Tukurangi v Police
[2024] NZHC 1111
•7 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000092
[2024] NZHC 1111
BETWEEN RICKY TUKURANGI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 May 2024 Appearances:
L Kumaran on instructions from C Chen for Appellant M Chiraagh for Respondent
Judgment:
7 May 2024
ORAL JUDGMENT OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: C Chen/L Kumaran, Silverdale
TUKURANGI v NEW ZEALAND POLICE [2024] NZHC 1111 [7 May 2024]
Introduction
[1] On 13 February 2024 Judge A M Manuel sentenced Ricky Tukurangi to 15 months’ imprisonment.1 Mr Tukurangi had pleaded guilty to charges of:
(a)unlawfully interfering with a motor vehicle on 7 August 2023;
(b)theft of assorted items on 2 September 2023;
(c)stealing groceries on 25 September 2023;
(d)driving while forbidden on 10 October 2023; and
(e)receiving a motor vehicle worth about $5,000 on 10 October 2023.
[2] Mr Tukurangi appeals against the sentence. He says it is manifestly excessive and that he should have been sentenced to community detention combined with intensive supervision.
Background offending
[3] On 20 November 2013 Mr Tukurangi was found to be an unlicensed driver and was subsequently forbidden to drive. He has not yet obtained a driver’s licence.
[4] On 27 August 2023, Mr Tukurangi used a flat bladed screwdriver in an attempt to lever open the rear hatch of a Mazda motor car, causing damage to the car. The screwdriver snapped and punctured Mr Tukurangi’s skin causing him to bleed on the car. An analysis of the blood confirmed a match with him.
[5] Within a week, on 2 September 2023, again in the afternoon Mr Tukurangi smashed the front passenger window of a Mitsubishi car. While doing so he was again injured and left blood on several pieces of broken glass within the car. He took a backpack from the car containing a mobile phone. Again the blood was able to be linked to Mr Tukurangi’s DNA on the database.
1 New Zealand Police v Tukurangi [2024] NZDC 3181.
[6] Three weeks later, on 25 September 2023, Mr Tukurangi loaded meat products into a shopping basket at a Fresh and Save supermarket to a value of approximately
$150 and deliberately took them and left the supermarket without making any attempt to pay.
[7] Two weeks later, during the course of the night on 7 October 2023, a Mazda car that had been parked in Mount Wellington was broken into. Three days later Mr Tukurangi was observed driving the car. When it was located the ignition barrel had been completely smashed and required a manipulated fork to start the engine. Mr Tukurangi was apprehended a short distance away from the car and a search of the backpack he had with him disclosed the adapted fork used to start the stolen car.
[8]Mr Tukurangi offered no explanation for the offending.
[9] In sentencing Mr Tukurangi the Judge noted he was 38 years old and had been last sentenced to prison in October 2021 for a term of two years, six months. The current offending occurred while Mr Tukurangi was subject to that sentence.
District Court sentencing
[10] The Judge noted that Mr Tukurangi had at least three driving convictions, four of receiving, two or more of unlawfully getting into and interfering with a motor vehicle, 14 of theft and 22 of shoplifting. She structured the sentence by taking 12 months’ prison for the charges involving the motor vehicles. She uplifted that by a further four months to take account of the further offending but convicted and discharged Mr Tukurangi on the charge of driving while forbidden.
[11] The Judge did not consider the guilty plea had been entered at the earliest opportunity and also considered that Mr Tukurangi’s expressions of remorse were questionable. She allowed 20 per cent for both the guilty pleas and any remorse. That reduced the sentence from the adjusted start point of 16 months to 13 months. The Judge then uplifted that by two months for Mr Tukurangi’s previous offending to end at 15 months’ imprisonment.
[12] The Judge noted counsel had argued for a sentence of intensive supervision and community detention but was not persuaded that was the right response. Instead she imposed imprisonment with six months’ release conditions as set out in the pre- sentence report. Reparation was not sought.
The appeal
[13] Mr Tukurangi appeals. Ms Kumaran has submitted that the Judge erred in imposing the sentence of imprisonment and that community detention combined with intensive supervision would have fulfilled the principles of sentencing, particularly rehabilitation and would have been the least restrictive outcome. She submitted that although Mr Tukurangi might be soon due for release from prison he was anxious to engage in intensive supervision to address the drivers of his offending.
