Allen v R
[2022] NZCA 630
•15 December 2022 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA715/2021 [2022] NZCA 630 |
| BETWEEN | WIREMU TAMAHANA ALLEN |
| AND | THE KING |
| Hearing: | 23 June 2022 |
Court: | Cooper P, French and Collins JJ |
Counsel: | C J Nicholls for Appellant |
Judgment: | 15 December 2022 at 10.00 am |
JUDGMENT OF THE COURT
AThe application to adduce fresh evidence is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper P)
On 20 March 2020, Wiremu Allen pleaded guilty to a charge of being party to wounding with reckless disregard for the safety of others.[1] On 23 July 2020, he was sentenced by Clark J to the maximum penalty of seven years’ imprisonment pursuant to s 86D of the Sentencing Act 2002 because the offence was his “third strike”.[2] However, the Judge declined to order that he serve the seven‑year sentence without parole, holding that would be manifestly unjust.[3]
[1]Crimes Act 1961, ss 66 and 188(2).
[2]R v Allen [2020] NZHC 1796 [Sentencing judgment].
[3]At [51]. See generally Sentencing Act 2002, s 86D(3).
At sentencing, the Judge noted that were it not for the three strikes regime she would have allowed a 25 per cent discount in recognition of Mr Allen’s early guilty plea.[4] There would also have been a discount of 20 per cent in recognition of cultural factors and Mr Allen’s potential for rehabilitation.[5] The result would have been an end sentence of two years and one month’s imprisonment.[6]
[4]At [36].
[5]At [37].
[6]At [37].
In Fitzgerald v R, the Supreme Court held that the maximum penalty should not be imposed on a third strike offender if that sentence would breach s 9 of the New Zealand Bill of Rights Act 1990, which affirms “the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment”.[7]
[7]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
The short question presented by this appeal is whether the seven-year sentence was disproportionately severe compared with the sentence of two years and one month which would have otherwise been imposed.
Before confronting that issue, we give a brief summary of the offending and the circumstances relating to Mr Allen that are relevant for present purposes.
The offending
At 12.50 am on 15 June 2019, Mr Allen and a co‑offender, Mr Karaitiana, broke into a flat occupied by the victim, Mr Amituanai, by forcing open a locked exterior kitchen door. They were both armed with pistols. Mr Amituanai was asleep in a room next to the kitchen. Mr Allen and Mr Karaitiana confronted him, telling him that he owed them money.
Mr Amituanai sat up in bed where upon Mr Allen punched him on the side of his face. As Mr Amituanai tried to stand up, Mr Karaitiana grabbed him by the front of his t-shirt. The pistol held by Mr Karaitiana was then discharged, wounding Mr Amituanai in the left knee. The Crown accepted at sentencing that the discharge of the pistol was accidental.
Mr Allen began to rummage through Mr Amituanai’s drawers while Mr Karaitiana kept Mr Amituanai in the lounge. Mr Amituanai managed to escape, running outside to a neighbouring address from where he telephoned the police. Mr Allen and Mr Karaitiana left with Mr Amituanai’s wallet containing $460 cash, and a phone valued at approximately $200.
Mr Amituanai required surgery to remove the bullet lodged in his knee. His walking continues to be impacted. He was unable to start a new job and has ongoing concerns about the safety of his children.
Guilty plea
Mr Allen was charged with aggravated burglary. A charge of aggravated robbery was subsequently added. On 13 March 2020, Mr Allen sought a sentence indication in respect of one charge of wounding with reckless disregard, on the basis that if the sentence indication were accepted, the Crown would seek leave to amend the aggravated burglary charge to one of wounding with reckless disregard, and withdraw the aggravated robbery charge.[8] The Judge confirmed that the maximum term of imprisonment for wounding with reckless disregard, seven years, would have to be imposed.[9] On the material before her, she concluded it would not be manifestly unjust to impose a non-parole order, but noted that the sentence indication was given without a pre-sentence report or a report provided under s 27 of the Sentencing Act.[10]
[8]R v Allen HC Wellington CRI-2019-096-2216, 13 March 2020 [Sentence indication].
