WHARERAU v POLICE [2017] NZHC 72

WHARERAU v POLICE [2017] NZHC 72 [3 February 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000403[2017] NZHC 72BETWEEN HENARE WHARERAUAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2017Counsel: J M Hudson for AppellantI S Ko for RespondentJudgment: 3 February 2017ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:J M Hudson, Manukau.Kayes Fletcher Walker, Manukau.The issue[1] On 29 November 2016 Judge Ingram sentenced the appellant to a 25-monthterm of imprisonment in relation to burglary offending, possession of ammunitionand a breach of bail.1 The appellant contends that sentence is manifestly excessive.The respondent submits it is within range.Background[2] On 7 February 2015 the appellant was drinking with friends. When there wasnothing left to drink, he and his friends decided to get more alcohol by burgling aCountdown supermarket. The appellant took with him a large rock. Atapproximately 12.20 am, he threw the rock through the supermarket's front window.The window smashed. The appellant and two friends entered the store and collectedcasks of wine. Countdown lost $500.[3] The appellant committed similar offending in the early hours of 26 November2015. He smashed the front window to a New World supermarket, entered the storeand stole two boxes of Steinlager beer and other items. He returned home and drankthe beer. New World lost $609.[4] The summary of facts records the appellant's pithy explanation to Police: "Ibroke into both of those shops because I wanted more alcohol".[5] The appellant was granted bail in relation to the burglary offending; thecharges in relation to which were laid in late 2016. The appellant breached anassociated curfew and was arrested on 26 October 2016. When searched, Policefound two .375 rounds of magnum ammunition in his pocket.[6] Judge Ingram considered an appropriate starting point for the burglaryoffending was "something in the region of two years" imprisonment.2 In relation tothe first burglary, the Judge adopted a starting point of 18 months, which His Honouruplifted by three months in light of the appellant's "bad record". The Judge then1 Police v Wharerau [2016] NZDC 24188.2 At [10].afforded the appellant a six-month discount for his guilty plea, resulting in a sentenceof 15 months' imprisonment. The Judge adopted a starting point of nine months'imprisonment for the second burglary, mitigated by three months for the guilty pleaand offer of reparation. The six-month sentence was made cumulative. The Judgeadopted a starting point of six months' imprisonment in relation to the ammunitionoffence, mitigated by two months for the guilty plea. The four-month sentence wasalso made cumulative. The Judge imposed a concurrent period of one month'simprisonment in relation to the breach of bail; an overall sentence of 25 months'imprisonment. The Judge also ordered reparation of $1,109.The parties' cases[7] The appellant contends the Judge erred by adopting an excessive starting point in relation to the first burglary offence, and further erred by uplifting thatstarting point in light of the appellant's criminal history. He contends both errorsresulted in a manifestly excessive sentence. Attention is also invited to thecumulative term in relation to the ammunition offending.[8] The respondent submits the sentence is within range given the appellantcommitted two discrete burglaries, and then possessed ammunition while on bail forboth. And, it invites attention to the ultimate sentence rather than the process bywhich it was achieved.Analysis[9] The Court of Appeal has declined to establish a tariff for the offence ofburglary because the circumstances in connection with it are so variable. However,that Court has identified a number of factors relevant to culpability.3 These includethe degree of planning in connection with the offending, its sophistication, nature ofpremises entered, kind and value of property stolen, amount of damage, victimimpact, and extent of offending where multiple burglaries are in issue. The presentcase is characterised by intrusion to commercial rather than residential premises,unsophisticated offending, and modest victim impact.3 R v Nguyen CA110/01, 2 July 2001 at [17].[10] Four cases are relevant:(a) In R v Stevens,4 the Court of Appeal held a starting point of not morethan 18 months' imprisonment was warranted for a burglary in whichthe value of stolen goods was approximately $350. The burglary wasof commercial premises. There was a degree of premeditation. Thatcase involved a breach of trust as the appellant had keys to his formerworkplace and knew the alarm code.