Taukiri v Police - [2021] NZHC 3103

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…

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.

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Details

Case: [2021] NZHC 3103
Decision Date: 17 November 2021

CaseChat Overview and Summary

Karlene Taukiri pleaded guilty to charges of burglary and possession of methamphetamine and was sentenced to 12 months' imprisonment by Judge Krebs. Taukiri appeals the sentence, arguing it should have been commuted to one of home detention. The appeal was heard by Eaton J in the High Court of New Zealand Palmerston North Registry. 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. The starting point and discounts adopted by the Judge in reaching an end sentence of 12 months' imprisonment are not challenged. The issue is whether the Judge erred in failing to impose the least restrictive outcome that was appropriate in the circumstances, being a sentence of home detention. In my view, 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. 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. The appeal is allowed, and 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, subject to the conditions as outlined in the Corrections report. In relation to the methamphetamine offence, I will substitute a conviction and discharge.

Orders