Tafengatoto v Police

[2018] NZHC 2452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-231

[2018] NZHC 2452

BETWEEN

ROBIN TAFENGATOTO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 September 2018
Appearances:	H C W Redwood and A A Prasad for Appellant E J Smith for Respondent
Judgment:	18 September 2018

ORAL JUDGMENT OF PALMER J

Solicitors:

Public Defence Service, Auckland Meredith Connell, Auckland

TAFENGATOTO v NEW ZEALAND POLICE [2018] NZHC 2452 [18 September 2018]

What happened?

[1]    Mr Robin Tafengatoto, aged 41, pleaded guilty to burgling a residential house in Herne Bay, Auckland, early in the morning of Monday 22 January 2018. He entered the house by pulling out slats in a secured window. While the victim was asleep in his bedroom, Mr Tafengatoto searched the home and removed electronic items, jewellery and a wallet to the value of $12,500. CCTV footage from a neighbour’s house captured Mr Tafengatoto near the property at 6.11 am with a backpack. When he was arrested on an unrelated matter on 5 February 2018, he was found in possession of a SkyCity Premium Rewards card that had been in the wallet. He pleaded guilty on his first appearance.

[2]    At the time of the offending, Mr Tafengatoto was on bail for two charges of unlawfully taking a motor vehicle in October and December 2017. The latter unlawful taking involved Police attempting to stop him due to his speed. Once stopped, he ran off when approached by Police. He has 23 previous convictions for burglary which all occurred in the mid to late-1990s, apart from one in 2013, and convictions for a number of other offences.

District Court decision

[3]    On 27 March 2018, Mr Tafengatoto was sentenced to 11 months’ imprisonment on the two charges of unlawfully taking a motor vehicle. On 4 July 2018, in the Auckland District Court, Judge B A Gibson sentenced him to an additional two and a half years’ imprisonment for the burglary charge.1 The Judge took a starting point of two and a half years’ imprisonment, uplifted that by three months for his offending on bail and six months for his previous convictions and discounted the result by 25 per cent for an early guilty plea. The result totalled two years and six months’ imprisonment. Judge Gibson considered, if Mr Tafengatoto had been sentenced for the burglary at the same time as the other two charges, there would have been a cumulative sentencing. He did not accept any trimming of the sentence was required on that basis. Mr Tafengatoto appeals his sentence.

1      New Zealand Police v Tafengatoto [2018] NZDC 14877.

Law of appeal

[4]    Section 250(2) of the Criminal Procedure Act 2011 requires me to allow an appeal if, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. Otherwise I must dismiss the appeal.

Submissions

[5]    Mr Redwood, for Mr Tafengatoto, submits the Judge erred in adopting a starting point which was manifestly excessive. He submits an appropriate starting point would have been one and a half years. He submits the Judge erred in failing to provide credit for genuine remorse. He also submits the Judge erred in failing to make an adjustment for the totality of the offending and an uplift of eight to nine months on a one-and-a half year sentence would have been appropriate but the sentences could also have been concurrent. As a result, he submits the end sentence was manifestly excessive in the circumstances.

[6]    Ms Smith, for the Crown, submits I should consider in the round whether the overall sentence, in totality, for the burglary and the other two charges is appropriate. She acknowledges there may have been some elements of double-counting in relation to previous convictions, though she submits there is good authority for a significant uplift for previous convictions in these circumstances. She submits any discount for remorse could not have been more than five per cent here, she submits the starting point was within the available range and the end sentence was within range for the three offences so the appeal should be dismissed.

