TUKAHARAINA v NEW ZEALAND POLICE [2019] NZHC 2139

TUKAHARAINA v NEW ZEALAND POLICE [2019] NZHC 2139 [29 August 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-13CRI-2019-425-14CRI-2019-425-15CRI-2019-425-16CRI-2019-425-17[2019] NZHC 2139BETWEEN HAIMANA ADAM TUKAHARAINAAppellantAND NEW ZEALAND POLICERespondentHearing: 26 August 2019Appearances: J A T Ross for AppellantS N McKenzie for RespondentJudgment: 29 August 2019JUDGMENT OF CULL J[1] Mr Tukaharaina appeals his sentence of 21 months' imprisonment.1 MrTukaharaina was sentenced on charges of burglary,2 failing to answer District Courtbail by failing to appear,3 breach of home detention,4 and the re-sentencing on thecancellation of home detention.5 The re-sentencing included the initial charge ofburglary, as well as six charges of theft under $500.61 New Zealand Police v Tukaharaina [2019] NZDC 4636.2 Crimes Act 1961, s 231(1)(a), maximum penalty 10 years' imprisonment.3 Bail Act 2000, s 38(b), maximum penalty one year's imprisonment or $2,000 fine.4 Sentencing Act 2002, s 80S, maximum penalty one year's imprisonment or $2,000 fine.5 Sentencing Act 2002, s 80F.6 Crimes Act 1961, s 223(d), maximum penalty three months' imprisonment.[2] The grounds upon which Mr Tukaharaina appeals are that the sentencing Judgedouble-counted a burglary charge and failed to give a discount for youth. Those errors,he says, led to a manifestly excessive sentence.Factual background[3] Mr Tukaharaina is now aged 20 but was 19 at the time of the offending. On13 September 2018, he committed two burglaries. The first burglary on Yarrow Streetinvolved Mr Tukaharaina, aged 19, and a 14 year old associate. They cut the rubberlining from a bedroom window, removed a glass pane, and entered the house. Theysearched the house extensively and ransacked it to the point where household itemswere thrown throughout the house. Drawers were pulled out and emptied onto thefloor, and clothing was pulled out of the wardrobe. A television, computer, binoculars,perfumes, jewellery and cash were taken.[4] At 8.30 pm on the same day, Mr Tukaharaina, along with four other associates,committed a burglary on Inglewood Road. The group removed rubber seals to analuminium window, smashed a small window in the back door, and gained entry to thehouse, where an alarm sounded and they fled from the address.[5] The police executed a search warrant on the associates' address, and as a resultlocated a gold band signet ring and passports stolen from the Yarrow Street address.On 10 October 2018, the police executed a search warrant on Mr Tukaharaina'saddress, and jewellery, perfume, and a computer stolen from the Yarrow Street addresswas located. Mr Tukaharaina admitted that he had committed the burglary.[6] On 3 October 2018, Mr Tukaharaina was sentenced to six months' homedetention for the Inglewood Road burglary and minor theft charges, with an expirydate of 2 April 2019. On 19 October 2018, he interfered with the electronicallymonitored device. When the security company came to investigate, they discoveredMr Tukaharaina had departed from the address.[7] He was not apprehended until 7 November 2018. Mr Tukaharaina was chargedfor breach of home detention and bail, as well as being charged with the Yarrow Streetburglary.District Court decision[8] Mr Tukaharaina was sentenced on his breach of home detention, his failing toappear in Court, the Yarrow Street burglary, and was resentenced on a cancellation ofthe home detention sentence of six months.[9] The Judge recognised that the initial sentencing Judge had set the starting pointfor the Inglewood Road burglary at between 18 months and two and a half years'imprisonment. The Judge recognised that he had to undertake an assessment as towhether the initial sentencing Judge would have taken a different starting point if hehad known about the Yarrow Street burglary, which happened prior to the InglewoodRoad burglary.[10] The Judge then fixed a starting point of 20 months' imprisonment, whichincorporated the two burglary charges. He then made discounts for youth and for aguilty plea. This reduced it to an end sentence of 13 and a half months' imprisonment.[11] The Judge then turned to consider the breach of home detention, noting themaximum penalty was one year's imprisonment. He took into account MrTukaharaina's immediate guilty plea and lack of history of breaching sentences, andfixed a starting point of three months' imprisonment. He then gave a discount for theguilty plea, which left two months and one week's imprisonment. The Judge imposeda concurrent sentence of one month for the charge of failing to appear in the DistrictCourt.[12] This resulted in a sentence end point of 15 months and three weeks. The Judgethen applied the totality principle and considered that the sentence should be reducedto 15 months.[13] The Judge then calculated there was 11 months' imprisonment remaining ofthe original sentence and that if he were to add 15 months to the 11 months, the endsentence in totality would be too high.[14] The Judge then dealt with the sentencing as follows:(i) On the cancellation of the home detention and resentencing onthe Inglewood Road burglary charge, he fixed a sentence of 11months' imprisonment.(ii) On "the additional charge of burglary", i.e. the Yarrow Streetburglary, including the breach of home detention, he referred tohis earlier finding of 15 months' imprisonment, but reduced thatsentence to nine months. This was to be served cumulativelyon the 11 months' imprisonment, being a total of 20 months'imprisonment.(iii) On the breach of the home detention sentence, he added onemonth cumulative to the nine months, bringing the totalsentence to 21 months' imprisonment.(iv) The Judge then imposed release conditions, as well as specialrelease conditions, because the sentence total was under twoyears' imprisonment. They are set out at the end of thisdecision.Approach to appeal[15] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion. An appeal against sentencemust be allowed if the Court is satisfied that, for any reason, there is an error in thesentence imposed and a different sentence should be imposed.7 The focus is on thefinal sentence and whether that was in the available range, rather than the exact processby which it was reached.8Grounds of appeal[16] Mr Tukaharaina contends that the Judge made two errors, which led to amanifestly excessive sentence. Those errors were:7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.8 Ripia v R [2011] NZCA 101 at [15].(a) the Judge double-counted the Inglewood Road burglary charge to fix astarting point of 20 months' imprisonment for both burglaries andcombined this figure to the sentences for breach of home detention andfailing to answer District Court bail to arrive at a sentence of 15 months;and(b) the Judge failed to give a discount for youth, when he imposed asentence for the charge of breach of home detention.[17] The Crown submits that the end sentence of 21 months is not excessive for theoffending, and these charges. The Judge took a totality approach to sentencing, andthe additional imposition of imprisonment could not be criticised as being manifestlyexcessive.Analysis[18] The sequence of events of the offending was confused because the burglaries,even though they occurred on the same day, were not dealt with together. TheInglewood Road burglary, being the second burglary in time, was the focus of the firsthome detention sentence imposed. It was not until Mr Tukaharaina was apprehendedfor his breaches of home detention and failing to appear in Court that he was chargedwith the Yarrow Street burglary. The task facing the Judge was to determine a sentencefor the active charges, including the fresh charge of burglary and to resentence on thecancellation of the home detention sentence, which involved the Inglewood Roadburglary.[19] There are two discrete issues on this appeal, which require a determination asto whether there has been an error in the sentence imposed. Turning, then, to the firstissue, and that is whether the Judge double-counted the burglary charge, I considerthat the Judge adopted an approach which implicitly double-counted the InglewoodRoad burglary. I accept, therefore, Mr Ross' submission for Mr Tukaharaina that theInglewood Road burglary was counted twice.[20] First, the Judge fixed a starting point of 20 months' imprisonment for both theYarrow Street and Inglewood Road burglaries.9 He acknowledges this by stating that"when I fixed the starting point for the burglary at 20 months' imprisonment, I haveincorporated the two burglary charges."10 The Judge then applied the youth and guiltyplea credits to reduce the 20 months to 13 and a half months' imprisonment.11[21] Second, when the Judge dealt with the resentencing for the breach of homedetention, he noted that the home detention sentence remaining was one of 11 months'imprisonment (as Mr Tukaharaina had served two weeks of the home detentionsentence) and, after considering the matter in totality, he imposed a sentence of 11months' imprisonment "on the application to cancel and resentence."12[22] In doing so, the Judge overlooked that the Inglewood Road burglary was theprimary component of the initial six-month sentence of home detention, which was anunderstandable mistake, given that the first Judge did not have the Yarrow Streetburglary before him. This sentence, then, became a term of 11 months' imprisonmenton resentencing, but was also taken into account on the starting point for the twoburglary charges of 20 months' imprisonment.[23] The Judge observed that if the home detention sentence of 11 months wasadded to the 15 months' imprisonment for the burglary charges, the end sentence wastoo high. Applying the totality principle, he fixed a total sentence of 20 months'imprisonment instead of 26 months. To that was added one month cumulative for thebreach of the home detention sentence, resulting in the total sentence of 21 months'imprisonment, which I consider to be too high in these circumstances.[24] Before I consider the imposition of a different sentence, I deal with the secondground of the appeal and that is the failure to give a discount for youth.