TINOMANA v POLICE [2017] NZHC 794

TINOMANA v POLICE [2017] NZHC 794 [26 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000075[2017] NZHC 794IN THE MATTER OF an appeal against sentenceBETWEEN CELESTINE TINOMANAAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Counsel: N C Baier and G H Vear for the AppellantK Li for the RespondentJudgment: 26 April 2017(ORAL) JUDGMENT OF EDWARDS JSolicitors: Ministry of Justice (Public Defence Service), AucklandKayes Fletcher Walker Limited, AucklandIntroduction[1] Mr Tinomana pleaded guilty to two charges of burglary, two charges ofdishonestly using a document, two charges of theft (under $500), one charge ofwilful damage, and one charge of breach of community work. He was sentenced tothree years' imprisonment for that offending on 10 February 2017.1[2] Mr Tinomana appeals that sentence on the grounds that the Judge adopted astarting point which was too high, and gave insufficient credit for Mr Tinomana'ssuccessful involvement in a restorative justice conference, his remorse, and relativelyyoung age.The offending[3] The eight charges related to two sets of offending which are referred to as the"Manukau" charges and the "Auckland" charges respectively.[4] The Manukau charges were for burglary,2 theft (under $500),3 wilful damage(two charges),4 and breach of community work.5[5] Mr Tinomana entered a guilty plea to one charge of wilful damage on4 March 2016 and entered guilty pleas to the remaining Manukau charges on22 September 2016, one week before the stand-by trial was due to commence.[6] The Manukau charges arise out of events on the evening of 6 February 2016.At about 7.00 pm that evening, Mr Tinomana approached the first victim's vehiclewhich was parked on the road. Mr Tinomana made his way to the front passenger'sdoor and punched the glass window causing the glass to shatter.1 R v Tinomana [2017] NZDC 2744.2 Section 231(1)(a), Crimes Act 1961, maximum penalty 10 years' imprisonment.3 Sections 219 and 223(d), Crimes Act, maximum penalty three months' imprisonment.4 Section 11(1)(a), Summary Offences Act, maximum penalty three months' imprisonment/finenot exceeding $2,000.5 Section 71, Sentencing Act 2002, maximum penalty three months' imprisonment.[7] Mr Tinomana then continued onto the property of a nearby residence wherethe occupants were both home. Neither of these occupants were known toMr Tinomana. The female victim was in the kitchen while her two young childrenwere in the living-room. Mr Tinomana opened a ranch slider door which had beenleft partially open. He stepped inside the dining-room and demanded car keys fromthe female victim. He then saw her cellphone on the arm of the couch and picked itup and placed it in his pocket. He asked the female victim for money.[8] The female victim screamed out to her husband (the male victim) who wasasleep in the bedroom. Mr Tinomana left the property when the male victim yelledat him to leave, throwing the cellphone on the floor as he exited the house. The malevictim followed Mr Tinomana outside to ensure he had left. Mr Tinomana turnedtowards the male victim holding an unknown object in his hand and charged at him.The male victim then retreated into the house and locked the door. Mr Tinomanapunched the door with his right fist and kicked it with his right foot, causing theglass to shatter into the interior of the building. The police were called andMr Tinomana was located a short time later.[9] The Auckland charges comprise one charge of burglary and two charges ofdishonestly using a document. These charges arise out of events on 1 August 2016.At about 5.30 pm that evening, Mr Tinomana and a male associate were walkingalong the fence-line that separates the Cornwall Park Reserve from the residentialproperties. Mr Tinomana's associate climbed over the fence and entered the backyard of a residential property, while Mr Tinomana waited by the fence. Theassociate opened a French door which had been left unlocked, entered the house andwalked into the living area. A wallet and a laptop and a $50 note, which was sittingon a table in the living area, was taken. The laptop was subsequently retrieved. Astolen credit card taken from the wallet was used by Mr Tinomana that evening inorder to order food and purchase cigarettes.Personal circumstances[10] Mr Tinomana was 22 years of age at the time of the Manukau offending. Hehas a criminal record which includes convictions for burglary, aggravated robbery,shoplifting, interference with a motor vehicle, and unlawfully being in a building andenclosed yard.[11] The pre-sentence report noted Mr Tinomana's harmful use of alcohol,relationship issues, and willingness to use violence as factors contributing toMr Tinomana's offending. The risk of re-offending was considered to be escalating,with the risk of harm to others being assessed as moderate.[12] Mr Tinomana attended a restorative justice conference with the owner of thecredit card and laptop taken in the course of the Auckland offending. Mr Tinomanaapologised several times for the harm that he had done as a result of his offending.That apology was accepted by the victim who said she considered Mr Tinomana tobe genuinely remorseful and hoped that he would not offend again.District Court decision[13] The District Court Judge took the Manukau burglary charge as the leadcharge and adopted a starting point of two years, six months' imprisonment for thatcharge. The Judge noted the seriousness of the offending, the fact that Mr Tinomanahad broken into a residential property, and the presence of the occupants, as theaggravating factors justifying the chosen starting point.[14] The Judge applied a one month uplift for the wilful damage of the carwindow, and a further uplift for Mr Tinomana's criminal history. The Judge thenapplied a discount of 10 per cent for Mr Tinomana's guilty pleas which resulted in anend sentence of two years, six months' imprisonment for the Manukau charges.