TRAVIS ANTHONY TAMATEA AND NEW ZEALAND POLICE
[2024] NZHC 2635
•12 September 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-000026
[2024] NZHC 2635
BETWEEN TRAVIS ANTHONY TAMATEA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 September 2024 (via AVL/VMR) Counsel:
T E Hesketh for Appellant
A M Barham for Respondent
Judgment:
12 September 2024
JUDGMENT OF LA HOOD J
(Appeal against Sentence)
Introduction
[1] Mr Tamatea was sentenced to two years, three months and two weeks’ imprisonment in the Palmerston North District Court on 20 June 2024,1 on two charges of careless driving,2 driving while suspended,3 failing to stop for police,4 receiving a Mazda motor vehicle,5 receiving a Mercedes motor vehicle,6 and theft of a caravan.7
1 New Zealand Police v Tamatea [2024] NZDC 14313.
2 Land Transport Act 1988, s 37(1); maximum penalty $3,000 fine, discretionary qualification.
3 Land Transport Act, ss 32(1)(c) and 32(3); maximum penalty (for first or second offence) $4,500 fine, three months’ imprisonment. Court must order six months disqualification.
4 Land Transport Act, ss 52A(1)(a)(ii), 52A(4), 52A(6) & 114(2); maximum penalty $10,000 fine. The Court must order one year disqualification.
5 Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
6 Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
7 Crimes Act, ss 219 and 223(b); maximum penalty seven years’ imprisonment.
TAMATEA v NEW ZEALAND POLICE [2024] NZHC 2635 [12 September 2024]
[2] Mr Tamatea now appeals that sentence on the basis that the end sentence was manifestly excessive because: the starting point was too high; incorporating a totality adjustment meant it should have been lower; the two-month uplift for one charge of driving while suspended was too high; and the Judge gave insufficient credit for rehabilitative efforts.
The offending
[3] Mr Tamatea’s driver’s licence was suspended for 28 days on 10 March 2023. On 28 March 2023 (18 days later) Mr Tamatea breached that suspension. He drove carelessly and crashed.
[4] On 11 April 2023, Mr Tamatea was speeding at 133 km/h in an area with a 100 km/h speed limit. Police used lights to signal to him to stop, but he travelled a further four kilometres. When he finally did stop, he said he did not stop because he knew he did not have a licence.
[5]On 22 April 2023, Mr Tamatea received a stolen Mercedes vehicle valued at
$18,000. He was found in the driver’s seat of the vehicle just 12 hours after it was stolen. The charge of receiving the Mazda vehicle arose from events occurring on 20 or 24 April 2023.8 Mr Tamatea arranged to buy a Mazda over social media. He purchased the vehicle which had been reported stolen on 20 April 2023. He put different registration plates on the vehicle and drove it to Ohakune. The vehicle was valued at $14,000.
[6] On the night of 3-4 May 2023, Mr Tamatea opened the gate to a fully enclosed field. He then drove his vehicle (the stolen Mazda vehicle) up to a caravan parked in the field, broke the lock off the trailer hook and stole the caravan. The caravan is valued at $22,000. Mr Tamatea drove away with the caravan but crashed, driving both the car and caravan into a ditch.
[7] Mr Tamatea has a significant previous history of dishonesty offending, including more than 50 burglary convictions. His dishonesty offending commenced
8 As noted by the Judge, the charging document and summary of facts do not agree as to the date.
in 1999 with charges that included theft and receiving. He is now in his early 40s. While in custody, there is evidence he has realised that addiction has, at least to some extent, driven the offending. He completed a Salvation Army drug and alcohol residential rehabilitation programme while on EM bail.
Sentencing decision
[8] The Judge noted that while on EM bail, Mr Tamatea attended the Salvation Army Bridge course. This was an important first step, but the Judge said the onus remains on Mr Tamatea to ensure he continues to manage the risk of further offending.9
[9] The Judge set the starting point for receiving the stolen vehicles at 15 months’ imprisonment for each offence. He noted that both vehicles were valuable, that Mr Tamatea was found in possession of them close to the time of their theft, and that the maximum penalty is seven years’ imprisonment.10 The Judge then added 12 months for the caravan theft, noting it was calculated and pre-meditated, and two months for the balance of the charges, resulting in a starting point of 44 months’ imprisonment.11
[10]The Judge then made the following adjustments to the starting point:
(a)a deduction of six months for totality;12
(b)an uplift of 10 per cent for previous convictions;13
(c)an uplift of five per cent for the fact the offending occurred on bail;14
(d)a 25 per cent credit for guilty plea;15
9 New Zealand Police v Tamatea, above n 1, at [11].
10 At [7].
11 At [17]. I note the only other offence where imprisonment was an available penalty was driving while suspended (three months’ imprisonment).
