THE QUEEN v TAKATU AHOMIRO [2001] NZCA 158 (22 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca124/01

THE QUEEN

V

TAKATU AHOMIRO

Hearing:	21 May 2001
Coram:	Tipping J Heron J Paterson J
Appearances:	L L Heah for Appellant J C Pike for Crown
Judgment:	22 May 2001

judgment of the court DELIVERED BY PATERSON J

[1] Mr Ahomiro pleaded guilty on arraignment to a charge of receiving stolen property.He was sentenced to a term of twelve months imprisonment.In addition, a suspended sentence of six months imprisonment imposed for an earlier burglary charge was activated.Mr Ahomiro now appeals the sentence of twelve months imprisonment.

Background Facts

[2] The charge to which Mr Ahomiro pleaded guilty was "between 29 September 2000 and 1 October 2000 at Christchurch received electrical electronic and sporting equipment valued in excess of $300 before then stolen or obtained by a crime knowing at the time of receiving the same that it had been stolen or dishonestly obtained."

[3] Over a three day period, offenders broke into three houses in Christchurch and removed various items including television sets, stereos, video players and a camera.On 1 October 2000, police went to another address in Christchurch which has been described as a "fences' warehouse."They there found six television sets and remotes, four VCRs and remotes, stereos, golf clubs, a camera and accessories, computers and accessories, CD players and other assorted goods worth approximately $30,000.All items were marked for sale.

[4] Mr Ahomiro was one of the six people found at the address.He subsequently gave a statement to the police in which he admitted being driven to the address with two of the other co-accused.There were three television sets in that car and he helped carry one of those television sets into the property.Thus, the only evidence against him was that he was at the property where the stolen goods were displayed for sale, he went with two of the other co-accused to that property in a car in which there were three stolen television sets and he carried one of those sets into the room where they were displayed for sale purposes.

The sentencing

[5] Two other of the co-accused named in the charge, Messrs Sooalo and Coutts, also pleaded guilty and were sentenced at the same time.The three pleaded guilty on arraignment and although the Judge took the view that all three would have been able to enter guilty pleas to the receiving charge at an earlier time, he gave them the appropriate credit for their guilty pleas.

[6] In respect of Mr Ahomiro, the Judge noted that his sentencing was complicated by two factors which were not present with the other two.Only one of those is relevant to the purposes of this sentencing.It is that Mr Ahomiro had been sentenced in June 2000 to a suspended sentence of imprisonment on a burglary charge.The offence was committed during the suspended term.

[7] At sentencing, counsel for Mr Ahomiro contended that his guilty plea was limited to the television set which he carried into the property.It will be noted from the provisions of the indictment that the plea of guilty was not so limited as it was a plea to receiving "electrical, electronic and sporting equipment."The Judge stated that he was entitled to take into account, on any view of the evidence, that Mr Ahomiro was close to the action in respect of property which had been stolen in three household burglaries.The Judge stated that the offenders were not to be sentenced on any basis which included involvement in any of the burglaries but the fact remained that, at most, two days after all three burglaries had been committed, the three of them were at a building where stolen property from the three burglaries had been dealt with.

[8] Another relevant matter taken into account in respect of Mr Ahomiro was his previous record.The Judge noted he was no stranger to dealing in stolen property or, more particularly, to committing burglaries or thefts.Mr Ahomiro had a total of 24 convictions for dishonesty related offending, including seven burglary convictions and nine theft convictions.He noted he was not entitled to punish Mr Ahomiro again for his earlier offending but was entitled to take the view that he had not learnt the lesson which should have been taken from previous involvement with the law and that a recidivist offender is someone from whom the community is entitled to be protected.

Grounds of appeal

[9] There are two grounds of appeal, namely:

(a) The sentence of twelve months imprisonment was manifestly excessive; or

(b) There was a marked disparity between Mr Amohiro's sentence and those

imposed upon his co-offenders, Messrs Sooalo and Coutts.

