Haimona v New Zealand Police [2018] NZHC 472

Haimona v New Zealand Police [2018] NZHC 472 [20 March 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-88[2018] NZHC 472BETWEEN WILLIAM WERA HAIMONAAppellantAND NEW ZEALAND POLICERespondentHearing: 20 March 2018Appearances: LS Caley for AppellantARA Pell for RespondentJudgment: 20 March 2018ORAL JUDGMENT OF TOOGOOD JIntroduction[1] William Wera Haimona pleaded guilty to nine charges of burglary, each ofwhich carries a maximum sentence of 10 years' imprisonment,1 and one charge of theftof property exceeding $1,000, which carries a maximum penalty of seven years'imprisonment.2[2] Mr Haimona was sentenced to a term of three years' imprisonment byJudge T R Ingram in the District Court at Hamilton on 6 December 2017.3 He nowappeals that sentence.Offending[3] The facts to which Mr Haimona pleaded guilty were that nine burglaries werecommitted in Hamilton by two others and him over ten days. The co-offenders werenot each involved in all of the nine burglaries which Mr Haimona committed, and heappears to be solely responsible for the theft. However, they targeted houses duringthe day when the occupants were not at home – or when they believed the occupantswere not at home. In some, at least, of the cases they disabled the power externallyand then searched the house before leaving by car.[4] On 15 August 2017, Mr Haimona and the others forced the door of a house andtook a bag of clothing. Four days later, they disabled power to a property; forcedentry; searched the property and took clothes, shoes, credit cards and electronics,including two television sets, an Xbox, two laptops and a PlayStation.[5] On 24 August, the three disabled the power at a third property; entered thehouse and took belongings valued over $7,000 including televisions, a laptop,jewellery and clothing. They also took a Ford Thunderbird 2005 sports car worth$50,000. I pause here to observe that the alleged co-offenders have deniedinvolvement in that burglary.1 Crimes Act 1961, s 231.2 Crimes Act 1961, ss 219 and 223 (b).3 Police v Haimona [2017] NZDC 27650.[6] Mr Haimona committed three burglaries the following day. At the firstproperty, they turned the power off; kicked in the front door; searched the propertyand took electronics and jewellery worth around $2,000. They did the same at asecond property, taking clothing and jewellery valued over $5,000. They broke intothe neighbouring property by forcing the door, and took electronics valued at least$3,500.[7] Three further burglaries were committed on 25 August 2017. At the firstproperty, a garage was entered and various tools were taken. At the second,Mr Haimona waited in the car while the others cut the power line to the house; forcedthe door; took a set of keys and left with a car worth $5,000. At the third, the three cutthe power and then tried to pry open a window, but the occupant was present at theproperty and confronted them.[8] The remaining charged of theft occurred on 24 July 2017. Mr Haimona andothers entered a tech store. While the shop assistant was distracted, Mr Haimonagrabbed the shop assistant's iPhone and charger, valued at $1,050, from over thecounter.[9] When arrested, Mr Haimona admitted the offending, although he says his rolewas largely confined to acting as driver and lookout. He also named his co-offenders,who are his nephews, and indicated a willingness to give evidence against them. Hepleaded guilty to the ten charges at the earliest opportunity. Of the two men named byMr Haimona, one denies involvement in all charges and the other, a Mr Terry, deniesinvolvement in the burglary in which the Thunderbird was taken. They are to be triedin due course.[10] After this appeal was set down, Mr Haimona provided the Police with a lengthystatement describing the roles played by himself and each of his nephews in theburglaries. He says he will give evidence consistently with that statement. I acceptthat if he does give evidence in those terms it will be of significant assistance to theprosecution.Personal circumstances[11] Mr Haimona is a 39-year-old man of Ngāti Mahanga/Waikato descent. He hastwo children.[12] He has a conviction record including nearly 50 convictions, largely forbreaching conditions, violence and driving offences. He has received four short termsof imprisonment: in 2000, 2014, 2015 and 2016. He had no prior convictions forburglary, theft or dishonesty offending except for an assault with intent to rob in 1997.District Court decision[13] Judge Ingram took the nine burglary offences as the lead offending. Headopted the three-year starting point given to one of the co-offenders, Mr Terry, sayingit was in line with leading authorities, in particular Senior v Police.4 The Judge thenimposed an uplift of six months for the theft of the iPhone,5 and an additional uplift ofsix months for offending while subject to release conditions.[14] The Judge then turned to the principles of sentencing and relevant aggravatingand mitigating features.6 He did not separate out the aggravating features of theoffending and the offender; but rather, listed all together having already set the startingpoint. Although that may seem an unorthodox approach, I apprehend that that was adelayed explanation of the starting point rather than a failure to follow theconventional three-step process.