WAENGA v POLICE [2016] NZHC 1712

WAENGA v POLICE [2016] NZHC 1712 [27 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000170[2016] NZHC 1712IN THE MATTER OF an appeal against sentenceBETWEEN RAWIRI HOIRANGI WAENGAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2016Counsel: P T Eastwood for the AppellantS R Norrie for the RespondentJudgment: 27 July 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 27 July 2016 at 10.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: P T Eastwood, AucklandSolicitors: Kayes Fletcher Walker Limited, AucklandIntroduction[1] Mr Waenga appeals his sentence of two years, six months' imprisonment on anumber of charges, the most serious being burglary and dishonestly using a document. He appeals on the grounds that a 15 month uplift from the starting point adopted for the lead offence for the other offending and prior convictions resulted in an end sentence that was manifestly excessive. He also submits that the Judge should have given a greater discount for personal mitigating factors.Facts[2] Mr Waenga pleaded guilty to the following offences:(a) Breach of home detention;1(b) Burglary;2(c) Dishonestly using a document;3(d) Possessing instruments for conversion;4 and(e) Two charges of unlawfully being in an enclosed yard.5[3] On 17 January 2015, Mr Waenga was serving a seven months' homedetention sentence for three charges of burglary. His probation officers were advised that his anklet had been tampered with and subsequent enquiries confirmed he was not at his home address.[4] The burglary charge arises out of offending committed on 14 February 2015 at a business address in Manukau. Mr Waenga and two associates went to that address at approximately 4.20 am in the morning and stole 10 sets of mag wheels1 Sentencing Act 2002, s 80S. Maximum penalty $2,000 fine or one year imprisonment.2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.3 Crimes Act 1961, s 228(1)(b). Maximum penalty seven years' imprisonment.4 Crimes Act 1961, s 227. Maximum penalty 12 months' imprisonment.5 Summary Offences Act 1981, s 29. Maximum penalty three months' imprisonment or $2,000fine.and a 48 inch Panasonic Smart TV. The value of goods stolen was estimated to be $20,000.[5] The offending giving rise to the charge of dishonestly using a document occurred on 17 March 2015. Mr Waenga entered a petrol station and made two purchases using a stolen Visa card. A short time later Mr Waenga made a further purchase at another petrol station. The three purchases totalled $115.10.[6] Finally, the possessing the instruments for conversion and unlawfully on a property charges relate to offending on the evening of 18 March 2015. At about 8.40 pm that evening, the first victim was asleep in the garage at his property. He awoke to see Mr Waenga hiding in the corner of the garage. He told Mr Waenga to get out. Mr Waenga left, leaving behind a black sports bag which contained screwdrivers, a pair of bolt cutters and two pairs of pliers. At about 8.46 pm that night Mr Waenga was located hiding under the house at another address belonging to the second victim.District Court sentencing[7] The District Court Judge took the charge of burglary as the lead offence. Headopted a starting point of 24 months' imprisonment for that lead offence. He then uplifted that starting point by 15 months to reflect the other offending, and Mr Waenga's 12 previous burglary convictions. (Although the Judge referred to 12previous burglary convictions, there were in fact 15 together with 53 other previous dishonesty convictions). That took the overall starting point to 39 months'imprisonment.[8] The Judge then gave a nine month reduction for Mr Waenga's guilty plea and steps taken whilst on remand, leading to an end sentence of two years, six months'imprisonment.[9] The end sentence was made up of:(a) A sentence of two years' imprisonment on the burglary charge;(b) A cumulative sentence of six months' imprisonment for the charges ofusing a document and breach of home detention; and(c) Two month concurrent sentences for the remaining charges.[10] The Judge also cancelled the existing sentence of home detention.Approach on appeal[11] Section 250(2) of the Criminal Procedure Act 2011 provides that 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.[12] In any other case, the Court must dismiss the appeal.6 The Court will rarely intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The Court of Appeal has also held that despite s 250making no express reference to "manifestly excessive", this principle is "well-engrained" in the Court's approach to sentence appeals.7 Whether an end sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.8Starting point[13] Counsel for Mr Waenga submits that the starting point of two years appears to have been adopted as if Mr Waenga was a recidivist burglar. He says that the further uplift for previous convictions has therefore resulted in a double counting of these convictions.6 Criminal Procedure Act 2011, s 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].8 Ripia v R [2011] NZCA 101 at [15].[14] I accept that the reference to Mr Waenga's prior convictions at an early stagein the sentencing process, and the global discount given for the other offending and prior convictions, leads to a suspicion that the prior convictions may have been taken into account twice. I have therefore considered the appropriate starting point and uplift to ascertain whether or not there was a material error which vitiates the end sentence.