Tawhara v Police - [2015] NZHC 2246

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-45 [2015] NZHC 2246

BETWEEN
JOHNSON TE KOTAHI TAWHARA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 September 2015

Appearances:

GAM Schweizer for Appellant
SL Tapsell for Respondent

Judgment:

17 September 2015

JUDGMENT OF TOOGOOD J

TAWHARA v NEW ZEALAND POLICE [2015] NZHC 2246 [17 September 2015]

[1] On 4 August 2015 the appellant, Johnson Te Kotahi Tawhara, was sentenced at the District Court in Rotorua for:

(a) One charge of burglary committed on 8 February 2015;

(b) One charge of driving while his licence is suspended, committed on

31 March 2015; and

(c) One charge of breach of community work committed between

10 January 2015 and 28 February 2015.

[2] Judge Russell Collins sentenced Mr Tawhara to 14 months’ imprisonment for burglary. He disqualified the appellant from holding or obtaining a driver’s licence for six months on the charge of driving while suspended, and convicted and discharged him on the charge of breaching community work order.

[3] Mr Tawhara appeals against the sentence of 14 months’ imprisonment for the

burglary.

Facts

[4] The appellant lives in Ruatahuna, a very remote area which is a two-hour drive from Rotorua. At the time of the offending, he was serving the sentence of community work.

Burglary charge

[5] On 9 February 2015, at around 9:00 pm, the appellant and some associates went to an address on Clayton Road, Rotorua. At the address, the appellant entered the dwelling through an unlocked door and gained access to the lounge. Once in the lounge, he removed a 50 inch Panasonic television. Although he had previously been a boarder at the property, the appellant had no authority to be in the house or to remove the television. He took the television to his vehicle and drove off.

[6] The appellant said that he had lent the victim money while he was boarding with her, which she would not repay, so he went into the house to try to get his money, saw the door open, went in and took the television.

[7] The appellant has nine previous convictions for offences occurring between

2008 and 2014, five of which were dishonesty related offences, but he has no previous convictions for burglary.

District Court sentence

[8] For the appellant, Mrs Schweizer said that at the start of the District Court hearing she asked for the matter to be adjourned for consideration of a sentence of community work, supervision and reparation. Judge Collins indicated that these were not sentencing options as the only appropriate sentence for burglary was home detention or imprisonment, and it was acknowledged that the appellant did not have a suitable home detention address. On that basis, Mrs Schweizer advised the appellant to waive his right to a pre-sentence report.

[9] Mrs Schweizer said that, during submissions prior to sentencing, Judge Collins said he did not believe that the decision of the High Court in Senior v Police1 was good law any longer and instead, he…

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: [2015] NZHC 2246
Decision Date: 17 September 2015

CaseChat Overview and Summary

The case of Tawhara v Police involves an appeal by Johnson Te Kotahi Tawhara against his sentence of 14 months' imprisonment for burglary, handed down by Judge Collins at the District Court in Rotorua. Tawhara had committed a burglary on 8 February 2015, by entering a dwelling through an unlocked door and stealing a television. The appellant had no prior convictions for burglary but had nine previous convictions, five of which were for dishonesty-related offences. The appellant appealed the severity of the sentence and the failure of the sentencing judge to consider a community-based sentence.

The legal issues before the court were whether the starting point for the burglary charge was correctly set, and whether a community-based sentence should have been considered as an alternative to imprisonment. The High Court found that while the starting point for the burglary was within the appropriate range, a community-based sentence should have been considered.

The court reasoned that the facts of burglary cases are varied, and the sentencing starting point involves assessing the particular circumstances of the offending. The aggravating factors in this case included the entry into a domestic dwelling at night, the pre-meditation involved, and the breach of trust given the appellant's previous boarding arrangement with the victim. The court also considered the severe impact of the offending on the victim. The court concluded that the starting point of 18 months' imprisonment was appropriate but noted that a community-based sentence should have been considered. The court allowed the appeal and resentenced the appellant to 12 months' community supervision and 250 hours of community work, in addition to ordering the appellant to pay $120 in compensation to the victim.

Orders