TAUKIRI v NEW ZEALAND POLICE [2021] NZHC 3103

TAUKIRI v NEW ZEALAND POLICE [2021] NZHC 3103 [17 November 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-000029[2021] NZHC 3103BETWEEN KARLENE TAUKIRIAppellantAND NEW ZEALAND POLICERespondentHearing: 17 November 2021Appearances: H Redwood for AppellantJ J Harvey for RespondentJudgment: 17 November 2021ORAL JUDGMENT OF EATON JIntroduction[1] Karlene Taukiri pleaded guilty to charges of burglary1 and possession ofmethamphetamine,2 and on 2 September 2021 was sentenced by Judge Krebs to12 months' imprisonment.3 She appeals that sentence. The sole ground of appeal isthat the sentence should have been commuted to one of home detention.Facts[2] The facts are as follows. On 19 December 2020, a little after 7 pm, Ms Taukiri,along with two associates, drove into the driveway of the victim's property inNew Lynn in Auckland. The victim had left her house secured with her CCTV system1 Crimes Act 1961, s 231(1)(a).2 Misuse of Drugs Act 1975, s 7(1)(a) and (2).3 Police v Taukiri [2021] NZDC 17521.running. Ms Taukiri removed the security camera at the front door by cutting thepower and data cables with a pair of wire cutters. She then handed the camera to oneof her associates, who concealed it in a bag in the rear of the car. Ms Taukiri gainedentry into the rear of the property by breaking through a side gate. She and herassociates then used a hammer and a screwdriver to attempt to open the lockboxcontaining keys to the property.[3] It was at that point the victim was alerted to her property by motion sensorswhich sent a message to her cell phone. The victim returned home and she disturbedthe offenders who, as a result, pushed past her, leaving her address, taking the camerawith them. The victim made an insurance claim but the District Court decision recordsthat she remains $550 out of pocket.[4] In relation to the methamphetamine offending, the summary discloses on17 June 2021, Ms Taukiri was arrested for an unrelated matter and on a search of herhandbag the police located a snap-lock bag containing 0.79 grams ofmethamphetamine.District Court decision[5] In sentencing Ms Taukiri, Judge Krebs identified the burglary charge as thelead offence. He accepted the offending was at the lower end of the scale as theoffenders had not entered the building and that the value of the property stolen wasrelatively modest. However, he noted Ms Taukiri had caused damage to the propertyand he acknowledged the fact that the owner returned home during the course of theburglary, which carried an obvious risk of violence. The Judge said, and I agree, thathe was sure that methamphetamine was what drove this offending. He recognised thepresence of premeditation and ongoing emotional harm to the victim. The Judge tooka starting point of 18 months on the burglary charge.[6] The Judge then considered the pre-sentence report. The preparation of thatreport had been delayed by repeated non-compliance by Ms Taukiri with ProbationServices. She eventually attended for interview and a report was completed. She wasassessed as a low ability to comply with any community-based sentence. The Judgeagreed with that assessment, describing it as demonstrated by her previous convictionsand her history of non-compliance with Corrections. The report writer neverthelessassessed her risk of harm to others as low. The Judge disagreed. He considered therisk of her causing harm to others was moderate to high if she continued to behave inthe same way. The report assessed her risk of reoffending as medium.[7] In sentencing Ms Taukiri the Judge gave a credit of 20 per cent for her guiltyplea which was not entered at the first reasonable opportunity. The Judge is recordedas factoring into that discount occasions when she had failed to appear in Court andwarrants for her arrest had been issued. It is not entirely clear as to what was beingreferred to in that reference.[8] His Honour noted the previous convictions for burglary and receiving in 2019for 2018 offending. He also referred to previous dishonesty and methamphetaminerelated offences and multiple breaches of community-based sentences. Nevertheless,there was no uplift deemed appropriate to recognise her previous convictions.[9] The Judge did give a further two months' credit described as recognisingMs Taukiri's acceptance of responsibility for her offending and her acknowledgementof her need to reform and rehabilitate, combined with her expressions of remorse.[10] That reduced the sentence to one of 12 months' imprisonment which the Judgeimposed to be served concurrently with a sentence of two months' imprisonment forthe methamphetamine charge.[11] The next stage in the sentencing process was to consider whether that sentenceought to be commuted to home detention. The Judge dealt with that relatively briefly.He said that because of her recent burglary conviction the least restrictive outcomewas a sentence of imprisonment. The Judge emphasised the need to deter Ms Taukiriand hold her accountable, as well as referencing the need to ensure that her well-expressed determination to reform herself had teeth. The Judge wanted to ensure thatshe had time to reflect in prison as to the need to reform and address her drugdependency.[12] Post-release conditions were imposed for a period of six months. Thoseconditions required Ms Taukiri not possess or consume drugs or alcohol following herrelease. They required her to attend and complete an alcohol and drug rehabilitationprogramme and any other programme as directed. In relation to the burglary charge,the Judge further ordered that she make an emotional harm reparation payment in thesum of $200.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence in this Court may only be allowed if I am satisfied there hasbeen an error in the imposition of the sentence and that a different sentence ought tohave been imposed.4[14] As the Court of Appeal stated in Tutakangahau v R, "an appellate court willnot intervene where the sentence is within the range that can properly be justified byaccepted sentencing principles".5 It is only appropriate for this Court to intervene andsubstitute its own views if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles.6[15] Home detention is an alternative to a short-term sentence of imprisonment.7 Itis a sentence that is only available to a sentencing Court if satisfied that the purposesfor which the sentence is being imposed cannot be achieved by any less restrictivesentence and that the Court would otherwise impose a short term sentence ofimprisonment.8[16] The Court of Appeal in Manikpersadh v R said:9[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of a4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].7 Sentencing Act 2002, s 15A(1)(b).8 Section 15A(1)(a).9 Manikpersadh v R [2011] NZCA 452.fettered discretion, with appellate review focusing on the identification oferror, if any, in the court below."[17] I also refer to the Court of Appeal's observations in Fairbrother v R, that havebeen referenced in the appellant's submissions.10[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other" SubmissionsAppellant's submissions[18] In an admirably focused submission, Mr Redwood submits that the Judge erredin failing to impose the least restrictive outcome that was appropriate in thecircumstances, being a sentence of home detention. He makes no challenge to thestarting point or the discounts that were adopted by the Judge.[19] Mr Redwood submits that the Judge erred by failing to consider s 16 of theSentencing Act and by failing to engage in a considered and principled approach asdescribed in Fairbrother. Mr Redwood further argued that the Judge did not explicitlyconsider whether denunciation and deterrence could be met by a sentence of homedetention. In his submission, the factors for and against imposing that sentence werenot sufficiently identified and weighed. Mr Redwood submitted that the Judgewrongly prioritised deterrence and gave insufficient consideration of thecountervailing purposes of sentencing.[20] In support of a sentence of home detention Mr Redwood focused on what hedescribed as the lower level of seriousness of this offending and that Ms Taukiri hasnot previously been sentenced to imprisonment, home detention or communitydetention. He also emphasised a gap of about two years between her most recent10 Fairbrother v R [2013] NZCA 340, citing R v D (CA253/2008) [2008] NZCA 254 at [66].dishonesty conviction and the present offending and he relied on the Corrections reportrecommendation of a sentence of community detention and intensive supervision.[21] Further, Mr Redwood submitted Ms Taukiri has a suitable address available toher outside of Auckland, in Palmerston North. He argued that an electronicallymonitored sentence at that address, being well away from Auckland, would provideMs Taukiri with a fresh start in a supportive environment with both her children andtheir father, who is her ex-partner but with whom she has a healthy relationship.[22] Finally, he submitted that her acceptance of responsibility and willingness tochange did support a sentence of home detention as opposed to a sentence ofimprisonment.Respondent's submissions[23] On behalf of the police in this case, Ms Pairman in written submissions, andMr Harvey in oral submissions, submitted that the Judge's decision to decline tocommute the sentence to home detention was both justifiable and correct. It wassubmitted that, while the Judge might not have explicitly reviewed all the purposesand principles of sentencing, he had turned his mind to them.