Kino v Police [2012] NZHC 2570 (4 October 2012)

Last Updated: 15 October 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-37 [2012] NZHC 2570

BETWEEN TRAAN HUNTER KINO Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 4 October 2012

Counsel: N M Dutch for Appellant

H J Sheridan for Respondent

Judgment: 4 October 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 13063, Tauranga

Counsel:

_{N M Dutch, PO Box 14124, Tauranga}

KINO V NEW ZEALAND POLICE HC TAU CRI 2012-470-37 [4 October 2012]

Introduction

[1] Mr Kino pleaded guilty to four charges of burglary, three of theft and one of breaching a prison release reporting condition. He came up for sentence in the District Court at Tauranga on 11 September 2012, before Judge Burnett.

[2] The Judge’s sentencing notes suggest that she took a dim view of the offending. She referred specifically to the pre-sentence report which stated that Mr Kino had a low motivation to change his ways and was assessed as a high risk to the safety of others. Judge Burnett imposed an effective term of imprisonment of three

years and six months.1 Mr Kino appeals against that sentence on the grounds that it

is manifestly excessive.

The facts

[3] The four burglaries occurred on 18 and 19 February and 9 and 10 April 2012. They occurred in the Tauranga and Welcome Bay areas. In each case, Mr Kino entered a house or shop and took items that were readily accessible. On some occasions occupants were present; on others they were not.

[4] The three thefts occurred on 1, 5 and 13 April 2012. A bag was stolen on 1

April; a wallet on 5 April; and another bag on 13 April, this bag was one that contained passports, a wallet, cash, credit cards, a camera, jewellery and other items that together were valued at about $4,000.

Sentencing in the District Court

[5] In sentencing Mr Kino, Judge Burnett described the burglaries as “blatant”.

She added:

[3] ... You simply were going into people’s houses, regardless of whether they were there in the house or not and taking what you could. On one occasion, when you were confronted by an occupier, you had a ready

1 Police v Kino DC Tauranga CRI 2012-070-4023, 11 September 2012 (Judge Burnett).

explanation at hand. You have, on one of these burglaries, simply walked through an unlocked door when the occupier was at the rear of the property, and stole a large amount of jewellery, credit cards, cellphone and cash.

[4] Then within a very short space of time, you were walking into another property and somebody is packing up their car, and they had a number of bags in the vehicle. While the car is parked inside the garage and the person, the occupier, has gone back into the house to get something else to put into the car, you go into the garage and you take one of the bags from the boot of the car, and it has got all of the family’s holiday items, passports, wallet, cash, credit cards, camera, jewellery and various other items.

[5] You still continue to go on offending in this manner. You walk into a shop and ask for a glass of water, and when the shopkeeper is kind enough to go and get a glass of water for you, you take her wallet from her handbag.

[6] At another shop, you took a backpack which had a number of items in it, and so on. This is continued offending, and, of course, you had only just been released from imprisonment, you were on prison release conditions, and you were non compliant.

[6] The Judge was also faced with a submission that Mr Kino was at “a crossroads”. This submission was based on Mr Kino’s desire to look after and provide for his young children. Judge Burnett took the view that the same concerns had been present when he had previously offended and been sent to jail.2 She added:

[7] ... I am extremely sceptical of the genuineness of your comments and feel it is no more than manipulation to try and manipulate the situation that you find yourself in, in the same way that when you were in someone’s house in the process of burgling it, and you are approached or confronted, you have got a ready story to give to them. Similarly, when you go into a shop and as for a glass of water, it is simply a distraction for the person so you can take their wallet. I really cannot see it as anything more than an attempt at distraction from the appropriate sentencing approach that is warranted in this case.

[7] The Judge referred to Mr Kino’s earlier convictions for drugs and violent offending and non-compliance with Court orders and community-based sentences. She regarded protection of the community, deterrence and denunciation as the primary sentencing goals. Judge Burnett considered that home detention was neither a proportionate nor a suitable sentencing response.

[8] The Judge took a starting point of four years imprisonment for the burglaries and uplifted that by one year for other property related offending. She added six

_{months for the breach of the prison release condition.}

2 Ibid, para [7].

[9] From that adjusted starting point of five years and six months imprisonment, she gave credits amount to one year, leaving an effective end sentence of three years and six months imprisonment. Those credits amounted to two years of the adjusted starting point. On my calculations, in percentage terms, that represented 36.4% of which 25% could properly be regarded as being for the guilty pleas. The balance was a credit for youth.

[10] The sentences actually imposed were three years imprisonment for the burglaries and the theft of the bag containing property to the value of $4000 (concurrent as among themselves) two months imprisonment for the other thefts (cumulative on the earlier sentence) and four months for the breach of prison release conditions (also cumulative).

