Katoa v Police
[2023] NZHC 1987
•27 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000233
CRI-2023-404-000234 [2023] NZHC 1987
IN THE MATTER OF an appeal against sentence BETWEEN
SIONE KATOA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 July 2023 Appearances:
E M Gresson for Appellant B A Mugisho for Respondent
Judgment:
27 July 2023
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 27 July 2023 at 4.00 pm.
Registrar/Deputy Registrar
Counsel/Solicitors:
E M Gresson, AucklandKayes Fletcher Walker (Crown Solicitor at Manukau), Auckland
KATOA v POLICE [2023] NZHC 1987 [27 July 2023]
[1] Mr Katoa was sentenced to 23 months’ imprisonment and disqualified from driving for 13 months for the following charges:1
(a)1 x assaults with intent to injure (manually);2
(b)1 x disorderly behaviour likely to cause violence;3
(c)1 x possessing knife in public place;4
(d)2 x driving with excess breath alcohol;5 and
(e)2 x driving while disqualified.6
[2] He appeals his sentence on the basis that the District Court Judge erred in not commuting that sentence to home detention.
Offending
[3] The offending fell into two groups. The first three of the above charges arose out of offending on 18 November 2021. The remaining charges arose on 3 November and 13 December 2022 respectively.
Events of 18 November 2021
[4] At approximately 8.00 pm on 18 November 2021, Mr Katoa and an associate were walking on Massey Road. They had been drinking and were intoxicated. The victim, who was unknown to them, was also walking on Massey Road.
1 New Zealand Police v Sione Katoa [2023] NZDC 8109.
2 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3 Summary Offences Act 1981, s 3; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
4 Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
5 Land Transport Act 1998, ss 56(1) and (4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000.
6 Land Transport Act 1998, ss 32(1)(a) and (3); maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
[5] When the defendants came across the victim, they attacked him. The victim was knocked to the ground and the defendants began to punch and kick him as he lay there.
[6] A member of the public intervened and stopped the assault by pulling the defendants away from the victim. This allowed the victim to stand. However, the defendants began punching him again. When the victim fell to the ground, Mr Katoa kicked him and stomped on his head.
[7] The same member of the public intervened and the victim fled down an alleyway. The defendants chased him. At some stage during the attack, Mr Katoa produced a pocketknife.
[8] The Police arrived. The defendants ran away, but were eventually located and arrested. When searched, Mr Katoa was found to be in possession of the pocketknife.
[9] The victim had multiple injuries, including lacerations, contusions, and abrasions to his face, head, arms, body, and legs.
Events of 3 November 2022 and 13 December 2022
[10] The driving offences on 3 November 2022 and 13 December 2022 arose when Mr Katoa was subject to bail conditions for the first group of offences. He was also disqualified from driving at this time.
[11] At approximately 9.30 am Mr Katoa was stopped in his vehicle and breathalysed. His test returned a reading of 741 mg of alcohol per litre of breath. At the time, he was indefinitely disqualified from driving.
[12] On 13 December 2022, at approximately 8.00 pm, Mr Katoa was stopped by police due to speeding. His excess breath alcohol level was 546 mg of alcohol per litre of breath.
District Court sentence
[13] Mr Katoa pleaded guilty to all charges and appeared in the District Court at Manukau on 27 April 2023 for sentencing.
[14] After referring to the circumstances of the instant offending, the Judge outlined Mr Katoa’s prior offending in 2015 and 2019:
(a)In 2015, Mr Katoa was sentenced to three years’ imprisonment for wounding with intent to injure, aggravated robbery and common assault. This offending took place in 2013. Mr Katoa was 19 years of age at the time. Mr Katoa and his associates were intoxicated. They happened upon the victim who was walking past and attacked and robbed him. Later, Mr Katoa punched another person in the head.
(b)In 2019, Mr Katoa was sentenced to eight months’ home detention for injuring with intent to injure, assaulting police, and resisting police. The Judge said that the starting point of 19 months’ imprisonment for the 2019 offending gave an indication of the seriousness of that offending.
[15] The Judge went on to say that she did not consider intensive supervision and community detention, recommended in the pre-sentence report, to be anywhere close to adequate for the type of behaviour Mr Katoa has displayed both in the past and on this occasion.
[16] The aggravating features identified by the Judge were: the attack to the victim’s head; the fact that there were multiple attackers; the degree of violence including a stomp to the head; the pursuit of the victim even after someone tried to intervene; and the production of a weapon in the context of this violent offending.
[17] The Judge considered the offending fell into band 2 of Nuku v R7 which is a guideline case for more serious charges of injuring with intent to injure, but said she would adjust for the fact that the assault with intent to injure charge attracted a lower penalty. A starting point of 24 months’ imprisonment was adopted.
[18] For the driving offences, the Judge considered an uplift of 10 months was appropriate. This was further uplifted by four months’ imprisonment to account for Mr Katoa’s history of violence and the fact that the offending occurred while he was on bail.
[19] The mitigating factors identified by the Judge included the fact that Mr Katoa was engaging with counselling; showed insight into contributing factors of offending behaviour; had completed an alcohol and drug rehabilitation programme. Credit was also given for guilty pleas. In all, the Judge awarded a 25 per cent discount for guilty pleas and 15 per cent for rehabilitation and remorse. This made a total discount of 40 per cent.
[20] Before undertaking the final calculation, the Judge acknowledged that the end- sentence could come within the range of home detention, but that the sentence would ultimately be a term of imprisonment. This reflected the fact that past sentences of home detention had not deterred Mr Katoa from abusing alcohol and behaving violently.
[21] The uplift of 14 months for aggravating factors brought the starting point to 38 months’ imprisonment. From this, 40 per cent was discounted (15 months) which resulted in an end sentence of 23 months’ imprisonment. Mr Katoa was disqualified from driving for 13 months on the driving related charges.
Legal framework
[22] Under s 15A of the Sentencing Act 2002, a court may only impose a sentence of home detention if:
7 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
(a)The purpose for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)The Court would otherwise sentence the offender to a short-term sentence of imprisonment.
[23] A sentencing Judge must make a “considered and principled choice” between home detention and imprisonment recognising that both sentences serve the principles of denunciation and deterrence. The obligation is to impose the least restrictive sentence in the circumstances.8
[24] As this Court and others have noted on several occasions, the sentence of home detention carries with it significant deterrence and denunciation. It is not an easy option.9
[25] An appeal against sentence may only be allowed if the appellate court is satisfied that there has been an error in the sentence and that a different sentence should be imposed.10 It is the end sentence which is the focus of the appellate court’s assessment, not the method by which it was reached.11
[26] The standard of appellate review adopted in Tutakangahau12 applies to decisions not to commute imprisonment to home detention, as it does to any other sentence. In confirming that approach, the Court of Appeal in Palmer v R said:13
[19] This change of approach is unlikely to make a difference in the result, because it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention, and any material error would normally have justified intervention under the former approach. As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately
8 Fairbrother v R [2013] NZCA 340 at [30]; Sentencing Act 2002, s 8(g), and s 16.
9 R v Iosefa [2008] NZCA 453 at [41]; Duval v Police [2018] NZHC 393 at [32].
10 Criminal Procedure Act 2011, ss 250(2) and 253.
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
13 Palmer v R [2016] NZCA 541 at [19].
to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
(footnotes omitted)
Was the Judge wrong not to impose home detention?
[27] There is no challenge to the starting point or the adjustments which contributed to the end sentence of 23 months’ imprisonment. The sole question is whether the Judge was wrong not to commute the sentence to home detention.
[28] Ms Gresson, for Mr Katoa, submits that the Judge did not sufficiently analyse the possibility of a home detention sentence. She points to the passages in the Judge’s sentencing notes which indicate that, prior to undertaking the sentencing calculation, the Judge said she would not be willing to “deal with Mr Katoa” by way of anything other than a sentence of imprisonment. Ms Gresson submits that this implies a set state of mind, and a predetermination against home detention.
[29] I am not satisfied that there was any error in the Judge’s approach. The Judge followed accepted sentencing methodology by assessing a starting point by reference to the aggravating and mitigating (of which there were none) features of Mr Katoa’s offending. She considered the uplift for Mr Katoa’s prior convictions and his offending while on bail, and his personal mitigating factors including his engagement in counselling, efforts towards rehabilitation, and credit for the guilty pleas.
