Tutakangahau v R
[2014] NZHC 556
•25 March 2014
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 RespondentJudgment:
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 had youthful treatment for the same offence on 11 previous occasions, would be quite inappropriate.
Grounds of appeal
[6] The grounds of appeal specified in the notice of appeal dated 5 March 2014 stated that the sentencing Judge erred as a matter of law in:
(a) Not granting an adjournment to allow the option of home detention to be canvassed;
(b) Not allowing any discount on account of youth and remorse; and
(c) Therefore, failing to properly consider the need for rehabilitation when dealing with young offenders.
[7] However in the submissions in support of appeal the grounds advanced were:
(a) The Judge erred in the assessment of a starting point of 15 months;
and
(b) The Judge erred in not allowing any discount on account of the
appellant’s youth.
[8] Ms Epati explained the circumstances that had led to the home detention option not being pursued, in particular that the appellant had been bailed on
31 December 2013, had pleaded guilty one week later on 8 January 2014 (at which time bail was declined) and had been sentenced on 18 February 2014 when the Judge had declined an adjournment in order for a home detention appendix to be prepared.
At the date of the appeal hearing the appellant had served 10 weeks and 5 days of his sentence and consequently the issue of home detention was accepted as being moot.
Principles on appeal
[9] This is an appeal against sentence under s 244 of the Criminal Procedure Act
2011. Accordingly I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.1 I must dismiss the appeal in any other case.
[10] The words “an error in the sentence imposed” reflects the approach taken under the former Summary Proceedings Act 1957. That approach is stated in Yorston v Police2 where the Court said:
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”;
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal court;
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
First ground of appeal
[11] The appellant’s submissions commenced by emphasising the fact that although the appellant had had 13 Youth Court admonishments for burglary, in fact for all but one of his admonishments he received one concurrent sentence of six months supervision and reparation on 25 February 2011. A single noting for burglary committed in June 2011 was met with a second sentence of reparation only.
[12] Consequently it was submitted that the correct analysis was that between
August and December 2010 (when the appellant was 15 years old) he committed a
1 Criminal Procedure Act 2011, s 250(2).
2 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].
spree of burglary offending for which he received one intervention sentence of supervision and reparation concurrent on all matters. He then committed one further burglary in June 2011 and did not come to the attention of the authorities again until the present case in January 2014.
[13] Counsel submitted that a starting point for the burglary of two tents in the appellant’s case must be lower than the 12 months nominated in Columbus for the forced entry into a residential garage causing extensive damage. It was submitted that a starting point between six and nine months imprisonment more than adequately reflected the gravity of the offence while still giving effect to the need to deter and denounce (both specifically and generally). The appellant also placed
reliance on the judgment of Wylie J in Taremoeroa v Police3 upholding the starting
point of 9 months for the forced entry into a locked room at a motor camp where electronic equipment and cash were taken.
[14] Noting the observations of Anderson J in Kohere v Police4 it was accepted that the appellant’s Youth Court history could increase the starting point but only by a marginal amount given the fact that they were youth notations which occurred (with one exception) when the appellant was only 15 years old.
[15] In a memorandum attaching further authority Ms Epati drew my attention to a recent decision of the Court of Appeal in Raroa v R.5 That case concerned a young man who was 23 years at the time of sentencing and who was described by the Judge as having “quite a history”, that history comprising 22 convictions in the District Court and a further 16 case disposals in the Youth Court. The Court of Appeal there observed:6
The fact that the offending has occurred when the appellant was in this development phase of his life requires some restraint in the level of uplift, compared to that which might be applied for a similar history for a mature adult.
3 Taremoeroa v Police HC Rotorua CRI-2010-463-00053, 17 August 2010.
4 Kohere v Police (1994) 11 CRNZ 442 (HC) at 444.
5 Raroa v R [2014] NZCA 57.
6 At [18].
[16] The respondent’s submissions commenced by noting the approach of the Court of Appeal in Columbus relating to sentencing for counts of burglary: namely, the adoption of a starting point on the lead charge, an uplift for any further offences, a further uplift (if appropriate) for personal aggravating factors before the application of discounts for plea and mitigating personal circumstances.
