Tamaka v Police - [2012] NZHC 2340

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-76 [2012] NZHC 2340

BETWEEN HUIA TAMAKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 September 2012

Counsel: C Milnes for Appellant
S A McClean for Respondent

Judgment: 12 September 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1] Ms Tamaka was sentenced in the District Court at Lower Hutt to two months’

imprisonment on six shoplifting charges.

[2] This was by no means the first time Ms Tamaka had been convicted of such offending. She has 29 previous convictions for shoplifting. The property stolen (mostly clothing) was recovered, but $25.60 worth of groceries stolen from New World Thorndon was damaged in the course of disposal as Ms Tamaka was chased by security staff from the supermarket.

[3] On the most recent occasions on which Ms Tamaka had been convicted of shoplifting, in 2010/11, the sentences imposed were reparation, community work (100 hours) and community detention (four months). Between 2006 and 2010
Ms Tamaka’s record was clean. In 2004 she was also given six months’ supervision
on shoplifting charges. Ms Tamaka had not previously been sentenced to any term of imprisonment.

TAMAKA v NEW ZEALAND POLICE HC WN CRI 2012-485-76 [12 September 2012]

[4] The Judge felt on this occasion it was necessary to imprison Ms Tamaka. In part that was because, as the Judge put it:

You do not consent to a home detention sentence because you fear that will impact on the children. I think you should have thought of those sorts of things before you went out stealing on this day.

[5] Unfortunately, the Judge’s impression was mistaken. A satisfactory home detention address in Taita existed. The Department of Corrections report stated that a sentence of home detention had been refused by Ms Tamaka for the reasons given by the Judge. But that was wrong. Ms Milnes (who appears for Ms Tamaka) has produced the electronic monitoring offender agreement signed by Ms Tamaka. Contrary to the impression given to the Judge by the Department of Corrections report, Ms Tamaka had consented to home detention. She had not signed the section of the report refusing to consent with an electronic monitoring sentence at all.

[6] It follows that the sentencing of Ms Tamaka has proceeded on a fundamentally mistaken premise. A sentencing option available to the Court was not considered, because of an error in the Corrections Department report. That error does not seem to have been picked up by anyone – Judge or counsel – at the time of sentencing.

[7] I accept that this is a case in which a custodial sentence was appropriate. I distinguish the position of Ms Tamaka from another offender, who was involved in some of the offending, a Ms Heke, whose appeal against sentence I have today allowed. Ms Heke was sentenced by the Judge to six weeks’ imprisonment, but I have concluded that that sentence was manifestly excessive given, in particular, Ms Heke’s previous record and the importance of having regard to…

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.

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Details

Case: [2012] NZHC 2340
Decision Date: 12 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Tamaka v Police involved the appellant, Ms Tamaka, appealing against her two-month imprisonment sentence imposed by the District Court at Lower Hutt on six shoplifting charges. The primary issue before the court was whether the sentencing judge had erred by not considering a home detention sentence, which was available to Ms Tamaka but omitted due to an incorrect report from the Department of Corrections. The court also had to decide whether the custodial sentence was appropriate given Ms Tamaka's extensive criminal history and whether the sentence should be altered or upheld.

The court found that the sentencing judge's decision to impose a custodial sentence was based on a fundamental error; Ms Tamaka had consented to a home detention sentence but this was incorrectly reported. Although a custodial sentence was deemed appropriate given Ms Tamaka's 29 prior convictions, the court concluded that home detention should have been considered as a viable alternative. Despite the error, the court acknowledged that the nature of Ms Tamaka's offences warranted a custodial sentence due to her recidivist behavior. However, because Ms Tamaka had already served approximately half of her sentence, it was deemed impractical to switch to home detention. Consequently, the court reduced the sentence to one month's imprisonment.

In light of the findings, the court set aside the original sentence and directed a new sentence of one month's imprisonment, which both parties agreed was appropriate. The reparation order in favor of New World for the damaged groceries remained in place. This decision underscored the importance of accurate information in sentencing and the need to consider all available options, even if, in this case, it led to a reduction rather than a complete alteration of the sentence.

Orders