Te Tai v Police

[2015] NZHC 2453

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000239 [2015] NZHC 2453

BETWEEN

KEVIN TE TAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 October 2015
Appearances:	David Dickinson for the Appellant Ned Fletcher for the Respondent
Judgment:	7 October 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 7 October 2015 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

TE TAI v NEW ZEALAND POLICE [2015] NZHC 2453 [7 October 2015]

Introduction

[1]      On 28 July 2015 Kevin Te Tai was sentenced by Judge Moses in the District

Court at Manukau to 14 months’ imprisonment.

[2]      He had pleaded guilty to four charges, namely:

(a)       unlawfully  taking  a  motor  vehicle  valued  at  $3,500  (14  months’

imprisonment concurrent);1

(b)      receiving stolen property over $1,000, namely a Subaru motor vehicle

valued at $5,000 (14 months’ imprisonment);2

(c)       escaping lawful custody (one month’s imprisonment concurrent);3 and

(d)      breach of community work (one month’s imprisonment concurrent.4

[3]      Unfortunately the Judge’s sentencing notes are not available.

[4]      Notwithstanding this, Mr Dickinson, counsel for Mr Te Tai, does not wish to adjourn the appeal because there is a real risk that if adjourned the appeal may be rendered nugatory in the event it is successful.

[5]      The appeal has thus proceeded on the basis that the sentence imposed was manifestly excessive and a lesser sentence should be ordered.

The offending and offender

Unlawful taking

[6]      On 3 March 2015 Mr Te Tai was driving a Nissan car when he was stopped by the Police in Pakuranga.  The officers noticed the steering column had been

damaged and the ignition barrel removed.  The car was later confirmed as having

1      Crimes Act 1961, s 226: maximum penalty seven years’ imprisonment.

2      Crimes Act 1961, ss 246 and 247: maximum penalty seven years’ imprisonment.

3      Crimes Act 1961, s 120: five years’ imprisonment.

4      Sentencing Act 2002, s 71(1)(a) ):  maximum penalty three months’ imprisonment or a fine not

exceeding $1,000.

been stolen from an address in Pakuranga the day before.  In explanation, Mr Te Tai said he did not know it was stolen but, despite this, admitted to “hot wiring” it.

Receiving

[7]      Less than a month later, on 29 March 2015, Mr Te Tai was a passenger in a Subaru.  The car was seen by the Police in Pakuranga.  They recognised it as having been stolen more than a year earlier.  They stopped it.  They noticed damage to the steering column with the ignition barrel missing.  Mr Te Tai admitted knowing it was stolen.

Escaping

[8]      Then, on 21 May 2015, the Police stopped a car in Pakuranga.  Mr Te Tai was the front seat passenger.  When asked for his name, he gave his twin brother’s name. He was asked to step out of the car to confirm his identity.  His true identity was confirmed by his tattoos.   It was then discovered he was also in breach of a bail condition which prohibited him from associating with one of the other passengers in the car.  At this point the officer placed Mr Te Tai under arrest and instructed him to place  his  hands  behind  his  back  in  readiness  to  be  handcuffed.    At  this  point Mr Te Tai pulled himself away from the grasp of the officer and took off down the road.   He was pursued by two Police officers.   He was caught and placed on the ground for handcuffing.  Despite this he continued to resist and was arrested.

Breach of community work

[9]      On 28 February 2014, Mr Te Tai was sentenced to 150 hours of community work for unlawfully taking a motor vehicle and for theft “ex-car”, committed in August 2013.   The details of the breach of community work reveal that on two occasions he failed to report for community work.  He completed 1.5 hours of the sentence  of  120   hours’  community  work,   leaving  118.5   hours  outstanding. Telephone calls, warning letters and home visits were undertaken in an attempt to re- engage him with his sentence but without success.   The summary of facts records that he has failed to report on 23 previous occasions.

[10]     At age 31, Mr Te Tai has amassed an unenviable list of previous convictions. Of those he has six previous convictions for receiving stolen property, five previous convictions for unlawfully taking a motor vehicle and two previous convictions for breaching community work.   He has convictions for burglary and numerous convictions for breaching various Court orders.  In total he has 22 property related convictions.

[11]     Significantly at the time Mr Te Tai committed the March 2015 offences he was already subject to the community work sentence imposed for similar offending.

Approach to sentencing

[12]     Section 250(2) of the Criminal Procedure Act 2011 states that the 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.

[13]     In any other case, the Court must dismiss the appeal.5

[14]     The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach

to sentence appeals.7

5 Criminal Procedure Act 2011, s 250(3).

6 Tutakangahau v R [2014] NZCA 279 at [26]-[27].

7 At [33], [35].

[15]     The   approach   under   the   Summary  Proceedings  Act   was   set   out   in

R v Shipton:8

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[16]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence is reached.9

Submissions

[17]     Mr  Dickinson  submits  that  although  Mr  Te  Tai  has  relevant  previous convictions  the  rate  of  his  re-offending  in  recent  years  has  slowed.     More particularly, he submits that Mr Te Tai’s most recent offending occurred more than two  years  ago  and  was  dealt  with  by  way  of  community  work.     For  what Mr Dickinson  describes  as  “substantive property offending” Mr Te Tai  was  last convicted of burglary and receiving in 2008 and was sentenced to a total of 15 months’ imprisonment  on  what  Mr  Dickinson  submits  were  significantly  more serious charges.   He thus submits that the appropriate starting point is 12 months’ imprisonment with an uplift of two months for totality and the offending on bail leading to an overall starting point of 14 months’ imprisonment.  He submits that no uplift  for  previous  convictions  was  necessary  given  Mr Te Tai’s  effort  towards

rehabilitation and remorse as well as the length of time since he last offended.  With

8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

9 Ripia v R [2011] NZCA 101 at [15].

a full discount for guilty pleas he submits that the appropriate end sentence was 10½

months’ imprisonment.

