Te Aho v Police - [2023] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-441-03

[2023] NZHC 1056

BETWEEN
ROMA LADY MANUEL-TE AHO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 April 2023

Counsel:

E J Forster for Appellant

A V Bryant for Respondent

Judgment:

5 May 2023

JUDGMENT OF RADICH J

Introduction

[1] Ms Te Aho1 pleaded guilty to, and was convicted on, 26 charges in the Napier District Court.2 The offending to which the charges relate is summarised in [5] below.

1 Ms Te Aho has said that “Manuel” was a nickname she adopted in prison and that she no longer wishes for it to be used by the Court. In this decision, I refer to the appellant just as Ms Te Aho.
2 Three counts of burglary (Crimes Act 1961, s 231(1)(a)); unlawfully in an enclosed yard (Summary Offences Act 1981, s 29(1)(b); three counts of using a card for pecuniary advantage (Crimes Act, s 228(1)(b)); two counts of theft over $1,000 (Crimes Act, ss 219 and 223(b)); theft between $500 and $1,000 (Crimes Act, ss 219 and 223(c)); five counts of theft under $500 (Crimes Act, ss 219 and 223(d); two counts of unlawfully taking a motor vehicle (Crimes Act, s 226(1)); three counts of unlawfully entering a motor vehicle (Crimes Act, s 226(2)); three counts of driving while disqualified (Land Transport Act 1998, s 32); giving false information as to identity of driver (Land Transport Act, ss 52 and 114); two counts of breach bail (Bail Act 2000, s 38(a)); breach of court release conditions (Sentencing Act 2002, s 96(1)).

TE AHO v NEW ZEALAND POLICE [2023] NZHC 1056 [5 May 2023]

[2] On 24 February 2023, Ms Te Aho was sentenced by Judge Collins in the District Court to three years’ imprisonment. In addition, her outstanding fines of
$15,273.40 were remitted and she was disqualified from driving for six months.3

[3] Ms Te Aho has appealed from her sentence of three years’ imprisonment on two primary grounds:

(a)that the District Court Judge erred in his approach to sentencing because, for a set of dishonesty-related offences, he applied a discrete sentence of 36 months and added it, cumulatively, to the starting point (and uplifts) he had set for the leading offence rather than simply applying uplifts for those dishonesty-related offences to the starting point for the leading offence; and

(b)that, however assessed, the 36-month increase to the starting point (and uplifts) for the dishonesty-related offences was excessive.

[4] The Crown’s position is that the sentencing approach was appropriate, that the concurrent sentences imposed were consistent with the totality of the offending and that the end sentence was not manifestly excessive.

Summary of offending

[5] The offending took place between 24 November 2021 and 16 September 2022. Very much by way of summary, it can be described as follows:

(a)24 November 2021 – theft under $500.4 Ms Te Aho stole several items from Countdown supermarket in Hastings.

(b)24 March 2022 – breach of…

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: [2023] NZHC 1056
Decision Date: 5 May 2023

CaseChat Overview and Summary

In the case of Te Aho v Police, Ms Te Aho appealed her sentence of three years' imprisonment, imposed by the District Court for various offences including burglary, theft, and driving while disqualified. The appellant argued that the sentencing approach was flawed and that the uplifts for dishonesty-related offences were excessive. The Crown maintained that the sentence was appropriate and within the range. The High Court found that while concurrent sentences were appropriate for the offending, the uplifts for some of the dishonesty offences were too high, resulting in a sentence that did not reflect the totality of the offending. The Court allowed the appeal, reducing the sentence to two years and eight months while maintaining the concurrent sentences for the other charges.

The Court noted that the offending was of a similar kind and connected, justifying concurrent sentences. The Court found no error in the sentencing approach but did identify that the uplifts for the dishonesty offences were disproportionate to the lead offence. The Court concluded that a combined uplift of 15 to 20 months for the remaining offences was appropriate, leading to a reduced sentence of two years and eight months. The Court emphasised that the focus in sentence appeals is on the end sentence unless there is a fundamental error, and in this case, the four-month difference did not amount to judicial tinkering.

Orders