[9]At [8].
[10]At [30] and [38].
Mr Allen accepted the sentence indication on 20 March 2020. He pleaded guilty to wounding with reckless disregard, which was substituted for the offence of aggravated burglary. The Crown withdrew the aggravated robbery charge.
Sentencing
The Judge adopted a starting point of three and a half years’ imprisonment.[11] Mr Nicholls had argued for Mr Allen that a starting point of three years was appropriate, based on the starting point adopted in R v Davis.[12] The Judge however thought that Mr Allen’s offending was more serious due to the presence of his co‑offender, the level of premeditation involved in bringing weapons to the address, and the fact that property was stolen.[13] She then applied an uplift of 10 per cent to take account of Mr Allen’s extensive criminal history.[14] That resulted in a sentence of three years and 10 months before Mr Allen’s personal circumstances were considered.[15]
[11]Sentencing judgment, above n 2, at [19].
[12]R v Davis [2015] NZHC 2289.
[13]Sentencing judgment, above n 2, at [19].
[14]At [20].
[15]At [20]–[21].
The Judge then considered Mr Allen’s s 27 report. This, she found, provided “an ample basis to infer a causative connection” between the offending and what she described as “the immense social disadvantages that [had] characterised [Mr Allen’s] life”.[16] She mentioned the following:[17]
(a)From a young age you were exposed to family violence and gangs, with your stepfather a member of Black Power Taranaki. Due to the prevalence of violence in your home environment you were uplifted from your family and made a state ward at the age of four. While in state care you were placed into a Wellington church community where the abuse to which your counsel has referred took place. For much of your adolescence you were transient, moving from school to school in Auckland, Whanganui, Fielding and Wellington. This experience left you dislocated and unable to build social or familial bonds.
(b)The way you dealt with your traumatic upbringing was to self‑medicate. You began abusing drugs and alcohol at a very young age. As the report notes, use of alcohol and drugs carries an increased risk of mental health issues. In your case a psychiatric report in 2014 recorded you as being “homeless, unemployed, unwell and suicidal.” The risk assessment carried out at the time detailed a distressing family background with early integration into the Mongrel Mob. You learned while in prison in 2006 that your 16 year old sister had taken her own life. You made up your mind at that point to carve out a life for yourself.
(c)The report says that you, like so many young urbanised
Māori, tried to find kinship and support in the “tribe of Nga Mokai” — the Mongrel Mob and then the King Cobras. After the death of your sister, you became disillusioned with the lack of support in the Mob and attempted to leave, but other gang members did not accept this and you were shot in retaliation. You cut ties with the Mob and for a period attempted to turn your life around and took up employment as a concrete layer but could not adapt to the new lifestyle and soon you were pulled back into gang ties by your uncle, an officer in the King Cobras.[16]At [25].
[17]At [25] (footnotes omitted).
The Judge had no doubt that Mr Allen’s unstable and abusive background and his early exposure to violence had led him to live “at the very margins of society”.[18] She accepted that the events and deprivations recounted in the s 27 report were intimately connected with the offending.[19] After making comparisons to analogous cases, she decided that a discount of 15 per cent to take account of these factors would be appropriate.[20] She thought the discount was also warranted by the “apparent failure [of] the state” to protect Mr Allen when he was taken at a young age into its care.[21]
[18]At [26].
[19]At [29].
[20]At [30].
[21]At [30].
