Tenakore (aka Kainkuku) v Police
[2012] NZHC 405
•12 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-004-008782 [2012] NZHC 405
TEAROA TENAKORE (AKA KAINUKU)
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2012
Counsel: T Faleauto for the Appellant
A Longdill for the Respondent
Judgment: 12 March 2012
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 12 March 2012 at 2.45 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
T Faleauto: Fax - 09 262 1450A Longdill: [email protected]
TENAKORE (AKA KAINUKU) V POLICE HC AK CRI 2011-004-008782 [12 March 2012]
[1] On 3 August 2011, Mr Tenakore, who is also known as Mr Kainuku, was found guilty of one charge of threatening to kill under s 306(1)(a) of the Crimes Act
1961, following a defended hearing in the Auckland District Court before Judge PA Cunningham.
[2] On 21 September 2011, he was sentenced by Judge Cunningham to a term of
five months’ home detention, plus 120 hours’ community work.
[3] On 6 October 2011, Mr Tenakore filed a notice of appeal against conviction and sentence. The Community Probation Service disconnected the monitoring equipment used for the sentence of home detention on 10 October 2011. The sentence has been suspended since that date pending the determination of this appeal.
[4] The matter was called before the Court on 17 February 2012. Mr Tenakore advised that his appeal was to be pursued as an appeal against sentence only.
Relevant Facts
[5] On 12 May 2011, Mr Tenakore telephoned the victim, a Richard Mokofisi. Mr Mokofisi is the father of Mr Tenakore’s current partner. Furthermore, he and his wife have brought up Mr Tenakore’s son. The son is now a teenager, and he has a poor relationship with Mr Tenakore.
[6] During the telephone call, Mr Tenakore shouted at Mr Mokofisi. He swore at him, told him he was going to “get him”, and told him that he was going to “blow his head off”.
[7] Mr Tenakore has an extensive criminal record and a number of his offences are violence-related. As recently as 2007, he was imprisoned for five years for injuring with intent to cause grievous bodily harm. He was on parole when the present incident occurred. Mr Mokofisi was understandably frightened. He hung up the telephone, drove home, and immediately called the police.
[8] On 13 May 2011, the police spoke to Mr Tenakore. The police asked for his mobile telephone, but he said that he did not have his own mobile telephone. He said that he used his son’s telephone on those occasions when he needed a mobile telephone. The police officer then searched Mr Tenakore’s car. Mr Tenakore told them that no mobile telephone was inside the car, but the police officers found one in the foot well. When the police officers confronted him with this mobile telephone, Mr Tenakore initially said it was his son’s telephone. However, he later acknowledged that it was his telephone. Analysis of the telephone showed that it had been used to call Mr Mokofisi.
District Court Judge’s Decision
[9] Judge Cunningham referred to the relevant facts. She noted that the police had sought a sentence of imprisonment, but that the pre-sentence report had recommended home detention, or possibly something less than that. She noted the submissions made by counsel appearing for Mr Tenakore. She referred to the pre- sentence report, and to a letter the Court had received from the victim. In that letter, Mr Mokofisi had asked that Mr Tenakore not be sent to prison. His words were “be easy on him”, as “at the end of the day, he’s my grandson’s father”. The Judge noted that Mr Tenakore was on parole at the time of the incident, but that there had been no application for recall. She also observed that it was plain that Mr Tenakore was doing well, at least in some respects, while on parole. She noted that because of these factors and Mr Mokofisi’s request, she would not send Mr Tenakore to prison.
[10] The Judge then discussed the sentence she would have imposed but for these matters. She indicated that she would have adopted a starting point of something like nine months’ imprisonment for the offence, and then imposed an uplift of six months for Mr Tenakore’s previous convictions, and a further uplift of three months because he was on parole at the time that the offence was committed. She noted that she could have imposed an 18-month prison sentence.
