Peka-Hazel v Police [2016] NZHC 2696 (10 November 2016)

Last Updated: 22 November 2016

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2016-470-23 [2016] NZHC 2696

BETWEEN	CHEVY GEMMELL PEKA-HAZEL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 November 2016
Counsel:	J M Holmes for Appellant A Shore for Respondent
Judgment:	10 November 2016

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, Tauranga

Counsel:

_{J M Holmes, Tauranga}

PEKA-HAZEL v NEW ZEALAND POLICE [2016] NZHC 2696 [10 November 2016]

The appeal

[1] Mr Peka-Hazel was charged with burglary and unlawful taking of a motor vehicle arising out of separate events which occurred in March and April 2016. He entered pleas of guilty to those charges at an early stage. He came before Judge Ingram, in the District Court at Tauranga, on 30 June 2016, for sentence.

[2] Mr Peka-Hazel was sentenced to an effective term of imprisonment of one year and six months, and ordered to pay reparation. The Judge ordered that the first payment be made 28 days following his release from custody.¹

Facts: the burglary charge

[3] Judge Ingram was alert to the unusual circumstances of the burglary offending. He described them in some detail in his sentencing notes. My summary is taken from the summary of facts to which Mr Peka-Hazel entered his plea of guilty.

[4] For about one year prior to the offending, Mr Peka-Hazel lived with his former partner and children at a rented property in Tauranga. On one occasion during that time he had an abusive verbal altercation with his landlord, in relation to unpaid rent. At that time, Mr Peka-Hazel threatened to set fire to the landlord’s house.

[5] In March 2016, as a result of failing to meet rental payments, Mr Peka- Hazel’s former partner and children were evicted from the property. They agreed to move possessions from the property on 20 March 2016, but this did not occur until

24 March 2016. Indeed, even then not all of their possessions were moved. The majority were left behind in a garage, together with some rubbish.

[6] The following weekend, the landlord and some of her friends went to the house to undertake some painting work in preparation for the arrival of new tenants. The majority of that work was finished by 5pm on 27 March 2016. At that stage, the

_{landlord left the address both locked and otherwise secure.}

¹ Police v Peka-Hazel [2016] NZDC 12227, at para [22].

[7] At about 7pm that night Mr Peka-Hazel, his former partner and one of their children arrived at the property. He gained access to the dwelling by kicking the front door and breaking out a deadbolt. Without authority, he entered the dwelling. He was followed by his former partner and child. Mr Peka-Hazel went upstairs and caused extensive damage to the house.

[8] Mr Peka-Hazel tipped paint over the floor and walls of the bedroom. Some paving stones were used to smash five of the upstairs windows. In addition, Mr Peka-Hazel used a concrete masonry block, which he threw at interior walls on a number of occasions. Some went through the gib wall lining and pierced external cladding.

[9] Having caused that damage, Mr Peka-Hazel, his former partner and child returned to their vehicle and left. Initially it was estimated that the cost of repairs would be in excess of $5,000. By the time Mr Peka-Hazel was sentenced, the victim had indicated that reparation could be fixed at $1,000. I do not have any information to indicate whether any insurance payments have been taken into account in assessing the quantum payable by way of reparation. Certainly from the description of the damage caused, the estimate of something in the region of $5,000 seems more realistic.

Facts: the unlawful taking of a motor vehicle charge

[10] The charge of unlawful taking of the motor vehicle arose out of events that occurred in April 2016. Between 1 and 20 April 2016, Mr Peka-Hazel went to Autostop Garage in Tauranga with his Subaru motor vehicle. He arranged for the vehicle to be repaired at those premises. Mr Peka-Hazel was supplied with a courtesy car to use in the meantime. He was told that vehicle was to be returned on

20 April 2016, at which time his own motor vehicle would be ready to uplift.

[11] Mr Peka-Hazel telephoned the garage requesting an extension of time, so that he could use the vehicle until 28 April 2016. Having received an affirmative answer to that request, he failed to return the vehicle by that time and made no further contact with the garage. It was not until 3.20am on 7 May 2016 that Mr Peka-Hazel

was stopped driving the courtesy car in Mt Maunganui. The vehicle has since been returned to the garage.