The Judge also had before her a report prepared by a registered drug and alcohol practitioner, Ms Casey. The Judge noted the report said that Mr Allen had begun consuming alcohol and using cannabis when he was aged 11 and 12.[22] Methamphetamine use followed in his teenage years. The report further stated that Mr Allen was at risk of returning to substance abuse following release if he did not receive treatment and adequate support. Previously, as a result of attendance at the Salvation Army Bridge programme, his issues with alcohol and drug abuse had abated. However, soon after release from prison, there was an incident in which Mr Allen was shot in the chest, which was when he turned back to alcohol as a coping mechanism for post-traumatic stress. Referring to this Court’s decision in Zhang v R, the Judge recorded her view that there was insufficient evidence before her to demonstrate that addiction was causative of the offending.[23] By itself addiction would not justify a separate discount. But it was relevant in the sense that substance abuse engaged the sentencing purpose of assisting an offender’s rehabilitation and reintegration.[24] The Judge concluded that a discount of 20 per cent would properly recognise the “complex factors and systemic deprivation”, as well as Mr Allen’s rehabilitation potential.[25]
[22]At [31].
[23]At [33]–[34], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[24]Zhang v R, above n 23, at [146]. See also Sentencing Act, s 7(1)(h).
[25]Sentencing judgment, above n 2, at [35].
In the result, taking account of these discounts from the uplifted starting point of three years and 10 months, the Judge found that an end sentence of two years and one month would be appropriate, but for the effect of the three strikes regime.[26]
[26]At [37].
The Judge then turned to consider whether it would be manifestly unjust to order Mr Allen to serve the seven-year sentence without parole. She decided it would be manifestly unjust.[27] She gave her reasons as follows:
[47] Your whānau life was chaotic from the start and led to you being uplifted into state care when only four years of age. Predictably, the sense of abandonment when you were sent to Auckland would have been acute. You felt as though your family had given up on you. From early childhood you wished you hadn’t been born.
[48] You were exposed to abuse while in state care and you learned from a young age to regard violence as normal behaviour. You were primed in life to do the bidding of your gang superiors.
[49] Two main themes seem to have characterised your life experience to this point:
(a)what the s 27 cultural report writers describe as “the multiple eviscerating emotional, physical, mental, sexual, and psychological lacerations visited upon [your] spirit as a child and as a teenager”; and
(b)intense exposure to gang life. Unsurprisingly your abandonment and dislocation from your biological whānau and your transience meant you have not built social bonds. You have become institutionalised and your underlying addictions have not been treated.
[50] The re-entry into the community and re-unification with your direct whānau can be contemplated if you undertake the comprehensive residential treatment programme that has been recommended for you to unwind your addictions and identify and treat your many psychological and emotional injuries.
[51] As you yourself have observed, rehabilitation — or the rehabilitation you have experienced — has involved sitting in a room dormant for years before doing a few programmes. Dr Grigor, who completed the psychiatric assessment in 2014 was impressed with your insight and intellect. Although you met the criteria for antisocial personality disorder at the time, Dr Grigor believed your prognosis was positive. The Department of Corrections report assesses you as having a high likelihood of reoffending and posing a high risk of harm to others but it also states that you need to undertake rehabilitation and the possibility of being granted parole would encourage and incentivise you to do that. Your rehabilitative potential is real. It is in the broader community interest that you should succeed. For these reasons I decline to order that you serve the sentence without parole.
[27]At [46].
In the result, the Judge sentenced Mr Allen to seven years’ imprisonment, and declined to order that he serve the sentence without parole.[28]
[28]At [53].
Mr Allen has been in custody since his arrest on 20 August 2019. Had he not been subject to the three strikes regime, the sentence of two years and one month’s imprisonment would have been imposed and he would have been eligible to apply for parole after eight months and 10 days in custody, that is, on 1 May 2020.[29]
The appeal
Application to adduce fresh evidence
[29]Section 90 of the Parole Act 2002 provides that the time an offender serves in pre-sentence detention is to be taken into account when calculating his or her parole eligibility date.
Mr Allen attached to his written submissions a Parole Board decision and accompanying psychological report. Implicitly he seeks to rely on these for the purpose of the appeal and it is appropriate that we receive the further documents. They provide relevant contextual information on Mr Allen’s first parole hearing and some of the rehabilitative steps he has taken while in prison.[30] We grant the application to adduce this fresh evidence.[31]
Submissions
[30]At this hearing Mr Allen did not seek parole as he was undertaking a rehabilitation programme for violent offenders that was due to finish in June 2022: Re Allen Parole Board Decision, 15 December 2021 at [9]. Mr Allen commenced treatment under this programme in November 2021.
