PEITA v NEW ZEALAND POLICE [2020] NZHC 2098

PEITA v NEW ZEALAND POLICE [2020] NZHC 2098 [21 August 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-34[2020] NZHC 2098BETWEEN HENRY LIONEL PEITAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2020Appearances: T Spencer for the AppellantR Annandale and C Taylor for the New Zealand PoliceJudgment: 21 August 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 21 August 2020 at 4 pmRegistrar/Deputy RegistrarDate:[1] On 20 May 2020 the appellant, Henry Peita, pleaded guilty to a wide range ofoffending committed between November 2019 and May 2020: two charges ofburglary;1 two charges of failing to answer bail;2 attempting to take a vehicle;3escaping custody;4 wilful damage;5 providing false details to the Police;6 and failingto remain stopped.7[1] On 2 July 2020 Judge Orchard in the District Court sentenced Mr Peita to twoyears and one-month imprisonment on the lead burglary charge. Her Honour thenimposed lesser concurrent sentences on the remaining burglary charge, the wilfuldamage charge and the charge of attempting to take a motor vehicle.8 Judge Orchardalso ordered Mr Peita to pay reparations in the sum of $3,000. On the remainingcharges Mr Peita was convicted and discharged.[2] Mr Peita appeals against his sentence on the lead charge on the grounds it wasmanifestly excessive. Specifically, Mr Peita contends that Judge Orchard erred by:(a) adopting a starting point that was too high;(b) failing to adjust the starting point to reflect the totality principle; and(c) providing insufficient credit for the guilty pleas.The offending[3] On 20 November 2019 Mr Peita unlawfully entered the garage of a residentialproperty in Kerikeri and took an outboard motor, a drill set, a petrol can and scubadiving gear, to the value of $5309 ("the November burglary").1 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.2 Bail Act 2000, s 38(a). Maximum penalty 1 year imprisonment.3 Crimes Act 1961, s 226(2). Maximum penalty 7 years' imprisonment.4 Section 120(c). Maximum penalty 5 years' imprisonment.5 Summary Offences Act 1981, s 11(1)(a). Maximum penalty 3 months' imprisonment.6 Land Transport Act 1998, s 44. Maximum penalty $10,000 fine.7 Sections 52A(1)(b) and 114. Maximum penalty $10,000 fine.8 On the remaining burglary charge Mr Peita was sentenced to 6 months' imprisonment. On thewilful damage charge Mr Peita was sentenced to one month imprisonment, and on the charge ofattempting to take a motor vehicle a sentence of two months' imprisonment as imposed.[4] Sometime between 8 pm on Friday, 13 December 2019 and 8:30 am onSaturday, 14 December 2019, Mr Peita burgled a building located on a residentialproperty in Kerikeri; entering through a locked door and taking a wallet, fishing gear,camera equipment and clothing to the value of some $22,357 ("the Decemberburglary").[5] On 10 February 2020 Mr Peita entered a Toyota motor vehicle that did notbelong to him and drove a short distance. Later that day Mr Peita was located byPolice and advised he was under arrest. In response Mr Peita ran from Police throughthe gate of a residential property causing it to break.[6] On 17 April 2020 Mr Peita was driving on State Highway 1 in Kaitaia whenhe was stopped by the Police. Mr Peita identified himself using his brother's details.Subsequent checks identified these details were false, and Mr Peita was asked to stepout of the vehicle. Instead, Mr Peita took off at speed.[7] On 17 March and 12 May 2020 Mr Peita failed to answer bail.District Court decision[8] Judge Orchard identified the December burglary as the lead offence.9 HerHonour regarded the offending as serious due to the significant amount of propertystolen, and the fact it involved a residential burglary, bringing with it the risk of an"encounter with a home owner".10 Her Honour also found the offending had anelement of premeditation as Mr Peita took a vehicle to the address.11 With regard tothese factors Her Honour adopted a starting point of 18 months' imprisonment.12[9] Judge Orchard then addressed the November burglary. Again, she identifiedthat this was a burglary, by day, of a residential address and risked a confrontation.13Again, property of a significant value was stolen. Judge Orchard was also cognisantthat as a result of the offending the elderly victim feared for her safety in her own9 Police v Peita [220] NZDC 12625 at [7].10 At [7].11 At [7].12 At [7].13 At [8].home. Her Honour uplifted the starting point by nine months to reflect this offending,an uplift she described as "merciful".14[10] Judge Orchard made a further uplift of three months to reflect the charges ofattempting to take a vehicle, intentional damage and escaping Police.15 A final three-month uplift was applied to account for Mr Peita's "significant history of previousdishonesty offending", bringing the total starting point to 33 months' imprisonment.16[11] As Mr Peita's guilty pleas did not come at the first available opportunity,Judge Orchard gave a discount Her Honour described as "a little more than 20 percent". However, as eight months was deducted from the starting point the finaldeduction was in fact equivalent to 24.24 per cent.17 The result was an end sentenceof two years and one month imprisonment; a sentence on the cusp of eligibility forhome detention. However, Her Honour was of the view that home detention would beentirely inappropriate:18Even if you were ultimately to be in the range of home detention, which you are not,in my view the time has come for it to be brought home to you that you will be heldaccountable for your offending, particularly when it is serious offending likeresidential burglaries, and in my view, the principles of accountability, denunciationand deterrence would not have been able to be met by a sentence of home detentionand particularly, as I say, since such sentences have been totally ineffective in bringingabout change in the past.Appellant's position[12] Ms Spencer, on behalf of Mr Peita, submits that the starting point adopted forthe lead burglary charge, and for the two burglaries together was too high. She submitsJudge Orchard was wrong to characterise both burglaries as residential and was alsowrong to identify the December burglary as involving premeditation, rather, shesubmits that Mr Peita arriving at the dwelling house in a vehicle, in rural Northlandwas indicative of opportunistic offending. Having regard to these errors, to other14 At [9].15 At [10].16 At [12].17 At [14].18 At [13].comparable cases,19 and to the totality principle, Ms Spencer submits that a startingpoint of no more than 12 months ought to have been adopted for the lead charge, andan uplift of no more than six to eight months should have been applied to reflect thesecond burglary. Ms Spencer takes no issue with the further uplifts, and on hersubmissions a total starting point of between 24 and 26 months' imprisonment wasappropriate.