TAUTARI v POLICE DEPARTMENT [2018] NZHC 2483

TAUTARI v POLICE DEPARTMENT [2018] NZHC 2483 [21 September 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000036[2018] NZHC 2483BETWEEN GRAY TAUTARIAppellantAND POLICE DEPARTMENTRespondentHearing: 14 September 2018Appearances: C Bean for AppellantAAR Pell for the RespondentJudgment: 21 September 2018JUDGMENT OF MUIR JThis judgment was delivered by me on Friday 21 September 2018 at 3.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Counsel/Solicitors:C Bean, Barrister, HamiltonARA Pell, Almao Douch, HamiltonIntroduction[1] Mr Tautari appeals the sentence given by Judge Burnett in the HamiltonDistrict Court.1 Mr Tautari has pleaded guilty to one charge of burglary.2 JudgeBurnett sentenced Mr Tautari to two years and six months' imprisonment.Facts of the offending[2] Between 8 am 6 pm on 15 May 2018, Mr Tautari went to the victim's addressin Burbush. The victims were not at home and were unknown to him. He threw aconcrete ornament through the front window to obtain access. He took over 100 items,including heirloom jewellery. The total value of the items stolen exceeded $23,000.Mr Tautari's DNA was discovered at the scene. He pleaded guilty.District Court decision[3] The experienced Judge started by acknowledging the harm done to the victims,in particular their shock and fear on finding their house broken into, and the significantcost of cleaning up and repairs. She then turned to Mr Tautari's pre-sentence report.She noted the writer assessed Mr Tautari's risk of reoffending as high—given hislengthy criminal history and 20 previous convictions for burglary—and the risk ofharm to the community as medium to high. The report had nevertheless recommendedhome detention which she also noted.[4] There was a slightly unusual feature in this respect. The report had initiallyrecommended home detention at the address where Mr Tautari was on EM bail. Butfollowing its provision, Mr Tautari had to move to a new address as a result ofarguments with the occupants of the EM bail address. Corrections then filed asupplementary letter advising that, as the address assessed in the report was no longeravailable, it could now only recommend imprisonment. The writer noted, however,that, should the Court wish to have home detention available as a sentencing option, aremand of three weeks would be required to assess the new address.1 New Zealand Police v Tautari [2018] NZDC 14704.2 Crimes Act 1961, s 231, maximum sentence 10 years' imprisonment.[5] At the sentencing, counsel for Mr Tautari, Mr Bean, asked the Judge to adjournto allow for a further assessment. The Judge declined this request, as she consideredthat home detention was not an available sentence.[6] The Judge identified the following aggravating features of the offending:3(a) planning and premeditation, which she inferred from the factMr Tautari approached the house after the occupants had left,presumably knowing they were gone;(b) there was damage to the property, being the broken window;(c) the house was a residential dwelling; and(d) the high value of the goods stolen.[7] Having regard to these aggravating features and relevant case law,4 the Judgeidentified 24–28 months' imprisonment as an appropriate starting point, which shenoted was "moderately in [his] favour". She further noted that there was noconfrontation with the occupants, and, as the offending happened during the day, therewas less risk of that occurring. She nevertheless settled on a starting point of 28months' imprisonment.[8] She then applied an uplift of 12 months for Mr Tautari's previous convictions,followed by a discount of 25% for his early guilty plea. This came to a final sentenceof 2 years and 6 months' imprisonment. The Judge concluded by noting that, even ifthere had been a suitable address for home detention, the final sentence ofimprisonment excluded such a sentencing option.5 Furthermore she would not, in anyevent have considered it appropriate.3 Citing the case of R v Nguyen CA110/01, 2 July 2001, which identifies aggravating factors forburglary.4 The Judge cited Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; Dixon v Police [2013]NZHC 1469; Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010; and R vPovey [2009] NZCA 362.5 Sentencing Act 2002, s 15A.Appeal[9] The appellant appeals on two grounds. He says the starting point of 28 monthswas too high, and the uplift of 12 months for previous convictions was excessive.[10] The Criminal Procedure Act 2011 provides that the Court must allow theappeal if satisfied that, for any reason, there is an error in the sentence imposed onconviction, and that a different sentence should be imposed.6 In deciding whether toimpose a different sentence, the Court does not simply substitute its own view for thatof the original sentencing Judge.7 Rather, it must be shown that the sentence ismanifestly excessive or wrong in principle.8 The Court will not, ordinarily, intervenewhen the sentence is within the range that can be properly justified by acceptedsentencing principles.9 The focus is on the end result rather than the process by whichthe sentence was reached.10 In exceptional cases, it may nonetheless be necessary tocorrect a sentence that is within range (for example, where there has been anarithmetical error).11 In any other case, the Court must dismiss the appeal.12Appellant's submissions[11] Mr Bean suggests a starting point of 18 months to two years. He cites cases insupport of this figure, to which I will refer below. He further submits that the upliftfor previous convictions focused too myopically on a "cluster of offences" thatoccurred in 2007, for which community detention was imposed. He suggests a moreappropriate uplift was three months' imprisonment.Respondent's submissions[12] The respondent submits that the starting point was in range, given the largenumber of items taken and their significant value.6 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].8 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].9 Tutakangahau v R, at [36].10 At [36].11 At [36].12 Criminal Procedure Act 2011, s 250(3).[13] It further submits that, although her Honour's 12-month uplift for previousoffending was "stern", it was nevertheless in range for an offender with 20 convictionsfor burglary, and 96 previous convictions overall. The respondent concludes bysubmitting that the final sentence was not manifestly excessive for a burglaryinvolving such high value items, and for a twenty first burglary conviction.Discussion[14] The focus in a sentence appeal is on the final result. But, given this is arelatively simple sentencing, with only one charge, it is appropriate to look both at thestarting point and uplift, as those effectively dictate the final result.[15] As to the starting point, the Court of Appeal has observed that for low levelburglaries of a dwelling-house a starting point in the region of 18–30 months is oftenappropriate.13 The starting point of 28 months identified by the Judge was, therefore,near the top of that possible range.[16] Mr Bean refers this Court to three cases in support of his argument that thestarting point was too high.(a) In Stepanicic v R, the appellant committed two residential burglaries.14One took place at 5.45 am, while a female victim was at the home inbed. The appellant gained entry through an unlocked door, went intothe victim's room and took various valuable items. Although the victimawoke she though the defendant was her son and went back to sleep sono altercation occurred. The second took place shortly afterwards, andinvolved breaking into another house where another victim was alsoasleep. Again valuable items were taken. The victim awoke to thesound of an alarm and got out of bed, at which point the appellant ranfrom the address. The Court of Appeal quashed a sentenced of seven13 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].14 Stepanicic v R [2015] NZCA 211.years' imprisonment.15 It regarded a starting point of two yearsimprisonment as appropriate.(b) In Newton v Police, the appellant entered a residential home during theday and stole a television and jewellery, to the value of $2,000.16 Thesentencing Judge adopted a starting point of two years' imprisonment.On appeal, Kós J considered that the burglary was purely opportunistic,and that there was no risk to the occupants of the house. In suchcircumstances, Kós J considered an appropriate starting point was 15months' imprisonment.(c) In Marsters v Police, Whata J considered that a global starting point of16 months was appropriate for burglary, receiving, being unlawfully ina closed yard and possession of an offensive weapon. The offendinginvolved the appellant and an associate breaking into a house andstealing items valued at $700.17[17] In addition, I note the following decisions referred to by the Judge:(a) In Dixon v Police, the appellants committed two burglaries in theafternoon, on different days.18 The offending involved forced entry, butthe value of the goods taken was low. Cooper J considered a startingpoint of 18 months for the more serious of the two burglaries wouldhave been appropriate, with an uplift of four months for the other.19(b) In Dickerson v Police, the appellant broke into a home during the dayand took items worth $14,000.20 There was no confrontation, and hedid not cause significant damage to the property. Nor did the itemsstolen have any particular sentimental value. Simon France J15 Which originally included a charge of causing grievous bodily harm with intent to avoid arrest forwhich a subsequent conviction appeal was allowed. This left a seven year concurrent sentence forburglary in place.16 Newton v Police [2012] NZHC 2829.17 Marsters v Police [2014] NZHC 3273.18 Dixon v Police [2013] NZHC 1469.19 At [16].20 Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010.considered that 18 months' imprisonment was an appropriate startingpoint.[18] Mr Bean submits that the current offending is less serious than in Stepanicicand Marsters, and at a similar level to Newton.[19] I accept that the offending is in one sense less serious than in Stepanicic, giventhat in that case the burglaries occurred by night and there was actual confrontation onone occasion. I accept also that Stepanicic involved two burglaries. But the value ofthe goods taken was appreciably less than in the present case.[20] I do not accept that the offending was less serious than that in Marsters. Thatcase likewise involved a domestic burglary and breaking and entering, but the valueof the items taken was again significantly less than in the present case and nor werethey of sentimental value.[21] Further, while the offending in the present case is superficially similar to thatin Newton, in arriving at his 15-month starting point, Kós J was significantlyinfluenced by the fact that it was opportunistic offending by a first-time burglar, andthat there was limited impact on the occupants.21 And again the value of the itemstaken was considerably less than those taken here.[22] I consider the present offending is closest to that in Dickerson v Police wherethe burglary occurred by day with little chance of confrontation, but the value of thegoods taken was, as in this case, substantial. However, the value here was greateragain, none of the items have been recovered and the impact of the loss of goods withsentimental attachment marks the offending as more serious. Moreover, the numberof goods taken was itself high (approximately 100). As Mr Pell submits, the victimwas "cleaned out". In addition there was significant damage to the property.[23] I do not overlook Regan v Police on which Mr Pell substantially relies and inwhich Nation J upheld a start point of three years' imprisonment in respect of a21 Newton v Police [2012] NZHC 2829 at [18].domestic burglary involving high value electronic equipment.22 However, unlike thepresent case Regan involved offending by night with a higher prospect ofconfrontation. Significantly also what the District Court Judge identified as thestarting point in fact included aggravating factors relating to Mr Regan personally.[24] Having regard to all these cases, I consider a starting point of 24 months'imprisonment was appropriate (that is approximately 15 per cent less than the figureadopted by the Judge). That margin is, however, sufficient to justify the interventionof this Court as it exceeds the "tinkering" proscription.[25] Mr Bean also submits that the uplift of 12 months was also too high. Therespondent accepts it was stern, but argues it was within range.[26] Mr Tautari has a lengthy criminal history, with 20 previous convictions forburglary. I note that the last of these was in 2012, a cluster of five occurred in 2007,and the balance were approximately four years earlier again. It is, therefore, as thepre-sentence report comments, that Mr Tautari tends to offend in sporadic bursts or"sprees". This is likely to coincide with drug use, which is also noted in the report.[27] However, even allowing for this factor the uplift was one which, albeit stern,was properly available to the Judge. In Skipper v R for example, the offender hadseven previous convictions for burglary and had committed the offence while on bail.23The Court of Appeal considered an uplift of 18 months appropriate. And in R vColumbus, where the offender had 89 previous convictions of which 13 were forburglary and another 34 for property related offences the Court of Appeal considereda one year uplift justified.24Result[28] In my view the starting point adopted by the Judge has led to an end sentencewhich was manifestly excessive.22 Regan v Police [2016] NZHC 161.23 Skipper v R [2011] NZCA 250 at [27].24 R v Columbus [2008] NZCA 192 at [20].[29] I allow the appeal and substitute a sentence of two years and three months'imprisonment recognising the same 25 per cent discount for guilty plea adopted by theDistrict Court Judge. Having regard to the quality of the Police case, that discountmay itself be regarded as generous.__________________________Muir J