[31]Court of Appeal (Criminal) Rules 2001, r 12B.
First, Mr Nicholls relies on Fitzgerald to submit that the seven-year sentence imposed on Mr Allen amounts to disproportionately severe punishment. He notes that the term is four years and 11 months (3.36 times) longer than the sentence that the Judge said she would have imposed of two years and one month but for s 86D(2) of the Sentencing Act. He draws a comparison with Mitai-Ngatai v R, in which this Court held that a sentence of seven years’ imprisonment, which was 3.5 times longer than what would have been imposed but for the three strikes regime, breached s 9 of the Bill of Rights.[32]The Court allowed the appeal, quashed the seven-year sentence and substituted a sentence of two years’ imprisonment.[33]
[32]Mitai-Ngatai v R [2021] NZCA 695.
[33]At [32].
Second, while acknowledging that the offending was serious and of a type that the three strikes regime was intended to target, Mr Nicholls raises two issues with the regime more broadly, namely that it does not account for either whether an offender pleads guilty, or whether there are mitigating factors personal to the offender that justify a reduction in sentence. Mr Nicholls says that both these factors were critical in Mr Allen’s case.
The Crown rejects the claim that the seven-year sentence breaches s 9 of the Bill of Rights. Mr Marshall acknowledges the necessary inquiry involves a comparison of the sentence that would have been imposed but for the three strikes regime and the sentence mandated by that regime. But he submits that for a sentence to breach s 9 something more is required than one that is severe, excessive or disproportionate. While the sentence here exceeds that which would have otherwise been imposed, this level of disproportionality does not infringe s 9.
Mr Marshall submits that the imposition of the maximum seven-year penalty for offending involving being a party to the shooting of a person during an armed home invasion by two co-offenders to enforce a drug debt would not “shock the conscience of properly informed New Zealanders who were aware of all the relevant circumstances”.[34] The sentence accordingly does not infringe s 9.
[34]Citing Fitzgerald v R, above n 7, at [79]–[81] per Winkelmann CJ, [239] per Glazebrook J and [167] per O’Regan and Arnold JJ. The quote is from Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350 at [43] per Clifford and Goddard JJ.
Mr Marshall also argues that the Judge’s “but for” sentence of two years and one month was at the lowest end of the available range, if not below it. An end sentence in excess of three years would have been available, and the s 9 assessment should be informed by the appropriate sentencing range. A starting point of four to four and a half years’ imprisonment would have been justified.[35]
[35]Relying on R v Hapi CA304/03, 18 May 2004; R v Davis, above n 12; Kulimoeanga v R [2016] NZCA 129; and Harawira v R [2014] NZCA 8.
In terms of discounts, Mr Marshall does not contest the 10-per-cent uplift for Mr Allen’s extensive criminal history, or the 20-per-cent discount for matters referred to in the s 27 report and Mr Allen’s prospects of rehabilitation. However, Mr Marshall submits that the Judge was overly generous in giving Mr Allen a 25 per cent discount for his guilty plea. Mr Marshall says that a 15 per cent discount would have been more appropriate, given Mr Allen pleaded guilty to a reduced charge that carried half the maximum penalty of the charges originally laid.
On this basis, Mr Marshall submits that the appropriate end sentence should have been between three years, and three years and five months’ imprisonment. That would mean the seven‑year sentence imposed was 2 to 2.3 times longer than the sentence Mr Allen would have otherwise received. While this disparity is significant, it is of a lesser magnitude than in Mitai-Ngatai, which involved a disparity of 3.5 times, a difference this Court considered was very close to not infringing s 9.[36]
[36]Mitai-Ngatai v R, above n 32, at [28]–[30].
Mr Marshall further submits that an end sentence of three years to three years and five months would mean that the seven-year sentence would have the effect of deferring Mr Allen’s parole eligibility by around 16 months, which falls well short of the six years that was decisive in Matara v R,[37] and the four years and three months in Crowley‑Lewis v R.[38] The disparity cannot therefore be considered “shocking”.
