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 as he exited the house. The male victim followed Mr Tinomana outside to ensure he had left. Mr Tinomana turned towards the male victim holding an unknown object in his hand and charged at him. The male victim then retreated into the house and locked the door. Mr Tinomana punched the door with his right fist and kicked it with his right foot, causing the glass to shatter  into  the  interior  of  the  building.  The  police  were  called  and  Mr Tinomana was located a short time later.

[9]                  The Auckland charges comprise one charge of burglary and two charges of dishonestly using a document. These charges arise out of events on 1 August 2016. At about 5.30 pm that evening, Mr Tinomana and a male associate were walking along the fence-line that separates the Cornwall Park Reserve from the residential properties. Mr Tinomana’s associate climbed over the fence and entered the back yard of a residential property, while Mr Tinomana waited by the fence. The  associate opened a French door which had been left unlocked, entered the house and walked into the living area. A wallet and a laptop and a $50 note, which was sitting on a table in the living area, was taken. The laptop was subsequently retrieved. A stolen credit card taken from the wallet was used by Mr Tinomana that evening in order to order food and purchase cigarettes.

Personal circumstances

[10]               Mr Tinomana was 22 years of age at the time of the Manukau offending. He has a criminal record which includes convictions for burglary, aggravated robbery,

shoplifting, interference with a motor vehicle, and unlawfully being in a building and enclosed yard.

[11]               The pre-sentence report noted Mr Tinomana’s harmful use of alcohol, relationship issues, and  willingness  to  use  violence  as  factors  contributing  to  Mr Tinomana’s offending. The risk of re-offending was considered to be escalating, with the risk of harm to others being assessed as moderate.

[12]               Mr Tinomana attended a restorative justice conference with the owner of the credit card and laptop taken in the course of the Auckland offending. Mr Tinomana apologised several times for the harm that he had done as a result of his offending. That apology was accepted by the victim who said she considered Mr Tinomana to be genuinely remorseful and hoped that he would not offend again.

District Court decision

[13]               The District Court Judge took the Manukau burglary charge as the lead charge and adopted a starting point of two years, six months’ imprisonment for that charge. The Judge noted the seriousness of the offending, the fact that Mr Tinomana had broken into a residential property, and the presence of the occupants, as the aggravating factors justifying the chosen starting point.

[14]               The Judge applied a one month uplift for the wilful damage of the car window, and a further uplift for Mr Tinomana’s criminal history. The Judge then applied a discount of 10 per cent for Mr Tinomana’s guilty pleas which resulted in an end sentence of two years, six months’ imprisonment for the Manukau charges.

[15]               The Judge considered whether imprisonment or a community-based sentence was appropriate. She considered that the aggravating features of Mr Tinomana’s offending required a custodial sentence.

[16]               The Auckland burglary charges were treated separately from the Manukau charges. Mr Tinomana was sentenced to a period of six months’ imprisonment for those charges, cumulative on the sentences imposed for the Manukau charges.

Concurrent sentences of three months’ imprisonment were imposed in relation to

each charge of dishonestly using a document.

[17]               Mr Tinomana was convicted and discharged on one charge of shoplifting, and one charge of breach of community work. A previous sentence of community work was cancelled and substituted for a term of one month imprisonment which was to  be served concurrently.

[18]               The effective end sentence for all charges was three years’ imprisonment. The Judge imposed special release conditions requiring Mr Tinomana to attend treatment programmes as directed by the probation officer.

Approach on appeal

[19]               Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[20]               In any other case, the Court must dismiss the appeal.6 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.7

[21]               It is the end sentence which is the focus on an appeal, and not the route by which that sentence was determined.8

6      Section 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

8      R v Ripia [2011] NZCA 101 at [15].

Starting point

[22]               Mr Tinomana submits that the starting point of two years, six months for the August offending was too high when compared to the starting points adopted in cases involving comparable offending.

[23]               As the Judge identified, the aggravating features of the Manukau offending were the fact that it involved breaking into a residential dwelling; confrontation with the occupants; turning to threaten the male occupant after initially departing from the property; and the smashing of the ranch slider window.

