Tihema v Police
[2025] NZHC 92
•7 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-667
[2025] NZHC 92
BETWEEN JUNE TIHEMA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 February 2025 Appearances:
A Zhao for Appellant
W Sudhakar for Respondent
Judgment:
7 February 2025
JUDGMENT OF GORDON J
This judgment was delivered by me on Friday, 7 February 2025 at 11:45 am.
Registrar/Deputy Registrar
Solicitors: Public Defence Service (A Zhao), Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland
TIHEMA v NEW ZEALAND POLICE [2025] NZHC 92 [7 February 2025]
Introduction
[1] The appellant, June Tihema, was sentenced to two years and 11 months’ imprisonment by Judge C M Ryan in the Auckland District Court on 25 October 2024,1 having pleaded guilty to the following charges:
(a)Burglary (x 2);2
(b)Unlawfully being in an enclosed yard (x 2);3
(c)Dishonestly using a credit card (x 3);4 and
(d)Breach of home detention conditions.5
[2] Ms Tihema now appeals her sentence. She says that the end sentence imposed was manifestly excessive because:
(a)the Judge should have given a discount for remorse; and
(b)the Judge similarly erred in not giving a discount for cultural and background factors.
[3] Ms Tihema does not take issue with the starting point nor any of the uplifts or other discounts.
[4] The respondent’s position is that the Judge was correct not to give discounts for either of these two factors and the end sentence was not manifestly excessive. The respondent accordingly opposes the appeal.
1 Police v Tihema [2024] NZDC 26516.
2 Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment
3 Summary Offences Act 1981, s 29(1)(b); Maximum penalty three months' imprisonment or a fine not exceeding $2,000.
4 Crimes Act 1961 s 228(1)(b); maximum penalty seven years’ imprisonment
5 Sentencing Act 202, s 80S; maximum penalty of one year’s imprisonment.
The offending
[5] As noted by Judge Ryan, the summaries of facts are rather confusing due to discrepancies in dates and details as between the summaries and charges. Nevertheless, it appears Ms Tihema’s offending was committed between December 2023 and February 2024 as follows:
(a)The first charge was a breach of home detention conditions on 20 December 2023 when Ms Tihema left her home detention address at the Odyssey House rehabilitation facility without an approved absence and failed to submit to EM monitoring.
(b)The second and third charges were in relation to one incident on 20 January 2024. At 12:08 pm, Ms Tihema entered a residential address in Ellerslie through an open front door. She went into the front bedroom and took a wallet containing $400, and a credit card. She then used the credit card to a value of $97.92. Ms Tihema was charged with burglary and unlawfully using a credit card in relation to this incident.
(c)The fourth and fifth charges were in relation to an incident on 23 January 2024. At 9:08 am, Ms Tihema entered the Padma Buddhist Institute through an unlocked back door. She took a handbag containing $1,000 cash, credit cards and jewellery. She then used the credit card at a Countdown to a value of $379.90. Ms Tihema was charged with burglary and unlawfully using a credit card in relation to this incident.
(d)The sixth charge was for unlawfully being in an enclosed yard on 23 January 2024. At 8:50 am, Ms Tihema walked up the driveway to a residential address in Epsom. She then walked around the side of the house and tried to enter through the back door. The occupant arrived and Ms Tihema left the address.
(e)The seventh charge was for unlawfully being in an enclosed yard on 28 January 2024. At 9:48 am, Ms Tihema walked up the driveway to a
residential address in Epsom and tried to enter the backdoor. The occupant arrived home, and Ms Tihema left the address.
(f)The eighth charge was for unlawfully using a credit card on 10 February 2024. At 10:50am, Ms Tihema entered Z Energy Panmure and used a stolen credit card to a total value of $173.80.
(g)The ninth charge was for burglary on 10 February 2024. At 1:30pm, Ms Tihema entered a residential address in Ellerslie through an unlocked back door. The occupant confronted Ms Tihema, who then jumped out of a window. Ms Tihema was arrested shortly after.
District Court Decision
End sentence
[6] In the District Court, the Judge calculated an end sentence of two years and 11 months on the following basis:
(a)Starting point of 30 months for the burglary charges.
(b)Uplift of eight months for the charges of unlawfully being in an enclosed yard and unlawfully using a credit card.
