Tauwhare v Police
[2014] NZHC 676
•4 April 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000019 [2014] NZHC 676
BETWEEN PIERRE JOHN TAUWHARE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 March 2014
Appearances: K J Gray for Appellant
D J Orchard for Respondent
Judgment: 4 April 2014
JUDGMENT OF GENDALL J
Introduction
[1] The appellant appeals against a sentence of two years, nine months imposed by Judge Garland in the District Court on 14 January 2014. The sentence was imposed following guilty pleas on a range of offending undertaken by the appellant, this offending having occurred between July 2013 and September 2013.
[2] The charges for which guilty pleas were entered and the sentences involved were as follows:
(a) One charge of burglary (maximum penalty 10 years’ imprisonment) - sentence of two and a half years imprisonment;
(b) Theft from Monteiths’ Bar (maximum penalty three months’
imprisonment) - sentence of one month imprisonment imposed;
TAUWHARE v NEW ZEALAND POLICE [2014] NZHC 676 [4 April 2014]
(c) Theft from Anchor Motel (maximum penalty three months’
imprisonment) - sentence of one month imprisonment imposed;
(d) One charge of reckless driving (maximum penalty three months’
imprisonment, $4500 fine with minimum six months disqualification)
- sentence of two months imprisonment imposed and one year disqualification from driving;
(e) One charge of failing to stop (maximum penalty six months’ disqualification and $10,000 fine) - sentence of three months’ disqualification (cumulative) imposed;
(f) One charge of possession of an offensive weapon, namely a knife (maximum penalty three months’ imprisonment) - sentence of two months’ imprisonment imposed (cumulative);
(g)One charge of giving false alarm - sentence of one month imprisonment imposed (cumulative);
(h)One charge of theft from Kmart (maximum penalty three months’ imprisonment) - sentence of one month imprisonment imposed (concurrent);
(i)Two charges of wilful trespass (maximum penalty three months’ imprisonment), two charges of assault (maximum penalty one year imprisonment), one charge of wilful damage (maximum penalty three months imprisonment) and one charge of breach of District Court bail
- one month imprisonment imposed (concurrent).
The facts
[3] The facts of the offending range over a number of matters and are quite detailed. They are set out at paragraphs [2] – [9] of Judge Garland’s sentencing notes in the District Court. In light of the magnitude of the offending involved here
it is useful for the purposes of this appeal to set out those facts in full here which I
now do:
[2] What you did that has caused you to come before the Court today is as follows: At about 10.30 am on Tuesday 2 July last year you were at the Salvation Army offices, Crawford Street, Dunedin where you had been working as a volunteer for approximately three years. You entered the gymnasium area where a group of women were playing volley ball. You asked to join in the game but your request was declined. So you stood and watched. The woman concerned approached you and asked that you leave the area. You apparently took umbrage at that because what you did is you walked over to where your bag was and you removed a black handled knife about 20 centimetres in length and you ran the cloth down the blade, obviously in full view of these women. They were concerned about your behaviour and, as a result, the women were ushered out of the gym and the police were contacted. When you were spoken to about this you claimed you had done nothing wrong.
[3] Then on 28 July last year you were issued a trespass notice to stay off the Southern Cross Hotel in High Street, Dunedin. I am not told why that was but I infer that that was either because of your drinking or your drinking and your behaviour. On 29 July you ignored that trespass notice and you entered the Southern Cross Hotel again. On 2 July you were served a trespass notice to stay off the Salvation Army premises. On Monday 19
August you entered the Salvation Army grounds on your bike, clearly in breach of that trespass notice. On Thursday 22 August you were in the
Metro Bar in Stuart Street, Dunedin. The first victim walked near to you
from behind. As she approached you struck out behind with your right arm hitting the first victim on her upper right arm. That same evening you went
to the Brew Bar in the Octagon. The second victim was sitting on a chair
outside the bar. You walked up to her and slapped her on the right side of her neck. Later when the police asked you for an explanation to this behaviour you declined to give one.
