Te Tau v Police - [2015] NZHC 1716

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-12 [2015] NZHC 1716

BETWEEN
NATHAN TE TAU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 July 2015

Counsel:

K B Campbell for Appellant
E M FitzHerbert for Respondent

Judgment:

24 July 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3.45 pm on the 24th day of July 2015

Solicitors: Cooper Campbell Law, Levin, for Appellant
Crown Solicitor, Palmerston North, for Respondent

TE TAU v NEW ZEALAND POLICE [2015] NZHC 1716 [24 July 2015]

[1] This is an appeal against a sentence of 18 months imprisonment imposed by Judge Bouchier in the District Court at Levin on 8 July 2015, on a number of charges including threatening to kill, male assaults female, breach of supervision, breach of community work and threatening to damage property with intent to intimidate.1 The grounds of appeal are:

(a) a guilty plea discount of 25 per cent should have been allowed, instead of the 15 per cent given, in accordance with a sentencing indication;

(b) a further discount should have been allowed for remorse; and

(c) home detention should have been imposed.

[2] The Judge also issued a protection order in favour of the victim. That was initially challenged on this appeal on the grounds that the views of the victim had not been sought as required by s 123B(2)(b) of the Sentencing Act 2002. A letter was produced at the hearing indicating that the victim did not object to the order. In the light of that, this ground of appeal was not pursued.

[3] The appellant initially appeared on some of the charges on 12 February 2015, and on the more serious charges on 23 March 2015. On 19 May 2015, Judge Lynch gave a sentencing indication. He indicated that there would be a starting point of
18 months imprisonment, uplifted by three months for the appellant’s history. He

described both the start point and the uplift for history as conservative. He then said:

[13] From the 21 months you would be entitled to deductions for remorse if there is remorse, engagement in a restorative justice process if there was engagement and of course you would be entitled to full credit for your guilty pleas.

[4] The Judge went onto consider whether home detention would be an available sentence. He noted some non-compliance with previous sentences, including those
the subject of the present charges, and said:

1 Police v Te Tau [2015] NZDC 12801.

[15] So at first blush you would not appear to be a strong candidate for home detention, but if I gave Mr Campbell another opportunity to address me I am sure he would point out to me that you have never had the benefit of an electronically-monitored sentence before, so it may well be that I could be persuaded to impose home detention if you had all your ducks in a row and there was a supportive address and support from your probation…

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 1716
Decision Date: 24 July 2015

CaseChat Overview and Summary

In this case, the appellant, Nathan Te Tau, is appealing against the sentence imposed by the District Court at Levin on 8 July 2015. The sentence was 18 months imprisonment for multiple charges, including threatening to kill, male assaults female, breach of supervision, breach of community work, and threatening to damage property with intent to intimidate. The appeal raises three grounds: the appellant claims that a guilty plea discount of 25 per cent should have been applied instead of the 15 per cent given, a further discount should have been allowed for remorse, and home detention should have been imposed. The respondent, New Zealand Police, argues that the sentencing judge properly exercised her discretion and there was no error in the sentence imposed.

The court considered whether the sentencing judge correctly applied the sentencing principles when deciding between home detention and imprisonment, and whether the discount for the guilty plea was correctly calculated. The court found that the sentencing judge had exercised her discretion properly and there was no error in declining to impose home detention. The court also found that the discount for the guilty plea should have been 25 per cent instead of 15 per cent, as indicated earlier, and adjusted the sentence accordingly. The court found that no additional discount was appropriate for remorse and completion of the alcohol and drug course.

The appeal was allowed, and the sentence of 18 months imprisonment was quashed and replaced with a sentence of 15 months imprisonment. The conditions imposed by the Judge remained in place, and the protection order was confirmed.

Orders