Tautari v Police Department [2018] NZHC 2483 (21 September 2018)

Last Updated: 17 October 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000036 [2018] NZHC 2483

BETWEEN	GRAY TAUTARI Appellant
AND	POLICE DEPARTMENT Respondent

Hearing:	14 September 2018
Appearances:	C Bean for Appellant AAR Pell for the Respondent
Judgment:	21 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 21 September 2018 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:...............................

Counsel/Solicitors:

C Bean, Barrister, Hamilton

ARA Pell, Almao Douch, Hamilton

TAUTARI v POLICE DEPARTMENT [2018] NZHC 2483 [21 September 2018]

Introduction

[1] Mr Tautari appeals the sentence given by Judge Burnett in the Hamilton District Court.¹ Mr Tautari has pleaded guilty to one charge of burglary.² Judge Burnett sentenced Mr Tautari to two years and six months’ imprisonment.

Facts of the offending

[2] Between 8 am 6 pm on 15 May 2018, Mr Tautari went to the victim’s address in Burbush. The victims were not at home and were unknown to him. He threw a concrete ornament through the front window to obtain access. He took over 100 items, including heirloom jewellery. The total value of the items stolen exceeded $23,000. Mr Tautari’s DNA was discovered at the scene. He pleaded guilty.

District Court decision

[3] The experienced Judge started by acknowledging the harm done to the victims, in particular their shock and fear on finding their house broken into, and the significant cost of cleaning up and repairs. She then turned to Mr Tautari’s pre-sentence report. She noted the writer assessed Mr Tautari’s risk of reoffending as high—given his lengthy criminal history and 20 previous convictions for burglary—and the risk of harm to the community as medium to high. The report had nevertheless recommended home detention which she also noted.

[4] There was a slightly unusual feature in this respect. The report had initially recommended home detention at the address where Mr Tautari was on EM bail. But following its provision, Mr Tautari had to move to a new address as a result of arguments with the occupants of the EM bail address. Corrections then filed a supplementary letter advising that, as the address assessed in the report was no longer available, it could now only recommend imprisonment. The writer noted, however, that, should the Court wish to have home detention available as a sentencing option, a remand of three weeks would be required to assess the new address.

¹ New Zealand Police v Tautari [2018] NZDC 14704.

² Crimes Act 1961, s 231, maximum sentence 10 years’ imprisonment.

[5] At the sentencing, counsel for Mr Tautari, Mr Bean, asked the Judge to adjourn to allow for a further assessment. The Judge declined this request, as she considered that home detention was not an available sentence.

[6] The Judge identified the following aggravating features of the offending:³

(a) planning and premeditation, which she inferred from the fact Mr Tautari approached the house after the occupants had left, presumably knowing they were gone;

(b) there was damage to the property, being the broken window;

(c) the house was a residential dwelling; and

(d) the high value of the goods stolen.

[7] Having regard to these aggravating features and relevant case law,⁴ the Judge identified 24–28 months’ imprisonment as an appropriate starting point, which she noted was “moderately in [his] favour”. She further noted that there was no confrontation with the occupants, and, as the offending happened during the day, there was less risk of that occurring. She nevertheless settled on a starting point of 28 months’ imprisonment.

[8] She then applied an uplift of 12 months for Mr Tautari’s previous convictions, followed by a discount of 25% for his early guilty plea. This came to a final sentence of 2 years and 6 months’ imprisonment. The Judge concluded by noting that, even if there had been a suitable address for home detention, the final sentence of imprisonment excluded such a sentencing option.⁵ Furthermore she would not, in any event have considered it appropriate.

3. Citing the case of R v Nguyen CA110/01, 2 July 2001, which identifies aggravating factors for burglary.
4. The Judge cited Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; Dixon v Police [2013] NZHC 1469; Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010; and R v Povey [2009] NZCA 362.

⁵ Sentencing Act 2002, s 15A.

