LAMATOA v POLICE [2017] NZHC 386

LAMATOA v POLICE [2017] NZHC 386 [9 March 2017]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYCRI-2016-476-000012[2017] NZHC 386BETWEEN JADE LUKE LAMATOAAppellantAND NEW ZEALAND POLICERespondentHearing: 21 February 2017Appearances: S A Saunderson-Warner for the AppellantM Beattie for the RespondentJudgment: 9 March 2017JUDGMENT OF NATION J[1] On 8 September 2016, Mr Lamatoa, jointly with three others, was found guilty of entering a holiday home at Lake Opuha without authority and with intent to commit theft. Mr Lamatoa made four different visits to the property and was involved in theft of items worth over $50,000. He was sentenced to imprisonment for two years and six months and ordered to pay reparation of $2,150. He appeals against that sentence.Principles on appeal[2] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.11 Criminal Procedure Act 2011, ss 250(2) and 250(3).[3] If the sentence under appeal may be properly justified, having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentenceis "manifestly excessive" that the Court should interfere with the exercise of the Judge's discretion. As Toogood J said in Larkin v Ministry of Development:2[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.[4] The focus on most appeals is thus on the end sentence. In Tutakangahau v R, the Court of Appeal held that:3 the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.The offending[5] During these burglaries, Mr Lamatoa and others removed a jet boat, two jet skis sitting on a tandem trailer, a four-wheel drive buggy and household items. In breaking into the complainant's address and attempting to jemmy open a garagedoor, they damaged the door frame. In breaking into the house via a window, they damaged the window latch and frame. While stealing household items, they smashed a plastic panel on a treadmill in the garage, broke the tail off a whale statue, cracked the screen on a Panasonic 55 inch television and broke the pull-start mechanism on a child's quad-bike in the garage.[6] Three of the people charged with Mr Lamatoa, namely Jennifer Mouatt, Allan Bell and Logan Quinn, pleaded guilty. They gave evidence at the Judge alone trial of Mr Lamatoa over 7 and 8 September 2016. They described their part in the burglaries and identified the way in which Mr Lamatoa was involved. Mr Lamatoa denied having any part in the offending. The Judge found the evidence of MrLamatoa's involvement to be overwhelming.2 Larkin v Ministry of Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101 at [15].3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].The District Court Judge's decision[7] The Judge sentenced Mr Lamatoa on 18 November 2016.4 He said the offending was serious because of the amount of property taken and because of his position in regard to the offending, the repeat entries to the property over a period of days and the damage to the property during that time. He referred to the comments of the Court of Appeal as to house burglaries in Arahanga v R.5[8] The Judge said he formed the view that Mr Lamatoa was the ring-leader of the offending and in-charge. He adopted a starting point for the offending of two years and three months, bearing in mind what he considered to be serious offending for what was effectively four burglaries charged as one. He took into account the aggravating features relating to him personally in that he had six previous convictions for burglary, five other dishonesty convictions and convictions for numerous breaches of Court sentences. There could not be any credit for a guilty plea. The Judge did not consider there to be any significant remorse. He had regard to totality principles and the sentences imposed on other offenders to arrive at an ultimate sentence of 30 months (two years and six months). He also ordered Mr Lamatoa to pay reparation in the sum of $2,150.Submissions for Mr Lamatoa[9] For Mr Lamatoa, Ms Saunderson-Warner submitted the starting point adopted by the Judge was too high, having regard to the comments of the Court of Appeal inArahanga and the sentence that had been imposed on Mr Quinn. She submitted that the uplift of three months for previous convictions amounted to double counting as it had already been factored into the starting point. Overall, she submitted that the disparity with the sentence imposed on other offenders was so gross and unjustifiedthat Mr Lamatoa's sentence should be reduced to two years' imprisonment.Discussion[10] I accept the submission for the Crown that there were a number of features of this offending which justified the Judge adopting a starting point of two years and4 Police v Lamatoa [2016] NZDC 23227.5 Arahanga v R [2012] NZCA 480.three months. Mr Lamatoa had entered the burgled premises on four occasions. Onthe first occasion, it had been to "case the joint". The offending was thus highly premeditated. The burglary was of a domestic residence. While the owners were not there, the Court of Appeal has acknowledged how the victims of a burglary of a domestic property will be left with a sense of violation and insecurity and how frightening it can be for them to find their house has been burgled.