TAWHARA v NEW ZEALAND POLICE [2015] NZHC 2246 [17 September 2015]

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CRI-2015-463-45

[2015] NZHC 2246

BETWEEN

JOHNSON TE KOTAHI TAWHARA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 September 2015

Appearances:

GAM Schweizer for Appellant

SL Tapsell for Respondent

Judgment:

17 September 2015

JUDGMENT OF TOOGOOD J

[1] On 4 August 2015 the appellant, Johnson Te Kotahi Tawhara, was sentenced

at the District Court in Rotorua for:

(a) One charge of burglary committed on 8 February 2015;

(b) One charge of driving while his licence is suspended, committed on

31 March 2015; and

(c) One charge of breach of community work committed between

10 January 2015 and 28 February 2015.

[2] Judge Russell Collins sentenced Mr Tawhara to 14 months’ imprisonment for

burglary. He disqualified the appellant from holding or obtaining a driver’s licence

for six months on the charge of driving while suspended, and convicted and

discharged him on the charge of breaching community work order.

[3] Mr Tawhara appeals against the sentence of 14 months’ imprisonment for the

burglary.

Facts

[4] The appellant lives in Ruatahuna, a very remote area which is a two-hour

drive from Rotorua. At the time of the offending, he was serving the sentence of

community work.

Burglary charge

[5] On 9 February 2015, at around 9:00 pm, the appellant and some associates

went to an address on Clayton Road, Rotorua. At the address, the appellant entered

the dwelling through an unlocked door and gained access to the lounge. Once in the

lounge, he removed a 50 inch Panasonic television. Although he had previously

been a boarder at the property, the appellant had no authority to be in the house or to

remove the television. He took the television to his vehicle and drove off.

[6] The appellant said that he had lent the victim money while he was boarding

with her, which she would not repay, so he went into the house to try to get his

money, saw the door open, went in and took the television.

[7] The appellant has nine previous convictions for offences occurring between

2008 and 2014, five of which were dishonesty related offences, but he has no

previous convictions for burglary.

District Court sentence

[8] For the appellant, Mrs Schweizer said that at the start of the District Court

hearing she asked for the matter to be adjourned for consideration of a sentence of

community work, supervision and reparation. Judge Collins indicated that these

were not sentencing options as the only appropriate sentence for burglary was home

detention or imprisonment, and it was acknowledged that the appellant did not have

a suitable home detention address. On that basis, Mrs Schweizer advised the

appellant to waive his right to a pre-sentence report.

[9] Mrs Schweizer said that, during submissions prior to sentencing, Judge

Collins said he did not believe that the decision of the High Court in Senior v Police1

was good law any longer and instead, he preferred to be guided by the decision of

the Court of Appeal in Arahanga v R.2

[10] After setting out of the facts of the offending, the Judge said in his sentencing

notes (in reference to Aranhanga v R):

[5] The Court of Appeal has observed that the normal range for a

burglary of a residential address is between 18 months and two and a half

years. The Court has been at pains to stress that that is not a tariff and other

cases have described that as observational rather than binding. The

observations of the Court of Appeal, Mr Tawhara, ring very, very loudly at

the District Court and, even if observational, has a huge affect in terms of

guidance to District Court Judges in terms of sentencing.

[6] The victim impact statement, as I say, shows the dramatic and sad

effect on the victim in this case and that is often, if not nearly always, the

case with victims of burglary. It is one form of offending that the

1 Senior v Police (2000) 18 CRNZ 340 (HC).

2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

community has absolutely had enough of. People need to have a place

where they know that they are safe and they need to know that their property

is safe and there is an incredible sense of violation in people’s lives when

they realise that their homes have been broken into and their property stolen.

[7] So taking what I consider the lowest starting point for you today, and

that is 18 months, I uplift that by one month on a combined basis for the

driving while disqualified and the breach of community work. Had you not

effectively completed the community work, that uplift would have been

another month. That takes me to 19 months and I give you a five month

discount for your guilty pleas and that is an end sentence of 14 months.

[8] As far as I am concerned, you have four relevant convictions for

dishonesty and two for non-compliance with Court orders prior to date. I do

not uplift the sentence or have not uplifted the sentence at all for those

previous convictions, but that non-compliance with previous sentences, your

history of offending and the seriousness of the charge of burglary to me

would have made home detention unsuitable or inappropriate.

Grounds of appeal

[11] There are two broad grounds of appeal upon which the appellant bases his

appeal:

(a) Judge Collins erred in fixing the starting point for the burglary charge

which resulted in an end sentence which was manifestly unjust.

(b) Judge Collins erred in principle by failing to adequately consider a

community-based sentence as an alternative sentence to home

detention and imprisonment.

Approach to Appeal

[12] An appeal against sentence must be allowed if the Court is satisfied there has

been an error in the sentence imposed for any reason and that a different sentence

should be imposed.3 The principles behind that law are well known, and they were

not changed by the introduction of the Criminal Procedure Act 2011.4 A sentence

will be manifestly excessive if it is substantially or significantly more severe than it

3 Sentencing Act 2002, s 250.

4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

ought to have been having regard to the seriousness of the offending and the

culpability of the offender.5

[13] Because an appellant must satisfy the Court that a different sentence should

be imposed, the High Court will not intervene where the sentence is within a range

that can be properly justified by accepted principles. In deciding whether a sentence

is manifestly excessive, the focus is principally on the effective end sentence rather

than the process by which the sentence is reached.6

[14] Accordingly, it is the end sentence of one year two months’ imprisonment to

which the Court must have regard in this case. The process by which the sentence

was reached is of relatively limited importance.

Appellant’s submissions

[15] Mrs Schweizer identified in her written submissions that the aggravating

features of the offending included the fact that Mr Tawhara broke into a residential

property at night and stole electronic equipment. But counsel stressed that he took

particular care to ensure that the premises were empty by establishing the

whereabouts of the occupants prior to entry so that there was no risk of

confrontation. Furthermore, there was no forced entry to the property or any other

damage caused.

[16] Mrs Schweizer submitted that the Judge erred in choosing to apply Arahanga

v R.7 In that case the Court of Appeal emphasised that there is no set tariff for

burglary offences for the reason that “the range of circumstances in which the

offence can be committed is so varied”.8 The Court surveyed a number of cases and

the commonly used starting points for dwelling house burglaries. It acknowledged

that dwelling house burglaries at the relatively minor end of the scale – and I

emphasise those words - tend to attract a starting point of approximately 18 months

5 At [33], [35].

6 Ripia v R [2011] NZCA 101 at [15].

7 Arahanga v R, above n 2.

8 At [78].

to two years six months’ imprisonment.9 But in all those cases, Mrs Schweizer

argued, the appellants had between one and 22 previous burglary convictions.

Accordingly, Mrs Schweizer submitted that Arahanga provides useful guidance only

in cases of recidivist burglaries if the range of 18 months to two years six months is

to be considered. Mr Tawhara has no prior burglary convictions.

[17] Mrs Schweizer argued, therefore, that the Judge erred in discounting Senior v

Police10

as a relevant authority because, in her submission, the offence in this case

falls squarely within the first band of Senior. In that case the High Court held that,

where the defendant is a first time burglar a prison sentence may be imposed,

depending on the presence of aggravating factors, but frequently it will not be

warranted.11

[18] Mrs Schweizer submitted that the starting point should have been 12 months’

imprisonment based on what she argues are two similar decisions: R v Columbus12

in which the Court of Appeal adopted a starting point of 12 months’ imprisonment,

and White v Police13

in which the High Court held that a charge of burglary and a

charge of vehicular conversion together did not warrant a start point of more than

12 months’ imprisonment.

Respondent’s submissions

[19] For the respondent Ms Tapsell submitted that the starting point was not

manifestly excessive, but agreed that it was stern. She also identified arguably more

serious cases of offending where lower starting points were adopted.14

[20] Considering those cases, counsel for the respondent’s position is that, given

the value of the items taken (a television set worth $1,500); the absence of damage to

the property; and the return of the television to the victim, a starting point of 12 to

18 months’ imprisonment could have been appropriate.

9 Above.

10 Senior v Police, above n 1.

11 At [25].

12 R v Columbus [2008] NZCA 192.

13 White v Police HC Rotorua CRI-2009-463-72, 12 October 2009.

14 Heywood v Police [2013] NZHC 2506, Zimmerman v Police [2014] NZHC 3233, and Reihana v

NZ Police [2015] NZHC 360.

Discussion

[21] This case illustrates the reasons why there is no tariff for burglary: the facts

of such cases are infinitely various and fixing a sentencing starting point involves

assessing the particular circumstances of the offending. I do not agree that it was

inappropriate for Judge Collins to rely on the decision in Arahanga v R. The Court

of Appeal did not limit its guidelines to cases of recidivist burglars. Recidivism is

not identified in the judgment as an aggravating feature of the offending that leads to

the Court setting a start point.15

It may result in an uplift. But the focus of the

Court’s decision in Arahanga v R is on the aggravating nature of dwelling house

burglaries and the judgment, in my view, is plainly relevant to the present case.

[22] Furthermore, in identifying the range of starting points “at the relatively

minor end of the scale” as between 18 months and two and a half years’

imprisonment, the Court of Appeal did not refer to previous burglary convictions as a

factor. Arahanga v R is often relied upon in the Court of Appeal and the High Court

as providing guidance where the burglar is a first time offender.16

[23] I assess the aggravating factors of the offending in this case to be these:

(a) More than one person was involved.

(b) A domestic dwelling was entered.

(c) The offending occurred at night.

(d) There was an element of pre-meditation in that the defendant took

time to find out whether the victim was home before committing the

burglary.17

If the intention had been simply to ask for money there

was no need for the appellant to take anyone with him.

15

Arahanga v R, above n 2, at [79]. 16

See, for example, Newton v New Zealand Police [2012] NZHC 2829, Heald v R [2014] NZCA

143, Williams v New Zealand Police [2014] NZHC 2622 and Milner v Police [2014] NZHC 3277. 17

Contrary to the appellant’s submission in this case, I do not consider the known absence of the

occupiers of a property to be much of a mitigating factor. There is a risk of confrontation if the

occupiers return in the course of the offending. See, for example, Williams v New Zealand

Police, above n 16, at [17].

(e) An item worth $1,500 was taken.

(f) There was a breach of trust in that the victim had allowed Mr Tawhara

to board at her house, so he knew the layout of the property well.

(g) The offending was of a vigilante nature in that the defendant broke

into the property and took the television in order to enforce a debt. I

see that as an aggravating feature of the case.

[24] Finally, I note that the offending has had a severe impact on the victim and

her family. The victim no longer feels safe in her home with her four-year old son

and her sister-in-law does not allow the victim’s nieces to visit because she does not

trust their safety at her house.

[25] With these aggravating features in mind, I do not agree that the Judge was

required to take a starting point of 12 months’ imprisonment. The present facts are

not comparable to the decision in R v Columbus. The offending in that case occurred

during the day and involved entry into a garage. An intrusion into a dwelling home

creates a sense of violation of a private, safe place and can be a frightening

experience for the occupier, even when the victim is unaware or absent at the time.

Furthermore, the present offending is more serious than that in White v Police in

which Lang J described the burglary as “opportunistic”; it lacked pre-meditation and

actions of a vigilante nature.

[26] An appropriate starting point for the present offending was within the range

of 15 months to 18 months’ imprisonment; it is not appropriate on appeal for this

Court to interfere with the exercise of a discretion by a sentencing Judge simply

because a starting point at the top of the available range has been taken. Judge

Collins was entitled to start the assessment of the appropriate term of imprisonment

at 18 months.

Adjustment for personal circumstances and guilty plea discount

[27] At the time of offending, Mr Tawhara had a total of 9 previous convictions,

five of which are for dishonesty offences and two for non-compliance with court

orders. The Judge elected not to uplift the sentence based on these convictions; he

was entitled to take that view, which may have been somewhat lenient, but it is

tempered by the fact that he chose a starting point at the top of the range. A one-

month uplift on a combined basis for the driving while disqualified and breach of

community work was in range and appropriate.

[28] I do not accept that the appellant was entitled to a five per cent discount for

relative youth and remorse. The pre-sentence report provided for this appeal

indicates that Mr Tawhara feels no remorse for the offending. A discount on the

basis of youth is not automatic; the factors identified in Churchward v R18

need to be

evident before a young offender can expect to receive that consideration. In this case

I am satisfied that Mr Tawhara knew perfectly well that what he was doing amounted

to a crime.

[29] Both Mrs Schweizer and Ms Tapsell agree that a 25 per cent discount for

pleading guilty at an early stage was appropriate. Applying that to the 18 month

starting point results in an end sentence of just under 14 months’ imprisonment.

[30] I now turn to consider whether a sentence of community detention should

have been considered to be appropriate in the circumstances.

18

Churchward v R [2011] NZCA 531 at [77]. Glazebrook J held that youth is a relevant factor to

sentencing because of: (i) the age-related neurological differences between young people and

adults show that young people are more vulnerable and susceptible to negative influences and

may be more impulsive than adults; (ii) the effect of imprisonment on young people; and (iii) the

greater capacity for rehabilitation of young people, particularly given that the character of a

young person is not as well formed as that of an adult.

Community detention sentence

Principles

[31] The Court of Appeal’s decision in R v Rawiri19

helpfully summarises the

sentencing principles in relation to community-based sentences:

(a) When the criteria for home detention are met, but the offender is

unsuitable for that sentence or it is unavailable for other reasons, the

appropriate sentence does not automatically revert to a sentence of

imprisonment.20

(b) Section 10A of the Act, which places community-based sentences

well up the hierarchy immediately below home detention, along with

s 20, which allows a Judge to combine sentences of community work

with a sentence of supervision, reflect a legislative policy of keeping

offenders within the community whenever appropriate by increasing

the range of sentencing alternatives available to a Judge other than

home detention or imprisonment.21

(c) Sentences of community service have punitive aspects that are

intended to be very real and effective alternatives to imprisonment;

the public should not regard such sentences as an insignificant

reaction to offending.22

Sentences of community work are designed

to achieve the principles associated with imprisonment of

accountability, deterrence and denunciation while also promoting a

sense of community participation and awareness.23

(d) When considering the imposition of a period of sentence of

imprisonment for a particular offence, the Court must have regard to

19

R v Rawiri [2011] NZCA 244. 20

At [11]–[12]. 21

At [17]. 22

R v Rawiri, above n 19, at [18]; R v Burton [1982] 1 NZLR 601 (CA); R v Minto [1982] 1 NZLR

606 (CA). 23

R v Rawiri, above n 19, at [17].

the desirability of keeping an offender in the community as far as that

is practicable and consonant with the community's safety.24

It follows

from this principle that the Court must impose the least restrictive

outcome that is appropriate in the circumstances according to the

hierarchy of sentences set out in the Act.25

The Court cannot impose a

sentence of imprisonment unless it is satisfied that:26

(i) the sentence is being imposed for a statutory purpose or

purposes;

(ii) that those purposes cannot be achieved by a sentence other

than imprisonment; and

(iii) that no other sentence would be consistent with the statutory

principles as applied to the particular case.

(e) Judges “will generally strive to avoid a custodial sentence where there

is a genuine prospect of rehabilitation, unless other sentencing

principles or purposes operate to rule out that option”.27

Appellant’s submissions

[32] Mrs Schweizer relied on R v Rawiri to submit that the Judge erred in failing

to adequately consider a community-based sentence as an alternative to home

detention and imprisonment. Because the appellant waived the right to a pre-

sentence report on the indication that imprisonment was the only available option,

the Judge did not have sufficient information to consider community work as a

possible sentence. Relying now on the pre-sentence report provided for the purposes

of this appeal, Mrs Schweizer says that in all the circumstances of this case, the least

restrictive sentence appropriate for the totality of the appellant’s offending is a

sentence of community work and community supervision. Counsel argued that Mr

24

Sentencing Act 2002, s 16(1). 25

Section 8(g). 26

Section 16(1). 27

R v Rawiri, above n 19, at [22].

Tawhara has had no opportunity for rehabilitation throughout his limited offending

history and he has rehabilitative needs that have to be addressed. She added that it is

a common practice in Rotorua for a sentence of community work to be imposed for a

first offence burglary.

Respondent’s submissions

[33] The respondent identifies, on the basis of material not available in the District

Court, and this appeal being by way of a rehearing, that there is an opportunity for

the Court to revisit the type of sentence imposed. Ms Tapsell says the Court has a

broad inherent jurisdiction in any event but does not make any further submissions

on the point.

The pre-sentence report

[34] Although a pre-sentence report was not available to Judge Collins, a report

has been prepared for the defendant’s sentencing in relation to a charge of

dishonestly using a document and it also addresses the offending which is the subject

of the present appeal.

[35] The report notes:

Mr Tawhara blames his antisocial behaviour on “townies and trouble

makers” he mixed with on leaving home and living in the city. He has now

accumulated seven convictions over a six year period for dishonesty

offending. This shows a sense of entitlement and immaturity whereby he

clearly places his own needs and wants above others. His remaining

convictions are for a range of offending including violence, drugs, driving

and non-compliance. The seriousness of his offending is neither increasing

nor decreasing, however he has accrued four convictions so far in 2015,

which shows that the frequency of his offending is increasing. In these

circumstances, the likelihood of Mr Tawhara re-offending is assessed as

medium. The versatility of Mr Tawhara’s offending indicates that his risk of

harm is also assessed as medium.

