Tihema v Police - [2012] NZHC 1329

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-39 [2012] NZHC 1329

JUNE ANNETTE TIHEMA
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 June 2012

Appearances: V Nisbet for the appellant
A Whittaker for the respondent

Judgment: 13 June 2012

JUDGMENT OF CLIFFORD J

[1] The appellant, June Tihema, pleaded guilty to one charge of burglary in the Hastings District Court and was sentenced by Judge Walker in the District Court at Porirua on 5 April 2012 to two years and three months’ imprisonment. Ms Tihema was also ordered to pay reparation in the sum of $280. This appeal is brought on the grounds that the term of imprisonment to which Ms Tihema was sentenced was manifestly excessive. Ms Tihema does not challenge the order for reparation.

Facts

[2] Sometime before 11.45am on Sunday 5 February 2012 Ms Tihema entered, through the unlocked back door, the home of a 94 year old woman who lived alone. Ms Tihema knew the house was occupied. She went straight to the victim’s bedroom,
located a bag hanging on the back of the door, took $280 in cash and left.

TIHEMA v POLICE HC WN CRI-2012-485-39 [13 June 2012]

Ms Tihema’s victim did not know that Ms Tihema had entered her home at the time. Ms Tihema herself informed the police of this offending whilst making a complaint of assault against her partner. In explanation Ms Tihema stated that she took the money because of stress and because she felt intimidated by her boyfriend.

[3] Ms Tihema has 22 previous convictions for burglary between 2002 and 2010.

The sentencing decision

[4] The Judge fixed a starting point of three years’ imprisonment for this offending by reference to Ms Tihema having invaded the sanctity of her victim’s home, the vulnerability of Ms Tihema’s victim, a 94 year old woman, and the risk of violence that can occur where burglars are confronted. The Judge uplifted that by six months on account of Ms Tihema’s previous burglary convictions. The Judge then acknowledged the mitigating factors present for Ms Tihema, namely

(a) her remorse;

(b) the fact she was pregnant “which brings with it stresses in a custodial

situation”;

(c) the violent relationship she was involved in at the time of the offending;

(d)the previous violent offending that had occurred against her resulting in psychological issues;

(e) that she had effectively handed herself in to the police; and

(f) a psychological report which stated that Ms Tihema committed burglaries in order to release herself from stress and to feel in control.

[5] In light of those factors, the Judge reduced the sentence by six months. Finally, the Judge gave Ms Tihema a credit of nine months (25 per cent) for her

guilty plea, resulting in an end sentence of two years and three months’

imprisonment.

Analysis

[6] For Ms Tihema, Mr Nisbet’s argument was that the starting point identified by the Judge had been too high, resulting in an end sentence that was manifestly excessive.

[7] Two…

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: [2012] NZHC 1329
Decision Date: 13 June 2012

CaseChat Overview and Summary

June Annette Tihema appealed against a sentence imposed by the Hastings District Court, arguing that the term of imprisonment was manifestly excessive. Ms Tihema pleaded guilty to one charge of burglary. She had entered the home of a 94-year-old woman, who lived alone, through the unlocked back door. Ms Tihema knew the house was occupied. She went straight to the victim's bedroom, took $280 in cash, and left. Ms Tihema had 22 previous convictions for burglary between 2002 and 2010. The District Court Judge fixed a starting point of three years' imprisonment for this offending, uplifted by six months due to Ms Tihema's previous burglary convictions. The Judge then acknowledged the mitigating factors present for Ms Tihema and reduced the sentence by six months. Finally, the Judge gave Ms Tihema a credit of nine months for her guilty plea, resulting in an end sentence of two years and three months' imprisonment. The court had to determine whether the starting point identified by the Judge had been too high, resulting in an end sentence that was manifestly excessive. The court considered the starting point approach often taken in burglary offending, the comments in R v Columbus, and the sentence considered appropriate in Columbus. The court concluded that the starting point sentence of three years adopted by the Judge was too high and that a starting point of two years, with an additional uplift of six months for Ms Tihema's previous offending, was more appropriate. The court substituted an end sentence of 18 months' imprisonment, with leave to apply to the District Court for home detention if a suitable residence is found.

Ms Tihema's appeal was allowed, her sentence of two years and three months' imprisonment was quashed, and a sentence of 18 months' imprisonment, with leave to apply to the District Court for home detention if a suitable residence was found, was substituted therefor.

Orders