MARERAKI v POLICE [2023] NZHC 3096

MARERAKI v POLICE [2023] NZHC 3096 [2 November 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-201CRI-2023-409-202CRI-2023-409-203[2023] NZHC 3096BETWEEN BERNINA AUNZHER-LEENAMARERAKIAppellantAND NEW ZEALAND POLICERespondentHearing: 26 October 2023Appearances: A J Greaves for the AppellantJ H Whitcombe for the RespondentJudgment: 2 November 2023JUDGMENT OF HARLAND J[1] Bernina Mareraki appeals against the sentence of 25 months' imprisonmentimposed in the Christchurch District Court by Judge Phillips on 29 September 2023.She contends that the sentence is manifestly excessive because the starting pointadopted on the lead charge and the uplift for offending on bail were too high and thecredit for personal mitigating factors was insufficient.[2] The appeal is opposed by the Crown.[3] I have decided to dismiss the appeal. This judgment sets out my reasons fordoing so.The charges and the offending[4] Ms Mareraki was before the District Court for sentence on 22 charges ofshoplifting, together with one charge of driving whilst forbidden). Mr Greaves for MsMareraki provided a useful schedule outlining the charges and the value of the itemsstolen. The items stolen range in value from $42.80 to $1,319.89. For three of thecharges, the value of the items stolen was over $1,000.1 For four charges of shopliftingthe items stolen had a value of between $500 and $1,000,2 and for the remaining 16charges the items stolen had a value of under $500.3[5] Ms Mareraki accepted the various summaries of facts. The offending typicallyinvolved Ms Mareraki entering commercial retail premises, picking up items andleaving the store without paying for them. The total value of the goods stolenamounted to $9,425.23. The offending spanned a period of approximately 13 months,from 29 May 2022 until 27 June 2023. Mr Greaves submitted that the offending, whileoccurring over a lengthy period, was, of itself, unsophisticated, did not involve abreach of trust and the total loss was moderate. I largely agree with his assessmentapart from as it relates to the total value of the goods stolen. When looked at in totality,the value of the goods stolen is significant.[6] The various reports that were available at sentencing indicate that the offendingwas primarily motivated by Ms Mareraki's addiction to alcohol and her desire toprovide for her family and those around her.District Court decision[7] Judge Phillips adopted a global starting point of three years' imprisonment.This was reached by adopting a starting point of 18 months' imprisonment on the leadoffence of shoplifting over $1,000 (CRN ending 0279), uplifted on a totality basis bya further 18 months.1 Maximum penalty is a term of seven years' imprisonment.2 Maximum penalty is a term of one year's imprisonment.3 Maximum penalty of three months' imprisonment.[8] Further uplifts (equating to 16 per cent) were imposed of three months foroffending whilst on bail, and a further three months for prior convictions. This resultedin an adjusted starting point of three years and six months' or 42 months imprisonment.[9] Judge Phillips then allowed 20 per cent for guilty plea, 15 per cent for personalbackground factors, and five per cent for addiction. This resulted in a reduction of 17months.[10] The result was a sentence of two years and one month imprisonment.[11] Judge Phillips also remitted Ms Mareraki's fines and declined to orderreparation as he was of the view that Ms Mareraki did not have any prospect of payingit.Discussion[12] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may be allowed by this Court only if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.4[13] As the Court of Appeal identified in Tutakangahau v R (quoting the lowercourt's decision), a "court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".5 It is appropriate forthis Court to intervene and substitute its own views only if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.6Was the starting point adopted by the Judge on the lead charge too high?[14] The challenge on appeal is to the starting point adopted by the Judge on thelead charge (CRN ending 0279) one of the charges laid under s 223(b) of the CrimesAct 1961, which carries a maximum penalty of seven years' imprisonment.4 Criminal Procedure Act 2011, s 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].[15] The lead charge concerned a theft from Farmers to the value of $1,319. Theitems taken were eight pairs of jeans, two tops and a jacket. All items, apart from thejacket, were concealed in reusable shopping bags. Ms Mareraki's co-defendant andpartner wore the jacket. Both left without paying for the items.[16] While there is no guideline judgment for dishonesty offending, in R v Varjan,the Court of Appeal stated:7[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude and sophistication;the type, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which theoffending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[17] I was also referred to other judgments by both counsel to help me assesswhether the starting point adopted by the Judge on the lead charge was out of range.8I have been helped by their analysis but it goes without saying that each case willdepend on its own facts. Despite this observation I also acknowledge that consistencyis an important sentencing principle.9[18] I have read all the judgments carefully. The cases cited by the appellant allresulted in overall starting points of 14 months' imprisonment and the cases cited bycounsel for the Crown resulted in starting points of between 14 and 18-months'imprisonment. In my view the cases of Colman v Police and Ralph v R are mostcomparable. Colman involved a lead charge of theft to the value of $1,580 and astarting point of 14 months. In Ralph, the value of the property taken for the leadcharge was $1,659 and a starting point of 15 months' imprisonment was within range.Ralph involved seven other charges of theft of a nature materially similar to MsMareraki's offending. The remaining cases are distinguishable. In particularTorbarina, when identifying the starting point, considered the three theft chargestogether, instead of identifying a lead charge. Davies involved a similar quantum of7 R v Varjan CA97/03, 26 June 2003.8 Colman v Police [2014] NZHC 3215, Ralph v R [2021] NZHC 1434 and Aerenga v Police [2012]NZHC 1375 (for the Crown) and Davies v Police [2019] NZHC 3081, Torbarina v Police [2014]NZHC 3221 (for the appellant)9 Sentencing Act 2002, s 8(e).items stolen however the total five charges are not comparable to the 23 that MsMareraki is facing.[19] The Crown's position is that a starting point of 18 months' imprisonment onthe lead charge was within the available range, albeit it at the upper end, whereas MrGreaves submits that the offending only justified a starting point of 12 monthsimprisonment.