Wirihana v Police

[2012] NZHC 2838

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-35 [2012] NZHC 2838

BETWEEN  TEELA SHONTELL WIRIHANA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 October 2012

Counsel:         E J Forster for Appellant

J D Lucas for Respondent

Judgment:      30 October 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      Teela Wirihana appeals against her sentence on six shoplifting charges[1] (four committed whilst on bail), driving whilst disqualified, providing false information to police, and four breaches of bail. A total sentence of nine months’ imprisonment was imposed, along with one year’s disqualification from driving.

[1] The value of the property taken was approximately $2,000.

[2]      The appellant has 33 previous convictions.   Relevant dishonesty offences include theft (x5), receiving (x2), unlawfully taking a vehicle, theft of vehicle, and shoplifting. Relevant driving offences include driving while disqualified, unlicensed driver failing to comply with a prohibition, and driving while licence suspended (x6). She also has convictions for failing to answer bail (x3), breach of court release, failing to give name on demand, breach of community work (x2), obstructing police and assault of police.   She also has convictions for possession of cannabis (x2),

assault (x2) and possession of a knife.

WIRIHANA v NEW ZEALAND POLICE HC NAP CRI-2012-441-35 [30 October 2012]

District Court decision appealed

[3]      Judge Mackintosh gave a sentence indication that an overall starting point of

12 months’ imprisonment would be warranted, reduced to nine months for a guilty plea.  That sentence indication was accepted by the appellant.  She waived her right to a pre-sentence report because she wanted the matter dealt with immediately.  She was represented by counsel.

[4]      The Judge noted she was the mother of four, and on a domestic purposes benefit.  She noted that her partner had moved to Gisborne taking two children with him.  The appellant had gone up there to take them back, which is one of the reasons for a breach of bail.  The Judge noted the appellant had family support, and that she would like drug and alcohol counselling on release.  The Judge noted it was time for her to make a fresh start as she “had been out of control lately”.

[5]      The Judge dealt with sentencing thus:

(a) Driving while disqualified: six months’ imprisonment and one year’s disqualification;

(b)Concurrent  with  this  was  a  three  month  sentence  for  the shoplifting offending prior to 27 June 2012 with reparation of

$671;

(c) Cumulative  three  month  sentence  for  shoplifting  offending after 27 June 2012 whilst on bail;

(d) Convicted and discharged on breaches of bail; and

(e) Convicted   and   discharged   in   relation    to   proving    false information.

[6]      The Judge also imposed post-release conditions requiring the appellant to undertake drug and alcohol assessment and counselling as directed.

Appeal

[7]      For the appellant, Mr Forster submits the sentence is manifestly excessive.  A

nine month period of imprisonment is, it is said, a long sentence to receive without a

pre-sentence report.  It was not disputed that she waived receiving the report.  As a consequence it is submitted there was insufficient consideration of personal circumstances, such as the fact this occurred in a time of personal stress with the breakdown of her relationship.   It is submitted these would have justified further mitigation.

Crown response

[8]      For the respondent, Mr Lucas submits this is one of the rare occasions where sentencing could proceed without a pre-sentence report.  The appellant was legally represented, she received an indication and was well aware she was receiving a custodial sentence.  Her personal circumstances were noted before the Judge.  The Judge also had the benefit of an “on strength report” by a Probation Officer from

3 August  which  outlined  her  progress  on  a  community  work  sentence.    It  is submitted the end sentence is not manifestly excessive.   The appellant stole some

$2,000 worth of goods from a variety of stores over a four month period.   She committed the offending while subject to a community work order and then after subject to bail conditions.   She has failed to appear in Court four times.   Despite warrants  for  arrest,  she  committed  some  of  the  further  offences.    She  has  ten previous dishonesty convictions.   A twelve month start point is therefore not manifestly excessive.  Further, the 25 per cent discount was generous given she did not plead at the earliest opportunity for the majority of charges.

Approach to appeal

[9]      This is a general appeal heard by way of rehearing.   The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  The appellate Court must come to its own view on the merits.[2]  The Court may confirm the sentence; or if the sentence is one in which the Court had no jurisdiction to impose, or is clearly excessive, inadequate or

inappropriate, it may quash or vary the sentence or any part of it.

