IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2014-416-000004 [2014] NZHC 894

BETWEEN	DAWSON RULE-WINIATA
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	2 May 2014	

Appearances:	
C Scott for Appellant
F E Cleary for Respondent	

Judgment:	
2 May 2014	

(ORAL) JUDGMENT OF ANDREWS J

Solicitors:
Woodward Chrisp Lawyers, Gisborne
Crown Solicitor, Gisborne

RULE-WINIATA v NEW ZEALAND POLICE [2014] NZHC 894 [2 May 2014]

Introduction

[1]       The appellant, Mr Dawson Rule-Winiata, was sentenced by Judge Adeane in the District Court at Gisborne on 18 February 2014 to two years and three months’ imprisonment for offending involving multiple burglaries, unlawfully taking a motor vehicle, and theft.1   He has appealed against sentence on the ground that the sentence imposed was manifestly excessive.

Background

[2]       On 15 December 2013 the appellant and his associate discussed the need to get items that could be sold for petrol money for travel to Taupo from Gisborne.  The appellant went to a neighbouring property and saw keys sitting in the ignition of a vehicle.   He entered the house and removed a laptop, tablet, mobile phone, and wallet as the victim slept.  He reversed the vehicle out of the driveway and picked up his associate. They sold the stolen items for cash.

[3]       Between 18 December and 21 December, the pair were in Tokoroa.   The appellant gained entry into a house by climbing in a window.  He let his associate in. They stole a 42 inch television and a laptop.  While looking for somewhere to sell the items, they entered another property via the back door and took items including a PlayStation and cellphone. The occupier of the address observed them leaving.

[4]       On 23 December 2013, the appellant and his associate observed a window open at a residential address.   The appellant gained entry and let his associate in. They took a PlayStation, clothing, and alcohol.  The items were sold for $150 cash. On 27 December, the appellant let himself in to another house and took a mobile phone and keys.   He was chased by the occupier.   Also on 27 December, he approached a vehicle and observed keys inside.  He entered it and drove off, heading toward Taupo.   The next night he returned to Tokoroa and left the vehicle at an empty house.

[5]       On 1 January 2014, the appellant gained entry to a house through a sliding door.  He took an Xbox and games, Nintendo DS and games, and a mobile phone, which were later sold for $250.  On 2 January, he entered another house and took car keys and then drove a motor vehicle from the address to Taupo.

District Court Decision

[6]       The appellant was sentenced on seven charges of burglary (one of which involved property worth over $5000), two charges of unlawfully taking a motor vehicle, and one charge of theft.

[7]       The Judge noted the appellant’s age (he is 17 years old) and the fact that he has no previous convictions.   He took this into account, and noted that that “the incidence of burglary in this part of the country is considerably higher than any other place in New Zealand”.2   His Honour took a starting point of three and a half years’ imprisonment and allowed a 25 per cent guilty plea discount, reaching two years and seven months’ imprisonment.  He then imposed a four month discount to reflect the
appellant’s  youth.   In deciding on  an appropriate discount for  youth, the Judge referred to the fact that the appellant had been cited for misconduct in prison.

Submissions

[8]       Ms  Scott  submitted  for  the  appellant  that  the  Judge  failed  to  properly consider relevant mitigating factors, including the appellant’s youth, lack of previous convictions, and rehabilitative prospects.

[9]       She submitted that the four month discount given for youth was insufficient. She cited Churchward v R for the proposition that impulse control in young persons is slow to develop and adolescents are prone to act impulsively3 and referred to the pre-sentence report which highlighted the appellant’s lack of forethought and reasoning and identified developmental deficiencies and vulnerability to peer pressure.  Ms Scott submitted that the maximum discount available for youth should
have been applied.

2	At [4].
3	Churchward v R [2011] NZCA 531.

[10]     Ms Scott submitted that an appropriate sentence would have been a short sentence of imprisonment with leave to apply for home detention under s 80I Sentencing Act  2002.    While  the  appellant’s  mother  had  declined  to  allow  her address to be used for home detention, another family member might provide an address.

[11]     Ms Cleary submitted for the respondent that whilst youth is a mitigating factor, it is not a determinative factor in sentencing and will not always justify reducing an otherwise proper sentence.4   She submitted that the four month discount, whilst not generous, was appropriate given the seriousness of the offending and the appellant’s  attitude  and  behaviour  while  on  remand.    The  seriousness  of  the offending could have justified a higher starting point.

[12]     Ms Cleary submitted that in Pouwhare v R, the Court of Appeal endorsed the analysis in R v Mako, that youth may be a mitigating factor but “it would only encourage [the practice of aggravated robberies committed by teenagers] to impose lower sentences unless there are real prospects of rehabilitation and an unlikelihood of reoffending”.  Here, the pre-sentence report revealed that the appellant displayed little insight into his offending or victim empathy, he was at a medium to high risk of reoffending and causing harm to others, and he had displayed concerning behaviour while in custodial remand, such that any discount for youth should be balanced against the appellant’s conduct and attitude on remand.

[13]     Ms Cleary submitted that no discount was required for lack  of previous convictions, and the Judge was right not to impose a discount for the appellant’s rehabilitative prospects.  She further submitted that even if a shorter sentence were imposed on appeal, the appellant is not suitable for home detention, in the respondent’s submission.   He has shown an inability to abide by the  rules and regulations of a controlled environment i.e. his juvenile facility.

Approach to appeal

[14]	Section 250 of the Criminal Procedure Act 2011, states that the Court must allow the appeal if satisfied that:
(a)	for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)	a different sentence should be imposed.

[15]	In any other case, the Court must dismiss the appeal.5   This section confirms the approach taken by the courts under the Summary Proceedings Act.

[16]	This approach to set out in Yorston v Police where the Court said: 6

a)   There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle.”

b)   To establish an error in sentencing it must be shown that the Judge in the lower  Court  made  an  error  whether  intrinsically  or  as  a  result  of additional material submitted to the appeal Court.

c)   It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17]	The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Relevant authorities

[18]	There is no tariff case for burglary as the range of circumstances in which the offence can be committed is so varied.7   In  Arahanga v R the Court of Appeal said
that:8

Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling-house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[19]     In Arahanga v R, Mr Arahanga appealed against his sentence of five years’ imprisonment on two counts of burglary, one of unlawfully taking a motor vehicle, and one of escaping lawful custody.  Mr Arahanga and his co-offender broke into an

5	Criminal Procedure Act 2011, s 250(3).
6	HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].
7	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
8	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

unoccupied holiday bach, he being armed with a carving knife.   They took a television, DVD player, stereo unit and other items.  They broke into another bach while the occupants were asleep and stole electrical items.   They took a vehicle parked at the front of the property.  The Court upheld a starting point of four years’ imprisonment, and the appeal was dismissed.

[20]     In Reynolds v Police, Mr Reynolds appealed against his sentence of four years’ imprisonment for offending which included 15 burglaries of residential dwellings.9   The properties were deliberately targeted as Mr Reynolds thought there would be high value televisions present that he could sell.  On the burglary charges the District Court Judge had taken an end point of three years (starting point not mentioned, three  years reached  after discounts  for guilty plea,  co-operation and youth), however reduced to two years and six months to reflect totality.  On appeal,
the three year end point was not considered to be manifestly excessive.

[21]   In Sell v Police, Mr Sell appealed against his sentence of three years’ imprisonment (from a starting point of four years’ imprisonment) for 12 charges of burglary committed over the course of one month, together with other offending.10
The burglaries were mostly residential.  Electronic equipment, cash, jewellery, and rifles were taken.  Mr Sell was 19 at the time of offending and had four previous convictions.   On appeal, the starting point was was considered to be excessive. Three and a half years’ imprisonment was more appropriate in the circumstances, even taking into  account the  additional offending.   Following discounts for co- operation and age, the end sentence was two years’ imprisonment.

[22]     In Hauraki v Police, I allowed an appeal against a sentence of two years and six months imprisonment for seven charges of burglary, one of unlawfully taking a motor vehicle, one of theft of a motor vehicle, one of theft from a vehicle, use of a document and shoplifting.11   The offending occurred over a period of six weeks and involved her entering private homes, taking items and on some occasions selling them, taking items from a Farmers Store and from a Polytechnic. Ms Hauraki was 17
years old at the time of the offending.  I held that an appropriate starting point was

9	Reynolds v Police HC Palmerston North CRI-2008-54-1787, 11 February 2009.
10	Sell v Police HC Invercargill CRI-2008-425-32, 16 December 2008.
11	Hauraki v Police HC Whangarei CRI-2007-488-49, 6 September 2007.

two and a half years’ imprisonment, with an uplift of six months for totality reduced by 12 months for guilty plea, youth, and absence of previous convictions.  The end sentence (after appeal) was two years’ imprisonment.

[23]     Youth of an offender can be a mitigating factor and falls for consideration under the test of whether a sentence is manifestly unjust.12    Addressing youth as a mitigating factor is in accordance with Sentencing Act 2002 s 8(g) (least restrictive sentence in the circumstances) and s 25(i) Bill of Rights Act 1990 (a child should be dealt with in a manner that takes account of the child’s age).

[24]     Youth has been held to be relevant during sentencing in the following ways:13

(a)       Age  related  neurological  differences  between  young  people  and adults, including that young people may be more vulnerable or susceptible to negative influences and pressure, and may be more impulsive than adults;

(b)       The effect of imprisonment on young people – long sentences may be crushing;

(c)	Young people have a greater capacity for rehabilitation, particularly
as their characters are not as well formed as adults’.

