Riini v New Zealand Police [2016] NZHC 2218

Riini v New Zealand Police [2016] NZHC 2218 [19 September 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-252[2016] NZHC 2218BETWEEN ORLANDO RIINIAppellantAND NEW ZEALAND POLICERespondentHearing: 19 September 2016Appearances: CF Dunne for AppellantAL McConachy for RespondentJudgment: 19 September 2016ORAL JUDGMENT OF TOOGOOD J[1] On 14 July 2016, Judge E P Paul in the District Court at Waitakere sentencedMr Orlando Riini to a total of two years and three months' imprisonment for avariety of offences, including serious thefts.1 Mr Riini now appeals against his sentence.[2] The offences involved were three charges of theft,2 one charge of shoplifting (under $500),3 four charges of unlawfully taking a motor vehicle,4 one charge of unlawfully getting into a motor vehicle5 and two charges of intentional damage.6Facts[3] The various instances of offending were as follows:(a) On 18 August 2015, at around 11:15 am, Mr Riini entered Onehunga Jewellers in Onehunga and asked to try on a watch valued at $450. He immediately left the shop without paying for the watch. This led to a charge of shoplifting.(b) On the night of the 24/25 August 2015, Mr Riini took a Mazda motor vehicle parked outside a home in Morningside, Auckland. That led to a charge of unlawfully taking a motor vehicle.(c) On 29 August 2015 at 4:11 pm, Mr Riini entered Michael Hill Jewellers in Takapuna disguised in a balaclava and armed with a claw hammer. He smashed the glass tops of two display cabinets and took multiple items of jewellery with a total value of $15,000.00. The jewellery has not been recovered. He fled the shop in a silver Mazda Atenza which was driven by an unknown person. The Mazda had been stolen from an address in Sandringham the previous day. This1 Riini v Police [2016] NZDC 13173.2 Crimes Act 1961, s 219(1)(a); maximum penalty, seven years' imprisonment.3 Crimes Act, s 219 and 223(d); maximum penalty, three months' imprisonment.4 Crimes Act, s 226(1); maximum penalty, seven years' imprisonment.5 Crimes Act, s 226; maximum penalty, seven years' imprisonment.6 Crimes Act, s 269(2)(a); maximum penalty, seven years' imprisonment.led to charges of theft, causing intentional damage, and unlawfully taking a motor vehicle.(d) On the night of 14/15 September 2015, Mr Riini took a Mitsubishi motor vehicle parked outside a home in Avondale, Auckland. For that he was charged with unlawfully taking a motor vehicle.(e) During the day of 16 September 2015, Mr Riini took a Mazda Atenza motor vehicle parked outside a work address in Mt Wellington. He was charged with unlawfully getting into a motor vehicle.(f) At 8.10 pm on 17 September 2015, Mr Riini entered a Vodafone shop in New Lynn, Auckland. He approached a table, on which sat two Samsung S6 display model phones, secured by cables. The phones had a total value of $2,400. He ripped the phones from the table, breaking the cables, and left the shop. For this, Mr Riini was charged with theft.(g) Last, at 11.50 am on 27 September 2015, an offender entered Michael Hill Jewellers in Westgate disguised in a balaclava and armed with a claw hammer. He smashed the glass tops of two display cabinets and took multiple items of jewellery valued at between $50,000 and $60,000. The offender then exited the store and fled in a yellow Mazda Atenza which the Police accept was driven by Mr Riini. The car had been stolen from an address in Grey Lynn the previous day. Mr Riini was charged with being a party to the theft, causing intentional damage, and with unlawfully taking a motor vehicle. He was charged as a party only because there was insufficient evidence to prove that he was actually in the shop, but the part he played in the offending made him equally culpable, as with the earlier offending of the same kind, as his co-offender.[4] Mr Riini pleaded guilty to all these charges. He was also sentenced for breaching his parole in August 2015. He had been a resident at Odyssey House,subject to electronic monitoring conditions, but had removed his bracelet and left the facility.Sentencing[5] After outlining the facts of the offending, Judge Paul considered the pre- sentence report, which had recommended a term of imprisonment. The Judge notedthat Mr Riini's counsel had acknowledged that the thefts from the Michael Hillstores were serious, although he considered counsel's submission requesting an end sentence of 19 months' imprisonment (which could then be converted to homedetention if the Court was so disposed) to be optimistic.[6] The Judge took an overall global starting point of three years' imprisonment.This was on account of the fact that there was significant loss involved, and that the Michael Hill thefts came very close to being robberies given there was disguises involved, a claw hammer was used on each occasion, and it was during the day when the public may have been present. Certainly shop assistants would have been in attendance.[7] The Judge uplifted the starting point by three months on account of Mr Riini's previous convictions. A discount of 10 per cent was then applied onaccount of Mr Riini's youth (he is now aged 23 years), and his personal circumstances. The Judge also applied a 20 per cent discount for Mr Riini's guiltypleas. This led to a total effective end sentence of two years and three months'imprisonment.[8] The individual sentences, ordered to be served concurrently were:(a) On the theft charges: two years and three months' imprisonment;(b) On the charge of theft or shoplifting of the mobile phones: one year imprisonment;77 Counsel for Mr Riini notes that in the "wash-up", this sentence has since been recorded as three months' imprisonment.