[15] The Judge emphasised the seriousness of the offending, pointing to thesubstantial losses and the vulnerability of the victims. He was right to do so.Burglaries of this kind, as the victim impact statements show, are more than merelythe taking of property which can be replaced. They result in feelings of invasion ofprivacy and violation among householders. Often what is taken has some emotionalvalue for the victims and often a great deal of inconvenience is caused, and that is soin this case.4 Senior v Police (2000) 18 CRNZ 340 (HC).5 Police v Haimona [2017] NZDC 27650 at [2].6 At [4]–[5].[16] Judge Ingram considered the behaviour was premeditated; he decided thatMr Haimona was unable to pay reparation and noted Mr Haimona had a "long and badrecord".7 The Judge then allowed the full 25 per cent discount for the guilty pleas.8He did not allow any further discounts, nor mention any other mitigating factors, andthis approach led to a final sentence of three years' imprisonment being imposedconcurrently on each of the charges.Submissions[17] Initially Mr Haimona appealed on three grounds, including that the uplifts weretoo high and that there was disparity between his sentence and those imposed on hisco-offender, Mr Terry. However, Mr Haimona now pursues the appeal solely ongrounds the sentence was manifestly excessive, arguing that the Judge should havegiven credit for Mr Haimona's remorse and personal circumstances, and for hisassistance to police, leading to recovery of the stolen Ford Thunderbird. Mr Caleyalso emphasises Mr Haimona's willingness to give evidence which will assist theCrown in the prosecution of the other two alleged offenders.[18] Mr Caley submits that an eight per cent discount is appropriate to reflectMr Haimona's genuine remorse, demonstrated by his confession naming his nephews,and the information provided to police about the whereabouts of the Thunderbird. Hepoints also to Mr Haimona's letter of remorse and his willingness to participate inrestorative justice.[19] Mr Caley submits that a further discount of 25 per cent should be allowed forMr Haimona's cooperation with police and his willingness to give evidence. He saysMr Haimona's cooperation has been detrimental to him; he has received threats froma gang leading to a bail breach, and has suffered family consequences for naming hisnephews as co-offenders.[20] For the respondent, Mr Pell accepts that Mr Haimona named his co-offenderswhen interviewed and made a confessional statement, and that he told police where he7 At [5].8 At [5].believed the Thunderbird vehicle would be. He says, however, that the vehicle wasnot there when the address was visited, and that it was located at that address a weeklater due to unrelated enquires by police. Accordingly, Mr Pell submits thatMr Haimona's cooperation amounted to not much more than a guilty plea, which wasaccounted for by the Judge. He argues that a combined discount of 58 per cent forpleas, remorse and cooperation would be grossly excessive compared to relevantcases.9 The respondent submits at most one to two further months could be allowedfor remorse, but this would be mere tinkering with a sentence that was within the rangeavailable.[21] Finally, and more significantly, it is submitted that the starting point imposedby Judge Ingram could and should have been higher, with reference to Mr Terry'ssentence and the Court of Appeal's judgment in Swinburne v R.10Approach on appeal[22] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed for any reason and that a differentsentence should be imposed.11 A material error requiring correction will beestablished if the sentence is manifestly excessive or wrong in principle, or if thereare exceptional circumstances.12[23] In a case such as this the real question is whether the effective end sentencewas manifestly excessive. The appellate court will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles.Whether a sentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence is reached.139 Citing R v Hadfield CA337/06, 14 December 2006; ABC v Police [2013] NZHC 1487.10 Swinburne v R [2010] NZCA 568.11 Criminal Procedure Act 2011, s 250.12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30] and [31].13 Larkin v Ministry of Social Development [2015] NZHC 670 at [26], applying Ripia v R [2011]NZCA 101 at [15].Discussion[24] Under s 9(2)(f) of the Sentencing Act 2002, a judge must take into accountremorse shown by the offender. As the Supreme Court emphasised in Hessell v R,where a proper and robust evaluation of all the circumstances demonstrates genuineremorse beyond that which might reasonably be inferred from the guilty plea,sentencing credit can properly be given separately from a discount for the plea.14[25] It is also clear that a discount is available where the offender has co-operatedwith or provided assistance to police, to recognise the value of the assistance givenand to encourage offenders to inform.15 In R v Simpson, the Court of Appeal stressedthat the extent of any discount depends primarily on the value of the information,although the degree of personal risk and the consequences involved may also berelevant.16[26] The extent of Mr Haimona's cooperation in this case is not easily assessed, atleast in terms of the recovery of property. His prompt confession to the offending isrelevant to the amount of the guilty plea discount, rather than particular cooperation.It is also not clear that the confession alone demonstrates particular remorse, giventhat police had found relevant property at Mr Haimona's home, suggesting the caseagainst him was strong.