R v Tamatea
[2012] NZCA 443
•27 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA425/2012 [2012] NZCA 443 |
| BETWEEN THE QUEEN |
| AND SHARLENA TAMATEA |
| Hearing: 19 September 2012 |
| Court: White, Ronald Young and Simon France JJ |
| Counsel: D J Boldt and F E Cleary for Appellant |
| Judgment: 27 September 2012 at 3.30 pm |
JUDGMENT OF THE COURT
A Leave to appeal is granted.
B The appeal is allowed.
CThe sentence of nine months’ home detention and 180 hours’ community work is vacated. The order of $500 reparation is set aside.
DA sentence of two years eight months’ imprisonment is substituted.
EMs Tamatea is directed to surrender herself to the Registrar of the District Court at Wellington on or before 10 am on Monday, 1 October 2012.
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REASONS OF THE COURT
(Given by White J)
Introduction
Following pleas of guilty by the respondent, Ms Tamatea, to one count of burglary and one count of injuring with intent to injure, she was sentenced by Judge Davidson to nine months’ home detention and 180 hours’ community work, and ordered to pay reparation of $500.[1]
[1] R v Tamatea DC Wellington CRI-2011-032-3830, 19 June 2012.
The Solicitor-General appeals against the sentence on the ground that it was manifestly inadequate[2] in that:
(a)the Judge’s starting point of three and a half years’ imprisonment was too low;
(b)discounts totalling 18 months were excessive; and
(c)the Judge erred in electing to commute the sentence to home detention.
Factual background
[2]R v Wihapi [1976] 1 NZLR 422 (CA) at 424; and R v Donaldson (1997) 14 CRNZ 537 (CA) at 549.
At around midnight on 28 July 2011 Ms Tamatea, together with her sister, Sansan Turi, and two unknown male associates went to the home of Ms Tamatea’s former partner. He and his new partner (the victim) were asleep in a bedroom in the home at the time.
Ms Tamatea and her associates kicked in the front door of the house and then forced the bedroom door off its hinges. Ms Tamatea and Ms Turi verbally abused the victim and punched and kicked her repeatedly about the head and upper body as she lay naked on the bed. Ms Turi took a beer bottle from the kitchen and continued the attack on the victim’s head and upper body.
During the attack Ms Tamatea’s former partner managed to leave the address and to go to a neighbour’s house to call the police. After assaulting the victim Ms Tamatea and her sister left the address. The two male associates were not directly involved in any of the violence, although their presence would have been intimidating.
The victim received a cut to her forehead requiring stitches, bruising to her head, and bruising and swelling to her right hand, forearm, upper arms and legs.
When interviewed by the police, Ms Tamatea denied any involvement in the offending. She even denied knowing her former partner.
Ms Tamatea and her sister were initially charged with aggravated burglary and injuring with intent to injure, but after discussions with the Crown the aggravated burglary charge was reduced to burglary in respect of Ms Tamatea. She then pleaded guilty to the two charges on the basis of an amended summary of facts, which stated that it was her sister who had taken and used the beer bottle.
Prior to Ms Tamatea’s sentencing, her sister sought a sentencing indication. On the charges of aggravated burglary and injuring with intent to injure, Judge Davidson gave Ms Turi an indication of three years nine months’ imprisonment.[3]
[3] R v Turi DC Wellington CRI-2011-032-3830, 22 February 2012.
Ms Tamatea’s pre-sentence report records that she told the writer of the report that “she actively went looking for the victims and intended to hurt them.” The report also recorded that Ms Tamatea demonstrated little remorse for her actions and was indifferent to how they affected the victim.
Ms Tamatea has four children aged from two months to six years. She is supported by her extended family, including the father of her children who despite not residing with them is involved in their day to day care.
Ms Turi was sentenced after Ms Tamatea to a term of imprisonment of three years and three months.[4]
The Judge’s sentencing
[4] R v Turi DC Wellington CRI-2011-032-3830, 2 August 2012.
The Judge adopted a starting point of three and a half years’ imprisonment on the following basis:
[16] The Crown accept that you did not use the bottle and therefore note that your culpability must be assessed as lower than your sister. However, the Crown note that you were a full participant in the forced entry into the home and the sustained assault on the victim. Mr Eng submits the starting point should sit at around 4 years’ imprisonment.
[17] Your counsel argues for a lesser starting point, something in the order of 3 to 3½ years. She notes, as I have already observed, that forced entry is a feature of the burglary charge; that although 2 men entered the house as well, they did little, if anything; that you have always wished to plead guilty; that you have demonstrated remorse to her; that you have family support and significant childcare commitments.
[18] Ms Tamatea, sentencing for you is very difficult. It is also very troubling because of what may ultimately be quite a significant disparity between you and your sister. I am hamstrung to some extent by the sentencing indication hearing for your sister ... .
[19] Here, the 2 of you, together with 2 others, forced entry into the house of your former partner to confront him and his new partner. There was a sustained and nasty assault on her, resulting in moderately serious injuries. The absolute least starting point that I could adopt would be imprisonment for 3½ years. Anything less than that would be plainly inadequate. That is the starting point I adopt.
The Judge dealt with mitigating factors as follows:
[20] I give you a credit of 3 months’ imprisonment for your compliance with a curfew over a period of many months. I give you a further credit of around 6 months’ imprisonment for your family support, your willingness to engage in rehabilitation programmes and your childcare commitments. Those features in the round show that you are unlikely to re-offend.
[21] Those 2 credits reduce the sentence to around 33 months’ imprisonment before credit is given for your plea of guilty. I intend to give you the full credit for your plea of guilty. The court file does note that as early as November last year you indicated a willingness to plead guilty.
[22] All of that would lead to an end sentence of 2 years’ imprisonment.
The Judge then determined that home detention was appropriate in light of Ms Tamatea’s compliance with bail, family support and childcare commitments.[5]
[5] At [23].
The Judge noted the difficulty in reconciling Ms Tamatea’s sentence with her sister’s sentencing indication:
[11] I need to mention the position of your sister because I have to say I am troubled by it. Your sister pleaded guilty to charges of aggravated burglary and injuring with intent to injure after a sentence indication by me. I had indicated an end sentence for her of 3¾ years’ imprisonment. ... .
[12] As I observed late last week when her matter was before the court, you later pleaded guilty to burglary and injuring with intent to injure. The ultimate outcome in sentencing for both of you may be such that there is quite a distinction. I have to say I am troubled about that because, undoubtedly, you were in the room when the bottle was used and you did nothing to stop it.
We address in turn each of the three submissions raised by the Crown in support of the appeal.
The starting point
For the following reasons, we accept the submission for the Crown that a starting point of three and a half years’ imprisonment for these offences was too low.
First, in accordance with s 85(4) of the Sentencing Act 2002, it was necessary for the Judge to assess the totality of the offending as a whole and then, after identifying the appropriate total starting point and discounts, attach the final total sentence to one charge, the lead charge, and impose lesser concurrent sentences for the other charge(s). It was important to follow this approach in this case where the burglary was not a classic burglary in that the crime to be committed was assault not theft.
Second, in light of the totality of the offending, the starting point of three and a half years was too low. We accept that the culpability of Ms Tamatea was less than that of her sister because, as the amended summary of facts made clear, it was not in dispute that it was her sister who took the beer bottle and used it to hit the victim. But at the same time, Ms Tamatea’s actions were at the more serious end of the range of offending with a significant number of aggravating features present: premeditation;[6] unlawful group entry at night into a dwelling place;[7] the sense of violation and insecurity for Ms Tamatea’s former partner and the victim who were asleep when the intruders broke in;[8] and actual violence to the victim who was naked at the time and who suffered relatively significant injuries.[9]
[6] Sentencing Act 2002, s 9(1)(i).
[7] Ibid, s 9(1)(b); and R v Nguyen CA110/01, 2 July 2001 at [17]–[18].
[8] Ibid, s 9(1)(g).
[9] Ibid, s 9(1)(a).
Third, these aggravating features justify a starting point for the totality of the offending of five years’ imprisonment and show that the Judge’s selection of a starting point of only three and a half years’ imprisonment was manifestly inadequate.
