Apiata v Police
[2024] NZHC 3332
•11 November 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-41
[2024] NZHC 3332
BETWEEN JASON PAUL APIATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 November 2024 Appearances:
J C Hannam for Appellant
R L Hicklin and P Lange for Respondent
Judgment:
11 November 2024
JUDGMENT OF McQUEEN J
[1] On 9 September 2024, the appellant, Mr Apiata was sentenced to 18 months’ imprisonment in the Hawera District Court.1 That sentence related to five charges:
(a)using a document (two counts);2
(b)theft;3
(c)escapes custody;4 and
(d)assaults a police officer.5
1 Police v Apiata [2024] NZDC 21774.
2 Crimes Act 1961, s 228(1)(b): maximum penalty seven years’ imprisonment.
3 Crimes Act 1961, ss 219 and 223(d): maximum penalty three months’ imprisonment.
4 Crimes Act 1961, s 120: maximum penalty five years’ imprisonment.
5 Crimes Act 1961, s 192(2): maximum penalty seven years’ imprisonment.
APIATA v NEW ZEALAND POLICE [2024] NZHC 3332 [11 November 2024]
[2] Mr Apiata appeals against the sentence on the basis it was manifestly excessive. Mr Apiata says that a further discount should have been allowed for personal mitigating factors, namely remorse and drug addiction.
[3] The Police oppose the appeal, submitting that there is no tangible evidence of genuine remorse and therefore no credit was available for this factor, and that any credit available for Mr Apiata’s background including drug addiction was adequately reflected in the limited uplift given by the sentencing Judge for Mr Apiata’s previous offending.
The judgment under appeal
[4] The Judge first described the offending. The Judge explained the dishonesty offending as the use of a debit card to purchase tobacco and then top up a mobile phone. The Judge described Mr Apiata as calculating in the use of the card, given that each time he used it, the amount that was available was reduced. The theft charge relates to taking fuel from a fuel tank in a boat at the victim’s address.
[5] The assault on police and escaping police custody charges arose on 29 May 2024. Mr Apiata was driving a vehicle but had run out of petrol and was in the car on the side of the road. Police recognised him and worked out that there was a warrant for Mr Apiata’s arrest. Police told Mr Apiata he was under arrest but he ran. Mr Apiata was pursued by police and at one point he turned around and ran directly at the constable who was pursuing him. Mr Apiata struck the constable in the face with his fist and the constable fell to the ground. Mr Apiata carried on running to avoid arrest by crossing the medium barrier into the oncoming lane of traffic. Mr Apiata was later arrested.
[6] The Judge noted that Mr Apiata has well over 100 previous convictions spanning from 1998 through to 2023. Those convictions include 23 for dishonesty and 44 for non-compliance. The Judge recorded the concern expressed by Corrections that Mr Apiata is showing no sign of slowing down or stopping in his offending and that he has reoffended almost persistently while on other sentences.
[7] The Judge referred to a pre-sentence report been written for sentencing in 2022. The Judge records that the report writers considered various aspects of Mr Apiata’s background have caused impact on his offending, namely cultural disconnection, adolescent rebellion from a strict home life, negative community and familial influence, predisposition to substance abuse disorder, early exposure to drugs, untreated ADHD and the related criminogenic symptoms predisposing Mr Apiata to offending behaviour, severe substance abuse disorder and an ingrained principle of protecting others.
[8] The Judge states that he found it was hard to match the comment that Mr Apiata’s upbringing was such that he has instilled in him a responsibility to protect those in need and that when he is offending he thinks he is doing just that, with the current offending, that is, using items for his personal gain and then assaulting police and running away from police.
[9] The Judge records that Mr Apiata’s counsel proposed a starting point of around 17 to 19 months’ imprisonment, which with mitigating factors, would reduce that to an end sentence of 14 months’ imprisonment. The Police emphasised the concerning features of the offending as attacking the policeman’s head and face, that the assault was to facilitate a crime of escaping from police, Mr Apiata’s previous history and that he was on active charges at the time of assault on police. The Police proposed a starting point of 24 months, reduced to 18 months for Mr Apiata’s early guilty plea and uplifted by two months for his history, thus reaching an end sentence of 20 months’ imprisonment.
[10] The Judge concluded that a 22-month starting point was appropriate and reduced that to 16 and a half months to take account for the guilty plea. The Judge then said:
…Then I added a month and a half for your history. It could be a lot higher, but basically 18 months is where I got to, which is a bit less than where the police got to and a bit more than where your lawyer got to.
