Katipa v Police
[2022] NZHC 3032
•18 November 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-000053
[2022] NZHC 3032
BETWEEN WAYNE KATIPA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 November 2022 Appearances:
S D Taylor for the Appellant U Keller for the Respondent
Judgment:
18 November 2022
JUDGMENT OF WYLIE J
(Appeal against sentence)
This judgment was delivered by Justice Wylie On 18 November 2022 at 1.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
S D Taylor, Hamilton Hamilton Legal, Hamilton
KATIPA v NEW ZEALAND POLICE [2022] NZHC 3032 [18 November 2022]
Introduction
[1] The appellant, Wayne Katipa, was sentenced to two-and-a-half years’ imprisonment by Judge Down in the District Court at Huntly on 18 August 20221 after Mr Katipa had entered guilty pleas to the following charges:
(a)robbery;2
(b)driving while disqualified (third or subsequent);3 and
(c)theft (under $500) (x 12).4
[2] Mr Katipa appeals his sentence. He says that the Judge gave him insufficient credit for cultural factors and for his remorse, that as a result the sentence is manifestly excessive and that the Judge failed to impose the least restrictive sentence available.
[3] The Crown supports the sentence, submitting it falls within the available range given Mr Katipa’s offending and culpability.
Background
Driving while disqualified
[4] On 20 April 2021, Mr Katipa was disqualified from holding or obtaining a driver’s licence for a six-month period ending 19 October 2021. On Tuesday 13 July 2021, at around 11 pm, he drove a Mazda motor vehicle along Great South Road in Huntly. Police stopped the vehicle. They were several “petrol drive-off” alerts on the vehicle. Mr Katipa admitted to being a disqualified driver.
Robbery
[5] At approximately 1:45 pm on Friday, 26 November 2021, the 13-year-old victim was at his home address. Mr Katipa was dropped off at the end of the victim’s driveway. Mr Katipa knocked on the door and asked the victim about a travel centre.
1 Police v Katipa [2022] NZDC 15829.
2 Crimes Act 1961, s 234. Maximum penalty 10 years’ imprisonment.
3 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or a
$6,000 fine. The court must also order the person be disqualified from holding or obtaining a driver licence for one year or more.
4 Crimes Act 1961, ss 219 and 223(4). Maximum penalty three months’ imprisonment.
The victim replied that he could not help. Mr Katipa then left the property and went into a neighbour’s yard.
[6] While the victim was getting himself a drink, he heard someone climbing through a window. He went to investigate and found Mr Katipa standing in a room inside the house. Mr Katipa started asking questions such “Where’s the money?” and “Where’s the safe?”. He stated “I know you have guns here”.
[7] The victim told Mr Katipa he didn’t know and started backing away. Mr Katipa followed the victim, threatening to punch him. Mr Katipa then put gloves on and grabbed the victim’s phone so that he was unable to call for help. Mr Katipa proceeded to ransack each room in the house. He continued to ask where the safe and money were and stated, “I need to take something to my captain”. Mr Katipa became progressively angrier and again threatened to punch the victim.
[8] Mr Katipa located a gun box and a 12-gauge shotgun inside a wardrobe. He told the victim “I’ll take this” and then asked, “Where’s the keys?” indicating the gun safe. The victim did not know where the keys were. Mr Katipa then left the address, telling the victim not to call the Police. He took with him the shotgun, two cell phones, a postal bag and cigarettes.
Theft
[9] In addition, there were 12 charges of theft. These relate to taking petrol without paying for it.
Sentence indication
[10] Mr Katipa sought a sentence indication.5 The Judge indicated an overall starting point of four-and-a-half years, comprising four years’ imprisonment for the robbery charge, an uplift of three months for the theft charges and another three-month uplift to reflect Mr Katipa’s previous convictions. The Judge indicated discounts of 25 per cent for guilty pleas and 10 per cent for youth, with the possibility of further discounts for other personal mitigating factors that might become apparent. Mr Katipa accepted the indication.
5 Police v Katipa DC Huntly CRI-2022-024-41, 19 May 2022.
District Court sentencing
[11] After reminding Mr Katipa of the indicated sentence, Judge Down acknowledged he had since received a letter from Mr Katipa’s girlfriend, a letter from his father and a s 27 cultural report. He said that these documents shed “a very different light on things”.
[12] The Judge proceeded to summarise the lead offence – the robbery. He noted that Mr Katipa had accepted that his offending was a result of his “prospecting” for a gang he had affiliated with. The Judge accepted from the s 27 report that Mr Katipa was not simply trying to gain favour with the gang and that he and his family were under threat from the gang at the time. As a result Mr Katipa felt obligated to commit the offending. The Judge cautioned that this did not however excuse the act or the harm caused to the victim and his family.
[13] The Judge reiterated that he had earlier indicated discounts of 25 per cent for guilty pleas and 10 per cent for Mr Katipa’s youth. He then turned to the s 27 report. The Judge noted that it “does throw a lot of light on your upbringing which was very poor indeed”. He recorded that Mr Katipa was introduced to a gang at a very early stage and that as a result, he found himself in the position he was in when the offending was committed. However, the Judge commented that some judges give “enormous discounts for such a background” but that he was not one of them. Instead, he considered more compelling his duty to punish Mr Katipa and to deter others from committing similar offending. He determined that a 10 per cent discount for the factors identified in the s 27 report was appropriate. He did not give a discreet discount for remorse.
[14] The Judge noted the total discount was 45 per cent, or 25 months, reducing the sentence to two-and-a-half years’ imprisonment. He left release conditions to be fixed by the parole board. The Judge said that this end sentence already reflected the theft charges, so on those charges Mr Katipa was convicted and discharged. The Judge also disqualified Mr Katipa from driving for one year, starting from 18 February 2023.6
6 The Judge noted if the disqualification were to begin immediately, it would have no effect since Mr Katipa would be serving his sentence during all or most of that period.
The appeal
[15] The appeal against sentence is brought pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 250 of that Act, Mr Katipa’s appeal must be allowed if the Court is satisfied there is an error in the sentence imposed on conviction and that a different sentence should have been imposed.
[16] It is for Mr Katipa to demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.7 The Court does not start afresh and substitute its own opinion for that of the original sentencer.8 Rather, the focus is on the end sentence imposed, and whether it was within range. It is not on the correctness of the process by which the sentence was reached.9
Submissions
[17] Mr Taylor, for Mr Katipa, did not challenge the starting point adopted by the Judge, nor the discounts allowed for the guilty pleas and youth. Rather, he submitted that the 10 per cent discount awarded for cultural factors was inadequate given the significant nexus between Mr Katipa’s past, as outlined in the s 27 report, and the lead charge. He submitted that the Judge should also have awarded a discount in recognition of Mr Katipa’s remorse. He put it to me that a further 20 to 25 per cent discount should have been allowed, resulting in an end sentence of around 20 months’ imprisonment. He clarified however that, given Mr Katipa has been in custody for some 11 months, he did not seek to convert the end sentence to one of home detention. Rather, he sought to reduce the length of the prison sentence. An end sentence of 20 to 24 months’ imprisonment would be a short sentence of imprisonment for the purposes of the Parole Act 200210 meaning that Mr Katipa would not be required to appear before the Parole Board.
[18] Ms Keller, for the Crown, submitted that the 10 per cent discount applied for cultural factors was appropriate and within range. She argued that it was open for the
7 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
8 At [30].
9 At [36].
10 Section 4(1).
Judge not to award a separate discount for remorse, and that the end sentence imposed was not manifestly excessive.
Analysis
Discount for cultural factors
[19] The s 27 report was prepared by Delwyne Woodmas of Cultural Reports Aotearoa Ltd. The following matters were addressed in the report:
(a)Mr Katipa comes from a broken family. Siblings were whangai’d to different family members; his father was in prison; his mother was addicted to drugs and alcohol. CYFS became involved with the family, sending Mr Katipa and some of his siblings to live with their paternal grandmother.
(b)During his formative years Mr Katipa was abused by a family member, both with and without weapons.
(c)Mr Katipa suffered numerous learning difficulties at school and did not obtain any academic qualifications.
(d)Throughout his school years, Mr Katipa was physically, emotionally and sexually abused by those charged with his care and protection, as well as by other family members.
(e)Mr Katipa ran away from home aged 10 and, over the next few years, moved between various houses.
(f)Mr Katipa’s cousin committed suicide when Mr Katipa was aged about 12 years.
(g)Around this time, Mr Katipa was introduced to gangs and was encouraged to start offending. Police became involved when he was aged 13.
(h)At 19, while in prison, Mr Katipa began prospecting for a gang his friend was part of. He was advised he had to go to gang meetings to avoid beatings and other physical abuse.
(i)Mr Katipa has only recently met his father, whilst in custody. Other members of his family are also in prison. Such a lifestyle has been normalised for Mr Katipa.
(j)Mr Katipa is doing all he can to leave his previous lifestyle behind him. He has the support of his partner and children and he has tried to isolate himself from gang members while in custody.
[20]The Judge at sentencing accepted the following:
(a)the robbery arose out of Mr Katipa’s perceived obligation to serve the gang due to fear of or a threat from the gang, rather than in an attempt to simply gain their favour;
(b)Mr Katipa’s upbringing was poor;
(c)from an early age, Mr Katipa had to fend for himself in circumstances where he was subject to violence and other abuse;
(d)his father was absent, spending most of his adult life in prison, and other family members significantly let Mr Katipa down; and
(e)Mr Katipa was introduced to a gang at a very young age.
[21] In Zhang v R,11 the Court of Appeal considered the role of s 27 reports, noting that ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity can require consideration at sentencing when it is shown to have contributed causatively to a defendant’s offending. There does not need to be extensive evidence of a nexus between offending and socio-economic and cultural disadvantage for a discount to be granted.12 The assessment of whether there
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
12 Arona v R [2018] NZCA 427 at [59], citing Solicitor-General v Hetter [2018] NZHC 2453, [2019] 2 NZLR 241; and Waikato-Tuhega v R [2021] NZCA 503 at [51].
is a nexus is not a mechanical exercise requiring a high threshold of proof.13 Rather, what is required is an overall assessment, assisted by the available evidence, including that in the s 27 report, of how personal circumstances might have contributed to culpability and offending.14
[22] I accept that there a nexus between Mr Katipa’s background and his offending. The Judge also accepted this. What is in issue is whether the Judge’s decision to allow only a 10 per cent discount for the matters raised in the s 27 report was in error.
[23] There is no fixed discount available for cultural, socio-economic and other matters raised in s 27 reports. Rather, the Court has a discretion as to the appropriate discount (if any). Whether there is a discount and the extent of the discount is likely to turn on the extent of the nexus between the identified factors and the offending. The analysis required is fact specific.
[24] There was an obvious nexus in the present case between Mr Katipa’s background and the socio-economic disadvantages which blighted his childhood and his offending. As a result of his upbringing, Mr Katipa was ushered into a gang-type lifestyle at a very early age. He has offended over the years at the gang’s behest. The lead charge involved in the present case – robbery –involved Mr Katipa acting on instructions from his gang. He told the victim that he had to return with something for his “captain”.
[25] In my view, the factors identified in the s 27 report reduce Mr Katipa’s culpability more than the Judge recognised. Mr Katipa was denied love and care by his family. Gang members were the first to provide him with any sense of stability and belonging. It was noted in the report as follows:
While he was outside the Pokeno Ice Cream shop a gang member asked him if he had any where to stay. He told him no and he went with him to his home. His name was Tavita and he was good to [Mr Katipa], but he was advanced in theft and car conversion and [Mr Katipa] found himself doing the things he was told to do, he felt an obligation to show his gratitude and “pay his way”.
