Tito v Police - [2014] NZHC 3283

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000028 [2014] NZHC 3283

BRUCE-JUNIOR TITO

v

NEW ZEALAND POLICE

Hearing: 15 December 2014

Appearances:

J C Hannam for the Appellant
M C Sweetman for the Crown

Judgment:

17 December 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 17 December 2014 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Hannam & Co. Lawyers, New Plymouth. C&M Legal, New Plymouth.

TITO v NEW ZEALAND POLICE [2014] NZHC 3283 [17 December 2014]

Introduction

[1] On 9 September 2014, following a sentencing indication, Mr Tito pleaded guilty to one charge of unlawfully taking a motor vehicle and one charge of burglary. He had also previously pleaded guilty to one charge of breaching community work. He accepted the sentencing indication and was sentenced to two years and three months' imprisonment.

[2] Mr Tito was sentenced without the benefit of a pre-sentence report. No issue was taken with that, his counsel explaining that Mr Tito was in custody and felt he had no choice.

[3] Although it was not referred to by either counsel at the appeal it is evident that the sentencing also incorporated a charge of shoplifting referred to at paragraph
2 of the Judge’s sentencing remarks and in respect of which a concurrent sentence of

one month’s imprisonment was imposed.

Relevant facts

[4] On the evening of 14 July 2014, Mr Tito and two associates broke into a residential property. The group took a number of items, to the value of $6,625 from the house. During the burglary the owner of the house was asleep in the master bedroom.

[5] The group attempted to leave in the car they had brought, but ran out of petrol. They therefore took a petrol can from a nearby property to try and refill the car. When this failed, they returned to the original house and stole a car valued at around $40,000.

[6] The Judge took burglary as the lead offence. His Honour accepted that a starting point of eighteen months' to two and a half years' imprisonment would normally be appropriate for this kind of offending. However, the Judge set a starting point of three years, having regard to the totality of the offending and to Mr Tito's history of dishonesty related offending. The Judge also noted that this included

taking into account the earlier charge of breach of community work and the fines which were to be commuted.

[7] The only discount available to Mr Tito was for his guilty plea, and the sentence was reduced by nine months to account for this. The final sentence applied was therefore two years and nine months' imprisonment, consistent with the sentence indication which had been given. The Judge also sentenced Mr Tito to concurrent sentences of eighteen months' and six weeks' imprisonment for taking a motor vehicle and breach of community work respectively.

Submissions

Appellant

[8] The appellant submits that the judge erred…

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 [2014] NZHC 3283
Case: [2014] NZHC 3283
Decision Date: 17 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Bruce-Junior Tito appealed against his sentence for burglary and unlawful taking of a motor vehicle. The appeal was heard on 15 December 2014 and the judgment was delivered on 17 December 2014 by Thomas J. The legal issues in the appeal centred on whether the starting point for the sentence was appropriate, whether the totality of the offending was correctly assessed, and whether the concurrent sentences were excessive. The appellant argued that the sentence was manifestly excessive and not in line with the sentences of his co-offenders. The respondent argued that the starting point was appropriate and the sentence was within the acceptable range. The court considered the guidelines for sentencing in burglary cases, the aggravating factors, and the sentences of co-offenders. It found that the starting point of three years was too high and that the total sentence of two years and three months was manifestly excessive. The sentence was quashed and replaced with a sentence of 22 months' imprisonment.

Orders