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 important decisions on burglary sentencing are the decision of the Full Bench of the High Court in Senior v Police, and the more recent decision of the Court of Appeal in R v Columbus.[1]

[1] Senior v Police (2000) 18 CRNZ 340; R v Columbus [2008] NZCA 192.

[8]      In terms of Senior, Ms Tihema is clearly a recidivist burglar.  As the Court observed, a recidivist burglar who pleads guilty to a single offence or even two or three offences is unlikely to receive a sentence which exceeds three years, and implicitly could receive a lesser sentence.  Allowing credit for a guilty plea, and the possible range of seriousness of burglary offending itself, that indicates starting point sentences of between three and four years for recidivist burglars facing one or a low number of charges.  It should also be noted, I think, that when the Court in Senior spoke of “starting point” sentences, often account was taken at that point for earlier recidivist offending.   In Senior the Court analysed a number of cases, only one of which (a case involving five burglaries) fixed a starting point in excess of four years. The Court also identified as aggravating features of burglary offending behaviour which involves actual danger to, or confrontation with, occupiers or the risk of such danger and confrontation, noting that that factor would almost always be present with the burglary of a dwelling house (particularly by night) and was of particular concern where the occupants of such a dwelling house were elderly.  At the same time, as a mitigating factor the Court identified genuine remorse and co-operation with the police.

[9]      More recently in Columbus the Court of Appeal considered a sentence appeal from an offender who faced one charge of burglary, two of theft, together with two

charges for cannabis offending.   The burglary involved forced access to a garage from  which  a  mountain  bike,  gardening  tools  and  a  toolbox  were  stolen.    The offender there had a history of dishonesty offending.  In the District Court, a starting point sentence of three and a half years was fixed on a “global” basis.  The Court of Appeal concluded that the sentence imposed was manifestly excessive, essentially because the starting point was too high.  For the burglary offence, which the Court noted was at the minor end of the scale, apparently opportunistic and where the stolen property was largely recovered, the Court found that the circumstances of the burglary would not itself justify a starting point of more than one year’s imprisonment.  The other offending (dishonesty and cannabis) justified another six months’ imprisonment, with there being a further uplift of one year for the offender’s lengthy criminal record (89 previous convictions, 13 of burglary and 34 for property related offences – 15 sentences of imprisonment in all).

[10]     In the course of its decision the Court acknowledged that the starting point traditionally adopted in sentencing burglars who had a number of previous burglary related dishonesty convictions sat in a distinct category.  As the Court had observed in R v Lowe, a 2005 decision, when sentencing recidivist burglars the Court of Appeal frequently appeared to have taken the appellant’s prior history into account when fixing a starting point.[2]    The Court in Columbus explained that approach, at [14] of its decision, before going on to say that sentencing Judges must, however, guard against placing undue emphasis on past dishonesty convictions when fixing a

starting point as that can risk an end sentence which is primarily a punishment for previous offending.

[2] R v Lowe CA62/05, 4 July 2005.

[11]     Bearing in mind the Senior guidance when I have regard to each of the starting point approach often taken in burglary offending, the comments in Columbus and the sentence considered appropriate in Columbus, I am persuaded that there may be merit to the criticism that the starting point adopted by the Judge in the case of Ms Tihema’s  offending  was  too  high.    I  acknowledge  that  there  were  here  the particular elements of the age of the victim and the violation of privacy – together with the inevitable effect that has on a victim.   On the other hand, the amount of money involved was relatively small, Ms Tihema herself “co-operated” with the

police to the extent of actually drawing the burglary to their attention and no damage was done during the burglary.

[12]     I have therefore considered a number of relatively recent cases of sentencing for burglary offending.   These are Thompson v Police, Swinburne v R, Blissett v Police, R v Povey and Tumohe v New Zealand Police.[3]   Povey and Tumohe were one- off burglaries of residential dwellings by recidivist offenders.  In each case starting points lower than three years, two years and 18 months, not including uplift for previous offending, were adopted for more serious offending.   In Povey a weapon was present as well as a second offender.  In Tumohe the value of the items taken was greater, there was damage caused to the home and the appellant was serving a

community based sentence at the time.  In Thompson a starting point of two years was adopted for two burglaries of residential homes by a recidivist burglar, in which significantly more property was taken.   Additionally in Swinburne and Blissett effective starting points of four years and three years nine months were adopted (including uplift for previous convictions) where multiple burglaries of residential properties were committed by recidivist burglars with significantly greater property taken than is the case here.

