Taremoeroa v Police HC Rotorua CRI 2010-463-53
[2010] NZHC 1696
•17 August 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2010-463-000053
KEVIN HARVEY TAREMOEROA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 17 August 2010
Appearances: O Brittain for the Appellant
L Owen for the Crown
Judgment: 17 August 2010
[ORAL] JUDGMENT OF WYLIE J [Appeal against sentence]
Solicitors:
H S Edward, P O Box 738, Rotorua 3040
Crown Solicitor, P O Box 740, Rotorua 3040
K H TAREMOEROA V NEW ZEALAND POLICE HC ROT CRI 2010-463-000053 17 August 2010
[1] On 26 July 2010, Mr Taremoeroa was sentenced by his Honour Judge J J Weir in the District Court at Rotorua to one year’s imprisonment on a conviction for burglary under s 231(1)(a) of the Crimes Act 1961. On the same day, he was also sentenced by the Judge to one year’s imprisonment on a conviction for male assaults female contrary to s 194(b) of the Crimes Act. The Court directed that the sentences were to be served cumulatively.
[2] Mr Taremoeroa appeals against these sentences.
Background facts
[3] On 22 March 2010, Mr Taremoeroa was at the Murupara Motor Camp. He watched a group of white water rafters lock their possessions into a room at the camp, and then leave for an afternoon on a local river. He then went to the room, jimmied opened the door, and searched through valuables belonging to the rafters. He took a Samsung laptop, a mobile phone, an Apple iPod and $225 in cash. The total value of the items stolen by Mr Taremoeroa was $925. When first approached, he denied any responsibility for the burglary. Subsequently, he pleaded guilty, although not at the first opportunity.
[4] In relation to the male assaults female conviction on 17 May 2010, Mr Taremoeroa was at home with his partner. She had woken earlier, and decided to get out of bed and do the washing. While she was doing the washing, Mr Taremoeroa awoke and got out of bed. He became angry. He approached his partner and verbally abused her. Without provocation or warning, he punched her four times in the back of the head. Some five minutes or so later he got angry again and he instructed his partner to come to him. When she did so, he yelled at her, punched her in the back of the head, and then grabbed her by the hair. The victim screamed out to her cousin who was also in the house, asking the cousin to telephone the Police. Mr Taremoeroa then forced his partner to accompany him from the property. He grabbed her by the hair, and forced her to run to a nearby street. The victim did not suffer physical injury, but she advised the Police that she is scared of Mr Taremoeroa and sick of his behaviour. When spoken to by the Police,
Mr Taremoeroa stated that he left his address because it was a bad house spiritually, and admitted that he had pulled his partner by her arms to get her away from the house. He also informed the Police that he used “medium force” to pull his partner away. Subsequently he pleaded guilty to the offending.
District Court Judge’s decision
[5] Judge Weir recited the relevant facts. He referred to the Probation Officer’s report and to the provisions in ss 7 and 8 of the Sentencing Act 2002. He noted that Mr Taremoeroa’s assault against his partner had occurred while he was on bail in relation to the burglary charge. He also noted the Probation Officer’s report that Mr Taremoeroa did not present as remorseful, and that he had been unable to offer any real insight into his offending.
[6] The Judge noted Mr Taremoeroa’s previous convictions for burglary in 1997,
1998 and 2009. He also noted that he had convictions for other dishonesty-related offending, including a conviction for theft in 2004, and another in 2006. It was the Judge’s view that Mr Taremoeroa presented as having a problem in the area of honesty. He also referred to his previous history of assaults. He noted that Mr Taremoeroa had 10 convictions for assault (excluding a conviction for aggravated robbery in 1997), and five convictions for threatening behaviour.
[7] On each conviction, the Judge adopted a starting point of nine months’ imprisonment. Again, for each conviction, he uplifted that starting point by a period of six months because of Mr Taremoeroa’s previous convictions. He then discounted the period of imprisonment by three months in each case, because of the guilty pleas. As a consequence, he imposed final sentences of 12 months’ imprisonment on each offence. He noted that the offences were separate offending, and directed that the sentences were to be served on a cumulative basis. The total sentence imposed was therefore two years’ imprisonment.
The appeal
[8] The notice of appeal is dated 26 July 2010. It asserts that the sentence was manifestly excessive, that the Judge placed undue weight on Mr Taremoeroa’s previous convictions, and that the Judge failed to apply the totality principle with the result that the final sentence was disproportionate to Mr Taremoeroa’s overall criminality.
