Hollins-Apiata v The the King

[2022] NZHC 2371

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-40

[2022] NZHC 2371

BETWEEN

BLAKE MACK HOLLINS-APIATA

Appellant

AND

THE KING

Respondent

Hearing:	13 September 2022
Appearances:	J C Hannam for Appellant H Bullock for Respondent
Judgment:	15 September 2022

JUDGMENT OF McQUEEN J

Introduction

[1]    On 28 June 2022, Mr Hollins-Apiata was sentenced by Judge Grieg in the New Plymouth District Court to two and a half years’ imprisonment,1 for a single charge of wounding with intent to cause grievous bodily harm.2 He now appeals this sentence, on the grounds that the starting point taken by the Judge was excessive, and the Judge gave insufficient credit to his youth.

[2]    During the hearing, Mr Hannam, for the appellant, was clear that the purpose of the appeal was to achieve a sentence of two years or below so that home detention would be available to the appellant.3 Mr Hannam argued that this would promote goals of rehabilitation and deterrence while avoiding imprisonment, where the

1      R v Hollins-Apiata [2022] NZDC 11967 [Sentencing notes].

2      Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.

3      Sentencing Act 2002, s 15A; and Parole Act 2002, s 4: any consideration of home detention is restricted to short-term sentences (of two years or less).

HOLLINS-APIATA v R [2022] NZHC 2371 [15 September 2022]

appellant, only 18, would be thrown into the arms of other offenders. He referred to the Community Report recommendations that the appellant would benefit from being free during the day to work while being subject to a long period of oversight to help him make necessary changes.

Background

[3]    The offending was the result of a group assault on the victim initiated by the appellant. The victim and the appellant had been attending the same birthday party. A car had arrived at the address and the victim, an off-duty police officer, overheard the appellant and his friends encouraging the driver to perform a skid. The victim then approached the group in an attempt to discourage this from occurring. He informed them that he was a police officer and other officers lived nearby.

[4]    A confrontation ensued. The appellant threw a punch which connected with the right-hand side of the victim’s jaw. The victim lost his balance and fell to the ground, where he was set upon by the appellant and other members of the group. The assault came to an end when one of the victim’s friends intervened, by dragging the victim away. Following the assault, the appellant and his friends congratulated each other for ‘hitting a cop’.

[5]    The victim suffered a number of injuries as a result of the attack, namely two breaks in his jaw (both requiring facial surgery) and a moderate brain injury with debilitating cognitive effects.4 He could not leave the house for the four months following the attack and was placed on a liquid diet due to his injuries. The victim was unable to work for nine months, placing him and his family under major financial strain. His behaviour changed and caused severe emotional harm to his family. The victim’s partner, present at the time of the assault, reports feeling traumatised. His relationship with her and with their daughter has been strained. While he has since been able to return to work, this has been a gradual progression and he is limited to three hours, three days a week. It is unclear whether he will be able to return to frontline duty as a police officer.

4      Including severe fatigue, memory loss, severe headaches, lack of energy, loss of balance, slurred speech and slow reactions.

[6]The appellant pleaded guilty to the charge at the earliest possible opportunity.

District Court decision

[7]    The District Court Judge considered the starting point of five years’ imprisonment advanced by the Crown was appropriate.5 In reaching that conclusion, the Judge appears to have accepted the Crown’s submission that the offending fell within band two of the Taueki guidelines6 (indicating a starting point of five to ten years’ imprisonment) and consisted of three aggravating features; an attack to the head, significant injuries and multiple attackers.7

[8]    The appellant’s early guilty plea and youth were identified as mitigating factors warranting discount. The appellant received a 25 per cent discount for his early guilty plea and 25 per cent for his age, being 17-years-old at the time of the offending.8

Principles on appeal

[9]    The appeal is brought under ss 244 and 250 of the Criminal Procedure Act 2011. If satisfied there has been an error in the sentence and a different sentence should have been imposed the Court must allow the appeal.9 In any other case, the Court must dismiss the appeal.10 The Court will not intervene when the sentence imposed was within a range that can be properly justified by accepted sentencing principles.11

Appeal

[10]   As noted, the appellant challenges the starting point and youth discount adopted by the Judge. The appellant says that the offending falls within band one of Taueki and advances a starting point of three years’ and six months’ imprisonment. He submits that a 30 per cent discount for youth, plus a discrete nine per cent discount for

5 Sentencing notes, above n 1, at [27].

6      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 [Taueki].

7 Sentencing notes, above n 1, at [30].

8 At [32].

9      Criminal Procedure Act 2011, ss 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [20].

his lack of previous convictions is the appropriate outcome. This would reduce the appellant’s sentence to 15 months’ imprisonment and leaves open the prospect of home detention.

