CHE RAKATI RENATA v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 504

CHE RAKATI RENATA v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 504 [20 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000145CRI-2016-409-000146[2017] NZHC 504BETWEEN CHE RAKATI RENATAAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentHearing: 14 March 2017Appearances: L L Heah for AppellantS J Mallett for CrownJudgment: 20 March 2017JUDGMENT OF DUNNINGHAM J[1] The appellant was sentenced by Judge D J L Saunders on 4 November 2016 in relation to the following 18 charges:1(a) 3x theft (one over $1000, two under $500)(b) 4x shoplifting (one under $500, one $500-$100, and two over $1000)(c) 2x use of a document(d) 1x unlawful taking of a motor vehicle(e) 2x receiving property (over $1000)(f) 1x possession of methamphetamine1 Police v Renata [2016] NZDC 22212.(g) 1x possession of methamphetamine utensil(h) 1x possession of cannabis(i) 2x breach of intensive supervision(j) 1x breach of community work[2] The offending occurred over a five month period between May and October last year. The Judge approached the sentencing by separating the offending into three separate tranches, based on time and location (see below). For each set of offending he identified a lead offence and sentenced in relation to that. He then imposed concurrent sentences for the other offences. He then imposed a sentence which reflected the cumulative total of the three lead offences cumulatively, to reach an end sentence of three years, six months imprisonment.[3] The appellant appeals on the basis that the end sentence was manifestly excessive.Appeal out of time[4] The appellant seeks leave to appeal out of time. On the notice of appeal the appellant cites as a reason that he was not aware that he had to file a notice of appeal in addition to his legal aid application. The Crown does not oppose the application,and clearly no party has been prejudiced. Accordingly, I grant leave to appeal out oftime.Background factsFirst tranche[5] The first tranche of offending occurred in Christchurch over a four week period in late May to early June 2016. On 28 May 2016, the appellant approached an unlocked parked vehicle, entered it, and stole a leather motorcycle riding outfit valued at $1750. An hour later he sold the gear to a pawn shop. On 12 June, the appellant and an associate went to the same pawn shop with $1,200 worth ofequipment stolen from a construction site. On 27 June, the appellant stole a car. Police searched the cabin he was occupying and found a glass pipe used for smoking methamphetamine. On both 9 and 25 June the appellant stole petrol from a petrol station.Second tranche[6] The second tranche of offending occurred after the appellant was bailed to a Dunedin address for the Christchurch offending. On 29 August 2016, the appellant used a stolen BNZ card to purchase goods. On 4 September, the appellant stole $1,526 worth of goods from The Warehouse in South Dunedin. On 5 September, the appellant stole a speaker valued at $549 from The Warehouse in Mosgiel, Dunedin. When police went to arrest him they found 0.2 grams of methamphetamine in his wallet and cannabis on his person. On 16 September, the appellant stole further clothes items from The Warehouse in South Dunedin. Between 11 and 17 August, the appellant received stolen household items valued at around $6500 from a burglary.Third tranche[7] On 14 October 2016, the appellant, with an associate, stole $1,282.46 worth of goods from The Warehouse at Eastgate Mall in Christchurch.The District Court Decision[8] Judge Saunders first noted that the appellant was not suitable for a community-based sentence because he had proved himself to be unreliable in relation to bail, as much of this offending was committed while he was on bail.[9] The Judge separated the offending into three separate tranches of offending, based on the time and place of offending. He explained that for each set of offending he would identify the lead charge and impose concurrent sentences on the other and apply such credit as the appellant was entitled to for his guilty pleas.[10] For the first tranche, the Judge took the unlawful taking of a motor vehicle as the lead offence, applying an 18 month term of imprisonment to reflect this and the other offending. He imposed concurrent sentences of imprisonment of:(a) two thefts of petrol- two months for each;(b) possession of a pipe- six months;(c) theft of motorbike leathers- 12 months; and(d) receiving stolen tools worth $1,200- 12 months.[11] For the second tranche, the Judge imposed 12 months' imprisonment for the lead charge of the theft of $1,576 worth of goods. He also imposed the following concurrent sentences of imprisonment:(a) using a stolen bank cards - nine months;(b) possession of cannabis and methamphetamine - two months for each;(c) breach of community work- two months;(d) theft of a speaker- six months;(e) breach of intensive supervision- four months; and(f) receiving stolen goods- 12 months.[12] Finally, for the third tranche, the Judge took the theft of $1,282 worth of goods from The Warehouse as the lead offence. He imposed a sentence of 12 months. He also imposed the following concurrent sentences of imprisonment:(a) theft of items- two months each; and(b) breach of intensive supervision, failing to report- four months.[13] The three cumulative sentences resulted in an end sentence of three years six months' imprisonment.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is "manifestly excessive" and notjustified by the relevant sentencing principles.3 The focus is on the end sentence rather than the specific process by which the judge reached it.4 The appellate court will not intervene when the sentence is within the range that can properly be justified by sentencing principles.5Grounds of appeal[15] The appellant submits that the sentence of imprisonment imposed was manifestly excessive. The second ground, which asserts that home detention was wrongly refused, was not pursued at hearing. He also submits that the totality principle was not properly taken into account and that inadequate credit was givenfor the appellant's guilty pleas.[16] The Crown acknowledges that the Judge did not follow the approach to sentencing set out in R v Clifford as he did not clearly articulate:6(a) The starting point for each offence by assessing the relevant features of the offending;(b) Personal aggravating and mitigating factors; and2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Ripia v R [2011] NZCA 101 at [15].4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Larkin v Ministry of Development [2015] NZHC 680 at [26].6 R v Clifford [2011] NZCA 360 at [60].