[25]     The effect of imprisonment on a young person is relevant under s 8(h) of the Sentencing Act, which requires the Court to take into account any particular circumstances of the offender which make a sentence which would be otherwise appropriate disproportionately severe.14   The Court of Appeal in Slade has accepted that the effect of imprisonment on youth differs from that on adults.15    Youths can experience high levels of depression, anxiety, suicidal ideation etc.  For example in
Churchward a minimum period of imprisonment of 17 years’ imprisonment would have been almost as long as Ms Churchward had been alive, which could have a crushing effect on her.  Also relevant here is recognising a young person’s sense of
time in order to treat a young person in a way that takes account of his/her age.16

12	Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76].
13	At [77].
14	At [87].
15	R v Slade [2005] 2 NZLR 536 (CA) at [43]–[53].
16	Churchward, above n 12, at [87].

[26]     Rehabilitative prospects are also a relevant consideration and a young person should not be regarded as beyond help unless that conclusion is inescapable.17   The principle that  youth may lead to a sentence reduction is not founded  solely on consideration for young people, it also recognises that there is benefit to the community in ensuring that rehabilitation is available and that an offender will not emerge from prison worse off.18    The relevance of rehabilitative prospects depends on the circumstances of the case.

[27]     Cases after Churchward suggest that there should be a discount for youth based on neurological differences between youths and adults, as distinct from rehabilitative considerations.   The Court’s commentary in BB v R suggests that a discount for youth based on the consideration of neurological differences between youths and adults can be applied separately from any discount for rehabilitative prospects.19    This suggests that a discount would be applied for youth to recognise reduced culpability, and an additional discount applied for rehabilitative prospects (or perhaps just a greater youth discount), but the absence of rehabilitative prospects
would not prevent a youth discount as Mako would suggest.

[28]     In Tahiri v R, the offender received a discount for youth despite showing a lack of motivation to reform.20     The discount was to recognise neurological differences – his culpability was reduced.  On appeal, the Court did not disturb the discount but commented to the effect that if the offender had accepted responsibility from the start, his remorse and rehabilitative prospects might have been given greater weight.  This suggests that rehabilitative prospects can be considered separately and
lack of such prospects does not rule out a youth discount.

[29]     In Hood v R, the Court of Appeal would not have disturbed a discount given for youth which recognised that Hood’s culpability was reduced due to vulnerability and susceptibility to negative influences.21    Likewise in R v Hall, the neurological
differences between youths and adults justified a discount.22

17	At [88].
18	At ]90].
19	BB (CA732/2012) v R [2013] NZCA 139.
20	Tahiri v R [2013] NZCA 73.
21	Hood v R [2012] NZCA 212.
22	R v Hall [2012] NZCA 518.

[30]     I observe, first, that the Judge applied the guilty plea discount before the discount  for  youth.    A  guilty  plea  discount  should  be  applied  after  all  other reductions, on the sentence that would have been imposed but for the appellant’s guilty plea.23

[31]     There were seven charges of burglary here.   The Judge’s starting point of three and a half years’ imprisonment was high with reference to Reynolds, where a three year end point (starting point not mentioned) was within range for 15 counts of burglary, and Sell, where a three and a half year starting point was appropriate for 12 counts of burglary.   The starting point here was also high in comparison with Hauraki, which is similar to this case – seven burglaries committed in a spree of offending involving the unlawful taking of a motor vehicle and theft.

[32]     I have concluded that the appropriate starting point would have been three years’ imprisonment.   Whilst the appellant’s rehabilitative prospects appear to be low, this does not rule out a youth discount, following Churchward.    Applying a 10 percent discount (4 months) for youth to the starting point of three years, I reach a sentence of two years and eight months imprisonment.   Applying the guilty plea discount  of  25  per  cent  (eight  months),  I reach  an  end  sentence  of  two  years’ imprisonment.  On that analysis, I conclude that there was an error in the sentence imposed, and that a different sentence should be imposed.

[33]     This is a “short term sentence”24  which means this Court could consider sentencing  the  appellant  to  home  detention  if  satisfied  that  a  proposed  home detention address was suitable.25     There is no such address available, and home detention cannot be considered.  In any event, even if an address were available, the matters referred to by the Judge at sentencing would indicate that home detention is
not a realistic option.

23	Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
24	Sentencing Act 2002, s 4(1).
25	Sentencing Act 2002, s 80A (2)(a)(i).

[34]	The appeal is allowed. The sentence of two years three months imprisonment is quashed and a sentence of two years imprisonment imposed in its place.  I do not
give leave to the appellant to apply for substitution of a sentence of home detention.

Andrews  J