Sentencing in the District Court

[12] So far as the burglary was concerned, Judge Ingram took the view that Mr Peka-Hazel’s offending should not be treated in a manner akin to what he described as a “typical burglary”. The Judge said:

[9] This case is quite different from the typical burglary which involves entering a property to take other property and remove it, basically it is burglary by theft. But this is not burglary by theft, it is burglary by smashing up a place and doing as much damage as you reasonably could in relation to it. It is not dissimilar in a way to an unsuccessful arson and certainly the motivation behind the offending is not betterment for you but to do damage to the owner of the property.

[10] I am sure you will understand me when I say that if everybody behaves like this there will not be any rental properties because who would ever trust somebody who is going to behave like that when they are evicted from a property for the basic reason that they have not paid their rent. In short, Mr Peka-Hazel, I regard this as a particularly unpleasant burglary. It is quite different to the usual course of burglaries and I am only too well aware of the dismay that the owner of the property felt.

[13] Judge Ingram regarded the sentencing goals of denunciation, deterrence and accountability as the primary focus for sentencing purposes. He considered that “no sentence short of imprisonment could ever be appropriate for this kind of carry-on”.²

In determining a sentence for the lead charge of burglary, the sentencing Judge said:

[14] I take into account the gravity of the offending and the seriousness of the type of offence and I need to be consistent with sentences imposed for similar offending. I take into account the effect on the victim and impose the least restrictive outcome which in my view has to be imprisonment and nothing short of that.

[15] The aggravating features here are obviously unlawful entry and presence in a dwelling place. The extent of the damage that you have done. The victim is of course vulnerable, this is premeditated behaviour and you have got a number of prior convictions, although I accept none for burglary and you are entitled to credit for a relatively prompt guilty plea and an offer of reparation of $20 per week.

[16] In those circumstances, dealing firstly with the burglary, I am satisfied on the basis of the authorities and statutory factors that in these circumstances a sentence of imprisonment is required and no lesser sentence

² Ibid, at para [12].

could ever be appropriate. In my view an appropriate starting point is 18 months’ imprisonment. I would allow you credit for six months for your guilty plea and your offer to pay reparation in the sum of $1000 at $20 per week.

[17] Taking all those matters into account, in relation to the charge of burglary, you will be convicted and sentenced to imprisonment for a period of 12 months. Leave to apply for substitution of sentence is declined. The absence of a recommendation for release conditions, there will be none.

[14] On the charge of unlawful taking of a motor vehicle, Mr Peka-Hazel was sentenced to six months imprisonment. That was imposed cumulative upon the sentence of 12 months imprisonment for the burglary. The Judge said in relation to that charge:

[19] In relation to the unlawful taking of the motor vehicle, this is just another deliberate piece of dishonesty on your part. There is absolutely no excuse for it and in my view an appropriate starting point there would be a sentence of nine months’ imprisonment. I give you three months credit for your guilty plea.

[20] On that charge, you will be convicted and sentenced to imprisonment for a period of six months, that is cumulative on the burglary charge. Leave to apply for substitution of sentence is declined and for the reason I have explained, there will be no release conditions.

Competing submissions

[15] For Mr Peka-Hazel, Mr Holmes has submitted that the effective end sentence of 18 months imprisonment is manifestly excessive. In respect of each charge, Mr Holmes contends that the starting point taken was too high. Further, he submits that the Judge erred in any event in declining to give leave to apply for a substituted sentence of home detention. At the time of sentencing there were difficulties with the imposition of a sentence of home detention due to the unfavourable opinion of the Assessor as to the suitability of the premises. That was the reason why the focus was on the possibility of a substituted sentence rather than commuting the imprisonment to home detention for immediate sentencing purposes.

[16] For the Crown, Ms Shore submits that the end sentence was within the range available to the sentencing Judge and that he Judge did not offend against the totality principle. She submitted that a sentence of imprisonment was necessary for the

offending. The fact that the Judge reached that conclusion was sufficient to justify his decision to refuse leave to apply for a substituted sentence.

