Wiringi v Police
[2024] NZHC 322
•27 February 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-235
[2024] NZHC 322
BETWEEN NIKORA TAMATI WIRINGI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 February 2024 Appearances:
G E R Alloway for Appellant
W J S Mohammed for Respondent
Judgment:
27 February 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 27 February 2024 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WIRINGI v NEW ZEALAND POLICE [2024] NZHC 322 [27 February 2024]
Introduction
[1] Nikora Wiringi was sentenced to two years three months’ imprisonment by Judge Couch on 8 November 2023 for charges of:1
(a)possession of a knife;2
(b)burglary;3
(c)threatening behaviour;4
(d)breach of protection order;5
(e)speaking threateningly;6
(f)wilful damage;7
(g)interfering with motor vehicles (representative);8 and
(h)dishonest use of a vehicle.9
[2]Mr Wiringi appeals that sentence on the basis it is manifestly excessive.
Factual background
Possession of a knife
[3] On 23 February 2023, police stopped Mr Wiringi after he was observed driving a car erratically in Nelson and found a knife in the car.
1 Police v Wiringi [2023] NZDC 24808.
2 Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a fine of
$2,000.
3 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
4 Summary Offences Act, s 21(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.
5 Family Violence Act 2018, ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
6 Summary Offences Act, s 21(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.
7 Section 11(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.
8 Crimes Act, s 226(2); maximum penalty two years’ imprisonment.
9 Section 226(1); maximum penalty seven years’ imprisonment.
Threatening behaviour
[4] On 17 April 2023, Mr Wiringi was at the Nelson District Court. He threatened a security guard by saying, “I’m going to come back and get you” and racially abused him.
Breach of protection order, speaking threateningly, and wilful damage
[5] In January 2022, a protection order was made final against Mr Wiringi in favour of his ex-partner.
[6] At approximately 8.40 am on 1 May 2023, Mr Wiringi went to his ex-partner’s unit and banged on the door. His ex-partner did not answer but went onto the balcony of the unit to see what Mr Wiringi wanted. The two got into an argument and, in the course of that argument, Mr Wiringi threw a rock at her vehicle, shattering the windshield.
[7] Before the incident, Mr Wiringi sent several text messages to his ex-partner threatening to assault her. One text stated, “Next time ima punch your nose in”.
Burglary, interfering with motor vehicles, and dishonest use of a vehicle
[8] Between 7 pm on 5 July and 9.30 am on 6 July 2023, a Nissan vehicle was stolen from the owner’s secured residential garage in Christchurch.
[9] Between 17 and 18 July 2023, Mr Wiringi and his co-offender, Mr Swete, were at commercial premises that dealt with motor vehicles in Christchurch. The pair broke the window of a Mercedes Benz vehicle that was parked on the premises. They then broke into a second Mercedes Benz vehicle by forcing the left passenger’s window outwards. They rummaged through both vehicles.
[10] Mr Wiringi and Mr Swete then gained entry to the premises by breaking a window. They stole multiple power tools and electronics to an estimated value of
$8,000. On the second floor of the building, they forced an office door open and stole numerous personal belongings, including car racing memorabilia, electronics and outdoor recreation equipment to an estimated value of $7,000.
[11] At 3.28 am on 18 July 2023, Mr Wiringi drove the Nissan vehicle with stolen registration plates to a Mobil petrol station on Pages Road, Christchurch. Police stopped the vehicle in the forecourt and arrested Mr Wiringi. The property stolen earlier from the commercial premises was located inside the vehicle.
[12]Mr Wiringi admitted to driving the vehicle knowing it to be stolen.
District Court decision
[13] Judge Couch took the burglary charge as the lead offence. Regarding that conduct as serious given the force used and value of the stolen property, but noting the moderating factor that the premises was commercial and the burglary was committed at night, the Judge adopted a starting point of 16 months’ imprisonment.
[14] The Judge then referred to a charge of unlawful taking of a motor vehicle, saying it was serious because it was premeditated and Mr Wiringi had kept the vehicle for nearly two weeks, was using it as his own, and had attempted to avoid detection by putting other registration plates on it. As well, he used the vehicle to assist him in the burglary. The Judge adopted a starting point of 12 months’ imprisonment.