(c) On the intentional damage charges: one year imprisonment;(d) On the charge of shoplifting the watch: one month of imprisonment;(e) On the charges of unlawfully taking motor vehicles: one year's imprisonment; and(f) On the charge of unlawfully entering a motor vehicle: six months'imprisonment.Approach on appeal[9] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.In any other case, the Court must dismiss the appeal.8[10] The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The Court of Appeal also held that despite s 250 making no reference to sentences being "manifestly excessive", the principle is "well-engrained" in the Court's approach to sentenceappeals.9 This is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.10Appellant's submissions[11] Mr Riini appeals his sentence on two grounds:8 Criminal Procedure Act 2011, s 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].10 Ripia v R [2011] NZCA 101 at [15].(a) That the sentencing Judge did not apply the principles of parity andconsistency when comparing Mr Riini's end sentence with thatimposed on his co-offender, Mr McLaughlin, by another judge; and(b) That the starting point was manifestly excessive and out of line with authority.I begin by considering whether the starting point and end sentences imposed were excessive.DiscussionWas the starting point excessive?[12] Mr Dunne has submitted that the starting point for Mr Riini's sentence wasmanifestly excessive. He relies on three cases to support this submission:(a) In McKee v Police,11 the appellant was convicted of various offences including burglary, taking a car, and two counts of theft. The theft convictions arose after the appellant had broken into cars and stolen electronic items inside. The burglary, which was the lead offence, involved the appellant entering a residential property while the occupants were away, although it appears nothing was taken. Onappeal the Judge adopted a starting point of 12 months' imprisonmentfor the burglary, before uplifting it by another 12 months for the other offences.(b) In Barakat v Police,12 the appellant was sentenced on six charges of theft after various instances of shoplifting in the lower North Island; one charge of burglary after taking over $2,500 worth of items from a property during daylight; threatening to injure and breaching release conditions. On appeal, the High Court adopted a starting point of11 McKee v Police [2012] NZHC 2684.12 Barakat v Police [2012] NZHC 1671.18 months' imprisonment on the lead charge of burglary, and upliftedthat by nine months to reflect the totality of the other offending.(c) Murray v Police13 involved an appeal against sentence on five representative charges of using a document for dishonest purposes. The appellant had obtained $174,633.00 by fraud through various unauthorised transactions involving credit cards, as well as through dishonest cheques and failing to deliver promised goods and services. On appeal, the High Court did not disturb the original starting point oftwo and a half years' imprisonment.[13] I do not find these cases to be particularly helpful. As the Crown has noted, the thefts for which Mr Riini was convicted had considerably more aggravating factors than those in McKee, Barakat and Murray. The thefts of the Michael Hill stores were premeditated; they involved the use of disguises and claw hammers; the property stolen was valuable and it has not been recovered; serious damage to property was caused; and members of the public were present and vulnerable.[14] The maximum penalty for theft of items over $1,000 is seven years'imprisonment. There is no tariff or guideline judgment for theft; the circumstances of that type of offending, like burglary, being infinitely various. Starting points are commonly determined by reference to the value of the items stolen and any aggravating factors. Mr Riini was directly involved in taking goods valued at a total of over $17,000, and was a party to the theft of goods valued at more than $50,000. This was sophisticated, premeditated offending and the thefts were of a kind which is far too prevalent. Raids on retail premises by offenders armed with weapons, which can cause serious or even fatal harm to shopkeepers and bystanders, should rightly attract sentences which express public condemnation and the need for deterrence and the protection of the public. Although the potential for serious harm existed, however, I acknowledge that there was no actual violence to persons in either of the theft cases. Those present, however, would have been seriously frightened by the incident.13 Murray v Police [2015] NZHC 1956.[15] Considering the aggravating factors I have mentioned, and the starting points applied in other theft cases,14 I regard a starting point of two years' imprisonment asbeing at the lowest end of the available sentencing range for the theft charges alone.In my view, a starting point of three years' imprisonment for the thefts could nothave been criticised. Unlike the District Court Judge, I consider the starting point of three and a half years suggested by the Police would have been within, albeit at the top, of the available range.[16] Mr Riini's conviction on the charges of motor vehicle conversiondemonstrates the premeditated approach to the offending, given that similar vehicles were targeted and taken in each instance over a period of five weeks. Appellatecases indicate that starting points of around 12 months' imprisonment are availablein instances of motor vehicle conversion.15 Considering those charges alongside the serious thefts, but bearing in mind totality principles, an uplift of 12 months'imprisonment was available to reflect the nature of the offending overall.[17] Moreover, a further uplift was necessary to mark the additional need for deterrence, given Mr Riini's record of previous convictions for burglary and otherproperty offences. The three-month uplift added by Judge Paul was the least that was appropriate.