[24]               There is an issue about whether or not Mr Tinomana was holding a weapon when he charged the male occupant. The summary of facts, to which Mr Tinomana pleaded guilty, simply records that Mr Tinomana turned towards the male occupant who was following him outside whilst “holding an unknown object”. The summary of facts also records Mr Tinomana’s denial of being in possession of any weapons. The sentencing Judge did not refer to the use of a weapon as an aggravating feature of Mr Tinomana’s offending and I consider she was right to do so. I have  disregarded this factor when comparing the culpability of Mr Tinomana’s offending to other cases of burglary.

[25]               In Arahanga v R, the Court of Appeal declined to set a tariff for burglary but stated that 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.9

[26]               The burglaries involved in this case were at the minor end of the scale in my view. It follows that the starting point adopted by the Judge of two years, six months was at the very highest end of the scale.

[27]               In Heald v R, a starting point of two years, three months’ imprisonment was upheld on appeal.10 That case involved Mr Heald and an accomplice  entering through an open door of a dwelling house where a young woman and her son were

9      Arahanga v R [2012] NZCA 480 at [78].

10     Heald v R [2014] NZCA 143.

present.    Property was demanded and when the woman refused, one of the two offenders slid a weapon out of his sleeve. A small safe was taken from the house.

[28]               In R v Lee,11 a starting point of two years, six months’ imprisonment was adopted for a charge of aggravated burglary. That case also involved two offenders and the brandishing of a screwdriver as a weapon during the confrontation with the occupants of the dwelling house.

[29]               In my view, the actual use of an identified weapon, the fact that two offenders were involved, and the value of property taken in both those cases makes the offending more serious than the offending in Mr Tinomana’s case, and a lower starting point than that adopted in both those cases is accordingly justified.

[30]               Mr Tinomana relies on the Court of Appeal decision in  Stepanicic v R.12     Mr Stepanicic had committed two residential burglaries in the early hours of the morning. In the first burglary he entered the house through an unlocked door and made his way into the female victim’s bedroom while she was asleep. He crawled past the foot of her bed and took her backpack, shoulder bag, shoes, keys and wallet. He also took a cellphone, video-camera and another set of keys from the kitchen bench. The victim saw the offender crawling along the floor at the foot of her bed  but thought it was her son so went back to sleep.

[31]               The second burglary occurred soon afterwards and also involved entry into a residential address in the early hours of the morning. A female victim was at home  in bed at the time. Mr Stepanicic broke into the house by ripping off latches to the kitchen window. He took several items of property, including two wallets, a camera, a laptop, a pair of oval nine carat gold earrings, a set of keys with photos of the victim’s son on them and the car alarm and car key on it, a bag and a Playstation 3 gaming console. The appellant set off a car alarm at that address which awoke the victim who went to investigate. The Court of Appeal considered an appropriate starting point to be two years’ imprisonment for both burglaries.

11     R v Lee CA242/01, 26 February 2002.

12     Stepanicic v R [2015] NZCA 211.

[32]               In McFall v Police, a starting point of 21 months was substituted on appeal.13 That case also involved two burglaries of residential properties. In the first burglary, Mr McFall had smashed a glass doorway to gain entry into the house, search several bedrooms, throwing drawers and sideboards around. He took three New Zealand passports, a 42 inch television, an X-box console, an acoustic guitar, a Mac Book Pro laptop and an iPad. In the second burglary, Mr McFall smashed a window to gain entry into the house, an alarm sounded, and a laptop and several items of footwear were taken.

[33]               The fact that Mr Tinomana’s offending involved an actual confrontation with the occupants of the house, causing them and their children great distress, is a feature of his offending which makes it more serious than either Stepanicic or McFall. However, in Stepanicic the starting point was set for two burglaries rather than one, and there was property taken in both Stepanicic and McFall, whereas no property was taken in the present case.

[34]               The appellants also referred to Jones v R, which involved three more serious burglaries than in this case. A three year starting point was adopted.14

[35]               Finally, the appellant placed great weight on Tepania v Police.15 In that case,  a starting point of between 22 to 24 months’ imprisonment was considered appropriate on appeal. That case involved one charge of burglary where Mr Tepania had entered a residential property in the early hours of the morning and disturbed the victim. A struggle had ensued. No property was stolen but the victim suffered injuries during the struggle. The Crown submits that this case is somewhat of an outlier. Even so, the starting point adopted in that case suggests the two years, six months adopted by the sentencing Judge in Mr Tinomana’s case was too high.