Analysis

[17] In my view, the success or otherwise of this appeal turns on the need to assess whether the end sentence was within the bounds available to the District Court Judge. That is the test to be applied. The Court of Appeal in Tutakangahau v R³ has emphasised the need to focus on the end sentence when determining an appeal under s 250 of the Criminal Procedure Act 2011.

[18] On the unlawful taking charge, a starting point of nine months imprisonment was taken, with a credit of three months for the guilty plea. That credit amounted to

33 percent. On the burglary charge, the chosen starting point was 18 months imprisonment and an allowance of six months imprisonment was given both for the guilty plea and an offer to pay reparation. The total credit in respect of the burglary charge also equated to 33 percent.

[19] Given the likelihood that the early plea dominated the calculation of the credit for the burglary charge, it is fair to say that it was very generous, given the customary maximum credit of 25 percent to which the Supreme Court referred in Hessell v R.⁴

[20] In my view, the Judge was right to take the view that imprisonment was necessary to respond to offending of this type. Section 16(2) of the Sentencing Act

2002 enables a sentence of imprisonment to be imposed where it is necessary to achieve the purposes of holding Mr Peka-Hazel accountable for the harm he did,⁵ to instil in him a sense of responsibility for what occurred,⁶ to provide for the interests of the victim of the offence,⁷ to denounce the conduct in which he was involved,⁸

_{and to deter Mr Peka-Hazel and others from committing the same or similar}

³ _{Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 (CA) at para [36].}

⁴ _{Hessell v R [2011] 3 NZLR 607 (SC), at para [75].}

⁵ _{Sentencing Act 2002, s 7(1)(a).}

⁶ _{Ibid, s 7(1)(b).}

⁷ _{Ibid, s 7(1)(c).}

⁸ Ibid, s 7(1)(e).

offences.⁹ Leaving to one side the question of the length of the term of imprisonment imposed, I have no doubt that the Judge was correct to conclude that a sentence of imprisonment was required.

[21] The offending, particularly in relation to the burglary, was serious. In effect, it was a premeditated attack on the building, which appears to have been undertaken in spite as a result of the prior eviction for non payment of rent. The damage caused was significant. The emotional harm caused by the violation of the premises to the victim was also high. That meant that a stern starting point was required to mark the offending.

[22] It is open to argument, as Mr Holmes rightly submitted, whether the chosen starting point for the burglary offending was too high. However, when looking at the issue as one of totality, other considerations become important.

[23] The first is that there was no uplift for Mr Peka-Hazel’s previous convictions. They included breaching community work and driving offences. Ordinarily, an uplift would have been given. Mr Peka-Hazel benefited from the absence of one.

[24] It is also clear that the credit for the early guilty plea and the offered reparation was very generous. That probably should have amounted in the case of the burglary, to no more than 28 percent allowing an additional credit of three percent to represent the reparation. Even that, on some views, may not have been appropriate. Comments made to the probation officer (who wrote the Provision of Advice to the Courts), suggest that any indication of remorse given by Mr Peka- Hazel was overstated.

[25] Likewise, it might be said that the starting point for the unlawful taking charge was too high. But, the same considerations apply with regard to the absence of any uplift and a generous credit for mitigating factors.

[26] This was a case in which it was appropriate for the Judge to impose cumulative sentences. The offending was different in kind and justified discrete

⁹ Ibid, s 7(1)(f).

penalties being imposed.¹⁰ The accumulation of sentences has not been challenged seriously on appeal.

[27] That leaves the question of totality.¹¹ While there may be room for differences of opinion as to how the end sentence might have been structured, I cannot say that the effective end sentence was “wholly out of proportion to the gravity of the overall offending”. That being so, as a matter of totality, the sentence should be allowed to stand to mark the offending in total.

Result

[28] In those circumstances, I am satisfied that the sentence imposed by the

District Court Judge was within the range available to him. For that reason, I

_{dismiss the appeal.}

_{P R Heath J}

¹⁰ _{Ibid, s 84.}

¹¹ Ibid, s 85.