Tito v Police - [2017] NZHC 2552

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000291 [2017] NZHC 2552

BETWEEN
MICHAEL WAYNE TITO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 October 2017

Appearances:

P Masani and D B Dow for the Appellant
E J Smith for the Respondent

Judgment:

19 October 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 19 October 2017 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Waitakere
Meredith Connell, Auckland

TITO v NEW ZEALAND POLICE [2017] NZHC 2552 [19 October 2017]

[1] On 6 January 2017, Mr Tito was stopped by Police in a stolen car. Following his arrest, Mr Tito volunteered and confessed to a number of other dishonesty crimes.

[2] Mr Tito pleaded guilty to a number of charges, including one charge of unlawfully taking a motor vehicle; two charges of theft of property valued over
$1,000, and one charge of theft of property valued at $500-$1,000.1

[3] On 10 July 2017, Mr Tito was sentenced in the District Court by Judge Jelas.2 He now appeals the sentence imposed of 22 months’ imprisonment, on the basis the Judge adopted too high a starting point on the lead charge and failed to allow a discount for Mr Tito’s confessions.

Factual background

[4] Mr Tito is a 31-year-old man of Ngāti Porou descent. He experienced a difficult childhood that included physical and emotional abuse. He has spent his adulthood in and out of prison as a result of a considerable record of offending. He has more than 100 previous criminal convictions, largely for dishonesty or driving-related offences. The pre-sentence report suggests that Mr Tito’s dishonesty offending is in part due to the need to fund his alcohol and drug abuse.

[5] On 6 January 2017, Mr Tito was stopped driving a stolen car that he had taken on 30 December 2016, having found the car unlocked in a driveway with the keys inside. The car was worth $18,000. On 4 January 2017, Mr Tito filled up the car at a petrol station with fuel worth $118.60, and drove off without paying.

[6] Following his arrest, Mr Tito spoke to the Police about a number of other crimes. Police suspected Mr Tito of being involved in some, but had insufficient

1The other charges were three charges of theft of property valued under $500; one charge of receiving ($500-1,000); two representative charges of unlawfully using a document; and one charge of breaching release conditions.

2 Police v Tito [2017] NZDC 14958.

evidence. Others had not been linked to Mr Tito. As a result of this discussion, Mr Tito confessed to the following offending:

(a) Taking clothing, vouchers, cash and a debit card worth $668 from an unlocked vehicle between 14 and 15 December 2016, and using the debit card to purchase items on three occasions totalling
$170.24.

(b) Taking credit cards, a ring, sunglasses and cash together worth over

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.

Continue reading Tito v Police

Details

AGLC: Tito v Police [2017] NZHC 2552
Case: [2017] NZHC 2552
Decision Date: 19 October 2017

CaseChat Overview and Summary

The appellant, Michael Wayne Tito, was sentenced to 22 months’ imprisonment by the District Court for unlawful taking of a motor vehicle, multiple thefts and other dishonesty offences. Tito appealed the sentence, contending that the starting point was too high and that a discount should have been applied for his confessions. The High Court considered the starting point for the lead charge of unlawfully taking a motor vehicle was too high and that a discount should have been applied for Tito’s confessions. The High Court also considered that the uplift for the remaining dishonesty charges was appropriate. However, the Court was satisfied that the end sentence was manifestly excessive. The Court allowed the appeal and substituted a sentence of 19 months’ imprisonment. This was a sentence within the range that could properly be justified by accepted sentencing principles. The Court also encouraged Tito to use his time in prison to address his drug abuse, obtain job training and contribute to society.

Orders