Submissions
[9] I have received helpful submissions from Ms Brittain on behalf of the appellant, and from Ms Owen on behalf of the Crown.
[10] Ms Brittain did not challenge the Judge’s starting point in relation to the burglary conviction. Nor did she suggest that the discount allowed by the Judge was inadequate. Rather, she asserted that the Judge erred in imposing a six month uplift and submitted that the Judge had “double counted” Mr Taremoeroa’s criminal history. She also submitted that the Judge had failed to apply the totality principal in considering the overall offending.
[11] In relation to the male assaults female charge, Ms Brittain submitted that the starting point was too high. She noted that Mr Taremoeroa’s previous offending in this area was largely historic, and that no injuries had been sustained by the victim. She accepted that the summary of facts made unhappy reading, and that the offending was, in her words, “unfortunate”. Nevertheless, she suggested that a starting point of six months was more appropriate.
[12] Ms Brittain submitted that an end sentence of 15 to 18 months would better reflect the totality of Mr Taremoeroa’s offending.
[13] Ms Owen for the Crown submitted that both the starting point and the uplift in relation to the burglary offence were appropriate. In relation to the male assaults female charge, she referred me to s 85 of the Sentencing Act 2002, and submitted that the starting point adopted by the Judge properly reflected the seriousness of
Mr Taremoeroa’s offending. She accepted that some of the previous convictions were historic, but submitted nevertheless Mr Taremoeroa has a history of violent offending, and that the Judge was entitled to impose uplifts for his previous convictions in relation to the burglary conviction, and the male assaults female conviction. She submitted that the sentences were appropriate and that they did reflect the totality of Mr Taremoeroa’s offending.
Analysis
[14] This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957. Section 121 of that Act confers power on the Court to determine such appeals. Relevantly it provides as follows:
(1) The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.
(2) ... (2A) ...
(3)In the case of an appeal against sentence, the High Court may— (a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i)Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
(4) ... (5) ...
(6)In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.
(7)Subject to the provisions of section 144 of this Act, the decision of the High Court on any general appeal shall be final.
[15] Here there is no suggestion that Judge Weir lacked jurisdiction, or that substantial facts relating to the offending or to Mr Taremoeroa’s character or personal history were not before the Court. It follows that the appeal against sentence should only be allowed if the sentence imposed was manifestly excessive, inadequate or inappropriate.
[16] In this regard, it is trite law that this Court should not interfere with the sentence of a trial Judge unless the sentence is manifestly excessive or wrong in principle — see R v Brooks[1] and R v Radich.[2] This Court should not substitute its own opinion for that of the sentencing Judge, and it should only intervene if the sentence imposed was manifestly excessive — Wells v Police.[3]
[1] [1950] NZLR 658 (CA) at 659.
[2] [1954] NZLR 86 (CA) at 87.
[3] [1987] 2 NZLR 560 (HC) at 565.
[17] Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed, rather than the process by which the sentence was reached
— see R v MacCulloch.[4]
[4] [2005] 2 NZLR 665 (CA) at [50].
[18] I consider the sentences imposed in relation to each offence and then address the totality principle.
[19] Burglary is rightly regarded as a serious offence — R v Southon.[5] While there is no “tariff” decision for the offence of burglary, the decisions in R v Columbus[6] and Senior v Police[7] are often referred to in this context. There are passages in Senior — see, for example[17] and [23] — which suggest that it is a tariff decision. The case does not, however, provide sentencing bands. The Court of Appeal in Southon has made it clear that Senior is not a tariff case, and that rather it is useful as a discussion of historical sentencing patterns. I note the observations at [13] and [14] in Southon.
[5] (2003) 20 CRNZ 104 (CA) at [12].
[6] [2008] NZCA 192.
[7] (2000) 18 CRNZ 340 (HC).
[20] A sentencing Court is required to fix a starting point identifying the culpability inherent in the offending by reference to its circumstances; it is the intrinsic nature and gravity of the offence charged which are the primary considerations — see Columbus at [13]. As was noted in Senior, there are a number of aggravating circumstances which can be relevant to this type of offending.
