Tafere v Police - [2020] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000419

[2020] NZHC 3303

BETWEEN
TEWODROS TAFERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2020

Appearances:

L O Smith for the Appellant

J M Phillips for the Respondent

Judgment:

14 December 2020

JUDGMENT OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: Mrs L O Smith, Barrister, Auckland

TAFERE v NZ POLICE [2020] NZHC 3303 [14 December 2020]

[1] On 22 May 2020, Tewodros Tafere was sentenced by Judge P J Sinclair to 30 months’ imprisonment on two charges of burglary, three charges of receiving and one charge each of being unlawfully in an enclosed yard, using a document and possession of a glass pipe.1 He had been in custody for 10 and a half months at the time of his sentence. By my calculations, he was then immediately eligible for parole. He now appeals against sentence as being manifestly excessive.

[2] On 6 November 2020, after serving another five and a half months of his sentence, Mr Tafere was granted electronically monitored bail by Judge Sinclair to the Grace Foundation, a residential rehabilitative facility, pending his appeal to this Court.

The law

[3]On an appeal against sentence, the Court must allow the appeal if satisfied:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

Otherwise the Court must dismiss the appeal.2

Fresh evidence

[4] Because he had already been in custody for 10 and a half months and wanted to be sentenced that day, Mr Tafere waived his right to a pre-sentence report. A pre- sentence report would have outlined personal factors which may have provided the basis for a discount in addition to that for his pleas of guilty.

[5] Counsel has therefore now obtained a report dated 20 November 2020 under s 27 of the Sentencing Act 2002, which outlines Mr Tafere’s background and suggests a link between his struggles as a child refugee from Ethiopia who did not know

1 Police v Tafere [2020] NZDC 9148.
2 Criminal Procedure Act 2011, s 250(2) and (3).

whether his parents were alive or dead and his subsequent problems with addiction and offending to feed his methamphetamine habit.

[6] Mr Tafere now makes application for leave to file the report as fresh evidence on appeal. The Court of Appeal has recently found that it was in the interests of justice and not prejudicial to the Crown to admit s 27 reports on appeal where the information was “highly relevant to the appeals.”3

[7] In this case, the Crown is neutral on the admission of the report, given the detail on Mr Tafere’s background and circumstances it provides. It is therefore admitted on appeal as fresh evidence.

Discussion

[8] It is apparent that the Judge did make an error in the sentencing imposed on conviction. The Judge concluded:4

Because a pre-sentence report has not been…

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 Tafere v Police

Details

AGLC: Tafere v Police [2020] NZHC 3303
Case: [2020] NZHC 3303
Decision Date: 14 December 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tewodros Tafere appealed against his sentence for burglary, receiving, and other charges. The appellant, Mr Tafere, argued that the sentence was manifestly excessive. He had already served part of his sentence and was granted electronically monitored bail pending the appeal. The legal issue was whether the sentence imposed was manifestly excessive and if a different sentence should be imposed. The court found that the judge had made an error in the sentence imposed as it was not possible to convert a 30-month imprisonment sentence to home detention. The court considered the appellant's background and circumstances and admitted a report as fresh evidence. The court concluded that it was appropriate to have regard to the report in calculating a sentence and granted a 15% discount for the appellant's lesser moral culpability because of his depression and addiction. The court quashed the original sentence of 30 months' imprisonment and imposed a sentence of three months' home detention to be served at the Grace Foundation.

The court found that the appellant's background and circumstances were highly relevant to the appeal and that it was appropriate to have regard to them in calculating a sentence. The court considered the appellant's struggles as a child refugee from Ethiopia, his unknown parentage, and his subsequent problems with addiction and offending to feed his methamphetamine habit. The court granted a 15% discount for the appellant's lesser moral culpability because of his depression and addiction. The court imposed a sentence of three months' home detention to be served at the Grace Foundation, with standard conditions set out in s 80C of the Sentencing Act 2002, and additional conditions to attend and engage in any Grace Foundation programmes and activities at the direction of and to the satisfaction of both the provider and the Probation Office.

Orders