[15] For the two instances of interfering with a vehicle, the Judge applied a four-month uplift.
[16] The Judge considered Mr Wiringi’s conduct relating to the charges of breaching a protection order, speaking threateningly, and wilful damage was substantial. The Judge set a starting point for the totality of this conduct of six months’ imprisonment.
[17] The Judge assessed the threatening behaviour charge as a minor offence but considered the context — that it occurred in court and the threat was made against a security guard doing his duty — increased its seriousness. The Judge applied a one-month uplift.
[18]The Judge did not apply an uplift for the possession of a knife offence.
[19] The combined starting point was 39 months’ imprisonment. The Judge adjusted this to 32 months’ imprisonment for totality.
[20] The Judge identified two personal aggravating factors. First, Mr Wiringi was on bail when the offending (bar the knife charge) occurred. Secondly, Mr Wiringi was subject to release conditions at the time of the offending. Consequently, the Judge applied a 10 per cent uplift.
[21] The Judge applied a 10 per cent uplift for Mr Wiringi’s prior history, including 41 previous convictions for dishonesty offending, the majority of which involved motor vehicles and two convictions for burglary. As well, the Judge noted Mr Wiringi’s extensive history of disorder and family violence offences.
[22] In respect to discounts, the Judge allowed a 25 per cent credit for early guilty pleas.
[23] The Judge noted matters detailed in Mr Wiringi’s s 27 report. He accepted a number of the factors in the report were relevant, including an unstable home life in Mr Wiringi’s early years, the normalisation of violence and drug exposure as a child, and that his formal education was very limited. As well, Mr Wiringi was homeless for some time and eventually became a patched gang member. The Judge noted Mr Wiringi had been a regular methamphetamine user but that he had largely controlled that in the past two years. The Judge accepted Mr Wiringi’s upbringing and early adult life left him ill-equipped to manage life’s challenges and responsibilities.
[24] However, while the Judge accepted these factors increased the likelihood of offending particularly in relation to violence and drugs, he did not view there was a strong connection between them and the burglary and motor vehicle charges. The Judge considered the only real connection was a general disdain for the generally accepted societal values. He gave a 10 per cent discount for background factors.
[25] The Judge imposed an end sentence of two years three months’ imprisonment (rounded down). He also made orders for reparation totalling $3,614.31.
Appellant submissions
[26] Mr Alloway, for Mr Wiringi, submitted the end sentence is manifestly excessive because:
(a)the starting point on the lead offences was too high;
(b)there was little deterrent value in applying an uplift for previous convictions and the uplift was accordingly too high; and
(c)the credit for the s 27 report was insufficient.
Starting points
[27] Mr Alloway submitted the effective starting point for the burglary charge was 20 months because the four-month uplift for the vehicle interference charges should have been treated as an aggravating factor of the burglary. Seen in this light, the sentence of 20 months’ imprisonment was too high.
[28] Mr Alloway cited Pluim v Police, concerning stolen drugs from a pharmacy and copper from a derelict hospital.10 On appeal, Clifford J reduced the starting point from two years’ to 18 months’ imprisonment. Mr Alloway submitted Pluim is more serious as it involved two burglaries. While Mr Alloway acknowledged the value of the stolen goods here is greater than in Pluim, he submitted this is balanced by the fact the goods were recovered and that burglaries of pharmacies require greater deterrence.
[29] Mr Alloway further cited Birch v Police, where the High Court upheld a 20-month starting point for the appellant who, with a co-offender, smashed a glass window to gain entry to a Rebel Sports store and stole items to the value of $8,200.11 Mr Alloway submitted the offending in Birch is more serious because, although the value of the goods taken by Mr Wiringi was higher, those goods were fully recovered. As well, Mr Alloway submitted the damage caused is similar. Mr Alloway submitted
10 Pluim v Police [2012] NZHC 1592.
11 Birch v Police [2020] NZHC 878.
a starting point of 17 months’ imprisonment for the burglary and interference with vehicle charges should have been adopted.
