WIKAIRA v NEW ZEALAND POLICE [2021] NZHC 3262

WIKAIRA v NEW ZEALAND POLICE [2021] NZHC 3262 [1 December 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-139[2021] NZHC 3262BETWEEN JENNETTE TE AROHA WIKAIRAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 November 2021Appearances: D J Matthews and S-C Kim for AppellantJ E Lancaster for RespondentJudgment: 1 December 2021JUDGMENT OF MANDER JThis judgment was delivered by me on 1 December 2021 at 11.30 ampursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Jennette Wikaira was sentenced by Judge Hix in the Christchurch DistrictCourt on two sets of charges that concerned dishonesty offending. Ms Wikaira wasinitially sentenced to intensive supervision in respect of the first batch of offences butsoon after that sentence was imposed committed further similar offences whichcomprised the second group of charges. An end sentence of 21 months' imprisonmentwas imposed. Ms Wikaira now appeals that sentence.Factual background[2] The first set of charges spans events that occurred between August and October2020. On 10 August, Ms Wikaira shoplifted food items from the New World FendaltonSupermarket valued at $368.95. On 12 October, Ms Wikaira entered The Warehousein Belfast with an associate and shoplifted items of clothing valued at $250. Thisoffending gave rise to two charges of theft (under $500).1[3] On 17 October 2020, Ms Wikaira and an associate entered a Subway restaurantin Temuka. While the associate distracted the person working behind the counter,Ms Wikaira picked up the keys to the cash register that were behind the counter andunsuccessfully attempted to open it. She then went into the kitchen area of therestaurant and stole the shop assistant's cell phone valued at $2,000, and her driver'slicence and debit card before driving away. The victim's debit card was used to makethree separate transactions at a service station to the value of $94.90 and a purchase atanother station to the value of $55. In respect of this offending, Ms Wikaira wascharged with theft (over $1,000),2 and four charges of using a document for pecuniaryadvantage.3[4] On 10 February 2021 Ms Wikaira was sentenced by Judge Hix on thesecharges, together with a further charge of failing to report as directed by a probationofficer in breach of her release conditions,4 to 18 months' intensive supervision withjudicial monitoring.1 Crimes Act 1961, ss 219 and 223(d) – maximum penalty of three months' imprisonment.2 Crimes Act, ss 219 and 223(b) – maximum penalty of seven years' imprisonment.3 Crimes Act, s 228(1)(b) – maximum penalty of seven years' imprisonment.4 Sentencing Act 2002, s 96(1) – maximum penalty of one year's imprisonment or a fine of $2,000.[5] Two days later on 12 February 2021, Ms Wikaira and an associate went toBallantynes department store. Ms Wikaira selected four clothing items valued at $956and attempted to leave the store without paying for them. She was confronted by storesecurity. When the security guard was distracted by her associate, Ms Wikairaattempted to flee the store with the items. However the guard grabbed the clothingfrom Ms Wikaira's hands and a short struggle ensued, during which she tried to punchthe guard. When she was informed the police would be called, Ms Wikaira threw theitems still in her possession at the guard and fled. However, she was followed andsubsequently arrested by the police. She was charged with theft ($500 – $1,000).5[6] When she appeared on this charge on 17 February Ms Wikaira was searchedprior to entering the Court building. Located in her possession was a glass pipe usedfor consuming methamphetamine and a small amount of cannabis. She was alsocharged with breaching her intensive supervision sentence.6 Ms Wikaira was bailedto appear for sentencing on 10 March but failed to appear and a warrant was issuedfor her arrest.[7] In July, Ms Wikaira was finally arrested on the outstanding warrant and sheentered guilty pleas to charges of possession of cannabis7, possession of utensils8 andthe failure to answer District Court bail.9 On 24 August Ms Wikaira pleaded guilty tothe outstanding theft charge and was remanded for sentencing.District Court's sentencing[8] In respect of the resentencing exercise on the first set of charges, Judge Hixcancelled the intensive supervision sentence and adopted a starting point of 15 months'imprisonment. That starting point included an uplift for Ms Wikaira's previousconvictions. Four months' credit was allowed for Ms Wikaira's guilty pleas to thosecharges and a further deduction allowed for personal circumstances (an overall creditof 27 per cent), which resulted in a sentence of 11 months' imprisonment. A further5 Crimes Act, ss 219 and 223(c) – maximum penalty of one year's imprisonment.6 Sentencing Act, s 70A(a) — maximum penalty of six months' imprisonment or a fine of $1,500.7 Misuse of Drugs Act 1975, s 7(1)(a) and (2) – maximum penalty of three months' imprisonmentor a fine of $500.8 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty of one year's imprisonment and/or afine of $500.9 Bail Act 2000, s 38(a) – maximum penalty of one year's imprisonment or a fine of $2,000.charge of breaching release conditions that had run alongside the original charges wasthe subject of a concurrent sentence of one month's imprisonment.[9] In relation to the second set of charges, the Judge took the theft as the leadoffence. After noting the aggravating factor of the attempted assault of the securityguard and the fact Ms Wikaira had been accompanied by another person, Judge Hixtook a starting point of nine months' imprisonment for all the new charges. The Judgeconsidered a "relatively minimum discount" would be appropriate to recogniseMs Wikaira's guilty plea to the theft charge that he considered had been entered at arelatively late stage. Taking into account Ms Wikaira's criminal history, and that herlatest offending occurred whilst she was on bail and subject to a sentence, along withany discount available for the guilty pleas, an overall uplift of one month resulted.