Katoa v Police
[2015] NZHC 1562
•6 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-107 [2015] NZHC 1562
BETWEEN SIONE KATOA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 July 2015 Counsel:
H E Juran for Appellant
K J Cooper for RespondentJudgment:
6 July 2015
ORAL JUDGMENT OF MUIR J
Solicitors/Counsel: Harvey Juran (Auckland) for Appellant
Crown Law (Wellington) for Respondent
KATOA v POLICE [2015] NZHC 1562 [6 July 2015]
Introduction
[1] The appellant, Mr Sione Katoa, appeals out of time against his sentence of three years’ imprisonment for aggravated robbery, wounding with intent to injure and common assault. The appeal is on the basis that the sentence is manifestly excessive, inappropriate in all the circumstances and not on a par with sentences imposed on a co-defendant, Mr Philipa.
Factual background
[2] At 4:00 pm on 23 October 2013, the first victim, Mr Silva, was walking on the footpath in the Mangere Town Centre. The appellant and co-defendant, Mr Philipa, asked Mr Silva if he had $2 to give them. Mr Silva said he did not. The defendants followed Mr Silva and the appellant punched him in the face. That is undisputed. Mr Silva fell to the ground and lost consciousness. He also suffered a cut lip and some injury to his eye. The defendants took Mr Silva’s bag, his wallet, phone and various personal items. That was the basis for the aggravated robbery charge.
[3] The defendant and his co-defendants were disturbed by the second victim, Mr Tarai, and left the scene. The robbery was also witnessed by a third victim, Mr Chongnee.
[4] At about 7:00 pm, Mr Tarai and Mr Chongnee were walking along a walkway in the Mangere Town Centre. The appellant, and the two other co-defendants, Mr Philipa and Mr Kaho, along with others, were drinking in the walkway at the time. As Mr Tarai and Mr Chongnee approached, a conversation began about the earlier robbery they had witnessed. The appellant threw a punch at Mr Chongnee’s head. Mr Chongnee ducked, but a fight between them began. That is the basis of the common assault charge.
[5] Mr Kaho then picked up an empty bottle of beer and hit Mr Chongnee on the back of the head, causing the bottle to smash. Mr Chongnee then ran away. He received minor injuries.
[6] Mr Tarai also attempted to run when he saw Mr Chongnee being assaulted, but unfortunately tripped and fell to the ground. While on the ground, Mr Tarai was attacked by multiple assailants – the appellant, Mr Philipa and other unknown males. He was kicked and punched a number of times to the body and head. Mr Kaho smashed a beer bottle and stabbed Mr Tarai in the stomach, lower back and neck area as he lay on the ground. The appellant and his co-offenders then ran from the area when a witness approached. Mr Tarai suffered multiple stab wounds and abrasions requiring hospitalisation and surgery, and it is that assault which was the basis of the wounding with intent to injure charge.
[7] The appellant is 19 years’ old and was, by my calculation, 18 years’ old at the time of offending (although the District Court Judge reckoned it to be 19). He has no previous convictions.
District Court decision
[8] On 4 December 2014, in the District Court at Manukau, the appellant pleaded guilty and was sentenced on charges of wounding with intent to injure, aggravated robbery and common assault, each carrying with them respectively maximum penalties of seven years, 14 years and 12 months’ imprisonment.
[9] Judge Andrée Wiltens described the aggravated robbery as a “very serious matter indeed”, a description with which I am in full agreement. He noted also the seriousness of the injuries to Mr Tarai. The Judge emphasised deterrence, condemnation and the needs of the victims and the community in his sentence.
[10] The Judge noted Mr Katoa’s guilty plea was entered later in 2014 and that this made it hard to find that there was any true remorse, regardless of what the Judge described as the “wheeling and dealing that your lawyers are engaged in with the prosecution.” He suggested that if the defendants were truly remorseful they would have acknowledged their wrongdoing to Mr Tarai, rather than waiting
12 months after the event to plead guilty.
[11] The Judge did give a guilty plea discount of 20 per cent, which he considered the maximum available in the circumstances because of the late plea. The Judge
noted, in particular, that Mr Katoa was fortunate to get a 20 per cent discount when he waited until the others had pleaded before finally acknowledging his wrongdoing.
[12] The Judge did take into account the appellant’s youth. He said the Court takes into account youth when there are prospects of rehabilitation and to prevent a crushingly long prison sentence for a young offender. However, the inevitable consequence of the conduct was identified by him as imprisonment, and that position was not challenged before the District Court Judge or indeed on appeal. The only question was for how long, and in that context the Judge did not consider there was a substantial credit available for youth. He gave each of the offenders five per cent.
[13] The Judge acknowledged that there were attempts to engage in restorative justice, but these failed because the restorative justice officials could not contact the victims. The Judge noted that restorative justice is of benefit only where the offender actually meets the victim face-to-face, acknowledges wrongdoing, apologises and that apology is accepted by the victim. Because that did not take place, no credit was given.
[14] For Mr Philipa, who pleaded guilty to aggravated robbery and wounding with intent to injure, a starting point of four years was adopted, uplifted by four months for previous convictions then discounted 25 per cent for youth and guilty plea, to leave an end sentence of 39 months’ imprisonment.
[15] For Mr Kaho, who pleaded guilty to aggravated robbery, wounding with intent to cause grievous bodily harm and assault with a weapon, a starting point of five years’ imprisonment was adopted. It appears that this was at the lower end of starting points considered by the Judge, but was appropriate in light of parity with the co-offenders. With a discount for youth and the guilty plea, the end sentence was three years and nine months’ imprisonment.
[16] The appellant was given a starting point of four years’, the same as Mr Philipa, for the aggravated robbery and wounding with intent. No uplift was given for the assault. A discount of 25 per cent was given for the guilty plea and youth, leaving an end sentence of three years’ imprisonment – three years’
concurrent for the wounding and aggravated robbery and three months’ for the
assault charge. The appellant was also given a first strike warning.
The appeal
[17] This is out of time. The District Court decision was on 11 March 2015. The appeal was filed on 24 April 2015. The reason why the appeal is late is apparently because the appellant’s counsel wrongly sent the forms to the Court of Appeal, rather than the High Court.
[18] As stated in Mikus v R:1
For an application for extension of time to appeal to be granted, it must be in the interests of justice to do so. As this Court recently said in R v Slavich, extension of time applications will invariably reduce to two questions. First, why the appeal was filed late. Second, what merit, if any, the prospective appeal point appears to have.
[19] The explanation is one I accept – an innocent mistake on the part of counsel – which should not in the circumstances detract from the appellant’s substantive rights, and I grant leave in relation to the appeal. I will assess the merits as part of the substantive appeal.
Grounds of appeal
[20] The appellant appeals the sentence on the basis that it is manifestly excessive and inappropriate in all the circumstances for the following reasons:
(a) The Judge failed to take into account the time the appellant spent on bail with a 24-hour curfew;
(b) The Judge failed to take into account the appellant’s willingness to
enter into a restorative justice programme;
(c) The Judge failed to give a discount for remorse;
1 Mikus v R [2011] NZCA 298 at [26].
(d)In oral submissions this morning, that the Judge did not given a reduction to reflect previous good character; and
(e) The sentence is out of kilter with the sentence given to Mr Philipa.
Appellant’s submissions
(a) Restrictive bail conditions
[21] Mr Juran submits that the Judge failed to take into account the amount of time the appellant had spent on bail with a 24-hour curfew. He submits the appellant spent nearly a year on bail with that restrictive condition. He acknowledges it is not mandatory to reduce a sentence because of a restrictive bail condition, but he submits there was no reason for not doing so in the present circumstances.
(b) Restorative justice
[22] Mr Juran submits that the Court must take into account the willingness to enter into a restorative justice programme under s 10 of the Sentencing Act 2002. And, further, such willingness is evidence of genuine remorse.
(c) Remorse
[23] Mr Juran submits the fact that the guilty pleas were entered 12 months after the alleged offending was because of protracted discussions with the Crown about the charges and the summary of facts. In particular, the appellant was originally alleged to be the person to have been responsible for the stabbing but for which Mr Kaho eventually accepted responsibility. Mr Juran submits that the appellant could not reasonably have been expected to plead until the correct charges were laid and the “summary” was amended. Mr Juran points to the pre-sentence report, which indicated remorse and the appellant’s preparedness to enter into a restorative justice programme.