[24] It was submitted that Ms Taukiri has demonstrated a clear pattern of dishonestyoffending, which appears to be escalating in seriousness and she has a history of non-compliance. In those circumstances, it was argued that it was appropriate to impose ashort sentence of imprisonment to denounce and deter Ms Taukiri's offending.[25] Mr Harvey submitted that whilst this might have been a finely balanced case,it had not been demonstrated that the Judge fell into error.[26] In the written submissions it was also argued on behalf of the police that homedetention would necessarily require Ms Taukiri to engage with Corrections and tofollow court orders but that her history did not instil confidence that she would do so.It was submitted that there were some adverse comments in the pre-sentence report,particularly by reference to 20 offences committed whilst on bail and a prior failure tocomply with curfew requirements.[27] The upshot from the respondent's perspective being the Judge did not err andthe sentence of imprisonment was appropriate.Analysis[28] The starting point and discounts adopted by the Judge in reaching an endsentence of 12 months' imprisonment in this case are not challenged. The sole issueon appeal is whether there was error in the exercise of the discretion not to commutethis sentence to one of home detention.[29] Imprisonment is the most restrictive sentence in the hierarchy of sentencingoptions in the Sentencing Act. The Court of Appeal has said that imprisonment is "ameasure of last resort".11 Section 16(1) of the Act provides that when considering theimposition of a sentence of imprisonment, the Court "must have regard to thedesirability of keeping offenders in the community as far as that is practicable andconsonant with the safety of the community". The Court must not impose a sentenceof imprisonment unless satisfied the purposes and principles of sentencing cannototherwise be achieved.12[30] Although not referenced in submissions today, I also refer to s 17 of the Actwhich provides that nothing in the Act limits the discretion of the Court to impose asentence of imprisonment on an offender if the Court is satisfied on reasonablegrounds the offender is unlikely to comply with any other sentence that it couldlawfully impose and would otherwise be appropriate. In my view, Ms Taukiri's historydoes not permit the imposition of a sentence of imprisonment pursuant to s 17.[31] There is no presumption either for or against commuting a sentence ofimprisonment to one of home detention13 and it has been recognised that the dividingline in exercising judgement to commute a sentence of imprisonment to homedetention can be difficult and the principles and purposes of sentencing that must betaken into account sometimes do point in opposing directions.14 I think that reflects11 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].12 Sentencing Act 2002, s 16(2).13 R v Vhavha [2009] NZCA 588 at [29], adopted in Osman v R [2010] NZCA 199 at [20] and Doolanv R [2011] NZCA 542 at [37].14 Palmer v R [2016] NZCA 541 at [19].the position of the respondent in this case. The appellate focus in a case of this natureis on identifying error and not on revisiting the merits of the exercise of thediscretion.15[32] In determining that a sentence of imprisonment was appropriate in this case,the Judge said:16[13] The next question is whether I commute that to a sentence of homedetention. I have not made an uplift for your previous convictions, but the factthat you had a burglary conviction so recently before the current burglaryconviction means that the least restrictive outcome I can impose here is one ofimprisonment. I need to deter you from behaving in this way in the future. Ineed to hold you accountable. I also need to ensure that your well-expresseddetermination to reform yourself has some teeth. I want to ensure that youhave time to reflect while you are in prison about the need to reform and theneed to address your drug dependency.[33] It is therefore apparent that the Judge did have regard to the need to impose theleast restrictive outcome appropriate in the circumstances, and to the sentencingpurposes of holding Ms Taukiri accountable, deterring her from offending, and toassist in her rehabilitation.