Torbarina v Police [2014] NZHC 3221 (15 December 2014)

Last Updated: 22 January 2015

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-29 [2014] NZHC 3221

BETWEEN	JOSIP TORBARINA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 December 2014 (Heard at Rotorua)
Appearances:	J Holmes for Appellant N Belton for Respondent
Judgment:	15 December 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TORBARINA v NEW ZEALAND POLICE [2014] NZHC 3221 [15 December 2014]

[1] Mr Torbarina pleaded guilty in the District Court to three charges of theft. Each charge related to an incident in which he had shoplifted goods from a shop. On

18 November 2014, Judge Wolff sentenced Mr Torbarina to an effective sentence of one year four months imprisonment.¹

[2] Mr Torbarina appeals to this Court against sentence on the basis that the Judge adopted a starting point that was too high, and applied insufficient discount to reflect his early guilty pleas. He contends that this produced an end sentence that was manifestly excessive.

Background

[3] The charges arise out of incidents that occurred between 16 and 26

September 2014. On 16 September 2014, Mr Torbarina went into a stationery shop in Tauranga. He approached a display of laptops and computers, and used an implement to cut a safety cord attached to the bottom of a Hewlett Packard laptop computer. He then concealed the computer in the front of his clothing, and left the premises without making any attempt to pay. The laptop had a value of $1399, and has not yet been recovered.

[4] Five days later, on 21 September 2014, Mr Torbarina went to the Bayfair Shopping Centre in Mt Maunganui. He went to a shop called The Sunglass Hut and took a pair of Prada sunglasses off a display rack. He placed the sunglasses on top of a cabinet. He then removed a second pair of Prada sunglasses and placed these with the first pair. He then took both pairs of sunglasses and put them in his pocket before leaving the store. He made no attempt to pay for these items, which had a combined value of $730.

[5] The final charge related to an incident on 26 September 2014, when Mr Torbarina returned to the same shop in the Bayfair Shopping Centre. He again employed the same technique to remove two further pairs of sunglasses from the shop without paying for them. These had a combined value of $1045. None of the

_{sunglasses have been recovered.}

¹ New Zealand Police v Torbarina DC Tauranga CRI-2014-070-003603, 18 November 2014.

Structure of the sentence

[6] The Judge took a starting point of 18 months imprisonment in respect of all three charges. Mr Torbarina has nearly 50 previous convictions for theft and shoplifting since 1997. The Judge did not apply an uplift to reflect this factor, however, because he considered it was already reflected adequately in the starting point he had adopted. The Judge then applied a discount of ten per cent, or two months, to reflect Mr Torbarina’s guilty pleas. He noted that these had not come at the earliest available stage. This resulted in the end sentence of one year four months imprisonment.

Grounds of appeal

[7] Counsel for Mr Torbarina submits that, taken on their own, none of the shoplifting charges warranted a starting point of more than six months imprisonment. He submitted that the Judge ought to have applied a starting point of six months to reflect the lead charge, namely that relating to the theft of the laptop. The Judge should then have applied an uplift of around 50 per cent to reflect the remaining two charges. This would produce an end starting point of 12 months imprisonment before taking into account mitigating factors.

[8] Mr Holmes points out that Mr Torbarina entered his guilty pleas on

18 November 2014. This was less than two months after all of the charges had been laid, and they were entered at the case review hearing immediately after disclosure had been completed. On that basis he submits the Judge ought to have applied a discount of 25 per cent to reflect guilty pleas. He should then have applied a further discount of two to three months to reflect the fact that Mr Tobarina had expressed remorse in a letter he had handed to the Judge at sentencing.

Decision

[9] As both counsel recognise, there is no tariff or guideline judgment of the Court of Appeal in respect of the charge of theft. This is because the offence can be committed in numerous different ways, and it would not assist first instance sentencing courts to have a guideline judgment given that fact.

[10] The starting point to be applied in respect of offending of this type will necessarily be dictated by the value of the items stolen, and the offender’s previous criminal history. Taking the theft of the laptop computer in the present case as an example, a first offender would undoubtedly receive a community-based sentence in respect of that offence. However, a person in Mr Torbarina’s position who has appeared on more than 40 previous occasions for similar offending must expect that a custodial sentence will be the starting point. Indeed, his counsel does not suggest otherwise.

[11] I take the previous sentences imposed on Mr Torbarina as a guide to where he can expect starting points from this point on. I note that, as the Judge observed, Mr Torbarina was sentenced to one year nine months imprisonment on similar charges on 10 January 2013. More relevantly, he received sentences of six months imprisonment for similar offending when he was sentenced on 20 August 2014. He had only been released from serving that sentence approximately one week before the present offending.

[12] Mr Torbarina needs to know that a starting point of six months imprisonment is now likely to be the minimum that the Court will select in any case where he chooses to steal goods having a value of more than $1,000. Indeed, a starting point in excess of that sentence may well be appropriate from now on.

[13] Regardless of how the sentence is structured, I consider that a starting point of 18 months imprisonment on all charges was well within the range available to the Judge in respect of the present offending. Indeed, as counsel for the respondent argues, the Judge could easily have selected a starting point on each charge that was higher than six months to reflect both the gravity of the present offending and also the appalling record for similar offending that Mr Torbarina has compiled.

[14] The only real issue in the present case is the level of discount that the Judge applied. A discount of just ten per cent would ordinarily be appropriate when a guilty plea is entered shortly before a defended hearing. Usually guilty pleas that are entered within two months of the charge being laid will attract a discount of around

20 to 25 per cent.

[15] In the present case, I accept the submission for the respondent that the evidence against Mr Torbarina was overwhelming, certainly so far as the theft of the laptop is concerned. The Crown would have been able to produce a letter Mr Torbarina had written from prison expressly referring to the laptop computer that he had stolen. Defence of that charge was obviously not a viable option once the letter came to light.

[16] I consider, however, that in the ordinary course of events Mr Torbarina could have expected a discount of around 20 per cent, or an additional two months, to reflect his guilty pleas. In the present case, however, and not without considerable reflection, I have concluded that I should not interfere with the sentence that the Judge imposed because I consider that the starting point he adopted was arguably on the generous side. I have therefore concluded that the end sentence of one year four months imprisonment cannot be viewed as being manifestly excessive.

Result

_{[17] The appeal against sentence is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Rotorua