[11]   The appeal is opposed by the Crown, who submits that the Judge made no error and the end sentence reached was one available to the Judge.

Starting point

[12]   The appellant accepts that the aggravating factors of significant injury and an attack to the head were operative but says that the Judge erred in considering “multiple attackers” was an aggravating factor of the offending. It is suggested that the Court of Appeal in Taueki only envisaged this to be an aggravating feature when multiple people are charged with grievous bodily harm offending.

[13]   In this case, while the summary of facts records that multiple people assaulted the victim, only the appellant was charged with s 188(1) offending. One offender was charged with a lesser charge—common assault—which was then transferred to the Youth Court, while a charge was withdrawn against a third person. Mr Hannam submits that this is not the type of scenario Taueki envisioned would be captured by the “multiple attackers” factor. Mr Hannam accepts that this is a restrictive reading of Taueki and that there was in fact more than one person involved in the attack. He nevertheless says that because the existence of each factor is critical to the counting and ‘weighting’ of factors, this Court should utilise the flexibility contemplated by Taueki in its approach to the present matter.12

[14]   The import of this error, the appellant says, is that the offending has been wrongly classified as a band two offence. If not treated as an aggravating factor, the appellant submits that this becomes band one offending, indicating a starting point range of three to six years’ imprisonment.

[15]   The Crown submits this position is incorrect. The appellant pleaded guilty to the summary of facts, which specified that there were multiple people involved in the

12     Taueki, above n 5, at [42].

attack. If the fact of multiple attackers was contested, the Crown say that the appellant should have requested a disputed facts hearing. The Crown also submits that whether a co-offender has been held accountable for their conduct does not affect the position of the appellant.

[16]   I do not accept the appellant’s interpretation of Taueki. The appellant’s interpretation adopts an overly restrictive view of the Court of Appeal’s description of this aggravating factor:13

(h)Multiple attackers:  The greater the number of attackers and the greater  the disparity between the number of the attacking group and the victim group, the greater the culpability will be.

[17]   The language is plain. The relevant consideration is “the number of attackers”. The Court of Appeal does not require that the attackers are analogous, all face charges, or even all face the same charges. To read that requirement into the judgment would be an overstep that the Court did not intend.

[18]   As highlighted by the Crown, the appellant was required to be sentenced on the summary of facts to which he pleaded guilty.14 The summary of facts indicates there were multiple attackers. It was appropriate for the appellant to be sentenced on this basis.

[19]   While the appellant’s submission that Taueki contemplates flexibility in approach to the bands and starting points is plainly correct, in light of the discussion that follows, I do not accept the appellant’s further submission that the multiple attacker factor could be given less than full weight in the present case.

[20]   In my view, the starting point adopted by the Judge appropriately straddles both Taueki bands one and two.15 The Court of Appeal explicitly considered that a street attack involving a number of attackers would at least constitute upper band one offending.16 The examples provided by the Court appear to distinguish band one and

13 At [31].

14     See Wiki v R [2022] NZCA 360 at [3] and [9].

15     With both band one and band two offending leaving open the possibility of a five or six year starting point.

16     Taueki, above n 6, at [37].

two offending of this nature by the presence of weapons.17 Thus, at first brush, it appears the offending is more appropriately categorised as band one.

[21]   However, the Court also observed that band one was not appropriate for extreme violence,18 or where two or three aggravating factors are present.19 Reflective of this, while the Court explicitly acknowledged that a five year starting point for band one offending—involving “a number of attackers against a single victim”—was appropriate, this starting point was reached on the basis that the grievous bodily harm did not have a lasting effect on the victim.20 Here, there is no dispute that the offending has, and continues to, significantly impair the victim’s day-to-day life and capabilities over a year later. In light of the above, I consider a five year starting point was at the lower end of the range available to the Judge. A higher starting point (say six years, being the top of band one) could have been adopted.

[22]   I conclude that the Judge did not err in assessing the starting point for this offending.

Discounts

[23]There are three distinct submissions arising in relation to discounts:

(a)a 25 per cent discount for youth is too low in and of itself given the appellant’s age at the time of offending (17 years and eight months);

(b)a 25 per cent discount for youth is insufficient to mark both age and relevant s 27 factors; and

(c)an additional discrete discount for lack of previous convictions is appropriate.

17     At [37] and [39].

18 At [36].

19 At [38].

20 At [37].

Youth alone

[24]   Mr Hannam relies on the recent Court of Appeal decision, Diaz v R, as demonstrating a reduction of 30 per cent for youth was available.21 In contrast, the Crown submits that the Judge’s assessment was correct.