[11] The burglary was also more serious because multiple burglars were involved in the taking of high value items. Items in the home and door and window frames were damaged. There was an element of vandalism associated with the burglaries.[12] Ms Saunderson-Warner acknowledged that, because the Judge had presided over the trial, Mr Lamatoa could not dispute the Judge's finding that Mr Lamatoa was the ring-leader in the offending. The Judge did not refer to Mr Lamatoa'sprevious offending in arriving at the starting point of two years and three months so there was no double counting when he uplifted the starting point by three months onaccount of Mr Lamatoa's previous criminal convictions. The pre-sentence report assessed him at being at a high risk of reoffending and a medium risk of harm to others.[13] Having regard to all those matters, the sentence imposed on Mr Lamatoa could not be considered manifestly excessive. I must however consider whether or not it was manifestly excessive by reason of the disparity with sentences imposed on his co-offenders. Ms Saunderson-Warner said this was the real issue.[14] There was no dispute that this ground of the appeal should be addressed in terms of the Court of Appeal's statements as to the principles to be applied in R v Lawson.6[D]ifferences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the6 R v Lawson [1982] 2 NZLR 219 (CA) at 223.offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend tobring the administration of justice into disrepute But the test is objective,not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.[15] Mr Beattie, for the Police, pointed out that, if disparity did require an adjustment in considering potential disparity, a Court should not reduce the sentence to a level which would, itself, cause public concern about the administration of justice. In Mau'u v R, the Court of Appeal said:7On a number of occasions, this Court has emphasised that 'a gross and unjustifiable disparity' does not necessarily result in the reduction of asentence imposed on a co-offender. This is reflected in the principle that no greater adjustment is appropriate than is necessary to protect the integrity of the criminal justice system. For example, in both R v Ryder [CA116/98, 23 June 1998] and R v Thompson [CA45/98, 22 December 1998], this Courtobserved that an appellate court must consider 'whether reducing a propersentence imposed on one offender in order to bring it into line with the sentence imposed on a co-offender would itself cause public concern at theadministration of justice'. Two wrongs do not make a right.[16] One of the co-offenders was Jennifer Mouatt. She drove Mr Lamatoa and others to the burgled property on each occasion Mr Lamatoa went there. She was however a first offender. The Judge who heard her and the other co-offenders give evidence at the trial was clear that he considered Mr Lamatoa was the one who was in-charge. He had supervised others. He said that Miss Mouatt's position was very much as his "underling" in regard to the offending. She was approximately 20 years of age at the time of the offending, in contrast to Mr Lamatoa who at the time was about to turn 27 and with a serious criminal record. She ultimately received a sentence of community work. Ms Saunderson-Warner accepted that her sentence could be seen as a "real anomaly".[17] One of Mr Lamatoa's co-offenders was Logan Quinn. On 6 July 2016, Mr Quinn was sentenced to 20 months' imprisonment on the burglary charge but with that were concurrent sentences on two unrelated charges of male assaults female, a7 Mau'u v R [2011] NZCA 385 at [28].charge of theft and for breaches of supervision and community work sentences. The Judge adopted a starting point for the burglary of 20 months' imprisonment,compared to the two years and three months adopted for Mr Lamatoa.[18] The Judge sentenced Mr Lamatoa on the basis Mr Quinn had not become involved until others, including Mr Lamatoa, had previously gone to the address, firstly to check it out and, secondly, when they went back to the property and stole two jet skis. Mr Quinn's involvement was on the third occasion the property was visited when all four offenders entered the house and removed a large amount of property. The damage done included the smashing of a plastic panel on the treadmill, the breaking of the tail off a whale statue and the damaging of a pull-startmechanism on a child's quad bike. Mr Quinn had attempted to remove the Panasonic 55 inch television, cracking the screen. After it was impossible to use thevictim's trailer to transport the buggy, it was driven to a forest area where it was used and then hidden.[19] In finding Mr Lamatoa guilty, the Judge accepted Mr Quinn's evidence thathe had been involved with the burglary only when the buggy was taken and that, after the buggy was left in the forest area, Mr Quinn, with others, had returned to Oamaru. Mr Quinn had not subsequently been involved in retrieving the buggy or trying to sell it. Mr Quinn told the Judge that, as a result of the burglary, all he got was a puffer jacket, the x-box and some alcohol.[20] At Mr Lamatoa's trial, Mr Quinn's credibility over his evidence was challenged on the basis he was resentful of Mr Lamatoa because Mr Quinn got so little out of the burglary. The Judge noted Mr Quinn saying it would have been good if he had got more money but he knew that Mr Lamatoa was to sell what they had got and it did not bother him.[21] As already stated in his sentencing remarks, the Judge noted that Mr Lamatoa was the ring-leader of the offending, the one in-charge and had supervised others.[22] There was thus a rational basis for the difference in starting points adopted for the burglary as between Mr Quinn and Mr Lamatoa.[23] I do not have the sentencing notes for Mr Bell but have been advised by Ms Saunderson-Warner that he was sentenced to six months' community detention, 100 hours' community detention and ordered to pay reparation of $2,150 for the burglary with Mr Lamatoa and others, and on other charges. Ms Saunderson-Warner acknowledged that Mr Bell had no previous convictions for burglary and his sentence was consistent with the tendency for first time burglars to receive community-based sentences. She said that, with the ultimate sentence imposed, there was no imprisonment starting point for Mr Bell but it would implicitly have to be less than the 20 months adopted for Mr Quinn. She submitted that the ultimate sentence imposed on Mr Bell was consistent with his sentencing Judge deciding there were no significant aggravating factors associated with the burglary.[24] Mr Bell gave evidence at Mr Lamatoa's trial. Mr Bell had been present with Mr Lamatoa and Miss Mouatt when they returned on the second occasion to the property and uplifted the jet skis and a generator which were then taken back toOamaru and placed in Mr Bell's garage. Mr Bell had assisted by breaking a chain on the jet skis. Mr Lamatoa and Miss Mouatt went back to Fairlie to collect keys for the jet skis.[25] Mr Bell had also returned to the Fairlie property when they entered the house and took the buggy but said he had no involvement with the buggy after it had been hidden in trees and he had nothing to do with its disposal. The Judge heard evidence that Mr Lamatoa and Mr Bell had sold a generator to someone in Ashburton.[26] With the findings the Judge made at Mr Lamatoa's trial, Mr Bell had not beenpart of the original decision to burgle property from the Fairlie home. He had not been involved in the disposal of the buggy although it had been taken to his home overnight.[27] Mr Lamatoa's involvement in the burglaries was significantly different from that of Mr Quinn and Mr Bell. The Judge was well placed to identify those differences because he presided over the Judge alone trial of Mr Lamatoa, and because the three other offenders all gave evidence at that trial. They gave evidenceas to their involvement but also Mr Lamatoa's involvement. Because of his denial ofthe offending, their credibility as witnesses had to be strongly challenged by MrLamatoa's counsel.[28] The Judge concluded that Mr Lamatoa was in-charge and supervised others. Because of that, this is not a case where the disparity in the sentences imposed will bring the administration of justice into disrepute. The Judge considered both issuesof totality and disparity when imposing the sentence of 30 months' imprisonment. Ihave not been persuaded that a different sentence should have been imposed.[29] The appeal is dismissed.Solicitors:S A Saunderson-Warner, Barrister, DunedinGresson Dorman & Co., Timaru.