[15] There is no tariff case for burglary as the circumstances in which the offence may be committed are varied.9 In Crawford v Police, Wylie J observed that the factors relevant to assessing the criminality of a particular burglary included:10[29] the degree of planning and sophistication, the nature of thepremises entered, the kind and value of the property stolen, the damage done, the potential impact upon occupants or owners of the property, and the extent of the offending where multiple burglaries are involved. Comparable cases [where] the courts have focussed on the circumstances of the offending can provide guidance in setting the appropriate starting point.(footnotes omitted)[16] A starting point of two years and 10 months' imprisonment for threeburglaries, various charges of obtaining by deception and dishonest use of documents was upheld in that case.11[17] In R v Stevens, the Court of Appeal noted that a starting point of no more than 18 months was appropriate for a burglary charge where the value of the property taken was $350.12 The defendant in that case had gone to commercial premises which he used to clean, used a key he had to enter the premises, deactivated the security system and taken copper piping from the walls.[18] In Gage v R, the defendant was convicted of a charge of burglary.13 The defendant in that case had acted with three associates in gaining entry to a Dick Smith Electronics store and taking property valued at approximately $45,000.9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].10 Crawford v Police [2015] NZHC 3262.11 At [33].12 R v Stevens [2009] NZCA 190.13 Gage v R [2014] NZCA 140.The Court of Appeal confirmed that the starting point of two years and two months'imprisonment was well within range for the burglary alone.[19] In this case the burglary was committed under cover of darkness in the early hours of the morning, there was an element of pre-meditation, and it involved a forced entry. The total value of the property taken was $20,000. Although it was towards the higher end of the range, I consider the two year starting point adopted by the Judge was appropriate for a stand-alone offence irrespective of the circumstances of this case.Uplift[20] Counsel for Mr Waenga submits that an uplift of 15 months was excessive. As the Judge has not isolated the separate uplifts allowed for the other offences as opposed to the prior convictions, I have again considered what might be the appropriate uplift in the circumstances of this case.[21] After the burglary, the next most serious offence is that of dishonestly using adocument. That carries a maximum penalty of seven years' imprisonment. Thevalue of the purchases by Mr Waenga totals $115.10. That factor suggests a modest uplift of one to two months for this offending would be appropriate.[22] The breach of the home detention offence involved cutting off an electronic bracelet and leaving the address. All other offending occurred while in breach of that home detention sentence. Crown counsel notes that Mr Waenga was on bail for other charges at the time the lead burglary offence was committed. This was not included in the uplift applied by the sentencing Judge. The commission of offences whilst on bail, and in breach of a home detention sentence, increases the gravity of the offending in my view. Counsel for Mr Waenga submits that he had all but completed his home detention sentence. But that does not reduce his culpability in my view. That factor was accommodated in the decision of the Judge to cancel that home detention sentence.[23] The other offending forms part of a pattern of offending as being in an enclosed yard, and possession of instruments for conversion, suggest that Mr Waenga was preparing to commit a further burglary.[24] Overall I consider an uplift of four to five months for Mr Waenga's otheroffending would be within range.[25] I now turn to the uplift for previous convictions. Such an uplift must be proportionate to the starting point and caution must be exercised to ensure that the offender is not re-punished for prior wrongdoing.14[26] In Moeroa v Police, I reviewed relevant recent authorities on appropriate uplifts for prior convictions as follows:15[26] In Blissett v Police, Duffy J adopted a 12 month uplift for a total of 20 previous burglary convictions, and in Johnstone v Police, a 12 month uplift was adopted for 26 previous convictions for burglary, although Woolford J stated that an uplift of 12 to 18 months imprisonment could have been appropriate in the circumstances. In King v Police, an uplift of 12 months was imposed for 45 previous convictions for burglary, and 14 other relevant dishonesty convictions.[27] On the basis of those authorities I considered an uplift of 12 months imprisonment for over 70 prior convictions, 31 of which related to burglary, spanning a 20 year period, was appropriate in that case.[28] In this case Mr Waenga has 71 previous convictions including 15 convictions for burglary, and 53 convictions for dishonesty offences. Those convictions span an 11 year period. In light of the cases canvassed above, I consider an uplift of 10 to 11 months for prior convictions would be towards the higher end, but nevertheless well within, the appropriate range.[29] It follows that I do not consider there to be a material error in the starting point or uplift applied by the Judge in setting the sentence.14 Tiplady-Koroheke v R [2012] NZCA 477 at [23]–[24].15 Moeroa v Police [2015] NZHC 2226.Mitigating factors[30] Mr Waenga's counsel submits that further credit should have been given forcompletion of courses and other personal mitigating factors.[31] The nine month deduction given by the Judge included a discount for steps taken on remand. I am not persuaded that this was in error or has led to an end sentence which is manifestly excessive.End sentence[32] The overall sentence of two years, six months is not outside the available range in my view. There is no material error which would justify this Court substituting a different sentence for that imposed in the District Court.Result[33] The appeal is dismissed.___________________Edwards J