[11] Judge Cunningham considered that this was a possible outcome, but instead, observed that in these circumstances, she had come to the view that home detention was the only appropriate non-custodial sentence. She acknowledged that that
sentence was not going to be easy for Mr Tenakore to serve, but observed that his partner could assist in helping to look after his elderly mother. She took that matter into consideration, and went on to impose a sentence of five months’ home detention, together with 120 hours’ community work. The sentence of home detention was subject to, inter alia, a condition that Mr Tenakore was to complete a psychological assessment, and attend and complete any counselling or treatment as recommended by that assessment to the satisfaction of his probation officer and the treatment provider. He was also to undertake and complete any anger management course or counselling as recommended by the probation officer.
Submissions
[12] Mr Faleauto, for the appellant, submitted that the sentence is manifestly excessive. He argued that a lesser sentence would have sufficed to meet the principles and purposes of sentencing set out in ss 7 and 8 of the Sentencing Act
2002. In particular, he submitted that a sentence of home detention plus community work was not the least restrictive sentence which could have been imposed, as required under s 8(g) of the Act, and that the Judge gave insufficient weight to Mr Tenakore’s personal circumstances. He referred to s 8(h) of the Sentencing Act in this regard.
[13] Mr Faleauto acknowledged that there is no tariff case for such offending. He referred me to other authorities where different and more lenient sentences, have been imposed. He noted that while Mr Tenakore made a verbal threat, there was no actual violence, and that no threat was made in person. He submitted that a more appropriate sentence would be one of community work without home detention, or alternatively, home detention without community work.
[14] Ms Longdill, for the Crown, reminded me of the approach the Court should adopt to sentence appeals under s 121 of the Summary Proceedings Act 1957. She submitted that I should only entertain the appeal if there is an error vitiating Judge Cunningham’s sentencing discretion, and that this precludes me from tinkering with the sentence if it falls within the suitable range.
[15] Ms Longdill argued that it simply could not be said that the sentence was excessive, let alone manifestly excessive. Indeed, she went on to submit that the sentence imposed by Judge Cuningham was lenient, and even suggested that I might consider invoking my powers under s 121(3)(b)(i) of the Summary Proceedings Act
1957 by quashing the sentence and imposing a harsher sentence. She referred me to recent authorities where the Courts have reviewed factors relevant to sentencing for this offence. She argued that a sentence in excess of 12 months’ imprisonment would have been justified in light of the aggravating factors, and that a short sentence of home detention, which was less than one-third of the 18 month term the Judge considered would be appropriate if the appellant was to be imprisoned, coupled with a modest term of community work, was lenient.
Analysis
[16] This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957. Section 121 of that Act confers powers on the Court to determine such appeals. Relevantly, it provides as follows:
121 High Court to hear and determine appeal
…
(3) In the case of an appeal against sentence, the High Court may—
(a) confirm the sentence; or
(b if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) quash any invalid part of the sentence that is severable from the residue; or
(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
(Emphasis added)
[17] It is trite law that this Court should not interfere with a sentence imposed by a
District Court Judge unless the sentence is clearly excessive or wrong in principle.1
An appeal must proceed on an “error principle”.2 The Court should not substitute its own opinion for that of the sentencing judge.3 It can interfere if the sentence imposed is clearly excessive. Whether a sentence is clearly excessive is to be considered by reference to the sentence imposed, rather than the process by which the sentence was reached.4 A sentence will be clearly excessive if it can be shown to be substantially or significantly more severe than it ought to have been in the light of the seriousness of the offence and the culpability of the offender.5 As the Court of Appeal observed in R v Shipton:6
The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
[18] Against this background, I now turn to consider this appeal.
[19] There is no suggestion that Judge Cunningham lacked jurisdiction, or that substantial facts relating to the offending or the appellant’s character or personal history were not before the Court, or that the facts were not substantially as placed before or found by the Court. It follows that the appeal should only be allowed if the sentence imposed was clearly excessive, inadequate or inappropriate.
[20] Mr Faleauto’s submissions notwithstanding, I am not persuaded that the
sentence imposed by Judge Cunningham was clearly excessive.
