Tutakangahau v R - [2014] NZHC 556

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2014-416-000006 [2014] NZHC 556

BETWEEN
THOMAS TENI TUTAKANGAHAU

Appellant

AND

THE QUEEN Respondent

Hearing:
24 March 2014

(Heard at Auckland via AVL)

Counsel:

T Epati for the Appellant
R Guthrie for the Respondent

Judgment:

25 March 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 25 March 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Gisborne
Rishworth Wall & Mathieson, Gisborne

TUTAKANGAHAU v R [2014] NZHC 556 [25 March 2014]

Introduction

[1] Mr Tutakangahau appeals against a sentence of 11 months imprisonment imposed by Judge A J Adeane in the District Court at Gisborne on 18 February 2014. The appellant had entered a guilty plea to one count of burglary.

Background facts

[2] The offending occurred during the “Rhythm and Vines” festival in Gisborne over the 2013/2014 New Year period. Many thousands of young people arrive in Gisborne from all over the country for this festival and camp in designated camping grounds, one of which is located in Churchill Park. At about 12.30 am on
30 December 2013 the appellant jumped over a large barbed wire fence into the camping ground in Churchill Park. He then entered two closed tents and removed items of clothing, personal items and sunglasses belonging to four campers who were out attending the festival.

[3] The appellant bagged all the stolen property into a suitcase and left the same way he had arrived. He was located the following morning by the police, admitted that he had stolen the property and showed the officers where the suitcase was hidden. Although those items that were located were returned to the victims, a large amount of property was unrecovered. In explanation the appellant stated he was just being drunk and stupid.

[4] A Department of Corrections report to the Court noted the appellant’s previous burglary offending (stating erroneously that his Youth Court appearances were “convictions”), assessed his likelihood of re-offending as medium and recommended a sentence of imprisonment. The report stated that due to the offending an electronically monitored sentence was not requested to be canvassed.

District Court decision

[5] The Judge noted the maximum penalty of 10 years imprisonment for burglary, the fact that the appellant had had 13 previous burglary matters in the Youth Court, the submissions for the appellant suggesting that he was now becoming

remorseful for his offending and a probation report setting out the appellant’s

personal circumstances. In assessing an appropriate sentence his Honour said:

[6]       A starting point, by reference to R v Columbus [2008] NZCA 192, of
15 months’ imprisonment is adopted. You are entitled to a 25 per cent deduction from that; you have pleaded guilty at an early stage.  Any
suggestion that you might receive a further discount by reference to your age
is off-set, in my mind, by those previous convictions to which I have referred.    A youth discount in the circumstances, where you have…

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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Details

Case: [2014] NZHC 556
Decision Date: 25 March 2014

CaseChat Overview and Summary

The appellant, Thomas Teni Tutakangahau, appeals against a sentence of 11 months imprisonment imposed by Judge Adeane in the Gisborne District Court on 18 February 2014. The appellant had pleaded guilty to one count of burglary. The offending occurred during the Rhythm and Vines festival in Gisborne over the 2013/2014 New Year period, where the appellant entered a camping ground, stole property from two tents and was caught by the police the next morning. The legal issues in this appeal revolve around whether the sentencing judge made an error in adopting a starting point of 15 months' imprisonment, not granting an adjournment to allow the option of home detention to be canvassed, not allowing any discount on account of youth and remorse, and failing to properly consider the need for rehabilitation when dealing with young offenders.

The Court found that the starting point of 15 months was within the range available in the circumstances of this case. The Court also considered that the sentencing judge had adopted the starting point by reference to previous cases, and any consideration of the appellant’s prior burglary history appeared to have been considered as a distinct matter separate from the starting point. Regarding the second ground of appeal, the Court held that the sentencing judge had correctly offset the uplift for the appellant’s history of burglary and the discount for youth. The Court concluded that the sentencing judge did not make any error which would warrant the High Court intervening, and the appeal was dismissed.

The High Court's decision in Tutakangahau v R highlights the importance of correctly applying sentencing principles and considering relevant factors, such as the offender's history and the need for rehabilitation, when determining an appropriate sentence. The Court also emphasised the need for accurate and up-to-date information to be provided to the sentencing judge to ensure that the sentence imposed is justified and appropriate.

Orders