Appeal

[9] The appellant appeals on two grounds. He says the starting point of 28 months was too high, and the uplift of 12 months for previous convictions was excessive.

[10] The Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.⁶ In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.⁷ Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.⁸ The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.⁹ The focus is on the end result rather than the process by which the sentence was reached.¹⁰ In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).¹¹ In any other case, the Court must dismiss the appeal.¹²

Appellant’s submissions

[11] Mr Bean suggests a starting point of 18 months to two years. He cites cases in support of this figure, to which I will refer below. He further submits that the uplift for previous convictions focused too myopically on a “cluster of offences” that occurred in 2007, for which community detention was imposed. He suggests a more appropriate uplift was three months’ imprisonment.

Respondent’s submissions

[12] The respondent submits that the starting point was in range, given the large number of items taken and their significant value.

⁶ Criminal Procedure Act 2011, s 250(2).

⁷ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

⁸ Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

⁹ Tutakangahau v R, at [36].

¹⁰ At [36].

¹¹ At [36].

¹² Criminal Procedure Act 2011, s 250(3).

[13] It further submits that, although her Honour’s 12-month uplift for previous offending was “stern”, it was nevertheless in range for an offender with 20 convictions for burglary, and 96 previous convictions overall. The respondent concludes by submitting that the final sentence was not manifestly excessive for a burglary involving such high value items, and for a twenty first burglary conviction.

Discussion

[14] The focus in a sentence appeal is on the final result. But, given this is a relatively simple sentencing, with only one charge, it is appropriate to look both at the starting point and uplift, as those effectively dictate the final result.

[15] As to the starting point, the Court of Appeal has observed that for low level burglaries of a dwelling-house a starting point in the region of 18–30 months is often appropriate.¹³ The starting point of 28 months identified by the Judge was, therefore, near the top of that possible range.

[16] Mr Bean refers this Court to three cases in support of his argument that the starting point was too high.

(a) In Stepanicic v R, the appellant committed two residential burglaries.¹⁴ One took place at 5.45 am, while a female victim was at the home in bed. The appellant gained entry through an unlocked door, went into the victim’s room and took various valuable items. Although the victim awoke she though the defendant was her son and went back to sleep so no altercation occurred. The second took place shortly afterwards, and involved breaking into another house where another victim was also asleep. Again valuable items were taken. The victim awoke to the sound of an alarm and got out of bed, at which point the appellant ran from the address. The Court of Appeal quashed a sentenced of seven

¹³ Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

¹⁴ Stepanicic v R [2015] NZCA 211.

years’ imprisonment.¹⁵ It regarded a starting point of two years imprisonment as appropriate.

(b) In Newton v Police, the appellant entered a residential home during the day and stole a television and jewellery, to the value of $2,000.¹⁶ The sentencing Judge adopted a starting point of two years’ imprisonment. On appeal, Kós J considered that the burglary was purely opportunistic, and that there was no risk to the occupants of the house. In such circumstances, Kós J considered an appropriate starting point was 15 months’ imprisonment.

(c) In Marsters v Police, Whata J considered that a global starting point of 16 months was appropriate for burglary, receiving, being unlawfully in a closed yard and possession of an offensive weapon. The offending involved the appellant and an associate breaking into a house and stealing items valued at $700.¹⁷

[17] In addition, I note the following decisions referred to by the Judge:

(a) In Dixon v Police, the appellants committed two burglaries in the afternoon, on different days.¹⁸ The offending involved forced entry, but the value of the goods taken was low. Cooper J considered a starting point of 18 months for the more serious of the two burglaries would have been appropriate, with an uplift of four months for the other.¹⁹

(b) In Dickerson v Police, the appellant broke into a home during the day and took items worth $14,000.²⁰ There was no confrontation, and he did not cause significant damage to the property. Nor did the items stolen have any particular sentimental value. Simon France J

¹⁵ Which originally included a charge of causing grievous bodily harm with intent to avoid arrest for which a subsequent conviction appeal was allowed. This left a seven year concurrent sentence for burglary in place.

