Tukaharaina v Police
[2019] NZHC 2139
•29 August 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-13 CRI-2019-425-14 CRI-2019-425-15 CRI-2019-425-16
CRI-2019-425-17 [2019] NZHC 2139
BETWEEN HAIMANA ADAM TUKAHARAINA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 August 2019 Appearances:
J A T Ross for Appellant
S N McKenzie for Respondent
Judgment:
29 August 2019
JUDGMENT OF CULL J
[1] Mr Tukaharaina appeals his sentence of 21 months’ imprisonment.1 Mr Tukaharaina was sentenced on charges of burglary,2 failing to answer District Court bail by failing to appear,3 breach of home detention,4 and the re-sentencing on the cancellation of home detention.5 The re-sentencing included the initial charge of burglary, as well as six charges of theft under $500.6
1 New Zealand Police v Tukaharaina [2019] NZDC 4636.
2 Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment.
3 Bail Act 2000, s 38(b), maximum penalty one year’s imprisonment or $2,000 fine.
4 Sentencing Act 2002, s 80S, maximum penalty one year’s imprisonment or $2,000 fine.
5 Sentencing Act 2002, s 80F.
6 Crimes Act 1961, s 223(d), maximum penalty three months’ imprisonment.
TUKAHARAINA v NEW ZEALAND POLICE [2019] NZHC 2139 [29 August 2019]
[2] The grounds upon which Mr Tukaharaina appeals are that the sentencing Judge double-counted a burglary charge and failed to give a discount for youth. Those errors, he says, led to a manifestly excessive sentence.
Factual background
[3] Mr Tukaharaina is now aged 20 but was 19 at the time of the offending. On 13 September 2018, he committed two burglaries. The first burglary on Yarrow Street involved Mr Tukaharaina, aged 19, and a 14 year old associate. They cut the rubber lining from a bedroom window, removed a glass pane, and entered the house. They searched the house extensively and ransacked it to the point where household items were thrown throughout the house. Drawers were pulled out and emptied onto the floor, and clothing was pulled out of the wardrobe. A television, computer, binoculars, perfumes, jewellery and cash were taken.
[4] At 8.30 pm on the same day, Mr Tukaharaina, along with four other associates, committed a burglary on Inglewood Road. The group removed rubber seals to an aluminium window, smashed a small window in the back door, and gained entry to the house, where an alarm sounded and they fled from the address.
[5] The police executed a search warrant on the associates’ address, and as a result located a gold band signet ring and passports stolen from the Yarrow Street address. On 10 October 2018, the police executed a search warrant on Mr Tukaharaina’s address, and jewellery, perfume, and a computer stolen from the Yarrow Street address was located. Mr Tukaharaina admitted that he had committed the burglary.
[6] On 3 October 2018, Mr Tukaharaina was sentenced to six months’ home detention for the Inglewood Road burglary and minor theft charges, with an expiry date of 2 April 2019. On 19 October 2018, he interfered with the electronically monitored device. When the security company came to investigate, they discovered Mr Tukaharaina had departed from the address.
[7] He was not apprehended until 7 November 2018. Mr Tukaharaina was charged for breach of home detention and bail, as well as being charged with the Yarrow Street burglary.
District Court decision
[8] Mr Tukaharaina was sentenced on his breach of home detention, his failing to appear in Court, the Yarrow Street burglary, and was resentenced on a cancellation of the home detention sentence of six months.
[9] The Judge recognised that the initial sentencing Judge had set the starting point for the Inglewood Road burglary at between 18 months and two and a half years’ imprisonment. The Judge recognised that he had to undertake an assessment as to whether the initial sentencing Judge would have taken a different starting point if he had known about the Yarrow Street burglary, which happened prior to the Inglewood Road burglary.
[10] The Judge then fixed a starting point of 20 months’ imprisonment, which incorporated the two burglary charges. He then made discounts for youth and for a guilty plea. This reduced it to an end sentence of 13 and a half months’ imprisonment.
[11] The Judge then turned to consider the breach of home detention, noting the maximum penalty was one year’s imprisonment. He took into account Mr Tukaharaina’s immediate guilty plea and lack of history of breaching sentences, and fixed a starting point of three months’ imprisonment. He then gave a discount for the guilty plea, which left two months and one week’s imprisonment. The Judge imposed a concurrent sentence of one month for the charge of failing to appear in the District Court.
[12] This resulted in a sentence end point of 15 months and three weeks. The Judge then applied the totality principle and considered that the sentence should be reduced to 15 months.