(c) The discount applied for guilty pleas.[17] The Crown submits that although the Judge did not clearly articulate the increases and discounts involved in his calculations, it is evident he did take these discrete factors into account. However, in any event, the end sentence is not out of range having regard to the gravity of the overall offending, particularly given that much of the offending occurred while the offender was on bail and that he has a history of dishonesty offending that warranted an uplift.Were the sentences imposed manifestly excessive?First tranche of offending[18] The appellant submits that 18 months' imprisonment imposed for the lead charge of car theft, taking into account the guilty plea, is manifestly excessive as it suggests a starting point of around 24 months for that offence. It was also submitted that the other property offending should not warrant much of an uplift because the property stolen was recovered. The Crown, however, submits that it is an appropriate sentence given that it reflects the totality of the first tranche of offending.[19] Because the Judge did not articulate the reasoning behind his sentencing on these charges, I think it appropriate to undertake that process as a check on the sentence imposed. The Court of Appeal in Arahanga v R held that an 18 – 30 month starting point is appropriate for relatively minor dwelling house burglaries.7 This has been utilised in cases dealing with the theft of a motor vehicle.8 In Muir v Police, the Court took a starting point of 15 months imprisonment for the theft of a car worth around $16,000.9 The car was located four days later. In Duxfield v Police, the defendant stole a car, causing it damage in the process. The Judge took 18 months as the starting point.10[20] Given that no damage was caused to the car by the appellant, and its value was lower than that in Muir, a 14 month starting point for theft of car would be7 Arahanga v R [2012] NZCA NZHC 2829.8 For example in Duxfield v Police [2015] NZHC 3018 at [19].9 Muir v Police [2015] NZHC 1425.10 Duxfield, above n 9.appropriate. An uplift of around six to eight months would take into account the other offending and a modest uplift for previous offending. A discount of 15 to 20 per cent for "fairly belated" guilty pleas (noting guilty pleas were not entered at the first available opportunity) results in a sentence of 16 to 18 and a half months'imprisonment for the first tranche of offending, suggesting the Judge arrived at an appropriate sentencing outcome on this set of offences.The second tranche[21] The appellant does not challenge the appropriateness of a 12 month sentence for the totality of the second tranche of offending.Third tranche[22] The appellant submits that 12 months imprisonment for the theft of $1,272 worth of goods from The Warehouse is manifestly excessive. Furthermore, all the property was recovered and a 25 per cent discount should be applied for early guilty pleas on this offending. In addition, the cases which the Crown seeks to compare the offending with are not directly comparable but involve a greater number of offences.11[23] The Crown submits that it is an appropriate sentence given that it reflects the totality of the third tranche of offending. The Crown notes that the maximum penalty for a theft that does not exceed $1,000 is 12 months imprisonment. The Court of Appeal has stated that the difference in penalties in s 223 indicates the importance of value when sentencing.12 The Crown also points out that the offending in this tranche is further aggravated because the appellant was on bail for the previous offending at the time the third set of offending was committed.[24] In my view, a starting point of 10 months' imprisonment would beappropriate, given the value of the goods stolen and the fact that the offending was while on bail. If an uplift of three months is imposed for the other offending at this time and then a 25 per cent reduction for guilty pleas applied, the resulting sentence11 Aerenga v Police [2012] NZHC 1375, and Ropih v Police HC Rotorua CRI-2004-463-74.12 R v Duncan CA345/09 at [7].is just under 10 months imprisonment. Therefore, the Judge's sentence of 12 monthswas slightly higher. However, the overall sentence would still be in range given the findings below.[25] In respect of the individual aspects of sentencing which have been challenged, I would come to a very similar conclusion to the District Court Judge. The difference of two months in a three year six month sentence is not, in my view, material.Totality[26] The appellant's last submission is that even if the sentencing on each tranche of offending was defensible, the District Court Judge did not explicitly consider totality principles and the end sentence was not warranted when the matter was considered in totality.[27] The Crown, however, submits that it is implicit in the Judge's reasoning thathe considered totality and, in any event, the end sentence of three years and six months' imprisonment was not wholly out of proportion to the gravity of theoverall offending, which included the factors already mentioned of the appellant'spast history of dishonesty offending and the fact that much of the offending was committed while on bail.[28] I consider that the Judge's approach to sentencing, which was to group theoffending in tranches even though each tranche contained a range of offences on different dates did, at least in part, address issues of totality. Furthermore, while he did not expressly consider the totality of the end sentence, I consider it is important that he did say at the outset, noting that he had considered the end point which would be reached, that the sentence would not be within the range where home detention could be considered.[29] Even if he did not review it in that way, I consider it is within the range warranted for such persistent offending over a five month period and where the majority of offending occurred while on bail. The sentencing of offenders such as this, where the offences involve multiple offending over a prolonged period of timeand where there is a history of similar offending, is a difficult exercise. The resulting sentence may well have been at the upper range of what could have been expected, but it does not offend the totality principle, nor do I consider it to be manifestly excessive.[30] Accordingly, the appeal is dismissed.Solicitors:L L Heah, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch