R v Tangiora

[2015] NZHC 1223

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-003858 [2015] NZHC 1223

THE QUEEN

v

TE AIHURANGI EDWARDS TANGIORA

Hearing:	4 June 2015
Appearances:	M Robb for Crown R Weir for Prisoner
Judgment:	4 June 2015

SENTENCING NOTES OF ANDREWS J

R v TANGIORA [2015] NZHC 1223 [4 June 2015]

Charges

[1]      Mr Tangiora, you appear for sentence today having entered pleas to four charges: one of burglary, two of dishonestly using a document, and one of participating in an organised criminal group.   Those guilty pleas were entered following a sentence indication which I gave on 6 May 2015, one week before you were to stand trial on those and other charges.

[2]      The maximum available penalty on the charge of burglary and participation in  an  organised  criminal  group is  ten  years’ imprisonment.    On the  charges  of dishonestly using a document, the maximum available penalty is imprisonment for seven years.

Relevant facts

[3]      For completeness, I will repeat my outline of the facts of your offending from the sentence indication.  You are, or were at that time, a member of a local Hamilton street gang known as the Westside Outlaws.  The Police summary of facts recorded that text data from cellphones used by you and your co-offenders demonstrated your willingness to be involved in offending such as theft, burglary, aggravated robbery and other dishonesty offending, with the aim of acquiring income and assets.

[4]      The  summary  of  facts  recorded  that  on  12  April  2014,  there  was  an aggravated robbery of the Frankton TAB.  On the day of that robbery, there was a meeting  of  the Westside  Outlaws  at  your  address,  involving  you  and  three  co- offenders.   Text messages during that afternoon referred to communications about picking up “a firearm”.  The summary of facts further noted that later that night you and a co-offender went to an address where the co-offender asked the occupant to hold a sum of money, indicating that the money came from a robbery.

[5]      Text communications after then indicated you asking an unknown person to hold (in the words of a text) “loot” that was hidden.   There was further ongoing contact  between  you  and  your  co-offenders  referring,  among  other  things,  to obtaining firearms and being short of money.  There was also discussion about future

offending. The text messages indicated your involvement with arrangements relating to the robbery of a bar on 18 May 2014.

[6]      The charge of burglary against you relates to the burglary of the Te Runanga Kirikiriora Adult Learning Centre in Frankton on 23 May 2014, at 2.14 am.  A safe containing cash, cheque books, bank cards, keys, trade cards, vouchers and other items to a total value of about $5,000 was taken.  A few hours later one of the bank cards was used by you and a co-offender to withdraw $800 in cash.  Later the same day, a cheque for $3,000 was presented in order to obtain cash.

Pre-sentence report

[7]      You are 26, and of Ngati Porou descent.   It is evident that you have the support of your partner of more than ten years.

[8]      You are the fifth of 12 children. Your parents separated when you were about

14 years old.  You then left school without any formal qualifications.  You have had seasonal work, and short periods of other work.

[9]      The  report  writer  concluded  that  you  showed  little  insight  into  your offending.  In particular, it is recorded that you said you were committing crimes in order to survive.    Given your constant offending over the years, the report writer questioned how genuine your remorse and regret were.

[10]     You have an extensive history of criminal convictions – in the District Court dating from October 2005, and before that appearances in the Youth Court, and you have served terms of imprisonment for offending such as burglary and taking motor vehicles.   Your most recent conviction was in October 2014, when you were sentenced to a short term of imprisonment for breaching conditions of a sentence of home detention. Your pre-sentence report records that you had just graduated from a residential Tai Aroha programme when you committed the offences on which you are now being sentenced.

[11]     I have had the opportunity to read, this morning, a letter addressed to me written by you.  I am not going to read out the letter or refer to it in any particular

detail.   What you do say in your letter (and it is very clear from this) is that you appear now to be resolved to do everything that is in your power both to comfort and support your partner through current difficulties she is having, and I also note your statement that you have disassociated yourself from the gang and you say that they will no longer have any impact on your life or the choices that you make.  You say that  your  time  in  custody on  remand  has  enabled  you  to  learn  that  life  is  too important and valuable to be sitting in prison.  That is indeed true, Mr Tangiora, and I hope that you remember that in the future.

Sentencing process

[12]     The first step in sentencing you is to establish what is referred to as the starting point.  This was discussed at the sentence indication hearing and as I said then, a starting point is the sentence that would be imposed on your most serious charge, which is the charge of burglary, if you had been convicted after a trial in Court.  The second step is to determine what adjustments, if any, need to be made to the starting point to reach the sentence which is appropriate for your offending, and for you.  I do this by considering whether there is anything about your offending that would lead me to impose a sentence that is greater or less than the starting point.  I also consider matters that relate to you, personally, they may also lead me to adjust the final sentence.

[13]     When I sentence you I have to take into account the purposes and principles of sentencing.  As to the purposes, I have to hold you accountable – that is, to make you, yourself, responsible for your own offending.  I have to consider deterring you and others, and the protection of the community.   I also have to denounce your offending – what that means is that I must tell you that offending of this nature (indeed, any offending) is unacceptable. At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and to be a useful member of the community.

[14]     In  your  case  the  relevant  principles  of  sentencing  are  to  consider  the seriousness of  your offending, including  your  own responsibility for it, and the seriousness of your offending in comparison with other types of offences.  I also take

into  account  that  sentencing  levels  should  generally  be  consistent.    I  take  into account any information I am given as to the effect of your offending on the victim, and I am also directed to impose the outcome that is the least restrictive outcome that is appropriate in the circumstances.

[15]     Another matter I have to take into account are the outcomes of any restorative justice processes that have occurred.  As you indicated at your sentence indication hearing that you wanted to engage in a restorative justice process, arrangements for that were attempted.   As I understand it, it was not able to be completed either because other people did not wish to be involved or were not able to be contacted.

[16]     It  is  always  desirable  to  keep  an  offender  in  the  community  if  that  is practicable with regard to the safety of the community.  But, the Court can impose a sentence of imprisonment if that is required to achieve the purposes of sentencing that are relevant.

Starting point

[17]     I  have  no  tariff  sentence  to  refer  to  in  respect  of  burglary  that  I  am considering for the starting point.  That is because the circumstances of offending of this nature vary greatly and each sentence must be considered in relation to its own circumstances and in light of the principles and purposes of sentencing.

[18]     I heard submissions as to the offending, at the sentence indication hearing. To summarise these, Mr Robb submitted for the Crown that while the burglary took place at night and at a school, it was not (given the time at which it occurred) offending that was likely to result in your coming into contact with anyone at the school.  Mr Robb acknowledged that your offending, while serious, could be seen as not  having  the  aggravating  feature  of,  for  example,  a  burglary  at  a  residential property.  Further, Mr Robb acknowledged that no essential school equipment such as computers or student equipment were targeted as such.   Nonetheless, it was a burglary of a school, and at night.

[19]     Mr Robb submitted that a starting point of 21 months is appropriate for your sentence.   On your behalf, Mr Weir accepted that 21 months was an appropriate starting point.

[20]     At the sentence indication hearing I then went on to consider what uplift is necessary to reflect the totality of your offending, that is, the two charges of dishonestly  using  a  document,  and  the  charge  of  participating  in  an  organised criminal group.  The reason for considering this is that concurrent sentences will be imposed for all of the offences.

[21]     Mr Robb submitted that you had a more senior role in relation to the charge of participation in an organised criminal group.  In fact, he placed you at the top of the hierarchy.   For that reason, and bearing in mind that you also face the two charges of using a document, Mr Robb submitted that the uplift for the additional charges should be six months.  Mr Weir submitted that he could not disagree with such an uplift.

[22]     Having  considered  the  summary  of  facts  in  more  detail  at  the  sentence indication hearing, I concluded that the uplift for the additional offending, and your greater role in relation to the charge of participation in an organised criminal group, should in fact be eight months.

[23]     Both Mr Robb and Mr Weir submitted that a further uplift could be applied, to reflect the need for additional deterrence shown by the fact that you have previous convictions for dishonesty offending.   I concluded that this uplift should be three months and that led to an adjusted starting point of 32 months’ imprisonment.

Personal factors

[24]     Before turning to the discount to be given for your guilty plea, I have to decide whether I should allow any discount in relation to matters that relate to you, personally.   I note that your pre-sentence report records that you expressed some remorse for your offending, you were reported as saying you felt disgusted, and that you wanted to make peace with the Runanga for what you did.  You said that your

offending was an attempt to help your little brother, who had started prospecting for a gang, and owed a debt for dishonesty offending.

[25]     I have already referred to the letter that I have read this morning.  I also note at this point Mr Weir’s advice to me that you have employment arranged for when your sentence is completed. These are all matters which stand in your favour.

[26]     I recognise that your willingness to take part in restorative justice is also a positive indication, and notwithstanding that that process never went ahead, I conclude that it should be recognised in some way.

[27]     I  accept  that  you  should  be  given  a  discount  of  around  15  percent,  to recognise that you pleaded guilty to these charges before your trial. At your sentence indication I indicated an end sentence of 25 months’ imprisonment.  As I said at the start of the hearing today, when I gave that indication of 25 months the guilty plea discount (when I check the calculation) was in fact nearer to 22 percent, which was not my intention.  Nevertheless, the sentence indication stands at 25 months.  But I have concluded that in the circumstances of the remorse that you have expressed and steps you have taken both in attempting the restorative justice process and in having employment arranged for you, the appropriate sentence for your offending is in fact a lesser one than 25 months.

[28]     Would you please stand.

Sentence

[29]     On the charge of burglary you are sentenced to imprisonment for twenty- three months.   On each of the charges of dishonestly using a document you are sentenced to two months’ imprisonment.  On the charge of participating in a criminal group you sentenced to six months’ imprisonment.  All sentences are to be served concurrently so the effective end sentence is 23 months.

[30]     As a sentence of less than two years imprisonment, the standard conditions set out in the Parole Act 2002 would not necessarily apply.   It is my view that conditions as set out in s 14 of the Act should apply to you following your release. Accordingly, Mr Tangiora, I impose the standard conditions as set out in s 14 of the

Parole Act 2002 to apply following your release.  I understand from the information I

have that in fact that release would occur fairly shortly.

[31]     The Crown has offered no evidence on charges 2, 3, 4, 5 and 6 in the Charge

Sheet, and on those charges you are discharged.

[32]     Thank you. You may stand down.

Andrews J