Taiatu v R [2014] NZHC 1787 (30 July 2014)

Last Updated: 25 August 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-000021 [2014] NZHC 1787

BETWEEN	JOSHUA ANTHONY TAIATU Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2014
Appearances:	M H McIvor for Appellant T A Needham for Respondent
Judgment:	30 July 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 30 July 2014 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date...........................}

TAIATU v R [2014] NZHC 1787 [30 July 2014]

Introduction

[1] Joshua Taiatu pleaded guilty in the District Court at Hamilton on one charge each of burglary, theft, reckless driving, unlawful taking and failing to stop and two charges of breaching release conditions. Judge Connell imposed a total sentence of

30½ months’ imprisonment.¹ This included two years’ two months’ imprisonment

on the burglary charge. Mr Taiatu appeals his sentence on the ground that it is manifestly excessive as a result of the Judge allowing a discount of only 13.33 per cent for his guilty plea on the burglary charge.

[2] The charges followed a series of events in January and February 2014: Mr Taiatu and an unknown associate broke into a residential address in Hamilton, stole a set of car keys and converted the vehicle in the garage. Nothing else was taken but there was damage to the garage door. A little over a week later Mr Taiatu put $50 worth of fuel into the stolen car and drove off without paying. Later the same day he was noticed by police speeding along State Highway 1. A lengthy police chase ensued, during which Mr Taiatu was posted at speeds in excess of 140 kph, including a speed of over 100 kph in a 50 kph speed zone. The breach of release conditions related to Mr Taiatu’s failure to notify his parole officer of a change of address following his release from prison in April 2013.

The sentencing

[3] The Judge took the burglary charge as the lead offence. Having noted the extent of Mr Taiatu’s previous convictions (10 for burglary and 55 for other types of dishonesty) and the effect on the complainants of the burglary, the Judge said:

[13] The burglary is the most troubling matter, and as the lead offence for you, it is having to take account of your past convictions that does not help. I look at this burglary and I consider the starting point is one of two years’ imprisonment. I intend to uplift that by four months to take account of your previous convictions and an uplift again for the fact that another crime was committed after the burglary, which is the conversion. I will deal with those concurrently but there is another month uplift to take account of the conversion and also factoring into that is the issue of totality of offending and totality of sentence.

[14] So you will understand that on that burglary today I am imposing a term of two-and-a-half years and I am going to reduce that by four months to

¹ NZ Police v Taiatu Hamilton DC CRI2014-019-00060, 25 March 2014.

take account of your guilty plea. So that is a two year two month term on the burglary.

The appeal

[4] Mr McIvor, for Mr Taiatu, outlined the circumstances of the guilty plea: Mr Taiatu first appeared on 10 February 2014, was refused bail and immediately pleaded to the unlawful taking charge. The other matters were still outstanding; Mr McIvor had no information about the burglary charge at that stage. Two weeks later, however, Mr Taiatu entered guilty pleas on all the remaining charges.

[5] In the normal course Mr Taiatu might justifiably have expected a 25 per cent discount.² Mr McIvor pointed out that a 25 per cent discount had been given on the reckless driving and breach of release conditions charges, but that the discount given on the burglary charge amounted to only 13.33 per cent. He suggested that the lower discount on the burglary charge might have been inadvertence by the Judge.

[6] Ms Needham, for the Crown, resisted any suggestion of inadvertence by the Judge. She submitted that the circumstances of the burglary charge justified a lower discount and, in any event, the end sentence was well within range for the offending; as a result, even if a higher discount could or should have been given there was no

basis on which to interfere with the sentence.³ Ms Needham pointed to the strength

of the Crown case, including a fingerprint in the house, and Mr Taiatu’s refusal to name his associate as justifying a lower discount. She also submitted that the uplift for previous convictions was lower than might otherwise be expected so that, overall, the end sentence was appropriate.

[7] Ms Needham is, of course, correct that all of the circumstances needed to be taken into account in assessing the appropriate discount to be given and there was, undoubtedly, a strong case against Mr Taiatu on the burglary. But so, too, was there a strong case against him on the other charges, including those for which a 25 per cent discount was given for a guilty plea.

[8] I do not, however, agree that refusing to name a co-offender is a relevant circumstance as contemplated by Hessell. A defendant who acknowledges his own

² _{R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607; (2010) 24 CRNZ 966 (SCNZ).}

³ Tutakangahau v R [2014] NZCA 279 at [26] – [27], [30] and [36].

guilt at a very early stage satisfies the purpose for which a discount is given and should not have the recognition of that act reduced because he failed to implicate his co-offender. The purpose of the discount is not to recognise co-operation with the police; instead positive acts of cooperation may attract a separate, sometimes substantial, discount.⁴ In any event, this is not a point that the Judge identified as relevant in his sentencing process.

