Winika v Police

[2013] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-000034 [2013] NZHC 1073

KANE AMBROSE WINIKA

Appellant

v

POLICE

Respondent

Hearing:         9 May 2013

Counsel:         K J Gray and N A Pointer for Appellant

S J Jamieson for Respondent

Judgment:      9 May 2013

JUDGMENT OF WHATA J

[1]      Mr Winika appeals his sentence of six months three weeks imprisonment on the following matters:

(a)       Two thefts;

(b)       Driving while disqualified; (c)  Excess breath alcohol;

(d)      Breach of Court bail; and

(e)       Failing to answer police bail.

WINIKA V POLICE HC CHCH CRI 2013-409-000034 [9 May 2013]

[2]      Three grounds are raised by Mr Winika, namely:

(a)      The sentencing Judge overstated the uplift required for the driving while disqualified offending and other offending by three months on top of the starting point of six months for the theft charges;

(b)The  sentencing  Judge  did  not  consider  mitigating  factors  placed before the Court and was unduly focussed on deterrence; and

(c)    Home detention should have been granted in view of the recommendations made in the pre-sentence report of reparation and community work.

The judgment

[3]      Judge  Kellar  described  the  offending  in  the  following  terms  (which  I

understand are not disputed):

[4]       The  facts  of  the  respective  offending  are  these.    On  or  about

6 November last year when you were employed by a local firm as a painter to carry out earthquake repairs in people’s homes in the course of your employment you stole items of jewellery valued at some $20,000.  At first you denied taking the jewellery, only when it was revealed that you had sold the two items for the paltry sum of $300 to a local second-hand shop did you admit the offending.

[5]       On 8 January this year you stole the victim’s $3000 road bike from where he had parked it outside a supermarket.  Against you sold it for the miserly sum of $100 to a local pawnbroker.

[6]       On 1 December 2012 you  were apprehended driving while your licence was suspended.  You were drink driving also, the level was as I have already mentioned.

[7]       Clearly the main offending in terms of sentencing is the theft of the jewellery.  There are two main aggravating factors to that offending and they are related to each other.  The first is that it is an abuse of a position of trust. Both contractors, as employers and the people’s homes being repaired, place considerable trust in people who go into their homes to carry out repairs.  It’s a corollary of that that the homes of people where earthquake repairs have been carried out are vulnerable and that is a fact of course you would be very well aware of.

[4]      The Judge then identifies accountability, promoting a sense of responsibility and acknowledgment of harm caused as relevant for sentencing purposes.  Reference is then made to a lengthy victim impact statement and the anguish caused, in short, by the violation of the home of the victim and the breach of trust.  The Judge notes the need to denounce the offending which he describes as brazen.  He also says it was opportunistic but there may have been a degree of premeditation.

[5]      Mr Winika’s prior offending is addressed and described in the following terms:

[13]      Your list of previous convictions includes a number of convictions for  theft.    In  the  Whakatane  District  Court  in  March  2007  you  were convicted and sentenced to community work for some six thefts.  Since then you have a number of convictions for largely irrelevant offending under the Misuse of Drugs Act 1975.   In 2008 you were convicted of driving while your  licence  was  suspended  or  revoke.(sic)    That  was  in  March.    In September of that same year another driving while disqualified.  In January of  the  following year  yet  another  driving while  disqualified  offence  for which you were sentenced to community work and since then there have been  two  breaches  of  community  work  and  a  disorderly  behaviour conviction. That can be entirely put to one side.

[14]     What is relevant is that within a relatively short period of time you have a number of recent convictions for driving while disqualified and there are convictions for dishonesty offending as well.

[6]      The Judge then considers the pre-sentence report noting that Mr Winika is at medium risk of further offending but also noting that the report recommends a sentence of reparation and community work.

[7]      The Judge also notes:

[17]     ... I am not unduly sympathetic to the pawnbroker and the second- hand shop for having paid $300 for $20,000 worth of jewellery but it is appropriate nonetheless that they receive reparation for that.

[8]      The Judge then considers an appropriate starting point for the two thefts is a sentence of imprisonment of six months and that this needs to be uplifted by three months to reflect the driving while disqualified and other driving related offending.

[9]      The prompt guilty pleas are noted and a maximum discount afforded for that of two and a quarter months, leaving an overall sentence of imprisonment for all offending of six months and three weeks.

[10]     Consideration is given to an alternate sentence, but the Judge considers that the offending is so serious that there is a significant need to deter, particularly the theft offending, such that no sentence less than a sentence of imprisonment could achieve that.

[11]     Mr   Winika   was   therefore   convicted   and   sentenced   to   five   months imprisonment for the theft; a further one month cumulative for the driving while disqualified; and a further sentence on the drink driving of two weeks concurrent.[1]

Finally,   a   reparation   order   of   $400   in   total   was   imposed   together   with disqualification.

Assessment

[1] Addendum subsequent to delivering this judgment: I should record that Mr Winika was also sentenced to three weeks imprisonment cumulative for failure to answer District Court bail.

[12]     I propose to deal with each of the grounds of appeal in turn.

Uplift

[13]     I do not accept Mr Winika’s counsel’s submission that an uplift of three months in relation to the driving related offending is excessive.  It needs to be borne in mind that firstly the driving related offending is separate offending.  Accordingly, Mr  Winika  would  be  in  line  for  a  sentence  which  is  cumulative  on  the  theft offending.    I  then  accept  the  submissions  for  the  respondent  that  the  driving offending itself was serious.  The appellant had been suspended from driving for 28 days as a result of the excess breath alcohol offending on 1 December 2012 and was then found driving on 12 December 2012.   This, as the respondent says, was his fourth conviction for driving while suspended/disqualified having been convicted

while suspended and driving while disqualified on two occasions in 2008.  A short

term of imprisonment then for such offending would have been justified had it been imposed independently of the theft offending.

[14]     In any event, also as the respondent submits, the starting point for the theft offending could have been considerably higher than six months.  The High Court in Aerenga v Police[2]  held that a starting point of 18 months imprisonment be adopted for the theft of four Armani watches (with a combined value of $3,278).  There is also the case of R v Duncan[3]  where the starting point of two and a half years imprisonment for theft of $16,500 from a safe in a cafe was upheld by the Court of Appeal.

[2] Aerenga v Police [2012] NZHC 1375.

[3] R v Duncan [2009] NZCA 408.

[15]     In those circumstances, I see no merit in the submission that the starting point was excessive or that the uplift was inappropriate.

Mitigating factors

[16]     Counsel for the appellant submits that the Judge failed to take into account:

(a)       That  the  appellant  offered  to  take  part  in  restorative  justice  and

expressed “shame and disappointment” with himself;

(b)       The appellant’s remorse; and

(c)       An offer to pay reparation though reiterated at sentencing was not taken into account in the ultimate sentence.

[17]     The respondent appears to accept that remorse is a distinct feature from a guilty plea and deserving of its own discount.   The respondent submits, however, that while a discount for remorse could have been given, such a discount would have been small, perhaps 5%.  It is also noted that no uplift was made for the appellant’s

previous convictions, which included six convictions for theft under $500 in 2007.

[18]     I agree with the submissions of counsel for the respondent, Ms Jamieson. While there could or perhaps should have been some discount for remorse, that is in my view offset by the previous convictions held by the appellant.  Those convictions tend to suggest an ongoing pattern of criminal theft and somewhat contradicts the indications of remorse given by Mr Winika in this case.   It must also be borne in mind that there appears to be an escalating pattern here whereby the theft is more brazen and the impact more significant.  The Judge was therefore in my view well justified in sending a message of deterrence and denunciation for such conduct.

Home detention

[19]     I fully accept the submissions of counsel for the appellant that, in light of Manikpersadh v R,[4]  home detention is in itself a deterrent sentence.   Mr Winika’s willingness to participate in a restorative program is also relevant in the sense of his capacity to rehabilitate.  I also accept that his offending was opportunistic and that he may not have appreciated the value of the jewellery stolen by him.

[4] Manikpersadh v R [2011] NZCA 452.

[20]     But I consider the Judge was well within his discretion to impose a more punitive  sentence   to   send   a   very  clear   message  that   theft   in   the  present circumstances, dealing with vulnerable persons who may legitimately expect to be safe in their own home in terms of their property and in a context where repairs had been  undertaken.    Against  a  backdrop  where  it  appears,  as  I  have  said,  that Mr Winika’s conduct is increasingly more brazen, I have no reason to overturn the assessment made by the District Court Judge.

Result

[21]     For the foregoing reasons, the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch