Enoka v R
[2018] NZCA 185
•8 June 2018 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA528/2017 [2018] NZCA 185 |
| BETWEEN | ALBERT ENOKA |
| AND | THE QUEEN |
| Hearing: | 17 April 2018 |
Court: | Kós P, French and Miller JJ |
Counsel: | A J D Bamford for Appellant |
Judgment: | 8 June 2018 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
B The sentence of four years’ imprisonment imposed in the High Court for aggravated burglary is quashed and substituted with a sentence of three years and four months’ imprisonment.
CThe sentence of five years’ imprisonment imposed in the High Court for wounding with intent to injure is quashed and substituted with a sentence of four years and three months’ imprisonment to be served cumulatively.
DThe sentence of 12 months’ imprisonment imposed in the High Court for unlawful detainment is quashed and replaced with a sentence of 10 months’ imprisonment to be served cumulatively.
EAll other sentences imposed in the High Court are confirmed.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Enoka was sentenced in the High Court by Nation J to a total term of imprisonment of 10 years following guilty pleas to a number of charges.[1]
[1]R v Enoka [2017] NZHC 2032 [sentencing notes].
Mr Enoka now appeals his sentence on the grounds it was manifestly excessive.
Factual background
All of the offending occurred over a four day period in February 2015.
On 14 February 2015 Mr Enoka rode a motorcycle despite being a disqualified driver. When stopped by police, he gave a false name. The motorcycle was impounded but Mr Enoka two days later forcibly removed it from a towing yard.
On the evening of 15 February 2015, Mr Enoka and a co-offender together with another unknown male drove to a location to collect Mr Enoka’s partner Ms Johnston. Ms Johnston had been at the house of a Mr Kovacs. Mr Enoka who was a member of the Rebels Motor Cycle gang was wearing a gang vest and balaclava and carrying a knife with a six inch blade. The co-offender Mr Francis was a gang prospect. He too was carrying a knife.
Mr Enoka was angry with his partner because she had been at Mr Kovacs’s house and not at home when he had tried to contact her. He suspected her of infidelity. When Ms Johnston arrived, Mr Enoka punched her in the face, pulled her hair, verbally abused her and threw her into the car. Ms Johnston had been accompanied to the meeting place by Mr Kovacs’s partner Ms Neho and Mr Enoka then told Ms Neho to take them to Mr Kovacs’s house. The unknown male remained with Ms Johnston.
On arrival at the house and wearing a balaclava, Mr Enoka pointed a knife at Mr Kovacs and demanded to know if he was having sex with Ms Johnston and why she had been at his house. Mr Enoka held the knife against Mr Kovacs’s throat and punched him twice in the mouth with a closed fist resulting in broken teeth and a fractured jaw. He threw Mr Kovacs and Mr Kovacs’s flatmate Mr Morgan onto a bed in the house and threatened to stab them both. At some point Mr Francis grabbed an ornamental machete off the wall and threatened both men with it. He also held Mr Kovacs’s hand on a bedside table and told him he would cut it off with a katana he found at the house.
Instructing Mr Francis to guard Messrs Kovacs and Morgan, Mr Enoka then went through the house looking for money and items to steal. Various items were taken and some property damaged before Mr Enoka departed in a car taking Ms Neho with him against her will along with Mr Kovacs’s pet dog. As they were leaving, Mr Francis told Mr Morgan that if he called the police, he would burn the house down and kill him.
Ms Neho was detained overnight and the following morning, 16 February, was made to get back in the car. Mr Enoka and Mr Francis drove around Christchurch and surrounding districts for several hours trying to find a motel. During the trip, Ms Neho observed two firearms under a seat in the car. Finally, they left Ms Neho at an address in Addington with an associate telling him to keep an eye on her.
It was at this point, at approximately 4 pm on 16 February, that Mr Enoka removed his impounded motorcycle. About half an hour later, he left a satchel with his mother-in-law. She opened it in his absence and found ziplock bags containing 28 grams of methamphetamine and 34 grams of cannabis plant. She called the police who seized the drugs.
Fearful of how Mr Enoka would react, the mother-in-law and other family members went to another address. That evening Mr Enoka tracked them down there and when they drove off he followed them on foot. Shortly thereafter a gunshot was heard. No one was injured.
In the early hours of the morning of 17 February, Mr Enoka was observed by police driving a motor vehicle. He absconded on foot with the firearm which he later abandoned at another property.
He then returned to the Addington property where Ms Neho was still being held. Mr Enoka told Mr Francis that he had started shooting. He and Mr Francis then left the Addington property as did the occupant who had been guarding Ms Neho. She then made her escape with the pet dog. By this time it was 7 am on 17 February. She had been detained for approximately 32 hours.
Mr Enoka first appeared in court on 18 February 2015.
He entered guilty pleas on 7 August 2015 to charges of:
(a)driving while disqualified;
(b)providing false details as to identity; and
(c)unlawfully removing an impounded vehicle.
Guilty pleas were entered to two drug related charges (possession of methamphetamine and cannabis for supply) and unlawful possession of a firearm on 19 February 2016. He maintained his not guilty pleas in relation to the charges of aggravated burglary, wounding with intent to injure and unlawful detainment.
The trial on those charges was scheduled to commence on 7 June 2016. On 3 June, Mr Enoka entered guilty pleas to those charges but then on 8 July sought to vacate them. The application to vacate the guilty pleas initially related to all three charges but was later limited to the unlawful detainment charge. The application was declined by Nation J on 16 January 2017.
Mr Enoka then sought and was granted a disputed facts hearing, necessitating Messrs Kovacs and Morgan having to give evidence. Mr Enoka disputed ever threatening Mr Kovacs with a knife, dragging him into the bedroom, threatening to stab the two men, threatening them with an ornamental machete and ransacking the house. Mr Enoka testified that he had visited Mr Kovacs’s house to collect a debt and not for the purpose of harming anyone. Despite pleading guilty to the unlawful detention charge, he also claimed Ms Neho had been with him of her own free will throughout and that he had never threatened her.
Justice Nation rejected this evidence,[2] which in the Judge’s view indicated a complete lack of remorse and acceptance of responsibility on the part of Mr Enoka.[3] Because of that, and the seriousness of the attacks at Mr Kovacs’s house, Nation J said he would have to consider a sentence of preventive detention.[4]
The sentencing in the High Court
[2]R v Enoka [2017] NZHC 698. While the Judge accepted Mr Francis held the machete, not Mr Enoka, the two were threatening with it in conjunction.
[3]Sentencing notes, above n 1, at [23].
[4]Sentencing notes, above n 1, at [23].
Ultimately Nation J decided not to impose preventive detention and we therefore address only his reasoning in relation to the finite sentence which he did impose.[5]
[5]At [52].
The Judge adopted a starting point of nine years’ imprisonment in respect of the aggravating burglary and wounding with intent charges which he then uplifted by one year on account of the unlawful detainment offence.[6] Justice Nation then identified a starting point of five and a half years for the drug offending, making a total of 15 and a half years which he then reduced to 13 years on account of totality.[7]
[6]At [29]. Although the Judge described the one year as an uplift, at [59] he clarified these three convictions were sentenced cumulatively.
[7]At [31] and [33]–[35].
Turning to personal factors, Nation J referred to Mr Enoka’s extensive criminal record and considered that it justified an uplift of 18 months’ imprisonment.[8] He acknowledged the guilty pleas but considered that only those entered early relating to the drugs and firearm charges justified any discount. That together with attempts Mr Enoka had made to address his offending and the assistance he had rendered to the authorities in another case warranted in the Judge’s view a total discount of 30 per cent.[9]
[8]At [37]–[38].
[9]At [39]–[41]. Although the Judge described the reduction as 30 per cent, in fact a reduction from 14 and a half years to 10 years is about 31 per cent.
That resulted in a sentence of 10 years’ imprisonment structured as follows:[10]
[10]At [56]–[60].
| Conviction | Sentence |
| Drove while disqualified (third or subsequent) | 12 months’ disqualification |
| Gives false name and address to enforcement officer | Convicted and discharged |
| Unlawfully removes impounded vehicle | Convicted and discharged |
| Aggravated burglary | Four years’ imprisonment |
| Wounding with intent to injure | Five years’ imprisonment (cumulative) |
| Unlawful detainment | One year’s imprisonment (cumulative) |
| Possession of a Class A controlled drug for supply | Four years’ imprisonment (concurrent) |
| Possession of a Class C controlled drug for sale | Two years’ imprisonment (concurrent) |
| Unlawful possession of a firearm | One year’s imprisonment (concurrent) |
Arguments on appeal
Mr Bamford accepted on behalf of Mr Enoka that the notional starting points of 10 and five and a half years were within range. However he submitted the end sentence was manifestly excessive because (a) the adjustment for totality was inadequate, (b) the uplift of 18 months for previous convictions was excessive and (c) insufficient credit had been given for Mr Enoka’s assistance to the authorities.
Analysis
Mr Bamford contends that the Judge’s approximately 16 per cent adjustment for totality was inadequate because it did not sufficiently recognise that all of the offending was part of one prolonged incident — “a drug fuelled crime spree” — rather than a number of separate offences. In Mr Bamford’s submission, in those circumstances, a reduction in the order of 25 per cent was appropriate.
It is well established that the totality principle must be applied flexibly.[11] There is no formula. In our view, correctly analysed the drugs offending was distinct offending and not connected with the sequence of events relating to the partner. The adjustment made by the Judge in our view was open to him and adequately represented the totality of the offending.
