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…

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 2453
Decision Date: 7 October 2015

CaseChat Overview and Summary

The case of Te Tai v Police involves an appeal against a sentence imposed by Judge Moses in the District Court at Manukau on Kevin Te Tai. Te Tai was sentenced to 14 months' imprisonment for four charges: unlawfully taking a motor vehicle, receiving stolen property, escaping lawful custody, and breaching community work. The appeal was heard in the High Court of New Zealand, Auckland Registry, on 5 October 2015, and the judgment was delivered on 7 October 2015 by Moore J.

The primary legal issue before the court was whether the sentence imposed on Te Tai was manifestly excessive, warranting a lesser sentence. Counsel for Te Tai argued that the sentence was disproportionate to the offending and offender, citing Te Tai's recent history of offending and efforts toward rehabilitation. They proposed a starting point of 12 months' imprisonment, reduced by a full discount for guilty pleas, resulting in an end sentence of 10½ months' imprisonment. On the other hand, counsel for the Police argued that a starting point of 12 to 18 months was appropriate, taking into account the aggravating factors present in this case, such as Te Tai's history of property offences and poor compliance with court orders. They submitted that the sentence imposed was not manifestly excessive, as the end sentence was 13 and a half months, compared to the 14 months actually imposed.

Moore J considered the sentencing principles and previous cases to determine an appropriate starting point for the unlawful taking and receiving charges. The judge found that a starting point of at least 12 months was appropriate, given the nature of the offending and the circumstances of the offender. The judge also took into account the additional aggravating factors, such as Te Tai's offending while serving a community-based sentence, his false details to the police, and his extensive criminal history. Based on these factors, the judge found that an uplift of between four and six months was appropriate. Consequently, the judge concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

In summary, Te Tai v Police highlights the importance of considering the nature of the offending, the circumstances of the offender, and any aggravating factors when determining an appropriate sentence. The court found that the sentence imposed was not manifestly excessive and dismissed the appeal against the sentence.

Orders