WIRINGI v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 1734 [25 July 2017]

WIRINGI v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 1734 [25 July 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-56[2017] NZHC 1734BETWEEN FAIRMONT JOSEPH WIRINGIAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentsHearing: 28 June 2017Appearances: M Starling for AppellantS J Mallett and S Dayal for RespondentsReasons: 25 July 2017REASONS FOR JUDGMENT OF NICHOLAS DAVIDSON J (DISMISSING APPEAL AGAINST SENTENCE)Introduction[1] Judgment was delivered 28 June 2017.1 These Reasons follow.[2] Mr Fairmont Wiringi appeals against a sentence of 28 months imprisonment imposed by His Honour Judge Gilbert.2 The appellant pleaded guilty to:(i) one charge of burglary;(ii) one charge of unlawful possession of firearm;(iii) one charge of reckless discharge of firearm;1 Wiringi v New Zealand Police and Department of Corrections [2017] NZHC 1461.2 Police v Wiringi [2017] NZDC 9296.(iv) one charge of breach of community work; and(v) two charges of breach of bail.[3] The appellant appeals on the primary ground that the end sentence was manifestly excessive.Summary of facts[4] On 24 April 2016, the appellant entered an address through a kitchen window, removed some meat from a freezer and took other items valued at around $420. When the occupants of the house arrived home, the appellant ran out the back door and jumped the fence. He also stole a bicycle valued at about $600.[5] On 3 December 2016, the appellant was on bail and was with his brother and two female acquaintances. An argument developed when the appellant woke up to find his brother had taken his gang patch. The appellant told his brother he had five minutes to give his patch back or he would shoot him. He loaded his shogun, held it in both hands, and fired one shot, which hit the carpet in front of his brother. The defendant continued to threaten his brother until he realised the police had been called.[6] In December 2015, the appellant was convicted of shoplifting (under $500), and sentenced to 60 hours community work. As of 10 February 2016, he had not completed any work which led to his conviction for breach of the community service order. He was also convicted on two charges of failing to comply with bail conditions.District Court Sentencing[7] His Honour Judge Gilbert noted the appellant's youth, 18 years old. However, he also noted his extensive criminal history in the Youth Court. His Honour took into account his conviction for unlawful possession and presentation of firearm in 2015. Judge Gilbert decided not to impose an uplift for the previousconviction, but did not provide any discount for the appellant's youth. In his opinion, that was the right way to address these two factors.[8] The Judge adopted an 18 months starting point on the charge of burglary and a 24 months starting point for possession and reckless discharge of a firearm. After applying a 25 per cent discount for guilty pleas, he made a further 6 months reduction under the principle of totality. An end sentence of 2 years and four months imprisonment was imposed.Jurisdiction[9] Mr Wiringi appeals as of right.3 The appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.[10] The focus is on the correctness of the end result, not the process by which the sentence was reached.4 The Court must only intervene if it considers the sentence is manifestly excessive, and not justified by relevant sentencing principles.5 This Court must not interfere with the proper exercise of judicial discretion, or tinker with the sentence.6SubmissionsAppellant's submissions[11] The appellant submits that separate starting points adopted for the charges of burglary and possession of a firearm were too high, leading to a manifestly excessive end sentence. Mr Starling of counsel, submits that an end sentence in the range of 18 months imprisonment would have been appropriate.3 Criminal Procedure Act 2011, s 244.4 Tutakangahau v R [2014] NZCA 269, [2015] 3 NZLR 482 (CA) at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Maihi v R [2013] NZCA 69 at [21].Respondent's submissions[12] Counsel Mr Mallett, submits that the respective starting points of 18 and 24 months imprisonment for burglary and possession of a firearm were justified in light of the relevant authorities. The burglary charge involved aggravating factors including entering a residential property, removal of property up to $1,000 and the risk of encountering the occupants.[13] With regard to the charges of possession and reckless discharge of a firearm, Mr Mallett submits that the weapon was intentionally loaded to threaten his brother. The shot fired had the potential to cause serious injury. There were two others present when the weapon was discharged.[14] The Judge did not provide a discrete uplift to reflect the fact that the Arms Act offending occurred while the appellant was on bail. That is an aggravating factor, but appears to have been taken into account when setting the 24 month starting point.AnalysisStarting point for the burglary charge[15] There is no tariff judgment for burglary sentencing. The reason was explained by the Court of Appeal in R v Nguyen:7[18] The range of circumstances in which the offence of burglary can be committed is such that not tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.[16] In R v Nguyen, although the Court of Appeal was not willing to fix a tariff for burglary, but identified factors relevant to the seriousness of offending:(i) the degree of planning and sophistication in the offending;7 R v Nguyen CA 110/01, 2 July 2001 at [18].(ii) the nature of the premises entered;(iii) the kind and value of the property stolen;(iv) damage done;(v) the impact and potential impact upon occupants of the property; and(vi) the extent of the offending where multiple burglaries are involved.