¹⁶ Newton v Police [2012] NZHC 2829.

¹⁷ Marsters v Police [2014] NZHC 3273.

¹⁸ Dixon v Police [2013] NZHC 1469.

¹⁹ At [16].

²⁰ Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010.

considered that 18 months’ imprisonment was an appropriate starting point.

[18] Mr Bean submits that the current offending is less serious than in Stepanicic

and Marsters, and at a similar level to Newton.

[19] I accept that the offending is in one sense less serious than in Stepanicic, given that in that case the burglaries occurred by night and there was actual confrontation on one occasion. I accept also that Stepanicic involved two burglaries. But the value of the goods taken was appreciably less than in the present case.

[20] I do not accept that the offending was less serious than that in Marsters. That case likewise involved a domestic burglary and breaking and entering, but the value of the items taken was again significantly less than in the present case and nor were they of sentimental value.

[21] Further, while the offending in the present case is superficially similar to that in Newton, in arriving at his 15-month starting point, Kós J was significantly influenced by the fact that it was opportunistic offending by a first-time burglar, and that there was limited impact on the occupants.²¹ And again the value of the items taken was considerably less than those taken here.

[22] I consider the present offending is closest to that in Dickerson v Police where the burglary occurred by day with little chance of confrontation, but the value of the goods taken was, as in this case, substantial. However, the value here was greater again, none of the items have been recovered and the impact of the loss of goods with sentimental attachment marks the offending as more serious. Moreover, the number of goods taken was itself high (approximately 100). As Mr Pell submits, the victim was “cleaned out”. In addition there was significant damage to the property.

[23] I do not overlook Regan v Police on which Mr Pell substantially relies and in which Nation J upheld a start point of three years’ imprisonment in respect of a

²¹ Newton v Police [2012] NZHC 2829 at [18].

domestic burglary involving high value electronic equipment.²² However, unlike the present case Regan involved offending by night with a higher prospect of confrontation. Significantly also what the District Court Judge identified as the starting point in fact included aggravating factors relating to Mr Regan personally.

[24] Having regard to all these cases, I consider a starting point of 24 months’ imprisonment was appropriate (that is approximately 15 per cent less than the figure adopted by the Judge). That margin is, however, sufficient to justify the intervention of this Court as it exceeds the “tinkering” proscription.

[25] Mr Bean also submits that the uplift of 12 months was also too high. The respondent accepts it was stern, but argues it was within range.

[26] Mr Tautari has a lengthy criminal history, with 20 previous convictions for burglary. I note that the last of these was in 2012, a cluster of five occurred in 2007, and the balance were approximately four years earlier again. It is, therefore, as the pre-sentence report comments, that Mr Tautari tends to offend in sporadic bursts or “sprees”. This is likely to coincide with drug use, which is also noted in the report.

[27] However, even allowing for this factor the uplift was one which, albeit stern, was properly available to the Judge. In Skipper v R for example, the offender had seven previous convictions for burglary and had committed the offence while on bail.²³ The Court of Appeal considered an uplift of 18 months appropriate. And in R v Columbus, where the offender had 89 previous convictions of which 13 were for burglary and another 34 for property related offences the Court of Appeal considered a one year uplift justified.²⁴

Result

[28] In my view the starting point adopted by the Judge has led to an end sentence which was manifestly excessive.

²² Regan v Police [2016] NZHC 161.

²³ Skipper v R [2011] NZCA 250 at [27].

²⁴ R v Columbus [2008] NZCA 192 at [20].

[29] I allow the appeal and substitute a sentence of two years and three months’ imprisonment recognising the same 25 per cent discount for guilty plea adopted by the District Court Judge. Having regard to the quality of the Police case, that discount may itself be regarded as generous.

Muir J