Tui v Police HC New Plymouth CRI-2011-443-043

[2011] NZHC 1645

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-043

STEPHEN GARY TUI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 October 2011

(Heard at New Plymouth)

Counsel:         K Pascoe for Appellant

SA Law for Respondent

Judgment:      31 October 2011 at 3:30 PM

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 31 October 2011 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

K Pascoe, Nicholsons Lawyers, New Plymouth:  [email protected]

SA Law, Crown Solicitor, New Plymouth:

TUI V NEW ZEALAND POLICE HC NWP CRI-2011-443-043 31 October 2011

[1]      Stephen   Gary   Tui   has   appealed   against   a   sentence   of   18 months’ imprisonment imposed upon him by Judge LH Moore in the New Plymouth District Court on two charges of burglary.

The circumstances of the offending

[2]      The circumstances of the appellant’s offending were that the appellant broke into two caravans which were stored at a self-storage facility in New Plymouth and stole just under $10,000 worth of fixtures, fittings and contents.  The storage facility had an eight-foot high fence around it but no other security protection in the area where the caravans were being stored.  The appellant was identified as the offender because of DNA analysis on a cigarette butt which he left behind at the scene.

[3]      The  appellant  explained  to  the  probation  officer  who  prepared  the  pre- sentence report that the plan to commit the burglaries occurred to him after he had purchased a house-bus which, he said, he intended to use for travel to Northland with his  fiancée.    He  said  that  following  the  purchase  of  the  bus  he  found  serious problems with it and his intention was to steal replacement parts and other property which he could use.

The circumstances of the appellant

[4]      The appellant is aged 30 years.  He has a long criminal history, beginning in the Youth Court in 1988, totalling some 114 previous convictions, 43 of which relate to offences involving dishonesty.  Prior to his conviction on the two charges giving rise to this sentence appeal, the appellant had 15 previous convictions for burglary, the last of which was entered in 1997.  Since that time, however, the appellant has been regularly before the Courts on driving offences, drug offences and offences involving violence.   In early 2009, he was sentenced to one year and ten months’ imprisonment for wounding with intent to injure.   Following his release from that sentence he was sentenced to home detention for common assault and he received a further sentence of home detention, in June 2010, for a 2009 offence of driving with excess breath alcohol.

The approach of the District Court Judge to sentencing

[5]      The District Court Judge noted that in the past the courts had attempted to keep Mr Tui in the community following his convictions noting, for example, that in

1997, the appellant had received a sentence of supervision and little else for burglary and non-aggravated robbery.   He referred to the more recent home detention sentences.

[6]      The Judge noted that the Probation Service had identified the appellant’s offending issues as substance abuse, violence propensity and criminal association which had been addressed by the appellant’s attendance at a range of programs in prison and in the community.   He observed, however, that, on the two burglary charges for which the appellant was sentenced, he had reverted to his “old familiar methods of dishonesty to solve immediate problems.”   While accepting that the appellant had performed quite well in undergoing the two home detention sentences, the Judge commented that the purpose of the sentence was not to get him to perform well (which was what the law required of him) but to endeavour to get a message across to the appellant that it was time to stop offending in relation to the driving of motor vehicles and violence.

[7]      The Judge then approached the sentencing exercise in the following way:

[9]       For all that is said, your history, when it is analysed, when one blanks out the periods when you have been locked up, is that of somebody who comes out of jail, or comes off an electronically monitored sentence and gets into serious trouble, not always in the same way.   I have got to try, within the limits that the law permits or requires, to hold you accountable for your actions and to deter not only you but others from acting as you did. This was no impulsive exercise.   This was an exercise by a skilled, determined criminal pillaging valuable property from a secure area and quite clearly using significant criminal skills to break in.

[10]     Given your history, while I do not doubt that as of today you mean what you say when you talk about making reparation on a drip feed basis, unless there is some dramatic change in the way you go about life, any exercise of that sort would only last a short time before you got into trouble for something else.

[11]     I can give you credit for not having committed burglary for some time, but I cannot give you credit for not having committed serious breaches of community standards almost routinely.

[12]      I  am  afraid  this  is  a  situation  where  there  is  no  way  out  of  a significant prison sentence, part of which, of course, you have already done in remand.

[13]      There ought to be concurrent sentences on these two matters.  I think reparation is pie in the sky in all the circumstances.  It would be wrong in principle to make an order that you cannot satisfy.

[14]     You are entitled to credit for your pleas of guilty.  I hasten to add I think Mr Mooney did a pretty good job in obviously getting the police to drop another similar charge.

[15]      On each of these matters I cannot possibly see how, even allowing for the fact that it is a way back to the previous burglaries, putting the two of them together we can start at under two years’ imprisonment.  On each of these matters you will be sentenced to 18 months’ imprisonment.

