Green v Police

[2019] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-483-11

[2019] NZHC 2565

REIJHAN RENEE GREEN

v

NEW ZEALAND POLICE

Hearing:

24 September 2019

Appearances:

R L Leith for Appellant

R N Benic for Respondent

Judgment:

9 October 2019

JUDGMENT OF CLARK J

Introduction

[1]                  Mr Green appeals his sentence of two years and two months’ imprisonment in relation to the following charges to which he pleaded guilty:1

(a)one charge of burglary;2

(b)three charges of unlawfully possessing a firearm;3

(c)one charge of dangerous driving;4

1      R v Green [2019] NZDC 15726 [sentencing notes].

2      Crimes Act 1961, s 231; maximum penalty 10 years imprisonment.

3      Arms Act 1983, s 45; maximum penalty four years imprisonment.

4      Land Transport Act 1998, s 35(1)(b); maximum penalty three months imprisonment.

GREEN v NEW ZEALAND POLICE [2019] NZHC 2565 [9 October 2019]

(d)one charge of failing to stop for police;5

(e)one charge of driving while disqualified;6

(f)one charge of theft;7 and

(g)two charges of breaching release conditions.8

[2]                  The key issue on appeal is whether Judge Crayton adequately recognised cultural factors.

Summary of offending

[3]                  On 9 November 2018, Mr Green stole approximately $50 worth of petrol from a Z Energy petrol station in Turangi. About half an hour later, Mr Green failed to stop for police. He accelerated away and travelled through a residential area (where the speed limit was 50 km/h) at speeds of up to 90 km/h. Police abandoned pursuit. Shortly thereafter, Mr Green encountered further police officers, who witnessed him manoeuvring around a corner on the wrong side of the road, at speed, while avoiding other vehicles. Police followed Mr Green at a distance for approximately two hours as he drove towards Whanganui. Police  deployed  a  roadblock  and  spike  strips. Mr Green avoided the spike strips by driving through a muddy ditch but in doing so damaged the steering column on his vehicle. When Mr Green stopped his vehicle he and his passenger attempted to escape on foot but were apprehended by police.     Mr Green does not hold a driver’s licence.

[4]                  Mr Green was remanded on bail and remained subject to release conditions for previous burglary offending. On 7 December 2018 and in breach of his release conditions, Mr Green failed to report. Subsequently, Mr Green moved address without informing his probation officer, again in breach of his release conditions.

5      Land Transport Act 1998, ss 52A(1)(a)(ii) and (4); maximum penalty $10,000 fine.

6      Section 52(1)(c); maximum penalty $10,000 fine.

7      Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.

8      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment.

[5]                  Between 31 December 2018 and 2 January 2019, while on bail, Mr Green entered an unoccupied residential address through a door that had been left unlocked. He left behind a hunting knife he was carrying at the time. He stole several items, including a laptop valued at $300, two passports, and a piggybank belonging to the victim’s eight-year-old daughter.

[6]                  On 18 January 2019, police searched Mr Green’s address and located in the wardrobe of his sleepout a guitar case containing three rifles. The rifles were functional but no ammunition was present. Mr Green admitted ownership of the rifles. He does not hold a current firearms licence.

Background

[7]                  Mr Green is 35 years old. He has an extensive record of offending that commenced in 1998 when he was barely 14 years old. He has committed what one report writer described as a “smorgasbord of crimes”, 22 of which are driving related, 25 are dishonesty offences, seven are breaches of court orders and one is a firearms offence. He is a patched Mongrel Mob member.

[8]                  Two pre-sentence reports were prepared, the first in April 2019 and the second in May 2019.  Both are spectacularly brief.  Mr Green attended the interview in  April 2019 but he declined to comment on the majority of the questions put to him. The report writer noted there appeared to be no malice behind Mr Green not wanting to comment. Rather, he did not see the relevance of the interview questions to sentencing. His main focus during the interview was his driver’s licence status.

[9]                  The writer of the May 2019 report recorded Mr Green’s refusal to be interviewed for the PAC report process.

[10]              Mr Green was assessed by both the PAC report writers as posing a high risk of re-offending given the escalation in offending since his release from prison. He was assessed as posing a high-risk of harm to others, evidenced by the nature of his past and current offending in relation to weapons offences.

[11]              A cultural report was prepared by Lawrence O’Reilly and Denis O’Reilly of the Matau Cultural Annotators Practice. The report, prepared pursuant to s 27 of the Sentencing Act 2002, was dated July 2019. I return to the report but for immediate purposes I draw on it for its description of Mr Green’s personal circumstances.

[12]              Mr Green was born into a family of five in Parikino, a small town located on the Whanganui River. He was primarily raised by his grandfather. His father was absent from his childhood. Due to the nature of his mother’s work as a shearing contractor, the family was itinerate, living variously in Gore, Whanganui, Napier, Waverley and Invercargill. Being “shipped around” fractured the young Mr Green’s relationships and made engaging in schooling difficult. Mr Green began offending at age 14, when he left school. He quickly became a serial offender. Mr Green’s extended whānau had Mongrel Mob connections and Mr Green soon became associated with the Mongrel Mob, which framed his lifestyle and became a substitute whānau.

[13]              The report narrates the ways in which systemic Māori deprivation9 and other related background factors, influenced Mr Green’s childhood and adolescent development. The report focusses in particular on the experience of Māori along the Whanganui River, particularly after many of “the protective and social factors of a traditional lifestyle were lost”  to  urbanisation.  Along  with  his  contemporaries, Mr Green faced high levels of unemployment, poverty, gang membership and substance abuse. In short, Mr Green was born into a community facing disadvantage on multiple levels.

[14]              The report writers suggest Mr Green has reached a stage where he is willing to turn his life around. The particular indicia are his age (some people tend to “grow out of criminality”), that he blames only himself for his situation, and his willingness to adopt a new lifestyle disassociated from his gang connections. The report writers accept Mr Green will have difficulty adopting a new lifestyle, but they emphasise his

9      The writers of the cultural report used the term as an “abbreviated summary of the long trajectory on Māori of the impacts of colonisation and post-war policies of assimilation”. I have used the term, as Whata J did in Solicitor-General v Heta [2018] NZHC 2453 at [40], as a shorthand for the “pervasive and persistent social disadvantage affecting Māori”.

willingness to accept help in the form of courses offered by the Department of Corrections. In particular, Mr Green seeks to obtain his driver’s licence.

District Court decision

[15]              Judge Crayton provided a sentence indication on 15 April 2019. Adopting the burglary charge as the lead offence, Judge Crayton set the starting point at two years’ imprisonment, in line with the Court of Appeal’s decision in Arahanga v R.10 The Judge then applied the following uplifts: four months for Mr Green’s numerous previous convictions for burglary; eight months for the firearms charge; one month for the dangerous driving charge; and one month for each of the breach of release conditions. The result was a starting point of 39 months, arriving at an indicative end sentence of 29 months and three weeks’ imprisonment.

[16]              At sentencing, on 8 August 2019, Judge Crayton began with the starting point identified in his sentence indication. The Judge then turned to the cultural report. In contrast to his engagement with the PAC report writers, it was clear Mr Green had engaged with the cultural report writers on a much greater personal level in relation to his background and his aspirations for the future. Judge Crayton described Lawrence O’Reilly as “someone who speaks with great insight and force when it comes to offending and offenders from the Māori community”.11 Judge Crayton took on board what had been placed before him in the cultural report. The reality was that unless Mr Green distanced himself from gang members, and distanced himself from those who influenced his life in antisocial ways, Mr Green would continue to offend and use and abuse drugs.12

[17]              Although the best indicator of future behaviour was often said to be past behaviour, Judge Crayton took into account Mr Green’s wish for stability in his relationship and his equally strong wish to change his life.

[18]              Judge Crayton applied a discount of 11 per cent to recognise the factors in the cultural report that inextricably linked Mr Green’s offending to his background.

10     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

11     Sentencing notes, above n 1, at [15].

12 At [16].

[19]              Applying a 25 per cent discount for guilty pleas, the Judge imposed an end sentence of two years and two months’ imprisonment. With Mr Green’s consent, the cultural report was to be provided to the Parole Board, the Department of Corrections and the probation service. The Judge also delayed Mr Green’s licence disqualification to enable him to obtain his licence, following which the 18-month period of disqualification would take effect. Prominent in the Judge’s mind was the possibility that Mr Green would have made different choices when confronted by the police if he had his driver’s licence. Those different choices would not have presented the danger to the community or to himself that his decision to evade the police presented. The Judge specifically wanted to make the process of obtaining a drivers’ licence “easy” for Mr Green.

Submissions for Mr Green

[20]              The main issue identified by Mr Leith, counsel for Mr Green, was the high risk of reoffending Mr Green is said to pose if he does not engage in rehabilitation.      Mr Green is said to be at a turning point in his life and had he received a sentence of two years’ imprisonment, or less, he could begin the rehabilitative steps upon his release from prison having served half the sentence. Mr Leith made the following submissions:

The effect of the Judge’s decision not to give a discount of 20% or more for the s 27 factors has resulted in Mr Green having to wait for potentially an extra 14 months before he is able to begin the very steps that the Court hopes he will take.

For the sake of 2 months the outcome for Mr Green is significant in terms of the overall time that he will end up spending in custody. That extra time in jail eats away the very motivation that he has expressed in the s27 report.

Submissions for Crown

[21]              For the Crown, Mr Benic submitted there was no material error in the sentence. Given the nature of the offending, and Mr Green’s culpability, the end sentence was not manifestly excessive. Mr Benic observed the Judge had not applied an uplift for Mr Green’s many previous convictions and the 11 per cent discount for personal mitigating and cultural factors approximately reflected the extent of linkage between the cultural factors, the appellant, and his offending. Critically, there was no basis to

depart from the general principle that parole eligibility should not be taken into account at sentencing. This was not an exceptional case requiring an emphasis on  Mr Green’s rehabilitation over and above other sentencing principles.

Discussion

[22]              Mr Green has not challenged the starting point adopted by the sentencing Judge on the lead burglary charge, nor the uplifts for the other charges.   The focus of     Mr Green’s appeal is squarely on the discount provided for cultural factors. In essence, Mr Green’s argument is that the 11 per cent discount allowed by the sentencing Judge was manifestly inadequate because it resulted in a long-term end sentence. For this reason, I begin by considering whether Mr Green may legitimately rely on his parole eligibility to support his appeal before turning to consider whether the sentencing Judge erred in discounting the sentence by 11 per cent.

[23]              A principle of long-standing requires a sentencing Judge to pass the sentence he or she thinks appropriate to the occasion without consideration of the possibility of parole. In R v Stockdale, the Court of Appeal explained the rationale for the principle:13

The duration of any custodial sentence is generally best determined without reference to an offender's eligibility for parole. There are good reasons for taking such a view. Sentences imposed by the Courts reflect the balancing of a number of factors, including the nature and circumstances of the offence, the character of the offender, the need for the imposition of a deterrent penalty, and the presence of mitigating factors. Moreover, the desirability of preserving some uniformity of penalties between offenders convicted of the same kind of offence is always to be borne in mind. The balancing of these factors will not be better effected if the sentencing Court is obliged to take into account, in imposing a sentence of imprisonment, an offender's eligibility for parole by reference to the length of sentence imposed.

[24]              In addition to these reasons for determining sentence without reference to eligibility for parole, the different roles of the Court and Parole Board must be recognised.14

13     R v Stockdale [1981] 2 NZLR 189 (CA) at 190.

14     At 191.

[25]              More recently, in Barnes v R, the Court of Appeal emphasised the limited scope for parole eligibility to play a role in sentencing:15

[77]      In most cases sentencing will take place without consideration of parole eligibility. However, if a court forms the view that a sentence emphasising rehabilitation is appropriate and rehabilitation might be better achieved by earlier eligibility for parole than would otherwise be the case, we consider it will be legitimate to sentence on that basis having regard to the relevant principles set out in s 8(g), (h) and (i) of the [Sentencing] Act, notwithstanding s 84C(4). In an appropriate case, the result could be imposition of a sentence of imprisonment of two years or less, thereby enabling imposition of the standard and any relevant special conditions of release.

[78]      We emphasise that course could only be taken for a genuine purpose under the Sentencing Act; it would be quite wrong simply to adopt that approach for the purpose of avoiding the effect of s 86C.

[79]      We anticipate that it will only be in exceptional cases that sentencing judges will be able to take this approach while ensuring that the purposes of both the Sentencing Act and the Sentencing and Parole Reform Act are served.

…

[26]              I have formed a clear view that Mr Green’s circumstances are such that a sentence emphasising rehabilitation is appropriate and that rehabilitation is more likely to be achieved via a release date that is earlier than might be expected under the parole process for a long-term sentence.16

[27]              Judge Crayton drew from the cultural  report  the  likely  causal  factors  in Mr Green commencing a pattern of offending at a crucial stage in his childhood development. After identifying “systemic Māori deprivation” Judge Crayton continued:17

The fact that you did not have a present father figure, that on research and on experience identifies that you are at greater risk on a number of levels. That inextricably leads to offending, incarceration and drug misuse. That you were someone who shifted, not just shifted occasionally but shifted very frequently through your early development. That of course impeded your ability to achieve academically and, of course, prevented the development of those relationships which would have been protective for you. That led you, it seems, to the gang life. As a young person you found those adult figures of support, the adult male figures who were to influence your life, in that gang. And as is noted, this is something which reflects a compromised childhood.

15     Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.

16     See Parole Act 2002, s 86(1).

17     Sentencing notes, above n 1, at [14].

[28]              As did Judge Crayton, I have read the cultural report very carefully and more than once. And, as was the Judge, I am impressed by its realism but also by the fact that, perhaps for the first time, Mr Green engaged with the report writer in a way that became meaningful for him. From this engagement it seems Mr Green has gained clarity and insight into how he comes to be where he is today.

[29]              Mr Green has continued to offend and continues to be returned to prison. But he says he has “had enough” and he wants a fresh start. Mr Green faces a dilemma because, as the Judge acknowledged, unless Mr Green distances himself from gang members and from those who influence his life in antisocial ways he will continue to reoffend and continue to use and abuse drugs. Judge Crayton took some confidence from Mr Green’s engagement with the cultural report writer but that tended to be offset by Mr Green’s attitude towards “authority figures, particularly Probation, who are trying to help or those who may have to supervise [his] sentence …”.18

[30]              The most Judge Crayton felt able to allow by way of a percentage discount for the cultural factors was 11 per cent.

[31]              The 11 per cent discount provided was within range given the circumstances as they were before Judge Crayton, particularly when considering comparable cases involving burglary charges:

(a)In Carroll v R, the Court of Appeal gave a combined discount of

12.5 per cent  for  cultural  factors  and  time  spent  on  EM  bail.19  Ms Carrol was raised as a whāngai child by her grandmother because both her parents had substance abuse problems. She was subjected to severe physical discipline and was sexually abused as a child. She also received a disjointed education and withdrew from schooling after fourth form with no formal qualifications.

(b)In Te Whata v Police, Mander J gave a combined discount of 11 per cent for youth and traumatic upbringing.20 Ms Te Whata was aged 21 and

18     Sentencing notes, above n 1, at [17].

19     Carroll v R [2019] NZCA 172.

20     Te Whata v Police [2016] NZHC 1293.

22 at the time of her offending. She had lived in the streets as a teenager, and became addicted to synthetic cannabis, which fuelled her dishonesty offending.

(c)In Waipouri v R, Duffy J gave a discount of 12 per cent for post- traumatic stress disorder and social deprivation.21 Mr Waipouri had an unsettled early childhood, raised initially by his great-grandparents and grandparents, before being placed in state care at age 12. While in state care, Mr Waipouri was physically, psychologically and sexually abused by other boys and by staff. Mr Waipouri had developed a methamphetamine dependency.

[32]              Arguably, on the face of the decisions, the defendants in these cases experienced more challenging backgrounds than Mr Green. There are, nevertheless, two particular matters that did not feature in Judge Crayton’s assessment but which I regard as highly relevant to my assessment of Mr Green’s rehabilitative potential and whether, therefore, that potential should dominate other sentencing principles. The first has arisen since sentencing.

[33]              Mr Green has handed in his patch. Apparently, Mr Green has a family connection to the Mongrel Mob (the President of the local chapter) and Mr Green has communicated to that family member that he has handed in his patch. Mr Green understands that taking this step may result in consequences for him on release. I questioned Mr Leith about what can legitimately be made of Mr Green’s actions. I accept the submission that turning his back on the gang in this way is consistent with the description in the cultural report of the stage Mr Green has reached. Mr Green’s acceptance of responsibility for his actions and their consequences has assisted him towards what the report writers describe as a “reconfigured social identity”. In this regard Mr Green was said to be at a “liminal point”. He is a known gang member, will highly likely have anti-social associates and in some respects harbours anti-social views himself. On the other hand, Mr Green is aware of the cost of his gang association and wants a different lifestyle.

21     Waipouri v R [2015] NZHC 2029.

[34]              I take Mr Green at his word. It is not just that he has expressed to the cultural report writers a set of aspirations but since that time he has followed through by taking possibly the most difficult step of all — relinquishing membership of the gang that represented his extended whānau.

[35]              A further indication of Mr Green’s rehabilitative potential might be seen from his willingness to participate in restorative justice. While a submission to that effect was made at sentencing, in fairness to Judge Crayton there was no reference in the cultural report to any restorative process being undertaken.