[21] Here Mr Taremoeroa’s burglary was of a room in a motor camp. It was not a burglary of a residential dwelling per se. Nevertheless, the room was for the exclusive use of a group of rafters. They had left their possessions in the room, and they had locked it. They had, however, left the premises, and had been observed leaving the premises by Mr Taremoeroa. There was no risk of confrontation with the occupiers. This can be an aggravating feature of such offending. There was, however, unlawful entry into the room. Mr Taremoeroa’s entry was forced. That is an aggravating feature which can be taken into account pursuant s 9(1)(b) of the Sentencing Act. A laptop computer was taken; so was a mobile telephone and an iPod. It can be expected that these items, and in particular the computer, would have had some value to their owner or owners. They are likely to have had personal and perhaps important information stored on them. The loss of such material would inevitably have aggravated the stress which would have been suffered by the owner or owners.
[22] In my judgment, in the circumstances of this case, the starting point adopted by Judge Weir — namely nine months’ imprisonment — cannot be said to be manifestly excessive.
[23] However, in my judgment, the uplift allowed by the Judge — six months — was stern. Mr Taremoeroa is no longer a young man. He is 32 years of age. He has an appalling criminal record. Nevertheless, he has relatively few convictions for burglary. The most recent conviction was in July 2009. His other convictions for burglary occurred as long ago as 1997 and 1998. There has been other dishonesty- related offending, but it cannot be said that Mr Taremoeroa is a recidivist burglary. In my view, the uplift imposed by Judge Weir was on the high side, albeit in itself not perhaps manifestly excessive.
[24] In relation to the male assaults female conviction, there is no tariff case applicable to this type of offending. I have considered some of the authorities which have dealt with the issue in the Court of Appeal, including R v Reihana,[8] R v Nixon,[9]
[8] CA 143/03, 3 July 2003.
[9] CA 87/01, 19 June 2001.
R v Werahiko,[10] and R v Stuart.[11] A number of older cases are usefully referred to in
[10] CA 716/07, 25 February 2008.
[11] [2008] NZLA 66.
Reihana.
[25] Each case must of course turn on its own facts. Here it is acknowledged by Ms Brittain that the summary of facts does not make happy reading. The assault was sustained. The victim received a number of blows, and she was dragged by the hair over a relatively prolonged period. There is no suggestion that the victim did anything to provoke the offending. It appears simply to have been gratuitous violence meted out by Mr Taremoeroa because he was unable to control his anger. Moreover, the offending occurred while he was on bail.
[26] The maximum sentence for this type of offending is one of two years’
imprisonment.
[27] In my view, the starting point of nine months imposed by the Judge — while again stern — was not inappropriate. In context, the uplift of six months was also stern, although again not perhaps manifestly excessive. Mr Taremoeroa has two previous convictions for male assaults female — one offence occurred in November
1994, and the other in November 1995. While both offences were committed some time ago, he also has a number of other convictions for common assault and assault on a child. He also has a conviction for assaulting a Police officer. All of these assaults occurred between 2002 and 2007. Mr Taremoeroa clearly has an anger management problem, and he is prone to gratuitous violence.
[28] Judge Weir allowed a discount of three months in relation to both charges to recognise Mr Taremoeroa’s guilty pleas. Neither counsel suggested that this discount was inappropriate. I therefore take this issue no further.
[29] Nor was there any challenge to the Judge sentencing Mr Taremoeroa to cumulative terms of imprisonment. Indeed in my view that was clearly appropriate. The burglary was distinct from the assault charge. There was no relationship between the two sets of offending.
[30] I now turn to the totality principle. Section 85 of the Sentencing Act reads as follows:
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[31] As a general rule, cumulative or consecutive sentences should not be such “as to result in an aggregate term wholly out of proportion to the gravity of the offences viewed as a whole”. The sentencing Judge should “stand back and look in a broad way at the totality of the criminal behaviour” — see R v Bradley. [12]
[12] [1979] 2 NZLR 262 (CA) at 263.
[32] Here the Judge did not expressly refer to the totality principle. In my view, he should have done so. In my judgment, standing back and having regard to the totality of the sentences imposed — two years — it can be said that the cumulative sentences imposed have resulted in a total period of imprisonment which is out of the proportion to the gravity of the overall offending. Neither offence was particularly serious offending of its type. The Judge has taken a stern view in fixing his starting points, and in making uplifts for prior offending in relation to both. The end result has been the imposition of a total period of imprisonment which in my judgment is not only stern, but can fairly be said to be manifestly excessive.
[33] The appeal is allowed.
[34] In respect of the burglary charge, Mr Taremoeroa is sentenced to a term of imprisonment of nine months. In respect of the male assaults female charge, Mr Taremoeroa is sentenced to a term of imprisonment of 11 months. The terms of imprisonment are to be served cumulatively. I allow the appeal, and substitute a total sentence of 20 months’ imprisonment.
Wylie J
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