[16]      The message I am afraid is clear, Mr Tui: there are no prizes for somebody like you in simply coming out of jail for one sort of offending and then reverting to another sort of offending at which you have had plenty of practice.  The community is entitled to some protection from you and that has got to be the outcome.  I should hasten to add that, with your history, you have got to regard that as a very minimal sentence.  If we saw you again for burglary somebody would be starting to talk in terms of the fact that it does carry a maximum penalty of 10 years’ inside.

The arguments advanced by the appellant on appeal

[8]      Ms Pascoe argued that there were essentially two broad grounds in support of the appeal.  First, she said that the starting point of two years’ imprisonment adopted by the Judge was too high and did not properly take into account the actual criminality.    She  argued,  second,  that  the  Judge  had  failed  to  consider  home detention as a real alternative to imprisonment.

[9]      On the first point, Ms Pascoe argued that the Judge had over-stated the uplift for aggravating features which was principally the lengthy history of previous convictions, particularly for burglary.   She accepted that the offending was professional, but pointed out that it did not involve the invasion of a dwelling and said that the Judge had failed to take into account the time lapse between the present offending and the appellant’s last burglary conviction. While acknowledging that the appellant fell into the class of a Category 2 recidivist burglary as identified in Police

v  Senior,[1]   Ms Pascoe  submitted  that  the  Judge  had  failed  to  take  into  account

personal  factors  such  as  the  degree  of  remorse  expressed  by the  appellant,  the

progress made by the appellant when offered sentenced short of imprisonment and his successful attendance at rehabilitative programs.

[1] Police v Senior (2000) 18 CRNZ 340.

[10]     Although  Ms  Pascoe  argued  that  the  Judge  had  not  identified  an  initial starting point, and had failed to quantify the uplift related to the offending, she accepted it was clear that the Judge had allowed a 25 percent discount for the guilty plea and other mitigating factors.

[11]     The main thrust of counsel’s argument against the sentence, and in favour of a sentence of home detention, was that home detention appeared to have been a successful option in terms of the rehabilitative effects and the improvement in the appellant’s lifestyle, save for this lapse into burglary.   Counsel referred to the generally favourable pre-sentence report which, she said, emphasised the brighter future prospects for the appellant.

[12]     Ms Pascoe accepted that, in the end, the real issues were whether the end sentence  of  18 months’ imprisonment  was  the  least  restrictive  sentence  that  is appropriate in the circumstances[2] and, if imprisonment was appropriate, whether the term was outside the range available to the Court.

Discussion

[2] Sentencing Act 2002, s 8(g).

[13]     The District Court Judge did not expressly follow the approach to sentencing described by the Court of Appeal in R v Taueki,[3] and he did not expressly refer to the provisions of the Sentencing Act.  Nevertheless, he correctly identified that, in a case such as this involving recidivist offending (albeit some 14 years after the last conviction for burglary), the courts must pay heed to the requirements to hold the appellant accountable for his actions and to deter both the appellant and others from acting in a similar way.  The Judge was right, in my view, to say that this was not an impulsive exercise but skilled, determined criminal pillaging of valuable property

from a secure area using significant criminal skills.

[3] R v Taueki [2005] 3 NZLR 372.

[14]     While I agree that the courts have tended to regard burglaries of dwelling- houses, particularly at night, as being more serious than the burglary of unattended commercial premises, there is always a risk of confrontation between an offender and  persons  lawfully on  commercial  premises.[4]     A starting  point  of  two  years’ imprisonment was within the range available to the Judge for this type of offending, bearing in mind the appellant’s previous criminal history.[5]   A discount of 25 percent for the plea of guilty and the expressions of remorse was also one which was open to the Judge.

[4] R v Southon (2003) 20 CRNZ 104, at [12]. 

[5] R v Southon, at [11] and [13].

[15]     The Judge did not expressly refer to s 8(g) Sentencing Act 2002 and the requirement that the court must impose the least restrictive outcome that is appropriate in the circumstances, bearing in mind the hierarchy of sentences and orders set out in s 10A.   Such an approach can be inferred, however, from his comment that he could see “no way out of a significant prison sentence”, from his reference to the previous efficacy of sentences of home detention, and from his reference to the community being entitled to some form of protection from the appellant.

[16]     I agree with Ms Law that the Judge was entitled to regard a sentence of home detention  as being inappropriate,  bearing in  mind those  factors.   That  left  only imprisonment  to  be  imposed  and  I  am  not  satisfied  that  the  appellant  has demonstrated that the Judge erred in any respect which produced a sentence outside the range properly open to the Judge.

[17]     Standing back from the matter, I consider the Judge was entitled to assess the end sentence as having been relatively lenient in the circumstances. Accordingly, the appeal is dismissed.

..................................................

Toogood J