Taia v Police

[2016] NZHC 44

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000047 [2016] NZHC 44

BETWEEN

LAWRENCE TAIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 February 2016
Appearances:	E Forster for Appellant M Mitchell for Respondent
Judgment:	2 February 2016

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TAIA v NEW ZEALAND POLICE [2016] NZHC 44 [2 February 2016]

[1]      Mr Taia pleaded guilty in the District Court to two charges of burglary, one of theft and two charges of breaching his bail conditions and one charge of breaching a sentence of community work.  On 1 October 2015, Judge Adeane sentenced Mr Taia to 22 months imprisonment.1   Mr Taia appeals against sentence on the basis that the Judge ought to have considered granting leave to Mr Taia to apply for cancellation of the sentence of imprisonment and substituting in its place a sentence of home detention.2

[2]      The lead charges were the charges of burglary.   The summaries of fact in respect of these record that on 9 April 2015 Mr Taia was part of a group of persons in Gisborne who entered a dwellinghouse and stole several items from it.  These included television sets, a laptop computer, alcohol, a camera and a quantity of currency.  Then, on 17 August 2015, Mr Taia entered a dwellinghouse in Hastings and stole an Apple iPad and a packet of cigarettes.  When he was disturbed by the occupant of the address, he left the house and hid in the garage of a neighbouring address.   He was found there a short time later and the police located the stolen items.

The Judge’s decision

[3]      The Judge’s sentencing notes do not make any reference to the issue of home detention.     The probation report recorded that the possibility of an electronically monitored sentence had not been able to be progressed due to Mr Taia’s mother being  in Australia.    Mr  Forster  advises  me  that  he  sought  an  adjournment  of sentencing so that this issue could be canvassed further.  He tells me that the Judge advised  him  that  a  sentence  of  home  detention  was  unrealistic  in  all  the

circumstances, and elected to continue with sentencing.

1      New Zealand Police v Taia [2015] NZDC 19828.

2      Sentencing Act 2002, s 80I.

Decision

[4]      Two factors persuade me that the Judge’s assessment of the situation was correct.  The first is that Mr Taia must now be regarded as a recidivist burglar.  He has six previous convictions for burglary.  The present charges were also serious in that both involved burglaries of residential dwellinghouses, one of which was occupied.  On that basis and given Mr Taia’s history, this offending cannot be viewed as at the lower end of the scale.

[5]      A deterrent sentence was accordingly required.   The Judge was entitled to take the view that a sentence of home detention was not sufficiently punitive in nature to reflect the sentencing principles of deterrence, denunciation and the need to hold the offender accountable for his actions.

[6]      Secondly, Mr Taia has an unenviable record of breaching Court orders and conditions.   These include convictions for breaching prison release conditions, breaching home detention conditions, breaching sentences of community work and driving whilst disqualified.  Any sentence of home detention involves an element of trust, because the offender cannot be monitored whilst serving the sentence as would be the case if a custodial sentence was imposed.  Mr Taia’s criminal history makes it clear that he is not a person who is prepared to abide by conditions and sentences imposed by the Court.  For that reason the Court could have no confidence that he would abide by any conditions that might be imposed ancillary to a sentence of home detention.  I therefore consider the Judge was entitled to exercise his discretion not to consider a sentence of home detention.

Result

[7]      The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier