James v The Queen

[2020] NZHC 2134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-188

[2020] NZHC 2134

BETWEEN

DANIEL RANDALL JAMES

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 August 2020
Counsel:	A M Cameron for Appellant D B Dow for Respondent
Judgment:	21 August 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 21 August 2020 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Respondent

JAMES v R [2020] NZHC 2134 [21 August 2020]

Introduction

[1]                 On 28 May 2020, Judge BA Gibson sentenced Mr James to 35 months’ imprisonment.1 Mr James now appeals that sentence contending it is manifestly excessive. The sole issue on the appeal is whether Judge Gibson erred in declining to give a discount for the matters discussed in a cultural report put forward under s 27 of the Sentencing Act 2002 such that a lesser sentence should be imposed.

Background

[2]                 Mr James was sentenced on five charges. They were unlawfully taking a motor vehicle2, burglary of commercial premises3 ($7,000 of goods being taken), failing to stop4, endangering transport5 and reckless driving.6

[3]                 The facts, in brief, are that Mr James took a motor vehicle which he used in the burglary of commercial premises from which $7,000 of goods were taken. Later, he failed to stop for police and fled in the stolen vehicle. Mr James, in an effort to escape from the police, drove onto the State Highway 16 motorway and travelled the wrong way towards oncoming traffic. Cars on the offramp and motorway took evasive action to avoid colliding with the vehicle driven by Mr James. Fortunately, there was no accident. The charges of endangering transport and reckless driving arise from this narrative.

[4]                 Mr James was 40 years old at the time of the offending. As a young man aged from 16 to 22 years he acquired a considerable criminal record centred around driving and dishonesty offences. However, he then ceased offending for a period of about  15 years (if a 2009 conviction for resisting police, for which he was directed to come up for sentence if called upon, is disregarded). This coincided with Mr James entering into a long-term relationship and becoming a father.

1      R v James [2020] NZDC 9618.

2      Crimes Act 1961, s 226(1). Maximum sentence of 7 years’ imprisonment.

3      Section 231. Maximum sentence of 10 years’ imprisonment.

4      Land Transport Act 1998, s 52A. Maximum penalty of $10,000 fine.

5      Crimes Act 1961, s 270(1)(a). Maximum sentence of 14 years’ imprisonment.

6      Land Transport Act 1998, s 35(1)(a). Maximum sentence of 3 months’ imprisonment or $4,500 fine.

[5]                 The offending for which Mr James was sentenced by Judge Gibson occurred shortly after Mr James’s relationship with his partner broke down and the two separated. Mr James, who had been employed during the period when he was not offending, left his employment when his marriage broke up. He chose not to apply for a benefit but to support himself through crime.

[6]The pre-sentence report said:

Mr James justified his offending on the grounds that it is too hard for ordinary people who have to pay amounts like $600 for rent, then feed and clothe their families on the average wage to manage. He stated this is a situation that particularly affects Maori and as a Maori he ‘would do what [he] needed to in order to survive’ as a lot had been stolen from him by Pakeha.

[7]                 The report writer considered Mr James demonstrated little insight into his offending and no remorse was apparent.

[8]                 The s 27 cultural report was prepared by Mr Paora-Chamberlin, a person very well qualified to make such a report. He is not, however, a psychologist. A further limitation is that, due to the Covid-19 situation, Mr Paora-Chamberlin was able to interview Mr James on only one occasion (at Mt Eden Correctional Facility) and for a less than optimum timeframe.

[9]                 Mr James told Mr Paora-Chamberlin that his childhood to the age of six was an abusive one. He experienced prolonged periods of hunger and exposure to relentless, daily family violence at the hands of an alcoholic father. He was particularly affected by witnessing the beatings his mother received.

[10]              At the age of six Mr James was removed from his home and taken to live with his aunt in Te Hāpua in the Far North. His aunt provided him with a strict but good life. The aunt’s household was a traditional Māori household. Mr Paora-Chamberlin reports:

[Mr James] was brought up by his aunty Mere Waenga between the ages of six and 14 in Te Hāpua. He attend Te Hāpua Māori school and was introduced to his marae Te Reo Mihi, his ancestral lands, his culture, his language, and his people’s contemporary way of life in rural Northland. Te reo Māori was spoken around and to him and he became accustomed to being in Māori settings. Tikanga Māori (culture, custom, laws) were practised around him.

He can still understand some elementary te reo and has an instinctive understanding of tikanga. But he cannot speak te reo himself beyond introducing himself and some common phrases, and he isn’t familiar with many of the reasons, or purposes of the tikanga he has observed.

[11]              Mr James told Mr Paora-Chamberlin that  when  he turned  13  he  attended Te Kao Area School for the third form. The principal of that school found a holiday job for Mr James when he was 14. It was in South Auckland within the racehorse training community. Consequently, Mr James changed schools to attend Papakura High School so he could continue living and working in the horse training community. He did not enjoy being at school and got into lots of fights. He left school when he turned 15, without any formal qualifications. Subsequently, he fell into bad company and amassed the early criminal convictions to which I have referred.

[12]              Mr Paora-Chamberlin considers that as a result of Mr James’s childhood experiences he is filled with shame, self-loathing, and anger. He has a debilitating and chronic level of whakamā. Mr Paora-Chamberlin links reconnecting Mr James with his cultural heritage with him achieving a balanced and crime-free lifestyle in the future:

[Mr James] does however, have a starting point. The foundation to his learning has been laid during his time living at Te Hāpua with his aunty. When he once again swims in his moana and climbs his mountain with the knowledge of what they mean to him, he will regain that tangible sense of belonging which will reignite his path toward recovery and further personal development. His sense of self-belief and resilience will follow and provide the necessary fortitude to overcome his whakamā and help him find his place in this world without breaching his moral code or the criminal law.

Judge Gibson’s sentence

[13]              Judge Gibson considered whether, in the circumstances of the offending,    Mr James should receive a discount for the matters identified in the s 27 report. Drawing on the decision of Downs J in R v Carr,7 the Judge said:

[12]      Overall, the defendant has free will or free choice and he chose to commit offences. For a relatively long period of time he did not commit any criminal offences. He exercised choice at that time and he exercised it again when he committed these offences.

7      R v Carr [2019] NZHC 2335.

[13]      In my view, the preeminent principles in sentencing the defendant ought to be deterrence, and that is personal deterrence, and denunciation of his conduct and the need to instil responsibility in him. Those are important principles and they count against giving any discount for the reasons set out in the cultural report.

Submissions on behalf of Mr James

[14]     Mr Cameron for Mr James submits that the requirement established by the case law for a demonstrative or causative nexus between offending and a background of deprivation is present in Mr James’s case and identified by Mr Paora-Chamberlin.

[15]     Mr Cameron submits that the links between the systemic deprivation experienced by Mr James in his early childhood and his current offending are self- evident. In Mr Cameron’s submission, Mr James “lacks the safety nets and tools that others have, and the almost inevitable result is that he reoffends”. He submits Judge Gibson applied a view of “free choice” without reference to the systemic deprivation that inevitably influenced Mr James’s choices and which renders him less morally culpable as a result.

[16]     Mr Cameron submits that Mr James should have received a discount of 10 to 20 per cent to take account of the matters set out in the s 27 report.

The law

[17]     Under s 27 of the Sentencing Act, an offender may put information before the Court about their personal, family, whānau, community and cultural background, and on the way in which that background may have related to the commission of the offence. The Court may also take into account how that background, or family, whānau or community support may be relevant in respect of possible sentences, in light of the various purposes and principles of sentencing set out in ss 7-8 of the Act.