[3] Thompson v Police HC Hamilton CRI-2010-419-56, 17 November 2010; Swinburne v R [2010] NZCA 568; Blissett v Police HC Auckland CRI-2010-404-64, 21 April 2010; R v Povey [2009] NZCA 362; Kalauni v Police HC Auckland CRI-2003-404-372, 23 March 2004 and Tumohe v New Zealand Police HC Hamilton CRI-2008-419-72, 13 November 2008.

[13]     By reference to the general guidance provided by Senior and Columbus, and the more particular comparison I have undertaken with those cases, I have concluded that the starting point sentence of three years adopted by the Judge was too high.  By my assessment, a starting point of two years, with an additional uplift of six months for Ms Tihema’s previous offending, is more appropriate.  Ms Tihema would then be entitled to the discount of six months (not challenged by the Crown) given to her by the Judge for mitigating circumstances, along with a 25 per cent discount for her guilty plea. That results in an end sentence of 18 months.

[14]     As  this  is a short  term sentence of imprisonment,  the question  of home detention arises.[4]    Ms Tihema was not, when I heard this appeal, in a position to

[4] Section 121(3)(b)(i) Summary Proceedings Act 1957; s 15A(1) Sentencing Act 2002.

apply  for  home  detention  by  reason  of  the  fact  that  no  suitable  residence  was

available.  In terms of s 80I of the Sentencing Act 2002, if a suitable residence had been available and the Court would have sentenced the offender to a sentence of home detention, the Court must make an order granting the offender leave to apply to the Court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.   In more typical circumstances, I think it unlikely that an offender with  a  previous  history  such  as  Ms Tihema  has,  including  her  previous  prison sentences, would be sentenced to home detention.  But Ms Tihema’s case appears to be a somewhat unusual one. As the Judge noticed, there are particular psychological issues, identified in a s 38 Criminal Procedure (Mental Impaired Persons) Act 2003

report which point to a real need for therapeutic intervention. As the Judge put it:[5]

[5] Police v Tihema DC Porirua CRI-2012-020-000372, 5 April 2012 at [9]–[11].

I also have the benefit of a psychological report.  You say that you commit burglaries in order to release yourself from stress and to feel in control.  On the face of it there can be very little connection between being the victim of violent offending yourself and committing a burglary but I accept from the psychological report that in your case there is a degree of connection.

Clearly a lot of work needs to be done by others and you to deal with whatever it is, which is probably complex underlying issues.   The psychological reports says that you need individual and group treatment while in prison; there can be no doubt about that.  In these sentencing notes I want  to  send  a  clear  message  that  unless  that  work  is  done  with  you intensely, then there will be more victims of your offending.

The psychologist’s report indicates a number of interventions and treatments which must be afforded to you on your release and I am going to direct that the psychologist’s report accompany the warrant, so that those that are looking after your sentence will know what the circumstances are.  It would be a great tragedy if you left prison in exactly the same state as you have left prison before, with nothing having been done for you.   It is not in your interests or in the interests of the community.

[15]     Bearing those comments in mind, and recent comments by the Court of Appeal  as  to  the  helpful  ways  in  which  a  sentence  of  home  detention  can  be combined  with  rehabilitative  interventions,  I  consider  it  appropriate  that  here Ms Tihema  be  given  leave  to  apply  for  home  detention  if  a  suitable  residence becomes available.   In my view, the suitability of such a residence would depend upon it providing an opportunity for the type of interventions treatment that Judge

Walker had in mind being made available.

[16]     Accordingly, Ms Tihema’s appeal is allowed, her sentence of two years and three months’ imprisonment is quashed and a sentence of 18 months’ imprisonment, with leave to apply to the District Court for home detention if a suitable residence is

found, is substituted therefor.

Clifford J

Solicitors:

V Nisbet, Wellington for the appellant ([email protected]) Crown Solicitor, Wellington for the respondent ([email protected])