Rota v R - [2012] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

CA463/2011
[2012] NZCA 49

BETWEEN TUTEMAPU ROTA
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: M J Phelps for Appellant
M Lillico for Respondent

Judgment: 29 February 2012 at 11.00 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe existing term of imprisonment of three years is quashed and substituted with the following sentences to be served concurrently:
(a)For the burglary offence 19 months imprisonment.
(b)For the offence of unlawfully getting into a motor vehicle, two months imprisonment.
(c)For each of the three breaches of release conditions, one month’s imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

Mr Rota pleaded guilty in the District Court at Napier to charges of burglary, unlawfully getting into a motor vehicle (indictably laid) and breaches of release conditions (three charges summarily laid). The guilty pleas to the charges of burglary and unlawfully getting into a motor vehicle were entered at the first callover on 24 May 2011.
These offences have maximum terms of imprisonment of ten years, two years and one year respectively.
Mr Rota appeals against a sentence of three years imprisonment imposed by Judge Adeane[1] on the ground that the sentence is manifestly excessive.

Factual background

[1]R v Hermaloto DC Napier CRI-2011-041-452, 1 July 2011.

On 8 February 2011 a Mazda double-cab trade vehicle was stolen from the premises of a Gisborne company. The next day, a week day, the appellant and three others, Messrs Hemaloto, Waiwai and Stephens, went in this vehicle to a residential property in Napier during daylight hours. The vehicle was driven to the back of the house and the back door was broken to gain entry, causing damage to the extent of $300. All except Mr Stephens entered the house and took items from it. Property valued at about $4,000 was taken including a large television screen, jewellery, a set of speakers, ipod, a docking station, car speakers and clothing.
A neighbour alerted the police who pulled over the vehicle. Mr Waiwai later drove it away in a dangerous manner. When subsequently stopped by police, an imitation pistol and roll of masking tape were found in the vehicle.
The offenders were apprehended. All the stolen property was recovered together with the motor vehicle, which was undamaged.
The breaches of release conditions related to the appellant’s failure to report to his probation officer on three occasions in March, April and May 2011. He had been released from prison on 28 April 2010 with 16 months of release conditions.

Personal background

Mr Rota is aged 20 years. He reports that his childhood developed around gang culture, members of his extended family being gang affiliates. He has previous convictions in the District Court and notations in the Youth Court. These relevantly include: in the Youth Court, four burglary offences in 2006 and 2007, and unlawfully taking a motor vehicle in 2006; and in the District…

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 Rota v R

Details

AGLC: Rota v R [2012] NZCA 49
Case: [2012] NZCA 49
Decision Date: 29 February 2012

CaseChat Overview and Summary

Tutemapu Rota appealed against a sentence of three years imprisonment imposed on him by Judge Adeane, arguing that it was manifestly excessive. Rota had pleaded guilty to charges of burglary, unlawfully getting into a motor vehicle, and breaches of release conditions. The Court of Appeal allowed the appeal, quashing the existing sentence and substituting it with a sentence of 19 months imprisonment for the burglary, two months imprisonment for the unlawful taking of a motor vehicle, and one month’s imprisonment for each of the three breaches of release conditions, all to be served concurrently. The starting point for the burglary was considered to be 20 months imprisonment, with an uplift of four months for the other offending. This resulted in a revised starting point of 24 months imprisonment. The Court allowed a discount of five months for the guilty pleas, resulting in an end sentence of 19 months imprisonment for the burglary offence. The Court found that the starting points were too high, the cumulative sentences were excessive, and the total sentence was manifestly disproportionate to the gravity of the overall offending.

Orders