12 At [18].
13 At [19].
14 At [19].
15 At [19].
(e)a 10 per cent credit for steps towards rehabilitation;16 and
(f)a two-and-a-half-month credit for time spent on EM bail;17
resulting in an end sentence of two years, three months and two weeks’ imprisonment.
[11] The Judge also disqualified Mr Tamatea from driving for six months (concurrently) on each of the charges of driving while suspended and failing to stop.
Approach on appeal
[12] The Court must allow the appeal if it is satisfied that, for any reason, there is a material error in the sentence and a different sentence should be imposed.18 The appeal court will generally not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.19 Sentencing “is not a science” and an “appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer.”20
[13]As I noted in Johnson v New Zealand Police the error principle recognises:21
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
The parties’ positions
[14] Mr Hesketh, for Mr Tamatea, submits that the starting point for the receiving charges was excessive, a more significant reduction for totality was required. He submits the appropriate combined starting point for both receiving charges should have been 20 rather than 30 months’ imprisonment.
16 At [19].
17 At [20].
18 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
19 At [30]–[36].
20 At [30] and [35].
21 Johnson v New Zealand Police [2023] NZHC 3748 at [6].
[15] Mr Hesketh acknowledged the value of the property and the close temporal link between the thefts and Mr Tamatea’s possession of it. However, Mr Hesketh submits that comparison to similar cases shows the combined starting point of 30 months was excessive. He refers to Heald v Police in which the defendant was sentenced on 10 charges, one of which included receiving a car valued at $27,000.22 The starting point for receiving was 18 months.23 Further, in Bimler v Police the defendant was sentenced on 22 charges, including two for receiving and 16 for theft.24 The total property value was $34,021.80.25 A starting point of not less than 20 months was considered appropriate for the two receiving charges, with an uplift of 18 months for the theft charges.26
[16] Second, Mr Hesketh submits the two-month uplift for the remaining charges was excessive given Mr Tamatea has just four previous convictions for driving offences, only one of the charges he faced was punishable by imprisonment,27 the previous convictions are not for driving while suspended, and there is a significant gap between them and the present offending. These charges should have been dealt with by a conviction and discharge, together with the disqualifications ordered.
[17] Third, Mr Hesketh submits that a 10 per cent reduction was inadequate to recognise the steps Mr Tamatea had taken towards rehabilitation, noting his successful completion of the Salvation Army Bridge programme. Counsel relied on the reduction of 15 per cent afforded in Bimler.28
[18] Overall, Mr Hesketh submits, the sentence should have been just over 23 months’ imprisonment, making the sentence imposed manifestly excessive. Mr Tamatea does not seek a sentence of home detention.
[19] The Crown position is that the starting point for the receiving charges and uplift for the remaining offending excluding the theft charge, was arguably stern but still
22 Heald v Police [2018] NZHC 410.
23 At [9].
24 Bimler v Police [2023] NZHC 2661 at [3].
25 At [15].
26 At [20].
27 The maximum penalty for driving while suspended is three months’ imprisonment.
28 At [34].
within range, and in any event balanced out by the uplift for the theft, which could have been higher. The adjustments for personal factors were appropriate in the circumstances.
Assessment of arguments and decision
[20] Overall, I am satisfied that the sentence imposed on Mr Tamatea was not manifestly excessive.
[21] The overall starting point for the two receiving charges of 25.9 months (calculated by adjusting the 30-month starting point based on the overall totality deduction of six months) was stern but within the available range for this type of offending. The value of the property was high, the Mercedes being worth $18,000 and the Mazda worth $14,000 –– a combined value of $32,000. The receiving and initial theft happened close together in each instance of offending. This is an aggravating factor that increases the seriousness of the offending.29
[22]I note the following cases:
(a)In Ellis v R the Court of Appeal considered a starting point of 18 months’ imprisonment for a single charge of receiving goods valued at approximately $5,000 to be stern but within the available range.30 A significant factor was that the property had been received within hours of the burglary in which it was stolen.31
(b)In Buckhart v R, the Court of Appeal held a starting point of 12 months for two charges of receiving goods with a combined value of between
$4,000 and $5,000 was considered towards the top end of the available range.32
29 Ellis v R [2012] NZCA 513 at [9]; Andrews v Police [2015] NZHC 2496 at [32]; Whittaker v Police [2017] NZHC 2747 at [17]; and Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009.
