Teulilo v Police
[2017] NZHC 2072
•29 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-000215 [2017] NZHC 2072
BETWEEN LEONARD TEULILO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 August 2017 Appearances:
K G Scott for the Appellant
M B Breckon for the RespondentJudgment:
29 August 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 29 August 2017 at 11.15 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland
TEULILO v NEW ZEALAND POLICE [2017] NZHC 2072 [29 August 2017]
Summary
[1] Mr Leonard Teulilo appeals from his sentence of 22 months’ imprisonment for eight offences including theft, aggravated assault, dishonestly using a document, escaping lawful custody and obstruction of a police officer. I uphold the appeal and reduce the sentence to 20 months, which is the result the sentencing judge’s logic would have led to, if not for a mathematical miscalculation. I do not uphold the appeal in any other respect.
Facts
[2] On 9 June 2017 Mr Leonard Teulilo, age 29, was convicted of eight offences in the District Court at Auckland. He was sentenced to 22 months’ imprisonment. The offences were committed on three occasions.
[3] On 1 October 2015 Mr Teulilo snatched a handbag at a bus stop in Papatoetoe from a woman who chased him. He got into a Toyota RAV4 and drove at the woman, running over her foot. She suffered bruising, swelling, grazing to her foot, knee and hand. Later that day he tried to use her debit card. For this Mr Teulilo was convicted of:
(a) theft, carrying a maximum of three months’ imprisonment;1
(b) aggravated assault carrying a maximum of three years’
imprisonment;2 and
(c) dishonestly using a document, carrying a maximum of seven years’
imprisonment.3
[4] On 24 February 2016 Mr Teulilo was stopped by the police while driving a car on the Southern Motorway in Grafton, Auckland. He was informed he was under arrest for other offending and told to remain in the car. But he and his partner ran
away. The police gave chase and told Mr Teulilo to stop. He turned and advanced
1 Crimes Act 1961, ss 219 and 223(d).
2 Crimes Act 1961, s 192(1)(c).
3 Crimes Act 1961, s 228(b).
on the police officer who drew a taser and detained Mr Teulilo. For this he was convicted of escaping lawful custody, carrying a maximum of five years’ imprisonment.4
[5] On 3 March 2017 Mr Teulilo was approached by police officers while he was parked in a car in a carpark. Mr Teulilo reversed his car, ignored directions to stop and attempted to drive forward. The officers attempted to seize control of the car keys which Mr Teulilo resisted. The officers threatened to, and then did, pepper spray him. He started the car, drove out of the carpark, hitting another car. The police, with flashing lights, pursued Mr Teulilo who failed to stop and eventually hit another car opposite the Otahuhu Police station and was detained. For this he was convicted of:
(a) resisting or obstructing a police officer, carrying a maximum of three
months’ imprisonment or a $2,000 fine;5 and
(b)two charges of failing to stop when required, carrying a maximum fine of $10,000.6
[6] Mr Teulilo was also convicted of:
(a) breach of community work, carrying a maximum of three months’ imprisonment or a fine of $1,000 and breach of conditions of community detention, carrying a maximum of six months’ imprisonment or a fine of $1,500;7 and
(b)failure to answer Police and District Court bail, carrying the maximum of three months imprisonment or a fine of $2,000.8
[7] Mr Teulilo had 16 previous convictions including for violence and dishonesty offences.
4 Crimes Act 1961, s 120(1)(c).
5 Summary Offences Act 1981, s 23.
6 Land Transport Act 1998, s 52.
7 Sentencing Act 2002, ss 71 and 69G
8 Bail Act 2000, ss 24 and 38.
District Court decision
[8] In sentencing Mr Teulilo Judge Collins in the District Court took a starting point of 18 months’ imprisonment on the aggravated assault charge, noting Mr Teulilo was fortunate he did not face robbery or aggravated robbery charges.9
[9] Judge Collins applied uplifts of:
(a) two months for the charges of theft and dishonest use of a document; (b) two months for escaping police custody; and
(c) four months for his “numerous” previous convictions.
[10] Judge Collins applied a six month discount for Mr Teulilo’s guilty plea. He gave no discount for remorse, stating he had “no confidence whatsoever” they were anything “other than situational expressions”, given his position. The overall sentence was 22 months’ imprisonment. The Judge concluded an electronically monitored sentence would be inappropriate given Mr Teulilo’s non-compliance and continued offending.