[9] In all the circumstances I consider that the discount of 13.33 per cent was well below what could reasonably have been expected and was inconsistent with the Judge’s approach to the other charges.

[10] The real issue, however, is whether, notwithstanding the 13.33 per cent discount, the end sentence was still within range. The burglary and the car conversion, which were treated concurrently with the burglary sentence uplifted to reflect totality, was serious offending. Although there is no guideline judgment for burglary (recognising the range of circumstances that this charge produces), the Court of Appeal has given a good indication as to where burglaries of various kinds

might usually sit on the continuum. In Arahanga v R it observed that:⁵

Dwellinghouse burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months’ imprisonment.

[11] Ms Needham identified several cases which she suggested were similar in type to the present and which indicated that a starting point of two years’ imprisonment was within range in this case.⁶ In all of those cases the defendants had stolen goods, typically worth several thousand dollars.

[12] In the present case the Judge identified loss to the complainants as a relevant factor:

[9] I do not know whether you have seen it or not but the victim of your burglary has completed a victim impact statement. Their financial loss as they assess it is over $3,000. You are making an offer of $500 today and I will take that into account but you do not really have the means to put them

⁴ _{R v Hessell, above n 2; Ong v R [2012] NZCA 258; ABC v Police [2013] NZHC 1487}

⁵ _{Arahanga v R [2013] 1 NZLR 189, [2012] NZCA 480 at [78]..}

⁶ Keen v R [2014] NZCA 299; Toala v Police [2013] NZHC 3270; R v Columbus [2008] NZCA

192.

back to where they were before you broke into their property with another person.

[13] I have concerns over that approach. Neither counsel could identify for me the source of the $3,000 referred to by the Judge. However, the victim impact statement contained the following:

We have been in discussion with our Insurance Company and these items cannot be claimed for however our losses because of the burglary and as at

28 February 2014 are as follows:

Inability to invoice clients due to time restraints = $780

Time wasted sorting insurance, police, rental cars, etc = $1600

A fuel voucher for my mother to run me around when I couldn’t get

a rental car = $50

Replacement number plates = $60

Signwriting on vehicle = $500

Insurance for rental vehicle = $60

Transport back from dropping rental cars off $11.20

[14] Those items total $3,061.20 and I infer that this was the source of the Judge’s reference to the complainants’ assessment of a loss of $3,000. However, it was not a figure that could properly be treated as a direct loss from the burglary. Nothing apart from the car keys and the motor vehicle (which falls under the unlawful taking charge) were taken from the property. There was no basis on which the Judge could have assessed the assertion of losses of over $3,000, not even an indication of the hourly rate used and no receipts. This is not to be taken as any criticism of the complainants in the matter. It is simply an observation that the Judge did not have before him material on which he could have treated the burglary as involving a loss of $3,000 for the purposes of sentencing.

[15] The reference to $500 would appear, from the Police summary of facts, to relate to the theft of petrol ($50) and the complainants’ insurance excess; the summary of facts refers to an attached reparation schedule but that appears not to be on the Court file.

[16] As Ms Needham pointed out there was damage to the garage door as a consequence of the burglary so, inevitably, there was some monetary loss that could be identified as a direct result of the offence. However, it is impossible to know the cost of that repair.

[17] In sentencing it is usual for judges to identify the direct loss resulting from the burglary as a factor indicating the appropriate level of the starting point. In this case, the Judge had no material on which to conclude that the burglary resulted in any direct financial loss. That takes the case out of the category of cases Ms Needham relied on. A starting point of 18 months would have been more appropriate.

[18] In my judgment the starting point taken by the Judge was higher than it should have been as a result of the erroneous reliance on the $3,000 loss resulting from the burglary. That, coupled with the lower than usual discount for the guilty plea satisfies me that the sentence was manifestly excessive, even allowing for the relatively low uplift for the previous convictions. Had a starting point of 18 months been taken, uplifted by four months for previous convictions and a further two months for totality, the provisional starting point before the discount would have been two years. From that a discount of 25 per cent (six months) would have resulted in an end sentence on the burglary charge of 18 months.

Result

[19] The appeal is allowed. The sentence of two years two months on the burglary charge is quashed and substituted with a sentence of 18 months’ imprisonment.

[20] There is no change to the sentences imposed for the other charges, nor to the disqualification for reckless driving or the reparation order.

P Courtney J