Tauia v The Queen - [2021] NZHC 2803

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-004486

[2021] NZHC 2803

BETWEEN
MATTHEW TAUIA

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 October 2021

Appearances:

D Schellenberg for Appellant D Becker for Respondent

Judgment:

20 October 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 20 October 2021 at 11.45 am.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

TAUIA v R [2021] NZHC 2803 [20 October 2021]

[1] Mr Tauia pleaded guilty in the District Court to one charge of aggravated robbery and one charge of converting a motor vehicle. On 14 February 2021, Judge A-M Bouchier sentenced him to four years imprisonment on each charge, with the sentences to be served concurrently.1

[2] Mr Tauia appeals against sentence. He contends the Judge adopted a starting point that was too high. He also contends the Judge erred in applying uplifts to the starting point and did not give him sufficient credit for mitigating factors. He argues that these errors led the Judge to impose an end sentence that was too high. Furthermore, the conviction for aggravated robbery was a “second strike” offence. This means Mr Tauia will be required to serve the whole of the sentence without parole.2

The offending

[3] On 2 May 2020 a Subaru motor vehicle was stolen from an address in Epsom. On the afternoon of 14 May 2020 Mr Tauia and four associates travelled in the vehicle to Mount Roskill to rob a jewellery store located in a suburban shopping centre.

[4] Mr Tauia and three of his co-defendants left a getaway driver in the vehicle. They then walked into the shopping centre wearing disguises and gloves. They brandished hammers and one of them also carried a large rock. They forced their way into the jewellery store by completely smashing a glass door. The proprietor of the premises and three female staff members were present in the store when the intruders entered. Three adult customers were also present in the premises, one of whom had her baby with her. The intruders yelled threats at the staff and customers and then smashed several glass cabinet displays using their hammers and the rock.

[5] Mr Tauia and his associates gathered up large quantities of gold jewellery from the display cabinets and then left the store. They went back to the waiting Subaru and drove to a park. They then ran across the park to a location where they had another

1 R v Tauia [2021] NZDC 2609.
2 Sentencing Act 2002, s 86C(4)(a).

vehicle waiting for them. As they did so they dropped items of jewellery having considerable value.

[6] The police helicopter tracked Mr Tauia and his associates to an address in Papatoetoe, where they were arrested about 40 minutes later. In total, they had stolen jewellery having a retail value of approximately $1 million. The police were able to recover items having a value of approximately $840,000. Items…

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 Tauia v The Queen

Details

AGLC: Tauia v The Queen [2021] NZHC 2803
Case: [2021] NZHC 2803
Decision Date: 20 October 2021

CaseChat Overview and Summary

Matthew Tauia appeals against his sentence for aggravated robbery and converting a motor vehicle. The appeal pertains to the starting point of the sentence, the application of uplifts, and the credit given for mitigating factors. The appeal was heard by Lang J, who found that the Judge's starting point and uplifts were appropriate, but that the Judge should have provided greater credit for the mitigating factors. Lang J reduced the sentence from four years imprisonment to three years three months imprisonment, with the sentences to run concurrently. The Judge's decision to impose the sentence without parole was upheld.

The appeal raises issues about the appropriate starting point for the sentence, the application of uplifts for previous convictions and offending while on bail, and the level of credit to be given for mitigating factors. Lang J found that the starting point and uplifts were appropriate but that the Judge had not given sufficient credit for the mitigating factors. In particular, the Judge had not given sufficient credit for Mr Tauia's attendance at a restorative justice conference and for his rehabilitative efforts after his arrest. Lang J found that these factors warranted a discount of ten months in total.

Lang J also considered the arguments about the credit to be given for the factors identified in the s 27 report. The report identified a number of factors that might have contributed to the offending, including Mr Tauia's disadvantaged background and drug use. However, Lang J found that these factors did not have a causative link with the present offending and did not warrant any credit. Lang J did, however, consider that Mr Tauia's rehabilitative efforts after his arrest warranted a discount of six months.

The appeal against sentence is allowed. The sentences imposed on both charges are quashed and replaced with concurrent sentences of three years three months imprisonment. The Judge's decision to impose the sentence without parole is upheld.

Orders