[15] The Judge considered whether imprisonment or a community-based sentencewas appropriate. She considered that the aggravating features of Mr Tinomana'soffending required a custodial sentence.[16] The Auckland burglary charges were treated separately from the Manukaucharges. Mr Tinomana was sentenced to a period of six months' imprisonment forthose charges, cumulative on the sentences imposed for the Manukau charges.Concurrent sentences of three months' imprisonment were imposed in relation toeach charge of dishonestly using a document.[17] Mr Tinomana was convicted and discharged on one charge of shoplifting, andone charge of breach of community work. A previous sentence of community workwas cancelled and substituted for a term of one month imprisonment which was tobe served concurrently.[18] The effective end sentence for all charges was three years' imprisonment.The Judge imposed special release conditions requiring Mr Tinomana to attendtreatment programmes as directed by the probation officer.Approach on appeal[19] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[20] In any other case, the Court must dismiss the appeal.6 An appeal court willnot intervene unless there is a material error, and if so, the appeal court will then goon to form its own view of an appropriate sentence.7[21] It is the end sentence which is the focus on an appeal, and not the route bywhich that sentence was determined.86 Section 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].8 R v Ripia [2011] NZCA 101 at [15].Starting point[22] Mr Tinomana submits that the starting point of two years, six months for theAugust offending was too high when compared to the starting points adopted incases involving comparable offending.[23] As the Judge identified, the aggravating features of the Manukau offendingwere the fact that it involved breaking into a residential dwelling; confrontation withthe occupants; turning to threaten the male occupant after initially departing from theproperty; and the smashing of the ranch slider window.[24] There is an issue about whether or not Mr Tinomana was holding a weaponwhen he charged the male occupant. The summary of facts, to which Mr Tinomanapleaded guilty, simply records that Mr Tinomana turned towards the male occupantwho was following him outside whilst "holding an unknown object". The summaryof facts also records Mr Tinomana's denial of being in possession of any weapons.The sentencing Judge did not refer to the use of a weapon as an aggravating featureof Mr Tinomana's offending and I consider she was right to do so. I havedisregarded this factor when comparing the culpability of Mr Tinomana's offendingto other cases of burglary.[25] In Arahanga v R, the Court of Appeal declined to set a tariff for burglary butstated that dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months to two years and six months'imprisonment.9[26] The burglaries involved in this case were at the minor end of the scale in myview. It follows that the starting point adopted by the Judge of two years, six monthswas at the very highest end of the scale.[27] In Heald v R, a starting point of two years, three months' imprisonment wasupheld on appeal.10 That case involved Mr Heald and an accomplice enteringthrough an open door of a dwelling house where a young woman and her son were9 Arahanga v R [2012] NZCA 480 at [78].10 Heald v R [2014] NZCA 143.present. Property was demanded and when the woman refused, one of the twooffenders slid a weapon out of his sleeve. A small safe was taken from the house.[28] In R v Lee,11 a starting point of two years, six months' imprisonment wasadopted for a charge of aggravated burglary. That case also involved two offendersand the brandishing of a screwdriver as a weapon during the confrontation with theoccupants of the dwelling house.[29] In my view, the actual use of an identified weapon, the fact that two offenderswere involved, and the value of property taken in both those cases makes theoffending more serious than the offending in Mr Tinomana's case, and a lowerstarting point than that adopted in both those cases is accordingly justified.[30] Mr Tinomana relies on the Court of Appeal decision in Stepanicic v R.12Mr Stepanicic had committed two residential burglaries in the early hours of themorning. In the first burglary he entered the house through an unlocked door andmade his way into the female victim's bedroom while she was asleep. He crawledpast the foot of her bed and took her backpack, shoulder bag, shoes, keys and wallet.He also took a cellphone, video-camera and another set of keys from the kitchenbench. The victim saw the offender crawling along the floor at the foot of her bedbut thought it was her son so went back to sleep.[31] The second burglary occurred soon afterwards and also involved entry into aresidential address in the early hours of the morning. A female victim was at homein bed at the time. Mr Stepanicic broke into the house by ripping off latches to thekitchen window. He took several items of property, including two wallets, a camera,a laptop, a pair of oval nine carat gold earrings, a set of keys with photos of thevictim's son on them and the car alarm and car key on it, a bag and a Playstation 3gaming console. The appellant set off a car alarm at that address which awoke thevictim who went to investigate. The Court of Appeal considered an appropriatestarting point to be two years' imprisonment for both burglaries.11 R v Lee CA242/01, 26 February 2002.12 Stepanicic v R [2015] NZCA 211.[32] In McFall v Police, a starting point of 21 months was substituted on appeal.13That case also involved two burglaries of residential properties. In the first burglary,Mr McFall had smashed a glass doorway to gain entry into the house, search severalbedrooms, throwing drawers and sideboards around. He took three New Zealandpassports, a 42 inch television, an X-box console, an acoustic guitar, a Mac Book Prolaptop and an iPad. In the second burglary, Mr McFall smashed a window to gainentry into the house, an alarm sounded, and a laptop and several items of footwearwere taken.[33] The fact that Mr Tinomana's offending involved an actual confrontation withthe occupants of the house, causing them and their children great distress, is a featureof his offending which makes it more serious than either Stepanicic or McFall.However, in Stepanicic the starting point was set for two burglaries rather than one,and there was property taken in both Stepanicic and McFall, whereas no propertywas taken in the present case.[34] The appellants also referred to Jones v R, which involved three more seriousburglaries than in this case. A three year starting point was adopted.14[35] Finally, the appellant placed great weight on Tepania v Police.15 In that case,a starting point of between 22 to 24 months' imprisonment was consideredappropriate on appeal. That case involved one charge of burglary where Mr Tepaniahad entered a residential property in the early hours of the morning and disturbed thevictim. A struggle had ensued. No property was stolen but the victim sufferedinjuries during the struggle. The Crown submits that this case is somewhat of anoutlier. Even so, the starting point adopted in that case suggests the two years, sixmonths adopted by the sentencing Judge in Mr Tinomana's case was too high.[36] Taking all of these cases into account, I consider a starting point of two yearswas appropriate in the circumstances. It follows that a starting point of two years,six months' adopted by the Judge was outside the applicable range.13 McFall v Police [2015] NZHC 2095.14 Jones v R [2012] NZCA 273.15 Tepania v Police [2013] NZHC 2327.[37] The sentencing Judge applied an uplift of one month for the damage to thevehicle window. (The appellant originally submitted that the Judge had imposed acumulative sentence for this offending and considered that there had been an error inthat approach. However, the sentence was concurrent and on that basis the appealground is not pursued.). Such an uplift is appropriate in my view, as is the twomonth uplift for prior convictions.[38] This brings the sentence to two years, three months' imprisonment prior toany discount for mitigating factors (which I consider next), and prior to the discountfor a guilty plea.Mitigating factors[39] Mr Tinomana submits that the Judge failed to give proper or sufficient creditfor mitigating factors in determining the sentence for the Manukau charges.Specifically, he says a discount should have been given for his remorse, youth, andattendance at the restorative justice conference.[40] The Judge referred to all of these factors in her sentencing notes but adiscount for them is not expressly addressed in relation to the Manukau charges.[41] Attendance at the restorative justice conference was only in respect of theAuckland charges; the victims of the Manukau charges having declined to participatein such a conference. It seems likely that the sentence for the Auckland chargesalready reflects a discount for attendance at this conference, but in any respect thesentence for those charges is not the subject of appeal. I do not consider a discountfor attendance at the restorative justice conference is appropriate for the Manukaucharges and there is no error in the Judge not applying such a discount.[42] The Judge specifically stated that the age of Mr Tinomana at the time of theoffending had been taken into account in determining the appropriate sentence.Although a youth discount may be available for offenders even older thanMr Tinomana in some cases,16 there is little evidence that Mr Tinomana's offending16 Raroa v R [2014] NZCA 57 at [187].was as a result of a developing maturity or due to his relatively young age. The twomonth uplift applied by the Judge for Mr Tinomana's criminal history may alsoalready reflect a discount for youth. I do not consider a further discount isappropriate in those circumstances.[43] In terms of remorse, counsel for Mr Tinomana submits that he wrote a letterto the Court expressing his deep remorse for his offending and seeking anopportunity to turn his life around. That letter was produced this morning. In thatletter, Mr Tinomana states that he is adamant that given another chance, he will turnhis life around, and expresses a desire to get into the work force and settle down.Counsel submits that this is the first letter of remorse of this type written to the Courtby Mr Tinomana. Although a specific discount for attendance at the restorativejustice conference for the Manukau charges is not warranted, Mr Tinomana'sexpressions of remorse at that conference suggest that the sentiments expressed inthe letter are genuine. Some observations made in the pre-sentence report alsosuggest that Mr Tinomana shows some insight into the causes of his offending whichbodes well for rehabilitative efforts.[44] However, as Crown counsel emphasises, it is the end sentence which matterson appeal and not the individual components of that sentence. The Crown says anydiscount available for remorse would be offset by the fact that the guilty plea to theManukau offending came very late in the day, and the 10 per cent guilty pleadiscount must be seen as generous in those circumstances. I do not discount thatfactor.[45] Nevertheless, weighing all these factors in the round, I considerMr Tinomana was entitled to a small discount for remorse and rehabilitation, and atwo month discount would have been appropriate in the circumstances.[46] Application of that discount to the two years and three months reached earlierresults in a sentence of two years and one month imprisonment. The 10 per centdiscount for the guilty plea then needs to be applied, resulting in an end sentence ofapproximately 23 months' imprisonment.Result[47] The appeal is allowed. The sentence of two years, six months' imprisonmentfor the burglary charge (CRN 16092001756) is quashed and replaced with a sentenceof 23 months' (or one year, 11 months) imprisonment.___________________Edwards J