Wirepa v Police [2012] NZHC 512 (22 March 2012)

Last Updated: 12 April 2012

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-000008 [2012] NZHC 512

DION WIREPA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 21 March 2012

Counsel: S J Zindel for appellant

S K O'Donoghue for respondent

Judgment: 22 March 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] Mr Wirepa was sentenced in the Nelson District Court on 14 February 2012 to 23 months’ imprisonment on three convictions for burglary. The charges arose out of three separate incidents that occurred between 10am and 3.30pm on 6 December

2011. Mr Wirepa and an associate biked or travelled on foot to three separate residential properties in the Nelson area, broke in to those properties, and stole items of value: two laptops, two hard drives, clothing, three cameras and a greenstone pendant.

[2] There were no confrontations with the occupants of the residences. The property from the second and third burglaries was later recovered. Mr Zindel fairly

_{categorised the first burglary as involving pre-meditation, whilst the latter two were}

WIREPA v NEW ZEALAND POLICE HC NEL CRI-2012-442-000008 [22 March 2012]

“opportunistic”. Mr Wirepa appealed against his sentence on the basis that the starting point was too high and the uplift for prior convictions was too great.

[3] The sentencing Judge, Judge A A Zohrab, noted Mr Wirepa’s five previous convictions for burglary, and other previous convictions for dishonesty offences. He also noted the pre-sentence report and its recognition that Mr Wirepa had changed his attitude and was taking steps to reintegrate into pro-social society. The Judge also noted that before this incident, Mr Wirepa had not offended for two years, and he noted Mr Wirepa’s positive work ethic and compliance with community-based sentences in the past.

[4] The Judge then assessed how properly to take into account Mr Wirepa’s prior convictions for burglary. He noted a contrast in approach between the methodology in R v Taueki,1 which takes into account prior convictions after a starting point is

reached, and R v Columbus,2 where, in respect of burglaries, the Court of Appeal

considered prior convictions to be relevant to starting point. The Judge stated that the approach he took would not matter to the end result.

[5] The Judge took into account the three separate incidents, the pre-meditation and the potential confrontation with occupants during the day in determining the starting point of 18 months’ imprisonment. He then uplifted that by 12 months to take into account the prior history of offending. He then gave a seven month discount for guilty plea (approximately 25 per cent), arriving at the end sentence of

23 months.

[6] Mr Zindel’s challenge to the sentence sought to deconstruct its component parts, challenging discretely the starting point, and the extent of uplift. That approach was notwithstanding the recent repetition of the Court of Appeal’s caution that sentence appeals turn on a consideration of whether the final outcome is

manifestly excessive. It was put in these terms:3

Finally, in terms of the point of principle initially raised, we note that many judges might well have treated the identity of the victim, and the fact of

1 _{R v Taueki [2005] 3 NZLR 372 (CA).}

2 _{R v Columbus [2008] NZCA 192.}

3 Ripia v R [2011] NZCA 101 at [15].

persistent offending against the same victim, as matters to be included in the starting point. If that were done, then obviously the size of the uplift would decrease correspondingly, and the percentage figure that troubles the appellant would be smaller. It is for this reason that this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

[7] Previous appellate decisions considering the preferable methodology for sentencing in recidivist burglary cases recognise a justification for proceeding differently from the methodology in other sentencing contexts. Taueki is considered to prescribe sentencing methodology generally, with features of the offending used to determine a starting point, followed by consideration of the offender’s particular personal characteristics as aggravating or mitigating factors to uplift or reduce that starting point.