[36]               Taking all of these cases into account, I consider a starting point of two years was appropriate in the circumstances. It follows that a starting point of two years,  six months’ adopted by the Judge was outside the applicable range.

13     McFall v Police [2015] NZHC 2095.

14     Jones v R [2012] NZCA 273.

15     Tepania v Police [2013] NZHC 2327.

[37]               The sentencing Judge applied an uplift of one month for the damage to the vehicle window. (The appellant originally submitted that the Judge had imposed a cumulative sentence for this offending and considered that there had been an error in that approach. However, the sentence was concurrent and on that basis the appeal ground is not pursued.). Such an uplift is appropriate in my view, as is the two  month uplift for prior convictions.

[38]               This brings the sentence to two years, three months’ imprisonment prior to any discount for mitigating factors (which I consider next), and prior to the discount for a guilty plea.

Mitigating factors

[39]               Mr Tinomana submits that the Judge failed to give proper or sufficient credit for mitigating factors in determining the sentence for the Manukau charges. Specifically, he says a discount should have been given for his remorse, youth, and attendance at the restorative justice conference.

[40]               The Judge referred to all of these factors in her sentencing notes but a discount for them is not expressly addressed in relation to the Manukau charges.

[41]               Attendance at the restorative justice conference was only in respect of the Auckland charges; the victims of the Manukau charges having declined to participate in such a conference. It seems likely that the sentence for the Auckland charges already reflects a discount for attendance at this conference, but in any respect the sentence for those charges is not the subject of appeal. I do not consider a discount for attendance at the restorative justice conference is appropriate for the Manukau charges and there is no error in the Judge not applying such a discount.

[42]               The Judge specifically stated that the age of Mr Tinomana at the time of the offending had been taken into account in determining the appropriate sentence. Although  a  youth  discount  may  be  available  for  offenders  even  older  than   Mr Tinomana in some cases,16 there is little evidence that Mr Tinomana’s offending

16     Raroa v R [2014] NZCA 57 at [187].

was as a result of a developing maturity or due to his relatively young age. The two month uplift applied by the Judge for Mr Tinomana’s criminal history may also already reflect a discount for youth. I do not consider a further discount is appropriate in those circumstances.

[43]               In terms of remorse, counsel for Mr Tinomana submits that he wrote a letter to the Court expressing his deep remorse for his offending and seeking an opportunity to turn his life around. That letter was produced this morning. In that letter, Mr Tinomana states that he is adamant that given another chance, he will turn his life around, and expresses a desire to get into the work force and settle down. Counsel submits that this is the first letter of remorse of this type written to the Court by Mr Tinomana. Although a specific discount for attendance at the restorative justice conference for the Manukau charges is not warranted, Mr Tinomana’s expressions of remorse at that conference suggest that the sentiments expressed in the letter are genuine. Some observations made in the pre-sentence report also suggest that Mr Tinomana shows some insight into the causes of his offending which bodes well for rehabilitative efforts.

[44]               However, as Crown counsel emphasises, it is the end sentence which matters on appeal and not the individual components of that sentence. The Crown says any discount available for remorse would be offset by the fact that the guilty plea to the Manukau offending came very late in the day, and the 10 per cent guilty plea discount must be seen as generous in those circumstances. I do not discount that factor.

[45]               Nevertheless,  weighing  all   these   factors   in   the   round,   I   consider   Mr Tinomana was entitled to a small discount for remorse and rehabilitation, and a two month discount would have been appropriate in the circumstances.

[46]               Application of that discount to the two years and three months reached earlier results in a sentence of two years and one month imprisonment. The 10 per cent discount for the guilty plea then needs to be applied, resulting in an end sentence of approximately 23 months’ imprisonment.

Result

[47]               The appeal is allowed. The sentence of two years, six months’ imprisonment for the burglary charge (CRN 16092001756) is quashed and replaced with a sentence of 23 months’ (or one year, 11 months) imprisonment.

Edwards J