Tauiliili v Police

[2013] NZHC 2400

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0023 [2013] NZHC 2400

BETWEEN  LIA TAUILIILI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   9 September 2013

Appearances:           T Singh for Appellant

J E Tarrant for Respondent

Judgment:                13 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 September 2013 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Almao Douch, Crown Solicitor, Hamilton

Copy for:           Public Defence Service, Hamilton

TAUILIILI v POLICE [2013] NZHC 2400 [13 September 2013]

[1]      The Appellant appeals against sentence imposed by Judge M L S F Burnett in the District Court at Hamilton on 7 May 2013.1   The essence of the appeal is that the Judge erred in refusing to make an order pursuant to s 80I Sentencing Act 2002 (“Act”) granting the Appellant leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of  home detention.   The appeal is opposed.

[2]      This appeal proceeds as an appeal against the exercise of discretion.   To succeed the Appellant must establish that the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.2

Introduction

[3]      The Appellant was for sentence on six counts, comprising:

(a)       one of conversion of a motor vehicle committed on 27 May 2012;

(b)one each of burglary, assault with intent to facilitate a crime, and theft of goods, the value of which exceeded $1,000, all on 13 August 2012;

(c)       one of burglary, committed on 17 August 2012; and

(d)one of possession of a pipe for the purpose of commission of an offence  against  the  Misuse  of  Drugs Act  1975,  being  a  pipe  for smoking methamphetamine.    This offence was committed in December 2012 and thereafter the Appellant, previously on bail, was remanded in custody.

[4]      The Appellant was provided with a sentencing indication in January 2013 and then  pleaded  guilty  to  the  various  offences.    The  Appellant  was  sentenced  in May 2013.  The Judge sentenced the Appellant to two years’ imprisonment on each charge referred to in [3](a) to [3](c) above and imposed standard and special release conditions to apply for six months beyond release.  The Judge also made orders for

reparation and disqualified the Appellant from driving for two years, commencing on the day of sentence, on his conviction for conversion of the motor vehicle.   The Judge sentenced the Appellant to 10 months’ imprisonment on the offending referred to in [3](d) above, to be served concurrently.  These sentences were in accordance with the sentencing indication to which I have referred, which indication reflected a

20 per cent discount for the guilty pleas.

[5]      The Appellant filed his appeal in May 2013.  Accordingly, he has now been in custody for 9 to 10 months.

Section 80I

[6]      Section 80I of the Act provides:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)      This section applies if—

(a)       a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)       at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)       At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[7]      Accordingly,  although  s 80I(2)  is  mandatory,  the  Judge  must  first  have concluded that they would sentence the offender to home detention if a suitable residence were available.3

[8]      In  the  present  case,  Judge  Burnett  did  not  consider  a  sentence  of  home detention appropriate.  In reaching that decision she had regard to several factors.

[9]      First, she had regard to the counts on which the Appellant was for sentence and, subject to some errors to which I refer below, made special mention of the facts of the burglary on 13 August 2012, as follows:4

[3]       The circumstances make rather typical reading for gang offending. You walked into the victims’ house to ‘tax’ the victim presumably.   You punched the victim five times in the face with a closed fist.  You then taxed the female by taking her handbag with the various items in it.   Having walked into a home where there were young children and making the threats and the violence, you then grabbed keys and took the vehicle.  There was then the subsequent offending and the methamphetamine pipe.

[10]     Secondly, the Judge referred to the Appellant’s criminal history and noted his convictions for violent and serious offending.

[11]     Thirdly, the Judge said she accepted that the Appellant had since distanced himself from his gang connections.5    Despite that, however, the Judge said she was sentencing him for very recent and serious offending and that she did not consider home detention would be appropriate.

Appeal

[12]     Counsel for the Appellant submits that the Judge erred in her conclusion that the offending was too serious to allow the Court to impose a sentence of home detention, and that the Judge made this error as a result of a failure to take account of relevant considerations and misapprehension of some facts.

[13]     Crown counsel accepts that some factual errors were made but submits that they are not such as to warrant any intervention by this court.

[14]     The first two errors are in [3] of the Judge’s notes.  In [3] of her notes the Judge said that the Appellant had punched one victim of the first burglary five times, whereas the summary of facts records there was one punch.  It was that punch that gave rise to the charge of assault.  Also in [3] of her notes, the Judge said that the Appellant had taken the victim’s car in the course of the same burglary. That too was

incorrect. The offending relating to the motor vehicle was unrelated.

