HARRISON v POLICE [2016] NZHC 126

HARRISON v POLICE [2016] NZHC 126 [10 February 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2015-419-000045/46[2016] NZHC 126BETWEEN RAHUIA HARRISONPlaintiffAND NEW ZEALAND POLICERespondentHearing: 4 February 2016Appearances: G A Walsh for AppellantT A Needham for RespondentJudgment: 10 February 2016JUDGMENT OF KEANE JThis judgment was delivered by me on 10 February 2016 at 4pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Hamilton[1] On 27 October 2015 Rahuia Harrison was sentenced in the District Court, Hamilton, to imprisonment for four years, two months, for 89 property offences, committed in four phases between May 2014 – January 2015.[2] In imposing that sentence Judge R L B Spear took a two year starting point for Ms Harrison's primary initial offence; a representative charge of burglary during the first phase of that offending, between 22 May – 26 July 2014, reflecting five distinct offences. In each of those five instances Ms Harrison went into the private areas of shops, sometimes relying on others to distract the staff, intent on taking cash and credit cards from the staff's handbags and wallets.[3] The Judge took a cumulative three year starting point for the balance of MsHarrison's offending (four related theft offences, 13 receiving offences, and 72 offences of dishonestly using a document, the credit cards Ms Harrison stole or received), which he reduced to two years to accord with the principle of totality. His cumulative starting point for her total offending became, therefore, four years.[4] The Judge increased that starting point by 12 months (20%) to mark MsHarrison's very extensive previous convictions for indistinguishable offending and by a further six months (9%) because she had committed all of her offences, after those in the first phase, while on EM bail. He reduced that heightened starting point, five years, six months, by seven months (10.6%) for her participation in a restorative justice conference, and by a further nine months (15.25%) on account of her plea.[5] On this appeal against her sentence, Ms Harrison contends that the Judge'sstarting point for the representative burglary offence was excessive. Her five offences within that offence were not, she contends, to be equated with house burglaries, as the Judge, she says, apparently assumed. They were not as invasive. Nor did they involve any equivalent risk to occupants. His starting point for that representative offence ought not to have been more than 18 months.[6] Ms Harrison does not challenge, as such, the Judge's reduced two yearstarting point for her remaining offences. She accepted on the appeal that her offending as a whole might have warranted a total starting point of three years, sixmonths. She does contend that the Judge's initial three year starting point for that remaining offending was excessive.[7] Those are the issues on this appeal. Ms Harrison does not contend that her cumulative sentence was wrong in principle. Nor does she challenge the two uplifts the Judge made, expressed as they are in months as opposed to percentages. She relies on the discounts he then made reducing her final sentence.Principles of law[8] This appeal lies under s 250 of the Criminal Procedure Act 2011 and the issueis, as it has always been, whether the sentence imposed was "manifestly excessive", in the sense that it could not "be properly justified by accepted sentencing principles".1[9] The ultimate issue, under s 85 of the Sentencing Act 2002, is whether the total sentence the Judge imposed was excessive. Did the individual sentences he imposed reflect the seriousness of each offence?2 Was the total sentence he imposedproportionate to "the gravity of (her) overall offending"; or "wholly out of proportion"?3[10] The threshold issue is whether the starting point the Judge adopted for each offence was one which, as the sentencing principles set out in s 8(a) required,appropriately reflected "the intrinsic seriousness of the offending";4 that is to say"the gravity of the offending, including any mitigating or aggravating factors relatingto the offence".5[11] An allied issue is whether those starting points were, as the sentencing principle set out in s 8(e) prescribes, generally consistent with those taken in othercases "in respect of similar offenders committing similar offences in similarcircumstances". As counsel agreed, there are no sentencing decisions, whether at1 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] – [36].2 Sentencing Act 2002, s 85(1).3 Section 85(2).4 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [14].5 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].first instance or on appeal, which involve the precise combination of offences in issue on this appeal.