(c)Uplift of five months for criminal history (13 per cent).
(d)Uplift of two months for offending on bail (five per cent).
(e)Discount of 9.5 months for guilty pleas (25 per cent).
(f)Discount of six months for addiction factors (15 per cent).
(g)The Judge then imposed a cumulative sentence of six months’ imprisonment for cancellation and re-sentence of a previous sentence of six months’ home detention.
No discount for remorse
[7]The Judge declined to give any discount for remorse saying:6
… Given the fact that [Ms Tihema] has committed burglary on 36 prior occasions, more recently absconded from her home detention sentence and continued to offend until she was caught, I can give little recognition to subsequent claims of remorse while incarcerated and facing the distinct possibility of imprisonment.
Upon her release, I am told, she has instructed counsel to organise a residential rehabilitation facility. Those are just words. A discount of five per cent is requested for remorse. I am not giving that. Apart from a letter, there is nothing to show remorse and as I say, Ms Tihema kept offending until she was caught.
No discount for cultural report
[8] The Judge also declined to give any discount for the s 27 cultural report that outlined Ms Tihema’s personal background. The Judge said:7
… what weight can I give to such a report when Ms Tihema has such an extensive history of dishonesty? How do I know, without corroboration, that there is not mere dishonesty in the report [sic], it, the same dishonesty as telling the last victim that there was someone else in the house with a weapon, the same dishonesty Ms Tihema uses to get out of trouble in her life. When somebody has significant convictions for dishonesty then corroboration becomes important. I cannot assess the credibility and reliability of what Ms Tihema says to the report writer [sic] do not know whether it is true or not or said to procure a discount. I am unable to allow a discount for the s 27 report.
The law: approach on appeal
[9] An appeal against sentence can be brought as of right.8 The appeal court can only allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.9 However, the Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 The sentence must be “manifestly excessive” for the appeal court to
6 Police v Tihema, above n 1 at [42]–[43].
7 At [46].
8 Criminal Procedure Act 2011, s 244.
9 Criminal Procedure Act 2011, s 250.
10 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
substitute its own views. Whether the sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.11
[10] In the present case, the assessment I must make is whether the end sentence of two years and 11 months’ imprisonment is manifestly excessive.
Submissions
Appellant’s submissions
[11] Mr Zhao, counsel for Ms Tihema, submits that the end sentence imposed by the Judge was manifestly excessive because the Judge should have given discounts for remorse and cultural and background factors.
Discount for remorse
[12] Mr Zhao first submits that the Judge erred when she refused to give any discount for Ms Tihema’s remorse. Specifically, Mr Zhao says that:
(a)The Judge was factually incorrect that Ms Tihema’s letter was the only document from which her remorse could be gathered.
(b)Ms Tihema’s remorse was consistently evident in (i) Ms Tihema’s letter; (ii) the s 27 cultural report; and (iii) Ms Tihema’s certificate of achievement for the Kia Rite Skills Training programme.
(c)The Judge did not take into account the completion of the Kia Rite Skills Training programme in assessing Ms Tihema’s remorse.
(d)The Judge erred by finding that Ms Tihema’s criminal history of dishonesty and failure to comply with home detention would mean that her remorse is disingenuous.
11 Ripia v R [2011] NZCA 101 at [15].
[13] Accordingly, Mr Zhao submits that a five per cent discount should be given for Ms Tihema’s remorse.
Discount for cultural report
[14] Mr Zhao submits that the Judge also erred when she refused to give a discount for the s 27 cultural report. In making this submission, Mr Zhao says that:
(a)The Judge did not analyse Ms Tihema’s background, having found that the cultural report was not credible due to its self-reported nature and Ms Tihema’s extensive history of dishonesty.
(b)Although Ms Tihema has an extensive dishonesty history, these convictions have little relevance towards whether someone would tell the truth in a cultural report.
(c)The background details provided in the cultural report are consistent with a Community Alcohol and Drugs Service (CADS) report written in 2022, a report that the Judge used to accept Ms Tihema’s addiction as legitimate.
(d)The Judge should not have dismissed the cultural report but should have instead analysed the information in the cultural report to determine is credibility.
[15] Mr Zhao says that the cultural report demonstrates Ms Tihema’s background of pervasive and present social disadvantage, resulting in impaired decision-making. Mr Zhao points to Berkland v R,12 where the Supreme Court held that an offender’s background can be an operative, proximate cause of the person’s offending or a lesser “causative contribution” of the person’s offending.
