IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-000039 [2015] NZHC 187

BETWEEN	DANIEL TEONE TAIRI
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	3 February 2015	

Counsel:	
G D Prentice for the Appellant
J E Tarrant for the Respondent	

Judgment:	
17 February 2015	

JUDGMENT OF DUFFY J [re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on 17 February 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:	Public Defence Service (Ministry of Justice), Hamilton
Almao Douch, Hamilton

TAIRI v POLICE [2015] NZHC 187 [17 February 2015]

[1]       Mr Tairi appeals against a cumulative sentence of imprisonment of two years and eight months. The appeal is opposed.

[2]       Mr Tairi faced two charges of assaulting his partner with intent to injure.  For those offences, he accepted a sentence indication of 11 months’ imprisonment from Judge M L S Burnett and pleaded guilty to those charges.  While on bail pending sentence,  he  committed  further  offences:  (a)  burglary  of  a  dwelling-house;  and (b) driving whilst suspended third or subsequent offence.  He pleaded guilty to those offences as well.

[3]       At   sentencing,   Judge   Burnett   imposed   the   sentence   of   11   months’ imprisonment for the assault with intent to injure charges.  For the burglary charges, she imposed an additional cumulative sentence of 21 months’ imprisonment.  This sentence was reached by Judge Burnett adopting a starting point of 16 months’ imprisonment, which she then uplifted by 12 months to take account of aggravating factors relating to Mr Tairi.  After allowance was made for his early guilty plea, the burglary sentence was reduced to 21 months.   Regarding the offence of driving whilst suspended, third or subsequent offence, he received a sentence of two weeks’ imprisonment, which ran concurrently with the burglary sentence.   Both offences were committed on the same date, and the Judge was of the view that Mr Tairi had driven unlawfully to get to and from the house that he burgled.

[4]       Mr Tairi makes no complaint regarding the 11 months’ imprisonment that he received for the assault with intent to injure offences, or the sentence for the driving offence.  Regarding the sentence for the burglary offence, he makes two complaints. First, he contends that the uplift imposed for his personal aggravating factors was excessive and has led to a material error in the sentencing, with the result that the sentence is  manifestly excessive.    Secondly,  he contends  that  the  imposition  of cumulative sentences has resulted in a sentence wholly out of proportion to the overall gravity of offending and, therefore, contrary to the “totality” principle.

Factual background

Assault with intent to injure offences

[5]       At about 10.30 am on 25 April 2014, Mr Tairi arrived at the house where he lived with his partner of 10 years and their four children.   Mr Tairi grabbed his partner (the victim) and dragged her into the house and up the stairs.  He then threw the victim onto the bed and punched her several times in the head with both hands. He began to kick the victim in the head and body.  When he stopped this assault, the victim ran down the stairs and exited the house.  Mr Tairi followed her, grabbed her by the hair and dragged her into the passenger seat of his car, which was parked outside.  He drove off with the victim in the car.  The appellant then started to drive off.  He grabbed the victim by the hair and smashed her head against the dashboard numerous times.  The victim attempted to escape three times by opening the door while the car was moving; however, each time the appellant dragged her back into the car.  Eventually, the victim managed to escape and rang the police.

[6]       The victim received multiple injuries to her face and head, with bruising to her forehead, eyebrows, cheeks and chin.  Her lips were swollen and cut.

[7]       On 24 June 2014, when Mr Tairi appeared in the District Court; he accepted Judge Burnett’s sentence indication of 11 months’ imprisonment for two charges of assault with intent to injure, with the possibility of home detention, or community detention and supervision.  He was then remanded on bail.

Burglary offence

[8]       Later, some time between the hours of 5.00 pm on 9 July 2014 and 11.50 am on 10 July 2014, Mr Tairi broke into a locked residential property by smashing a glass window pane and forcing open a bedroom window at the side of the property. He searched through drawers and cupboards in the house, before leaving with a television valued at $370.  Damage of $150 was caused to the window.  The victim impact statement from one of the occupiers of the property said that she and her partner  felt  extremely  invaded  and  violated  by  the  burglary  and  are  no  longer

comfortable in their home.  This victim says that she is frightened to be at home and has been having trouble sleeping.

Land Transport Act offence

[9]       On the same day as  the burglary was  committed,  Mr Tairi  drove whilst suspended for the third time. The earlier offences occurred in 2005 and 2007. At the appeal hearing, no issue was raised by Mr Tairi regarding the Judge’s conclusion that he had driven unlawfully in the course of carrying out the burglary offence.

[10]     Mr Tairi was 27 years of age when he committed the offences.

District Court decision

[11]   At the sentencing on 5 September 2014, Judge Burnett canvassed the background facts and noted that the pre-sentence report did not refer to the burglary charges.   However, she noted that the report assessed both Mr Tairi’s risk of reoffending and risk of harm to others as high.  The Judge also noted that Mr Tairi had been given a final warning for burglary when he was sentenced to intensive supervision and community detention for burglary in August 2013.

[12]     The  Judge  adopted  a  starting  point  of  16  months’ imprisonment  for  the burglary of a dwelling-house overnight.   She then considered Mr Tairi’s personal aggravating factors, which she identified as being: that he was on bail pending sentence for violence; and there was a danger of confrontation of the occupier of the house when entering the house to commit burglary.  She also considered that, as this was his twenty-third burglary conviction, this was recidivist offending.   She considered that those two factors warranted an uplift of 12 months’ imprisonment. She then gave a 25 per cent discount for the early guilty plea and arrived at a sentence of 21 months’ imprisonment for burglary.

[13]     The Judge considered that the assault charges warranted a separate sentence. The  term  given  at  the  sentencing  indication  of  11  months’ imprisonment  was adopted. This was from a starting point of 14 months’ imprisonment.

[14]     The Judge considered that a cumulative sentence of 32 months’ imprisonment did not offend the totality principle.  Reparation of $520 for the burglary was also ordered, and a concurrent sentence of two weeks imprisonment for driving while disqualified imposed, as that was connected with the burglary offending.  Mr Tairi was also disqualified from driving for one year and one day.

Appellant’s submissions

[15]     Mr Tairi’s first submission is that the uplift imposed for personal aggravating factors was manifestly excessive.  He submits that whilst previous offences may be relevant as an indication of character and culpability, demonstrating the need for a greater deterrent response, as well as the  risk of reoffending, protection of the public against people who are likely to reoffend cannot be a dominant factor in establishing the sentence.   In this regard, he argues that too great a reliance on this factor can result in double punishment.  He refers to R v Piper where the Court of Appeal said that a balance must be struck: uplifts for previous offending must not result in an end
sentence which is out of balance with the gravity of the offending.1     Further, he

submits that there must be proportionality between the extent of the uplift and the sentences imposed for the previous offending.   Finally, relying on O’Connor v R, Mr Tairi submits that uplifts for previous convictions should not be given as a matter of course, but should be a considered response to specific aspects of the offender’s
criminal history.2

[16]     Regarding his 22 previous convictions for burglary, Mr Tairi emphasises that

21 of the offences arose from a spree of offending in the period between June and August 2008.   He was sentenced to two years’ imprisonment for those charges. Since that time, he has committed one further burglary in December 2013, for which he received a sentence of 12 months’ intensive supervision and four months’ community detention.  He also received a final warning.

[17]     Mr Tairi submits that this case is similar to Tutakangahau v R.3   In that case, the appellant, who was 18 years old at the time of the offending, was sentenced in the District Court for two burglaries.  The sentencing Judge adopted a starting point of 15 months’ imprisonment, gave a full discount for a guilty plea and reached an end sentence of 11 months’ imprisonment.   However, the Judge did not give the offender a discount for youth, because he considered that this would be offset by the offender’s previous convictions.  The offender, when 15 years old, had committed a spree  of  similar  offending  over  a  four  month  period.    On  appeal,  the  Court considered that the starting point was too high, the offender’s youth had not been properly considered by the Judge, and that it was “not at all clear” that the uplift for
previous offending would cancel outright the discount for youth.4   Mr Tairi submits

that this shows that only a minimal uplift for previous convictions was justified.

[18]     Mr Tairi argues that the Judge in this case also erred in her assessment of the previous convictions by failing to recognise that they largely occurred in a spree of offending three years earlier.   Mr Tairi argues that this type of offending must be distinguished from repeat offending on multiple occasions.  He also submits that his history  indicates  that  the  sentence  of  imprisonment  he  received  for  the  2008 offending was “largely successful” from deterring him from further offending.