13 Waikato-Tuhega v R, above n 12, at [51].
14 At [51].
In my view, the Judge also did not give enough weight to the fact Mr Katipa committed the offending out of a sense of obligation. He felt such an obligation from an early age. Again, the report states as follows:
When he was young and immature, he was smoking a lot of weed and doing things he was asked to do by the gang. He said everything is a blur, he can not remember what order he did things and when, but he was active in crime …
[26] In my view, in the circumstances of this case, the discount allowed by the Judge for cultural and personal factors was inadequate. I would have allowed a discount of 20 per cent from the sentence I would otherwise have imposed.
[27]I now turn to the issue of remorse.
[28] Section 9(2)(f) of the Sentencing Act 2000 requires a sentencing Court to take into account as a mitigating factor any remorse evidenced by an offender. It is a personal mitigating factor that can justify a separate discount over and above the discount allowed for guilty pleas. Sentencing Judges are not however required to take unsubstantiated claims of remorse at face value. In Hessell v R,15 the Supreme Court noted as follows:
Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
[29] Here, the Judge gave Mr Katipa no discreet discount for remorse. Indeed, he did not mention remorse. Mr Katipa had however provided a letter of apology to both the Court and to the victim of the robbery. Mr Katipa had also sought to engage with the victim through a restorative justice conference. That conference did not take place but not through any fault of Mr Katipa. Mr Katipa offered to pay reparation to the victim. It seems that Mr Katipa is trying to leave the gang. It was noted in the s 27 report as follows:
15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
His partner has told him he can not have her and the children AND the gang, he needs to make a choice. He told me there is no choice, his children and partner mean the world to him.
[Whilst in custody] He is in “segs”, which is segregation from the gangs. There is a member of his gang that is in segs for safety reasons (other gang rivals) and Wayne has told him he is leaving the gang. He thinks he is okay with it. He received a beating from one member when he first told them he was leaving, and he is hoping that will be the end of his association. He intends to stay clear of any associates when he gets out of prison.
[30] I accept that Mr Katipa’s remorse was and is genuine. In my view, it should have attracted a modest discount of five per cent.
Result
[31] The Judge allowed only 10 per cent discount for the matters raised in the s 27 report and no discount for remorse. The discounts allowed by the Judge totalled 45 per cent. In my view, they should have totalled 60 per cent – 25 per cent for the guilty pleas, 10 per cent for youth, 20 per cent for the factors identified in the s 27 report and 5 per cent for remorse. As a result of the inadequate discounts, the sentence imposed by the Judge was manifestly excessive.
[32] I allow the appeal. The sentence of two and a half years’ imprisonment imposed by the Judge is quashed. I substitute a sentence of 21 months and two weeks’ imprisonment.
[33] Because the sentence is a short term of imprisonment, it will not be open to the Parole Board to impose conditions on Mr Katipa’s release.16 Accordingly, I impose special conditions as recommended by the Department of Corrections in the pre- sentence report. I am satisfied that those conditions are appropriate. They should help reduce the risk of reoffending by Mr Katipa and facilitate and promote his rehabilitation and reintegration. The special conditions are as follows:
(a)Mr Katipa is not to possess, consume, or use any alcohol or drugs not prescribed to him;
16 Sentencing Act 2002, s 93(5) and Parole Act 2002, s 18(2).
(b)Mr Katipa is to attend and complete an appropriate alcohol and drug counselling programme/treatment to the satisfaction of a probation officer. The details of the appropriate programme are to be determined by the probation officer;
(c)Mr Katipa is to attend an assessment for any appropriate treatment/counselling/programme as directed by a probation officer, and is to attend and complete any counselling, treatment or programme as recommended by the assessment and as directed by and to the satisfaction of a probation officer;
(d)Mr Katipa is not to associate with or contact the victims of his offending without the prior written approval of a probation officer;
(e)Mr Katipa is not to communicate in any way or associate with any member or associate of the Killer Beez gang, without the prior written approval of a probation officer.
These conditions are to apply for a period of six months from Mr Katipa’s sentence expiry date.
Wylie J
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