[10] The sentence of 10 months' imprisonment on the second set of charges, whencombined with the substitute sentence of 11 months' imprisonment for the originalcharges, made an effective total sentence of 21 months' imprisonment.The appeal[11] Ms Wikaira's appeal is based on two grounds. First, it is submitted that theJudge erred in failing to extend credit for Ms Wikaira's personal background in respectof the second set of charges. It was argued that addiction issues and sexualabuse suffered earlier in her life should have been recognised as a mitigating factor.Mr Matthews, who appeared on behalf of Ms Wikaira, submitted the Judge hadrecognised personal mitigating factors beyond the guilty pleas in respect of the firstset of charges, albeit without articulating the quantum of the guilty plea credit or theextent to which those personal factors were recognised in providing a discount of 27per cent. However, Mr Matthews argued the Judge had failed to do the same in respectof the second set of charges despite such considerations having equal application.[12] Second, Mr Matthews submitted that, while Ms Wikaira's guilty pleas inrespect of the second set of charges, in particular the theft, were not prompt, theyshould have attracted greater recognition. He argued the pleas were entered at the firstcase review hearing, well before any trial. It was submitted credit in the region of 20per cent should have been extended for the guilty pleas. Mr Matthews argued that hadthe Judge followed an orthodox methodology by setting a global starting point andthen adjusting for uplifts and discounts an end sentence of 19 months' imprisonmentshould have resulted.The respondent's argument[13] Ms Lancaster, on behalf of the respondent, emphasised that the focus of theappeal is required to be on whether the end sentence was manifestly excessive and notits component parts.10 It was emphasised an appeal court can only intervene andsubstitute its own views if the sentence is manifestly excessive and not justified by theapplicable sentencing principles.11 Ms Lancaster submitted the Judge had taken MsWikaira's guilty pleas into account in respect of the second tranche of offending whenadopting a combined uplift of only one month after assessing personal aggravatingand mitigating factors. While the Judge had not discussed each separately, it wassubmitted an uplift in the region of three months to recognise both Ms Wikaira'srelevant previous convictions, and that this offending occurred while she was subjectto sentence and on bail was appropriate. A two-month reduction represented a creditof 22 per cent, which it was submitted adequately reflected the timing of the guiltypleas and Ms Wikaira's personal background.Analysis[14] No issue was taken on the appeal in relation to the starting points adopted foreach set of charges nor with the adjustments made regarding the first tranche ofoffending. Essentially Mr Matthews' argument distilled to a submission thatinadequate credit was extended to Ms Wikaira for her guilty pleas and for her personalcircumstances when arriving at the end sentence for the second set of charges.[15] In support of that contended error, Mr Matthews submitted the District CourtJudge had failed to follow the correct sentencing methodology. However, while Iaccept there is some opaqueness in the approach taken by the Judge to the sentencingexercise, regard must be had to the busy nature of the District Court's work and thatultimately, as submitted by Ms Lancaster, the question for the appellate court is10 Tutakangahau v R [2014] NZCA 279, (2014) 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].whether the ultimate sentence imposed was available to the Judge in the exercise ofhis sentencing discretion.[16] Both counsel examined the question of the overall sentence on the basis ofapplying orthodox methodology to the offending as a whole. That exercise in myview, tends to demonstrate that the Judge did not err in arriving at his final sentence.Both Mr Matthews and Ms Lancaster agreed that a 12-month starting point wasappropriate for the charges on which Ms Wikaira was for re-sentence, and that afurther nine months for the most recent charges must result in a legitimate globalstarting point of 21 months. There is a month's disagreement between them as to theappropriate uplift for Ms Wikaira's criminal history (three months versus four months)and in recognition of the fact the subsequent offending occurred while subject tosentence and bail (one month versus two months).[17] I do not consider the higher figures for each uplift can be consideredinappropriate having regard to Ms Wikaira's history of dishonesty and consistentpattern of non-compliance with court orders, which is aggravated by her immediatelyre-offending only a matter of days after the Court had imposed a sentence of intensivesupervision. Both counsel are agreed on an overall credit of 20 per cent forMs Wikaira's guilty plea. That might be thought generous given Ms Wikaira's failureto appear on the theft charge and the subsequent four-month hiatus before she was re-arrested. Counsel were also agreed that a further seven per cent reduction forMs Wikaira's disadvantaged background and history of addiction would beappropriate. This analysis results in the same sentence that was imposed by Judge Hixof 21 months' imprisonment.Decision[18] I accept Mr Matthews' submissions that an alteration of 10 per cent is sufficientto found a successful appeal and does not amount to tinkering.12 However in thecircumstances of the present case I am satisfied the ultimate sentence imposed was notmanifestly excessive. It follows that the appeal must fail.12 See Milne v Police [2020] NZHC 358 at [35].Result[19] The appeal is dismissed.Mander JSolicitors:Crown Solicitor, ChristchurchCopy to:Donald Matthews, Barrister, Christchurch