[13] The Judge then calculated there was 11 months’ imprisonment remaining of the original sentence and that if he were to add 15 months to the 11 months, the end sentence in totality would be too high.
[14]The Judge then dealt with the sentencing as follows:
(i)On the cancellation of the home detention and resentencing on the Inglewood Road burglary charge, he fixed a sentence of 11 months’ imprisonment.
(ii)On “the additional charge of burglary”, i.e. the Yarrow Street burglary, including the breach of home detention, he referred to his earlier finding of 15 months’ imprisonment, but reduced that sentence to nine months. This was to be served cumulatively on the 11 months’ imprisonment, being a total of 20 months’ imprisonment.
(iii)On the breach of the home detention sentence, he added one month cumulative to the nine months, bringing the total sentence to 21 months’ imprisonment.
(iv)The Judge then imposed release conditions, as well as special release conditions, because the sentence total was under two years’ imprisonment. They are set out at the end of this decision.
Approach to appeal
[15] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.7 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8
Grounds of appeal
[16] Mr Tukaharaina contends that the Judge made two errors, which led to a manifestly excessive sentence. Those errors were:
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Ripia v R [2011] NZCA 101 at [15].
(a)the Judge double-counted the Inglewood Road burglary charge to fix a starting point of 20 months’ imprisonment for both burglaries and combined this figure to the sentences for breach of home detention and failing to answer District Court bail to arrive at a sentence of 15 months; and
(b)the Judge failed to give a discount for youth, when he imposed a sentence for the charge of breach of home detention.
[17] The Crown submits that the end sentence of 21 months is not excessive for the offending, and these charges. The Judge took a totality approach to sentencing, and the additional imposition of imprisonment could not be criticised as being manifestly excessive.
Analysis
[18] The sequence of events of the offending was confused because the burglaries, even though they occurred on the same day, were not dealt with together. The Inglewood Road burglary, being the second burglary in time, was the focus of the first home detention sentence imposed. It was not until Mr Tukaharaina was apprehended for his breaches of home detention and failing to appear in Court that he was charged with the Yarrow Street burglary. The task facing the Judge was to determine a sentence for the active charges, including the fresh charge of burglary and to resentence on the cancellation of the home detention sentence, which involved the Inglewood Road burglary.
[19] There are two discrete issues on this appeal, which require a determination as to whether there has been an error in the sentence imposed. Turning, then, to the first issue, and that is whether the Judge double-counted the burglary charge, I consider that the Judge adopted an approach which implicitly double-counted the Inglewood Road burglary. I accept, therefore, Mr Ross’ submission for Mr Tukaharaina that the Inglewood Road burglary was counted twice.
[20] First, the Judge fixed a starting point of 20 months’ imprisonment for both the Yarrow Street and Inglewood Road burglaries.9 He acknowledges this by stating that “when I fixed the starting point for the burglary at 20 months’ imprisonment, I have incorporated the two burglary charges.”10 The Judge then applied the youth and guilty plea credits to reduce the 20 months to 13 and a half months’ imprisonment.11
[21] Second, when the Judge dealt with the resentencing for the breach of home detention, he noted that the home detention sentence remaining was one of 11 months’ imprisonment (as Mr Tukaharaina had served two weeks of the home detention sentence) and, after considering the matter in totality, he imposed a sentence of 11 months’ imprisonment “on the application to cancel and resentence.”12
[22] In doing so, the Judge overlooked that the Inglewood Road burglary was the primary component of the initial six-month sentence of home detention, which was an understandable mistake, given that the first Judge did not have the Yarrow Street burglary before him. This sentence, then, became a term of 11 months’ imprisonment on resentencing, but was also taken into account on the starting point for the two burglary charges of 20 months’ imprisonment.
[23] The Judge observed that if the home detention sentence of 11 months was added to the 15 months’ imprisonment for the burglary charges, the end sentence was too high. Applying the totality principle, he fixed a total sentence of 20 months’ imprisonment instead of 26 months. To that was added one month cumulative for the breach of the home detention sentence, resulting in the total sentence of 21 months’ imprisonment, which I consider to be too high in these circumstances.
[24] Before I consider the imposition of a different sentence, I deal with the second ground of the appeal and that is the failure to give a discount for youth.