[11]R v Dodd [2013] NZCA 270 at [31]–[33]; and Geoff Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA85.1]–[SA85.2].
As regards the uplift for previous convictions, Mr Lange for the Crown conceded it was unusual for an uplift to exceed 12 months and that this was at the upper end of the range. However, he submitted it was justified on the grounds of public protection. Mr Enoka had accumulated almost 70 previous convictions which included two for aggravated robbery and seven for other violent offending. Report writers assessed his risk of violent offending as mid-high to high.
We accept that public protection is a relevant factor to take into account when deciding to uplift for previous convictions.[12] We also accept that public protection was at play in this case. However, the amount of an uplift must be proportionate having regard to the previous offending and the starting point for the current offending.[13]
[12]See Blackmore v R [2014] NZCA 109 at [12]; O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41]; and Beckham v R [2012] NZCA 290 at [84].
[13]See Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and Taylor v R [2012] NZCA 332 at [46].
As Mr Bamford pointed out, much of the previous offending dates back 14 years or more. The most relevant recent conviction was one of three years’ imprisonment imposed for aggravated robbery in 2010 which means that an uplift of 18 months represents 50 per cent of that sentence.
In all the circumstances, we agree with Mr Bamford that an 18 month uplift was excessive. In our view, no more than a 12 month uplift was warranted.
Of itself that finding would not justify our interfering with the sentence. However we have also concluded that the Judge’s discount for assistance to the authorities was inadequate.
Justice Nation’s discount of 30 per cent was expressed to be a global discount on account of three matters: the guilty pleas to the drug and firearms offending, attempts made to address offending — which appear to have been relatively limited, and assistance to the authorities. The Judge did not identify the percentage relating to each component.[14]
[14]Sentencing notes, above n 1, at [39]–[41].
It is clear as will be apparent from our summary of the background history that Mr Enoka’s guilty plea to the lead charges (the aggravated burglary, the wounding with intent and the unlawful detainment) was late as well as being regretted. On any view of it, he was entitled to no more than five per cent.
The plea to the drug offending was also late. The pleas were entered a full year after Mr Enoka’s first appearance and two weeks before a scheduled trial date. The quantities involved were such that the Crown could rely on a presumption of dealing. Its case was strong. In our view, contrary to a submission made by Mr Bamford, those circumstances meant that Mr Enoka was not entitled to a full credit of 25 per cent but only a limited discount also in the order of five per cent. The fact that Mr Francis was given a 25 per cent credit for pleading guilty in February 2016 following a sentence indication to the aggravated burglary and unlawful detention charges does not raise parity issues.[15]
[15]R v Francis [2016] NZHC 646.
Although Mr Enoka is only entitled to a modest discount on account of his guilty pleas, the assistance he provided to the authorities is in a different category. The details of that assistance are suppressed but Mr Lange confirmed the assistance was substantial and that it was given at significant cost to Mr Enoka. In those circumstances, Mr Lange also accepted that if the assistance had been combined with an early guilty plea Mr Enoka would have been entitled on the authorities to a discount of 60 per cent.[16]
[16]R v Hadfield CA337/06, 14 December 2006; and Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [23].
It follows that a discount of 30 per cent which also included some allowance for steps taken to address offending as well as guilty pleas, albeit late, was inadequate.
In our view, on its own the assistance given to the authorities would have warranted a 30 per cent discount and, when combined with the other two matters, means the appropriate discount was in the vicinity of 40 per cent.
We would therefore adjust the end sentence first by reducing the uplift for previous convictions by six months and secondly by applying a 40 per cent discount for personal mitigating factors, instead of 30 per cent. The effect of those two adjustments is to reduce the total end sentence from 10 years’ imprisonment to eight years and five months. In percentage terms that represents a reduction of 15.83 per cent.
In order to effect that change we therefore reduce each of the sentences imposed for aggravated burglary, wounding with intent to injure and unlawful detainment by that same percentage. The remaining sentences of imprisonment were concurrent and remain in place.
Outcome
The appeal against sentence is allowed.
The sentence of four years’ imprisonment imposed in the High Court for aggravated burglary is quashed and substituted with a sentence of three years and four months’ imprisonment.
The sentence of five years’ imprisonment imposed in the High Court for wounding with intent to injure is quashed and substituted with a sentence of four years and three months’ imprisonment to be served cumulatively.
The sentence of 12 months’ imprisonment imposed in the High Court for unlawful detainment is quashed and replaced with a sentence of 10 months’ imprisonment to be served cumulatively with the sentences for aggravated burglary and wounding with intent to injure.
All other sentences imposed in the High Court are confirmed.
Solicitors:
Bamford Law, Nelson for Appellant
Crown Solicitor, Christchurch for Respondent
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