[25]   As noted by the Crown, any allowance for youth is a discretionary factor. As the Court of Appeal observed in Diaz:

[39] There is no fixed discount for youth. Sometimes a youth discount can have a radical effect on a sentence, even where the offending is serious. In other situations, the discount can be minimal or even non-existent. A realistic assessment, balancing all factors, is required in each case.

[26]   As the Courts have consistently observed, youth discounts are important for a number of reasons. They recognise that there are neurological differences between young people and adults which can reduce the culpability of young people as compared to adults, that sentences of imprisonment are disproportionately severe on young people, and that young people have greater rehabilitative prospects.22

[27]   Relevant to the appellant’s case is the clear link between the high degree of violent offending committed by young people and their lack of cognitive and psychological maturity, including impulsivity, struggles to regulate mood and vulnerability to peer pressure.23 The appellant’s impulsivity and impaired rational thought has been exacerbated by the consumption of alcohol, which the appellant submits is the primary reason for the offending.

[28]   I do not accept the appellant’s submission that a 25 per cent discount is inadequate to address the above factors. As the above quote identifies, the range of youth discounts awarded is broad. On a review of the authorities, it is plain that s 25 per cent discount is generous.24 I note that the Court of Appeal has considered minimal

21 Diaz v R [2021] NZCA 426.

22 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].

23 New South Wales Department of Education and Training “Closed for Construction – Adolescent Brain Development in the Middle Years” cited in Churchward v R, above n 22, at [80].

24    For an example of a much lower discount afforded, see Campbell v R [2015] NZCA 452 (Court of Appeal increased a 16-year-old offender’s youth discount from six per cent to approximately 13 per cent, following convictions of wounding with intent to cause grievous bodily harm and indecent assault).

youth discounts appropriate in situations where offending was particularly grave and an offender has a history of offending (in both the District Court and the Youth Court), observing “the requirements of deterrence and public protection must prevail”.25 In the current case, the offending was clearly severe and the appellant has a history of violent offending from the Youth Court.26 In light of these factors, the adopted discount was substantial.

Youth and s 27

[29]   The appellant submits that some discount for s 27 and other personal factors is appropriate. While there was no discrete acknowledgement of this factor by the Judge, the appellant considers that the Judge may have factored this into the youth discount. Accordingly, the appellant’s submission is two-fold:

(a)a s 27 discount is appropriate; and

(b)the 25 per cent discount is too small to account for both youth and s 27 factors.

[30]   The Crown submits it was appropriate for the Judge to provide either no discrete reduction for cultural factors or that the 25 per cent reduction sufficiently addresses both youth and s 27 factors.

[31]   Where systemic deprivation or social disadvantage is seen to contribute causatively to offending, it will require consideration at sentencing.27 In Carr v R, the Court of Appeal noted:28

… where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing.

25 Arahanga v R [2014] NZCA 379 at [29]. The Court of Appeal accepted a six per cent combined discount for youth and late guilty plea was sufficient for a 17-year-old offender charged with wounding with intent, aggravated robbery, burglary and aggravated assault.

26 Canvassed below at [40]–[44].

27 Zhang v R [2019] NZCA 507,[2019] 3 NZLR 648 at [159].

28 Carr v R [2020] NZCA 357 at [60].

[32]The recent Court of Appeal decision of Sio v R states:29

… where there is a ‘credible account of matters which might be considered to have impaired choice and diminished moral culpability’ which establishes a causative contribution to the offending, of the kind envisaged in Zhang v R, ‘it must have an effect on the sentencing outcome’.

[33]   There must be a nexus between cultural background and the offending, in order for such to mitigate the culpability of an offender. As noted by the Court of Appeal in Solicitor-General v Heta, s 27 rests on the premise that systemic deprivation affecting Māori is generally traceable to linkages between that deprivation, the offender, and the offending. There may be cases in which the linkage appears self-evidently from the circumstances of the offence and the offender. Where it is not self-evident, some evidence is necessary to establish that connection.30

[34]   The Court has also noted that while gravity of the offending “might temper the extent of any discount” awarded to recognise systemic deprivation, that is a “different proposition from saying there should be no allowance.”31

[35]   A s 27 report was provided to the Court and acknowledged by the Judge at sentencing. The report sets out the following features:

(a)a dysfunctional family in the first three years of life, marred by parental drug and alcohol abuse;

(b)a physically absent father,32 who has himself spent time in and out of prison;

(c)minimal knowledge of or connection with te ao Māori, and particularly Ngāti Ruhi, to whom the appellant has whakapapa connections33; and

(d)a lack of engagement and interest in education, resulting in the appellant leaving school in year 10.