[36]              I have seen on the court file a memorandum from Whanganui Restorative Justice reporting that Mr Green requested in May 2019 restorative justice to be considered but that, despite attempts being made to contact the victim, there was no response. Consequently, a restorative justice conference could not be convened.

[37]              If they chose not to engage, the victims were within their rights to do so. The significance of Mr Green’s offer to engage, however, is that it reflects in Mr Green an assumption of responsibility for his offending, and for the harm he caused to his victims.

[38]              This is one of those exceptional cases requiring the primary focus of the sentence to be on Mr Green’s rehabilitation. These new factors suggest a greater discount is available to account for the cultural background factors from which     Mr Green’s offending stems.

[39]              Mr Benic submitted it was a long bow to link the handing in of Mr Green’s patch to his statements to the cultural report writer that he wanted to change. I do not see it as such a long bow. Mr Green is said to be motivated to rehabilitate and within the confines of prison there are limited options available to him to demonstrate that. Handing in his patch was one such option. It was imaginative and required real resolve and I regard it as meaningful. It seems to be completely consistent with the enhanced consciousness Mr Green now has, as a result of the cultural report process, of the factors in his life that have led him to his path of offending. It also demonstrates a

commitment to addressing  the  main  obstacle  to  rehabilitation  identified  by  Judge Crayton: Mr Green’s gang association.

[40]              Mr Benic submitted this appeal raised a novel issue of how cultural reports are to relate to a consideration of discounts when the offending involves different kinds of behaviours separated by weeks. For example, Mr Benic accepted that the link between Mr Green’s background and the firearms offending seems strong but not so, the link to the driving charges.

[41]              I take the point. Before Mr Green’s culpability can be mitigated by cultural factors in his background, the report must establish a nexus between the two.22 I do not read the Court of Appeal’s discussion of the point in Arona v R as requiring, in this case, a linkage between the systemic, social deprivations that characterise Mr Green’s background and each particular offence for which Mr Green was charged. Ultimately, Mr Green’s offending is linked to his gang lifestyle — engaging in behaviour that ignores the rules.

[42]              In short, the cultural report has established to my satisfaction the necessary nexus between Mr Green’s cultural background, in particular his experience of systematic social deprivation, and his offending. And, more to the point, the real value of the report has been in its identification of Mr Green’s rehabilitation prospects. Those prospects are more than hopeful or theoretical. As I have discussed, Mr Green’s attempt to initiate a restorative justice meeting and his more recent relinquishing of his patch, tend to demonstrate a deep (and hopefully lasting) wish for change.

[43]              Mr Green has a partner who is supportive and understands how to help him and he has a pathway that he knows he can travel to achieve his rehabilitative potential. Mr Green understands it will be no easy task for him and he accepts the significant hurdle he must overcome. As Mr Leith submitted, this appeal really is about assessing Mr Green’s motivation. I have done that and accept Mr Leith’s characterisation of this point as being about “trying to capture the moment” — to get Mr Green on a rehabilitative track and assist him to maintain his motivation. I also accept that the longer he is in custody the greater the risk of his motivation being eroded.

22     Arona v R [2018] NZCA 427 at [59].

[44]              In making this assessment I have not lost sight of the caution against “tinkering”. That is a long-established principle. This appeal was advanced on the basis of exceptional circumstances justifying a sentence focused on rehabilitation, making it appropriate therefore to take parole eligibility into account at sentencing. In consequence of the exceptional circumstances I have found to exist, Mr Green’s sentence  was  manifestly  excessive.  In  that  situation,  the  minor  reduction  in  Mr Green’s end sentence does not offend the “tinkering” principle.

[45]              I wish to emphasise that I have not lost sight of the victims of Mr Green’s offending, in particular the young child whose piggybank Mr Green stole. I have re- read the victim impact statement and its description of the emotional harm on both mother and daughter. They should feel their home is a place of sanctuary. It is to be hoped that with a sentence emphasising rehabilitation, others will be spared the emotional harm and sadness that was the consequence of Mr Green’s indifference to this child’s, and her family’s, peace of mind.

Result

[46]The appeal against sentence is allowed.

[47]              The sentence of two years and two months’ imprisonment imposed in the District Court is quashed. In its place a sentence of two years’ imprisonment is imposed. The order for the destruction of the firearms remains.

Karen Clark J

Solicitors:

Crown Solicitor, Whanganui for Respondent