Taukiri v Police
[2021] NZHC 3103
•17 November 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-000029
[2021] NZHC 3103
BETWEEN KARLENE TAUKIRI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 November 2021 Appearances:
H Redwood for Appellant J J Harvey for Respondent
Judgment:
17 November 2021
ORAL JUDGMENT OF EATON J
Introduction
[1] Karlene Taukiri pleaded guilty to charges of burglary1 and possession of methamphetamine,2 and on 2 September 2021 was sentenced by Judge Krebs to 12 months’ imprisonment.3 She appeals that sentence. The sole ground of appeal is that the sentence should have been commuted to one of home detention.
Facts
[2] The facts are as follows. On 19 December 2020, a little after 7 pm, Ms Taukiri, along with two associates, drove into the driveway of the victim’s property in New Lynn in Auckland. The victim had left her house secured with her CCTV system
1 Crimes Act 1961, s 231(1)(a).
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2).
3 Police v Taukiri [2021] NZDC 17521.
TAUKIRI v NEW ZEALAND POLICE [2021] NZHC 3103 [17 November 2021]
running. Ms Taukiri removed the security camera at the front door by cutting the power and data cables with a pair of wire cutters. She then handed the camera to one of her associates, who concealed it in a bag in the rear of the car. Ms Taukiri gained entry into the rear of the property by breaking through a side gate. She and her associates then used a hammer and a screwdriver to attempt to open the lockbox containing keys to the property.
[3] It was at that point the victim was alerted to her property by motion sensors which sent a message to her cell phone. The victim returned home and she disturbed the offenders who, as a result, pushed past her, leaving her address, taking the camera with them. The victim made an insurance claim but the District Court decision records that she remains $550 out of pocket.
[4] In relation to the methamphetamine offending, the summary discloses on 17 June 2021, Ms Taukiri was arrested for an unrelated matter and on a search of her handbag the police located a snap-lock bag containing 0.79 grams of methamphetamine.
District Court decision
[5] In sentencing Ms Taukiri, Judge Krebs identified the burglary charge as the lead offence. He accepted the offending was at the lower end of the scale as the offenders had not entered the building and that the value of the property stolen was relatively modest. However, he noted Ms Taukiri had caused damage to the property and he acknowledged the fact that the owner returned home during the course of the burglary, which carried an obvious risk of violence. The Judge said, and I agree, that he was sure that methamphetamine was what drove this offending. He recognised the presence of premeditation and ongoing emotional harm to the victim. The Judge took a starting point of 18 months on the burglary charge.
[6] The Judge then considered the pre-sentence report. The preparation of that report had been delayed by repeated non-compliance by Ms Taukiri with Probation Services. She eventually attended for interview and a report was completed. She was assessed as a low ability to comply with any community-based sentence. The Judge agreed with that assessment, describing it as demonstrated by her previous convictions
and her history of non-compliance with Corrections. The report writer nevertheless assessed her risk of harm to others as low. The Judge disagreed. He considered the risk of her causing harm to others was moderate to high if she continued to behave in the same way. The report assessed her risk of reoffending as medium.
[7] In sentencing Ms Taukiri the Judge gave a credit of 20 per cent for her guilty plea which was not entered at the first reasonable opportunity. The Judge is recorded as factoring into that discount occasions when she had failed to appear in Court and warrants for her arrest had been issued. It is not entirely clear as to what was being referred to in that reference.
[8] His Honour noted the previous convictions for burglary and receiving in 2019 for 2018 offending. He also referred to previous dishonesty and methamphetamine related offences and multiple breaches of community-based sentences. Nevertheless, there was no uplift deemed appropriate to recognise her previous convictions.
[9] The Judge did give a further two months’ credit described as recognising Ms Taukiri’s acceptance of responsibility for her offending and her acknowledgement of her need to reform and rehabilitate, combined with her expressions of remorse.
[10] That reduced the sentence to one of 12 months’ imprisonment which the Judge imposed to be served concurrently with a sentence of two months’ imprisonment for the methamphetamine charge.
[11] The next stage in the sentencing process was to consider whether that sentence ought to be commuted to home detention. The Judge dealt with that relatively briefly. He said that because of her recent burglary conviction the least restrictive outcome was a sentence of imprisonment. The Judge emphasised the need to deter Ms Taukiri and hold her accountable, as well as referencing the need to ensure that her well- expressed determination to reform herself had teeth. The Judge wanted to ensure that she had time to reflect in prison as to the need to reform and address her drug dependency.
[12] Post-release conditions were imposed for a period of six months. Those conditions required Ms Taukiri not possess or consume drugs or alcohol following her release. They required her to attend and complete an alcohol and drug rehabilitation programme and any other programme as directed. In relation to the burglary charge, the Judge further ordered that she make an emotional harm reparation payment in the sum of $200.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence in this Court may only be allowed if I am satisfied there has been an error in the imposition of the sentence and that a different sentence ought to have been imposed.4
[14] As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
[15] Home detention is an alternative to a short-term sentence of imprisonment.7 It is a sentence that is only available to a sentencing Court if satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence and that the Court would otherwise impose a short term sentence of imprisonment.8
[16]The Court of Appeal in Manikpersadh v R said:9
[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
7 Sentencing Act 2002, s 15A(1)(b).
8 Section 15A(1)(a).
9 Manikpersadh v R [2011] NZCA 452.
fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”
[17] I also refer to the Court of Appeal’s observations in Fairbrother v R, that have been referenced in the appellant’s submissions.10
[30] … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other” …
Submissions
Appellant’s submissions
[18] In an admirably focused submission, Mr Redwood submits that the Judge erred in failing to impose the least restrictive outcome that was appropriate in the circumstances, being a sentence of home detention. He makes no challenge to the starting point or the discounts that were adopted by the Judge.
[19] Mr Redwood submits that the Judge erred by failing to consider s 16 of the Sentencing Act and by failing to engage in a considered and principled approach as described in Fairbrother. Mr Redwood further argued that the Judge did not explicitly consider whether denunciation and deterrence could be met by a sentence of home detention. In his submission, the factors for and against imposing that sentence were not sufficiently identified and weighed. Mr Redwood submitted that the Judge wrongly prioritised deterrence and gave insufficient consideration of the countervailing purposes of sentencing.
[20] In support of a sentence of home detention Mr Redwood focused on what he described as the lower level of seriousness of this offending and that Ms Taukiri has not previously been sentenced to imprisonment, home detention or community detention. He also emphasised a gap of about two years between her most recent
10 Fairbrother v R [2013] NZCA 340, citing R v D (CA253/2008) [2008] NZCA 254 at [66].
dishonesty conviction and the present offending and he relied on the Corrections report recommendation of a sentence of community detention and intensive supervision.
[21] Further, Mr Redwood submitted Ms Taukiri has a suitable address available to her outside of Auckland, in Palmerston North. He argued that an electronically monitored sentence at that address, being well away from Auckland, would provide Ms Taukiri with a fresh start in a supportive environment with both her children and their father, who is her ex-partner but with whom she has a healthy relationship.
[22] Finally, he submitted that her acceptance of responsibility and willingness to change did support a sentence of home detention as opposed to a sentence of imprisonment.
Respondent’s submissions
[23] On behalf of the police in this case, Ms Pairman in written submissions, and Mr Harvey in oral submissions, submitted that the Judge’s decision to decline to commute the sentence to home detention was both justifiable and correct. It was submitted that, while the Judge might not have explicitly reviewed all the purposes and principles of sentencing, he had turned his mind to them.
[24] It was submitted that Ms Taukiri has demonstrated a clear pattern of dishonesty offending, which appears to be escalating in seriousness and she has a history of non- compliance. In those circumstances, it was argued that it was appropriate to impose a short sentence of imprisonment to denounce and deter Ms Taukiri’s offending.
[25] Mr Harvey submitted that whilst this might have been a finely balanced case, it had not been demonstrated that the Judge fell into error.
[26] In the written submissions it was also argued on behalf of the police that home detention would necessarily require Ms Taukiri to engage with Corrections and to follow court orders but that her history did not instil confidence that she would do so. It was submitted that there were some adverse comments in the pre-sentence report, particularly by reference to 20 offences committed whilst on bail and a prior failure to comply with curfew requirements.
[27] The upshot from the respondent’s perspective being the Judge did not err and the sentence of imprisonment was appropriate.
Analysis
[28] The starting point and discounts adopted by the Judge in reaching an end sentence of 12 months’ imprisonment in this case are not challenged. The sole issue on appeal is whether there was error in the exercise of the discretion not to commute this sentence to one of home detention.
[29] Imprisonment is the most restrictive sentence in the hierarchy of sentencing options in the Sentencing Act. The Court of Appeal has said that imprisonment is “a measure of last resort”.11 Section 16(1) of the Act provides that when considering the imposition of a sentence of imprisonment, the Court “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”. The Court must not impose a sentence of imprisonment unless satisfied the purposes and principles of sentencing cannot otherwise be achieved.12
[30] Although not referenced in submissions today, I also refer to s 17 of the Act which provides that nothing in the Act limits the discretion of the Court to impose a sentence of imprisonment on an offender if the Court is satisfied on reasonable grounds the offender is unlikely to comply with any other sentence that it could lawfully impose and would otherwise be appropriate. In my view, Ms Taukiri’s history does not permit the imposition of a sentence of imprisonment pursuant to s 17.