Analysis

[11] Mr Dutch, for Mr Kino, challenged the starting point adopted by the District Court Judge. He also raised concerns about problematic aspects of the pre-sentence report on which he contended that the Judge may have inappropriately relied.

[12] The primary challenge concerns the possibility of double counting aggravating factors when assessing a starting point in a burglary case. Mr Dutch referred me to R v Columbus,3 in which the Court of Appeal considered this issue. Delivering the judgment of the Court, Harrison J said:

[12] The starting point traditionally adopted in sentencing burglars who have a number of previous burglary or related dishonesty convictions sits in a distinct category. As this Court has previously observed in R v Lowe CA62/05, 4 July 2005 at [31]:

The normal meaning of “starting point” is the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Relevant prior convictions are, if taken into account at all, taken into account by way of uplift on the starting point. In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”. This is not the occasion to try to sort out this inconsistent use of language. In discussing whether the Judge adopted an appropriate starting point, we shall take into account the appellant’s prior convictions, as the

3 R v Columbus [2008] NZCA 192.

other appellate authorities which were cited to us appear to have done.

[13] We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area. As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.

[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss

8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater

weighting for prior offending is explained in Senior v Police (2000) 18

CRNZ 340 at [27]-[30] (HC).

[13] Mr Dutch contended that the sentence imposed did double count those elements and a correct approach was to impose concurrent sentences after assessing an appropriate response to deal with the totality of the offending.

[14] Mrs Sheridan, for the Crown, submitted that, when read in context, the sentencing notes revealed no double counting of aggravating factors. She submitted that, in the context of four burglaries undertaken within a reasonable short time, in the circumstances disclosed from the sentencing remarks, the starting point was appropriate. She did concede, however (responsibly in my view), that the uplift of

12 months for prior offending, assuming that was not also captured in the starting point of 12 months, was problematic in light of Mathews v Police,4 a case that involved more serious offending, in which an uplift of 12 months was given.

[15] Mrs Sheridan suggested that something in the range of six to nine months is appropriate in this case.

4 Mathews v Police [2012] NZHC 1261.

[16] Ultimately, Mrs Sheridan submitted that concurrent sentences were a preferable method of dealing with the sentencing as long as there had been proper account taken of all offending when assessing the adjusted starting point that includes aggravating factors relating to the offences.

Analysis

[17] I agree with Mr Dutch that care is required when sentencing on burglary cases such as this. The concerns expressed by the Court of Appeal in Columbus necessarily require a District Court Judge to assess carefully his or her approach to starting points, to avoid the possibility of double counting of aggravating factors. Particularly in light of the uplifts for prior offending and the starting point taken, I am left with some doubt as to the approach taken by the Judge and whether it may have inadvertently, contained an element of double counting.

[18] In those circumstances, I consider the preferable approach is to embark upon the sentencing exercise afresh. If a result were reached which was similar to that reached by the District Court Judge, the question would arise as to whether the sentence was manifestly excessive.

[19] Looking at the totality of the offending, I consider that a starting point for the four burglaries of three years and six months imprisonment would be appropriate. That reflects the brazen nature of the offending and the period over which it occurred. Uplifts should then be given for other offending to capture the totality of the criminality involved. In my view, an uplift of six months is appropriate.

[20] Turning to relevant previous convictions and Youth Court notations, it is clear that Mr Kino has accumulated a number in a relatively short period. He is presently

21 years old. I add a period of six months to reflect those previous convictions, a period that I consider is consistent with the approach taken by Lang J in Mathews. That leaves an adjusted starting point of four years six months imprisonment.

[21] The first credit to be considered is for youth. While Mr Kino is 21 years old and has accumulated a number of similar convictions, the scientific literature does

suggest that it is unwise to treat someone of his age as being as mature and aware of consequences as are older people.5 A period of six months credit can be allowed for youth. That brings the sentence down to four years imprisonment, from which a

25% credit should be allowed for the early guilty pleas in terms of the Supreme Court’s decision in Hessell v R.6 The end sentence would, therefore, be one of three years imprisonment.

[22] As offending involving the burglaries and thefts have all been taken into account in assessing the adjusted starting point, there is no reason to accumulate the sentences. In my view, the Judge erred in imposing cumulative sentences.

[23] The appropriate sentencing response, in my view, is for an end sentence of three years imprisonment, on the basis that the particular sentences are all structured on a concurrent basis.

Result

[24] For those reasons, the appeal against sentence is allowed. The sentences of three years imprisonment for the four burglaries and the theft of items to the value of

$4000 remain intact. The sentences of two months imprisonment on the remaining theft charges, and that of four months imprisonment on the breach of prison release conditions also remain intact but are to be served concurrently with the lead sentence on the burglary and more serious theft charges.

_{[25] I thank counsel for their assistance.}

_{P R Heath J}

5 _{Churchward v R [2011] NZCA 531.}

6 Hessell v R [2011] 1 NZLR 607 (SC).