[4] On 7 September you went to the Westfield Mall in Christchurch. You entered Kmart, selected a can of deodorant and sprayed yourself with the can before selecting a tube of moisturiser. You rubbed a large quantity of the moisturiser over your body before exiting the store and failing to pay for those items which were valued at $15.20. You were approached by store security about your behaviour but you ignored them and walked off in the direction of Pak’n Save. You entered Pak’n Save and you walked around the store until you located the emergency exit. You approached the exit and you paused to depress the button on the fire alarm located beside the door. Your actions caused the fire alarm to activate throughout the whole mall. Four fire appliances attended and the entire mall had to be evacuated. This caused alarm to attending emergency services and widespread consternation and inconvenience to the general public and to the shop employees. Reparation in the sum of $1150 is sought for the false alarm call-out.
[5] At about 2.15 pm on 19 September 2013 you entered Monteiths’ Bar on the Bay Hill in Timaru. You requested a glass of hot water from bar staff and you used the paraplegic toilets in the restaurant. After using the toilets you left the restaurant and you walked back into town. You returned to the bar about 45 minutes later and went straight back to the toilets. The reason
why you went back there is because you had obviously noted that there were bottles of wine in the toilet. You removed five bottles of Chardonnay from boxes that were being stored on top of the locker in the toilet area. You secreted them in a bag that you had brought with you and you left the restaurant with the wine.
[6] Mr Tauwhare you then returned to the Anchor Motels in Timaru where you had been residing. You went to the main office at the motel where the cleaner had $100 in cash in $20 notes on the main desk. You asked the cleaner if you could have a plastic bag and when the cleaner turned around to get the plastic bag you grabbed a hold of one of the $20. When she turned around she observed you putting the $20 in your pocket.
[7] That brings me to the most serious charge, the charge of burglary. At about 4.30 pm you left the hotel and you entered a property situated at 50
Evans Street in Timaru. You walked around the rear of the property and you
entered the house through an unsecured rear door. At the time of this burglary both of the occupants were at home but in different areas of the house. Fortunately you did not confront either occupant. Had that occurred then this offending would be regarded more seriously by the Court. You walked into the kitchen area and removed three eggs and a bottle of tomato sauce from the fridge. You then uplifted a leather wallet and a set of keys from the kitchen bench and you left the address. You walked down to a locked garage situated at the front of the property. Using the set of keys that you had stolen you unlocked the garage and entered a Nissan Bluebird motor vehicle which was parked in it. You then drove off.
[8] At about 6.55 pm you were driving the stolen car through the McDonald’s drive through on West Street. That was reported to the police. The police arrived shortly in a uniformed and marked police patrol car. They located the vehicle at the Z petrol station on West Street in Ashburton. They attempted to stop you using the red and blue flashing lights. You refused to stop. You drove aggressively, obviously trying to avoid the police at speed through the forecourt exiting the West Street footpath and narrowly avoiding another patrol car. The police pursued you north of Ashburton with the red and blue flashing lights and sirens indicating that you were to pull over and stop but you refused. I am told you reached speeds of up to 140 kilometres per hour, crossing the centreline while overtaking a line of north bound vehicles. In doing so the police say you drove into the path of on coming, south bound traffic narrowly missing the lead vehicle which was forced to take evasive action. If the on-coming driver had not evaded your vehicle the police tell me the impact of the combined speed of over 200 kilometres per hour, that is, the speed of both vehicles, would most certainly have resulted in death. The police were so concerned about the risk that you were posing to other people’s lives that they were forced to abandon the pursuit. The vehicle that you had stolen was recovered in Kaiapoi the next day and you were subsequently located on 4 October. You declined to be interviewed.
[9] Finally, on 15 September last year you went to Starbucks Café in George Street in Dunedin. While in the bathroom you smashed the sink. The damage caused to the sink I am told has cost $385.93 to fix.
The District Court Judgment
[4] In the District Court, although she noted that the offending occurred over a three month period, Ms Gray, counsel for the appellant, agreed that there were separate and discrete sets of offences and that the proper approach was to take a concurrent and cumulative approach to sentencing overlaid by the totality principle. Counsel submitted however that between 2008 and 2012 for a period of about four years before these events occurred, the appellant had stayed out of trouble. But, life spiraled downhill for him in 2013, and it was accepted in the District Court sentencing hearing that imprisonment was inevitable.
[5] Dealing with the specific offences in the District Court, Judge Garland referred to the fact that when the appellant was charged with possession of a knife on Salvation Army premises, he was trespassed. He had worked voluntarily at the Salvation Army and was getting support prior to his offending. When he was trespassed, he began drinking and smoking cannabis again. He then lost his employment. There were several bereavements it seems and things started to turn downhill.