[17] As an illustration of the sentencing range for single incidents of burglary the respondent drew attention to Tawhiri v Police7 (where Hansen J held that a starting point of two years imprisonment for a charge of burglary was permissible but at the upper end of the available range), Snowden v Police8 (where Ellis J held that a burglary of a private residence would in itself warrant a starting point of at least 18 months) and Arps v Police9 (where Chisholm J held that a starting point of two years and three months for two charges of burglary of a private residence, intentional damage and being found in a yard was appropriate).
[18] In addition I have considered the following cases: Whatarau v Police,10
Iwikau v Police,11 Curry v R,12 Daw v R,13 Kati v Police14 and Newton v Police.15
[19] I consider that the appellant’s offending is particularly similar to that in Kati and Newton where the value of the property was similar and the offending was similarly opportunistic and committed by offenders with previous Youth Court notations for burglary. In those cases almost identical starting points (14 months and
15 months respectively) to the one adopted by Judge Adeane were upheld on appeal.
[20] I recognise that there are factual errors in the judgment under appeal, in particular the references in [4] to “chapter upon chapter of similar offending with all manner of intervention attempted” and in [6] to the appellant having had “youthful
treatment for the same offence on 11 previous occasions”. Those errors seem to
7 Tawhiri v Police [2013] NZHC 1320.
8 Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
9 Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010.
10 Whatarau v Police HC Napier CRI-2008-441-24, 25 September 2008.
11 Iwikau v Police [2013] NZHC 2515.
12 Curry v R [2010] NZCA 491.
13 Daw v R [2011] NZCA 581.
14 Kati v Police HC Napier CRI-2011-449-19, 11 July 2011.
15 Newton v Police [2012] NZHC 2829.
have been prompted by the erroneous report to the Court. However the judgment was accurate in noting that the appellant had had 13 previous burglary matters in the Youth Court.
[21] I do not consider that those mistakes of fact are of the kind which has led to error in the choice of the starting point of 15 months. The District Court notes on sentencing make it clear that the Judge has adopted the starting point by reference to Columbus. Consequently, contrary to the submissions for the appellant, there does not appear to have been any element of uplift in the selection of that starting point. Any consideration of the appellant’s prior burglary history appears to have been considered as a distinct matter separate from the starting point, in particular in the discussion of “off-set” which is relevant to the second ground of appeal.
[22] While it would have been open to the Judge to select a lower starting point than 15 months I consider that that starting point was nevertheless within the range available in the circumstances of this case. There is no proper basis for this Court to intervene on appeal.
Second ground of appeal
[23] The appellant commenced by emphasising dicta of the Court of Appeal in Pouwhare v R16 and in Churchward v R17 and the importance of acting in accordance with New Zealand’s international obligations under the United Nations Convention on the Rights of the Child. Ms Epati submitted that this was not a case where the appellant’s prospects for rehabilitation were beyond salvation and nor was it a situation where the offending was so grave that the scope to take account of youth “may be greatly circumscribed”.18
[24] While acknowledging that proceedings in the Youth Court do not result in a conviction, the respondents submitted that the outcome of those proceedings, if of
direct relevance, may be considered and given weight citing R v Rongonui.19 It was
16 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
18 Churchward v R, above n 17, at [84].
19 R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742 at [93].
submitted that the earlier Youth Court appearances for the same offence were of direct relevance and would have warranted a modest uplift.
[25] If there had been no prior history of burglary by the appellant then the appellant’s submission that there had been a failure by the Judge to allow any discount for the appellant’s youth would have been very persuasive. However the approach of Judge Adeane was that, while there should be a discount for youth, such discount would be off-set by the uplift reflecting the appellant’s history of burglary.
[26] In effect the Judge treated any uplift for the appellant’s history of burglary and the youth discount as cancelling each other out.20 I agree with Ms Guthrie that any uplift would have been in the order of no more than 10 to 15 per cent and I consider that a discount for youth would have been of a similar amount. Consequently I do not consider that the set-off approach involved an error on the Judge’s part. A youth discount was factored into his analysis.
Conclusion
[27] For the reasons explained above I do not consider that the Judge made any error which would warrant this Court intervening. The appeal is dismissed.
Brown J
20 See R v Rongonui, above n 19, at [95].
19
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