[30] Mr Alloway submitted the 12-month starting point for the dishonest use of a vehicle charge was too high because the Judge erred in describing the offence as “unlawfully takes vehicle”. Mr Alloway submitted the Judge also wrongly inferred that Mr Wiringi had been using the vehicle for two weeks and the offending was premeditated, despite Mr Wiringi’s comments in the pre-sentence report stating the opposite.
[31] Mr Alloway acknowledged that in Wood v Police, the High Court held a starting point of at least 18 months’ imprisonment can be set for a single unlawful taking charge if there are significant aggravating features.12 However, by implication, this was not such a case. Instead, Mr Alloway referred to two cases that he considered were more serious than Mr Wiringi’s case and attracted a starting point of 12 months’ imprisonment. Relying on those, he said a starting point for 10 months’ imprisonment for Mr Wiringi should have been taken.13
[32] The two suggested starting points, together with the undisturbed uplift for the remaining offences (six months for breach of protection order, wilful damage, and speaking threateningly, and one month for threatening behaviour), would result in a 34-month starting point. Adjusted for totality, Mr Alloway submitted the end starting point should be 29 months’ imprisonment.
Uplift for previous convictions
[33] Mr Alloway submitted there was little deterrent value in applying an uplift in Mr Wiringi’s case, therefore an uplift of only five per cent would be appropriate to denounce his history of family violence offending. Mr Alloway submitted many of the appellant’s past convictions occurred in the middle of his methamphetamine addiction, and past sentences have not acted as a deterrent given Mr Wiringi has 89 past convictions and has served 51 terms of imprisonment.
12 Wood v Police [2018] NZHC 1629 at [24].
13 O’Sullivan v Police [2015] NZHC 2032; and Shufflebotham v Police [2015] NZHC 3114.
Discount for s 27 report
[34] Mr Alloway submitted the Judge erred in referring to Zhang v R when determining discount for s 27 matters as this required a causal nexus between the background and the offending.14 Mr Alloway submitted the Judge should have examined the weight of the background as a contributory, rather than causative, factor as per Berkland v R.15 Mr Alloway submitted Mr Wiringi is entrenched in cyclical dispossession and deprivation, was exposed to violence and drug use, had a limited formal education, was homeless for some time and developed a severe methamphetamine addiction. Consequently, his background is a potent factor explaining why he was more likely to offend and, although he is no longer using methamphetamine, it remains an explanatory factor as shown in his pre-sentence report where he said he offended in the hopes of “getting high” afterward.
[35] Mr Alloway noted the pre-sentence report recommended intensive supervision, and Mr Wiringi accepted it was important to remain in the community to care for his son. Given his end sentence is close to the margin between imprisonment and a community-based sentence, Mr Alloway submitted the Supreme Court’s note in Berkland that background factors will be most meaningful in those circumstances, that a closer assessment was required.16 Mr Alloway submitted a 20 per cent discount would be more appropriate.
Respondent submissions
[36] Mr Mohammed, for the Crown, acknowledged the unlawful interference charges could have been treated as aggravating the burglary rather than warranting separate uplifts. However, the effective 20-month starting point was within the available range. He cited R v Stevens, where the Court of Appeal considered a starting point for burglary of commercial premises, stealing copper piping valued at $350, was no higher than 18 months’ imprisonment.17 In comparison, he submitted the present offending is more serious given to the higher value of stolen goods, the presence of a co-offender, and that the actual damage done aggravates the offending.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
16 At [112].
17 R v Stevens [2009] NZCA 190.
Mr Mohammed further submitted the decision in Birch, cited by Mr Alloway, supports the Crown’s argument that the 20-month starting point was within range because of the value of the property taken and the aggravating feature of the interference charges.