[6] The Judge agreed that the lead offence and most serious offending here was the burglary. He adopted a starting point of 18 months imprisonment for the burglary. For the theft from Monteiths’ Bar, Anchor Motels and his reckless driving, Judge Garland uplifted the starting point by six months. He then uplifted the starting point by a further six months for the appellant’s previous history of dishonesty. The appellant had 124 convictions for dishonesty including 10 for burglary and numerous convictions for theft and unlawfully taking motor vehicles. There were also four convictions for either reckless, careless or dangerous driving. That took the starting point to 2 ½ years imprisonment.
[7] The Judge then considered the remaining offences. For the possession of the knife, a starting point of three months imprisonment was adopted.
[8] For the charge of giving false alarm and the shoplifting at the same time, a starting point of three months imprisonment was adopted.
[9] In relation to the remaining offences of two charges of trespass, two charges of assault, and willful damage, a starting point of three months imprisonment was adopted.
[10] That took the overall starting point to one of three years three months imprisonment. Judge Garland allowed a reduction of 15% or six months for the guilty pleas which he said were generally entered late. The end sentence imposed was therefore two years nine months imprisonment.
Submissions
[11] The grounds of appeal were that the starting sentence was manifestly excessive, the end sentence was manifestly excessive, the uplift on the burglary charge was excessive and duplicitous, and the order made for reparation and emotional harm should not have been made.
[12] The appellant’s initial submissions related to an excessive starting point and uplifts for the burglary charge. As I have already noted, a starting point of 18 months was adopted on the burglary charge. No real objection is taken to that. It was however uplifted then by six months to take account of the two theft charges and the reckless driving offence.
[13] It was submitted that the uplift of six months for those three separate charges, which have a maximum sentence of three months each, was manifestly excessive particularly given the low level of the two thefts. It was acknowledged that the reckless driving was serious, but Ms Gray submitted that the total uplift of six months here was inappropriate.
[14] The next submission from Ms Gray for the appellant related to the additional charges noted at [7], [8] and [9] above making up the final sentence as follows:
(a) For possession of the offensive weapon, the knife – three months imprisonment;
(b) For giving false alarm and shoplifting – three months imprisonment;
(c) For the two charges of trespass, two charges of assault and wilful damage – three months imprisonment.
[15] It is submitted that this additional nine months in total for the offending referred to in paragraph [14] above is also manifestly excessive.
[16] Judge Garland then uplifted the starting point by another six months on account of the appellant’s significant past history for offences of dishonesty and the like. The overall starting point therefore was a period of imprisonment of three years, three months.
[17] Turning now to the end sentence, Ms Gray also submitted that this was manifestly excessive. Judge Garland gave the appellant a reduction of 15% or six months for his guilty pleas which the Judge said were generally entered late. On this aspect, the burglary took place on 19 September 2013 and the Public Defender Service was assigned on 29 October 2013. Guilty pleas were entered on 14
November 2013 after disclosure had been completed. Counsel’s submission here is that the defendant should be entitled to the full 25% reduction as per Hessell1 on the burglary charge. It was submitted that given a starting point of 2 years 6 months was to be adopted, a discount of 25% amounting to a credit of 7.5 months should be given, even allowing for late pleas in relation to other charges.
[18] It was also submitted that some credit should have been available to the appellant in view of what was said to be his recent good behaviour for a period of
3½ to 4 years.
[19] Finally, the appellant was ordered to pay reparation of $2644.58. On this Ms Gray submitted that this sentence would impose “undue hardship” on the appellant in terms of s 12 Sentencing Act 2002, and she suggested that reparation should not have been ordered.
[20] As to the respondent’s position, Mrs Orchard submitted that the starting point
for the burglary could not be criticized and is clearly within the proper range a fact
1 Hessell v R [2010] NZSC 135.
which was indeed accepted by both counsel at the sentencing hearing. The uplift of
6 months to mark the appellant’s offending history again was within the range submitted by counsel as appropriate and was not at a level where it could be argued that it was out of proportion to the seriousness of the overall offending and/or amounted to punishing the appellant twice.
[21] With regard to the remaining distinct episodes of offending, it was submitted that overall uplifts of 9 months and 6 months to the starting point were not excessive in all the circumstances prevailing here. The Crown’s submission was that the sentence was appropriate and that as a whole the sentence could not be said to be excessive.
