R v Takamore - [2020] NZHC 1328

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-035-1361

[2020] NZHC 1328

THE QUEEN

v

AARON TAKAMORE

Hearing: 12 June 2020

Appearances:

G J Burston for Crown (via AVL)

J C Hannam for Defendant (via AVL)

S Nicholls and K Herbert for Department of Corrections (via AVL)

Re-sentencing:

12 June 2020

SENTENCING NOTES OF THOMAS J

(APPLICATION TO CANCEL AND SUBSTITUTE SENTENCE)

[1] Mr Takamore appears today in relation to the application by the Department of Corrections (the Department) to cancel the sentence of 12 months’ home detention imposed on 13 September 2019.1 The Department seeks that the sentence be cancelled and substituted with imprisonment.

Background

[2] On 13 September 2019, I sentenced Mr Takamore to 12 months’ home detention in respect of one charge of aggravated burglary. I arrived at that sentence

1 R v Takamore [2019] NZHC 2315.

R v TAKAMORE [2020] NZHC 1328 [12 June 2020]

by assessing a starting point of five years, taking into account the seriousness of the offending, reduced to four years to reflect Mr Takamore’s lesser participation in the offending. I then considered mitigating factors personal to Mr Takamore, being his personal circumstances and cultural factors, remorse, time in custody on remand and his guilty plea to arrive at a sentence of 24 months’ imprisonment before considering whether a sentence of home detention was appropriate.

[3] I noted that, from the outset, the Crown had recognised that Mr Takamore’s case was one in which home detention would be appropriate. Mr Takamore was sentenced to home detention at the address assessed as suitable, together with special and standard detention and post-detention conditions.

[4] In November 2019, and without the matter having been referred to me, Mr Takamore’s home detention address was changed to that of his mother. Mr Takamore left the address without the Department’s consent, leading to his being remanded in custody on 19 January 2020. The Department then applied to cancel the sentence and for Mr Takamore to be resentenced to imprisonment.

[5] In March 2020, Mr Takamore was convicted of two charges of breach of the sentence of home detention. On 19 March, I dismissed the Department’s application to cancel the sentence of home detention, the effect of which was that Mr Takamore’s sentence of home detention imposed on 13 September 2019 continued to run. The home detention address reverted to the original home detention address.

[6] On 8 May 2020, the occupant of the home detention address requested Mr Takamore’s removal. He has been in custody since that date.

[7] Despite numerous attempts, no suitable address for home detention is available. Mr Takamore no longer seeks a continuation of the home detention sentence and is prepared to serve the balance of his sentence as a short term of imprisonment. Mr Hannam confirms that an updated presentence report is not sought.

[8] I also note that Mr Takamore appears by AVL from the Whanganui Prison. We have just gone…

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.

Continue reading R v Takamore

Details

AGLC: R v Takamore [2020] NZHC 1328
Case: [2020] NZHC 1328
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Takamore involved a re-sentencing application by the Department of Corrections to substitute the defendant's home detention sentence with imprisonment due to the unavailability of a suitable home detention address. The defendant, Aaron Takamore, was originally sentenced to 12 months of home detention for aggravated burglary, with a starting point of five years reduced to four years, and further reduced to 24 months of imprisonment considering various mitigating factors. The Crown recognised that home detention would be appropriate, and it was initially imposed with specific conditions. However, due to changes in the home detention address and breaches by the defendant, the Department sought to re-sentence him to imprisonment.

The legal issues before the court were whether the court could cancel the home detention sentence and substitute it with imprisonment, and if so, how the substituted sentence should be determined. The court considered the statutory provisions allowing for the cancellation and substitution of a sentence if grounds exist, and the need to consider the portion of the original sentence unserved and the appropriateness of the substituted sentence.

The court reasoned that while there must be some proportionality between the original and substituted sentences, there is no strict correlation or mathematical formula to be applied. The substituted sentence must be one that could have been imposed initially, considering the purposes and principles of sentencing. The court noted the defendant's efforts to rehabilitate and the challenges he faced, including the unavailability of an appropriate home detention address and the impact of the COVID-19 pandemic. The court concluded that the defendant had served half of his home detention sentence and should be credited for that, resulting in a substituted sentence of 15 months of imprisonment, with an additional two weeks for outstanding community work. The court granted the Department's application, cancelling the home detention and community work sentences and imposing the substituted sentence of one year, three months and two weeks of imprisonment, with specific release conditions.

The final orders of the court were that Mr Takamore's sentences of home detention and community work were cancelled, and he was sentenced to one year, three months and two weeks of imprisonment, with standard and special release conditions applied as recommended by the Probation Officer.

Orders