[25] Mr Tukaharaina was 19 years old when he committed these offences, and the Judge took into account that a discount for youth in relation to both burglary charges
9 Tukaharaina, above n 1, at [11].
10 At [19].
11 At [12].
12 At [22].
was appropriate. However, when considering the charge of breach of home detention, the Judge overlooked a discount for youth, although took into account the immediate guilty plea and the lack of history of sentences for breach, in giving a sentence of two months and one week’s imprisonment.13 I consider a further discount for youth on that sentence was required.
A different sentence should be imposed
[26] Mr Ross submits that imprisonment was warranted and that a starting point of 20 months’ imprisonment for the two burglary charges was unremarkable. He submits that a small uplift of two months was justified for the theft charges, which leads to a global starting point of 22 months’ imprisonment.
[27] I accept his submission that credits were appropriate to account for Mr Tukaharaina’s youth, his mental health issues, and his guilty pleas. It should be noted that the Judge who initially sentenced Mr Tukaharaina to six months’ home detention acknowledged his mental health issues. Mr Ross submits that a discount of eight months (35 per cent) is appropriate, which would result in a term of 14 months’ imprisonment. I consider this to be appropriate.
[28] For the remaining charges of breach of home detention and of failing to answer District Court bail, the starting point of three months’ imprisonment is robust but within range. In the same way as above, I accept that a discount should be given for Mr Tukaharaina’s youth, mental health issues, and guilty pleas. I consider a one month discount, as submitted by Mr Ross, is appropriate, reducing this to a term of two months’ imprisonment.
[29] The above adjustments result in a final sentence of 16 months’ imprisonment. This represents a reduction of five months’ imprisonment, which I consider to be an appropriate final sentence.
13 Tukaharaina, above n 1, at [15]–[16].
Post-sentence circumstances
[30] During the appeal hearing, Mr Ross handed up a letter written by Mr Tukaharaina, together with a letter from his mentor from the Ka Awatea Intensive Mentoring and Coaching Programme. In both of those documents, Mr Tukaharaina wished to express his regret in relation to his criminal offending. Having completed the mentoring and coaching programme, he has reflected on the full impact of his offending on his family, the community, and his life. He now acknowledges that he was struggling with a number of problems, with which he was unable to cope at the time. There have been traumatic events for Mr Tukaharaina in his own family whilst he has been in custody. His mother has received an adverse medical diagnosis and his father, who came to visit him from Australia, was killed in a fatal accident on Mr Tukaharaina’s birthday.
[31] Mr Tukaharaina is no longer affiliated with his former associates and intends to have his facial tattoo removed on release. He is seeking a formal qualification to enable him to find employment. He arranged for both of these documents to be presented to the Court in support of his sentence appeal. I record that these were not available to the District Court Judge.
[32] I mention Mr Tukaharaina’s personal and family background matters because they are relevant to the rehabilitative purpose as stipulated in the principles of sentencing under the Sentencing Act 2002.14 It is plain that Mr Tukaharaina has benefitted from the mentoring and counselling he has received in custody, with his realisation of the effect of the offending on his victims and the impact it has had on his family. Importantly, he now wishes to change his lifestyle and seek remunerative employment in the community so he can support his family.
Conclusion
[33] I find that the Judge has erred tacitly in double-counting the Inglewood Road burglary and failed to give a discount for youth on the active charge of the breach of home detention sentence.
14 Section 8(i).
[34] The sentence of 21 months’ imprisonment is quashed, and I substitute a sentence of 16 months’ imprisonment. In reaching this conclusion, I have borne in mind the purposes and principles of the Act, including the need to hold Mr Tukaharaina accountable and responsible for the harm he has caused, the interests of the victims, but also his personal circumstances and the rehabilitative purpose in sentencing.
Result
[35]The appeal is allowed.
[36] The sentence of 21 months’ imprisonment is quashed. A sentence of 16 months’ imprisonment is substituted.
[37] Because the sentence total is under two years’ imprisonment, the standard release conditions will apply, as well as the following release conditions:
(a)Mr Tukaharaina is to attend an assessment for alcohol and drug treatment as directed by a probation officer and to attend and complete any counselling, treatment or programme as recommended by the assessment and as directed by and to the satisfaction of a probation officer.
(b)Mr Tukaharaina is to attend and complete an appropriate programme, counselling and/or such treatment as deemed appropriate to the satisfaction of a probation officer. The specific details of the programme will be determined by a probation officer.
(c)Mr Tukaharaina will reside at an address approved by a probation officer, and is not to move to any new residential address without the prior written approval of a probation officer.
Cull J
Solicitors:
Preston Russell Law, Invercargill for Respondent
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