Tarau v Police - [2021] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-65

[2021] NZHC 1793

BETWEEN
TAWHAI TARAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 July 2021

Counsel:

R O Gowing and C A Gentleman for appellant I J Hayden for respondent

Judgment:

15 July 2021

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 July 2021 at 3pm

Registrar/Deputy Registrar Date:

Solicitors:
Gowing & Co, Whakatane for appellant Crown Solicitor, Tauranga for respondent

TARAU v NEW ZEALAND POLICE [2021] NZHC 1793 [15 July 2021]

[1] Tawhai Tarau appeals against a sentence of two years and four months’ imprisonment imposed on him by Judge Bidois in the District Court at Whakatane on 28 April 2021.1

[2] He seeks a reduction of the sentence to one of two years’ imprisonment on the basis that the learned District Court Judge adopted an approach to calculating the appropriate sentence by a method that did not accord with the Court of Appeal’s directions in Moses v R.2 Realistically, Mr Gowing does not suggest that if a sentence of two years’ imprisonment is accepted as being appropriate on appeal, the Court should consider whether a sentence of home detention should be imposed. In part, that is because of the seriousness of the offending, but principally it is because Mr Tarau has been in custody for almost a year and, if a sentence of two years’ imprisonment is imposed, he will be eligible for early release within a matter of weeks.

[3] It is acknowledged on behalf of the respondent that Judge Bidois’ methodology resulted in a lengthier sentence than that which would have been the outcome if the discounts allowed for the several mitigating factors had been applied in accordance with the two-step approach mandated by the Court of Appeal in Moses.

[4] I agree with the approach that counsel have taken and I am satisfied that it is appropriate to allow the appeal and impose a total effective sentence of two years’ imprisonment.

[5]These are my reasons for that view.

The sentence imposed in the District Court

[6]Mr Tarau pleaded guilty to:

(a)driving while disqualified (third or subsequent) (four charges);3

1      Police v Tarau [2021] NZDC 8040.
2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
3      Land Transport Act 1992, ss 32(1)(c) and 32(4)(a) and (b), maximum penalty two years’ imprisonment or a fine not exceeding $6,000 and disqualification for one year or more.

(b)possession of methamphetamine/amphetamine for supply;4

(c)supplying methamphetamine/amphetamine;5

(d)supplying cannabis plant;6

(e)possession of cannabis plant for supply;7

(f)possession of cannabis plant;8 and

(g)obstructing/hindering Police.9

[7] The offending was serious in that 18 grams of methamphetamine was found at Mr Tarau’s address where he was on bail subject to a 24-hour curfew pending the hearing of other charges. During a bail check, the Police entered and searched Mr Tarau’s home where he lived with his partner and three young children. Eighteen grams of methamphetamine…

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.

Continue reading Tarau v Police

Details

AGLC: Tarau v Police [2021] NZHC 1793
Case: [2021] NZHC 1793
Decision Date: 15 July 2021

CaseChat Overview and Summary

Tawhai Tarau appeals against a two-year and four-month imprisonment sentence imposed by Judge Bidois in the District Court at Whakatane. The sentence was for various drug-related charges, including possession and supply of methamphetamine and cannabis, and driving while disqualified. The appeal focuses on the methodology used by Judge Bidois to calculate the sentence, arguing that it did not align with the Court of Appeal's guidelines set out in Moses v R. The Court of Appeal had prescribed a two-step approach for sentencing, where the first step involves calculating an adjusted starting point that includes both aggravating and mitigating features of the offence, and the second step incorporates all mitigating factors personal to the offender, including any guilty plea discount.

The legal issue before the court was whether Judge Bidois correctly applied this two-step approach in sentencing Tarau. Counsel for both parties agreed that the appropriate adjusted starting point was four years' imprisonment, reflecting the seriousness of the offending and aggravating factors. However, they disagreed on the application of the discounts for mitigating factors, particularly whether they should be calculated as a percentage of the adjusted starting point, as per the Court of Appeal's directions in Moses. The court found that Judge Bidois's explanation of the discounts was confusing and potentially double-counted Tarau's methamphetamine addiction, leading to an incorrect application of the sentencing methodology. The court concluded that the total discount should have been 50% of the four-year starting point, resulting in an effective sentence of two years' imprisonment.

The court allowed the appeal in part, quashing the original sentence and substituting a two-year imprisonment sentence for the charges of possession and supply of methamphetamine. The court also imposed special release conditions to assist Tarau in his rehabilitation, including restrictions on alcohol and drug use, participation in specified programmes, and regular assessments and treatments as directed by probation officers. The concurrent sentences for the other charges remained unchanged, as did the orders for the forfeiture of seized money and the destruction of drugs.

Orders