[18]     In support of a starting point of 12 months’ imprisonment Mr Dickinson relies  upon  Carrington  v  Police.10      He  submits  that  the  circumstances  of  the offending and the offender in Carrington place that case at a significantly more serious level than in the present.  Mr Carrington was a 20-year old man who pleaded guilty to two charges of taking a motor vehicle and stealing property from the cars. There the Judge took a starting point of 12 months’ imprisonment which, after a 25

per cent discount for early pleas of guilty, lead to an end sentence of nine months’

imprisonment.

[19]     For the Police, Mr Fletcher submits that a starting point in the range of 12 to

18 months’ imprisonment is appropriate before any uplift for offending while serving a community-based sentence and previous convictions is considered.   He submits that even if a 12 months starting point was adopted, a meaningful uplift for previous convictions, offending while subject to a community-based sentence and totality would bring the sentence to 18 months’ imprisonment before the guilty plea discount is considered.  A full 25 per cent discount for the guilty pleas would bring the end sentence to 13 and a half months as compared to the 14 months actually imposed. On that basis Mr Fletcher submits the sentence cannot be described as manifestly excessive.

Analysis

[20]     In Carrington Venning J, after noting that there was no tariff for this type of offending  which  was  regrettably  all  too  common,  reviewed  the  cases  which suggested that the Courts have taken a starting point of 12 months’ imprisonment for offending  of  this  type.11      His  Honour  was  not  satisfied  that  anything  short  of

imprisonment was appropriate and dismissed the appeal.  Starting points of between

10     Carrington v Police Auckland HC CRI-2011-409-00047.

11     Edwards v Police HC Auckland CRI-2010-404-000103, 11 May 2010; Jackson v Police HC Wellington CRI-2007-485-000062, 20 August 2007; Kanara v Police HC Auckland CRI-2006-

404-000383, 8 December 2006; Prasad v Police HC Napier AP50/01, 13 December 2001; Hall v Police HC Christchurch CRI-2003-409-000097, 18 December 2003; Castle v Police HC New Plymouth AP32/02, 14 August 2002.

12 and 18 months have routinely been considered appropriate for offending of this sort.

[21]     For example, in R v Ellis12  the Court of Appeal considered that a starting point of 18 months’ imprisonment, while stern, was within range for a single charge of receiving $5,000 worth of stolen property.  Mr Ellis was on parole at the time of offending.

[22]     In Burkhart v R13 a starting point of 12 months’ imprisonment on two counts

of receiving was upheld.

[23]     In Ratahi v Police14  this Court determined that a starting point of no more than 18 months was appropriate in circumstances where the appellant was charged with unlawfully taking a motor vehicle, reckless driving and failing to stop.   The appellant had hotwired a car, accelerated away when the Police attempted to stop him.  At first instance the Judge adopted a starting point of 2½ years’ imprisonment which was reduced on appeal.

[24]     In the circumstances, I am satisfied that a starting point of at least 12 months is appropriate for the unlawful taking and receiving charges.   They are properly treated as related in the sense they both involve stolen and unlawfully taken cars. Both sets of offending took place within the space of a few weeks.

[25]     An uplift of between four and six months taking into account the following additional aggravating factors could be described as conservative:

(a)       all  offences  were  committed  while  Mr  Te  Tai  was  subject  to  a sentence of community work for similar offending;

(b)the escaping offence occurred while Mr Te Tai was on bail for the unlawful taking and receiving charges and after he had gave false

12     R v Ellis [2012] NZCA 513.

13     Burkhart v R [2013] NZCA 312.

14     Ratahi v Police [2015] NZHC 2394.

details to the Police when they attempted to arrest him for breaching the conditions of his bail;

(c)      Mr Te Tai’s list of previous convictions is appalling.   It includes 22 property offences and in 2007 a conviction for resisting the Police. This history of offending has resulted in five separate sentences of imprisonment.   The longest were 14 months imposed in December

2004 and 15 months imposed in September 2008;

(d)Mr Te Tai’s poor history of compliance with Court orders and community-based sentences;

(e)      the negative comments contained in the pre-sentence report in relation to Mr Te Tai’s explanations for his offending and the inevitable assessment, given his previous history, that he is at high risk of re- offending.  Further, it cannot be overlooked that a very substantial part of the sentence imposed in July 2014 was cancelled in recognition that over a period of eight months he had managed to complete only 1.5 hours of the 12 hours ordered and had failed to report on at least 23 occasions.

[26]     On this last point I note that s 78 of the Sentencing Act 2002 provides for the effect a subsequent sentence of imprisonment has on an offender who is subject to a community-based sentence if subsequently sentenced to a term of imprisonment of more than 12 months.   In these circumstances the community-based sentence is

automatically suspended15   and is cancelled when the offender’s detention in prison

ends.16    Thus in the present case the sentence of community work imposed in July

2014 will be automatically cancelled when Mr Te Tai’s detention in prison ends.

[27]     For these reasons I am not satisfied that the sentence imposed was manifestly excessive.

15     Sentencing Act 2002, s 78(7).

16     Sentencing Act 2002, s 80(5).

Result

[28]     The appeal is dismissed.

Moore J

Solicitors:
Mr Dickinson, Auckland

Crown Solicitor, Manukau