4 Ibid, at [3].

[15]     Counsel for the Appellant submits that, had the Judge appreciated this, the burglary would have been treated as one involving a “lower to moderate” level violence, and not “serious” offending as the Judge categorised it.

[16]     Secondly, counsel for the Appellant referred me to the Judge’s comments in respect of two pre-sentence reports which were before her, dated 26 February 2013 and 29 April 2013.   These submissions were made to demonstrate that the Judge placed insufficient weight on the first pre-sentence report and too much weight on the second.

[17]     The significance of the  first  pre-sentence report  was  that  it  assessed  the Appellant as at medium risk of reoffending “based on the positive changes he has made to his lifestyle as of late”.   The writer of that report had interviewed the Appellant and it is apparent from her report that she considered he had severed his ties with the gang with which he was associated and that he was remorseful.  The submission made by counsel for the Appellant is that, in her notes, the Judge said the first report was prepared “a very short time after the offending which took place in

December 2012”.6    In fact the bulk of the offending was committed by the end of

August 2012, so at least six months prior to the report.

[18]     Counsel submits that the Judge’s error (that is that only a short period of time had elapsed between the offending and the first report) led her to place insufficient weight on the Appellant’s submission that he had, as he said, severed his connections with the gang.

[19]     I think it unlikely the Judge lost sight of the dates of the offending because at the outset of her notes the Judge referred to both counts of burglary having been committed in August 2012.  However, I accept counsel’s submission that the position is not entirely clear.

[20]     Conversely, counsel for the Appellant submits that the Judge put too much weight on a statement in the second report, namely “there is limited evidence to

suggest that [the Appellant] has left the gang lifestyle”.  Counsel for the Appellant emphasises that the writer of the second report did not interview the Appellant.

[21]     Thirdly, counsel for the Appellant submits that the Judge failed to take into account a letter written by the Appellant which was filed on 3 May 2013 and filed on

6 May 2013, or the Appellant’s willingness to attend a restorative justice conference.

The Judge made no reference to the letter in her sentencing remarks.

Discussion

[22]     I propose to dismiss this appeal for the following reasons.

[23]     First, I accept that the Judge incorrectly referred to five punches instead of one, and that she appears to have proceeded on the basis that the offending in relation to the motor vehicle took place at the time of the burglary.

[24]     Whichever  way  you  look  at  it,  however,  the  Appellant’s  offending  was serious.

[25]     I have already noted the Judge’s comments regarding the first burglary.   In respect of the second, the Appellant and two associates visited an address at about 7 pm with the intention of seeing a third party.  Although the third party was not at home, his partner and her child were and the Appellant and his associates waited at the house for a period of time.   The summary records the victim as having been “scared and on edge and knew she could not leave”.

[26]     As  the  Judge  said,  the  Appellant’s  criminal  history  already  included convictions for violent offending for which the Appellant had been sentenced to terms of imprisonment.

[27]     Secondly,  all  of  the  offending  up  to  and  including  August  2012  was committed in breach of release conditions.  The Appellant was in possession of the pipe whilst on bail, so that was a breach of his bail conditions.

[28]     Thirdly, there is the submission that the Judge had insufficient regard to the Appellant’s efforts to sever his ties with his gang connections and how that affected his risk of reoffending.   The severing of ties might be relevant because home detention might assist in the Appellant’s rehabilitation and reintegration in that it would remove him from gang associates in prison.  Also, the Court is required to

impose  the  least  restrictive  outcome  appropriate  in  the  circumstances.7    The

Appellant’s letter, which I have considered, also displays remorse.

[29]     As I have said, however, the Judge accepted that the Appellant had broken with his past.  The Appellant’s letter confirms his intentions, but it also suggests that some or all of the pre-December 2012 offending was committed as part of  the Appellant “settling up” with the gang.  The wish to sever ties is laudable and to be encouraged, but it was not an end to be furthered at the expense of others.

[30]     Accordingly, I am not satisfied that any ground of appeal is made out.  The

Judge’s decision was open to her.  I dismiss the appeal accordingly.

..................................................................

M Peters J

7 Sentencing Act 2002, ss 8(g) and 16.