[30] The Judge then indicated that the starting point plus the uplift resulted in 38 months’ imprisonment, but Mr Katoa was entitled to a 40 per cent discount. It was at this point that the Judge indicated that she would not be sentencing Mr Katoa to home detention even if the calculation came to something less than 24 months’ imprisonment. Although the calculation had not been formally undertaken by this stage, the components of that calculation were already set. There was no predetermination against home detention in this approach.
[31] Moreover, it is clear from the Judge’s sentencing notes that her reasons for not imposing home detention were due to the nature of the offending, and Mr Katoa’s prior
convictions. Those convictions include the 2015 and 2019 convictions for violent offending in which alcohol had played a part. They also include convictions for breach of home detention conditions on two separate occasions in 2019.
[32] Ms Gresson is critical of the weight that the Judge placed on Mr Katoa’s prior convictions, particularly those from 2015 and 2019. She submits that the Judge appeared to equate the offending the subject of those convictions with the present offending despite the more serious charges the prior offending attracted. Furthermore, Ms Gresson submits that the sentencing notes from the prior convictions were not before defence counsel, and accordingly there was no opportunity for the defence to answer any prejudicial aspects arising from those notes. This, it is submitted, was an unfair approach leading to an error by the sentencing Judge.
[33] It is regrettable that the sentencing notes were not before defence counsel at the time of sentencing. However, Ms Gresson has now had an opportunity to see those notes and make submissions on appeal. There is nothing she has said on appeal that persuades me that the Judge’s assessment of the offending in 2015 and 2019 was in error. The Judge did not equate the seriousness of the historical offending with that before the Court. Rather, the similarities in the past offending (such as the impact of alcohol and the violence inflicted) were noted with the point being that past sentences for similar offending had not deterred Mr Katoa from offending in the same way again.
[34] Ms Gresson submits that as there had already been an uplift from the starting point for the prior convictions, the reliance on the previous offending history to decline commuting a sentence of home detention amounted to “double counting”.
[35] I do not consider Mr Katoa’s previous convictions were accorded improper weight or double-counted in the circumstances. The convictions were relevant to determining the end sentence of imprisonment and were reflected in the uplift applied. But those prior convictions were also relevant to the assessment of whether home detention was an appropriate sentence and whether it met the purposes and principles set out in ss 7 and 8 of the Act. The convictions are relevant at both stages, albeit assessed through a different lens.
[36] I consider the Judge was right to take into account Mr Katoa’s prior convictions. As already noted, they tended to indicate that prior sentences of imprisonment and home detention had not been effective at deterring Mr Katoa from offending in the same way again. Not only is that relevant to the principle of deterrence but it also engages the protection of the community in determining the end- sentence. The Judge considered that these factors meant that a sentence less than imprisonment could not be justified. I do not consider she was wrong to reach that conclusion.
[37] Finally, Ms Gresson submits that the Judge demonstrated “a clear reluctance to consider the factors put forward in the [pre-sentence] report”. She says there was no attention to Mr Katoa’s reported insight, nor to the report writer’s assessment of Mr Katoa’s ability to comply with a community-based sentence as “high”, or his risk of reoffending and causing harm to the community assessment as “medium”.
[38] While there was no specific reference to the pre-sentence report, I am satisfied that the Judge had regard to the factors canvassed in that report. She specifically took into account Mr Katoa’s engagement in counselling and his expressions of insight, including his completion of an alcohol and drug rehabilitation programme. She noted that Mr Katoa had a young family and that while his wife would find it difficult without her husband for a period of time, she had family support. The Judge expressly noted that she had taken into account all submissions made by Ms Gresson that day and given as much weight as she could for the mitigating factors.
[39] The steps Mr Katoa has taken towards his rehabilitation are to be commended. They are pointing in the right direction. It is clear, however, that he has a long way to go. Alcohol appears to be a significant offending related factor, and Mr Katoa has undertaken courses before. There will need to be a substantial commitment to addressing these issues over the long term if the risk of re-offending is to be mitigated. Overall, Mr Katoa’s rehabilitative efforts do not outweigh the need for a deterrent response to the offending. The discount allowed by the Judge was adequate in the circumstances.
[40] It follows that I am not satisfied that the Judge erred in her decision to decline to commute the sentence to one of home detention, and the appeal must be dismissed.
Result
[41]The appeal is dismissed.
Edwards J
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