[19]     Mr Tairi submits that, in the context of his criminal history, an uplift of no more than six months for both aggravating factors would have been appropriate.

[20]     Mr Tairi’s  second  ground  of appeal  is  that  the imposition  of cumulative sentences for the burglary and the assault resulted in an end sentence wholly out of proportion to the gravity of the overall offending.   He accepts that a cumulative sentence was appropriate, but argues that the 21 month sentence should have been adjusted so as not to offend against the totality principle.  He accepts that on its own, the 11 month sentence for assault “withstands scrutiny”.

[21]     Mr Tairi relies on the decision of Wylie J in Taemoerao v Police.5    In that case, the appellant had committed a serious assault while on bail for burglary.  The sentencing Judge imposed cumulative sentences of 12 months’ imprisonment for each charge.  Wylie J allowed the appeal on the basis that the starting point for both sentences and the uplift were stern, and the combination of two stern sentences had resulted in an end sentence that was manifestly excessive.   Relying on this case, Mr Tairi submits that 21 months’ imprisonment for burglary was stern, and that when this was combined with the sentence for assault, it resulted in a sentence that was out of proportion to the gravity of the offending.   He contends that a sentence in the vicinity of 16 months’ imprisonment on the burglary charge would ensure the total sentence was in proportion with the gravity of the offending overall.

Respondent’s submissions

[22]     The  respondent  submits  that  the  uplift  for  the  burglary  offence  was appropriate.   Previous  convictions can be taken  into account  as an  indicator of character  and  culpability,  because  they  show  a  need  for  deterrence,  and  as  an indicator of risk of reoffending.  In particular, previous offending of a similar type will carry greater weight.

[23]     First, the respondent relies on the Court of Appeal decisions in Arahanga v R

and R v Columbus v to show the Court’s approach to burglary offending.6

[24]     The respondent submits that the Court of Appeal has held that lengthy uplifts for previous convictions may be appropriate.  The respondent relies on the Court of Appeal’s decision in  Ripia v R, where an uplift of 12 months was adopted for previous  offending  which  involved  a  consistent  pattern  of  assault  against  the
appellant’s partner,7 and Vainu v R, where there was an uplift of 18 months to reflect
previous convictions for violent offending and that he had recently been released from  prison.8       Given  these  cases,  the  respondent  submits  that  the  uplift  was

5	Taremoeroa v Police HC Rotorua CRI-2010-463-53, 17 August 2010.
6	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; and R v Columbus [2008] NZCA 192.
7	Ripia v R [2011] NZCA 101.

appropriate because of the need to emphasise denunciation and deterrence, given that the appellant has previously been unresponsive to court-imposed limitations.

[25]     In relation to the assault charge, the respondent relies on Samuel v R as demonstrating the appropriate approach to determining the starting point for assault with intent to injure.9    The respondent relies on three cases to show that the end sentence for the assault  charge was  well  within  range and  could  be considered lenient.

[26]     The first, Paikea v Police, was an appeal against a sentence of one year, four months’ imprisonment in respect of one charge of assault with intent to injure.10   The appellant grabbed his sister, threw her to the ground and hit her a number of times around the ear with his fist, placed his hands around her throat and choked her.  She suffered bruising to the side of the face, neck and several cuts to her head.   The High Court considered that a starting point of up to two years’ imprisonment was within range.11

[27]     The respondent also relies on Fraser v Police, which was an appeal against a sentence of 22 months’ imprisonment.  The appeal was allowed and a sentence of 12 months’ home detention was imposed.  The appellant had entered his partner’s home while she was asleep.   She woke and picked up a knife.  After disarming her and briefly threatening her, the appellant dragged the victim by the hair and threw her against a wall.   The victim threw her phone, hitting the appellant.   The appellant again threw her against the wall.   The appellant went to leave the house but the victim followed; he again grabbed the victim and shoved her against a wall and
abused her.12

[28]     Finally, the respondent relies on Maney v Police where a sentence of two years, one month’s imprisonment for one charge of assault with intent to injure was reduced to a sentence of 23 months’ imprisonment.13    Following an argument, the
appellant chased his partner, grabbed her, and punched her several times in the head.

9	Samuel v R [2012] NZCA 372.
10	Paikea v Police HC Whangarei CRI 2010-488-53, 29 October 2010.
11	At [16].
12	Fraser v Police HC Christchurch CRI-2009-409-201, 17 December 2009.
13	Maney v Police [2012] NZHC 2365.

She received several lacerations about the nose and a bruised eye.  The appeal was allowed because the District Court Judge had given the discount for the guilty plea before imposing a six month uplift for previous convictions.   In the High Court, a starting point of two years’ imprisonment was upheld, and the uplift of six months was also considered appropriate.  If the discount had been applied after this, the end sentence would have been just over 23 months’ imprisonment.

[29]     At the hearing, counsel for the respondent referred to the 12 month sentence of intensive supervision that Mr Tairi received for the burglary offence committed on
4 December 2011.   This sentence was imposed on 1 August 2013.  As the recent burglary offending occurred on 9 July 2014, it would seem that it occurred close to the end of the sentence of intensive supervision.  This, plus the final warning that was also issued on 1 August 2013 were additional factors that the respondent relied upon to support the sentence imposed in the District Court.   Counsel for Mr Tairi referred to the absence of any charge for breach of the intensive supervision order.

Approach to appeal

[30]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)	for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)	a different sentence should be imposed.

[31]     In any other case, the Court must dismiss the appeal.14

[32]     The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended   to   change   the   previous   approach   taken   by  the   courts   under   the
Summary Proceedings  Act  1957.15       Further,  despite  s  250  making  no  express

14	Criminal Procedure Act 2011, s 250(3).
15	Tutakangahau v R, above n 3, at [26]-[27].

reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s

approach to sentence appeals.16

[33]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:17

(a)       There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing, it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[34]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.18

Burglary

Setting a starting point

[35]     There is no tariff decision for burglary.  In R v Nguyen, the Court of Appeal considered that the factors which were relevant to the criminality of the offending included the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the
offending where multiple burglaries are involved.19

16	At [33] and [35].
17	R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
18	Ripia v R, above n 7, at [15].
19	R v Nguyen CA 110/01, 2 July 2001 at [17].

[36]     More recently, in Arahanga v R, the Court of Appeal confirmed that the Court had deliberately not set a tariff case for burglary because of the variety of circumstances in which the offence can be committed. The Court noted that:20

Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale still tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[37]     The approach taken by different courts to sentencing for burglary has not always been consistent.  In some decisions, previous convictions of the offender are taken into account when setting the starting point;21  in others, they are considered
when  fixing  the  uplift  for  personal  aggravating  factors.22     Although  the  former

approach (as exemplified in Senior) is contrary to the established three-step Taueki approach, the Court of Appeal in R v Columbus explained that the rationale behind this approach was that:23

… while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s
7(f)  and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police.

[38]     However, the Court of Appeal warned against “the risk of placing undue emphasis on past dishonesty convictions that lies in fixing a starting point by imposing a sentence which is primarily a punishment for previous offending”.24

[39]     The recent trend shows a shift away from the approach in Senior to one that follows the general approach to sentencing set out in Taueki.25.   This has led to
Senior being viewed as “no longer a reliable guide for starting points” but still of use

20	Arahanga v R, above n 6, at [78] (citations omitted).
21	Senior v Police (2000) 18 CRNZ 340 (HC).
22	See Te Pania v New Zealand Police [2013] NZHC 2327 at [44]-[46].
23	R v Columbus, above n 6, at [14].
24	At [15].
25         See for example Sunnex v Police HC Christchurch CIR-2010-408-43, 17 June 2010; Blissett v Police [2013] NZHC 156; Rangi v Police [2013] NZHC 465; and Tepania v Police [2013] NZHC 2327.

for  “identifying  the  characteristics  of  someone  who  should  be  classified  as  a

recidivist burglar.” 26   I propose to apply Senior in this way.

[40]     In Senior, a Full Bench of this Court set out three categories of burglary offending:27

(a)       Category 1: First time burglary;

(b)       Category 2: Recidivist burglary; and

(c)       Category 3: Spree burglary;

[41]     In relation to recidivist burglars, the Court said:28

[27]      In the case of the recidivist burglar, the length of the sentence will largely depend upon the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors.

[28] In cases in this category, there is scope for the application of the prevention principle referred to in R v Ward [1976] 1 NZLR 588 (CA). In other words the protection of the public is a significant factor. It is common enough for sentencing Judges to say, when imposing a sentence of imprisonment on a burglar, that the public is entitled to a rest from the activities of that particular burglar, see for instance Brewster, at p 229. As well, Judges are likely to impose sentences which are more severe than those imposed on the offender on previous appearances for the same offence, although there are limits to the extent to which this can be carried through, see for instance R v Andrian (1996) 13 CRNZ 449 (CA), at p 454.

[42]     Mr  Tairi’s  22  convictions  for  burglary  bring  him  within  the  “recidivist category”.    However,  I  note  that  in  Senior,  the  Court  explained  that  the  most common case in this category would involve a burglar who has appeared on previous occasions and who is appearing for sentence on only one or a limited number of offences. The burglar would probably be a professional burglar in the sense that they
steal for a living.29   Therefore, Mr Tairi is at the low end of the category because his

26	Rangi v Police, above n 25, at [5].
27	Senior v Police, above n 21, at [25]-[40].

burglaries are low value,30 the majority of them occurred in the course of a spree of offending that occurred six years ago, and he is not a professional burglar.

[43]   Senior identified a number of factors which are generally accepted as aggravating features in burglary.31   Of relevance to the present case are:

(a)       Burglary which involves the risk of confrontation of occupiers.  This factor would “almost always be present” where there was a burglary of a dwelling house by night; and

(b)	Offending while on bail.

Relevant case law

[44]     In R v Columbus, the appellant was charged with one charge of burglary, two charges of theft and one charge of possession of cannabis and possession of a pipe. The  appellant  stole  a  mountain  bike,  gardening  tools  and  a  tool  box  from  a residential garage, causing $672 worth of damage to the garage.   He then stole a lawnmower from a garden three days later.  He appeared in the District Court and was granted bail.  While on bail, he pumped $68 worth of petrol into his car without
paying for it.  Cannabis and a pipe were found when his property was searched.32

[45]     On appeal, the Court adopted the traditional three-step approach to fixing the starting point.  It considered that the burglary was opportunistic and at the lower end of the scale of offending.  It did not warrant a starting point of more than one year’s imprisonment.33

[46]     The Court considered that the theft and possession offences, although minor in themselves, had been committed on bail and warranted an uplift of six months from the starting point. The appellant had 89 previous convictions, 13 of which were for burglary and another 34 of which were property-related offences.   The Court
considered  the  dishonesty  convictions  were  directly  relevant  to  the  burglary

30	Many of Mr Tairi’s previous convictions are for property under $500, and some for $500-$5,000.
31	At [19].

offending and showed that previous sentences of imprisonment had not deterred the appellant. They justified a further increase of one year from the starting point.34

[47]     As noted, Mr Tairi relies on the Court of Appeal decision in Tutakangahau v R.  I consider this case to be helpful.  In that case, the appellant went into two tents and stole clothing and other personal items at a music festival.   He admitted the offence the next day and showed the police where the goods were hidden.   The appellant was 18 at the time of the offending.  As noted, the District Court Judge had sentenced the appellant to 11 months’ imprisonment.  On appeal to the High Court, Brown J accepted that the District Court Judge had inaccurately described the appellant’s previous convictions as “chapter upon chapter of previous offending” on
11 previous occasions.35   Rather, as a 15 year-old, the appellant had been involved in

a spree of burglary offending over a four month period in 2010.   He had been sentenced to supervision and reparation.   The appellant had then committed one further burglary in 2011 and was sentenced to reparation only.  However, Brown J considered  that  despite  this,  the  sentence  had  been  within  range  and  that  the District Court Judge had been right to consider that the discount for youth was offset by the appellant’s previous offending.36

[48]     The appellant then appealed to the Court of Appeal.  With reference to R v Columbus, the Court found that the starting point was outside of the available range. Although both sets of offending were opportunistic, R v Columbus involved the added features of damage and entry into a garage attached to a dwelling-house.  The Court of Appeal considered that this meant that a starting point of no more than 12 months’  imprisonment  was  appropriate.    The  District  Court’s  approach  to  the discount for youth was inappropriate and based on the error made in the nature and scope of the previous offending.  Therefore, the Court quashed the sentence of 11
months’ imprisonment and substituted a sentence of six months’ imprisonment.37

34	At [17]-[20].
35	Tutakangahau v R, above n 3, [20].
36	At [26].
37	Tutakangahau v R above n 3, at [41]-[48].

[49]     I have also found the Court of Appeal’s decision in R v Stevens helpful.38   In that case,  the appellant  successfully appealed against a sentence of three  years’ imprisonment for one count of burglary and drug-related offences.   The appellant cleaned a commercial building and had access to the building.  The appellant took several metres of copper piping valued at $350.  The Court of Appeal accepted that the aggravating  features  were premeditation,  breach  of trust,  at  the time of the burglary the appellant was under a sentence of community detention and intensive supervision, and the appellant had a criminal history, including 60 dishonesty convictions.  However, the Court also noted that the value of the property stolen was low and that an appropriate starting point would have been no more than 18 months’ imprisonment.    The  Court  found  that  the  Judge’s  uplift  of  12  months  for  60 dishonesty offences was within range, but noted that the appellant was not in the recidivist burglar category as he only had three burglary convictions and the last of these was in 1997.  The Court also considered that the uplift of nine months’ imprisonment for drug-related offences (which occurred while the appellant was on bail for burglary) was within range.  Applying a discount of a little over 20 per cent for the early guilty plea, the Court arrived at an end sentence of two years, six
months’ imprisonment.39

[50]     Justice Clifford’s decision in Plium v Police in 2012 is also relevant.40    The appellant successfully appealed against a sentence of 21 months’ imprisonment for two charges of burglary.  The first charge arose out of a burglary that had occurred
10 years earlier in 2002 when the appellant broke into a pharmacy and took a safe worth between $500 and 600, and cold and flu preparations.  In 2011, the appellant was arrested and charged with theft.  At this stage, a sample of his DNA was taken and matched to DNA found at the 2002 crime scene.  The appellant pleaded guilty to the 2002 offending and was charged with burglary.   While on bail for the 2002 offending, he broke into a boiler room in a derelict hospital, with an associate.  He
removed a copper cylinder and piping, and sold it for $735.41

38	R v Stevens [2009] NZCA 190.
39	At [13]-[16].
40	Plium v Police [2012] NZHC 1592.
41	At [2]-[7].

[51]     The High Court considered that a starting point of 18 months would have been appropriate.  This was because the offender was not properly characterised as a recidivist burger: although he had committed four burglaries, two of these were committed 20 and 30 years previously, and the 2002 burglary was 10 years ago. Further, the greatest number of the appellant’s 28 dishonesty charges occurred before
2000.  The burglaries were not of domestic premises and they lacked sophistication. Only the aggravating factor of offending while on bail was present.   Clifford J, therefore, uplifted the starting point by four months for the offending while on bail, allowed a discount of 25 per cent for the guilty plea and reached and end sentence of
16 months’ imprisonment.42

[52]     Finally, in McArthur v Police, Toogood J upheld a sentence of 15 months’ imprisonment.43    The appellant had been drinking with friends and began walking home.   The appellant and one other associate acted as lookouts, while two others entered a shed on a residential property and stole some tools and a baseball bat.  The appellant had two previous burglary convictions and one conviction for theft from a dwelling.   Toogood J considered that while the District Court could have taken a
lower starting point, the starting point of 16 months’ imprisonment was within range. Whilst His Honour considered that a two month uplift for previous convictions might have been more appropriate than the four month uplift the District Court instead imposed, he considered that there could equally have been a further two month uplift to recognise that the appellant had been serving a community-based sentence at the time. The 25 per cent discount for guilty plea was also appropriate.

Analysis

[53]     The burglary offending was at the low end of the scale of offending.  There is no evidence of premeditation and the value of the property stolen was low – $370. However, the burglary was of a domestic residence, and damage was done to the property.  The burglary also seems to have had a significant impact on the victims. The cases cited above show that starting points of between 12 months and 18 months
have been adopted for similar offending.

42	At [13]-[18].
43	McArthur v Police [2014] NZHC 201.

[54]     I consider R v Columbus to be comparable.   Whilst the goods taken were more valuable in that case, no damage was caused, and the case involved entry to the garage, rather than the actual house.  The starting point in that case was 12 months’ imprisonment.  On the other hand, the offending was more serious than the offending in Tutakangahau, where a 12 month starting point was also adopted.  R v Stevens, where 18 months was taken as the starting point, was more serious because the offending was premeditated and involved a breach of trust.  The starting point also reflected the fact that the appellant was serving a sentence of community service at the time of the offending.  However, Stevens did not involve a residential property. In contrast, the offending in McArthur was much less serious than the offending in the current case.  As noted, this received a starting point of 16 months, although the Court noted this could have been lower.

[55]     Based on these cases, and the guidance in Arahanga v R, I consider that a starting point of 16 months’ imprisonment was appropriate.  The cases cited above show that an uplift of four months for offending on bail would be warranted.  In R v Columbus, an uplift of one year was given for 89 previous convictions, 13 of which were for burglary, and a further 34 property-related.  In R v Stevens, a one year uplift was  also  given  for  60  previous  dishonesty  offences,  including  three  burglary offences.

[56]     In this case, Mr Tairi had 22 previous convictions for burglary; 21 of these offences occurred during a spree of offending between June to August in 2008.  The other burglary charge was for a further burglary in December 2011.  As well as this, there are two charges for shoplifting in 2011 and one in 2013.   He therefore has fewer previous dishonesty convictions than in the other two cases.  The bulk of this offending occurred during a spree in 2008, when the appellant was only 21.  Whilst his conviction history is similar to the appellant’s in Tutakangahau, the appellant in that case was only 15 at the time of the previous offending.  In McArthur, where a two month uplift was considered most appropriate, the appellant only had three previous convictions.

[57]     Therefore, I consider that an appropriate uplift would have been four months for  offending  while  on  bail,  and  a  further  four  months  for  Mr Tairi’s  previous

convictions.  This uplift would recognise the need for deterrence in the case of repeat burglary offences, as noted in Senior, whilst acknowledging that the vast majority of Mr Tairi’s prior convictions arose from a spree of burglaries when he was 21.

[58]     Judge Burnett did not specifically treat the burglary offence having occurred while Mr Tairi was still subject to intensive supervision as an aggravating factor, which warranted a further uplift.  The same went for the final warning.  I agree with that approach.   Whilst such conduct is a further reflection of contempt for court- imposed orders, I consider that the four month uplift to take account of offending while on bail is sufficient to cover all such conduct.

[59]     Accordingly,  I  consider  the  appropriate  adjusted  starting  point  to  be  24 months’ imprisonment. Allowing a 25 per cent discount for a guilty plea would give an end point of 18 months’ imprisonment.

Assault charges

Relevant law

[60]     The District Court Judge imposed a sentence of 11 months’ imprisonment that she had indicated at the sentencing indication.  This figure was arrived at from a starting point of 14 months’ imprisonment.  Assuming that the Judge did not make any uplifts for personal aggravating features, this would mean that the Judge gave a discount for the guilty plea of just above 20 per cent, rather than a full 25 per cent discount.  The sentence of 11 months’ imprisonment was the higher of a sentence indication given to Mr Tairi on 24 June 2014.  The sentencing indication notes show that at that time, Judge Burnett had in mind possible sentences of home detention or community detention.   This might explain why the Judge stated in the sentencing indication notes that an early guilty plea would reduce the sentence to one of “about
10 months … or maybe 11 months’ imprisonment” without attempting to be more precise about discount for a guilty plea.

[61]     There is no guideline judgment for the offence of assault with intent to injure. In Samuel v R, the Court of Appeal indicated that it would not be appropriate to rely

on the bands discussed in R v Harris for injures with intent to injure,44  because in those cases, the intention of the offender and the actual injury sustained by the victim broadly correspond.  However, in a case of assault with intent to injure:45

While the mental state of the appellant involved an intention to injure his physical act involved only an assault. In the absence of the broad correspondence between the nature of the act and the relevant intention, as discussed in Harris, we consider that the appropriate starting point is to be determined  by  reference  to  all  of  the  circumstances  of  the  offending including the intent involved, any aggravating features and the nature of the injuries sustained.