[2] Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

[10]     As to whether a sentence is manifestly excessive, in R v Monkman[3] the Court of Appeal said:

[3] R v Monkman CA445/02 3 March 2003, at [6].

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to this particular kind of offending).

And in R v MacCulloch[4] the Court said that the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather than the process by which it is reached.

[4] R v MacCulloch [2005] 2 NZLR 665 (CA), at [50].

[11]     But the High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing Judge. It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.

Discussion

[12]     Section 26 of the Sentencing Act 2002 provides that where an offender is found guilty the Court may direct a probation officer provide a pre-sentence report. Essentially the report provides the Court with background information about the offender and his or her circumstances to help inform the sentence.

[13]     A pre-sentence report is not required in every case.  Section 26 is expressed in permissive terms. The Court has a discretion whether or not to require a report.[5]

[5] R v Toki [2007] NZCA 335 at [5].

[14]     There is however a well established practice that an offender should not be sentenced to imprisonment except in rare and exceptional circumstances without such a report.[6]    The inherent undesirability of sentencing to imprisonment without

[6] R v Toki; R v Spring CA 221/85 18 November 1985; In re Moulin [1943] NZLR 325 (SC).

the benefit of such a report was stated by Myers CJ in these terms in Re Moulin:

The reason is simple. No matter what the prisoner’s previous criminal record may be, and no matter what the Police or Crown Prosecutor may say of the offender’s character as gleaned from Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information. It is not right, in my opinion, that any court should sentence a person to a long term of imprisonment – in this case twelve months’ imprisonment with hard labour to be followed by twelve months’ reformative detention – without having had the opportunity of considering a report from the Probation Officer.

These observations have been described as still as pertinent today as they were 60 years ago.[7]

[7] R v Toki at [5]; R v Bellingham (2005) 21 CRNZ 561 (CA).

[15]     Two questions arise.

[16]     First, was it essential that a pre-sentence report have been obtained before imposing the present sentence?  I agree that it is highly desirable that a pre-sentence report be obtained where imprisonment is contemplated.  However, the statute does not make it mandatory that this occur.  In rare cases such a report may be waived or dispensed with.   In my view this is one such case.   The appellant accepted the sentence indication of nine months’ imprisonment.  She was entirely aware in doing so that she would receive a custodial sentence.  She expressly waived her right to a pre-sentence report being called for.   Her personal circumstances were before the Judge as a result of counsel’s submissions.  The Judge was aware of her relationship break-up, and of the fact that she was a mother of four.  Mr Forster has not been able to point to any other facts, or particular nuances arising from those two facts, that might have altered the Judge’s decision.   Finally, as I am about to conclude, the sentence is not in its own terms, in the circumstances here, excessive.   Quite the contrary.   In all those circumstances I do not think the Judge was wrong to proceed without the pre-sentence report, albeit it is not a practice otherwise to be endorsed.

[17]     Secondly, was the sentence manifestly excessive?    I do not consider the twelve month start point can be said to be manifestly excessive, based on the totality

of the offending, the fact some occurred whilst on bail, and given the appellant’s previous convictions. The discount of three months was generous in the circumstances.   But the way the sentence was constructed does not matter if the totality of the sentence was appropriate.  Ms Wirihana has become a small portable crime wave in her own right.  As the Judge said, she has been “out of control”.   No doubt that can to some degree be attributed to stress arising from the break-up of her relationship.  But the point cannot be taken to absurd lengths.  The appellant’s record is disgraceful.  And she has shown persistent contempt for Court orders, and for the concession to bail given her.   As the Judge said, she is notoriously unreliable for attending  Court.    The  sentence  of  six  months’ imprisonment  for  driving  while disqualified was not, given her record, excessive.  As to the shoplifting charges, it was  entirely  appropriate  to  impose  cumulative  sentences  given  the  number  and extent of the charges, and the fact that some occurred while the appellant was on bail.   Here the shoplifting charges  were split, three  months  effectively on each grouping – one concurrent with the six months’ imprisonment for driving whilst disqualified and three months cumulative for the second grouping.  The totality of the sentence cannot be said to be manifestly excessive.

Result

[18]     Appeal dismissed.

[19]     Leave is however reserved to apply for home detention.

Stephen Kós J

Solicitors:

Crown Solicitor, Napier for Respondent