[25] Mr Tukaharaina was 19 years old when he committed these offences, and theJudge took into account that a discount for youth in relation to both burglary charges9 Tukaharaina, above n 1, at [11].10 At [19].11 At [12].12 At [22].was appropriate. However, when considering the charge of breach of home detention,the Judge overlooked a discount for youth, although took into account the immediateguilty plea and the lack of history of sentences for breach, in giving a sentence of twomonths and one week's imprisonment.13 I consider a further discount for youth onthat sentence was required.A different sentence should be imposed[26] Mr Ross submits that imprisonment was warranted and that a starting point of20 months' imprisonment for the two burglary charges was unremarkable. He submitsthat a small uplift of two months was justified for the theft charges, which leads to aglobal starting point of 22 months' imprisonment.[27] I accept his submission that credits were appropriate to account for MrTukaharaina's youth, his mental health issues, and his guilty pleas. It should be notedthat the Judge who initially sentenced Mr Tukaharaina to six months' home detentionacknowledged his mental health issues. Mr Ross submits that a discount of eightmonths (35 per cent) is appropriate, which would result in a term of 14 months'imprisonment. I consider this to be appropriate.[28] For the remaining charges of breach of home detention and of failing to answerDistrict Court bail, the starting point of three months' imprisonment is robust butwithin range. In the same way as above, I accept that a discount should be given forMr Tukaharaina's youth, mental health issues, and guilty pleas. I consider a one monthdiscount, as submitted by Mr Ross, is appropriate, reducing this to a term of twomonths' imprisonment.[29] The above adjustments result in a final sentence of 16 months' imprisonment.This represents a reduction of five months' imprisonment, which I consider to be anappropriate final sentence.13 Tukaharaina, above n 1, at [15]–[16].Post-sentence circumstances[30] During the appeal hearing, Mr Ross handed up a letter written by MrTukaharaina, together with a letter from his mentor from the Ka Awatea IntensiveMentoring and Coaching Programme. In both of those documents, Mr Tukaharainawished to express his regret in relation to his criminal offending. Having completedthe mentoring and coaching programme, he has reflected on the full impact of hisoffending on his family, the community, and his life. He now acknowledges that hewas struggling with a number of problems, with which he was unable to cope at thetime. There have been traumatic events for Mr Tukaharaina in his own family whilsthe has been in custody. His mother has received an adverse medical diagnosis and hisfather, who came to visit him from Australia, was killed in a fatal accident on MrTukaharaina's birthday.[31] Mr Tukaharaina is no longer affiliated with his former associates and intendsto have his facial tattoo removed on release. He is seeking a formal qualification toenable him to find employment. He arranged for both of these documents to bepresented to the Court in support of his sentence appeal. I record that these were notavailable to the District Court Judge.[32] I mention Mr Tukaharaina's personal and family background matters becausethey are relevant to the rehabilitative purpose as stipulated in the principles ofsentencing under the Sentencing Act 2002.14 It is plain that Mr Tukaharaina hasbenefitted from the mentoring and counselling he has received in custody, with hisrealisation of the effect of the offending on his victims and the impact it has had onhis family. Importantly, he now wishes to change his lifestyle and seek remunerativeemployment in the community so he can support his family.Conclusion[33] I find that the Judge has erred tacitly in double-counting the Inglewood Roadburglary and failed to give a discount for youth on the active charge of the breach ofhome detention sentence.14 Section 8(i).[34] The sentence of 21 months' imprisonment is quashed, and I substitute asentence of 16 months' imprisonment. In reaching this conclusion, I have borne inmind the purposes and principles of the Act, including the need to hold MrTukaharaina accountable and responsible for the harm he has caused, the interests ofthe victims, but also his personal circumstances and the rehabilitative purpose insentencing.Result[35] The appeal is allowed.[36] The sentence of 21 months' imprisonment is quashed. A sentence of 16months' imprisonment is substituted.[37] Because the sentence total is under two years' imprisonment, the standardrelease conditions will apply, as well as the following release conditions:(a) Mr Tukaharaina is to attend an assessment for alcohol and drugtreatment as directed by a probation officer and to attend and completeany counselling, treatment or programme as recommended by theassessment and as directed by and to the satisfaction of a probationofficer.(b) Mr Tukaharaina is to attend and complete an appropriate programme,counselling and/or such treatment as deemed appropriate to thesatisfaction of a probation officer. The specific details of theprogramme will be determined by a probation officer.(c) Mr Tukaharaina will reside at an address approved by a probationofficer, and is not to move to any new residential address without theprior written approval of a probation officer.Cull JSolicitors:Preston Russell Law, Invercargill for Respondent