[31] There is no presumption either for or against commuting a sentence of imprisonment to one of home detention13 and it has been recognised that the dividing line in exercising judgement to commute a sentence of imprisonment to home detention can be difficult and the principles and purposes of sentencing that must be taken into account sometimes do point in opposing directions.14 I think that reflects
11 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
12 Sentencing Act 2002, s 16(2).
13 R v Vhavha [2009] NZCA 588 at [29], adopted in Osman v R [2010] NZCA 199 at [20] and Doolan v R [2011] NZCA 542 at [37].
14 Palmer v R [2016] NZCA 541 at [19].
the position of the respondent in this case. The appellate focus in a case of this nature is on identifying error and not on revisiting the merits of the exercise of the discretion.15
[32] In determining that a sentence of imprisonment was appropriate in this case, the Judge said:16
[13] The next question is whether I commute that to a sentence of home detention. I have not made an uplift for your previous convictions, but the fact that you had a burglary conviction so recently before the current burglary conviction means that the least restrictive outcome I can impose here is one of imprisonment. I need to deter you from behaving in this way in the future. I need to hold you accountable. I also need to ensure that your well-expressed determination to reform yourself has some teeth. I want to ensure that you have time to reflect while you are in prison about the need to reform and the need to address your drug dependency.
[33] It is therefore apparent that the Judge did have regard to the need to impose the least restrictive outcome appropriate in the circumstances, and to the sentencing purposes of holding Ms Taukiri accountable, deterring her from offending, and to assist in her rehabilitation.
[34] But it is clear it was the recent burglary conviction that led the Judge to conclude a sentence of imprisonment was necessary to meet the principles and purposes of the Act. The Judge did not consider whether those principles could be achieved by a sentence of home detention nor, in my view, did he have regard to the desirability of keeping Ms Taukiri in the community as far as that is practicable and consonant with the community’s safety.
[35] I agree that the relevant factors for and against the imposition of home detention were not in this case sufficiently identified and weighed in determining which sentence was better qualified as the least restrictive to impose, and, in my view, that did amount to error.
[36] The sentencing purposes of denunciation, accountability and deterrence were highly relevant factors in this case. It is clear that Ms Taukiri was not deterred from
15 Fairbrother v R, above n 12, at [29]-[31].
16 Police v Taukiri, above n 3.
committing further burglary offending as a result of her previous sentences. However, the most recent previous conviction for burglary and receiving occurred in February 2019 (for offending in December 2018), which is over two years prior to her sentencing. She was then sentenced to 100 hours’ community work for both offences, which indicates that they were at lower level seriousness offending. Although her criminal history begins with shoplifting and has progressed to burglary in 2018 and 2021, I do not agree with the prosecution that the criminal history demonstrates an escalating level of seriousness, such that Ms Taukiri poses an elevated risk to the community of either harm or of reoffending that cannot be adequately managed by home detention.
[37] The most restrictive sentence that has been imposed on Ms Taukiri in the past is 100 hours’ community work and intensive supervision. That sentence was imposed on a raft of charges in March 2018. When convicted of burglary in February 2019 she was sentenced to 100 hours’ community work.
[38] In my view, the Court ought to be reluctant to resort to the most restrictive sentence for a subsequent comparable offence. That is not to say that a sentence of imprisonment in those circumstances is presumptively inappropriate. Rather, that to leap-frog other sentences in the hierarchy of sentencing options does require careful analysis by a sentencing judge. As I have indicated, I am not satisfied in this case that analysis was undertaken.
[39] There is no doubt home detention is recognised as a sentence carrying a considerable measure of denunciation and deterrence.17I do think it significant that Ms Taukiri was, as a consequence of her failure to appear, remanded in custody for a period of three weeks prior to her sentencing. She had not previously been subject to a custodial remand. When I have regard to her personal circumstances, including her age, that she is a mother of three children and that she has a drug addiction that needs to be addressed, I have no doubt that that the custodial remand had a salutary effect relevant in considering both denunciation and deterrence.
