NIKORA v NEW ZEALAND POLICE [2020] NZHC 2013

NIKORA v NEW ZEALAND POLICE [2020] NZHC 2013 [10 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-205[2020] NZHC 2013BETWEEN VANESSA PAMELA NIKORAAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2020Appearances: G P Timms for the appellantD B Dow for the respondentJudgment: 10 August 2020ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:G P Timms, Barrister, AucklandMeredith Connell, Crown Solicitor, Auckland[1] Vanessa Pamela Nikora appeals against her 24 months' imprisonment sentenceon her guilty pleas to various theft and dishonesty-related charges, imposed by JudgePJB Winter in the District Court at Auckland on 26 May 2020.1 These include twocharges of theft (under $500),2 one charge of theft ($500–$1,000),3 five charges ofusing a document for pecuniary advantage,4 and one charge of burglary (under $500).5The last is the lead offending.Background[2] The charges on which Ms Nikora was convicted and sentenced arose fromoffending in March, July and September 2019, notably using victims' bank and creditcards to obtain cash, goods, and services for herself, in sum exceeding $7,600. Thecards were obtained from a stolen wallet, and from a residential mail box. Ms Nikoraalso stole from a hotel's reception desk an envelope containing two Australianpassports, and from a department store a handbag and wallet. Together with anotherperson, she forced entry into an apartment building's mail room and broke into severalmail boxes to take items of indeterminate value from them before fleeing. The last isthe burglary charge.Judgment under appeal[3] The Judge noted Ms Nikora had been in custody for some eight months, withan intermediate release on electronically-monitored bail to a drug rehabilitationfacility, but from which she absconded, to be returned to custody. At the time ofsentencing, she was subject to intensive supervision due to expire on 24 August 2020,with which her compliance had been poor.6[4] With reference to the Court of Appeal's observation a starting point of 18 to30 months' imprisonment was usual for residential burglaries,7 although Ms Nikora's1 Police v Nikora [2020] NZDC 9376 [Sentencing decision].2 Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months' imprisonment.3 Sections 219 and 223(c). Maximum penalty: one year's imprisonment.4 Section 228. Maximum penalty: seven years' imprisonment.5 Section 231. Maximum penalty: 10 years' imprisonment.6 Sentencing decision, above n 1, at [10]–[11].7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.offending was "not so serious as to place it in [that] usual range",8 the Judgenonetheless took an 18-month starting point, uplifted it by six months for the"dishonesty charges", and by a further nine months for "the other offending and for[Ms Nikora's] extensive previous convictions", bringing the initial sentence to33 months' imprisonment. While noting her single prior burglary conviction, the Judgealso noted her 153 prior convictions, 90 for dishonesty offences, 67 for taking or usingdocuments, and 22 for theft.9 The Judge deducted 25 per cent for Ms Nikora's pleasof guilty and other mitigating factors, including remorse and drug addiction, leadingto a discount of 8 and a quarter months, rounding the sentence down to 24 months.[5] In light of Ms Nikora's short-term imprisonment sentence, the Judge remittedoutstanding fines, cancelled the sentence of intensive supervision imposed specialrelease conditions relating to the counselling and drug and alcohol-relatedprogrammes, and granted her leave to apply for home detention. On 29 June 2020, theJudge granted Ms Nikora's application for home detention at a drug rehabilitationfacility, adjusting her sentence to eight months' home detention.10[6] Ms Nikora's counsel, Graeme Timms, argues the Judge's 24-month sentenceadopted too high a starting point,11 asserting a 12-month starting point to be moreconsistent with appropriate sentencing levels and similar offending (while acceptingthe combined 15-month uplifts to be appropriate in the circumstances),12 and failedadequately to consider Ms Nikora's drug addiction and genuine remorse as mitigatingfactors.Approach to appeals against sentence[7] I must allow Ms Nikora's appeal only if I am satisfied there is error in hersentence, and a different sentence should be imposed.13 In any other case, I must8 At [15].9 Sentencing decision, above n 1, at [13].10 Police v Nikora [2020] NZDC 12236 [Home detention decision].11 By reference to Arahanga v R, above n 7; R v Columbus [2008] NZCA 2506; Heywood v Police[2013] NZHC 2506; Bates v R [2016] NZCA 456; Stepancic v R [2015] NZCA 211; Byles v Police[2016] NZHC 56; Hotene v Police [2014] NZHC 2081; Nelson v Police [2012] NZHC 2266;McKee v Police [2012] NZHC 2684; and R v Nguyen CA110/01, 2 July 2001.12 Sentencing Act 2002, s 8(e).13 Criminal Procedure Act 2011, s 250(2).dismiss the appeal.14 The approach previously taken by courts on sentencing appealscontinues to apply,15 so that the measure of error is the sentence be "manifestlyexcessive" – a principle "well-engrained" in this Court's approach to sentenceappeals.16 I will not intervene where the sentence is within the range that can properlybe justified by accepted sentencing principle. Whether 'manifestly excessive' is to beassessed in terms of the sentence given, rather than the process by which it is reached.17Discussion—starting point[8] This Court recently has considered, in some detail, the approach to settingstarting points in burglary cases,18 noting common 12–18-month starting points.19There is no guideline decision for burglary offending. In sentencing for burglary, asfor other offences, the circumstances of the offending ought to predominate whenfixing the starting point.20 I rely in particular on relevant considerations identified inother cases.21[9] In the present case, the burglary was committed at the mail room of aresidential apartment block at an early hour. I acknowledge there are differencesbetween the present offending in a communal area of a residential complex andburglaries of residential dwellings. But there was premeditation in seeking to accesslikely depositories of personal documentation, with forceful entry and damage toproperty, even if with low risk of confrontation given the isolated nature of the mailroom and the time at which the burglary was committed. While the value of theproperty is unknown, there is no dispute property was stolen. This was notopportunistic offending, but distinctly facilitative of Ms Nikora's long-standingdishonesty. It is not offending at the lowest end of the available range.14 Section 250(3).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].16 At [33] and [35].17 Ripia v R [2011] NZCA 101 at [15].18 Connell-McDowell v Police [2019] NZHC 3370 at [16]–[18].19 At [23], citing Nelson v Police [2019] NZHC 2434 at [28]–[33].20 R v Columbus, above n 11, at [14].21 R v Nguyen, above n 11, at [17]; and Luke v Police [2013] NZHC 3175 at [13]–[14].[10] In those circumstances, having regard for consistency with other cases, theJudge's initial starting point is at the higher end, but not outside, the range ofappropriate sentences.22—personal mitigating factors[11] Mr Timms contends – above the standard 25 per cent discount for Ms Nikora'searly guilty plea – distinct one-month discounts for each her reduced culpability byreason of her drug addiction,23 and her genuine and insightful remorse as addressed tothe Judge, should have been adopted by him.[12] Equally, however, their mitigating impact may have been diminished orcancelled had the Judge uplifted for Ms Nikora's aggravating factors of offendingwhile subject to a sentence of intensive supervision and absconding while on EM bail.The Judge's actual discount also exceeded 25 per cent in rounding his initial 33-monthstarting point down to 24 months', which may be taken to acknowledge the overallimpact of aggravating and mitigating factors in minor favour of the latter.[13] In the end, I am not satisfied the Judge erred, or a different sentence should beimposed. The Judge's sentence is not manifestly excessive, and can properly bejustified by orthodox sentencing principle, as I have demonstrated.Result[14] The appeal is dismissed.—Jagose J22 See also Sawtell v Police [2013] NZHC 364.23 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137].