Anderson v Police

[2023] NZHC 3581

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-445

[2023] NZHC 3581

BETWEEN

JACKSON TOKOMANAHI ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 December 2023
Appearances:	M J Taylor-Cyphers for Appellant T A Veikune for Respondent
Judgment:	8 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 8 December 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

M J Taylor-Cyphers, Barrister, Auckland Meredith Connell, Auckland

ANDERSON v NEW ZEALAND POLICE [2023] NZHC 3581 [8 December 2023]

[1]                This is an appeal against a sentence of 26 months’ imprisonment imposed by Judge B R Pidwell on the following charges:1

(a)on 24 January 2023, breaching home detention;

(b)on 26 January 2023, unlawfully taking a motor vehicle;

(c)on 27 January 2023, theft of petrol valued at $50; and

(d)on 28 January 2023, theft of jewellery valued at over $10,000.

[2]The grounds of appeal are:

(a)the starting point imposed by the sentencing Judge was too high due to a failure to take into account totality in setting an adjusted starting point; and

(b)inadequate discounts for personal circumstances.

[3]In particular, additional discounts are sought for:

(a)mental health;

(b)addiction and rehabilitative efforts;

(c)remorse and willingness to participate in restorative justice; and

(d)hardship and deprivation.

1      Police v Anderson [2023] NZDC 17982.

Legal principles

[4]                The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

[5]                The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

[6]                Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[7]                An exception is where a mathematical error has resulted in a sentence more severe than the sentencing judge intended. Such an error must be corrected, giving effect to the judge’s intentions even if the sentence imposed was within the available range.7 Conversely, an error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate.8

[8]                The practical effect of these general principles is that the appellate court does not just start afresh or substitute its own opinion. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.9

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

5 At [32].

6      R v Boyd (2004) 21 CRNZ 169 at [38].

7      Tutakangahau, above n 3, at [36]; and Ferris-Bromley v R [2017] NZCA 115 at [15(a)].

8      Ferris-Bromley, above n 7, at [15(c)].

9      Tutakangahau, above n 3, at [30], referencing R v Shipton [2007] 2 NZLR 218 (CA) at [140]; and

Te Aho v R [2013] NZCA 47 at [30].

Methodology

[9]                In Moses v R, the Court of Appeal set out a two-step methodology for sentencing:10

(a)the first step is to calculate the adjusted starting point, incorporating aggravating and mitigating features of the offences;

(b)the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[10]            Totality  is  to  be  considered  at  stage  one,   before  personal   mitigating  (or aggravating) factors are taken into account.11 This is because the totality assessment is not to be influenced by personal factors that are irrelevant to the gravity of the offending.12

[11]            When dealing with a previous conviction history, an uplift is applied under the second stage.13

District Court decision

[12]            The sentencing Judge took the following approach for calculating end sentence:

(a)A starting point of 15 months’ imprisonment was adopted for the lead charge of the jewellery theft.

(b)An uplift of a further six months’ imprisonment was added for the other existing charges.

10     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

11     Polaapau v R [2020] NZCA 227 at [44].

12     Jacobson v R [2023] NZHC 1358 at [14].

13 See Stewart v R [2021] NZCA 539 at [16]; Mo’unga v R [2023] NZHC 1976 at [28]–[34]; and Matthew Downs (ed) Adams on Criminal Law – Sentencing Levels and Guidelines (online ed, Thomson Reuters) at [SAC3].

(c)An uplift of three months was then added for previous convictions.

(d)A 25 per cent discount was then applied under the second limb of Moses

for the appellant’s guilty plea.

(e)The outstanding home detention sentence was then converted to an equivalent of 10 months’ imprisonment.

(f)At that stage, the Judge took into account totality and removed two months of imprisonment. The final end sentence was 26 months’ imprisonment.

Adjusted starting point and totality

[13]            Counsel for the appellant submits that the sentencing Judge made an error by considering totality at the wrong stage. The adjustment was made after the discount for the appellant’s guilty plea was applied. The appellant’s counsel seeks a reduction of two months’ imprisonment to the global starting point in respect of this alleged error. In other words, the calculation for the global starting point should have been:

(a)A starting point of 15 months’ imprisonment for the lead charge of the jewellery theft.