1 See R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.
2 Yorston v Police HC Auckland CRI 2010-404-164, 14 September 2010 at [13]–[15].
3 Wells v Police [1987] 2 NZLR 560 (HC) at 565.
4 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50]; R v Martin CA 199/04, 14 February 2005 at
[160].
5 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [SAB 15].
6 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
Crimes Act 1961, the offence carries a maximum penalty of seven years’
imprisonment.7
[22] In McKinlay v Police,8 Asher J reviewed a number of the sentencing authorities in this area, all of which involved sentences of imprisonment. Those authorities included two Court of Appeal decisions where sentences of imprisonment were upheld.9 Asher J concluded as follows:
It has been observed that key factors in assessing the culpability of offending of this nature will include premeditation, the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim. It can be added that the use of a weapon as part of the threat is an aggravating factor.
[23] In Brewer v Police,10 French J upheld a sentence of two years and two months’ imprisonment for offending where the offender told a staff member at the Prisoners’ Aid and Rehabilitation Society that he was going to travel to Invercargill, obtain a firearm, and use it to blow away the victim. French J commented:11
In my view, comparator cases show that the starting point of two years was clearly within range, and that although the victim was not present when the threat was made, that of itself does not mean a custodial sentence is not warranted…
I am also satisfied that the uplift on account of previous convictions was fully justified. That is particularly so when one has regard to the further aggravating personal factor, namely that this offending occurred while Mr Brewer was on parole. The [appellant’s] record is alarming, and the interests of protecting members of the public was certainly something the Judge was entitled to emphasise in the circumstances of the case.
[24] Here, Judge Cunningham indicated that the offending would have attracted a starting point of something like nine months, and that she would have added an uplift of six months for Mr Tenakore’s previous convictions and a further three months for
the fact that the offending was on parole, leading to an 18-month prison sentence.
7 Crimes Act 1961, s 306(1).
8 McKinlay v Police HC Rotorua CRI 2011-470-28, 28 November 2011 at [19].
9 Burchell v R [2010] NZCA 314; R v Thomas CA 212/04, 2 August 2004.
10 Brewer v Police HC Dunedin CRI 2011-412-25, 28 September 2011; and see Blair v Police
HC Dunedin CRI 2010-412-10, 13 May 2010 at [15].
11 Brewer v Police, above n 10, at [16]–[17].
my view, have been stern, but not beyond the range available to her. It follows that the sentence actually imposed was not excessive, let alone clearly excessive.
[26] The Judge adopted a sympathetic stance. She was particularly motivated by the fact that Mr Tenakore had been doing well on parole, and that he had been adhering to his parole conditions. She was also motivated, understandably, by the victim’s views. Mr Mokofisi had asked that Mr Tenakore not be sent to prison.
[27] In the end result, Judge Cunningham imposed a sentence of home detention. I can well appreciate her reasons for doing so. She did not set out why she considered that five months’ home detention was appropriate, as opposed to a longer sentence of home detention. It may well have been open to her to have imposed a larger sentence of home detention, particularly in view of aggravating features including Mr Tenakore’s poor criminal history, and the fact that the offending was committed while Mr Tenakore was on parole. However, she did impose as an additional penalty, a sentence of 120 hours of community work.
[28] In my view, it simply cannot be said that the end sentence imposed was clearly excessive.
[29] I have given some consideration to quashing the sentence, and imposing a harsher sentence. However, I have decided it is not appropriate to do so, for much the same reasons as were identified by Judge Cunningham. I am particularly influenced by the victim’s views. I also acknowledge that Mr Tenakore was adhering to his parole conditions prior to this offending. I am hopeful that Mr Tenakore will engage in the psychological assessment, counselling, and treatment, which the Judge imposed by way of condition on the sentence of home detention. I trust that he will learn to deal with his anger management problems. But for these personal mitigating circumstances, a sentence of imprisonment would have been appropriate.
[30] I also bear in mind that the police did not appeal the sentence.
Wylie J
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