Submissions
[11] Mr Scott, for Mr Teulilo, submits the Judge made a mathematical error in concluding that 18 months plus two months plus two months plus four months resulted in 28 months’ imprisonment, when it is really 26 months. With the six month discount the sentence should have been 20 months rather than 22 months’ imprisonment. Mr Scott also submits the judge erred in not giving Mr Teulilo a discount for mitigating factors. He proposed a five per cent discount for remorse, five per cent for rehabilitation and five per cent for his employment and family circumstances. Mr Scott submitted Mr Teulilo is on the path to rehabilitation and is trying to change his life and that his employer wants him back. Mr Scott submits Mr
Teulilo should have been sentenced to home detention as the least restrictive
9 New Zealand Police v Teulilo [2017] NZDC 12357.
sentence that would allow rehabilitation, citing his compliance with home detention conditions in 2012.
[12] Ms Breckon, for the Crown, agrees the judge erred in his calculations. But she submits the judge gave appropriate consideration to the personal mitigating factors and was correct in not giving a sentence of home detention, given Mr Teulilo’s history of offending, breaching court orders and poor compliance with community based sentences. She submitted Mr Teulilo has been employed for four years, during which time he continued to offend and that he offended after one of the employer’s letters to the Court was sent. She submits there were aggravating factors in the offending, such as using a car as a weapon by driving at the victim on
1 October 2015 and in the injury and extent of violence involved. She suggests analogous offending resulted in a starting point of 25 months.10 She submits Mr Teulilo has had a number of opportunities to show he can comply with community based sentences but there is a high risk he would breach conditions of home detention.
[13] It became clear during the hearing that Mr Scott placed some reliance for his submissions, in relation to remorse, on letters Mr Teulilo had written to the victim and the District Court Judge. However, those letters were not before me and neither counsel had seen them. Mr Scott proposed that, if I were to reserve my decision, I could call for the letters and take them into account. Ms Breckon did not object. I reserved my decisions, received the letters, received submissions about them and take them into account in this judgment.
Law
[14] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can
properly be justified by accepted sentencing principles. 11
10 Sweeney v Police [2017] NZHC 1330.
11 Ripia v R [2011] NZCA 101 at [15].
[15] In deciding whether home detention is warranted, s 16 of the Sentencing Act
2002 requires the judge to have regard to the desirability of keeping offenders in the community, not to impose a sentence of imprisonment unless satisfied that it is being imposed for particular sentencing purposes under s 7(1)(a) to (c) and (e) to (g), and that those purposes cannot be achieved by a sentence other than imprisonment. In addition the court must be satisfied no other sentence would be consistent with the application of the purposes of sentencing in s 8. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case. That is what I should review, on appeal.
Decision
[16] I have considered all of Mr Teulilo’s, and the Crown’s, submissions. I am guided by the purposes and principles in ss 7 and 8 of the Sentencing Act. I agree Judge Collins’ sentencing starting point of 18 months was reasonable and I agree with his proposed uplifts, for the reasons he gave.
[17] The addition of two months, two months and four months to 18 months results in a sentence of 26 months imprisonment rather than 28.12 So I do consider there is a mathematical error in the sentencing in that regard.
[18] I do not consider a discount is due for remorse, rehabilitation or family circumstances. Mr Teulilo’s letters do not sway me. He continued to offend after he assaulted the victim. His employer has written two letters in his support, which is creditable. But he has been employed there on and off for four years, during the period this offending occurred.
[19] There are three reports from the Department of Corrections. The first, in October 2016 in relation to using a document and breach of community work, recommended community detention in a “finely balanced” decision. The second and third, in March and May 2017, assessed Mr Teulilo’s risk of reoffending as medium given his offending history and poor compliance. There is nothing there that
substantiates material progress in rehabilitation. I do not consider there are
12 New Zealand Police v Teulilo, above n 9, at [12].
aggravating factors sufficient to warrant an uplift and I do not consider the case of
Sweeney the Crown points to, involving very different offending, assists.
[20] So, with a discount of six months for a guilty plea, I conclude a total sentence of 20 months imprisonment is justified. I uphold the appeal in that respect.
[21] But I do not consider a sentence of home detention is warranted. The sentence is being imposed for all of the specified purposes in s 7(1). Those purposes cannot be achieved by a sentence other than imprisonment. And no other sentence would be consistent with the application of the principles in s 8. Judge Collins’ refusal of home detention was consistent with the advice of the Department of Corrections. I do not consider it was in error. I would come to the same conclusion. The purposes and principles of sentencing are best served by a sentence of imprisonment.
[22] Mr Teulilo seems to be on track for a miserable pattern of increasingly serious offending and increasingly long sentences of imprisonment. There are signs Mr Teulilo may want to turn his life around, as he says. If so, he must do that now.
Result
[23] I uphold the appeal, set aside the District Court’s sentence of 22 months’
imprisonment and impose a sentence of 20 months’ imprisonment.
..................................................................
Palmer J
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