Takarua v Police HC Palmerston North CRI 2010-454-36

[2010] NZHC 2267

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-36

BRIAN LEONARD TAKARUA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2010

Appearances: T Thackery for the appellant

E McCaughan for the respondent

Judgment:      15 December 2010

JUDGMENT OF CLIFFORD J

An appeal against sentence

[1]      Mr Takarua was  sentenced  in  the District  Court  at  Palmerston  North on

14 October 2010 to a term of imprisonment of two years and three months, having pleaded guilty to two charges of burglary, two charges of receiving, one charge of unlawfully being in an enclosed yard and one charge of being found of possession of instruments capable of being used in a burglary.

[2]      Mr Takarua now appeals against that sentence.  He says that the sentence is manifestly excessive.

TAKARUA V POLICE HC PMN CRI-2010-454-36 15 December 2010

Facts

[3]      On 11 January 2010 Mr Takarua and his nephew entered a property at 57

Royal Oak Drive.  Mr Takarua was seen by neighbours at the rear of that property. Mr Takarua and his nephew then left.  As they left, Mr Takarua threw two kitchen knives away into the long grass.  Those events gave rise to the charges of unlawfully being in an enclosed yard and possession of instruments capable of being used in a burglary.  Mr Takarua was charged with those offences on 14 January 2010.

[4]      On  21  January  2010,  and  as  I  understand  matters  after  the  Police  had executed a search warrant at Mr Takarua’s address, Mr Takarua faced further charges of burglary (x 2) and receiving (x 2). As matters had transpired:

(a)      Overnight, between 8 and 9 January 2010, Mr Takarua had broken into a property at 52 Roberts Line by jemmying open a locked aluminium window.   He searched through drawers in a lounge and removed two cameras and a wooden ornament.  He then walked to the garage of the house and stole a mountain bike.

(b)At 2.00am in the morning of 9 January Mr Takarua had broken into a property at 23 Liberty Grove by gaining access through an insecure side door.   The property’s owners were asleep in bed at the time. Mr Takarua entered the lounge and turned on the light.   The noises Mr Takarua made woke the occupants.  The male occupant confronted Mr Takarua in his lounge.  Mr Takarua dropped a TV he had picked up and ran out of the house.  He left behind the property stolen from

52 Roberts Line, together with other property he had received from his  nephew  as  a  result  of  a  separate  burglary  of  an  address  at

45 Meridian  Grove  (giving  rise  to  the  first  charge  of  receiving). Mr Takarua also dropped a bag containing the jemmy tool he had used to force open the aluminium window at 52 Roberts Line.

(c)       When the Police executed the search warrant at Mr Takarua’s address

on 21 January 2010 he was found in possession of goods that had

earlier been stolen from 16 Sorrento Place, namely a watch and a sports bag, which gave rise to the second charge of receiving.

[5]      Mr Takarua faced charges accordingly.

Sentencing decision

[6]      Mr Takarua was sentenced on the basis, which was not in dispute, that he had carried out these burglaries with his 17 year old nephew.  At least one of the charges of receiving related to stolen goods from a burglary for which his nephew was responsible.

[7]      The Judge approached the sentencing exercise on the basis that this offending involved “a fresh bout of theft and other property charges”:   it was – in effect – something of a mini spree of burglaries.

[8]      The  Judge  identified  a  global  starting  point  sentence  of  two  years  with respect to all six charges.   In identifying that starting point, the Judge noted, in particular, the importance of deterrence, not only for Mr Takarua himself but also for his young nephew whose offending Mr Takarua had facilitated by receiving stolen goods.

[9]      Having fixed that global starting point, the Judge then took account of aggravating factors relating to the offending itself.  The Judge noted the aggravating factors that the occupiers of the Liberty Grove property had been woken up and had, in fact, disrupted Mr Takarua as he tried to steal a television set.  Mr Takarua had searched through personal spaces, a matter of particular concern to his victims. Finally, items belonging to children had been stolen.  The victim impact statements referred to the trauma the children had suffered as a result of knowing that their homes, and their own bedrooms, had been entered and items taken.  The Judge also referred to the losses the victims had suffered, noting finally that “there are a total of six charges for which you are for sentence”.   The Judge considered that an uplift of six months was an appropriate response to recognise those aggravating factors.

[10]     The  Judge  then  identified  aggravating  factors  relating  to  Mr  Takarua personally.   These were his lengthy list of previous convictions and that he had attempted to shift blame from himself to his nephew.  The Judge determined that a further six month uplift was appropriate with respect to those matters, resulting, before considering mitigating factors, in a term of imprisonment of three years.

[11]     Finally, the Judge had regard to the mitigating features of Mr Takarua’s guilty pleas, and what the Judge accepted was his obvious remorse and his determination to amend his ways.  Noting that the guilty pleas for most of the offending had come relatively late in the piece, the Judge allowed a six month discount.   In terms of remorse, the Judge added a further discount of three months.

[12]     It was on that basis, therefore, that Mr Takarua was sentenced to two years and three months’ imprisonment.

Grounds of appeal

[13]     For Mr Takarua,  Mr Thackery accepted  as  appropriate  the starting point identified by the Judge, the six month uplift on account of previous convictions and the Judge’s approach to questions of discount.

[14]     Where Mr Thackery said the Judge had  erred,  and  as a result of which Mr Takarua’s sentence was to be seen as manifestly excessive, was in the six month uplift the Judge imposed for aggravating features of the offending itself.   It was Mr Thackery’s submission that, in effect, by reference to the starting point of two years there had been double-counting at this point in the sentencing exercise.  As a result of that, Mr Thackery’s submission was that an end sentence of less than two years was the appropriate outcome.   If such a sentence was imposed, then home detention should be considered.   A home detention report prepared at the time of Mr Takarua’s sentencing confirmed that there was a suitable available address for Mr Takarua.  Having said that, Mr Thackery acknowledged that – by reference to the time for which Mr Takarua had now been in custody (since 1 March 2010 it would appear), there would be little time left to be served on any sentence of home detention.

Discussion

[15]     Mr  Thackery  only  identified  one  element  of  the  sentencing  exercise undertaken by the Judge which he considered could fairly be criticised.  That was, that the Judge “double counted” aspects of the original six charges for which the starting point sentence of two years was identified by referring again to the fact that there was a total of six charges when imposing the six month uplift for aggravating features of the offending.

[16]     There  can  be  difficulties,  such  as  that  identified  by  Mr Thackery,  when Judges identify global starting points for multiple charges.   Where concurrent sentencing is appropriate, as was certainly the case here, identifying a starting point sentence for the lead charge or charges, and then separately identifying an uplift to take account of the overall criminality of the charges involved, helps avoid those difficulties.

[17]     Having said that, and with reference in particular to paragraph 11 of the Judge’s sentencing notes and the aggravating factors he identified, I think the better understanding of the Judge’s sentencing methodology is that when he identified the period of two  years he particularly had in mind the criminality of the burglary offending. At paragraph 3 of his sentencing notes, he had referred to the fact that the particular  burglaries  in  this  case  seemed  to  him  to  be  bad  ones  of  their  kind, involving as they did the burglary of private residences, the invasion of privacy involved and – in one case – the fact that the occupants were in the house at the time and confronted Mr Takarua in the course of his offending.  On that basis, I do not think the contention of double counting is established.

[18]     Even if there were a possible element of double counting, at least on the face of things given the way the Judge recorded his sentencing exercise, I am not persuaded that the end sentence imposed was manifestly excessive.

[19]     In terms of the decision in Senior which,[1]  although not a Court of Appeal tariff  case,  is  generally  accepted  as  being  a  helpful  source  of  information  and guidance for Judges when sentencing on burglary cases, Mr Takarua’s sentence of two years and three months seems to be completely in line with the comment of the Court there that “a recidivist burglar who pleads guilty to say a single offence or even to two or three offences is unlikely to receive a sentence which exceeds three years”.[2]   Moreover, when commenting on Senior, the Court of Appeal in R v Southon recorded that – by reference to then recent decisions – recidivist burglars could not assume that Senior could necessarily be relied upon to limit their sentences to three years.[3]

[1] Senior v Police HC Christchurch A139/00, 19 December 2000.

[2] At [36].

[3] R v Southon CA314/02, 13 February 2003 at [13].

[20]     I acknowledge Mr Thackery’s point that the bulk of Mr Takarua’s previous burglary offending, namely some 29 out of 37 convictions, had occurred in 1983, with only intermittent offending until 1999, and then one further charge in 2006. Given the factual basis upon which Mr Takarua was sentenced, there was however, and as I have noted, something of a fresh “spree” in this offending.   I have also considered  Mr Thackery’s  submission  that  the  sentence  of  two  years  and  three months imposed on this occasion was considerably greater than the sentence of nine months’ imprisonment that had been imposed for burglary in 2006.   Mr Thackery was not able, however, to put the factual details of that offending before me on this appeal.  I did not find that submission of great help.

[21]     I therefore do not consider that, by reference to Senior, this sentence can be regarded as being manifestly excessive.

[22]     I  have  also  considered  a  range  of  other  sentences  for  similar  burglary offending.[4]    I think it is fair to say that the sentence imposed by the Judge falls

within the range of sentences for similar offending imposed in that range of cases.

[4] R v Ngarimu CA431/03, 17 June 2004; R v Greer CA 162/03, 24 May 2004; Snowdon v Police HC Hamilton CRI-2010-419-52, 15 July 2010; Morgan v Police HC Wellington CRI-2010-485-27, 5 May 2010; Cooper v Police HC Auckland CRI-2009-404-000261, 16 November 2009; R v Harding CA 289/04, 26 October 2004; R v Nolan CA144/04, 3 August 2004; R v Herewini CA422/01, 2 May 2002; Cooper v Police HC Dunedin CRI-2010-412-000021, 5 August 2010 and Sunnex v Police HC Christchurch CRI-2010-409-000043, 22 April 2010.

[23]     Taken overall, therefore, I do not consider that this sentence was manifestly excessive.  It was, in my view, a fair and appropriate sentence.

[24]     This appeal is dismissed.

“Clifford J”

Solicitors:   Opie & Dron, P O Box 315, Palmerston North for the appellant. ([email protected])

Crown Solicitor, Palmerston North for the respondent.