[13] Ms Spencer also submits the credit given for Mr Peita's guilty pleas wasinsufficient and that the sentence has the appearance of being "crafted to fall outsidetwo years' imprisonment to avoid the Court necessarily considering a home detentionsentence". She submits that if a 25 per cent deduction, the deduction she submits isappropriate, was applied, this would have resulted in an end sentence of 24 months'imprisonment rendering Mr Peita eligible for a sentence of home detention.Discussion[14] Mr Peita's appeal against sentence is governed by the Criminal Procedure Act2011, and s 250(2) provides that the Court must allow the appeal if satisfied that forany reason, there is an error in the sentence imposed on conviction, and a differentsentence should be imposed. In any other case, the Court must dismiss his appeal.20The measure of error that must be shown, is that the sentence is "manifestlyexcessive".21 The High Court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles. Whether a sentenceis manifestly excessive is to be examined in terms of the sentence given, rather thanthe process by which the sentence is reached.[15] I begin my analysis with the starting point. First, I see no error with JudgeOrchard's characterisation of the burglaries as burglaries of residential properties. TheNovember burglary involved a garage on a residential property, and the Decemberburglary, although ultimately involving a workshop or storage room, was part of acomplex of buildings at a residential address and clearly resembled a residential19 Ms Spencer refers to Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; Nelson v Police[2019] NZHC 2434; Waenga v Police [2019] NZHC 2922; Komene v Police [2019] NZHC 1651and R v Columbus [2008] NZCA 192.20 Section 250(3).21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].dwelling in its own right. In both cases I am satisfied there was a high risk of aconfrontation occurring, particularly given Ms Spencer's submission that theDecember burglary had occurred in daylight, most probably on the Saturday morningwhen the residents may well have been preparing to use their boat parked next to thebuilding burgled with the boat equipment being the target of the burglary. Given thenature and quantity of material stolen and the presence of a vehicle I also see no errorwith Her Honour's assessment that the December burglary involved an element ofpremeditation.[16] The submissions of both counsel have in large focused on the appropriatestarting points with regard to comparable cases. There is no tariff case for burglary,however, the Court of Appeal in Arahanga v R identified that "dwelling houseburglaries at the relatively minor end of the scale tend to attract a starting point ofapproximately 18 months' to two years and six months' imprisonment".22 Althoughthere is more recent authority to suggest that "a more realistic range [of starting points]might be [between] one year to two and a half years' imprisonment", 23 this does notmean that either of the starting points adopted by Judge Orchard for both theNovember and December burglaries fall outside this updated range.[17] The December burglary in particular was clearly more serious than Nelson vPolice relied upon by Ms Spencer. While in that case the offending involved aresidential burglary in the early hours of the morning, it was unclear if the offenderhad actually entered the building or taken anything and the starting point adopted wasnonetheless 14 month's imprisonment. In contrast the December burglary involvedactual forced entry and the taking of property to the value of $22,357. The Decemberburglary in fact bears similarity to Tairi v Police24 and Blissett v Police,25 two of thecases surveyed by Hinton J in Nelson, where starting points of 16 and 17 months'imprisonment were adopted respectively. However, the value of the property taken inthe December burglary substantially exceeds that in both Tairi and Blissett, rendering22 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.23 Nelson v Police [2019] NZHC 2434.24 Tairi v Police [2015] NZHC 187.25 Blissett v Police [2013] NZHC 156.the 18 month starting point adopted by Judge Orchard well within the availablerange.26[18] Likewise, I accept Mr Taylor's submission on behalf of the Police that theNovember burglary is comparable to that in R v Columbus, where a starting point of12 months' imprisonment was adopted.27 As a result the 9 month uplift adopted byJudge Orchard was entirely within range and self-evidently took into account thetotality principle.[19] As Ms Spencer takes no issue with the further uplifts applied by Judge Orchard,I see no reason to interfere with these. The total starting point of 33 months adoptedby Her Honour was therefore appropriate and within the range available.[20] Lastly, I turn to the guilty plea deduction. As noted the deduction of 8 months,amounted to 24.24 per cent. As Mr Taylor submitted, in circumstances where Mr Peitafailed to attend court on two occasions and did not enter pleas at the earliestopportunity, the deduction awarded by Judge Orchard can only be described asgenerous. The sentence was also clearly not crafted to avoid home detention, as hada 20 percent discount been applied as proposed, the end sentence would have beensubstantially short of the maximum 24 months required for Home Detention to beconsidered. In any event Judge Orchard made it clear why she considered homedetention would have been inappropriate even if it had been available.[21] In conclusion the end sentence of two years' and one month imprisonment onthe December burglary was entirely within the available range. Accordingly, theappeal must be dismissed.[22] For completeness I note that Ms Spencer did not raise any concerns with thelesser concurrent sentences nor with the reparation orders imposed by Judge Orchard,thus I can see no reason to disrupt these either.26 In Tairi goods to the value of $370 were taken, and in Blissett goods to the value of $2,000 weretaken. I emphasise that this is much less than the $22,357 taken by Mr Peita in the Decemberburglary.27 R v Columbus [2008] NZCA 192.Decision[23] The appeal against sentence is dismissed._______________________________Powell J