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IN THE COURT OF APPEAL OF NEW ZEALAND
CA168/2014 [2014] NZCA 279
BETWEEN
THOMAS TENI TUTAKANGAHAU Appellant
AND
THE QUEEN Respondent
Hearing:
27 May 2014
Court:
Ellen France, French and Miller JJ
Counsel:
T Epati for Appellant M J Lillico for Respondent
Judgment:
29 May 2014 at 10 am
Reasons:
27 June 2014
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal against sentence is allowed. The sentence of 11 months imprisonment is quashed and a sentence of six months imprisonment is substituted.
CA post-release special condition that the appellant attend and complete such counselling or treatment programmes as may be directed by his Probation Officer is imposed together with the standard conditions under s 14(1) of the Parole Act 2002. These conditions expire six months after the sentence expiry date.
Para No Introduction [1] Background [5] Basis of application [9] Should leave be granted? [14] The statutory scheme [18] Our analysis [26] Application to this case [41] Result [48]
Introduction
In December 2013 the 18-year-old appellant jumped a fence and entered a camping ground at Churchill Park, Gisborne. He went into two closed tents and removed clothing and other personal items belonging to four campers who were out attending the “Rhythm and Vines” festival. The appellant was located the next morning and admitted he had stolen the property. He showed the officers where the goods were hidden. A portion of the property was unrecovered.[1]
[1]Counsel for the Crown advises that reparation was sought by one victim in the amount of $760. An additional reparation schedule for another victim lists property to a total value of $850.
The appellant pleaded guilty to two charges of burglary. He was sentenced by Judge Adeane in the District Court to a term of 11 months imprisonment.[2] He unsuccessfully appealed against that sentence to the High Court.[3] He now seeks leave for a second appeal to this Court.
[2]Police v Tutakangahau DC Gisborne CRI-2013-016-3096, 18 February 2014 [sentencing remarks].
The appellant’s appeal in the High Court was dealt with under s 250(2) of the Criminal Procedure Act 2011 (the Act). Under that section, the first appeal court must allow the appeal if satisfied that there has been “an error in the sentence imposed” and that “a different sentence should be imposed”. The appellant says his case raises a question about the approach to s 250(2) and, in particular, to the requirement that the Court be satisfied there has been an error.
Because of the appellant’s imminent release date, we heard both the application for special leave to appeal and the proposed appeal.[4] On 29 May 2014 we delivered a judgment granting the application for leave and allowing the appeal.[5] We now set out our reasons for that decision.
Background
[4]Tutakangahau v R CA168/2014, 2…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tutakangahau v R [2014] NZCA 279
Case
[2014] NZCA 279
Decision Date
CaseChat Overview and Summary
In Tutakangahau v R, the Court of Appeal of New Zealand considered an appeal against the sentence imposed on Thomas Teni Tutakangahau, who pleaded guilty to two charges of burglary. The appellant, aged 18 at the time, had entered a camping ground at Churchill Park, Gisborne, and stolen clothing and personal items from four campers attending the "Rhythm and Vines" festival. The District Court sentenced the appellant to 11 months imprisonment, a sentence that was subsequently upheld by the High Court. However, the appellant sought leave to appeal to the Court of Appeal, arguing that there had been an error in the sentencing process and that a different sentence should be imposed.
The Court of Appeal granted the application for leave to appeal and allowed the appeal against the sentence. The Court found that the starting point adopted by the sentencing judge was too high and that the judge's approach to the discount for youth and the uplift for previous offending was flawed. The Court concluded that a different sentence should be imposed, and substituted a sentence of six months imprisonment, equating to time served. The Court also imposed a post-release special condition that the appellant attend and complete such counselling or treatment programmes as may be directed by his Probation Officer, together with the standard conditions under s 14(1) of the Parole Act 2002, which expire six months after the sentence expiry date.
The Court's decision clarified the approach to be taken in sentencing appeals under s 250(2) of the Criminal Procedure Act 2011. The Court emphasised that the test for a sentence appeal involves identifying whether there has been an error in the sentence imposed and whether a different sentence should be imposed. The Court also noted that the concept of a manifestly excessive or inadequate sentence remains relevant in assessing the significance of the error and determining whether a different sentence should be imposed. The Court concluded that the previous approach to sentencing appeals had not changed and that the appellate court's role is to ensure that the sentencing judge has not fallen into error in applying the sentencing discretion.