TAFENGATOTO v NEW ZEALAND POLICE [2018] NZHC 2452

TAFENGATOTO v NEW ZEALAND POLICE [2018] NZHC 2452 [18 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-231[2018] NZHC 2452BETWEEN ROBIN TAFENGATOTOAppellantAND NEW ZEALAND POLICERespondentHearing: 18 September 2018Appearances: H C W Redwood and A A Prasad for AppellantE J Smith for RespondentJudgment: 18 September 2018ORAL JUDGMENT OF PALMER JSolicitors:Public Defence Service, AucklandMeredith Connell, AucklandWhat happened?[1] Mr Robin Tafengatoto, aged 41, pleaded guilty to burgling a residential housein Herne Bay, Auckland, early in the morning of Monday 22 January 2018. He enteredthe house by pulling out slats in a secured window. While the victim was asleep in hisbedroom, Mr Tafengatoto searched the home and removed electronic items, jewelleryand a wallet to the value of $12,500. CCTV footage from a neighbour's housecaptured Mr Tafengatoto near the property at 6.11 am with a backpack. When he wasarrested on an unrelated matter on 5 February 2018, he was found in possession of aSkyCity Premium Rewards card that had been in the wallet. He pleaded guilty on hisfirst appearance.[2] At the time of the offending, Mr Tafengatoto was on bail for two charges ofunlawfully taking a motor vehicle in October and December 2017. The latter unlawfultaking involved Police attempting to stop him due to his speed. Once stopped, he ranoff when approached by Police. He has 23 previous convictions for burglary whichall occurred in the mid to late-1990s, apart from one in 2013, and convictions for anumber of other offences.District Court decision[3] On 27 March 2018, Mr Tafengatoto was sentenced to 11 months' imprisonmenton the two charges of unlawfully taking a motor vehicle. On 4 July 2018, in theAuckland District Court, Judge B A Gibson sentenced him to an additional two and ahalf years' imprisonment for the burglary charge.1 The Judge took a starting point oftwo and a half years' imprisonment, uplifted that by three months for his offending onbail and six months for his previous convictions and discounted the result by 25 percent for an early guilty plea. The result totalled two years and six months'imprisonment. Judge Gibson considered, if Mr Tafengatoto had been sentenced forthe burglary at the same time as the other two charges, there would have been acumulative sentencing. He did not accept any trimming of the sentence was requiredon that basis. Mr Tafengatoto appeals his sentence.1 New Zealand Police v Tafengatoto [2018] NZDC 14877.Law of appeal[4] Section 250(2) of the Criminal Procedure Act 2011 requires me to allow anappeal if, for any reason, there is an error in the sentence imposed and a differentsentence should be imposed. Otherwise I must dismiss the appeal.Submissions[5] Mr Redwood, for Mr Tafengatoto, submits the Judge erred in adopting astarting point which was manifestly excessive. He submits an appropriate startingpoint would have been one and a half years. He submits the Judge erred in failing toprovide credit for genuine remorse. He also submits the Judge erred in failing to makean adjustment for the totality of the offending and an uplift of eight to nine months ona one-and-a half year sentence would have been appropriate but the sentences couldalso have been concurrent. As a result, he submits the end sentence was manifestlyexcessive in the circumstances.[6] Ms Smith, for the Crown, submits I should consider in the round whether theoverall sentence, in totality, for the burglary and the other two charges is appropriate.She acknowledges there may have been some elements of double-counting in relationto previous convictions, though she submits there is good authority for a significantuplift for previous convictions in these circumstances. She submits any discount forremorse could not have been more than five per cent here, she submits the startingpoint was within the available range and the end sentence was within range for thethree offences so the appeal should be dismissed.DecisionStarting point[7] In Arahanga v R, the Court of Appeal stated:2This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied. Burglaryof a domestic residence is a significant aggravating feature at sentencing dueto the heightened risk of confrontation with the occupants. Dwelling house2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).burglaries at the relatively minor end of the scale tend to attract a starting pointof approximately 18 months' to two years and six months' imprisonment.[8] Here, there was one burglar and one house burgled. The occupant was asleepat the house at the time, in the early hours of the morning. No weapon was used.There was a search of the house and possessions of reasonable value were taken. Ihave considered the case law referred to by counsel:(a) I consider the offending is more serious than that in Bates v R, where astarting point of 18 months was adopted for an opportunistic burglarywhere the offender knew the victims were absent for an unpredictabletime.3(b) I consider it is similar to, but less serious than, that in Stepanicic v R,where the Court of Appeal adopted a starting point of two years'imprisonment for two burglaries including one where the offenderentered the sleeping victim's bedroom.4 It is similar to, but slightlymore serious than, that in New Zealand Police v Toala where a startingpoint of two years' imprisonment was adopted for a burglar who kickedin the front door, cut himself leaving blood around the house and stole$5,000 of property but where no occupant was home.5 The offendingwas also perhaps similar to that in Wilkinson v R, where a starting pointof two years' imprisonment was adopted for burglary by two offenders,while the occupants were absent during the day, of possessions of asimilar value as well as a new Mercedes.6(c) The offending here was less serious than that in Rigby v R where astarting point of two years and four months' imprisonment was adoptedfor two burglaries, one where the occupants confronted three burglars.7And it was less serious than that in Marsh v R, a single burglary ofproperty worth $90,000 by four burglars, in which the Court of Appeal3 Bates v R [2016] NZCA 456.4 Stepanicic v R [2015] NZCA 211.5 Toala v New Zealand Police [2013] NZHC 3270.6 Wilkinson v R [2016] NZHC 1845.7 Rigby v R [2018] NZHC 478.before Arahanga v R referred to a starting point of two years and threemonths' imposed on a co-offender who acted as lookout and loaded thecar with stolen goods.8[9] Having regard to these authorities, I consider the starting point adopted byJudge Gibson was too high. A starting point of two years' imprisonment would havebeen more consistent with them. The difference is more than "tinkering".Remorse[10] Judge Gibson accepted Mr Tafengatoto was regretful about the offending. Ihave read his letter and agree. Mr Tafengatoto said he was homeless, living in his car,points to a number of unfortunate family circumstances and affirms his Christianvalues. The Judge considered Mr Tafengatoto's expression of remorse, and hispersonal circumstances, were adequately taken into account by the full 25 per centdiscount for the guilty plea, or nine months' imprisonment. The evidence against MrTafengatoto was relatively strong so he was not necessarily entitled to the full 25 percent for the guilty plea alone but I consider the approach taken by the Judge wasavailable to him. I do note the Judge did not quite give Mr Tafengatoto the fulldiscount of 25 per cent of the 30-month sentence which, strictly speaking, was ninemonths and three weeks. This, in itself, would not necessarily justify disturbing thesentence, but the error in the starting point requires a new calculation of the discountin any case.Totality[11] Finally, I agree the sentence for burglary in January 2018 is appropriatelycumulative on the sentences for unlawfully taking motor vehicles in October andDecember 2017. It is discrete offending in terms of both time and the nature of theoffending. The question is whether the overall sentence is a proper reflection of MrTafengatoto's offending in totality, which I deal with later.8 Marsh v R [2010] NZCA 445 at [10]–[11].Revised sentence[12] I first approach the sentencing afresh, on the basis of the starting point of twoyears I consider appropriate for the burglary. I uplift that by the adjustment made byJudge Gibson, which I agree was appropriate, of three months for Mr Tafengatoto'soffending on bail. Since I am making the calculation afresh, I impose an uplift of fourmonths for previous convictions rather than six months. All but one of MrTafengatoto's burglary convictions date to the 1990s, as the Judge acknowledged. Theresult is two years and seven months which I discount by eight months, which is justover 25 per cent, for remorse and the guilty plea. The result is imprisonment for oneyear and eleven months. If the burglary had been the lead charge, I consider an upliftof eleven months for the two unlawful takings charges would have been appropriate.[13] In terms of totality, Judge Gibson referred to Downs J's analysis of theauthorities on unlawfully taking a car in Wood v Police.9 Downs J observed "a singleunlawful taking charge can give rise to a starting point of at least 18 months'imprisonment, if the offence has a significant aggravating feature or features".10 Therewere two takings here and one involved speed. On the basis of my revised startingpoint, I agree that making the untrimmed sentence for burglary cumulative on the 11-month sentence for the two unlawful takings charges yields an appropriate overallsentence on the basis of totality.[14] I uphold the appeal. I quash the sentence under appeal and instead sentenceMr Tafengatoto to imprisonment for one year and 11 months, cumulative upon hissentence on 27 March 2018 for the two unlawful takings charges. Counsel doesanything arise from that? [Nothing did.]Palmer J