Tukaki v Police HC Hamilton CRI 2010-419-71

[2010] NZHC 2150

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-71

BETWEEN  PATRICK TUKAKI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 November 2010

Counsel:         G Walsh for the appellant

P Cornege for the respondent

Judgment:      24 November 2010

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Crown Solicitor, P O Box 19-173, Hamilton 3244

Copy to:            G Walsh, P O Box 1322, Hamilton 3244

TUKAKI V NEW ZEALAND POLICE HC HAM CRI-2010-419-71  24 November 2010

Introduction

[1]      Patrick  Tukaki  appeals  against  a  sentence  of  three  years  three  months imprisonment imposed on him in the District Court at Hamilton by Judge Ingram.[1]

The appeal is on the ground that the sentence is manifestly excessive.

[1] New Zealand Police v Tukaki DC Hamilton CRI-2010-019-004038, 2 August 2010.

[2]      The focus of Mr Walsh’s submissions on behalf of Mr Tukaki is that the starting point of four years taken by the sentencing Judge was too high.

Background

[3]      On 11 May 2010 Mr Tukaki travelled to a residential address in Whatawhata. He gained entry by forcing open a window through which he climbed.  He stole from the property items including a television and computer having an approximate value of $10,000 and jewellery to the value of approximately $10,000, which is property to the total value of  approximately $20,000.   The Police found fingerprints at the address which took them to Mr Tukaki.  He admitted committing the burglary.  He said he had sold the stolen items for $500 and a bag of cannabis.   None of the property has been recovered.  Mr Tukaki carried out this burglary having received advice that the property would be vacant.  He went to the property with burglary in mind.

[4]      Mr Tukaki is aged twenty years.  He has a depressing list of convictions for one so young, to which I shall shortly return.

Sentence

[5]      In sentencing Mr Tukaki the Judge referred to the facts I have outlined above. He also referred to the emotional and financial consequences for the family who were the victims of this burglary.  He described them as being very angry, violated and disappointed.  The victim impact statements are testimony to that.

[6]      The Judge referred to Mr Tukaki’s history of offending which dates back to

2004.  It includes convictions for being unlawfully in a building in 2009, burglary in

2009, receiving in 2009 and burglary in 2007.   He has received sentences of one year’s imprisonment for the 2009 burglary and three months imprisonment for the

2007 burglary.   The Judge described Mr Tukaki as “a professional thief for some time now”.[2]

[2] At [5].

[7]      The Judge referred to the serious nature of this offending.  He turned to the structure of the sentence.[3]   He took a starting point of four years imprisonment.  He increased that by six months for what he referred to as the “long and bad history of property offending”.   From the revised starting point of four and a half years he allowed fifteen months credit for the guilty plea which he noted had been formally entered approximately three months after Mr Tukaki was charged.  (He was charged

in May and sentenced on 2 August 2010, the day that he entered the guilty plea. Counsel confirmed that while the guilty plea was entered on 2 August, an indication of a guilty plea had been given on appearance before Community Magistrates on 22

June 2010).   The end sentence was accordingly three years three months imprisonment.

Submissions

[3] At [11].

[8]      Counsel have filed helpful and comprehensive submissions.   Mr Walsh’s submissions referred to a number of judgments which are helpful to the Court in providing guidance as to the appropriate starting point in a case such as this.

[9]      As  was  noted  by the  Court  of  Appeal  in R  v  Columbus,[4]   sentencing  of recidivist burglars is often approached on a different basis from the R v Taueki[5] approach generally adopted in sentencing.   But it is relevant that in approaching sentencing   in   accordance   with   the   decision   in   Senior   v   Police,[6]   recidivist professional burglars (described as those with twenty to thirty previous convictions, who steal for a living) will usually attract a maximum final sentence of three years

imprisonment with a maximum starting point of not greater than four years imprisonment, as was noted by Ellis J in Tuwhangai v New Zealand Police.[7]

[4] R v Columbus [2008] NZCA 192.

[5] R v Taueki [2005] 3 NZLR 372 (CA).

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

[7] Tuwhangai v New Zealand Police HC Hamilton CRI-2010-419-000009, 5 May 2010 at [24].

[10]     In this case the Judge did not appear to structure his sentence on the basis that Mr Tukaki was a recidivist burglar and I consider he was correct in that.  Mr Tukaki has two previous convictions for burglary, although as Mr Cornege pointed out, the sentences imposed respectively one year and three months imprisonment, indicate that  the  burglaries  were  serious.     However,  Mr  Tukaki  falls  short  of  being

categorised as a recidivist burglar such as the offender in Thompson v Police,[8] a

recent  decision  referred  to  by  the  Crown.     Mr  Thompson  had  burglary  and dishonesty offences covering some twenty four years.

[8] Thompson v Police HC Hamilton CRI-2010-419-56/57, 17 November 2010.

[11]     I consider the appropriate approach to sentencing in this case was to take a starting point for the burglary (as the Judge did), to apply an uplift for the previous offending (as the Judge did) and to allow a discount for the guilty plea (as the Judge did - it is in the range of 27-28 per cent).  The focus of this appeal is the starting point of four years adopted by the sentencing Judge.

[12]     The range of cases referred to me by counsel for the appellant which include R v Columbus to which I have previously referred, Tumohe v Police[9],Dickerson v Police[10], Cooper v Police,[11] Snowden v Police[12] and a Court of Appeal judgment in

Curry v The Queen[13]  indicate that a starting point of not less than eighteen months would be appropriate in the case of a serious burglary such as this.

[9] Tumohe v New Zealand Police HC Hamilton CRI-2008-419-72, 13 November 2008.

[10] Dickerson v New Zealand Police HC Wanganui CRI-2010-483-49, 1 September 2010.

[11] Cooper v New Zealand Police HC Dunedin CRI-2010-412-000021, 5 August 2010. 

[12] Snowden v New Zealand Police HC Hamilton CRI-2010-419-52, 15 July 2010.

[13] Curry v The Queen [2010] NZCA 491.

[13]     There are seriously aggravating factors present here:

a)       The quantum of the property stolen – about $20,000 – which exceeds that taken in any of the cases which I have mentioned above.

b)        Premeditation.

c)       The burglary was of a residential property occupied by a family who understandably have suffered considerably as the result of this offending.

[14]     Having considered the guidance provided by the numerous decisions referred to me I consider a starting point in this case was appropriately two years imprisonment.  Mr Walsh does not quarrel with the uplift applied by the sentencing Judge of six months imprisonment.  I would observe that it could have been higher because not only has Mr Tukaki a serious list of previous offending, notwithstanding his young age of twenty years at the time of the offending, but this offending took place while he was still subject to a sentence of imprisonment.  I consider, however, that the uplift is not inappropriate.  Applying a six months uplift the revised starting point is thirty months imprisonment.

[15]     From that revised starting point, I allow a discount of eight months for the guilty plea (nearly twenty seven per cent), to reach an end sentence of twenty two months or one year ten months imprisonment.

[16]     The sentence being one of short term imprisonment I am required to consider home detention.  Mr Walsh helpfully advised that home detention was not something that would be sought for Mr Tukaki.  I agree.  This was serious criminal offending and a sentence of home detention is in my view, not appropriate.

Result

[17]     The  appeal  is  allowed.     The  sentence  of  three   years  three  months imprisonment is quashed. A sentence of one year ten months imprisonment is substituted.