(b)An uplift of a further six months’ imprisonment for the other existing charges.

(c)Two months of imprisonment removed based on the totality principle, leaving a global starting point of 19 months’ imprisonment.

[14]            The Crown submits that totality consideration ought to have been whether the total period of imprisonment (including the cumulative term as a result of the re-sentence of the home detention) was in proportion to the gravity of the overall offending. The position was explained by the Court of Appeal in Haywood v R:14

14     Haywood v R [2015] NZCA 551 at [11] (emphasis added).

Therefore, we do not think the end sentence should be approached sequentially as an adjustment of the appropriate end sentence of the burglary and assault in order to fit the totality principle. Rather, the analysis should be guided from the outset with the appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending. That is so even though technically the result is achieved by adjusting the second sentence, because the first sentence is already in place. So we think the question is not whether a two year adjustment from the starting point of eight and a half years is appropriate to satisfy s 85(2). Rather, the question is whether 13 and a half years would be wholly out of proportion to the gravity of the whole of the offending, comprising one charge of supplying 11 ounces of methamphetamine, a second charge of aggravated burglary and a third of assault with intent to rob. In doing so the sentencing Judge would bear in mind that two separate incidents were involved, that the second and third arose while on bail for the first, and that all, to a degree, arose from the appellant’s own dependence on methamphetamine. In that sense, although the offences were separate and distinct, they were also a connected sequence of events.

[15]            Accordingly, the Crown submits that there was no effective error in considering totality. It also says there is a countervailing consideration that when the sentencing Judge converted the remaining home detention sentence to an additional 10 months’ imprisonment, this was based on the incorrect understanding that the appellant had five months remaining on his home detention sentence when he absconded. In fact, there were six months remaining at that time, so this error was in the appellant’s favour (an advantage of two months’ imprisonment).

[16]            I accept it was a methodological error to consider the totality principle after the application of the guilty plea discount. On the other hand, I do not consider that the Judge intended to apply a two-month totality reduction simply for the additional existing changes, in the way suggested in [13] above. An uplift inherently takes into account the incremental significance of the other offending, and I accept that a six-month uplift for the other current charges was modest in circumstances, given that those charges included one of unlawfully taking a motor vehicle.15

[17]            The appellant has established an error, and accordingly a jurisdictional basis for this Court to form its own view of the appropriate sentence. I will therefore consider the question of totality in making my own assessment.

15     Wood v Police [2018] NZHC 1629 at [24], a single unlawful taking charge resulted in a starting point of 18 months’ imprisonment, with aggravating features present.

Previous convictions

[18]            The Crown accepts that there was an error in the way that the uplift for previous convictions was applied. As referred to above, that type of uplift should be applied at stage two, rather than stage one. However, mathematically that error favoured the appellant.

[19]            The appellant has established that this is a second error, and accordingly another jurisdictional basis for this Court to form its own view of the appropriate sentence.

Mitigating factors

[20]            The appellant seeks a further 40 per cent of discounts for factors that were not specifically addressed in the sentencing notes. It appears that this was because they were not sought at sentencing and the documents relied on (aged pre-sentence reports and a remorse letter) were apparently not before the Court, possibly because counsel for the appellant was unable to attend. As the discounts were neither sought nor substantiated in the evidence before the sentencing Judge, these do not raise any errors in the approach taken at that time. Given the errors referred to above, I nevertheless consider whether there are justified discounts that render the sentence manifestly excessive.

Addiction and rehabilitation, dislocation from whānau and mental health

[21]            Mr Anderson explained the reasons for the theft in his undated apology letter (which was written before sentencing but not placed before the sentencing Judge). He decided to cut off his tracking bracelet so that he could go to his family in their time of grief when his daughter died. Rather than drug addiction being offered as the reason for the offending, he said he committed the crimes to pay for the funeral costs. In addition, he said he just wanted to “hold my babies and be with them” and stay with them until he handed himself up.

[22]            Accordingly, I am not satisfied that there is any evidential basis establishing that the drug addiction was causatively related to the offending in the sense required in Berkland v R.16 Similarly, there is a lack of substantiating evidence to show any causative nexus between the background hardship factors and this particular offending.

