Telefoni v Police - [2020] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000063

[2020] NZHC 1417

BETWEEN
LOPETI TELEFONI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 June 2020

Appearances:

Emma Priest for the Appellant Lydia Wilson for the Crown

Judgment:

23 June 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 23 June 2020 at 1:00 pm Registrar / Deputy Registrar
Date:

TELEFONI v NEW ZEALAND POLICE [2020] NZHC 1417 [23 June 2020]

Introduction

[1] On three occasions within a week Lopeti Telefoni entered suburban liquor stores and stole cigarettes and alcohol. He was identified as the offender through a combination of CCTV, photographic montages and fingerprints. He was charged with two counts of robbery1 and one of burglary.2 He also faced a charge of breaching release conditions by failing to report.3

[2] He pleaded guilty to all charges and appeared before Judge B A Gibson on 11 February 2020 in the Auckland District Court for sentencing. He was sentenced to four years and six months’ imprisonment.4

[3] He appeals that sentence on the grounds that in all the circumstances it is manifestly excessive and that a sentence of less than two years’ imprisonment is available, thus permitting home detention. He is presently serving his sentence as a high security prisoner because he was recently charged as a party to the murder of a fellow inmate. Such a sentence would permit Mr Telefoni to access rehabilitation programmes such as Odyssey House’s residential programme into which he has recently been accepted.

The offending

[4] In the early evening of 9 June 2019 Mr Telefoni entered the Sunny Liquor Store in Northcote. He walked behind the unmanned counter where he removed a large number of cigarette cartons before taking two bottles of brandy. He then confronted the proprietor. He told him that if he did anything he would assault him. He left the store with the stolen items estimated to be worth approximately $2,500.

[5] At about 10:00 pm the next day, 10 June 2019, the second robbery occurred. Mr Telefoni entered a different Northcote liquor store. He climbed over the counter and removed a large number of cigarette packets. The proprietor ran over and confronted him. Mr Telefoni responded by punching the proprietor three times in the

1      Crimes Act 1961, s 234; maximum penalty 10 years’ imprisonment.
2      Section 231(1)(a); maximum penalty 10 years’ imprisonment.
3      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment and/or $2,000 fine.
4      Police v Telefoni [2020] NZDC 2139.

face, knocking him over and causing bruises to his face. Mr Telefoni then picked up a bottle of spirits and threatened the victim. He told him that if he tried to stop him he would hit him with the bottle. Mr Telefoni took another three bottles of spirits before fleeing.

[6] The third incident, for which Mr Telefoni was charged with burglary, occurred six days later on 16 June 2019 in…

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.

Continue reading Telefoni v Police

Details

AGLC: Telefoni v Police [2020] NZHC 1417
Case: [2020] NZHC 1417
Decision Date: 23 June 2020

CaseChat Overview and Summary

In this case, the appellant, Lopeti Telefoni, sought an appeal against the sentence imposed by the Auckland District Court for his convictions of robbery and burglary. The appellant argued that the sentence was manifestly excessive and that a sentence of less than two years' imprisonment would be more appropriate, thus permitting home detention. The High Court was required to determine whether the sentence imposed was appropriate, and if not, what an appropriate sentence would be. The court considered the appellant's personal circumstances, offending history, and the discounts applied by the District Court.

The court found that the starting point for the robbery charge was appropriate, but the uplifts for the appellant's previous convictions and breach of release conditions were excessive. The court also found that the discounts for the appellant's personal mitigating factors, including his youth, background, and guilty pleas, were insufficient. The court concluded that a more generous discount for these factors was appropriate. After considering all the factors, the court determined that an appropriate sentence would be three years and two months' imprisonment, which did not permit home detention due to the appellant's criminal history.

The appeal was allowed, and the original sentence of four years and six months' imprisonment was quashed. A sentence of three years and two months' imprisonment was substituted.

Orders