[17] The factor which the courts have tended to consider as the most aggravating is the nature of the premises. The Court of Appeal noted in Arahanga v R that"[burglary] of a domestic residence is a significant aggravating feature at sentencingdue to the heightened risk of confrontation with the occupants".8 Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years six months imprisonment.9[18] The appellant, through Mr Starling, submits that Arahanga and the cases it refers to are distinguishable by the fact that burglaries involved in those cases were either committed at night while occupants were likely to be at home, or had other aggravating features such as significant damage to property, higher value property taken, or multiple charges.[19] I accept that, to an extent, the facts of Arahanga was more serious than the current facts, but I also note that the starting point in Arahanga was higher than the starting point adopted by the Judge. In Arahanga, the Court of Appeal upheld a starting point of four years imprisonment for residential burglaries that involved the risk of confronting the victims who were asleep, the high value of the propertystolen and the potential for violence demonstrated by the defendants' brazenbehaviour.8 Arahanga v R [2012] NZCA 480 at [78].9 At [78], citing Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009; Police v Vincent DC Palmerston North CRI-2008-054-4634, 21 April 2009; and Arps v Police HC Christchurch CRI-2010-409- 167, 2 September 2010.[20] Applying the factors in R v Nyugen, this offending is aggravated by the fact that it was carried out in a dwelling house, and the occupants returned during the burglary. The property stolen, up to the value of $1000, is significant. The victims were emotionally traumatised by the offending as demonstrated in the victim impact statement:I feel like I have been run over by a bus today since finding out my house has been burgled.I feel sick and I have not stop crying since this has happened.I don't understand why someone would do something so cruel to me.All of our belongings have been touched and the burglar has been in my room.I am sick of living in this area with all the crime.[21] At a relatively young age, the appellant has already appeared more than 30 times in the Youth Court on charges of burglary. The most significant sentencing purposes when sentencing a habitual burglar, such as the appellant, are deterrence and community protection. I conclude that 18 months imprisonment on the charge of burglary was comfortably within the range of possible sentences at the Judge'sdiscretion.Starting point for possession of firearms[22] Mr Starling submits that the 24 months starting point adopted for the possession of a sawn-off shotgun "seems excessive". He submits that the offending was less serious because the firearm was discharged into the floor and did not cause injury or damage to property.[23] On reviewing the relevant authorities, I find that a starting point of two years imprisonment for possession and reckless discharge of the firearm is justified. InR v Richardson the Court of Appeal upheld a starting point of two years imprisonment for possession of a sawn-off shotgun and a shotgun.10 The sawn-off shotgun was found under a bed and the other gun was loaded and found in the boot of the car. Torea v R, Martel v Police, and Byles v R, involved similar facts and10 R v Richardson CA45/02, 25 March 2003.adopted starting points between two years and six years and six months imprisonment.11[24] The modified state of the firearm is relevant. In Herewini, the appellant was found with a loaded sawn-off shotgun under the front passenger seat of his vehicle.12Moore J held that a starting point of two and a half years was "well within the Judge's discretion":[27] In the present case, the fact that the weapon was a sawn-off shotgun makes the offending more serious than if the weapon had been unmodified. Apart from the inherent dangerous features of a sawn-off shotgun the fact of its modified state infers it is to be used for a criminal purpose.[25] Consistent with Herewini, I find the fact that the appellant's shotgun wassawn-off and a serious aggravating factor. A starting point of two years imprisonment is within the range of available sentence at the Judge's discretion.Totality principle[26] Even if I accepted that the cumulative starting point for the appellant'soffending was manifestly excessive, the Judge's six months reduction, after giving the full discount of 25 per cent for the guilty pleas, puts the sentence well within the range of those available.[27] This offending, and the appellant's current predicament trouble me. His Youth Court offending is extensive. He transitioned into the District Court for this offending. The wanton disregard of Court orders does not bode well for Mr Wiringi. He has ended up in a world where his associations in and out of prison will not assist his rehabilitation.[28] The District Court Judge was right to recognise the seriousness of the offending and to impose the sentence upheld on appeal. There was little else he could do. No Court wants to impose imprisonment for any significant term on a still young person but the record of offending here leaves no viable option.11 Torea v R i[2011] NZCA 96; Martel v Police HC Hamilton CIV-2010-419-69, 4 October 2010;Byles v R [2013] NZCA 18.12 Herewini [2014] NZHC 2396.[29] The Court can only express its hope that Mr Wiringi develops an intent, and in due course resolve, to stand apart from or address the influences which have led him to offend in such a serious way.Disposition[30] The appeal was dismissed, for these reasons..Nicholas Davidson JSolicitors:Raymond Donnelly & Co., ChristchurchMichael Starling, Barrister, Christchurch