Mr Coutts was sentenced to periodic detention for six months while Mr Sooalo was sentenced to six months imprisonment followed by six months supervision.

[10] The sentence of twelve months imprisonment was said to be manifestly excessive because of the role which Mr Ahomiro played in the offences.It was submitted on his behalf that the only admission he had made related to the one television set and there was no evidence that he had possession, control or assisted in the disposal of any of the other $30,000 worth of stolen property which was for sale in the house.There was no evidence that he was involved in any of the three burglaries.

Decision

[11] The Judge in his sentencing notes noted that the sentence of twelve months imprisonment, to be cumulative on the activated suspended sentence, was on the receiving charge relating to the television set stolen in one of the burglaries. If this was the sole sentencing consideration, then a sentence of twelve months imprisonment for receiving one television set would obviously be manifestly excessive.

[12] We are of the view, however, that the Judge was entitled to take into account Mr Ahomiro's presence at the property where $30,000 worth of stolen goods were for sale, particularly in view of Mr Ahomiro's past record. The principles upon which previous convictions can be taken into account in sentencing were considered by this Court in R v Ward [1976] 1 NZLR 588. A sentencing Judge must be careful to see that a sentence of a person who has been previously convicted is not increased merely because of the previous convictions.It is necessary that the sentence passed ought to be bear some relation to the intrinsic nature of the offence and gravity of the crime. However, this does not mean that previous convictions must be ignored.This is because the character of the offender frequently affects the question of the nature and gravity of the crime.His or her previous convictions are involved in the question of the prisoner's character.Where previous convictions indicate a predilection to commit a particular type of offence of which the prisoner is convicted, it is the duty of the Court for the protection of the public to take them into consideration and lengthen the period of confinement accordingly.

[13] The issue in this case is whether a sentence of twelve months is a penalty justified by the gravity of the offence.Mr Ahomiro's past offences and his presence and assistance, albeit that it may have only been in respect of one television set, at the place where the proceeds of three burglaries were displayed for sale, are all matters which go to the gravity of the offence.In a case where the offender had been convicted previously on 24 occasions for burglary and theft, the protection of the public is an important factor and entitles a Judge to impose a term of imprisonment.In our view, while a term of twelve months was at the upper end of the range, Mr Ahomiro's recidivist tendencies justified a sentence in the interests of the public.We do not accept that it was manifestly excessive.

[14] This Court is entitled to reduce a sentence where there is no justification for marked differences between the sentences of co-offenders. However, to reduce such a sentence the disparity must be unjustifiable and gross.This Court will not reduce a sentence on the grounds of disparity merely because other sentences may be lenient.

[15] In this case, the reason for the disparity in the sentences was the previous records of the three offenders.In Mr Sooalo's case the Judge determined that there was serious offending and a term of imprisonment was justified.What was of concern in Mr Sooalo's case was that he had a previous conviction for receiving on 17 November 1998 for which he had been sentenced to a suspended term of imprisonment and a lengthy sentence of periodic detention.The sentence given for the 1998 offence reflected the fact that the offence had been serious.Mr Coutts' record of previous offending involving dishonesty was limited to two unlawful taking offences in October 1994.The Judge concluded that he was entitled to be given the opportunity to learn that involvement in serious crime does not pay.For that reason the Judge adopted the Probation Officer's recommendation and sentenced him to periodic detention.

[16] The past offending of the three offenders justified a disparity in sentence.The disparities resulted from these past records and there can be no argument that Mr Ahomiro because of his past record, was liable to a more severe sentence than the other two.Mr Coutts, because of his more modest past record, was entitled to receive the lightest sentence.In the circumstances we are not satisfied that the disparities were gross or unjustifiable.

[17] It follows in the circumstances that Mr Ahomiro's appeal against sentence is dismissed.

Solicitors:

A J Newman & Associates, Christchurch, for Appellant

Crown Law Office, Wellington