Tinomana v Police - [2017] NZHC 794

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000075

[2017] NZHC 794

IN THE MATTER OF an appeal against sentence

BETWEEN

CELESTINE TINOMANA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 April 2017

Counsel:

N C Baier and G H Vear for the Appellant K Li for the Respondent

Judgment:

26 April 2017

(ORAL) JUDGMENT OF EDWARDS J

Solicitors: Ministry of Justice (Public Defence Service), Auckland Kayes Fletcher Walker Limited, Auckland

TINOMANA v POLICE [2017] NZHC 794 [26 April 2017]

Introduction

[1] Mr Tinomana pleaded guilty to two charges of burglary, two charges of dishonestly using a document, two charges of theft (under $500), one charge of wilful damage, and one charge of breach of community work. He was sentenced to three years’ imprisonment for that offending on 10 February 2017.1

[2] Mr Tinomana appeals that sentence on the grounds that the Judge adopted a starting point which was too high, and gave insufficient credit for Mr Tinomana’s successful involvement in a restorative justice conference, his remorse, and relatively young age.

The offending

[3]The eight charges related to two sets of offending which are referred to as the

“Manukau” charges and the “Auckland” charges respectively.

[4] The Manukau charges were for burglary,2 theft (under $500),3 wilful damage (two charges),4 and breach of community work.5

[5] Mr Tinomana entered a guilty plea to one charge of wilful damage on 4 March 2016 and entered guilty pleas to the remaining Manukau charges on 22 September 2016, one week before the stand-by trial was due to commence.

[6] The Manukau charges arise out of events on the evening of 6 February 2016. At about 7.00 pm that evening, Mr Tinomana approached the first victim’s vehicle which was parked on the road. Mr Tinomana made his way to the front passenger’s door and punched the glass window causing the glass to shatter.

1      R v Tinomana [2017] NZDC 2744.
2      Section 231(1)(a), Crimes Act 1961, maximum penalty 10 years’ imprisonment.
3      Sections 219 and 223(d), Crimes Act, maximum penalty three months’ imprisonment.
4      Section 11(1)(a), Summary Offences Act, maximum penalty three months’ imprisonment/fine
not exceeding $2,000.
5      Section 71, Sentencing Act 2002, maximum penalty three months’ imprisonment.

[7] Mr Tinomana then continued onto the property of a nearby residence where the occupants were both home. Neither of these occupants were known to Mr Tinomana. The female victim was in the kitchen while her two young children were in the living-room. Mr Tinomana opened a ranch slider door which had been left partially open. He stepped inside the dining-room and demanded car keys from the female victim. He then saw her cellphone on the arm of the couch and picked it up and placed it in his pocket. He asked the female victim for money.

[8] The female victim screamed out to her husband (the male victim) who was asleep in the bedroom. Mr Tinomana left the property when the male victim yelled at him to leave, throwing the cellphone on the floor…

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: [2017] NZHC 794
Decision Date: 26 April 2017

CaseChat Overview and Summary

The appeal in Tinomana v Police concerns a sentence imposed on Mr Tinomana who was found guilty of multiple charges including burglary, theft, and wilful damage. Mr Tinomana appealed the sentence, arguing that the starting point was too high and that mitigating factors such as his involvement in a restorative justice conference, his remorse, and his relatively young age were not sufficiently taken into account. The High Court of New Zealand considered the legal issues, focusing on whether the starting point and the mitigating factors were appropriately assessed by the District Court.

The court examined the starting point for the burglary charge and compared it to similar cases, concluding that a starting point of two years, six months was too high. The court noted that the aggravating factors of Mr Tinomana's offending did not warrant such a high starting point compared to other cases involving similar or more serious offences. The court also assessed the mitigating factors, determining that while the judge acknowledged these factors, a more substantial discount for remorse and rehabilitation was warranted. The court concluded that a two-month discount for these factors and a 10% discount for the guilty plea resulted in an appropriate end sentence of approximately 23 months' imprisonment.

The court allowed the appeal and reduced the sentence to 23 months' imprisonment, quashing the original sentence of two years, six months for the burglary charge. This decision highlights the importance of appropriately assessing both aggravating and mitigating factors in sentencing, and the need for a balanced approach that reflects the unique circumstances of each case.

Orders