Tau v Police

[2013] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-151 [2013] NZHC 1634

BETWEEN  HYRUM TAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   1 July 2013

Counsel:                  T Beach for Appellant

R Thomson for Respondent

Judgment:                1 July 2013

ORALJUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr Tau  pleaded  guilty  to  13  offences  including  four  burglaries,  two  of receiving stolen property; one of unlawfully on premises; one of theft; two of unlawfully taking a vehicle (one a bike and one a car); a breach of community work; a failure to answer bail and driving while forbidden.

[2]      The offending spans a period of about March 2012 to January 2013, some nine months.  The most serious offending is the burglary and receiving charges.  The appellant was sentenced to 18 months’ imprisonment.   He says the sentence was manifestly excessive and that he should have been sentenced to a period of home

detention.

TAU v POLICE [2013] NZHC 1634 [1 July 2013]

[3]      The appellant says the Judge made the following errors at sentencing.   He sentenced the appellant for six burglaries when he was only convicted of four; he placed too much weight on errors in the pre sentence report, in particular, allegations of drug taking and gambling abuse; and he gave insufficient weight to the appellant’s youth and lack of previous convictions.

[4]      It is common ground that the decision whether to impose home detention is the exercise of a discretion, and to successfully appeal, the appellant must show an error which affects the exercise of the District Court Judge’s discretion.

The offending

[5]      I  will  not  describe  the  facts  of  all  the  appellant’s  offending;  the  four burglaries; the two receiving and the unlawfully on premises are sufficient.  All four burglaries were of residential addresses.  In one the theft was from a deck outside a home.  The other three were of residential houses where more than $12,000 worth of goods were taken.  In some, the appellant was the lookout; in others he gained entry to the property himself.

[6]      The unlawfully on a property charge also involved the theft of property by others from a private residence and was itself akin to a burglary.

[7]      The receiving charges involved possession of more than $2,000 worth of electronic equipment and jewellery also obtained from house burglaries.

[8]      The Judge rejected home detention for a number of reasons including the

seriousness of the offending and the appellant’s behaviour and disruptive lifestyle.

The District Court decision and discussion

[9]      To return to the grounds of appeal.  The Judge said in his sentencing remarks that he was sentencing the appellant for six burglaries when in fact the appellant had only pleaded guilty to four burglaries.   The error appears to have arisen from the original charges the appellant faced.   There were six burglaries originally but two were amended to unlawfully on premises and receiving.  The Judge in his sentencing

remarks did, however, appear to understand the amendments.   This error by the Judge did not, in my view, result in an excessive start sentence nor did it inappropriately influence the decision not to impose a sentence of home detention.

[10]     The Judge was aware of the actual facts of all of the offending.  And so the appellant was clearly not sentenced on the basis of six burglaries but four burglaries receiving and unlawfully on premises.

[11]     In any event, looked at overall, the difference between the six burglaries and the four burglaries and the two other dishonesty offences, would not have affected the sentence, nor in my view, the decision to impose home detention.   This was based on other factors.

[12]     The start sentence of two years’ imprisonment was modest indeed.   This Court and the Court of Appeal have regularly remarked that repetitive house burglaries typically result in significant sentences of imprisonment.   They are significant violations of the private lives of ordinary citizens.   They involved a serious potential risk of violence in confrontations between burglars and residents. Here, the burglaries and the receiving resulted in the theft of thousands of dollars of goods.  I, therefore, reject the claim that the erroneous reference to six burglaries had any effect on the proper start sentence.  These offences were committed while the appellant was subject to a sentence of community work which the appellant had made virtually no effort to undertake.

[13]     I am satisfied, therefore, that the start sentence of two years’ imprisonment was well within the discretion of the sentencing Judge. A higher start sentence could have been imposed, in my view, without challenge.

[14]     I am also satisfied for the reasons I have given, that the Judge’s erroneous description of six burglaries did not inappropriately influence him in his decision to impose home detention.

[15]     The second error alleged relate to comments in the probation report and the

Judge’s use of these comments.  The probation report said that the appellant had a

transient lifestyle, he was unemployed and without structure.  The probation officer believed his offending was contributed to by alcohol and drugs and with an unstable criminally framed lifestyle.   He was said to have gambling, drug and alcohol problems. The Judge said this was not a favourable view of the appellant.

[16]     The appellant says that he did not use drugs apart from occasional cannabis use and he was not a problem gambler.  The probation report said that departmental assessment tools indicated the appellant did have a problem with alcohol, drugs and gambling.

[17]     It may well be that the appellant does disagree with these assessments.   If they were to be seriously challenged, then the appellant needed to give appropriate notice before sentencing.  In the absence of such a challenge, the Judge was entitled to place reliance on the probation services assessment.

[18]     After all, there was considerable objective evidence to support the claims of an unsettled criminally focussed and disruptive lifestyle.  The appellant had failed to carry out his community work, he had offended repetitively and seriously with other young men over many months and he offended while on bail.  There could be no doubt he would be a risky candidate for home detention.

[19]     What favoured home detention alone was the appellant’s age.  He was born in December 1993.  And so during much of his offending he was between 18 and 19 years of age.  He does not have a long history of previous convictions.  However, the sentencing Judge was well aware of these factors.   He expressly took them into account.   But for understandable reasons, the Judge decided despite these factors favouring home detention, it could not be imposed in the circumstances.   No error in my view has been shown in the Judge’s approach.

[20]     The other factor that is now relevant in the exercise of an appellate discretion is that the appellant has served almost six months’ imprisonment.  He will be entitled to be released after half the 18 months sentence in three months’ time.  In my view, the imposition now of a home detention sentence even if justified in the circumstances, would likely place Mr Tau at even greater risk of a longer sentence.

[21]     For the reasons given, the appeal will be dismissed.

Ronald Young J

Solicitors:

Meredith Connell, Barristers & Solicitors, Wellington

T Beach, Barrister, Auckland