Approach to appeal
[11] Sentence appeals are brought under s 244 of the Criminal Procedure Act 2011 and determined in accordance with s 250 of that Act. An appeal against a sentence is an appeal against the exercise of a discretion. For Mr Apiata to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.6 If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.7 When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it has reached.8 It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.9
[12]As the Court of Appeal recently observed in Te Ao v R:10
[16] ... It is the end sentence which must be shown to be manifestly excessive. It is the end sentence which will be the Court's focus. Where one component of a sentence is criticised, the Court's inquiry, if the criticism is found justified, will be whether the end sentence is nevertheless within the range available to the sentencing Judge.11
[17] We use the term “range” advisedly. Determining a sentence is not a mathematical exercise. It is a judicial evaluation. Different judges could quite properly weigh factors relevant to a sentence differently.
[18] A sentence might lie in a range from lenient to stern and be unimpeachable.
[19] For a sentence to be manifestly excessive it must be beyond the upper end of the range available to the sentencing Judge. In other words, it will be significantly more severe than it ought to have been having regard to the seriousness of the offence and the culpability of the defendant.
[13] The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.12
6 Criminal Procedure Act 2011, s 250(2).
7 Section 250(3).
8 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15]. See also Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Tutakangahau v R, above n 8, at [32]–[36].
10 Te Ao v R [2023] NZCA 327.
11 Tutakangahau v R, above n 8, at [39], citing Green v Police [2014] NZHC 444 at [21].
12 Kay v R [2024] NZCA 1 at [36], citing R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
Analysis
[14] Counsel for Mr Apiata, Mr Hannam, submits that a modest additional reduction is justified in the circumstances to account for Mr Apiata’s remorse and addiction—five per cent in respect of each factor (or one month), which would have the effect of reducing Mr Apiata’s sentence from 18 months to 16 months’ imprisonment. Mr Hannam submits that this is significant to Mr Apiata, especially given his personal circumstances, where Mr Apiata wishes to be able to provide support to his 12-year-old daughter, for whom he has some care responsibilities.
[15] Mr Hannam says the sentencing Judge did not expressly account for relevant mitigating factors in the sentence he gave, and submits that the Judge’s inferred reduction of the uplift for previous convictions represents an unorthodox approach. Mr Hannam also notes that while the judgment refers to a s 27 cultural report prepared in 2022, two pre-sentence reports were also available to him.13 Mr Hannam notes that Mr Apiata has been sentenced on two further occasions since the s 27 report was prepared and suggests its utility is probably modest other than that the background factors still apply (being Mr Apiata’s ADHD diagnosis, his severe substance abuse disorder, and his rebellion as a teenager and subsequent culture disconnection from his affiliated marae).14
[16] Mr Hannam refers to the expression of remorse found in Mr Apiata’s letter of apology to the police constable he assaulted, dated 13 August 2024, and his comments recorded in the report of the Court Forensic Psychiatric Nurse, Ms Glenda Schumacher, dated 19 August 2024. This report was attached to the submissions of counsel for defence at the sentencing of Mr Apiata. Mr Hannam acknowledges that this is not an orthodox means by which remorse is expressed to the victim, or the Court. However, he says that these comments are the only response to the offending available to the Court as the later of the two PAC reports (which considered the assault and escape offending) did not include any actual contact with Mr Apiata. Mr Hannam urges me to accept that Mr Apiata’s remorse is genuine.
13 The pre-sentence reports are dated 25 July 2024 and 12 August 2024 respectively.
14 The s 27 report was supplied to the Court after the hearing and is dated 20 January 2022.
[17] Against this, counsel for the Police, Ms Hicklin, emphasises the comment in the pre-sentence report dated 25 July 2024 where the report writer states:
Although Mr Apiata appeared to regret his actions in relation to his pending Court appearance and legal consequence he has wrought for himself, and whilst he stated he accepted responsibility for his actions, he displayed a limited insight into understanding his offending behaviour and appeared unfazed by the negative impact his dishonesty offending likely had on the victims.
[18] I accept that there is not specific discussion in the sentencing judgment of Mr Apiata’s submission of remorse and accordingly make my own assessment of it. I agree with Ms Hicklin’s submission that given Mr Apiata’s history of repeated dishonesty and violence offending, he is a person who especially needs to demonstrate genuine remorse through something more tangible, for example restorative justice (or as Mr Hannam mentioned, an emotional harm payment).15 It may well be that in the moments of writing his letter and speaking with the forensic nurse, Mr Apiata’s sentiments were genuine. But that is simply insufficient against his background to justify a specific credit for remorse on sentencing, particularly where he has received the full guilty plea discount. Mr Apiata says in his letter such behaviour will never happen again but, without more, this assertion is just not credible. For these reasons, I do not consider that a distinct credit for remorse is warranted.
[19] Mr Hannam further submits that Mr Apiata’s offending is the result of untreated and long-term drug addiction which will require a significant intervention in order to be resolved. The pre-sentence report dated 25 July 2024 indicates that residential treatment for drug abuse is required to address Mr Apiata’s addiction.
[20] Mr Hannam acknowledges that Mr Apiata has not taken the numerous rehabilitation opportunities offered to him through the many years of his offending, and in this way has not demonstrated any motivation to address his addiction. Mr Hannam nonetheless submits that while the offending before the Court is not drug related, it was influenced by drug addiction and the Court can properly allow a five per cent discount for a causal link between addiction and Mr Apiata’s offending.
