Paku v R [2011] NZCA 269 (14 June 2011)

Last Updated: 22 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/2011 [2011] NZCA 269

BETWEEN MARK HEMI PAKU Appellant

AND THE QUEEN Respondent

CA46/2011

AND BETWEEN IZIC PLACID Appellant

AND THE QUEEN Respondent

Hearing: 24 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: L L Heah for Appellant in CA1/2011 C Eason for Appellant in CA46/2011 K Laurenson for Respondent

Judgment: 14 June 2011 at 10.30 am

JUDGMENT OF THE COURT

A Mr Paku’s sentence appeal is dismissed.

2. Mr Placid’s sentence appeal is allowed. The existing sentence of five years three months is quashed, and in its place we impose a sentence of four years nine months’ imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] The appellants were members of a burglary gang that preyed on residential properties in the North and West of Christchurch. In addition to the individual burglary and receiving charges to which each pleaded guilty at trial, the appellants also pleaded guilty to participation in an organised criminal group, being the wider burglary gang.
[2] Mr Paku appeals the sentence of five years six months’ imprisonment imposed by Judge Saunders[1] on the basis that a starting point for the specific property offences of four and a half years was too high in itself, and was too high in comparison with his more culpable co-offenders; that an uplift of 18 months to reflect the aggravating factors (being the organised criminal group charge; the fact that some of the offending was committed while Mr Paku was serving a sentence of home detention; and Mr Paku’s previous offending record) was excessive; and finally, that six months’ credit for the guilty plea and restrictive bail conditions was insufficient.
[3] Mr Placid challenges the six month uplift imposed for his previous record. It is also submitted that, because of his comparative youth (the youngest of the group at 21), his restrictive bail conditions and his better prospects, he should have received more credit than the nine month deduction he did receive.
[4] Given the quite different nature of the appeal grounds, we address each appeal separately.

Mr Paku’s appeal

[5] As a result of discussions at the start of trial, a new indictment was proffered and the three remaining defendants (of an original group of eight) pleaded guilty. The charges to which Mr Paku pleaded were:

• (a) knowing participation in an organised criminal group with Mr Placid, Robert Northe and Dang Hai Tran;
• (b) four counts of burglary of residential properties. Three were committed on his own; the fourth with Messrs Placid and Tran. The goods taken from these burglaries were worth $15,000;
• (c) four counts of receiving property from burglaries committed by others in the group. The value of the goods was $18,000.

(a) A six year starting point

[6] Mr Paku’s six year starting point comes about by allotting four and a half years’ imprisonment for the property offences, adding 12 months for the organised criminal enterprise charge, and then six further months for personal aggravating factors. The immediate issue, therefore, is whether five and a half years (four and a half years plus 12 months) was an excessive starting point for all the offending.
[7] Ms Heah referred us to four cases which she submitted showed that the figure was too high. We address each in turn. In R v Nguyen, the offender was convicted of 15 counts of burglary of commercial premises, and one charge of conspiring to commit burglary.[2] There were other charges which are not of present significance. Mr Nguyen’s burglary group focussed on commercial premises, and stole high value goods. The 15 burglary counts to which Mr Nguyen pleaded involved goods to the value of $400,000. Mr Nguyen was regarded as a leader of the group. On appeal this Court identified the proper starting point as being eight years’ imprisonment.
[8] R v Lowe involved burglary of commercial and public buildings. Over a three month period goods to the value of $80,000 were taken, and Mr Lowe pleaded guilty to 15 burglaries.[3] This Court endorsed an aggravated starting point of eight years (i.e. a starting point which includes personal factors - the equivalent figure for this case would be six years). In Lowe the Court reviewed several other cases before reaching the conclusion that eight years was appropriate.
[9] R v Ryder[4] is of little assistance. A recidivist burglar appearing for sentence on 98 charges of burglary had a starting point of 15 years modified on appeal to ten years. Finally in R v Burnie,[5] the offender was a recidivist burglar who targeted private residences of elderly people when they were absent from their homes. The monetary value of the goods was comparatively modest but the impact on the victims understandably was disproportionately high. The case was complicated by the fact that most convictions were summary convictions carrying a maximum of five years. This Court, however, accepted that an aggregated on starting point of eight years was available.
[10] We are obliged to observe that nothing in these cases moved us from the view that a starting point of five and a half years for the present offending was far from harsh. Where we differ from Ms Heah’s analysis is that we reject her method of assessing Mr Paku’s culpability. The submission presented to us was in effect that Mr Paku’s responsibility was only for the burglaries he committed plus such specific involvement in the organised group as could be shown.
[11] In our view, the submission misunderstands the role of the charge of participation in an organised criminal group. The responsibility of the offenders is wider than their individual offences. Rather, those individual offences must be assessed in the context that they occurred pursuant to a pre-determined plan by an organised criminal group to systematically target residential properties. We consider the case of Nguyen, with its similar charge of conspiracy to burgle and its context of an organised burglary ring, to be a legitimate comparison. However, we cannot see that the eight year starting point taken in that case says anything other than that these offenders have done rather well.
[12] Ms Heah laid particular stress on two aspects of the history of these proceedings. They were the deletion of several defendants from the organised criminal group allegation to which Mr Paku ultimately pleaded, and the rejection by the trial Judge of the admissibility as propensity evidence of a large number of the burglaries said to be part of the group’s activities. There is validity in this submission, in that these two matters rightly mean the scope of the enterprise is reduced from that initially alleged. Ms Heah’s submission goes too far, however, with the proposition that Mr Paku is not to be visited with any responsibility for the burglaries committed by others when those burglaries were within the scope of the organised criminal enterprise. Whilst culpability is not to be assessed by just collating the offending of each individual member, there nevertheless is a degree of responsibility for the wider scale of the offending which is to be visited on each participant. That is the very purpose of the organised criminal group charge.
[13] The exact scale of the wider offending is difficult to discern but the dollar figures involved in the specific charges of the other members add up to $200,000 or more. There will be some double counting in this (e.g. burglary and receiving charges for different members in relation to same goods) but the quantum shows that this was a significant organised burglary ring. We consider a starting point of five and a half years was well within range.