[14] While accepting the starting point of 12 months was not excessive counsel submitted that two months would have been the appropriate uplift for the remaining charges, bearing in mind the maximum penalty prescribed for such charges. She also argued for an uplift in the discount for the guilty plea and a further, additional discount for remorse. Although there is reference in the written submissions to Mr Tukurangi having the support of his mother and wishing to support his mother who is currently unwell, there is no evidence before the Court about that issue.
Approach to the appeal
[15] The appeal is brought under s 250(2) of the Criminal Procedure Act 2011 which provides:
(2)The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[16] In Tutakangahau v R,2 the Court of Appeal confirmed that an appeal under s 250(2) was not intended to change the approach taken to sentence appeals. In
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
particular it is necessary for an appellant to show there was an error whether intrinsically or as a result of additional material submitted on appeal, and if so, the Court will then form its own view of the appropriate sentence. While there is no express reference to the concept of a manifestly excessive sentence in the section the concept is longstanding and should continue to be applied. Importantly the focus remains on whether the sentence imposed was within range rather than the process by which the sentence was reached.3
Analysis
[17] As noted, Ms Kumaran accepts that the starting point was within range. The challenge is to the uplifts and to the discounts and ultimately to the sentence of imprisonment as opposed to a sentence of community detention and intensive supervision.
[18] The uplift of four months for the other offending and the uplift for the previous offending were in my judgment open to the Judge. Mr Tukurangi went on an offending spree within a relatively short period of time involving interfering with vehicles and causing loss and damage to the owners of the vehicles and, in addition, on the facts blatantly stole from a supermarket, which is a matter of concern to the community at large and puts staff and others at risk. On one view of it the uplifts could be seen to be generous to Mr Tukurangi. At the age of 38 he has a raft of previous convictions and as noted, at the time of the offending he was subject to a sentence of two years, six months’ imprisonment for serious offending, including aggravated robbery and assault with intent to injure.
[19] As for the deductions for the guilty plea and remorse, the guilty plea was not entered on the first possible occasion. Mr Tukurangi appeared three times in the District Court before entering the guilty plea on his fourth appearance. Further the case against him was a strong one. There was forensic evidence confirming his involvement in the offending in relation to the first two cars he had broken into and, in relation to the third car he was found with a fork which had been modified to start the car. Given the strength of the Crown case against him an allowance of 15 to 20
3 At [36].
per cent at most for the guilty pleas was available. I also agree with the Judge’s assessment that Mr Tukurangi’s remorse must be seen as questionable. While the probation officer referred to Mr Tukurangi’s expressions of remorse the officer also identified the offending related factors were an offending supportive attitude, negative associates and an unstructured lifestyle. The expressions of remorse fall well short of the genuine remorse referred to by the appellate courts in Hessell v R,4 that would support a discount.
[20] However the principal issue in the appeal is whether the Judge erred in imposing imprisonment as opposed to the community detention and intensive supervision argued for.
[21] Ms Kumaran submitted as noted that intensive supervision would perhaps allow Mr Tukurangi to address the drivers of his offending. In response, Mr Chiraagh drew the Court’s attention to the fact that Mr Tukurangi had in fact been sentenced to intensive supervision and community detention in April 2020, yet from his record it appears that within three months of that he then went on to commit an aggravated robbery and two assaults with intent to injure amongst other offences.
[22] Given Mr Tukurangi’s age, 38, his past history for offending, the recidivist and repeated nature of his offending, in my judgment the Judge in the District Court was correct to regard imprisonment as the least restrictive outcome appropriate in the circumstances. That is so, particularly bearing in mind the purposes of the Sentencing Act 2011 of holding Mr Tukurangi accountable for the harm done to the victims and the community by his offending, the need to denounce and deter such conduct, and to protect the community from him and this type of random offending. Mr Tukurangi has had a number of chances in the past to rehabilitate but has spurned those opportunities.
4 Hessell v R [2011] 1 NZLR 607.
Result
[23]For those reasons the appeal must be dismissed and is dismissed accordingly.
Venning J
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