[23]            Usually, s 27 information is provided from a source other than the defendant. As noted by Harland J in Mullan v Police, s 27 of the Sentencing Act 2002 contemplates that a separate person, apart from an offender but at an offender’s request, can be called by them to speak about the matters outlined in s 27(1).17

[24]            In Zhang v R, the Court of Appeal observed that ingrained systemic deprivation impairing a defendant’s choice, and therefore diminishing moral culpability, will require consideration in sentencing.18 Social, cultural or economic deprivation that has a demonstrative nexus with the offending may be relevant in mitigation.19 The cogency of any s 27 information depends on the strength of the link between any deprivation, the offender and his or her offending, and the availability of rehabilitative measures to specifically address the effects of systemic deprivation.20

[25]            In Poi v R, the Court of Appeal granted a 20 per cent discount to acknowledge the appellant’s severe deprivation and disadvantage, as well as his rehabilitative prospects and steps taken to address past trauma.21 In that case, the appellant’s background and the profound trauma he suffered had severely limited his choices, distorted his values, and impaired his decision-making ability.

[26]            Potentially separate from the issue of causation, discounts are regularly provided in recognition of steps taken by a defendant to engage in rehabilitation.

16     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]–[109]; and Zhang v R [2019] NZCA

507, [2019] 3 NZLR 648.

17     Mullan v Police [2023] NZHC 962 at [23]–[24].

18     Zhang v R, above n 16, at [159].

19 At [162].

20     Cavallo v R [2022] NZCA 276 at [78], referencing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [49].

21     Poi v R [2020] NZCA 312 at [39].

However, such a discount may be refused if the defendant has an extensive criminal history.22

[27]            In this case, the appellant has already engaged in rehabilitation programmes, and this is the background against which the repeat offending has occurred. This is a situation where the Court may properly be sceptical about the prospects of rehabilitation, albeit that this remains an important continuing objective.

[28]            I would be prepared to give the appellant the benefit of the doubt and consider a combined discount that takes into account the matters addressed in the pre-sentence reports and the remorse letter.

Remorse and restorative justice

[29]            The remorse letter was not before the sentencing Judge. The letter is explanatory but does not demonstrate any particular remorse in terms of damage to victims or the gravity of continuing to offend in breach of existing orders, including absconding from his home detention address. To a large extent Mr Anderson seeks to justify his decisions rather than demonstrate that he intends to change his ways. In the circumstances, only a very modest discount could be justified based on the content of the letter and an offer to participate in restorative justice that did not proceed.23

Overall sentencing assessment

[30]            Naturally, the appellant makes no complaint about the error in correcting the conversion of the remaining home detention sentence, and the Crown has not pursued any appeal. In those circumstances, it would not normally be corrected.  However, if I am required to form my own view of the appropriate sentence, it is not an error that I am required to repeat. It is therefore something that forms part of my consideration when stepping back and making an overall assessment of whether the end sentence is manifestly excessive or wrong in principle.

22     Ross v R [2015] NZHC 1633 at [43]; and Hall v Police [2019] NZHC 1370 at [36].

23     In Harris v Police [2019] NZHC 3044 at [13], Powell J commented that a willingness to participate in a restorative justice conference that does not proceed may, of itself, mean little.

[31]My own view of an appropriate sentence would be as follows:

(a)A starting point of 15 months’ imprisonment for the lead charge of the jewellery theft.

(b)An uplift of a further six months’ imprisonment for the other existing charges.

(c)I consider that a global starting point of 21 months’ imprisonment is appropriate for these charges, taking into account the totality principle and the balance of the home detention sentence to be converted and re-sentenced.

(d)I would apply the following stage two adjustments to the global starting point:

(i)an uplift of three months (approximately 14 per cent) for previous convictions; and

(ii)a discount of 15 per cent for hardship factors, rehabilitation, and remorse; and

(iii)a discount of 25 per cent for the guilty plea.

(e)This results in a sentence of 15 months.

(f)Added to this should have been the outstanding home detention converted to an equivalent of 12 months’ imprisonment and re-sentenced.

(g)The final end sentence would be 27 months’ imprisonment.

[32]            My calculations produce a result that would have been longer than the existing sentence of 26 months’ imprisonment. On that basis I find that this existing sentence is not manifestly excessive and there is no basis for setting it aside.

Result

[33]Appeal dismissed.

O’Gorman J