[27] On the other hand, Mr Haimona did confirm the identity of his co-offenders,and the location at which the car was eventually found. I am not persuaded that theformer information was of particular value to police, given they had already arrestedMr Haimona and the alleged co-offenders. There is nothing to suggest that hisconfession led to the identification of additional crimes unknown to Police, asconfessions by spree burglars often do, but it does appear to have contributed, at least,to finding and returning the Ford Thunderbird. I accept that it may have come atpersonal cost to Mr Haimona's family relationships, and I accept also that the evidence14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].15 R v S CA236/00, 30 October 2000 at [17]; R v R CA62/96, 27 May 1996 at 5; see also R v Accused(CA 349/89) [1990] 2 NZLR 316 (CA) at 319.16 R v Simpson [2008] NZCA 467 at [19]; see also R v Krasoudakis (1996) 14 CRNZ 487 (HC) at490–491.that he says he will give will materially assist the prosecution. I emphasise that thatwas not known to Judge Ingram at the time he imposed the sentences in this case.[28] Mr Haimona has also provided a letter expressing remorse which I am preparedto acknowledge as deserving of recognition; and although his victims were notinterested in meeting Mr Haimona in a restorative justice setting, he made the offer todo so.[29] Taking account of those matters, I accept that Judge Ingram erred in notaccording some discount for remorse and cooperation. It is fair to the Judge to say,however, that Mr Caley's written submissions at sentencing in the District Courtreferred to those matters in passing only, but Mr Caley tells me he made further oralsubmissions and that the Judge did have a memorandum from the Police confirmingcooperation by Mr Haimona without going into much detail. As I have said, the Judgedid not know at that point that Mr Haimona had given an undertaking to give evidence.[30] Looking at those issues of remorse and cooperation afresh, I would allow afive per cent discount for genuine remorse, and a further 15 per cent discount forcooperation, largely driven by the undertaking to give evidence. A discount of 20 percent in addition to the guilty plea discount is not inconsequential.[31] But while I accept that the Judge erred not addressing the discounts availablefor those matters, the present appeal must be allowed only if the errors resulted in asentence that was manifestly excessive.17 For that reason, it is necessary to considerwhether the end sentence taken as a whole was too harsh in all of the circumstances.[32] I first consider the starting point. There is no tariff case for burglary, althoughthe decisions of the Court of Appeal in R v Colombus and R v Southon, and of a fullHigh Court in Senior v Police are helpful.18 So too are the comments of the Court ofAppeal in Arahanga v R, in which the Court noted:1917 See the discussion at [22] and [23] above.18 R v Columbus [2008] NZCA 192; R v Southon (2003) 20 CRNZ 104 (CA); Senior v Police (2000)18 CRNZ 340 (HC).19 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].Dwellinghouse burglaries at the relatively minor end of the scale tend to attracta starting point of approximately 18 months' to two years and six months'imprisonment.I add that the Court of Appeal was there referring to a single burglary.[33] In this case, the starting point was intended to reflect nine burglaries committedby Mr Haimona which were relatively seriousness. The following circumstances arerelevant to assessing the appropriate starting point:20(a) Most of the properties burgled were residential dwellings (except in oneinstance where a garage was burgled), creating a heightened risk ofconfrontation.21(b) There were three offenders.(c) The offending was premeditated, although not particularlysophisticated.(d) Two of the burglaries involved the unlawful taking of a vehicle.(e) Property of considerable value was taken and not much recovered.[34] The Judge settled on the starting point by reference to the sentence imposed onthe co-offender, Mr Terry, for whom Judge Cocurullo took a starting point of threeyears' imprisonment.22 While parity of sentence between co-offenders is important,Mr Terry was sentenced for only six of the burglaries. Relative to that sentence, thestarting point adopted by Judge Ingram for Mr Haimona is low.