[8] In Columbus, the Court of Appeal recognised that, although the circumstances of the offending should predominate the fixing of a starting point, previous dishonesty convictions are often treated as components of the starting point for a sentence for burglary.4 This is because, whilst prior offences are not an element of the offence, they are directly relevant in assessing the offender’s culpability and the need for deterrence and community protection.5

[9] In a more recent case, Sunnex v Police, French J considered that the methodology had been modified to align sentencing for burglars with the Taueki methodology.6 R v Stevens and Snowden v Police reflect this change.7 As a result, starting points have reduced because previous convictions are no longer factored into the assessment, however French J noted that did not justify a reduction to overall end sentences.8 Although it is not the appellate court’s role to scrutinise the methodology employed by the sentencing Judge, it is important that the “recidivist” nature of the offending is not taken into account in fixing the starting point and in considering any

_{uplift for aggravating factors.}9

4 _{R v Columbus at [12].}

5 _{At [14].}

6 _{Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2010 at [8].}

7 _{R v Stevens [2009] NZCA 190, Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.}

8 _{Sunnex v Police at [9].}

9 Snowden v Police at [19].

[10] Mr Zindel’s written submissions filed before the hearing argued, by analogy with other cases, that the starting point adopted of 18 months’ imprisonment was too high. Although he did not abandon that submission, at the hearing he acknowledged that 18 months was within an appropriate range if the Court had adopted the same approach as that in Snowden. That decision treated the fact that a burglary was of a

domestic residence as being a significant aggravating feature.10 That is, in part at

least, because of the general appreciation that burglaries of residences leave the occupants with a more personal sense of violation and insecurity than arises from the burglary of commercial or industrial premises.

[11] In Snowden, Ellis J treated 18 months as an appropriate starting point for one burglary, whereas here there are three.

[12] Looking somewhat more broadly, in Nguyen v R, the Court of Appeal held

that the offender’s culpability in a burglary should be assessed by reference to:11

...the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of the property stolen, the damage done, the impact and potential impact upon occupants or owners of property and the extent of the offending where multiple burglaries are involved.

[13] Rota v R involved a similar group daylight robbery of one residential property, taking items of similar value to those in the present case.12 The Court of Appeal suggested a standard starting point of 18-20 months for residential burglaries of this nature, depending on the culpability of the individual offender.13

[14] To the extent that comparability can be measured by reflecting on these authorities, a starting point of 18 months was clearly open to the sentencing Judge.

10 _{At [16].}

11 _{Nguyen v R CA110/01, 2 July 2001 at [17].}

12 _{Rota v R [2012] NZCA 49.}

13 At [41].

[15] The ground pursued more strongly by Mr Zindel was that the 12 month uplift for previous convictions was too high. Mr Wirepa has 17 prior convictions for dishonesty offences, including five for burglary between 1994 and 2008.

[16] Mr Zindel’s submissions cited 10 High Court decisions, the majority of which he treated as including a specific uplift for the extent of prior convictions, in a pattern where he argued that 12 months’ imprisonment for the extent of Mr Wirepa’s previous convictions was higher than the pattern, as he analysed it. The lower end of

that analysis included uplifts of three months for six previous burglary convictions,14

a four month uplift for 12 proven offences in the Youth Court,15 and an uplift of eight months for 21 previous convictions for burglary.16 However, such a simplistic comparison is not reliable without a more thorough analysis of the range of influences on the components of those various sentences.

[17] The analysis for the Police in the present case revealed that there had been two previous convictions for burglaries in 2006 and 2008, resulting in sentences of two years three months and one year’s imprisonment respectively. The present convictions take Mr Wirepa to eight burglaries. Although the pre-sentence report acknowledged positive changes he may have made elsewhere in his life, the previous sentences have not deterred him from re-offending.

[18] In the circumstances of these convictions, I am not persuaded that the uplift of 12 months was outside the range available to the sentencing Judge.

_{[19] Accordingly, the appeal is dismissed.}

Solicitors:

Zindels, Nelson for appellant

Crown Solicitor, Nelson for respondent

Dobson J

14 _{Charlett v Police HC Dunedin CRI-2011-412-13, 23 May 2011.}

15 _{Kati v Police HC Napier CRI-2011-441-19, 11 July 2011.}

16 Morgan v Police HC Wellington CRI-2010-485-27, 5 May 2010.