Legal principles and my decision
[22] Section 250 Criminal Procedure Act 2011 now governs the test for appeals against sentence.
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[23] In this case, the appellant has a lengthy history of offending dating back some years. The current offending was effectively an unprovoked crime spree he engaged upon between July and September last year. It was unpleasant and threatening for his victims and involved something of a rampage of aggressive and anti-social behaviour on his part probably triggered by alcohol or drugs consumption. His offending began with the intimidating incident with the knife at the Salvation Army gymnasium in July and ranged through minor but threatening assaults on two women, trespass, wilful damage, theft, deliberately setting off a fire alarm at a mall and culminated in the burglary of the dwelling, the theft of a car from that house and
wilful and reckless driving of that car to evade detection after it had been spotted by the Police.
[24] I consider that the 15 month uplift in relation to the wide ranging group of offences at issue here (including the reckless driving, which of itself was highly dangerous and could have ended in significant tragedy) although stern, was not inappropriate here.
[25] The offending here, given the background as outlined at [3] and at [23] above, was serious. Many of the offences in question were different in kind from other offences charged and were unconnected and involved a number of different victims – s 84 Sentencing Act 2002. I do not consider that the starting point, which is clearly within an appropriate range, or indeed the uplift, was manifestly excessive and therefore I will not interfere with the District Court’s findings on those matters.
[26] In relation to the discount for a guilty plea, Ms Gray for the appellant suggested that the discount should have been 25% as the appellant pleaded guilty to the lead offence of burglary very early. Mrs Orchard for the Crown accepted this was the case for the burglary offence, but considered that Judge Garland looked at this in the round, particularly in relation to what were said to be late guilty pleas for some of the appellant’s other offending. But, even if a 20% discount applied here, which is the maximum discount which might be considered appropriate in my view, rather than the 15% discount given by Judge Garland, this would have amounted only to a further 1.8 months discount on final sentence.
[27] The issue necessarily arises as to whether I should interfere with the sentence imposed by Judge Garland when the adjustment would be a reduction of only 1.8 months as noted above. In Marie v Police2 the Court referred to the Court of Appeal
decision in R v Gledhill3 where the Court differed from the sentencing Judge by
reducing a sentence by 2 months and, in doing so, noted at [32] of that decision that appellate courts are generally reluctant to impose small changes to sentences. It was
acknowledged that the Court in Gledhill had intervened, but the only reason it seems
2 Marie v Police (HC) Christchurch CRI-2010-409-25, 25 February 2010.
3 R v Gledhill [2009] NZCA 415.
was that the 2 months reduction in that case made the difference between imprisonment and home detention. In Marie however, the adjustment would have been a little over a month and the Court reached the conclusion that it was not prepared to intervene. It said that to reduce the sentence by a little over a month would simply amount to tinkering.
[28] In the present case I am of a similar view to that which prevailed in Marie. I consider that the ultimate sentence imposed by Judge Garland here does not offend against the totality principle and is broadly speaking appropriate for the range of offending which has occurred. That totality principle embodied in s 85 Sentencing Act 2002, which is clearly a primary guiding principle for sentencing in cases like the present of multiple offences, requires that a total sentence imposed must reflect
the overall criminality of the offending at issue – R v Dodd.4 Here as I see it, the
totality of the appellant’s conduct and criminal behaviour, looking at it in a broad way, is such that Judge Garland’s final sentence imposed was appropriate. And, to reduce the sentence here by 1.8 months, even if it was decided that a 20% discount for guilty pleas should be allowed, in my view would amount to tinkering.
[29] For all these reasons, the appeal against the sentence of imprisonment is dismissed.
[30] Finally, as to the appeal against the sentence of reparation of $2644.58 imposed on the appellant here, in my view this appeal must also be dismissed. The amount of the reparation imposed was relatively low, the appellant has a history of being able to work and it is said he is well capable of making the reparation payment once released from his imprisonment sentence. As I see it, this sentence would not impose “undue hardship” on the appellant in terms of s 12 Sentencing Act 2002. Under all the circumstances prevailing in this case, it is realistic in my view to expect the appellant ultimately to provide reparation in this case.
[31] All grounds having failed, this appeal against sentence is dismissed.
4 R v Dodd [2013] NZCA 270.
...................................................
Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelley & Co, Christchurch
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