[16] Accordingly, Mr Zhao submits that a 15 per cent discount should be given for Ms Tihema’s background factors.
12 Berkland v R [2022] NZSC 143.
Respondent’s submissions
Remorse
[17] Crown counsel, Ms Sudhakar, submits that Judge was correct not to give a discount for remorse and that she was entitled to find that Ms Tihema’s expression of remorse was not genuine given:
(a)The lack of insight demonstrated in Ms Tihema’s letter, which only makes passing comment on her offending without mentioning any specifics.
(b)The Kia Rite Skills Training programme that Ms Tihema completed was not a rehabilitative programme, and therefore the Judge was correct in saying that Ms Tihema has not engaged in any rehabilitation while in prison.
Cultural report
[18] Ms Sudhakar also submits that no discount for cultural factors was warranted. She says that the Judge was correct to set aside Ms Tihema’s cultural report on the basis its contents were wholly self-reported. Ms Sudhakar refers to Mullan v Police and submits that self-reported background factors should be given little weight under s 27.13
[19] Additionally, Ms Sudhakar refers to the Court of Appeal decision of Tan v R as support for the proposition that when a cultural report contains entirely self-reported matters which are not corroborated, the report should not be admitted nor considered under s 27.14 Ms Sudhakar notes that while Ms Tihema made many claims that could have been readily corroborated by her family, friends, or official documents, this was not done.
13 Mullan v Police [2023 NZHC 962 at [23]–[25].
14 Tan v R [2023] NZCA 446 at [129].
[20] Ms Sudhakar submits that even if the Judge found the cultural report to be credible, the background factors noted by Ms Tihema could be viewed as being intrinsically linked with addiction, a causative factor for which the Judge had already given a 15 per cent discount.
End sentence was not manifestly excessive
[21] Alternatively, Ms Sudhakar submits that even if the Judge erred by not giving a discount for remorse, cultural factors, or both, this did not result in a manifestly excessive end sentence. In advancing this submission, Ms Sudhakar notes that in calculating the end sentence, the Judge adopted:
(a)a starting point well within the range that can be properly justified;
(b)uplifts at the lower end of what was appropriate; and
(c)generous discounts, leading to a lenient end sentence.
Analysis
Remorse
[22] I accept Mr Zhao’s submission that Ms Tihema’s expression of remorse is not limited to what is said in her letter to the Judge. The s 27 report based on an assessment dated 5 September 2024 states:
She is remorseful and regretful over her offending and wants to address her addictions, which she feels are the leading cause of her offending.
[23] However, as I will discuss when I come to consider the s 27 report, this is self- reported. It is also inextricably linked to Ms Tihema’s addiction for which she received a 15 per cent discount as sought.
[24] In relation to the Kia Rite Skills Training programme, I do not consider that is evidence which demonstrates Ms Tihema’s remorse.
[25] Kia Rite is a three-week information and skills training programme originally designed for delivery to women in the early stages of incarceration.15 The programme aims to give women the information and skills required for the successful navigation of prison life. It further aims to enhance women’s motivation for change and help prepare them for participation in rehabilitative, industry and learning opportunities while in prison and beyond.
[26] While it is commendable that Ms Tihema completed the programme, I do not consider that is necessarily evidence of remorse for her offending.
[27] A discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” shows that a defendant is remorseful.16 I consider it was open to the Judge to say, as she did in the circumstances where Ms Tihema had committed burglary on 36 prior occasions, more recently absconding from her home detention sentence and continuing to offend until she was caught, that little recognition should be given to subsequent claims of remorse while incarcerated and facing the distinct possibility of imprisonment.17
[28]Accordingly, I do not find the Judge erred in not giving a discount for remorse.
Cultural report
[29] As Ms Sudhakar submits, the s 27 report is based entirely on a self-report by Ms Tihema. There does not appear to have been any attempt to contact relevant family members who might have corroborated the claims made by Ms Tihema as set out in the report. In those circumstances, I accept it was open to the Judge not to put any weight on the report.18
[30] But in any event, as Ms Sudhakar submits, even if the Judge had found the report to be credible, the background factors are intrinsically linked to Ms Tihema’s addiction for which she was given a 15 per cent discount.