15 Waitohi v R [2023] NZHC 3660 at [8]–[9], citing Kohu v R [2023] NZCA 343 at [40].
[21] Ms Hicklin submits that a causal link between Mr Apiata’s addiction cannot easily be drawn in respect of his offending, although she acknowledges that his underlying diagnosis of ADHD and lack of treatment for that may have some impact. Ms Hicklin notes that the dishonesty offending involved Mr Apiata’s purchase of tobacco and phone top-ups rather than drugs, and there is not a suggestion that he was influenced by drugs during any of the offending. Ms Hicklin therefore submits that the sentencing Judge’s uplift of only one and a half months for Mr Apiata’s repeated convictions for relevant offending adequately recognises Mr Apiata’s background and addiction factors.
[22] Ms Hicklin highlighted the impact of background in sentencing for repetitive offending. Ms Hicklin refers to the discussion in Berkland v R where the Supreme Court acknowledged that there would come a point where an offender’s background, even if it has contributed to the offending, can have no impact.16 The Supreme Court went on to emphasise that this would be a matter for careful consideration on the facts of the offence and the offender, noting in a footnote:17
In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.
[23] Ms Hicklin emphasises that Mr Apiata is now 52 years old and has a significant history of offending with more than 100 previous convictions, including 23 convictions for dishonesty offending, 44 convictions for non-compliance and 15 convictions for violence offending. Ms Hicklin says that Mr Apiata’s history casts doubt on whether his agency continues to be reduced by his background and suggests the purposes of denunciation and community protection should be relatively heightened.18 Ms Hicklin also submits that Mr Apiata’s history suggests his rehabilitative opportunities are limited as he appears to have an ongoing addiction to methamphetamine but has not taken up opportunities to address this.
16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94].
17 At fn 105.
18 Carroll v Police [2023] NZHC 3293.
[24] I accept the heightened relevance of the purposes of denunciation and community protection in relation to Mr Apiata, in his circumstances, with the effect of reducing any discount for background matters.
[25] Again, the sentencing Judge did not explicitly address Mr Apiata’s addiction, or background factors. My assessment is that some regard is properly given to Mr Apiata’s background, but I am included to favour Ms Hicklin’s submission that while the addiction issues are broadly relevant it is difficult to make the necessary causal connection to the offending. Rather, Mr Apiata’s ADHD diagnosis is more likely to be connected. However, the degree this should be taken into account is connected to the approach taken by the sentencing Judge in reducing the uplift for previous offending.
[26] Given the sentencing Judge’s approach of seemingly reducing the uplift for previous convictions in recognition of mitigating factors, I questioned counsel as to their position on the level of the uplift set by the Judge.
[27] Counsel referred to the case of Smith v Police, and they each submitted it supported their positions as to the level of appropriate uplift.19 Mr Hannam submits that whether an uplift is required is a question for the sentencing Judge, but where one is applied, there must be an appropriate relationship between any uplift and the starting point.20 Therefore, Mr Hannam calculates an uplift of around ten per cent of the starting point and says this can be regarded as acceptable but reinforces that the Judge did not take into account remorse and addiction. Ms Hicklin submits, however, that the sentencing Judge could readily have applied a 20 per cent uplift for Mr Apiata’s previous convictions and this reinforces that the Judge gave some credit for mitigating factors through reducing the level of uplift.
[28] To my calculation, the uplift of one and half months is closer to seven per cent of the starting point (which is not in contention in this appeal). I note that counsel for Police and defence at the sentencing had both indicated a two-month uplift would be
19 Smith v Police [2024] NZHC 858.
20 Tamihana v R [2015] NZCA 169 at [26]–[28].
appropriate (notably, defence counsel also submitted a 15 per cent discount was warranted for mitigating factors).
[29] I accept that the sentencing Judge did not explicitly address Mr Apiata’s remorse and addiction. Nonetheless, as discussed above, I am satisfied that no credit was justified for remorse and that any credit available for his background and addiction would be small. In my view, the uplift given for previous offending could have been higher than one and a half months and indeed could have been slightly higher than two months. I also consider that the Judge’s indication of a reduction in the uplift can properly be understood as the Judge providing some recognition for Mr Apiata’s mitigating factors, which would include his addiction issues, despite this perhaps being an unorthodox approach to sentencing, as Mr Hannam submitted. This is reinforced by the uplift being lower than the two months proposed to him by both prosecution and defence counsel at sentencing.
[30] The combination of these matters leads me to conclude that the sentence imposed is not manifestly excessive. By focusing on the end sentence, rather than the process by which it was reached, I consider that the sentence imposed is within range. I am not satisfied that there is an error in the sentence imposed or that a different sentence should be imposed.
Result
[31]The appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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