We do not accept the submission for Ms Tamatea that the Judge’s starting point was appropriate and that the Crown had overemphasised the aggravating features of the offending. In particular, we do not accept the suggestion that Ms Tamatea’s decision to confront the victim was impulsive. Her statement to the author of the pre-sentence report that “she actively went looking for the victims and intended to hurt them” established premeditation. The absence of an updated victim impact report did not undermine the serious nature of the injuries suffered by the victim. While Ms Tamatea may not have used the bottle herself and cannot be treated as a party to her sister’s aggravated burglary, she continued to beat the victim while her sister used the weapon.
Although the Crown submitted that a starting point of five years ought to have been adopted by the Judge and that any starting point lower than four and a half years would be manifestly inadequate, we consider that the appropriate starting point should be four years’ imprisonment because that was the level sought by the Crown in the District Court. While lenient, it was not so wholly out of range as to merit a departure on an appeal by the Solicitor-General.
Discounts
For the following reasons, we agree with the Crown that the Judge’s discounts totalling 18 months were excessive.
First, a credit of three months’ imprisonment for Ms Tamatea’s “compliance with a curfew over many months” was not warranted when it is recognised that Ms Tamatea’s curfew was between 9.00 pm and 7.00 am. While a discount may be appropriate in cases involving a 24 hour curfew or a substantial time spent on electronically monitored bail,[10] this will not always be the case.[11] Here, where Ms Tamatea’s curfew could not be described as a significant restriction on her freedom of movement, we do not consider that any credit was appropriate. Ms Brown was unable to refer us to any relevant authority supporting a different approach in a case of this nature.
[10] R v Iosefa [2008] NZCA 453 at [43]; and Schuster v R [2011] NZCA 343 at [12].
[11] R v Nichols CA406/02, 16 June 2003 at [36]–[37].
Second, a further credit of six months’ imprisonment for Ms Tamatea’s “family support ... willingness to engage in rehabilitation programmes and ... childcare commitments” was not appropriate when it is recognised that none of these factors was particularly remarkable. In our view these factors justified a discount of no more than three months’ imprisonment, meaning a reduction from a starting point of four years’ imprisonment to a term of three years nine months.
Third, Ms Tamatea was not entitled to a full credit of a further nine months (27.3 per cent) for her guilty pleas. While Ms Tamatea was entitled to a further discount for her guilty pleas, the discount should have recognised the benefit she received from pleading to a lesser charge and the strength of the Crown case.[12] In our view a discount of no more than 20 per cent was appropriate. This would result in a sentence of three years’ imprisonment.
[12] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60] and [62].
The difference between this sentence and the sentence of three years and three months’ imprisonment imposed on Ms Turi adequately differentiates between the charges they faced and their respective culpability.
Ms Tamatea is, however, now entitled to a further credit for the period she has been on home detention. As her sentence of home detention commenced on 19 June 2012, she has served a period of some three months. In our view this entitles her to a credit of four months’ imprisonment which leaves a final sentence of two years eight months.
Home detention
In view of our conclusion that the appropriate sentence prior to the credit for the period of home detention already served was three years’ imprisonment it is unnecessary for us to consider the Crown’s third ground of appeal.
Substitution of a custodial sentence
We recognise that before increasing the sentence imposed on Ms Tamatea and substituting a custodial sentence, we must be satisfied that the considerations justifying an increase are sufficiently compelling and that any injustice to the offender is avoided.[13] For the reasons we have given, however, we are satisfied that the sentence imposed by the Judge was manifestly inadequate and that it would not be appropriate to reduce the sentence further to two years’ imprisonment in order to be able to consider a sentence of home detention. This case involved two serious charges with aggravating features that required the imposition of a relatively lengthy term of imprisonment. None of the mitigating factors justified a greater reduction than we have accepted. We have also taken into account the advice in the pre-sentence report that Ms Tamatea’s children were previously able to be cared for by her extended family and their father.
Result
[13] R v Donaldson, above n 2, at 549–550.
The Solicitor-General’s application for leave to appeal is granted and the appeal is allowed. The sentence of nine months’ home detention and 180 hours’ community work is vacated. The order of $500 reparation is set aside.
A sentence of two years eight months’ imprisonment is substituted.
Ms Tamatea is directed to surrender herself to the Registrar of the District Court at Wellington on or before 10 am on Monday, 1 October 2012.
Solicitors:
Crown Law Office, Wellington for Appellant
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