Tawhiri v Police - [2013] NZHC 1320

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-000011 [2013] NZHC 1320

BETWEEN PHILLIP JAMES TAWHIRI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 June 2013

Counsel: EJ Forster for Appellant
JD Lucas for Respondent

Judgment: 5 June 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors: Elvidge & Partners, Napier
Crown Solicitor, Napier

TAWHIRI v POLICE [2013] NZHC 1320 [5 June 2013]

Introduction

[1] Mr Tawhiri pleaded guilty in the Hastings District Court to charges of burglary, unlawfully taking a bicycle, escaping from custody and driving while disqualified. He was sentenced by Judge Mackintosh to a sentence of two years and three months imprisonment on the burglary charge and concurrent sentences of four months imprisonment for unlawfully taking a bicycle and escaping from custody. He was convicted and discharged on the charge of driving while disqualified.

[2] Mr Tawhiri appeals against sentence on the grounds that it is manifestly excessive.

Facts

[3] On 12 January 2013, Mr Tawhiri broke into a campervan parked at Havelock North. It was being used by tourists travelling throughout the country. He cut the mesh screen of a window at the back and climbed inside. He took electronic items, including an I-pad, a charger and cameras, as well as clothing, a backpack and gifts that had been purchased by the victims in the course of their trip.

[4] He left the scene and went to Hastings carrying the stolen items in a backpack and a pillowslip he had had taken from the campervan. He was seen by police in Hastings riding a stolen bicycle. He tried to hide and was then spoken to. The pillowslip containing the stolen items was located nearby. He was then placed under arrest. While the police officer was searching through the stolen items, Mr Tawhiri rode away on the bicycle to an adjoining street where he dumped it before running from the area. He was located the following morning.

Personal background

[5] Mr Tawhiri is 43 years old. He has offended repeatedly since he was aged

15. He has 136 convictions. They cover the spectrum of offending, including convictions for dishonesty, violence, sexual offending, driving and compliance issues. Relevantly, for present purposes, Mr Tawhiri has 16 previous convictions for burglary, the most recent in 2010 and 2012.

[6] The factors contributing to his offending are identified by the probation officer, who prepared his pre-sentence report, as long-term problems with alcohol and drugs and his sense of entitlement to take other people’s property. In accepting responsibility for the offending, Mr Tawhiri apportioned blame to his level of intoxication. He said he had been drinking for some 13 hours before the offending.

[7] Mr Tawhiri has had an intermittent relationship with his former partner over a period of 20 years. They have two children aged 11 and 15 years. He also has a 13- year-old son from a previous relationship.

[8] He is assessed as at high risk of reoffending.

Sentence

[9] Judge Mackintosh adopted a starting point of two years for…

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: [2013] NZHC 1320
Decision Date: 5 June 2013

CaseChat Overview and Summary

The case of Tawhiri v Police involves Mr Phillip James Tawhiri who appealed against his sentence imposed by the Hastings District Court. Mr Tawhiri was found guilty of burglary, unlawfully taking a bicycle, escaping from custody, and driving while disqualified. The High Court of New Zealand, Napier Registry, presided over the appeal, with Rodney Hansen J delivering the judgment on 5 June 2013. The primary issue before the court was whether the sentence imposed on Mr Tawhiri was manifestly excessive. Mr Tawhiri's counsel argued that the starting point of two years for the burglary charge was slightly excessive, given that the burglary lacked many aggravating features typically associated with domestic burglaries. The defence counsel suggested that the starting point should have been 18 months imprisonment, resulting in an end sentence of one year and nine months. The respondent, represented by Mr Lucas, defended the sentence imposed by the sentencing Judge, arguing that the starting point adopted was within the available range and the adjustments made for associated offending and previous convictions were appropriate. Mr Lucas further submitted that the mobile home should be treated similarly to a private residence as there is always a risk that the victims will be present. He also highlighted the forced entry, the theft of items of personal value, and the timing of the offence as additional aggravating factors. In addition, Mr Lucas argued that some extra weighting for deterrence ought to be given, as occurred in Stickings v Police, to recognise that the theft of property from tourists is an issue of significant concern.

The court considered the arguments presented by both parties and concluded that the starting point adopted by the Judge, while at the upper end of the available range, was not beyond it. The court accepted that the offending lacked many of the aggravating features often associated with burglaries of residential dwellings, but also acknowledged that the burglary of a mobile home being used by tourists and the theft of articles of personal nature acquired in the course of the trip deserved some additional condemnation. The court found that the need for deterrence and denunciation had more general application to offending against tourists, who tend to be more trusting and unfamiliar with local conditions. The court held that the starting point and the end sentence were within the available range and dismissed the appeal.

Orders