[34] But it is clear it was the recent burglary conviction that led the Judge toconclude a sentence of imprisonment was necessary to meet the principles andpurposes of the Act. The Judge did not consider whether those principles could beachieved by a sentence of home detention nor, in my view, did he have regard to thedesirability of keeping Ms Taukiri in the community as far as that is practicable andconsonant with the community's safety.[35] I agree that the relevant factors for and against the imposition of homedetention were not in this case sufficiently identified and weighed in determiningwhich sentence was better qualified as the least restrictive to impose, and, in my view,that did amount to error.[36] The sentencing purposes of denunciation, accountability and deterrence werehighly relevant factors in this case. It is clear that Ms Taukiri was not deterred from15 Fairbrother v R, above n 12, at [29]-[31].16 Police v Taukiri, above n 3.committing further burglary offending as a result of her previous sentences. However,the most recent previous conviction for burglary and receiving occurred in February2019 (for offending in December 2018), which is over two years prior to hersentencing. She was then sentenced to 100 hours' community work for both offences,which indicates that they were at lower level seriousness offending. Although hercriminal history begins with shoplifting and has progressed to burglary in 2018 and2021, I do not agree with the prosecution that the criminal history demonstrates anescalating level of seriousness, such that Ms Taukiri poses an elevated risk to thecommunity of either harm or of reoffending that cannot be adequately managed byhome detention.[37] The most restrictive sentence that has been imposed on Ms Taukiri in the pastis 100 hours' community work and intensive supervision. That sentence was imposedon a raft of charges in March 2018. When convicted of burglary in February 2019 shewas sentenced to 100 hours' community work.[38] In my view, the Court ought to be reluctant to resort to the most restrictivesentence for a subsequent comparable offence. That is not to say that a sentence ofimprisonment in those circumstances is presumptively inappropriate. Rather, that toleap-frog other sentences in the hierarchy of sentencing options does require carefulanalysis by a sentencing judge. As I have indicated, I am not satisfied in this case thatanalysis was undertaken.[39] There is no doubt home detention is recognised as a sentence carrying aconsiderable measure of denunciation and deterrence.17I do think it significant that MsTaukiri was, as a consequence of her failure to appear, remanded in custody for aperiod of three weeks prior to her sentencing. She had not previously been subject toa custodial remand. When I have regard to her personal circumstances, including herage, that she is a mother of three children and that she has a drug addiction that needsto be addressed, I have no doubt that that the custodial remand had a salutary effectrelevant in considering both denunciation and deterrence.17 R v Iosefa [2008] NZCA 453 at [41]; Fairbrother v R, above n 10 at [29].[40] I do acknowledge that she has shown an unwillingness to comply with courtorders. The Community Corrections files outline the various appointments that shehad missed and the "minimal effort" that she made to engage with Corrections for thepurpose of a pre-sentence report. I note that the report writer commented that the keycontributory factors to her offending were her "attitude of entitlement, in which shecontinues to disregard court-imposed sentences and orders, her drug use and her anti-social peers". But on the other hand, the report-writer did assess her risk of re-offending as medium, her risk of harm as low, and notwithstanding an assessment ofher ability to comply with further community-based sentences as low, a sentence ofcommunity detention and intensive supervision was recommended.[41] Standing back and looking at her history and the material now available, I donot accept the submission that her history of non-compliance is at a level that makesa sentence of home detention inappropriate.[42] Ms Taukiri has an address available to her in Palmerston North. I am told thatnotwithstanding the fact that she has been in custody now for a period of almost threemonths that address is still available. I will deal with that at the conclusion of theseremarks. The pre-sentence report records that it is her ex-partner's address and thathe has consented to having her live there on home detention. He was assessed assuitable, there were no safety or welfare concerns with that address. Ms Taukiri toldthe report writer that she has a good relationship with her ex-partner, who is the fatherof her children. She described him as "her rock" and "her main support".