(b) In Rangi v Police,5 the defendant climbed through a hole in apadlocked wire mesh gate. He then smashed an office window to gainentry to the premises. He was disturbed by a security guard. Therewas a confrontation but no violence. Fogarty J adopted a startingpoint of 18 months' imprisonment.(c) In Craigie v R,6 the High Court concluded a starting point of twoyears' imprisonment was appropriate for a single burglary ofcommercial premises involving premeditation and significant damageand loss. The offender stole $1,000 from the till and several cases ofalcohol. The till, worth $1,200, was damaged beyond repair.(d) In Hewitt v Police,7 the defendant gained entry to commercialpremises by smashing an office window. He stole a laptop and otheritems to the value of $3,570. Woolford J concluded the 18 month startpoint adopted in the District Court was excessive. The Judge settledupon a starting point of 15 months as appropriate.[11] These cases imply the Judge's starting point of 18 months' imprisonment inrelation to the first burglary was too high, and by approximately three months.Unlike Stevens, there was no breach of trust. And unlike Rangi, a guard was notconfronted. Craigie and Hewitt involved greater loss. As foreshadowed, the4 R v Stevens [2009] NZCA 190.5 Rangi v Police [2013] NZHC 465.6 Craigie v R [2012] NZCA 67.7 Hewitt v Police [2012] NZHC 3332.decisive factors are the commercial nature of the premises, the unsophisticated nature of the offending, and modest victim impact. This is not to treat the offending,however, as anything other than serious.[12] In isolation, the second burglary warranted a similar starting point(15 months), but the totality principle required a global starting point of not morethan 24 months' imprisonment. And while the Judge said a starting point of thatorder was appropriate for the two burglary offences, His Honour effectively adoptedan overall starting point of 27 months' imprisonment, which the Judge then upliftedby three months for the appellant's criminal history.[13] Care is required in this area so as not to re-punish an offender for previousoffending.8 The appellant's criminal record is unenviable, but he has no convictionsfor dishonesty as an adult, apart from the two burglary offences in question. He hastwo Youth Court notations for other unlawful takings/conversion, and one YouthCourt notation for burglary. The instant offending was committed when theappellant was 21 years of age, and so some years after his Youth Court offending.Against this background, little if any uplift was warranted.[14] The respondent acknowledges the six-month starting point in relation to theammunition offending is at the top of the available range. However, the appellantwas on bail for both burglary offences when he committed this offence and the typeof ammunition is troubling. So, as the Judge recognised, a deterrent response inrelation to that offence was required.[15] This leaves the deductions for guilty pleas. In relation to the offences ofburglary and possession of ammunition, the Judge afforded the appellant a33 percent discount. The Supreme Court has held the maximum discount for a guiltyplea is 25 percent,9 so the Judge must have increased the discount to reflect theappellant's offer to make full reparation. However, the discount remained generousbecause:8 Tiplady-Koroheke v R [2012] NZCA 477 at [23]–[24].9 Hesssell v R [2010] NZSC 135, [2011] 1 NZLR 607.(a) The appellant confessed to the burglary offending.(b) Strength of the prosecution case is relevant to the level of discountafforded a guilty plea.[16] It follows the Judge's benevolent approach on this aspect offsets, to an extent,the unduly high starting point for the burglary offending and associated uplift for theappellant's criminal history.[17] Adopting a starting point of 24 months' imprisonment in relation to theburglary offending, and mitigating that figure by 25 percent for the pleas of guiltyand reparation offer, produces an end sentence of 22 months' imprisonment if oneadopts the Judge's methodology in relation to the balance of the offending—as I do.Reasonable minds could disagree as to whether the substitution of this termconstitutes tinkering, something appeal courts have said consistently said they willnot do. However, the appellant is still young. And more importantly, the termimposed was beyond the available range.[18] The appeal is allowed and the sentence quashed. A term of 22 months'imprisonment is substituted...Downs J