Tawhiri v Police
[2013] NZHC 1320
•5 June 2013
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 the burglary charge. She uplifted the sentence by four months to cover the associated offending. She added a further eight months to take account of Mr Tawhiri’s previous convictions for burglary. He had entered a guilty plea at the earliest opportunity and was entitled to 25 per cent discount, producing an end sentence of two years and three months.
Grounds of appeal
[10] Mr Forster submits that the starting point adopted by the Judge was, as he put it, “slightly excessive”. He said the burglary lacked many of the aggravating features often associated with domestic burglaries, including the absence of any risk of danger to the occupiers, wanton destruction of property or sophisticated planning and execution. He submits that the starting point should have been 18 months imprisonment. He takes no issue with the adjustments made by the sentencing Judge, indicating an end sentence of one year and nine months imprisonment.
Respondent’s submission
[11] Defending the sentence, Mr Lucas submits that the starting point adopted by the Judge was within the available range and the uplifts made for associated offending and previous convictions were appropriate. He points out that the Court of
in itself a significant aggravating feature with dwelling house burglaries at the relatively minor end of the scale attracting a starting point for sentence of between
18 months and two years and six months imprisonment.2 He submits that a mobile
home should be treated in the same way as a private residence as there is always a risk that the victims will be present.
[12] Mr Lucas identified as further aggravating features of the offending the forced entry, the fact that items of personal value had been taken and the offending had occurred at night. He also submits that some extra weighting for deterrence ought to be given, as occurred in Stickings v Police,3 to recognise that the theft of property from tourists is an issue of significant concern.
Discussion
[13] In my view, the starting point adopted by the Judge, while at the upper end of the available range, was not beyond it. I accept that the offending lacked many of the aggravating features often associated with burglaries of residential dwellings. It appears to have been opportunistic offending which is unlikely to have posed any risk to the occupants of the campervan. It would have become apparent that it was unoccupied at the time.
[14] On the other hand, I accept that the burglary of a mobile home being used by tourists and the theft of articles of a personal nature acquired in the course of the trip, is deserving of some additional condemnation and may appropriately attract a further deterrent element on sentence. In addition to Stickings, I was referred to two cases
involving theft from tourists. In Ropiha v Police4 a starting point of two and a half
years was adopted on a single charge of theft of cash and personal items valued at
$5,000 from a tourist bus. In Ngawati v Police5 which involved multiple charges of
theft from tourists’ vehicles in Rotorua, the predation on tourists in a community
dependent on tourism was characterised by the sentencing Judge as an attack on the
1 Arahanga v R [2013] 1 NZLR 189.
2 At [78].
3 Stickings v Police HC Rotorua CRI-2007-463-79, 6 July 2007, Priestley J.
4 Ropiha v Police HC Rotorua CRI-2007-4603-79, 6 July 2007, Keane J.
5 Ngawati v Police HC Rotorua CRI-2011-463-46, 15 August 2011, Potter J.
accepted that the need for deterrence, denunciation and protection of the public was appropriately taken into account in setting a starting point of four years imprisonment.6
[15] Although these cases concern offending in the Rotorua area which is uniquely dependent on tourism, it seems to me that the need for deterrence and denunciation has more general application to offending against tourists. Those using motor homes are vulnerable targets wherever they are. Unfamiliar with local conditions, tourists tend to be more trusting. They can unknowingly leave their vehicle in a location that exposes them to risk. Those who prey on them should expect a condign response.
[16] There are cases such as R v Columbus7 relied on by Mr Forster which suggests that a lower starting point could have been adopted but in sentencing for burglary where there is no tariff, and so much depends on the circumstances of the offending, an appellate court must be cautious not to be diverted by selective comparisons and fine distinctions. Ultimately, the question is whether a starting point adopted for the offending overall and, most importantly, the end sentence, are within the available range.
[17] I am satisfied that the starting point was within the available range. Arahanga8 confirms that. I am satisfied also that a starting point of two years and four months for the totality of the offending – the burglary, the theft of a bicycle and escaping from custody – is by no means excessive. The uplift of eight months for a lengthy record of burglary and other offences of dishonesty, some of them quite recent, cannot be regarded as excessive either. Even if the starting point for sentence
on the charge of burglary could be seen as on the high side, I am satisfied that the
end sentence of two years three months is not manifestly excessive.
6 Ngawati v Police at [29].
7 R v Columbus [2008] NZCA 192.
8 Arahanga v R, at n 1 above.
[18] The appeal is dismissed.