[18]     It is a matter of judicial discretion as to how much weight should be given to a s 27 report. The Court needs to be satisfied that there is a causal nexus between a person’s cultural background and their offending to award a discount.8

8      R v Carr [2019] NZHC 2335 at [62].

[19]     A number of decisions have drawn a link between pervasive and persistent social disadvantage, or systemic and inter-generational Māori deprivation, and overall assessments of culpability.9 As observed by the Court of Appeal in Poi v R:10

[25]  One of the key ways in which a person’s background may be relevant to sentencing is that it may reduce their moral culpability for the offending. Recently, in Zhang v R, this Court observed that:

[159] First, ingrained, systemic poverty resulting  from  loss  of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.

…

[27] If an offender has diminished culpability as a result of their personal circumstances, this may in turn impact on the application of a number of the purposes and principles of sentencing including holding the offender accountable, denunciation, general and specific deterrence, community protection, and the need for rehabilitation. For example, an increased focus on rehabilitation and a decreased emphasis on denunciation and deterrence may be called for in some cases. On the other hand, if it appears that an offender finds it difficult or impossible to avoid offending, this may increase the importance of community protection.

(footnotes omitted)

[20]     Where there is this reduced moral culpability, there is no fixed limit to the discounts available. For example, in Poi v R, the Court of Appeal awarded a 20 per cent discount to recognise the defendant’s background of severe deprivation and disadvantage, as well as his rehabilitative prospects.11 In R v Heta, a global discount of 30 per cent was applied to reflect the offender’s background, restorative justice, and rehabilitative prospects.12 However, not all cases find a demonstrative link between an offender’s background and their offending. Recently, in R v Carr, Downs J held that “correlation and causation are not synonymous”.13 Justice Downs did not award a discount as there was not “sufficient linkage”, particularly given the seriousness of the charges in question.

9      For example, see Solicitor-General v Heta [2018] NZHC 2453.

10     Poi v R [2020] NZCA 321.

11 At [39].

12     Solicitor-General v Heta [2018] NZHC 2453.

13     R v Carr [2019] NZHC 2335 at [61].

Discussion

[21]     The cultural report points to a link between Mr James’s childhood experiences and the way he responds to situations as an adult, particularly situations involving exposure to authority figures and police during moments of tension. It postulates that the trauma he suffered as a child likely had a neurophysiological impact on Mr James, making it harder for him to regulate his emotions, particularly anger. The report writer identifies a “deepening cycle of whakamā” in relation to a number of aspects of     Mr James’s life.

[22]     I find the cultural report to be comprehensive and persuasive. However, while I accept there is some causal relationship, that relationship is weakened by the fact Mr James lived 15 years crime-free. The immediate causal factor behind Mr James’s offending was the break-up of his relationship. He decided to express his anger through criminal activity. While his formative background is important context to his offending, the fact he was capable of living crime-free and moving past his difficult upbringing is telling.

[23]     On that basis, while the report does make the necessary causative link between Mr James’s background and how that related to the commission of the offences for which he was sentenced, the appropriate discount would only be small, around the five per cent mark.14 This is not a case where there is clear cultural disconnectedness. And of particular relevance is the fact Mr James was able to live the majority of his adult years crime-free within the context of regular employment and a stable family. That stands apart from many of the cases brought before the court where offenders seek discounts for s 27 reports.15

[24]     Further, Mr James does not present as someone who is remorseful for his actions, and who has identified a rehabilitative path through reconnecting with his cultural roots. What the Court is asked to do is reduce an otherwise appropriate sentence because there are factors in Mr James’s early childhood which might still have the power to influence his conduct as a 40 year old adult.

14     See, for example, R v Hauraki [2020] NZHC 405 at [42]-[43]

15     See, for example, Solicitor-General v Heta [2018] NZHC 2453 and Poi v R [2020] NZCA 321, cited above at fn 9 and 10.

[25]     It follows that although I find the Judge erred in failing to take account of the cultural report, I do not find that this makes the end sentence of 35 months’ imprisonment manifestly excessive. A five per cent discount would reduce the sentence to 33  months  and  one  week.  To  do  that  would  be  tinkering  because 35 months’ imprisonment is within the sentencing range available to the Judge. The Judge could have taken a slightly higher starting point without objection.

Decision

[26]The appeal is dismissed.

Brewer J