[37] Mr Mohammed acknowledged the Judge wrongly referred to a charge of unlawful taking of a vehicle rather than the charge of dishonest use of a vehicle. However, he submitted the 12-month starting point taken on that charge was appropriate, citing:
(a)Dawson v Police where a 14-month starting point upheld for two charges of unlawful use, described as “generous”;18
(b)George v Police where a 14-month starting point adopted for one charge of unlawful use of a vehicle, undisturbed on appeal;19 and
(c)Wilson v Police where a 12-month starting point adopted for one charge of unlawful use of a vehicle, was not challenged on appeal.20
[38] In respect of the uplift for previous history, Mr Mohammed acknowledged that any uplift must have a bearing on the blameworthiness of the present offending or the increased need for further deterrence.21 He submitted the appellant’s previous dishonesty convictions are highly relevant because a large majority involved motor vehicles and included two convictions for burglary. Although some are aged, he submitted they remain an indicator of character and culpability, show the need for deterrence, and demonstrate a heightened risk of reoffending. He submitted the 10 per cent uplift was proportionate and appropriate.
[39] Finally, Mr Mohammed submitted the 10 per cent discount allowed by the Judge for cultural and background factors was in line with sentencing authorities. In Kreegher v R, the Court of Appeal held a five per cent discount for personal factors, involving violence and sexual abuse in deprived social circumstances, was manifestly
18 Dawson v Police [2021] NZHC 3441.
19 George v Police [2020] NZHC 1725.
20 Wilson v Police [2021] NZHC 402.
21 Reedy v Police [2015] NZHC 1069 at [18].
inadequate and awarded a 10 per cent discount.22 In Berkland, the Supreme Court also gave a 10 per cent discount for background and the role of addiction in Mr Berkland’s offending, which included poverty, trauma, chaotic home circumstances and poor educational outcomes, as well as regular alcohol and substance abuse from childhood that ultimately led to heavy methamphetamine use.23
Relevant legal principles
[40] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.24 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.25 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.26
Analysis
Starting points
[41] I accept that the unlawful interference charges could have been treated as an aggravating feature of the lead offence of burglary. But this does not necessarily mean the starting point of 20 months’ imprisonment for the three charges was out of range.
[42] In Birch, cited by Mr Alloway, there were two offenders and they smashed a glass window to gain entry to the premises.27 Similarly, Mr Wiringi and his co-offender broke a window to gain entry, but they also forced open an office door
22 Kreegher v R [2021] NZCA 22.
23 Berkland v R, above n 15.
24 Criminal Procedure Act 2011, s 250(2) and (3).
25 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
26 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
27 Birch v Police, above n 11.
upstairs and the value of goods stolen was almost double that of in Birch. Noting the goods in Birch were not recovered as they were in the present offending, a slightly lower starting point than 20 months’ imprisonment upheld in that case could be justified. However, when taking into account the unlawful interference charges as well, it places the sentence of 20 months’ imprisonment squarely within range.
[43] In Pluim, the starting point was lowered on appeal from two years to 18 months’ imprisonment because the Court of Appeal did not consider the appellant was a recidivist burglar; his lengthy list of previous dishonest offending mostly occurred over 10 years prior, and the two burglaries were not of domestic premises, although Clifford J acknowledged burglary of a pharmacy required particular deterrence and denunciation.28
[44] Mr Wiringi is similarly not a recidivist burglar, although he has a lengthy criminal history, including 28 convictions for theft in a car in 2011, convictions for receiving property in 2004, 2007, and 2017, and two burglary convictions in 2004 and 2006. His offending involved the burglary of only one commercial premise, and it was done at night with little to no risk of confrontation. However, Mr Wiringi stole goods to the value of $15,000. In Pluim, the value of the goods was approximately
$1,300. Although the goods Mr Wiringi stole were all recovered, this was by chance the Police stopped him, not as a result of anything he did. Again, once the two unlawful interference charges are accounted for, I consider the starting point of 20 months’ imprisonment to be within the range available to the Judge.
[45] The Judge adopted a starting point of 12 months’ imprisonment for the charge of unlawfully using a vehicle.
[46] I accept the Judge wrongly referred to the charge as unlawfully taking the vehicle. He also said the appellant’s offending was premeditated, he had the vehicle in his possession for nearly two weeks and was using it as his own when that was not supported by the summary of facts. The summary of facts do not suggest anything beyond the fact the appellant was using the vehicle on the night of the burglary.