[20] Having assessed the authorities, in my view the starting point adopted by thejudge on this charge was out of range, however the starting point nominated by MrGreaves is too low. Based on Colman, which is in my view comparable, a startingpoint of 14 months would have been justified.[21] However, it is the overall starting point that must be looked at in the round, andin my view the uplift of 18 months on the remining charges was generous and couldhave been higher.[22] The relevant purposes of sentencing engaged in this case required a sentencethat focussed on individual deterrence and denunciation and one that encouraged MsMareraki to take responsibility and be accountable for the recidivist nature of them. Astarting point at this level was in my view required to meet these purposes. The Judgerecognised this and referred to it in various ways in his sentencing remarks.[23] In my view, the overall global starting point adopted by the Judge was withinrange and should not be interfered with on appeal.Were the global uplifts for applied too high?[24] Mr Greaves submitted that the global uplifts totalling six months were too highand ought to have been in the vicinity of three to four months, but in effect his realchallenge was to the uplift the Judge applied to reflect the fact Ms Mareraki'soffending was, for some charges, while she was on bail.[25] Mr Greaves' point that it is difficult to assess what offending was on bail andwhat was not, is properly made, but the breach of bail history assists to an extent, asdo the charges themselves. Using these as reference points, I consider there are likelyto be eight offences that were committed on bail.[26] It would have been preferable for the police to have provided a summary ofthis for the sentencing judge and this Court, however stepping back and lookingoverall at the global uplift, in my view it cannot be said to be excessive or out of rangegiven the recidivist nature of the offending. The three months for offending on bailwas within range and although it was applied at this stage of the sentencing processcould equally have been applied in setting the starting point.[27] There is no basis to interfere with the global uplift applied.Was sufficient credit provided for personal mitigating factors?[28] Mr Greaves submitted that a credit of 20 per cent rather than 15 per cent wasappropriate to reflect the nexus between Ms Mareraki's personal background and theoffending. As well, he submitted that a further discount in the region of 10 per centwould be appropriate to reflect the interests of Ms Mareraki's children.[29] The Crown submits that the discount of 15 per cent applied to reflect MsMareraki's background was generous, noting that several of the critical mattersreferred to in the reports were based on self-reporting.[30] There is an undoubted nexus between Ms Mareraki's background and heroffending. There is likely to be trauma in her background. There is however hope forher to change as the pre-sentence report writer noted, provided she is given the rightsupport. The relationship with her co-defendant partner appears to be problematic.The pre-sentence report writer refers to each influencing the other in a negative wayand both have similarly difficult backgrounds.[31] Despite all of this, it is clear the Judge took these matters into account in thediscount he applied. The Judge allowed 15 per cent for background factors and 5 percent for addiction – in the round 20 per cent. I am not persuaded that the discount of15 per cent applied by the Judge was insufficient or out of range when this isconsidered with the discount allowed for addiction as all of these matters aremitigating and effectively intertwined.[32] In relation to the discount to reflect the interests of Ms Mareraki's children(aged 6 and 13) and while acknowledging the recent observations by the Court ofAppeal in Sweeney v R,10 Mr Whitcomb submitted there was no evidence that thechildren were adversely affected by their present circumstances. It was submitted thatcare needs to be taken with this discount because Ms Mareraki and her co-defendantused their children as cover while committing some of the offences. It appears thereare three occasions when this occurred.[33] Counsel for the Crown highlighted that the early introduction of the childrento a criminal lifestyle is likely to have a long-term impact on them and runs counter totheir interests, as would experiencing their mother's incarceration. Reference was alsomade to the fact that the children's lives and care arrangements have already beendisrupted due to her previous periods of imprisonment. As was submitted in Sweeneyhowever, Ms Mareraki chose to run the risk of further offending even though previoussentences have kept her away from her children.11[34] The crux of the Court of Appeal's reasoning in Sweeney was that Mr Sweeneywas an important presence in the lives of his young children and it was in their bestinterests to grow up in a familial environment. It was concluded that the impact onthe children, and the effect on the rehabilitative prospects of Mr Sweeney indicated adiscount of 10 per cent was justified but it would not tip the balance far enough tomake home detention the least restrictive outcome. This conclusion was reached eventhough the children concerned were four and six years of age and Mr Sweeney wastheir sole caregiver, their mother having died in a car accident.[35] A discount for these matters was not addressed by the Judge because nosubmissions were received in relation to the topic. Presumably this is becauseSweeney v R was only released some three weeks before Ms Mareraki's sentencing.10 Sweeney v R [2023] NZCA 417.11 At [26].[36] I am not persuaded a discount is appropriate in this case. There was noevidence provided on appeal to assist me to assess the link between Ms Mareraki'srehabilitation and her relationship with her children or any evidence to suggest theyhave been traumatised. But, overall, I consider the discounts allowed wouldencompass these matters.[37] Even if I am wrong about this, as was the case in Sweeney, I would not find theleast restrictive outcome justified a sentence of home detention. The recidivist natureof Ms Mareraki's offending required the imposition of a term of imprisonment.Conclusion[38] Ultimately, I am not persuaded that the sentence imposed by the Judge wasmanifestly excessive which is the legal test that must be applied. The overall globalstarting point was within range, there is no basis to interfere with the global upliftrequired and I am not persuaded that the discounts for personal mitigating factors wereinsufficient.Result[39] The appeal is dismissed.____________________Harland JSolicitors:Walker Street Chambers, ChristchurchRaymond Donnelly & Co., Christchurch.