30 Ellis v R, above n 29.
31 At [9].32 Buckhart v R [2013] NZCA 314 at [16].
(c)In Hohaia v R, a starting point of 24 months for two charges of receiving goods worth $8,859.83 from two burglaries was considered stern but within range.33
(d)In Drake v Police a starting point of 15 months was considered stern but available for receiving a vehicle worth $11,000.34
(e)In Fifield v Police, I upheld a starting point of 12 months for receiving a trailer valued at between $5,000 to $7,000 on the same day it was taken in a burglary.35
(f)As noted above, in Heald v Police there was no dispute that an 18- month starting point for receiving a vehicle valued at $27,000 was appropriate.36
[23] These decisions align with Brewer J’s comments in Andrews v Police that decided cases indicate that a starting point of 18 months (or higher) is appropriate where the value of the goods exceed $5,000.37 Brewer J also noted that while the value of the items is a significant factor it is not determinative. Other relevant aggravating features include the number of burglaries from which the goods were received, the scale of the offending and the gap in time between the taking of the goods and their receipt.38 As already noted, other cases confirm that a close temporal connection between the taking of the goods and their receipt increases culpability on the basis it can indicate a higher level of knowledge or recklessness.39
[24] Mr Hesketh accepts that no issue can realistically be taken with the individual starting points of 15 months for each charge of receiving but submits that a combined starting point of 20 months (adjusted for totality) was appropriate rather than the 25.9 months adopted.
33 Hohaia v R [2020] NZHC 1795 at [43].
34 Drake v Police [2015] NZHC 2252 at [23].
35 Fifield v Police [2024] NZHC 1453 at [31].
36 Heald v Police, above n 22, at [9].
37 Andrews v Police, above n 29, at [32].
38 At [32].
39 See the cases cited at n 29 above.
[25]However, I accept the respondent’s submission that an overall starting point of
25.9 months was available given the value of vehicles and the proximity of the receiving to the thefts. As in Fifield, I accept that the totality reduction is less generous than it might have been, 40 but that is an issue about which reasonable minds can differ.
[26] I am also satisfied that the two-month uplift for the four remaining driving charges was not excessive despite only one of the charges (driving while suspended) carrying a maximum penalty of imprisonment (three months). The uplift was effectively 1.7 months when adjusted for the overall totality reduction of six months. Again, this may have been stern, but I accept the respondent’s submission that it was within the available range. Despite it being the first time Mr Tamatea was convicted of this particular driving offence, it was still serious. He was driving carelessly while suspended and crashed. And he was suspended for driving 40 km over the speed limit less than a month beforehand. These were aggravating features of the driving while suspended that the Judge was entitled to take into account.41
[27] Moreover, I accept the respondent’s submission that any sternness in the Judge’s approach is counter-balanced by the generous effective uplift of 10.4 months (adjusted for the overall six-month totality reduction) for the significant theft of the caravan, valued at $22,000. Mr Tamatea used the stolen Mazda to enter a fully enclosed yard to access the caravan, used tools in his possession to break a lock on the caravan’s trailer hook, and then carelessly drove the Mazda and trailer into a ditch resulting in the car and caravan going “belly up” on the edge of the road. In light of the cases referred to above, even if Mr Tamatea had simply received the caravan a starting point greater than 12 months would have been appropriate given the value of the vehicle. Considering the additional aggravating features involved in the theft, the uplift was generous to Mr Tamatea.
[28] In oral submissions, Mr Hesketh suggested that the Judge’s five per cent uplift for offending on bail was excessive, but I consider the overall uplift of 15 per cent for
40 Drake v Police, above n 34, at [31].
41 See Fifield v Police, above n 35, at [32].
this factor in combination with Mr Tamatea’s criminal history was clearly within the available range.42
[29] Finally, I am satisfied that Mr Tamatea received an appropriate credit reflecting his initial steps towards rehabilitation. In the case cited by the appellant to support a higher reduction, I note that the Judge was persuaded by the defendant’s proven ability to remain “offence-free for a long period of time.”43 The same cannot be said for Mr Tamatea.
[30] Therefore, standing back and considering the sentence as a whole, I am satisfied that there was no material error in the Judge’s approach and the overall sentence was not manifestly excessive.
[31]The appeal against sentence is dismissed.
La Hood J
Solicitors:
Tim Hesketh Law Ltd, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent
42 At [34].
43 Bimler v Police, above n 24, at [32].
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