[37]Matara v R [2021] NZCA 692, (2021) 12 HRNZ 944 at [5(b)], [66], [70] and [74].
[38]Crowley-Lewis v R [2022] NZCA 235 at [33]–[34].
Finally, Mr Marshall argues there is no evidence that Mr Allen’s seven-year sentence will have a disproportionately severe effect on him due to significant mental health concerns, as was the case in Fitzgerald.[39]
Discussion
[39]Fitzgerald v R, above n 7.
Since Fitzgerald, this Court has had to consider appeals alleging sentences imposed under the three strikes regime have breached the s 9 right not to be subject to cruel or disproportionately severe punishment in six cases. They have been:
(a)Phillips v R, in which a seven-year term of imprisonment for a low‑level indecent assault was held to breach s 9.[40] This Court considered Mr Phillips’ offending was more serious than Mr Fitzgerald’s, but still at the lower end of the spectrum of indecent assaults.[41] The seven-year sentence was 5.6 times longer than the sentence of 15 months’ imprisonment that would have been imposed but for the three strikes regime;[42]
(b)Mitai-Ngati, which we have already discussed;[43]
(c)Matara, which involved an appeal against a second-strike sentence.[44] Mr Matara had been ordered to serve his 10-year-and-two-month sentence for attempted murder without parole. But for the mandatory non-parole order, the Judge would have imposed a minimum period of imprisonment of 40 per cent, meaning Mr Matara would have had to serve a sentence that was 2.5 times longer, amounting to a difference of six years and one month. This Court considered that difference was “grossly disproportionate to the circumstances, especially having regard to Mr Matara’s mental illness and psychosis at the time of offending”;[45]
(d)Crowley-Lewis, in which this Court refused to make a non-parole order in respect of Mr Crowley-Lewis’s second-strike offence for rape, relying principally on the limited seriousness of his first-strike offending;[46]
(e)Sheers v R, in which this Court quashed a 14-year sentence for an aggravated robbery and substituted a sentence of three years’ imprisonment.[47] The 14-year sentence was held to have breached s 9 as it was 11 years longer than the but for sentence,[48] and would be disproportionately severe having regard to Mr Sheers’ foetal alcohol spectrum disorder;[49] and
(f)Love v R, in which a 10-year sentence for a robbery was quashed and replaced with one of 18 months’ imprisonment.[50] This Court held the disparity was so great as to cause “shock” to the national conscience.[51]
[40]Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661.
[41]At [31] and [39].
[42]At [36].
[43]Mitai-Ngati v R, above n 32. See [21] and [27] above.
[44]Matara v R, above n 37.
[45]At [74].
[46]Crowley-Lewis v R, above n 38, at [33].
[47]Sheers v R [2022] NZCA 618.
[48]At [20], [23] and [28].
[49]At [25]–[28].
[50]Love v R [2022] NZCA 614.
[51]At [18].
Two of the above cases, Sheers and Love, were decided since the hearing of this appeal. At the hearing, Mr Nicholls placed most emphasis on Mitai-Ngatai, which he submitted involved a very similar mathematical disparity between the sentence imposed and that which would have been imposed but for the three strikes regime. He submitted that since this Court allowed the appeal there, it should similarly allow the appeal here.
However, contrary to those submissions, there are aspects of the present appeal which distinguish it from Mitai-Ngatai. First, there is the question of what sentence would properly have been imposed on Mr Allen but for the three strikes regime. We consider there is merit in Mr Marshall’s argument that the Judge’s starting point of three and a half years’ imprisonment was on the lower side of the available range and that a starting point of four years would have been justified. Likewise we consider there is merit in the submission that the 25 per cent discount afforded to Mr Allen for his guilty plea was generous, coming as it did after a sentence indication on a substantially reduced charge. The context was an arrangement reached with the Crown that it would not proceed on charges carrying a maximum penalty of 14 years’ imprisonment but allege instead a single charge carrying a maximum penalty of seven years’ imprisonment, naturally attracting a lower starting point.