15 Bronwyn Morrison, Marianne Bevan, and Lucy King “Kia Rite: Evaluation of a new behavioural skills programme for women” (2018) 6 New Zealand Corrections Journal 37.
16 Hessell v R [2010] NZSC 135 at [64].
17 Police v Tihema, above n 1, at [42].
18 As per Tan v R, above n 14, at [129].
Whether the end sentence was manifestly excessive?
[31] Even if, contrary to my views expressed above, discounts should have been given for remorse and cultural factors, I do not consider this resulted in a sentence that was manifestly excessive. On this issue I accept the submissions made by Ms Sudhakar in relation to: the global starting point; and the uplift for prior offending.
[32] First, as to the global starting point, in Arahanga v R the Court of Appeal stated the following in relation to the starting point for burglary:19
Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
[33] Ms Tihema was convicted of two residential burglaries and a commercial burglary. Burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation with the occupants.20 In this case during both residential burglaries the victims were inside their home. The risk of confrontation would have been apparent to Ms Tihema given that she entered either through an open door or an unlocked door. On one of those occasions there was actual confrontation between the victim and Ms Tihema. In all three burglaries, Ms Tihema either looked for, or took cash, bank cards and/or personal items.
[34] Ms Sudhakar refers the Court to Borthwick v Police,21 where the defendant accessed two separate residential buildings and a shed at the back of a third residential property during the daytime and took items of a slightly higher value than in the present case. On appeal, the High Court considered the starting point of three years and nine months was at the top of the range but not outside it, for the three burglaries. There is a distinction between the two cases in that Ms Tihema acted alone, but by comparison to Borthwick a starting point of at least two years and nine months and perhaps as high as three years (as opposed to the two years and six months adopted by the Judge) would have been available for the three burglaries.
19 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
20 At [78], citing Senior v Police (2000) 18 CRNZ 340 (HC) at [19].
21 Borthwick v Police [2014] NZHC 2772.
[35] There is then the uplift for prior offending. The Judge gave an uplift of five months (13 per cent of the overall starting point) for Ms Tihema’s criminal history. She has 134 prior convictions from 1999 to 2023. Those convictions include 36 for burglary, 33 for unlawfully using a document, 17 for theft, 16 for receiving, and 11 for dishonest use of a bank card. She also has convictions for driving, drug, and violence offending.
[36] In cases involving recidivist burglars, the Courts have frequently given uplifts that are significantly higher than for other types of offending. Ms Sudhakar refers to Jones v R,22 where the Court of Appeal endorsed a 50 per cent (combined) uplift for the defendant’s 27 prior burglary convictions and persistent failure to meet special conditions concerning his drug addiction. In Hayward v Police,23 this Court, having noted that uplifts for prior convictions tend to be harsher for recidivist burglars, endorsed a 50 per cent uplift for a defendant with 98 convictions or Youth Court notations.
[37] For completeness, I note that I do not accept Mr Zhao’s submission that as the two cases referred to by the Crown were decided before Moses, the uplift would not be as high as 50 per cent under the Moses methodology. Having reviewed the cases and the other cases referred to in footnote 23, the uplifts would be the same, post- Moses.
[38] Accordingly, having regard to Ms Tihema’s history an uplift of 50 per cent (19 months) of the overall starting point would have been available to the Judge.
[39] In summary, given that a higher starting point (two years and nine months to three years) and a greater uplift for prior offending (50 per cent) would have been available to the Judge, even if discounts should have been given for remorse (five per
22 Jones v R [2012] NZCA 273.
23 Hayward v Police [2014] NZHC 2286. See also R v Columbus [2008] NZCA 192 (uplift of one year for prior burglary convictions against an adjusted starting point of 18 months’ imprisonment); Moera v Police [2015] NZHC 2226 (uplift of 12 months for prior burglary convictions against a starting point of 15 months imprisonment); and King v Police [2014] NZHC 2946 (an uplift of 12 months for prior burglary convictions against a starting point of two years and six months’ imprisonment).
cent sought) and cultural factors (10 per cent sought), the end sentence was not manifestly excessive.
Result
[40] The sentence of two years and 11 months’ imprisonment is not manifestly excessive.
[41]The appeal is dismissed.
Gordon J
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