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…

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.

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Details

Case: [2018] NZHC 2452
Decision Date: 18 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tafengatoto v Police involved an appeal by Robin Tafengatoto against his sentence for a burglary offence. Tafengatoto had pleaded guilty to burgling a residential house in Herne Bay, Auckland, and was sentenced to two and a half years’ imprisonment by the Auckland District Court. The primary legal issue before the Court was whether the sentence imposed by the District Court was appropriate. The Court was required to determine if there was an error in the sentence that warranted a different sentence to be imposed. The appellant argued that the starting point adopted by the District Court was manifestly excessive, and that the sentence should have been concurrent rather than cumulative. The Crown submitted that the overall sentence was appropriate and within the available range for the three offences. The Court found that the starting point adopted by the District Court was too high and that a starting point of two years’ imprisonment would have been more consistent with the case law. The Court also found that the discount for remorse and the guilty plea was appropriate. However, the Court found that the uplift for previous convictions was excessive and that a four-month uplift was more appropriate. The Court also found that the sentence for the burglary should have been concurrent rather than cumulative. The Court upheld the appeal and imposed a sentence of imprisonment for one year and eleven months, cumulative upon the sentence for the two unlawful takings charges.

Orders