It is relevant to observe that a starting point of five and a half years’ imprisonment was adopted for Mr Allen’s co-offender, who faced charges of aggravated burglary and wounding with reckless disregard.[52] Both Mr Allen and Mr Karaitiana were sentenced on a materially identical summary of facts. In these circumstances the full guilty plea discount of 25 per cent is likely to have contained an element of “double benefit” for Mr Allen. The observations of the Supreme Court in Hessell v R are apposite here:[53]
[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. …
[52]R v Karaitiana [2020] NZHC 91 at [17].
[53]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
We therefore accept the Crown’s proposition that a discount for the guilty plea of 15 per cent would have been more appropriate than the 25 per cent postulated by the Judge. That means an end sentence of three years imprisonment[54] would have been more appropriate than the two-year-and-one-month sentence identified by the Judge.
[54]This takes into account the 10 per cent uplift for Mr Allen’s criminal history, and the 20 per cent discount for the factors identified in his s 27 report.
Second, although Mr Mitai-Ngatai’s appeal was allowed, the Court noted that the seriousness of his offending and his previous conviction history was such that his case came “close” to being one that did not offend s 9 of the Bill of Rights.[55] Further, the Court considered his offending was “very close” to the kind the authors of the three strikes regime might have contemplated in the first place.[56] The Court also emphasised that the appeal was allowed “because of the generous attitude taken by the Crown … and because of the amount of time Mr Mitai-Ngatai ha[d] [then] spent in prison for th[e] offence”.[57]
[55]Mitai-Ngati v R, above n 32, at [30].
[56]At [29]
[57]At [31].
In terms of parole eligibility, the more appropriate “but for” sentence of three years imprisonment would mean Mr Allen would become eligible for parole after having served one year, compared to the two years and four months he would have to serve based on his seven‑year sentence. This difference, of one year and four months, or 2.3 times, falls far short of the 7 times multiplicative difference in Mitai‑Ngatai,[58] and short of the 2.5 times difference in Matara.[59]
[58]At [28].
[59]Matara v R, above n 37, at [74].
Mr Nicholls properly accepts in this case that a sentence of imprisonment was inevitable. In terms of the nature of the offending, as the Crown submits, this was a very serious case involving Mr Allen being party to the shooting of a person during an armed home invasion by two co‑offenders to enforce a drug debt. Mr Allen’s previous strike offences, for injuring with intent and robbery, also involved serious offending that resulted in terms of imprisonment. This latest offence appears to be the most serious, so it cannot be said that he is an “inadvertent and unforeseen casualty of the three strikes regime”.[60] There is a marked contrast between the offending here and that in Phillips, where the Court considered that, as in Fitzgerald, the offending was not of the kind contemplated by the three strikes legislation, and was at the low end of the spectrum of indecent assaults.[61]
[60]Phillips v R, above n 40, at [39].
[61]At [39].
For completeness, we note this is also not a case like Fitzgerald or Matara, in which the offenders were found to have been suffering from significant mental illness at the time of their offending and/or at the time they received their previous strike warnings.[62] It cannot be said here that the imposition of the maximum penalty would infringe s 9 by preventing Mr Allen from getting the help he needs. There is no evidence that Mr Allen suffers from ongoing mental health issues or that he did not understand the consequences of his previous strike warnings. To the contrary, he is receiving rehabilitative treatment while in prison, and did not seek parole at the first opportunity precisely so he could complete the rehabilitative programme.
[62]See Fitzgerald v R, above n 7, at [141] per Winkelmann CJ, [324] per William Young J and [167] per O’Regan and Arnold JJ; and Matara v R, above n 37, at [67] and [74].
For all these reasons we conclude that the imposition of the seven-year maximum sentence on Mr Allen for his offending was not contrary to the right affirmed by s 9 of the Bill of Rights. The appeal should be dismissed.
Result
The application to adduce fresh evidence is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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