(b) Disparity with others

[14] The disparity point is that each defendant effectively received the same five and a half year starting point, even though the specific number of offences, and the volume of the goods varied for each. It is noted that:

• (a) Mr Placid pleaded guilty to committing ten burglaries involving goods to the value of $92,000. There were also four receiving charges involving $8,500 worth of goods;
• (b) Similarly Mr Northe pleaded guilty to eight burglaries, involving $50,000, and one receiving charge involving $2,400. Further, Mr Northe was being sentenced on drug dealing offences.

[15] Ms Heah submits the significant differences in the number of offences, and the values, mean a lesser starting point was required for Mr Paku. In reply, Ms Laurenson notes there are other differences that balance the scales (such as that one of Mr Paku’s offences of receiving involved a gun), and that overall the culpability of each was not so markedly different that adjustments were required.
[16] The appellant’s submission reflects the same approach to individualised assessment of culpability which we do not accept. In R v Mitford this Court observed that fine discrimination amongst different members of the organised criminal group is unlikely to be attainable in terms of the starting point.[6] We repeat that observation and indicate that we do not consider the differences that can be identified here necessitated a variation in starting points. Some might consider Mr Northe to be fortunate not to have received a cumulative sentence for his drug offending but the Judge’s decision on that aspect cannot affect the legitimacy of comparable starting points for the property offending. We reject this ground of appeal.

(c) Insufficient credit

[17] Mr Paku received six months credit for the late pleas and the fact that he had been on restrictive bail. The bail conditions were:

• (a) six months of curfew varying between 22 and 24 hours a day;
• (b) then daytime curfew of 13 hours;
• (c) then a period of electronically monitored bail.

[18] There are three factors which we consider are relevant to the appeal. First, the plea was after the trial started and came in the face of a very strong prosecution case. Second, whilst some credit for the bail conditions is appropriate, it is not in any way a mathematical exercise. Third, the six month uplift for personal circumstances was very lenient. Some of the offending was committed while Mr Paku was serving a sentence of home detention for burglary. That alone could have supported a greater uplift. Further, Mr Paku has numerous previous convictions for burglary, theft of cars and other property offending.
[19] In effect, the personal aggravating and mitigating factors were assessed as balancing each other out. Mr Paku is very fortunate in that assessment.
[20] The appeal against sentence is dismissed.

Mr Placid’s appeal

[21] Mr Placid’s appeal is much more limited in its scope. It is said that a six month uplift for his prior history was incorrect, and that more credit for his positive prospects was appropriate.
[22] Concerning the uplift, the point is plainly correct. When aged 14, and then 16, Mr Placid (now aged 21) appeared in the Youth Court on numerous offences (17 in all). In keeping with that jurisdiction, convictions were not entered but the incidents can, when appropriate, now be taken into account. In the adult jurisdiction Mr Placid has three convictions – burglary in 2006, and in 2008 offences of disorderly behaviour and breach of community work.
[23] The reality is that the present offending represents a very significant increase on anything in which Mr Placid has previously been involved. He has not previously been sentenced to jail, and so there has been no opportunity to assess what effect such a sentence may have. The convictions he does have date back in time and there is no suggestion of a continuing disregard of sanctions. This was not a situation where any uplift was justified, and the sentence will be adjusted accordingly.
[24] The appeal concerning mitigating factors is less compelling. Mr Placid received three months greater deduction than, for example, Mr Paku. He had been on less restrictive bail than Mr Paku. Whilst the youngest of the group, 21 is not an age where particular credit should necessarily be given. There were positive features such as the fact that he had family support and had been successfully working since arrest. We have previously commented on the lateness of the pleas.
[25] Overall, where the plea was not entered until trial and was in the face of strong evidence, and where the accused is not a first offender, we consider a discount of about 13 per cent[7] could not be said to be insufficient.

Result

[26] Mr Paku’s sentence appeal is dismissed.
[27] Mr Placid’s sentence appeal is allowed. The existing sentence of five years three months is quashed, and in its place we impose a sentence of four years nine months’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Paku and Placid DC Christchurch CRI-2010-009-002372, 17 December 2010.
[2] R v Nguyen CA110/01, 2 July 2001.
[3] R v Lowe CA62/05, 4 July 2005.
[4] R v Ryder CA514/04, 20 July 2005.
[5] R v Burnie [2007] NZCA 54.
[6] R v Mitford [2005] 1 NZLR 753 at [52].
[7] That figure reflects that the starting point is now five and a half years given our earlier decision.