[18] The approach I have outlined would have brought the total starting point to alevel significantly higher than the three years' imprisonment adopted in the District Court.[19] Mr Dunne has not challenged the discounts adopted by the Judge. The 20 per cent discount for the guilty pleas was appropriate, but I do not consider a discount for youth was properly available in this case. At the time of the offending14 In Torbarina v Police [2014] NZHC 3221, a starting point of 18 months' imprisonment was heldto be in range on three charges of theft of goods valued at a total of $3,174. This, however, alsotook into account the appellant's 50 previous convictions.In Colman v Police [2014] NZHC 3215, a starting point of 14 months' imprisonment wasadopted for theft of perfumes from a department store totalling $1580.In Cooper v Police [2015] NZHC 2955, a starting point of 15 months' imprisonment was upheldfor the shoplifting of items from Macpac and Countdown stores, with a total value of $6,300.15 Duxfield v Police [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065; Kushell v Police[2012] NZHC 2380.Mr Riini was 22 years old; he was 23 when sentenced. The evidence had none of the hall marks of youthful impetuosity or flawed judgment which characterises cases where an allowance for youth is appropriate.16 Mr Dunne has referred to the fact that the co-offender for the Westgate offending was 48 years old and invites the possible inference that Mr Riini may have been under his influence. There is no evidence of that, however.[20] And Mr Riini cannot claim to have been impeded by his age from understanding the consequences of his actions. His long history of escalating criminal behaviour began with thefts from vehicles, burglaries and wilful damage in 2009 and 2010, committed when he was 16 years old. Failing to learn from the community-based sentences then imposed, Mr Riini graduated to a sentence of 15 months' imprisonment for three burglaries committed in November 2010, and he was sentenced in September 2011 to four years three months' imprisonment forwounding with intent to injure, an offence committed only a month after the 2010 burglaries. He cannot have been long out of prison before he began the further property offending which has led to this appeal.[21] I have referred to the need for deterrent sentences to counteract the prevalence of thefts from retail premises where offenders are armed with offensive weapons. Granting a youth discount to a 23-year-old repeat offender who had committed such offences was not warranted.[22] I do not criticise the Judge's recognition of Mr Riini's personalcircumstances. He lacks family support and was not well served by the education system, claiming to have left school from the third form. He has taken steps to address his problems with drugs and alcohol and is supported in that by Odyssey House. He has offered participation in a restorative justice process. Even allowingfor those factors, however, the Judge's end sentence was lenient.16 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.Should the sentence be adjusted to account for disparity?[23] Mr Riini's co-accused, Mr McLaughlin, was sentenced by Judge D G Mather in the District Court at Waitakere on the following charges:(a) First, theft, unlawfully taking a motor vehicle, dangerous driving and failing to stop, all as a party to the theft at the Westgate Michael Hill on 27 September 2015; and(b) Second, receiving stolen registration plates, labels and a battery.[24] Judge Mather adopted a starting point of 12 months' imprisonment forMr McLaughlin being a party in the Westgate theft. He uplifted this by a further three months for the charges of receiving stolen goods. Mr McLaughlin ultimatelyreceived a sentence of six months' home detention after other mitigating factors weretaken into account. It is apparent that both Mr McLaughlin and Mr Riini were treated by the respective sentencing judges as the get-away driver in the Westgate offending, although in the circumstances it is doubtful that the particular roles undertaken contributed significantly to the sentencing approach. Given the nature of the offending, they were equally culpable whatever part each actually played.[25] The Court will only intervene to correct a disparity in sentences when, afterall of the surrounding circumstances are taken into account, the disparity "appears to be unjustifiable and gross".17 I do not accept that there is an unjustifiable disparity between Mr McLaughlin and Mr Riini's sentences so as to warrant appellateinterference. Apart from anything else, Mr McLaughlin does not have the same kind of offending history as the present appellant.[26] Judge Paul adopted a global starting point of three years' imprisonment for allof Mr Riini's charges. I have said that was available to the Judge but, given thepremeditated and determined nature of the theft offending; the sinister implications of offending while in possession of a hammer; putting innocent persons at risk of serious injury; and the value of the property taken but not recovered, a higher17 R v Rameka [1973] 2 NZLR 592 (CA) at 594; R v Lawson [1982] 2 NZLR 219 (CA) at 222.starting point could have been taken. Moreover, Mr McLaughlin was convicted of only one of the two similar thefts for which Mr Riini was convicted. The starting point also incorporated Mr Riini's multiple offences relating to the unlawful takingof motor vehicles. When the other offending which contributed to the starting pointadopted for Mr Riini is taken into account, the difference between Mr McLaughlin'ssentences and his is both reasonable and justifiable. There is no basis for appellate interference on the basis of disparity.Result[27] Mr Riini received a lenient sentence which might have been increased on appeal if the respondent had asked for it.18[28] I dismiss the appeal.............................................. Toogood J18 Criminal Procedure Act, s 246.