Tutakangahau v R

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 27 June 2014
• Neutral Citation: [2014] NZCA 279
• Docket Number: CA168/2014
• Court: Court of Appeal
• Date: 27 June 2014

BETWEEN

Thomas Teni Tutakangahau

Appellant

and

The Queen

Respondent

[2014] NZCA 279

Court:

Ellen France, French and Miller JJ

CA168/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Application to appeal a High Court decision upholding the appellant's sentence of 11 months imprisonment for 2 charges of burglary imposed in the District Court (“DC”) — appellant was 18 years old — removed property from tents in a campground — he had pleaded guilty — previous similar offence as a youth offender in the Youth Court — whether under s250(2) Criminal Procedure Act 2011 (allow the appeal if satisfied that there was an error in the sentence and a different sentence should be imposed) a different sentence had to be imposed even if the sentence imposed was within the range — whether the “manifestly unjust” test still applied for the purposes of determining the significance of the error when considering whether a different sentence should be imposed.

Counsel:

T Epati for Appellant

M J Lillico for Respondent

• A The application for leave to appeal is granted.

• B The appeal against sentence is allowed. The sentence of 11 months imprisonment is quashed and a sentence of six months imprisonment is substituted.

• C A post-release special condition that the appellant attend and complete such counselling or treatment programmes as may be directed by his Probation Officer is imposed together with the standard conditions under's 14(1) of the Parole Act 2002. These conditions expire six months after the sentence expiry date.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No
Introduction	[1]
Background	[5]
Basis of application	[9]
Should leave be granted?	[14]
The statutory scheme	[18]
Our analysis	[26]
Application to this case	[41]
Result	[48]

Introduction

1 In December 2013 the 18-year-old appellant jumped a fence and entered a camping ground at Churchill Park, Gisborne. He went into two closed tents and removed clothing and other personal items belonging to four campers who were out attending the “Rhythm and Vines” festival. The appellant was located the next morning and admitted he had stolen the property. He showed the officers where the goods were hidden. A portion of the property was unrecovered. 1

2 The appellant pleaded guilty to two charges of burglary. He was sentenced by Judge Adeane in the District Court to a term of 11 months imprisonment. 2 He unsuccessfully appealed against that sentence to the High Court. 3 He now seeks leave for a second appeal to this Court.

3 The appellant's appeal in the High Court was dealt with under's 250(2) of the Criminal Procedure Act 2011 (the Act). Under that section, the first appeal court must allow the appeal if satisfied that there has been “an error in the sentence imposed” and that “a different sentence should be imposed”. The appellant says his case raises a question about the approach to s 250(2) and, in particular, to the requirement that the Court be satisfied there has been an error.

4 Because of the appellant's imminent release date, we heard both the application for special leave to appeal and the proposed appeal. 4 On 29 May 2014 we delivered a judgment granting the application for leave and allowing the appeal. 5 We now set out our reasons for that decision.

Background

5 When the matter came before the District Court on 18 February 2014, the appellant sought an adjournment of sentencing to enable home detention to be considered. Judge Adeane declined to adjourn and proceeded to sentence the appellant. At that point the appellant was in custody, bail having been declined from 8 January 2014 when the appellant pleaded guilty.

6 In sentencing the appellant, Judge Adeane took a starting point of 15 months imprisonment relying on R v Columbus. 6 From that starting point, Judge Adeane gave a 25 per cent discount for the early guilty plea. The Judge declined to afford any further discount for the appellant's youth because he said that was offset by the appellant's previous convictions. The Judge had earlier referred to “chapter upon chapter of similar offending with all manner of intervention attempted” and to the appellant having had “youthful treatment for the same offence on 11 previous occasions”. 7

7 In the High Court, Brown J accepted that the description of the appellant's previous offending was inaccurate. Counsel for the appellant had submitted that the correct analysis was that, as a 15-year-old, between August and December 2010, the appellant had been involved in a spree of burglary offending which resulted in one intervention sentence of supervision and reparation concurrent on all matters. 8 The appellant had committed one further burglary in June 2011 for which the sentence in the Youth Court was for reparation only. The appellant did not come to the attention of the authorities again until the present case in December 2013.

8 Although the description of the appellant's previous offending was inaccurate, Brown J concluded there had been no error because, first, the sentence was within the range available and, secondly, the District Court Judge was right that any discount for youth would be offset by the uplift for the previous offending.

Basis of application

9 The appellant sought leave to argue a question about the test for a sentence appeal, namely, whether the test in s 250(2) of the Act was correctly applied. In oral argument, the Crown did not develop its written submissions opposing leave.

10 Both counsel accept that in s 250(2) the legislature has adopted the error correction approach to sentencing as described by this Court in R v Shipton. 9 However, there are some differences between counsel as to what that approach entails.

11 For the appellant, Ms Epati says that if there is an error then, irrespective of whether the sentence imposed is within range, a different sentence should be imposed although “not in a way that amounts to a minor adjustment”. 10 In this respect, Ms Epati challenges the statement made by Brown J that the High Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”. 11 Ms Epati also says there is no place now for the concept of a “manifestly” excessive sentence.

12 For the Crown, Mr Lillico submits that where the sentencing judge is exercising a discretion, the appellate court's ability to intervene is constrained. The focus in these cases is on the appropriateness of the end sentence reached, rather than the process by which it was reached. Further, he says that the significance of the error must be considered in order to determine whether or not a different sentence should be imposed. The concept of a manifestly excessive or inadequate sentence is relevant to that stage of the inquiry.

13 In terms of the application of the principles in this case, the appellant challenges the sentence imposed on two grounds, first, that the starting point was too high and, secondly, that Brown J was wrong to conclude that any discount for youth would be offset by the uplift for the appellant's previous offending. The Crown supports the approach taken by Brown J.

Should leave be granted?

14 Second appeals are governed by s 253 of the Act. Section 253(1) deals with an application by a convicted person. 12 The subsection states that:

A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of a first appeal by that person or the prosecutor under this subpart in respect of the person's sentence.

15 The threshold for leave for a second appeal is found in s 253(3). Section 253(3) reads as follows:

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that-

• (a) the appeal involves a matter of general or public importance; or

• (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

16 We were satisfied that this appeal did involve a matter of general importance, namely, the correct approach to be taken to s 250(2). This case is the first in this Court to address the interpretation of s 250(2). Although, as we have foreshadowed, the respondent formally opposed the application for leave, it was accepted the Court may consider it appropriate to address this issue. In light of that approach, we need say no more about the test for second sentence appeals. 13

17 We turn then to consider the approach to s 250. We begin by setting out the relevant statutory provisions and then discuss s 250(2) in more detail.

The statutory scheme

18 Section 250 of the Act sets out how a first appeal court must determine a sentence appeal. Section 250(2) provides that the first appeal 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.

19 The first appeal court must dismiss the appeal in any other case. 14

20 Section 251 sets out what the first appeal court must do if allowing an appeal. Section 251(2) states that:

The first appeal court must, within the limits allowed by law,-

• (a) set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

• (b) vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

• (c) remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.

21 In remitting a sentence under's 251(2)(c), the first appeal court may give the sentencing court “any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court”. 15

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