R v TONY TAURIMA [2003] NZCA 83 (10 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/03

THE QUEEN

v

TONY TAURIMA

Coram:Keith J

McGrath J

Glazebrook J

Appearances: E Forster for Appellant

A Markham for Crown

Judgment (On the Papers) 10 June 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]	This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
[2]	The appellant was convicted of one count of burglary following his guilty plea on arraignment.He was sentenced on 15 October 2002 in the District Court at Napier to one year and nine months imprisonment.Leave to apply for home detention was refused.

Relevant facts

[3]

On 20 December 2001, the appellant and an associate burgled a Chinese takeaway outlet in Hastings.They smashed the glass doors of the premises, forced them open, and proceeded to steal a large quantity of frozen meats and a television set.The police spotted the offenders driving away from the burgled premises and pulled them over.The appellant gave no explanation for his actions at that time and pleaded guilty only at the late stage of arraignment.

[4]

The appellant has a large number of previous convictions, although over the past 15 years only four for burglary.The others during that period relate to dishonesty offences, breaches of court orders, drug offences, and driving while intoxicated.The appellant’s most recent convictions, in February 2001, were convictions for burglary and breach of periodic detention.The appellant was sentenced to eight months imprisonment for that offending and was granted home detention.

Reasons of the Sentencing Judge

[5]

When fixing the term of imprisonment to which he sentenced the appellant the sentencing Judge had regard to all the circumstances of the case, including the appellant’s appalling record of previous convictions, his personal circumstances and his (albeit late) guilty plea.The Judge went on to make the following observation on the issue of home detention

There will be no question here at all of home detention.You were granted that last time.You are back here again on a burglary and you have an appalling record of breaching Court orders; home detention is denied.

Grounds of appeal

[6]	The appeal is confined to a challenge to the Judge’s decision under s97(3) of the Sentencing Act 2002 to decline leave to the appellant to apply for home detention. Counsel for the appellant submits that the Judge erred in law by failing to consider whether leave to apply for home detention should be granted, but rather only whether home detention itself should be granted.It is said this was an incorrect approach for the Judge to take.It is further submitted that the Judge erred by failing to refer to a presumption in favour of granting leave to apply for home detention, and in failing to make specific reference to the matters set out in s97(3) that are relevant to the exercise of the discretion.
[7]	It is also submitted that leave to apply should have been granted in this case because of the following relevant factors in relation to the appellant:
•	He has been a good and reliable worker and would be easily employed again;
•	He has been in a stable de facto relationship for eight years.He has six young children and has access to and spends time with his two elder sons;
•	He spent a period on strict bail conditions from December 2001 until October 2002, without breaching those conditions, thus demonstrating his willingness to abide by Court orders;
•	He successfully served a period of home detention from April 2001 to June 2001 as part of his eight month sentence of imprisonment, showing his ability to satisfactorily complete a further term of home detention.
[8]	Counsel for the appellant finally submits that the Parole Board will be better placed to determine whether home detention should be granted or not than the Judge, after fully investigating and addressing all factors relevant to that decision.It is for the Parole Board to make that determination and it was appropriate for the Judge to grant leave to apply to enable the Board to do so.

Decision

[9]	The fact that the experienced District Court Judge who sentenced the appellant made the comment in the course of doing so that “there will be no question of home detention” is sufficient indication that he appreciated that his role involved a decision on whether to grant leave to apply.
[10]	Although the Judge did not specifically refer to a presumption in favour of granting leave there was no obligation on him to do so. While the starting point under s97(3) of the Sentencing Act 2003 is that leave to apply is generally to be granted, it will not be granted if there are factors concerning the nature and seriousness of the offending, the circumstances and background of the offender, what is said in victim impact reports, or otherwise, which satisfy the Court it would be inappropriate to grant leave:R v Hakiwai CA19/03, 30 May 2003.It is implicit that the Judge was aware of the statutory provision and that, for the reasons he gave he decided that it was inappropriate to grant leave to apply in this case.Similarly, there was no obligation on the Judge to make specific reference to the factors set out in s97(3) that are relevant to the decision to grant or decline leave.
[11]	We are satisfied that the Judge in the present case did sufficiently inform the appellant of the basic reasoning process behind the decision to decline leave.Two factors particularly influenced the Judge in reaching his decision.First, the Judge was not impressed by the fact that the appellant had previously been granted home detention but nonetheless re-offended in the same way as on the previous occasion.Secondly, the Judge was concerned about the appellant’s record of breaching the terms of Court orders and saw that as a further factor indicating that not appropriate.It was open to the Judge to give them the weight he obviously did: R v Husband and Heath [2000] NZCA 227; (2000) 18 CRNZ 229;R v Hakiwai (supra)
[12]	There is no basis for us to disturb the Judge’s decision.Indeed, in this case we would have had the same concerns that the Judge highlighted.We are also conscious that the appellant’s recent offending occurred despite being in employment and having a sound family life, and of the fact that he has been assessed as being at very high risk of re-offending.Protection of the public and deterrence were factors the Judge was entitled to and implicitly did treat as relevant in deciding that leave to apply for home detention was inappropriate in this case.
[13]	For these reasons the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington