Kalauni v Police - [2015] NZHC 55

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-000007 [2015] NZHC 55

MILLY TEVINA KALAUNI

v

POLICE

Hearing: 3 February 2015

Appearances:

Appellant in Person
L Mills for Respondent

Judgment:

3 February 2015

ORAL JUDGMENT OF WHATA J

Solicitors: Crown Solicitor, Auckland
Copy To: Appellant

KALAUNI v POLICE [2015] NZHC 55 [3 February 2015]

[1] Ms Kalauni was sentenced to ten months imprisonment in relation to five charges of theft, two of possession of cannabis and one of possession of a pipe for methamphetamine. Ms Kalauni appeals against that decision on the basis that an uplift in relation to prior offending of six months was manifestly excessive.

Background

[2] The sentencing notes of Judge E N Aitken succinctly set out the background facts. As the Judge noted, even though the maximum penalty on each of the theft charges is a term of three months imprisonment, the offending was serious.

[3] The relevant facts are identified as follows:

[3] Between 17 August and 10 September you stole cash from four elderly victims. The first was 91 years old, you knocked on her door on the pretence that you needed to use the bathroom. You went into her house and took her wallet.

[4] The second was 88 years old. She befriended you; you returned to the property with her and again found a pretence to get inside and took money from her wallet. She confronted you when she realised what was happening. You left but you took her cash tin with you.

[5] The third victim was 93 years old. You knocked on the door, you asked for some personal female items and you were invited in to be assisted by the 93 year old, you took $500 in cash.

[6] The fourth was 74 years old. You took your child with you. The elderly woman resided with her 87 year old husband. Again you complained of having some female problems. You asked to use the bathroom and you took $220 from her purse and $35 from her husband’s wallet.

[4] As the Judge further noted Ms Kalauni was found in possession of cannabis in October and again in November and on a second occasion a small plant was found at her house.

[5] The Judge accurately described the course of conduct as appalling. The Judge was critical of the fact that Ms Kalauni targeted elderly people and conned her way into their houses. The Judge notes that methamphetamine explains the offending and accepted that Ms Kalauni was deeply remorseful about it. The Judge then noted that aggravating matters while on bail for these offences, Ms Kalauni again persuaded a 93 year old woman to let her into her house and again took cash

from her. Ms Kalauni’s house was searched again and she was found in possession

of a pipe for methamphetamines.

[6] The Judge then approached starting point in this way:

[11] In determining the appropriate starting point it has to be a term of imprisonment, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 55
Decision Date: 3 February 2015

CaseChat Overview and Summary

Milly Tevina Kalauni appealed against her sentence of ten months imprisonment, imposed by Judge Aitken, for multiple charges of theft, possession of cannabis, and possession of a methamphetamine pipe. Kalauni argued that the six-month uplift for prior offending was manifestly excessive. The court examined the severity of the thefts, targeting elderly victims, and the correlation between Kalauni's drug addiction and her criminal activities. The court found the starting point of fifteen months imprisonment appropriate for the thefts, but noted that any uplift for prior similar offending could not be added to the starting point. The court replaced the sentence with eight and a half months imprisonment, taking into account mitigating factors such as Kalauni's rehabilitation efforts and remorse. The court also recommended reconsideration of home detention due to Kalauni's role as a mother of two children.

The primary legal issue before the court was whether the six-month uplift for prior offending in Kalauni's sentence was manifestly excessive. The court considered whether the uplift was disproportionate to the starting point or the sentence imposed for the prior offending, drawing from relevant Court of Appeal authorities. The court further examined the appropriateness of the starting point, taking into account the totality of the offending, including the drug-related charges. The court also assessed the appropriate discount for mitigating factors, such as Kalauni's rehabilitation efforts and remorse, in determining the final sentence.

The court acknowledged the seriousness of the theft charges, which involved targeting elderly victims, and accepted the starting point of fifteen months imprisonment. The court also considered the drug-related charges as separate offending, imposing a two-month sentence for possession. The court determined that the uplift for prior offending was not warranted for these charges. After applying the appropriate discounts for mitigating factors, the court imposed a sentence of eight and a half months imprisonment. The court allowed the appeal, reducing the original sentence and recommending reconsideration of home detention due to Kalauni's personal circumstances and her role as a mother.

Orders