Talamaivao v Police

[2013] NZHC 2769

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-28 [2013] NZHC 2769

FILIPO TALAMAIVAO Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   22 October 2013

Counsel:                  J A Younger for Appellant

D J Flinn for Respondent

Judgment:                22 October 2013

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Talamaivao appeals a sentence of eight months’ imprisonment imposed

following guilty pleas on:

(a)       two charges of breaching community detention; (b)     one charge of breach of intensive supervision;

(c)       one charge of causing loss by deception ($83 of phone calls).

TALAMAIVAO v POLICE [2013] NZHC 2769 [22 October 2013]

[2]      The  maximum  penalties  are  respectively  six  months’  imprisonment,  six months’  imprisonment  and  three  months’  imprisonment.     Judge Lynch  took  a combined starting point of 12 months’ imprisonment.1    It seems the lead offences were the breaches of community detention.

[3]      Of these offences one was at the lower end, and one at the higher.  The lower end offending was breaching curfew.  Seemingly concerned about the care and safety of his children, who were in someone else’s custody, Mr Talamaivao went to the police station around midnight to ask the police to check on their welfare.

[4]      The second breach was removing his monitoring bracelet.   Mr Talamaivao threw it away and it has been lost.  Reparation has been ordered, and no appeal is brought in relation to that.  Generally it seems Mr Talamaivao was in a state over his children and his  ex  partner.   He says he absconded to Auckland, essentially to remove himself from the area for fear of breaching protection orders.

[5]      The breach of supervision relates to a missed appointment, something that occurred two days after he removed the bracelet.  The missed appointment was due to him being in Auckland.

[6]      Mr Talamaivao  has  a  large  number  of  previous  convictions.    He  is  now

32 years old and his record reflects a not unfamiliar pattern of peaking in his late teens/early 20’s, and then diminishing.   However, there is still offending, and a concerning repetition of breaching a protection order.

[7]      The Judge was concerned to impose a deterrent sentence.  His Honour took a

12  month  starting  point  emphasising  the  number  of  previous  examples  of non-compliance.  It was noted that two of the seven breaches of a protection order had resulted in jail terms, and there were two other examples of non compliance, as

well as five convictions for dishonesty (the last in 2002).

1      Police v Talamaivao DC Palmerston North CRI 2013-054-001888, 16 August 2013.

[8]      The Judge accepted there was remorse, and an avowed commitment to take counselling but noted it was not the first time such commitment had been expressed but not followed up on.   Further, rehabilitation opportunities had previously been given and not taken.  His Honour concluded this was an occasion where a message of deterrence to those on electronically monitored sentences needed to be sent.

[9]      The appeal focus at this point is quite narrow, being on the starting point.  It is accepted that the bid for home detention cannot sensibly be now pursued, so what is sought is a reduction in sentence.   No challenge to the credit of four months (33 per cent) for remorse and guilty plea is made.

[10]     I do not consider 12 months was an available starting point for this offending. It is a combined starting point and no breakdown is given, but it must be assumed that one of the community detention breaches – presumably the anklet removal – attracted the maximum or near to it.   And that the other three then attracted a cumulative six months with no totality adjustment.

[11]     It can be accepted that a dim view of taking the bracelet off can and should be taken, but the other three offences are definitely at the lower end.  The other breach of community detention  involves  the unusual situation  of the offender  breaking curfew to go to the police station.   It does not make it right but it was plainly an action of a wrought mind.  The missing of the meeting is a direct consequence of the offence of removing the bracelet, and the theft consisted of making personal calls on a work mobile knowing they could not be paid for and having been sacked.

[12]     All  the  offending  occurred  within  a  one  month  period.    Whilst,  given Mr Talamaivao’s past record, it could never be said it was an isolated lapse, it is clear that for a while he lost the plot.  Mr Talamaivao had otherwise been complying with sentences and convictions.   He was put back on the bracelet and completed his community detention sentence without incident.

[13]     I consider a sentence of eight to nine months was the most that could be imposed for this overall package, even bearing in mind the Judge’s decision to be stern for general deterrence reasons.

[14]     No uplift for past offending was imposed so it is unnecessary to analyse further Mr Talamaivao’s past record.  It seems to have most counted against him on the home detention decision which is no longer in issue.

[15]     Reflecting the Judge’s mitigation approach I reduce the sentence to one of five months, two weeks’ imprisonment.   In order to do this I quash the sentences imposed on the two charges of breaching community detention, and in their place impose:

(a)       on information ending 0457, a sentence of five months, two weeks; (b)         on information 0651, a concurrent sentence of six weeks.

[16]     The sentences on 0474 (two months) and 2242 (two weeks) are unaffected and are intended to be concurrent with the other two sentences.   The reparation

orders are unaffected.

Simon France J

Solicitors:

J A Younger, Barrister & Solicitor, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North