Taleni v Police

[2015] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-397 [2015] NZHC 61

BETWEEN

HERMAN TALENI

Appellant

AND

THE NEW ZEALAND POLICE Respondent

Hearing:	3 February 2015
Appearances:	E Piutau for Appellant C McCool for Respondent
Judgment:	3 February 2015

JUDGMENT OF TOOGOOD J

TALENI v THE NEW ZEALAND POLICE [2015] NZHC 61 [3 February 2015]

[1]      Herman Taleni has appealed against a sentence of two years six months’ imprisonment imposed on a single charge of burglary by Judge S McAuslan in the District Court at Manukau.  Ms Piutau, for the appellant, argues that the sentence is manifestly excessive because the Judge erred in adopting a starting point that was too high having regard to the circumstances of the offence and the offender.

Facts

[2]      The   brief   facts   leading   to   the   appellant’s   conviction   were   that   on

29 August 2014 at about 8:40 pm, the appellant entered a domestic property on Princes Street, Otahuhu.   He walked down the driveway, and entered an unlocked garage where he stole two BMX bicycles valued at $150 each.  The appellant was apprehended in possession of the bicycles shortly after the burglary.   He pleaded guilty at the earliest opportunity.

The appellant’s personal circumstances and previous history

[3]      Despite being aged only 23, the appellant has 31 previous convictions for burglary, all of which were committed within the space of about three months in

2011.  In 2012 he received a sentence of two years six months’ imprisonment for this offending and had only recently been released on parole when he committed this latest offence.  His release date was somewhere in mid-May 2014 and this offending occurred at the end of August.

[4]      Prior to being sentenced to imprisonment in 2012, the appellant had only two previous convictions for unlawful interference with a motor vehicle for which he had received community-based sentences.   Both of those offences were committed in

2011.    So,  his  burglary  offending,  which  is  the  most  serious  of  his  previous offending, was confined to a relatively short period when he was still a relatively young man.

[5]      On 4 August 2014, just over three weeks prior to the burglary and also, of course,  while he was serving post-release parole, the appellant  committed three separate  offences   of  causing  wilful   damage   for  which   he  received   further

community-based sentences.   It would seem that he had been apprehended on the wilful damage charges but not sentenced on them when he committed this index offence.  It is unclear whether he has completed those sentences of community work, although it seems unlikely.  Judge McAuslan recorded that the appellant also owed nearly $22,000 in unpaid reparation for his earlier offending.

The sentencing Judge’s approach

[6]      Addressing the appellant’s personal circumstances, the Judge said he was assessed at being at a high risk of reoffending, he has no legitimate employment, and he lacks family support in New Zealand having moved here from Samoa when he was 11 years old but having lost meaningful contact with his family members.  The appellant has four children with whom he has no contact and his current partner is pregnant. All of this suggests that he is a wholly irresponsible young man.

[7]      The District Court Judge regarded the probation officer’s recommendation of intensive supervision as unrealistic.  That is probably the least that could be said of that proposition. The Judge considered there were significant aggravating features of the burglary.  The appellant had black gloves and a screwdriver at the time of his apprehension and Judge McAuslan drew the inference that the offending was premeditated.  She noted that he was on parole for the same type of offending and regarded the circumstances of this offence and the three wilful damage charges as showing that, despite having been recently released from prison, the appellant persisted in criminal offending.  It may be that the probation officer thought that a period of intensive supervision would enable the appellant to come to terms with his release into the community.  But all that would do is continue to pose a risk to the community as is evidenced by the early offending after release.   I presume that during his parole period the appellant was in contact with the probation service.

[8]      The Judge accepted a prosecution submission that a two years and six months starting point was appropriate in light of the appellant’s previous history and the circumstances of his offending, but applied a 25 percent reduction in the sentence on account of the early guilty plea.  Ms Piutau informed me from the Bar that during the discussions prior to formally sentencing the appellant, Judge McAuslan referred to a

starting point related to the offending of two years with an uplift of six months on account of previous convictions.  I accept that the Judge may well have had that in mind; it is, at least, consistent with the way in which she expressed her view in the decision.