[43] I accept the submission of Mr Redwood that a sentence of home detention tothe Palmerston North address would have the positive effect of removing her from heranti-social peers in Auckland, where all her previous offending has occurred, and doesplace her in an environment where she can remain in her children's lives and benefitfrom her ex-partner's support.[44] In my view, the potential support network, coupled with the responsibilities ofcaring for others are such that a relocation to Palmerston North is directly relevant toher rehabilitative prospects and relevant in reducing her risk of re-offending and thelikelihood of her complying with conditions of detention. In my view, these were notmatters that were properly considered when the decision was made by the Judge notto commute the sentence to home detention.[45] I am prepared to treat her assertions of a desire for a fresh start as beinggenuine. The report writer records her expressed willingness to make an effort tochange her old ways, to rid herself of her old associates and to surround herself withher new whānau. I do not disregard the delays in her engaging with Corrections but,in light of her candour at interview, I acknowledge that she does see this as anopportunity for change and I find that a sentence of home detention would provide herwith community-based rehabilitative services to assist her in overcoming hermethamphetamine addiction, which everyone is in agreement is at the root of heroffending.[46] The Court of Appeal has recognised that where there is motivation to changeand a realistic prospect of change, there are obvious benefits in imposing a sentenceof home detention, both for the offender and for society.18[47] In my view the least restrictive appropriate outcome in the circumstances ofthis case was a sentence of home detention. That is a sentence which satisfies theapplicable purposes and principles of sentencing and provides Ms Taukiri with theopportunity to address her offending and rehabilitate herself.[48] Mr Redwood has indicated that he will make enquiries today to confirm thatthe Palmerston North address is still available. Subject to receiving confirmation thataddress is available I will allow the appeal. Both the 12 months sentence ofimprisonment in relation to the burglary charge and the two-month concurrentsentence in relation to the methamphetamine charge will be quashed. I will substitutethat sentence with a sentence of four months' home detention. That will be subject tothe conditions as outlined in the Corrections report. In relation to themethamphetamine offence I will substitute a conviction and discharge.18 R v Hill [2008] NZCA 41 at [37].[49] I have fixed on a sentence of four months' home detention recognising theperiod that Ms Taukiri has spent in custody which equates to nearly three months'custodial remand.[50] The order that she pay $200 for emotional harm reparation will stand.ADDENDUM[51] Mr Redwood has, by memorandum, now confirmed the address of [.........]remains available. I therefore confirm the appeal is allowed as recorded at [48] above.[52] Further, Ms Taukiri will be subject to the standard detention conditions as setout in s 80C(2) of the Sentencing Act 2002 and to the following special conditionsimposed pursuant to s 80D of the Act:(a) Not to possess, consume or use any alcohol or drugs not prescribed toher.(b) To attend and complete an appropriate alcohol and drug rehabilitationprogramme to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme shall be determined by aProbation Officer.(c) To undertake and complete any other programme or counsellingdirected by and to the satisfaction of a Probation Officer. To attend anassessment for a Departmental Programme as directed by a ProbationOfficer. To attend and complete any counselling, treatment orprogramme as recommended by the assessment as directed by and tothe satisfaction of a Probation Officer.[53] Ms Taukiri will be subject to post-detention conditions as set out at [43] abovefor a period of six months.[54] I am advised that Ms Taukiri is presently held at Auckland Regions Women'sCorrection Facility and, as a consequence of COVID-19 Level 3 restrictions,Corrections will not be in a position to implement arrangements for Ms Taukiri'stransportation to Palmerston North before Friday 19 November 202. The Registrarhas received confirmation from counsel for Ms Taukiri and for the police that there isno objection to an order that the appeal is allowed on the terms set out but with aneffective date of Friday 19 November 2021. I make that order accordingly....................................................Eaton JSolicitors:BVA The Practice, Palmerston NorthCopy to:Harry Redwood, Barrister, Auckland