28 Pluim v Police, above n 10, at [15].
[47] Although the Judge’s understanding in setting the starting point may have been in error, that does not inevitably mean the sentence is excessive. While there is a distinction between “unlawfully taking” and “dishonestly using” a vehicle, it is not one of great significance. Section 226(1) of the Crimes Act 1961 carries the same maximum penalty for both offences. Had the Judge sentenced the appellant for taking a motor vehicle, rather than using, a higher starting point would have been available, as a charge of unlawful taking can give rise to at least an 18-month starting point.29 A 12-month starting point is well below that. This is supported by reference to the cases cited by the respondent. For example, in George v Police, the sentencing Judge adopted a starting point of 14 months’ imprisonment for a single charge of using a stolen vehicle and this was not challenged on appeal.30 In George the appellant was found driving the vehicle a day after it was stolen and there was no evidence he had taken it.
[48] The 12-month starting point was within the range available to the Judge on the dishonest use of a vehicle charge.
[49] To the extent the starting points for sentences might cumulatively be seen to be high, I am satisfied this was addressed by the seven month adjustment for totality.
Uplift
[50] In Reedy v Police, I observed that an uplift was justified where previous convictions bear on character and culpability, or indicate a predilection to offend in a specific way, or where there was a need to protect society through a deterrent sentence.31 Eaton J in R v Wilkinson stated, “the purpose of an uplift is to reflect that a defendant has previously been undeterred from sentences imposed for similar offending and presents a risk of reoffending.”32
[51] The appellant has 41 previous dishonesty convictions as well as an extensive history of disorder and family violence offences. I accept, though, the appellant’s
29 Wood v Police, above n 12, at [24].
30 George v Police, above n 19.
31 Reedy v Police, above n 21, at [19].
32 R v Wilkinson [2022] NZHC 1774 at [32], citing Reedy v Police, above n [21] at [19].
previous convictions for burglary are of less relevance given the lapse in time since they were committed and also the infrequency. However, there is a sufficient connection between the appellant’s criminal history and his current offending to make this offending more culpable, as well as to give rise to a general need for deterrence, including for the protection of the public. Thus, the fact Mr Wiringi has served 51 sentences of imprisonment, indicating deterrence has not been effective for him in the past, does not mean an uplift was not justified. The 10 per cent uplift was within the available range.
Discount
[52] Assessing culpability must be done by reference to the offender’s background, as this may affect the extent of offender agency.33 Where it can be established that offending can be linked by background factors, this is a mitigating circumstance. The standard is one of causative contribution.34 The Supreme Court in Berkland stated:35
Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purposes of sentencing.
(footnotes omitted)
[53] Here, the appellant was exposed early on to violence in the home and drug use. He had a limited formal education and became homeless before developing a severe methamphetamine addiction. This undoubtedly contributed significantly to some of his past offending.
[54] However, I am satisfied the Judge clearly understood and adopted the approach espoused in Berkland and applied it in allowing a discount in Mr Wiringi’s sentencing.
[55] I also consider the discount of 10 per cent was well within range when comparing the appellant’s circumstances with those of the appellant in Berkland. The
33 Berkland v R, above n 15, at [91].
34 At [109].
35 At [109].
level of deprivation in Berkland was extensive. Mr Berkland grew up in poverty, his father was a heavy drinker and committed family violence, Mr Berkland was often unsupervised as his mother worked long hours and he left school functionally illiterate and without qualification.36 As well, he had unresolved childhood-related trauma from sexual abuse and was left with few skills for coping with emotional or economic adversity, leading to drug and alcohol abuse as a coping strategy.37 The Supreme Court gave a 10 per cent credit for Mr Berkland’s background and the role of addiction in his offending.38 Mr Wiringi’s background circumstances, while adverse, do not appear as grave as in Berkland and the discount given was appropriate.
Conclusion
[56] I have considered each submission or starting point and do not accept that any of them were out of range, nor did they cause the cumulative starting point to be too high, particularly noting there was a generous discount for totality.
[57] Similarly, the uplifts and discounts for personal aggravating and mitigating factors were justified and within range.
[58]Accordingly, the appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
G E R Alloway, Barrister, Christchurch
36 Berkland v R, above n 15, at [154].
37 At [155] and [158].
38 At [162](a).
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