[36] In recommending that Mr Tawhara be sentenced to supervision and

community work, the report writer says:

Mr Tawhara advises that he is living with his parents and his two children in

Ruatahuna. Electronic monitoring does not operate in that area as it is more

than one hour’s driving time from a Community Corrections service centre

and Mr Tawhara has asserted that he does not wish to move. Mr Tawhara’s

parents were interviewed and requested that their son be allowed to remain

at home with them as Mr Tawhara’s father suffers from Chronic Obstructive

Respiratory Disease and Mr Tawhara assists his mother to look after the

house, his children and his father.

Having taken all circumstances into account, a sentence of supervision

would be deemed an appropriate sanction with a special condition to attend

alcohol and drug counselling and a generic special condition to allow Mr

Tawhara to receive other counselling or treatment during sentencing,

including a departmental programme if found suitable, to identify and

address the reasons for his continued offending.

A community work sentence would also allow Mr Tawhara to make up for

his offending in the community. Mr Tawhara has three previous breaches of

community work and so his willingness and ability to comply is assessed as

low. His parents have undertaken to transport their son to Murupara to attend

Community Work and reporting on his Supervision sentence, however, that

still depends on Mr Tawhara’s motivation. He may be inclined to complete

supervision and community work on this occasion as he has been made

aware that the lack of alternative sentences means that another breach will

lead to jail.

Discussion

[37] As well as taking account of the Court of Appeal’s guideline approach in R v

Rawiri, I have considered a number of decisions of this Court on appeal where it has

been held that a sentence of community work and/or community supervision is

appropriate for a charge of burglary.28

[38] The appellant in the present case has relatively few convictions and has not

previously committed a burglary. He is relatively young. He has two convictions for

breach of a community-based sentence but, accepting Ms Schweizer’s account, they

are due to the fact that the appellant lives in a remote location and could not get

transport to do the work or check in with the probation service. I am prepared to

give Mr Tawhara a chance to mend his ways, but he needs to understand that a

community-based sentence is not a soft option.29

I am influenced in the view that

28

Marsters v New Zealand Police [2014] NZHC 3273; Musaad v New Zealand Police HC

Christchurch CRI-2010-409-0219, 15 December 2010; New Zealand Police v King HC Rotorua

CRI-2005-463-85, 15 November 2005, Travers v Police HC Auckland CRI 2006-404-397, 24

November 2006, Marra v New Zealand Police HC Hamilton CRI 2008-419-0005, 26 February

2008, Barton v New Zealand Police HC Auckland CRI 2007-404-299, 14 August 2008. 29

R v Timmings & Timmings HC Hamilton CRI 2006-019-1745, 1 November 2007 and R v

Sullivan HC Auckland CRI 2005-004-2922, 6 December 2007, approved by the Court of Appeal

in R v Rawiri, above n 19, at [25]-[26].

this is the right thing to do and that Mr Tawhara is likely to comply with the

conditions by the fact that he has responsibilities at home because of his father’s

illness. That makes it more likely that he will be motivated to avoid being re-

sentenced and sent to prison. Arrangements will have to be made for Mr Tawhara to

ensure that he can comply with the obligations to carry out community work.

Decision

[39] Having had the advantage, not enjoyed by the sentencing judge, of reading a

constructive Probation report, I allow the appeal and quash the sentence of

14 months’ imprisonment. I sentence the appellant to 12 months’ community

supervision, with the following conditions:

(a) He is to attend and complete an appropriate alcohol and drug

programme, counselling or treatment to the satisfaction of a Probation

Officer. The specific details of the appropriate programme shall be

determined by a Probation Officer.

(b) He is to attend an assessment for any other counselling, treatment or

programme to address offending related needs as directed by a

Probation Officer, and he is to attend and complete any counselling,

treatment or programme as recommended by the assessment as

directed by and to the satisfaction of a Probation Officer.

[40] In addition, I sentence the appellant to 250 hours community work.

[41] Mr Tawhara has offered to pay a modest sum at a rate of $30 per week out of

the benefit he is receiving by way of compensation for emotional harm to the victim.

That is an appropriate gesture. I order that he pay $120 at a rate of $30 per week by

way of compensation. It is not a large amount but it is the gesture that is important.

[42] Mr Tawhara, I am giving you a chance. Do not let Mrs Schweizer down, do

not let your family down, do not let me down; and, most of all, do not let yourself

down.

……………………………… Toogood J