[35] Reference to other cases also indicates that a starting point of three years'imprisonment was unduly favourable to Mr Haimona. In Swinburne v R, the Court ofAppeal considered a starting point of three and a half years' imprisonment wasjustified for four burglaries of residential premises by a single burglar during which20 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [79].21 Invasion of a residential dwelling is an aggravating feature per Sentencing Act 2006, s 9(1)(b).22 Police v Terry [2017] NZDC 25804 at [7].property worth $13,531 was taken or damaged.23 Here there were more than twice asmany burglaries and the value of the property taken was significantly greater, evenallowing for the recovery of the Thunderbird. In Jones v R, the Court of Appealimposed a three-year starting point for three burglaries by one burglar where $2,000worth of property was taken from one property, $34,000 from another, and nothingfrom the third.24 In Harrison v R, the Court of Appeal upheld a starting point of fouryears' imprisonment for four burglaries of dwelling houses in one month, with itemsworth $66,000 taken.25[36] Mr Haimona's offending was serious, viewed in its totality. While he does nothave a history of recidivist burglary, his offending was otherwise more serious thanthe cases cited given that he offended with two others, rendering victims morevulnerable in the event of confrontation. The offending was clearly premeditated.Mr Haimona admitted that the three went out on at least one occasion with theintention of finding a house to burgle, and at many of the addresses he and his co-offenders disabled the power before entering the house. The worth of the propertytaken has not been fully valued. However, it appears that the property taken must wellexceed $20,000 in addition to the two vehicles, together worth $55,000. As I say,only the Thunderbird has been recovered.[37] In my view, the seriousness of the burglaries alone would have been betterreflected in a starting point of between three and a half to four years' imprisonment,rather than the three years' imprisonment adopted by the District Court Judge.[38] The uplifts imposed for the theft and for offending while subject to courtconditions were also warranted and are no longer challenged. Mr Haimona has a longhistory of non-compliance with court-imposed sanctions. His offending also appearsto be increasing in seriousness with time. In Jones, the Court of Appeal imposed asimilar uplift for offending while subject to release conditions.2623 Swinburne v R [2010] NZCA 568.24 Jones v R [2012] NZCA 273 at [17].25 Harrison v R [2011] NZCA 80.26 At [17].[39] That means that a revised starting point of between four and a half years' andfive years' imprisonment would have been appropriate to reflect the overall culpabilitybefore applying, as Judge Ingram did, the full discount of 25 per cent for guilty pleasentered at the earliest opportunity. There needs to be the further adjustment of 20 percent for remorse and cooperation which I consider to be appropriate.[40] By a different route, therefore, I reach an end sentence of 33 to 36 months'imprisonment  close to the three years imposed by Judge Ingram which is at the topof that range. That means that applying the usual principles the sentence would notbe regarded as manifestly excessive. But as I have said, exceptional circumstancesmay be taken into account. Mr Haimona has signalled his appreciation that he needsto be a better father to his children, and to abandon his past tendency to offend. Thedisapproval from his whānau about his giving evidence against family members is notto be underestimated. In the circumstances, given that Mr Haimona is at an age whenhe might be well placed to reform, I think it is appropriate for this Court to make agesture which encourages him to take advantage of such rehabilitation courses as areavailable in prison, and to stiffen his resolve not to reoffend when he is released.[41] Applying the discounts I have identified to the lower end of the starting pointrange produces an effective end sentence of 33 months. I propose, therefore, to takethat as the proper sentence.Result[42] Accordingly, I allow the appeal; quash the sentences imposed; and imposesentences of two years and nine months' imprisonment on each charge, to be servedconcurrently.Addendum:[43] I made an observation in the course of the hearing which might have beenincluded in my oral judgment, but was not. I consider it to be important to repeat itby this addendum so that Mr Haimona understands the significance of his assurancethat he will give evidence against his alleged co-offenders. If Mr Haimona refuses togive evidence in terms of the statement on which I have relied, it will be open to theCrown to apply to the Court to recall this judgment and re-assess the extent ofMr Haimona's cooperation as a factor relevant to the appropriate sentence and to theoutcome of this appeal.27 A recall of this decision may result in the sentence imposedin the District Court being reinstated..........................................Toogood J27 R v Smith [2003] 3 NZLR 617 (CA) at [36], Smaill v Police (No 2) HC Dunedin CRI-2010-412-16, 5 August 2010, Romanov v New Zealand Parole Board [2014] NZHC 2491 at [16][19].