29     Sio v R [2022] NZCA 337 at [56] (footnotes omitted).

30     Solicitor-General v Heta [2018] NZHC 2453; [2019] 2 NZLR 241, cited by Arona [2018] NZCA 427 at [59].

31     Carr v R, above n 28, at [65]; and Sio v R, above n 29, at [56].

32     The appellant notes that despite this, he has always stayed in contact with his father.

33     I note that the judgment under appeal refers to the appellant’s links to Ngāpuhi.

[36]   The Judge considered the appellant was not suffering from significant deprivation. He said:34

… It is conceded, however, that really you had the advantage of a perfectly decent and normal upbringing. You did not pay much attention at school, there was a lack of attendance. You got into fights, that resulted in standdowns and non-attendance. In general, you had a lack of interest in your education.

[37]   Counsel for the appellant does not accept that the appellant has had “a perfectly decent and normal upbringing” when the reality is that his biological father has been convicted of serious offending and has been in and out of prison. Counsel for the appellant says that while the appellant’s mother and stepfather have done their best to raise the appellant, the impact on the appellant of not having the steady guiding hand of his father throughout his life should not be ignored. This is particularly so given his father’s absences have contributed to the appellant’s lack of connection with his Māori heritage. He also submits that there are parallels between events in the appellant’s life and that of his father. He submits that these matters together constitute sufficient nexus.

[38]   The Crown does not accept that the parallels drawn between the life experiences of the appellant’s father and the appellant justify any deduction. Further, the Crown submits that any ‘void’ left as a result of the absence of the appellant’s father in the appellant’s life has been filled by the presence of a pro-social stepfather. Accordingly, the Crown says there is no “clear causal nexus” between the appellant’s minimal knowledge of and connection with Māori culture and absent father, and the offending.

[39]   I am inclined to consider there is some nexus between the offending and the appellant’s background. Undoubtedly, the absence of the appellant’s biological father will have had a significant impact on him, and I do not struggle to draw a connection between the appellant’s cultural disconnection and his violence, particularly given the parallels he shares with his father. However, I do not accept the 25 per cent discount was too small to account for this factor. First, as noted above, the youth discount was generous in the first place. Second, given the stable elements of the appellant’s

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

upbringing, while his background is clearly linked to the offending, it cannot be said to be the only contributive cause. Further, the severity of the offending tempers any appropriate discount for these factors.

Lack of previous convictions

[40]   The appellant relies on Diaz v R, where a recently turned 17-year-old offender was given a nine per cent discount for his lack of previous convictions.35 He submits that this discount should also be available to the appellant, given he too, has no prior convictions. The Crown contests the appropriateness of such a discount, given the appellant’s extended history in the Youth Court.

[41]   As the Crown notes, a finding of guilt in the Youth Court does not result in the “conviction” of the offender, and thus cannot be seen as an aggravating factor in terms of s 9(1)(j) of the Sentencing Act. However, Youth Court history may still be a relevant factor under s 9(4)—allowing the Court to take into account any other aggravating or mitigating factor that the court thinks fit.

[42]   The Judge was aware of the appellant’s past history, with the Crown’s submissions at sentencing highlighting his previous charges of possessing an offensive weapon, common assault and wounding with intent to injure. The Judge noted:36

[13] You have no previous convictions, but you did appear in the Youth Court for what I am told, and I have not read the record, is very similar offending. Ultimately, as your counsel has made clear, you completed what was asked of you and as a result you were discharged without a conviction from the Youth Court.

[43]   I consider that, on this basis, it was open to the Judge to treat the appellant’s Youth Court history and, conversely, his “lack of previous convictions” as neutral factors. While not “convictions” such that an uplift for the history is appropriate, it is equally inappropriate in my view to pretend such history did not exist, and instead award a good character discount. This is particularly so in this case, where the Youth Court matters involve “very similar offending”.

35     R v Diaz, above n 21.

36     Sentencing notes, above n 1.

[44]   The Judge did not err in not providing a separate discount for lack of previous convictions.

Conclusion

[45]   I decline the appeal for the reasons set out above. It is regretful that this young man faces a not insignificant period of imprisonment. However, in the circumstances, given the severity of the offending and the discounts afforded to the appellant, the sentence reached was within range and cannot be said to be manifestly excessive.

Result

[46]The appeal is dismissed.

McQueen J

Solicitors:

Hannam & Co. Lawyers Ltd, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent