by setting a global starting point and then adjusting for uplifts and discounts an end sentence of 19 months’ imprisonment should have resulted.

The respondent’s argument

[13]   Ms Lancaster, on behalf of the respondent, emphasised that the focus of the appeal is required to be on whether the end sentence was manifestly excessive and not its component parts.10 It was emphasised an appeal court can only intervene and substitute its own views if the sentence is manifestly excessive and not justified by the applicable sentencing principles.11 Ms Lancaster submitted the Judge had taken Ms Wikaira’s guilty pleas into account in respect of the second tranche of offending when adopting a combined uplift of only one month after assessing personal aggravating and mitigating factors. While the Judge had not discussed each separately, it was submitted an uplift in the region of three months to recognise both Ms Wikaira’s relevant previous convictions, and that this offending occurred while she was subject to sentence and on bail was appropriate. A two-month reduction represented a credit of 22 per cent, which it was submitted adequately reflected the timing of the guilty pleas and Ms Wikaira’s personal background.

Analysis

[14]   No issue was taken on the appeal in relation to the starting points adopted for each set of charges nor with the adjustments made regarding the first tranche of offending. Essentially Mr Matthews’ argument distilled to a submission that inadequate credit was extended to Ms Wikaira for her guilty pleas and for her personal circumstances when arriving at the end sentence for the second set of charges.

[15]   In support of that contended error, Mr Matthews submitted the District Court Judge had failed to follow the correct sentencing methodology. However, while I accept there is some opaqueness in the approach taken by the Judge to the sentencing exercise, regard must be had to the busy nature of the District Court’s work and that ultimately, as submitted by Ms Lancaster, the question for the appellate court is

10     Tutakangahau v R [2014] NZCA 279, (2014) 3 NZLR 482 at [36].

11     Ripia v R [2011] NZCA 101 at [15].

whether the ultimate sentence imposed was available to the Judge in the exercise of his sentencing discretion.

[16]   Both counsel examined the question of the overall sentence on the basis of applying orthodox methodology to the offending as a whole. That exercise in my view, tends to demonstrate that the Judge did not err in arriving at his final sentence. Both Mr Matthews and Ms Lancaster agreed that a 12-month starting point was appropriate for the charges on which Ms Wikaira was for re-sentence, and that a further nine months for the most recent charges must result in a legitimate global starting point of 21 months. There is a month’s disagreement between them as to the appropriate uplift for Ms Wikaira’s criminal history (three months versus four months) and in recognition of the fact the subsequent offending occurred while subject to sentence and bail (one month versus two months).

[17]   I do not consider the higher figures for each uplift can be considered inappropriate having regard to Ms Wikaira’s history of dishonesty and consistent pattern of non-compliance with court orders, which is aggravated by her immediately re-offending only a matter of days after the Court had imposed a sentence of intensive supervision. Both counsel are  agreed  on  an  overall  credit  of  20  per  cent  for  Ms Wikaira’s guilty plea. That might be thought generous given Ms Wikaira’s failure to appear on the theft charge and the subsequent four-month hiatus before she was re- arrested. Counsel were also agreed  that  a  further seven  per  cent  reduction  for  Ms Wikaira’s disadvantaged background and history of addiction would be appropriate. This analysis results in the same sentence that was imposed by Judge Hix of 21 months’ imprisonment.

Decision

[18]   I accept Mr Matthews’ submissions that an alteration of 10 per cent is sufficient to found a successful appeal and does not amount to tinkering.12 However in the circumstances of the present case I am satisfied the ultimate sentence imposed was not manifestly excessive. It follows that the appeal must fail.

12     See Milne v Police [2020] NZHC 358 at [35].

Result

[19]The appeal is dismissed.

Mander J

Solicitors:

Crown Solicitor, Christchurch

Copy to:

Donald Matthews, Barrister, Christchurch