Rapira v Police [2015] NZHC 699 (14 April 2015)

Last Updated: 30 April 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-95 [2015] NZHC 699

BETWEEN	HARLEM PAUL RAPIRA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 March 2015
Counsel:	C J Nicholls for Appellant S W P Woods for Respondent
Judgment:	14 April 2015

_{RESERVED JUDGMENT OF MACKENZIE J}

_{I direct that the delivery time of this judgment is}

4.30 pm on the 14^th day of April 2015

_{Solicitors: Crown Solicitor, Wellington, for Respondent}

RAPIRA v NEW ZEALAND POLICE [2015] NZHC 699 [14 April 2015]

[1] The appellant pleaded guilty in the District Court at Hutt Valley to two charges of burglary, one charge of disorderly behaviour, one of supplying alcohol to a minor, and one of escaping custody. He was sentenced to two years and nine months’ imprisonment.¹ He appeals against that sentence.

[2] The facts were that in the early hours of 1 October 2014 the appellant smashed the front door window of a bar in Lower Hutt. He climbed in through the broken window and went to the bar area and took some alcohol, while the alarm was sounding. He went out through the broken window. He met up with a young person aged 15 and shared some of the alcohol with him. He then went to another hotel nearby with that youth, where they both climbed over a fence and approached the hotel door. The appellant pulled and pushed the door causing it to break open. He and the youth went behind the bar and took more alcohol. They left and walked to the river bank where they were tracked down by a police dog.

[3] The appellant was arrested and appeared in Court later that day,

1 October 2014. He was remanded in custody. While the Judge was completing that process, the appellant ran from the dock and left the Court. He was pursued and apprehended in the alleyway next to the Courthouse.

[4] In sentencing, the Judge adopted a starting point of two and a half years’ imprisonment for the two burglaries and the related offences. He allowed a discount of three months to reflect the guilty plea, to give an end sentence of 27 months for the burglaries. On the charge of escaping custody, he imposed a sentence of six months’ imprisonment, cumulative on the 27 months.

[5] In support of the appeal, Mr Nicholls submits that the sentence of two years nine months was manifestly excessive. He submits that the 30 months starting point on the two burglary charges was stern, but concedes that it is within the available range given the appellant’s history. His principal point is the three month, or ten per cent, discount for the guilty pleas. He submits that there was no principled

_{basis to reduce the discount from the 25 per cent indicated in Hessell v R for an early}

¹ Police v Repira DC Hutt Valley CRI-2014-096-003017, 28 November 2014.

guilty plea.² On the six month cumulative sentence on the escaping charge, the only issue is the failure to allow a discount for the guilty plea.

[6] Mr Woods for the respondent submits that the overall end sentence was within the range available and that the lesser discount for the guilty plea was appropriate. He submits that guilty plea discounts are not automatic or mechanical, but are to be assessed in all the circumstances of which the timing of the plea is only one relevant factor. Sentencing judges are required to undertake an overall evaluative assessment of the case without reference to a rigid scale of discounts. Counsel accepts that the guilty pleas were entered at an early stage and that looking at timing alone, a discount of 10 per cent is less generous than would usually be applied, but submits that in the overall circumstances of the case it was open to the Judge to adopt a lesser discount, for several reasons. The prosecution case was strong. The appellant’s conviction history involves recent and recurrent dishonesty offending. The culpability of the appellant’s offending was relatively high and the appellant demonstrated a lack of motivation to address the underlying cause of his offending. He submits that these factors, in particular the strength of the case and the appellant’s recent conviction history, meant it was open for the Judge to give the appellant a discount of only 10 per cent for the guilty plea. He submits that in the light of all the circumstances the end sentence reached by the Judge was within the range available and was not manifestly excessive.

[7] The sentencing Judge gave no reasons for adopting a three month discount for the guilty plea, or for not allowing any discount for the plea on the escaping from custody charge. There is not a fixed scale for discounts for guilty pleas. The Supreme Court in Hessell v R rejected a sliding scale approach, and emphasised the need for all circumstances in which the plea was entered to be addressed, not merely the timing. However, the Court also recognised the need for transparency, and the desirability of providing a degree of predictability which will assist counsel in

_{advising persons charged who have in mind pleading guilty.}³

² Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

³ At [73].

[8] In this case, the sentencing Judge gave no reasons for adopting the particular discount which he did. It is important to recognise the pressures facing a judge in a busy sentencing list, which mean that an extensive discussion of the reasons for adopting a particular level of discount may not always be expected. However, transparency requires that any departure from what might be a reasonable expectation of counsel about the level of discount should be justified by reasons. The upper limit for a guilty plea discount should not exceed 25 per cent where the accused pleads guilty at the first reasonable opportunity. Transparency and consistency in the sentencing process necessitate that. In this case the factors justifying the discount at significantly lower than that ought to have been identified.

[9] In the absence of that, I must consider the level of discount afresh. Of the factors identified by counsel for the respondent, only the strength of the prosecution case was potentially relevant to the extent of the guilty plea. The other factors to which Mr Woods referred were factors which ought to have been taken into account elsewhere in the sentence calculation exercise. I do not consider that factor alone justified a significant departure from the discount which would ordinarily accompany a first opportunity guilty plea.

[10] Mr Woods is correct that the focus on this appeal must be on the end sentence. I consider that the starting point for the burglaries and the escaping custody charges were appropriate, having regard to both the circumstances of the offending and the personal circumstances of the appellant, but were not at the lower end of the range. The consequence is that the limited allowance for the guilty pleas has led to a sentence which was manifestly excessive.

[11] I see no reason to depart from a 25 per cent discount, from starting points totalling three years. That leads to an end sentence of two years and three months.

[12] The appeal is allowed. The sentences of 27 months on the burglaries and six months on the charge of escaping custody are quashed. In their place, I impose

sentences of 23 months on the burglaries charges and four months on the escaping from custody charge. Those sentences are cumulative, to a total of 27 months.

“A D MacKenzie J”