17 R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R, above n 10 at [29].
[40] I do acknowledge that she has shown an unwillingness to comply with court orders. The Community Corrections files outline the various appointments that she had missed and the “minimal effort” that she made to engage with Corrections for the purpose of a pre-sentence report. I note that the report writer commented that the key contributory factors to her offending were her “attitude of entitlement, in which she continues to disregard court-imposed sentences and orders, her drug use and her anti- social peers”. But on the other hand, the report-writer did assess her risk of re- offending as medium, her risk of harm as low, and notwithstanding an assessment of her ability to comply with further community-based sentences as low, a sentence of community detention and intensive supervision was recommended.
[41] Standing back and looking at her history and the material now available, I do not accept the submission that her history of non-compliance is at a level that makes a sentence of home detention inappropriate.
[42] Ms Taukiri has an address available to her in Palmerston North. I am told that notwithstanding the fact that she has been in custody now for a period of almost three months that address is still available. I will deal with that at the conclusion of these remarks. The pre-sentence report records that it is her ex-partner’s address and that he has consented to having her live there on home detention. He was assessed as suitable, there were no safety or welfare concerns with that address. Ms Taukiri told the report writer that she has a good relationship with her ex-partner, who is the father of her children. She described him as “her rock” and “her main support”.
[43] I accept the submission of Mr Redwood that a sentence of home detention to the Palmerston North address would have the positive effect of removing her from her anti-social peers in Auckland, where all her previous offending has occurred, and does place her in an environment where she can remain in her children’s lives and benefit from her ex-partner’s support.
[44] In my view, the potential support network, coupled with the responsibilities of caring for others are such that a relocation to Palmerston North is directly relevant to her rehabilitative prospects and relevant in reducing her risk of re-offending and the likelihood of her complying with conditions of detention. In my view, these were not
matters that were properly considered when the decision was made by the Judge not to commute the sentence to home detention.
[45] I am prepared to treat her assertions of a desire for a fresh start as being genuine. The report writer records her expressed willingness to make an effort to change her old ways, to rid herself of her old associates and to surround herself with her new whānau. I do not disregard the delays in her engaging with Corrections but, in light of her candour at interview, I acknowledge that she does see this as an opportunity for change and I find that a sentence of home detention would provide her with community-based rehabilitative services to assist her in overcoming her methamphetamine addiction, which everyone is in agreement is at the root of her offending.
[46] The Court of Appeal has recognised that where there is motivation to change and a realistic prospect of change, there are obvious benefits in imposing a sentence of home detention, both for the offender and for society.18
[47] In my view the least restrictive appropriate outcome in the circumstances of this case was a sentence of home detention. That is a sentence which satisfies the applicable purposes and principles of sentencing and provides Ms Taukiri with the opportunity to address her offending and rehabilitate herself.
[48] Mr Redwood has indicated that he will make enquiries today to confirm that the Palmerston North address is still available. Subject to receiving confirmation that address is available I will allow the appeal. Both the 12 months sentence of imprisonment in relation to the burglary charge and the two-month concurrent sentence in relation to the methamphetamine charge will be quashed. I will substitute that sentence with a sentence of four months’ home detention. That will be subject to the conditions as outlined in the Corrections report. In relation to the methamphetamine offence I will substitute a conviction and discharge.
18 R v Hill [2008] NZCA 41 at [37].
[49] I have fixed on a sentence of four months’ home detention recognising the period that Ms Taukiri has spent in custody which equates to nearly three months’ custodial remand.
[50]The order that she pay $200 for emotional harm reparation will stand.
ADDENDUM
[51]Mr Redwood has, by memorandum, now confirmed the address of [. ]
remains available. I therefore confirm the appeal is allowed as recorded at [48] above.
[52] Further, Ms Taukiri will be subject to the standard detention conditions as set out in s 80C(2) of the Sentencing Act 2002 and to the following special conditions imposed pursuant to s 80D of the Act:
(a)Not to possess, consume or use any alcohol or drugs not prescribed to her.
(b)To attend and complete an appropriate alcohol and drug rehabilitation programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(c)To undertake and complete any other programme or counselling directed by and to the satisfaction of a Probation Officer. To attend an assessment for a Departmental Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
[53] Ms Taukiri will be subject to post-detention conditions as set out at [43] above for a period of six months.
[54] I am advised that Ms Taukiri is presently held at Auckland Regions Women’s Correction Facility and, as a consequence of COVID-19 Level 3 restrictions,
Corrections will not be in a position to implement arrangements for Ms Taukiri’s transportation to Palmerston North before Friday 19 November 202. The Registrar has received confirmation from counsel for Ms Taukiri and for the police that there is no objection to an order that the appeal is allowed on the terms set out but with an effective date of Friday 19 November 2021. I make that order accordingly.
...................................................
Eaton J
Solicitors:
BVA The Practice, Palmerston North
Copy to:
Harry Redwood, Barrister, Auckland
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