Decision

Starting point

[7]In Arahanga v R, the Court of Appeal stated:2

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).

burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[8]    Here, there was one burglar and one house burgled. The occupant was asleep at the house at the time, in the early hours of the morning. No weapon was used. There was a search of the house and possessions of reasonable value were taken. I have considered the case law referred to by counsel:

(a)I consider the offending is more serious than that in Bates v R, where a starting point of 18 months was adopted for an opportunistic burglary where the offender knew the victims were absent for an unpredictable time.3

(b)I consider it is similar to, but less serious than, that in Stepanicic v R, where the Court of Appeal adopted a starting point of two years’ imprisonment for two burglaries including one where the offender entered the sleeping victim’s bedroom.4 It is similar to, but slightly more serious than, that in New Zealand Police v Toala where a starting point of two years’ imprisonment was adopted for a burglar who kicked in the front door, cut himself leaving blood around the house and stole

$5,000 of property but where no occupant was home.5 The offending was also perhaps similar to that in Wilkinson v R, where a starting point of two years’ imprisonment was adopted for burglary by two offenders, while the occupants were absent during the day, of possessions of a similar value as well as a new Mercedes.6

(c)The offending here was less serious than that in Rigby v R where a starting point of two years and four months’ imprisonment was adopted for two burglaries, one where the occupants confronted three burglars.7 And it was less serious than that in Marsh v R, a single burglary of property worth $90,000 by four burglars, in which the Court of Appeal

3      Bates v R [2016] NZCA 456.

4      Stepanicic v R [2015] NZCA 211.

5      Toala v New Zealand Police [2013] NZHC 3270.

6      Wilkinson v R [2016] NZHC 1845.

7      Rigby v R [2018] NZHC 478.

before Arahanga v R referred to a starting point of two years and three months’ imposed on a co-offender who acted as lookout and loaded the car with stolen goods.8

[9]    Having regard to these authorities, I consider the starting point adopted by Judge Gibson was too high. A starting point of two years’ imprisonment would have been more consistent with them. The difference is more than “tinkering”.

Remorse

[10]   Judge Gibson accepted Mr Tafengatoto was regretful about the offending. I have read his letter and agree. Mr Tafengatoto said he was homeless, living in his car, points to a number of unfortunate family circumstances and affirms his Christian values. The Judge considered Mr Tafengatoto’s expression of remorse, and his personal circumstances, were adequately taken into account by the full 25 per cent discount for the guilty plea, or nine months’ imprisonment. The evidence against Mr Tafengatoto was relatively strong so he was not necessarily entitled to the full 25 per cent for the guilty plea alone but I consider the approach taken by the Judge was available to him. I do note the Judge did not quite give Mr Tafengatoto the full discount of 25 per cent of the 30-month sentence which, strictly speaking, was nine months and three weeks. This, in itself, would not necessarily justify disturbing the sentence, but the error in the starting point requires a new calculation of the discount in any case.

Totality

[11]   Finally, I agree the sentence for burglary in January 2018 is appropriately cumulative on the sentences for unlawfully taking motor vehicles in October and December 2017. It is discrete offending in terms of both time and the nature of the offending. The question is whether the overall sentence is a proper reflection of Mr Tafengatoto’s offending in totality, which I deal with later.

8      Marsh v R [2010] NZCA 445 at [10]–[11].

Revised sentence

[12]   I first approach the sentencing afresh, on the basis of the starting point of two years I consider appropriate for the burglary. I uplift that by the adjustment made by Judge Gibson, which I agree was appropriate, of three months for Mr Tafengatoto’s offending on bail. Since I am making the calculation afresh, I impose an uplift of four months for previous convictions rather than six months. All but one of Mr Tafengatoto’s burglary convictions date to the 1990s, as the Judge acknowledged. The result is two years and seven months which I discount by eight months, which is just over 25 per cent, for remorse and the guilty plea. The result is imprisonment for one year and eleven months. If the burglary had been the lead charge, I consider an uplift of eleven months for the two unlawful takings charges would have been appropriate.

[13]   In terms of totality, Judge Gibson referred to Downs J’s analysis of the authorities on unlawfully taking a car in Wood v Police.9 Downs J observed “a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features”.10 There were two takings here and one involved speed. On the basis of my revised starting point, I agree that making the untrimmed sentence for burglary cumulative on the 11- month sentence for the two unlawful takings charges yields an appropriate overall sentence on the basis of totality.

[14]   I uphold the appeal. I quash the sentence under appeal and instead sentence Mr Tafengatoto to imprisonment for one year and 11 months, cumulative upon his sentence on 27 March 2018 for the two unlawful takings charges. Counsel does anything arise from that? [Nothing did.]

Palmer J