[62]      On the other hand, in R v Collier, the Court of Appeal applied the bands given for injures with intent to injure in Harris.46   The Court of Appeal noted that the guidance in Harris makes it clear that the aggravating and mitigating features of the offending would be relevant to the starting point.47

[63]     Samuel v R was an unsuccessful appeal against a sentence of two years, five months’ imprisonment for one charge of assault with intent to injure, intentional damage, and male assaults female.   The appellant punched the victim, his former partner, twice in the face with a closed fist, causing her to fall to the floor.   The appellant prevented her from standing up for about two minutes, before letting the victim go.   The victim then tried to call the police, but the appellant pulled the telephone jack out of the wall.  The victim’s flatmate attempted to come between the two, but the appellant punched the victim, also connecting with the head of the flatmate.  The appellant threw the victim’s laptop on the floor.  The victim suffered significant facial swelling and a sore eardrum.  She had to take a week off work and suffered from anxiety, depression and lack of sleep.  The Court of Appeal agreed that the aggravating features were the blows to the head, the offending occurred in the victim’s home, the appellant made it difficult for the victim to call the police, and there was “wanton destruction of property”.  It considered that the Judge’s starting point of 20 months’ imprisonment was appropriate.  The Court also considered that
an uplift of six months’ imprisonment for the two other charges, and a further uplift

44	The guideline judgment for injures with intent to injure before R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
45	Samuel v R, above n 9, at [14].
46	R v Collier [2012] NZCA 208.
47	At [11].

of nine months’ imprisonment for previous convictions for violence,48  and that the offender was subject to a sentence of community work at the time, were appropriate. Accordingly, the Court dismissed the appeal.

[64]    I have considered Samuels, as well as the decisions relied upon by the respondent.49      I have also  considered  the decision  of Wylie J  in  Taemoerao  in relation to the Judge’s opinion that a starting point of nine months’ imprisonment for the different offence of male assaults female, though involving an assault of a similarly serious nature to the present assault was “stern”.50

[65]     In the present case, the starting point and end sentence for the assault with intent to injure offending was within the range.  Further, given that the starting point and end sentence for this offence followed a sentence indication that resulted in a guilty plea, I see no basis for re-assessing this sentence upwards.51

Did the end sentence reflect the totality of the offending?

[66]     Adding together the sentences of 18 months’ imprisonment and 11 months’ imprisonment,  I have  come  to  an  end  sentence  of  two  years  and  five  months’ imprisonment.    Before  considering  whether  this  outcome  reveals  the  sentence imposed on Mr Tairi to be manifestly excessive, I must consider if the outcome that I have reached reflects the totality of the offending.

[67]     Before the burglary offence, Judge Burnett clearly was of the view that a non- custodial sentence could be imposed for the assault with intent to injure offence. Consequently, she did not consider that the seriousness of this offending warranted a sentence  of  imprisonment.    That  only  came  about  as  a  result  of  the  burglary offending.   Once that occurred, it was clear that whatever the length of sentence might be, it would be one of imprisonment.  Given the proximity of the two offences, the circumstances of the offending and Mr Tairi’s circumstances, including the fact
that one of the offences would not of itself have resulted in his imprisonment, I

48	Which included two charges of injury with intent to injure and two charges of assault with an instrument and common assault.
49	Paikea v Police, above n 10; Fraser v Police, above n 12; and Maney v Police, above n 13.
50	At [27].
51	R v Edwards [2006] NZSC 52, [2006] 3 NZLR 349 at [8].

consider an end sentence of two years and five months’ imprisonment to be wholly out of proportion to the gravity of the offending.  A further reduction is required.  I consider that a sentence of two years and three months’ imprisonment to be a better reflection of the gravity of this offending.

[68]     The end sentence that I have arrived at is well short of the two years and eight months’ imprisonment that Judge Burnett imposed.  It follows that the sentence is manifestly excessive, which in turn shows that there was an error in the sentencing in the District Court.  I am satisfied, therefore, that the appeal must be allowed.

[69]     As cumulative sentences are appropriate, I propose to reduce each of the end sentences that I have arrived at by one month.

Result

[70]     The appeal is allowed and the sentences imposed in the District Court for the offences of assault with intent to injure and burglary are set aside.

[71]     For the assault with intent to injure, Mr Tairi is sentenced to 10 months’ imprisonment.  For the burglary, he is sentenced to 17 months’ imprisonment.  The terms of imprisonment are to be served cumulatively.  The total sentences come to two years and three months’ imprisonment.  The sentence for the offence under the Land Transport Act remains the same as that imposed in the District Court.

Duffy J