Approach on appeal

[9]      A sentencing appeal under s 250(2) of the Criminal Procedure Act 2011 must be allowed if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.  It is important to emphasise the second part of that proposition.  It is necessary not only to show that there is an error but also that it resulted in a sentence being imposed which should be altered on appeal. In any other case, the Court must dismiss the appeal.1     The statutory provision reflects the approach previously taken by the courts under the Summary Proceedings Act 1957,2  and the setting aside of a sentence on the basis that it is manifestly

excessive is a “well-ingrained” approach.3

[10]     Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles.  In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.4

The appropriate approach to sentencing in this case

[11]     The conventional sentencing approach, which should have been adopted by the District Court Judge in her expressed reasons but may have been adopted in her reasoning, is for the court to determine an appropriate starting point which reflects the seriousness and the circumstances of the offence, having regard to both aggravating and mitigating factors.  The court then applies any increase or decrease

which  may be justified  by aggravating or mitigating  personal  factors,  including

1      Criminal Procedure Act 2011, s 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

3      At [33], [35].

4      Ripia v R [2011] NZCA 101 at [15].

demonstrable genuine remorse.  Finally, the court allows an appropriate discount for an early guilty plea; the extent of the discount depending on the time at which and the circumstances in which the plea was entered.5

[12]     Because of the variety of circumstances in which burglaries occur, there are no tariff decisions.  In R v Nguyen,6 the Court of Appeal considered that the range of factors which relate to the criminality of the offending in burglary cases include the degree of planning and sophistication in the offending; the nature of the premises entered; the kind and value of the property stolen; any damage done; the impact upon the owner’s property; and the extent of the offending where multiple burglaries are involved.  In Arahanga v R7 the Court of Appeal said that burglary of a domestic residence was a significant aggravating feature due to the heightened risk of confrontation with the occupants.  For similar reasons, burglaries committed at night are generally regarded more seriously than those committed in daylight.8

[13]     Nightime burglaries of dwelling houses at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years six months’ imprisonment.9      A starting  point  of  12  months’ imprisonment  may  be

adopted for a single daylight burglary of an opportunistic nature.10    Here the Judge

described only a two-stage approach to assessing the appropriate sentence, taking into account in assessing what she described is a starting point of two years six months’ imprisonment, both the circumstances of the offending and the offender, including his previous convictions.

The relevant features of this case

[14]     The  burglary  was  committed  at  night  in  respect  of  domestic  residential premises,  although  I accept  that  the property which  was  entered  was  a garage. Nevertheless, there was a risk of confrontation at night with the property owner.  The

property was worth only $300 and it was recovered immediately.   That may be

5      R v Taueki [2005] 3 NZLR 372 (CA); Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC); R

v Clifford [2012] 1 NZLR 23 (CA).

6      R v Nguyen CA110/01, 2 July 2001 at [17].

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

8      Senior v Police (2000) 18 CRNZ 340 at [18].

9      Arahanga v R, above n 7, at [78].

10     R v Columbus [2008] NZCA 192.

entirely due to good work by the Police officers.   I agree with the Judge that the possession by the defendant of gloves and a screwdriver indicate premeditation, even though the screwdriver may not have been necessary for him to enter the unlocked garage.

[15]     Taking the more conventional approach to setting the starting point, a starting point of between 18 months and two years’ imprisonment would have been justified for this offending in my view.

[16]     Although it is not uncommon in burglary sentencing for a prior history of burglaries to be taken into account in setting the starting point, I will address that issue discretely.

[17]     The commission of a burglary by the appellant while he was on parole after having been recently released from serving a lengthy sentence for a large string of burglaries requires a significant uplift as a personal aggravating factor.   I consider that an uplift of nine months would be appropriate on that account.  That is not to punish the appellant twice for his earlier offending, but to recognise the need for added deterrence, a factor noted by the District Court Judge, and the protection of the community.  Applying a nine month uplift to each end of the range would result in a sentence of between 27 months and 33 months.  Then allowing a discount of 25 percent for the early plea would bring the effective end sentence within a range between 20 and 24 months’ imprisonment.

Decision

[18]     The sentence imposed by the District Court Judge was at the mid-point of that range.  Despite Ms Piutau’s careful and helpful submissions I am not persuaded that the sentence imposed, while a stern one given the value of the property stolen and the fact that it was a single offence, was outside the range available to the sentencing Judge.

[19]     Accordingly, I dismiss the appeal.

……………………….

Toogood J