[12] That singularity in itself is unremarkable. As the Court of Appeal said inVarjan v R, "the circumstances of, and culpability in, offences of dishonesty vary widely";6 and that, therefore, means that culpability must be assessed widely and in the round:7Culpability is to be assessed by reference to the circumstances and suchfactors as the nature of the offending, its magnitude and sophistication; thetype, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which theoffending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[13] The corollary is that the amount obtained by offending, which is often fortuitous, is only one measure. As the Court confirmed in Rako v R:8Culpability is not to be measured solely or even primarily by reference to theamount at issue. Other aggravating factors are relevant. In particular themultiplicity of offending, its duration, the degree of premeditation, thevulnerability of the victim and breach of trust. A composite evaluation isrequired.[14] Once those starting points for Ms Harrison's individual offences are securely established, the ultimate issue with which this appeal is concerned recurs. To what extent, if at all, should those starting points be discounted, insofar as they are to be imposed cumulatively, to ensure that the total resulting starting point is proportionate to Ms Harrison's total offending.[15] A significant discount may not be called for and may be wrong in principle. As the Court of Appeal said in R v Hoy:9It needs to be remembered that the application of the totality principle doesnot equate to giving a "discount for bulk offending". Depending on thenature and extent of the offending a proper sentencing approach to the overall seriousness of the particular crimes might, and often does, require a sterner sentence.6 Varjan v R CA97/03, 26 June 2003 at [21].7 At [22].8 Rako v R [2015] NZCA 463 at [10].9 R v Hoy CA63/02, 23 July 2002 at [7]; Hayward v R [2015] NZCA 551.Starting point - burglary[16] In taking a two year starting point for the representative burglary offence, the Judge regarded it as aggravating that Ms Harrison had five times within a two month span entered the backs of shops, mostly through closed doors, intent on the staff'scash and credit cards. This was, he said, persistent, invasive and dishonest offending.[17] On this appeal Ms Harrison does not dispute that appraisal of these offences. She contends rather that in the starting point the Judge took he effectively equated them with five house burglaries and they were not in that more grave and invasive category.[18] Moreover, she contends, even if these offences were of that more serious order, the starting point the Judge took was still too high. In this she relies as a benchmark on Hale v Police, where Lang J upheld a 12 – 14 month starting point for four burglaries involving theft of property worth $20,000, though considered that those offences warranted an 18 month starting point.10[19] The Judge's starting point does, as the respondent contends, lie within therange identified by the Court of Appeal in Arahanga v R, for house burglaries at the minor end of the scale, 18 months – two years, six months. However, that cannot apply wholly literally. As the Court said, while there is no tariff for house burglaries, because they differ so widely, they share this significant aggravating feature, "the heightened risk of confrontation with the occupants".11[20] I discussed with counsel three other sentencing decisions, where properties and sites had been entered dishonestly and theft had occurred, and where as here there was no great risk of confrontation. In two the starting point lay between 12 –18 months.12 In the third it was two years, two months.13 But they are not,otherwise, comparable with this case and Ms Harrison's burglaries must be assessedin their own terms.10 Hale v Police [2012] NZHC 1708.11 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNA 63, at [78].12 R v Stevens [2009] NZCA 190 at [14]; Ware v Crown Law Office [2015] NZHC 704 at [10].13 Gage v R [2014] NZCA 140 at [14].[21] When Ms Harrison went into the backs of the shops on the five occasions, that may have been during ordinary trading hours and there may have been no great risk to the staff. More than once she relied on others to distract the staff. Her criminality was aggravated rather in the two ways the Judge identified.[22] First, she was invasive. Each time she entered the private area of the premises in which staff were entitled to assume that their belongings were secure. The sense of insecurity they suffered together with the inconvenience, if not loss, her offending caused them was made all too plain to her by some of the victims at the restorative justice conference. Secondly, she offended persistently and on a significant scale.[23] That said, the starting point the Judge was obliged to take for these burglariescould not give primary emphasis to Ms Harrison's purpose, or those deleterious effects on the staff, because they aggravated equally the balance of her offending for which she was to receive a distinct and cumulative sentence. The Judge had to be careful not to double count.[24] That being so, I conclude that the two year starting point the Judge took for the representative burglary offence was disproportionate and, in assessing MsHarrison's sentence in totality, will assume that an 18 month starting point was proper.Starting point –related offences[25] There are two issues relating to the two year uplift the Judge then made forthe balance of Ms Harrison's offending. Did they, standing alone, each warrant a three year starting point? Did the totality principle require that starting point to be reduced to two years?[26] These issues must be set against the reality that the starting point proper was for 89 offences committed in four concerted phases. In the first phase, between 22 May – 29 July 2014, when she committed the five burglaries, she obtained $9,905 and only stopped when apprehended. Then, after she was granted EM bail, she offended again on 9 October 2014 ($2,300), between 30 December 2014 – 12January 2015 ($4,363) and, finally, between 16 – 26 January 2015 ($9,716). In all she obtained $26,284 and, if all her credit card transactions had succeeded, she might have obtained goods worth in excess of $40,000.[27] Despite that, Ms Harrison contends that set against her actual gain, $26,284, any starting point in excess of two years has to be disproportionate. In this she relies on two cases involving offending in which the gains made were of the same order:Vea v R,14 $27,450, and Silcock v R,15 $26,765. By way of contrast, she also relies on Guinness v Police,16 where there was a $350,000 defalcation, and the end sentence was two years, six months.[28] These three cases do not assist Ms Harrison. The only parallel between this case and Vea and Silcock lies in the order of gain made. In Guinness the prison term imposed did not stand alone. There was also a $300,000 reparation order, which was indeed the sole subject of the appeal. The only comparable cases are those on which the respondent relies, which concern principally, if not entirely, credit card fraud.[29] In Puna v R Ms Puna and her co-offender, Mr Paki, used bank and retail cards, taken from a wallet he stole from a woman in a shopping centre, 44 times within the next fortnight, and obtained property and cash to a value of $10,690.17The Court of Appeal held that the Judge must have taken a two year starting point for Mr Paki, the primary offender, who had used the card 26 times. Relatively, the Court held, the starting point for Ms Puna, who had used the card 14 times, ought to have been 15 months.[30] In Tiopira v Police a 27 month sentence from a starting point of 30 months was upheld on appeal in this Court for 33 credit card offences, on four occasions over 14 days, as a result of which money or goods obtained came to $11,606.21.18Lang J considered that, where offending results in losses around $2,000 - $3,000, a 12 – 18 month starting point may well be proportionate.14 Vea v R [2014] NZHC 1959.15 Silcock v R [2014] NZHC 1515.16 Guiness v Police [2015] NZHC 883.17 Puna v R [2010] NZCA 572.18 Tiopira v Police [2012] NZHC 1720.[31] Finally, in Howard v Police the appellant, the ringleader of a group of women who over nine months stole cash and credit cards, and who herself obtained goods or cash of the order of $63,000, was sentenced to imprisonment for three years, six months. She appealed her minimum term. Harrison J held that the starting point taken for her, three and a half years, before adjustment, could have been significantly higher.19[32] Finally, in Rako v R,20 where an 18 month starting point was taken on sentence for 11 credit card offences, the Court of Appeal, after reviewing an array of cases, including Tiopira, involving between four – 33 offences and starting points between 12 – 18 months, held that on the "composite evaluation" called for higher starting points could have been taken in all but Tiopira.21[33] Ms Harrison's offending sits well above the offending in Rako, and in all the cases reviewed except Howard, and would have justified the Judge taking a starting point for that offending, standing alone, in excess of three years. Also, I consider, he allowed Ms Harrison a larger discount on the totality principle than was called for. He could certainly have taken a starting point of two and a half years.Outcome[34] In the result, I conclude that the Judge's total starting point was proportionateto her entire offending. It was certainly not "out of all proportion". That being so,and there being no challenge to the balance of Ms Harrison's sentence, I dismiss herappeal._____________P.J. Keane J19 Howard v Police HC Auckland CRI-2007-404-188, 10 March 2008.20 Rako v R [2015] NZCA 463.21 At [10].