Taunoa v Police HC Napier Cri-2011-441-000024

[2011] NZHC 1097

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-000024-26

HARLEY TAUNOA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 August 2011

Counsel:         SJ Jefferson for Appellant

JD Lucas for Respondent

Judgment:      5 September 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 5 September 2011 at 4.50pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

JS Jefferson, PO Box 143, Napier. Email:  [email protected]

Crown Solicitor, DX MP70017, Napier 4140. Email:  [email protected]

TAUNOA V NZ POLICE HC NAP CRI-2011-441-000024-26 5 September 2011

[1]      Harley Taunoa appeals against his sentence on 8 June 2011 on a number of

charges. These charges can be summarised as follows:

Between 11 February and 23 February 2011 receiving a motorbike

valued at $8,000;

On 16 February 2011 theft of six 24 packs of Tui beer valued at $120;         On 11 March 2011 breach of community work; and

On 19 March 2011 assault with intent to injure, possession of a knife,

disorderly behaviour and possession of cannabis.

[2]      Judge Rea approached sentencing by dividing the offending into two groups. First there was the dishonesty offending involving the receiving of the motorbike and the theft of the beer.  On the receiving charge the Judge reached a starting point of seven months’ imprisonment, uplifted by five months to reflect his past record so that the sentence was 12 months’ imprisonment.  From this the Judge discounted for the guilty plea with the end sentence being 10 months’ imprisonment.

[3]      In relation to the violence offending he considered that the starting point should be nine months’ imprisonment.   There was no uplift because there was no previous history of violence.  He was entitled to a discount for his early guilty plea. The  end  sentence  was  six  months’  imprisonment.    The  two  were  treated  as cumulative with the end sentence being 16 months’ imprisonment.

[4]      In relation to the possession of the offensive weapon charge there was a six month sentence but that was concurrent.  On the theft charge there was a two month sentence and that also was concurrent.   He was also sentenced to a concurrent sentence of two months for breaching his community work obligations.

[5]      The  appellant  submits  that  the  sentence  was  manifestly  excessive.    To succeed the appellant must show that the end sentence of 16 months’ imprisonment was clearly excessive or inappropriate.[1]

[1] Summary Proceedings Act 1957, s 121(3)(b).

[6]      Mr Jefferson in a short submission did not take any issue with the six months’ imprisonment imposed in relation to the violence offending.  His challenge was to the sentence in relation to the receiving charge.   He pointed to the fact that the receiving charge had been amended from receiving a motorcycle knowing that it was stolen, to receiving a motorcycle “being reckless as to whether or not it had been stolen”.  He asserted that the appellant had discovered the motorcycle at his address on his return from a kapa haka tournament in Gisborne and that he had not done anything about it.   In those circumstances he submitted that a sentence of imprisonment in the region of three months would have adequately reflected the seriousness of the offending.  He accepted that the appellant’s previous convictions warranted an uplift.  Mr Jefferson submitted that once the appropriate discount was applied for the plea of guilty an end sentence should have been six, rather than 10 months’ imprisonment.  Therefore, the end cumulative sentence should have been 12 months’ imprisonment and not 16 months’ imprisonment.

The receiving charge

[7]      The maximum penalty for receiving, if the value of the property received exceeds $1,000, is seven years’ imprisonment. While there was an amendment to the charge to assert recklessness rather than actual knowledge, it is by no means clear that this should result in any difference in the Court’s assessment of culpability.

[8]      The unchallenged summary of facts provided no support for Mr Jefferson’s submission that Mr Taunoa had just found the motorcycle at his home.  What the summary  discloses  is  that  the  stolen  motorcycle  was  located  in  the  lounge  of Mr Taunoa’s home.  When he was spoken to by the Police he declined to make a statement and gave no explanation for the motorcycle being in the lounge.  I am not satisfied on the balance of probabilities as to any mitigating circumstance of only

incidental knowledge that may be called in aid.

[9]      Given the maximum penalty of seven years’ imprisonment, the starting point reached by Judge Rea of seven months’ imprisonment seems to be entirely within the range.  The receiving of such a valuable chattel was a serious act of dishonesty.  The uplift of five months to reflect his past record was if anything modest.  Mr Taunoa had an appalling previous record involving previous receiving convictions and no less than 15 previous burglary convictions, with a number of theft and unlawful taking convictions.  For a 25 year old man who has already spent time in prison this warranted a stern uplift.   Mr Taunoa appears to be committed to a life where he survives by dishonest acts which cause loss and grief to members of the community.

[10]     The pre-sentence report assesses him as having a low to medium level of motivation to address his rehabilitative needs,  and as having a high  risk of  re- offending.   In these circumstances there is no basis for the submission that the sentence was manifestly excessive.  It was indeed a fair sentence, and could not even be described as severe.

The violence offending

[11]     Although there was no specific challenge to the sentence of nine months’ on the violence offending, it is noted that the violence offending involved a savage and cowardly attack by Mr Taunoa on his partner.

[12]     He approached her with a knife (it being taken off him by another person in the  room)  and  kicked  her  savagely  in  the  face  causing  very  serious  bruising. Although the Judge was right not to increase that sentence as there has been no particular history of violence, it is disturbing that Mr Taunoa’s offending has now extended to this new area.

[13]     The Judge was quite right to treat the possession of an offensive weapon sentence of six months’ imprisonment as concurrent.  In relation to the theft charge of  two  months’ imprisonment,  this  could  have  been  treated  as  cumulative  but undoubtedly the Judge had in mind the totality principle in making it concurrent.  In all the circumstances the end sentence of 16 months’ imprisonment was entirely within the range.

Result

[14]     The appeal is dismissed.

……………………………..

Asher J