(d) Parity
[24] Mr Juran points out that the appellant pleaded guilty to the same matters as
Mr Philipa, with the exception of the common assault charge. However, Mr Philipa
had a previous conviction for aggravated robbery, whereas the appellant has no previous convictions. The appellant and Mr Philipa were granted bail but Mr Philipa quickly breached his bail and spent the rest of his time before the sentencing hearing on remand in custody. Because the time spent in custody will be deducted from his sentence, he will, Mr Juran suggests with an element of irony, be released before the appellant despite being sentenced to three months longer.
Respondent’s submissions
[25] The respondent submits that a discount for restrictive bail conditions is not appropriate because 10 breaches of bail are recorded, albeit some of them were contested but not resolved because the appellant was ultimately again remanded in custody.
[26] In relation to remorse, Ms Cooper argues that the Judge conducted an evaluation of all of the circumstances and came to the conclusion that there was no genuine remorse such as would result in a reduction of sentence. Ms Cooper notes the fact that the appellant did not provide a letter of remorse at sentencing and that it was proper for the Judge to be sceptical about unsubstantiated claims of remorse.
[27] Similarly, while the Judge, in accordance with s 10 of the Sentencing Act, recognised the attempt to engage in the restorative justice process, there was insufficient evidence of remorse arising from the evidence because that process was unable to be undertaken and there was none of the face-to-face acknowledgement of wrongdoing and remorse associated with such a restorative justice conference. Further, Ms Cooper points to the appellant’s 20 per cent guilty plea reduction and lack of uplift for the assault charges, suggesting that was generous in the circumstances.
[28] In relation to parity, Ms Cooper points to s 82 of the Sentencing Act, which prohibits a Judge from taking any pre-sentence detention into account when imposing sentence. She also notes s 90 of the Parole Act 2002, which states that a period spent in pre-sentence detention is deemed to be time served. The Crown, therefore, submits that the time spent by the co-offender in custody is irrelevant for the purpose of parity.
Approach on appeal
[29] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[30] In any other case, the Court must dismiss the appeal.2
[31] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.3 Further, despite s 250 making no express reference to “manifestly excessive”, these principles are “well-engrained” in the Court’s approach to sentence appeals.4
[32] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:5
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
2 Criminal Procedure Act 2011, s 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4 At [33] and [35].
5 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
[33] Significantly in this case, the High Court will not interfere where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6
Analysis
Starting Point
[34] There appears to be no dispute that the four year starting point was appropriate. The aggravated robbery aligns with the higher end of the street robbery guideline in the guidelines case of R v Mako (18 months’ to three years’ as a starting point, more if there is actual violence (as there was here, and significant violence in
my opinion)).7 This was a nasty, violent group robbery. The appellant punched the
victim in the head to the point of unconsciousness.
[35] For the wounding with intent to injure charge, the appellant attacked a vulnerable victim who had fallen on the ground with punches and kicks to the body and head. It was a group attack, and although the greatest extent of violence and injury was inflicted by Mr Kaho with the broken beer bottle, the appellant contributed to the injuries suffered by Mr Tarai. The offending fits within the middle of band two of the tariffs in the leading case of Nuku v R (up to three years’
imprisonment).8 I accept that the assault charge was minor, comprising the appellant
swinging and missing Mr Chongnee. However, overall, a four year starting point was, in my opinion, demonstrably appropriate.
Restrictive bail conditions
[36] The appellant did spend nearly a year on bail with a 24-hour curfew, the only exceptions being to allow him to attend WINZ, legal and probation interviews. The
curfew remained in force from November 2013 to late October 2014.
6 Ripia v R [2011] NZCA 101 at [15].
7 R v Mako [2000] 2 NZLR 170 (CA) at [59].
8 Nuku v R [2013] 2 NZLR 39.
[37] A reduction in sentence is often appropriate when offenders are subject to a lengthy period under restrictive bail conditions, such as a 24-hour curfew.9 Indeed, with 24-hour curfews, the reductions recognised in the cases have often been half or more of the time spent subject to those conditions,10 because the restrictions are, in a broad sense, similar to the degree of restriction on liberty involved with a prison sentence.11
[38] There is not, however, a right to reduction.12 Where the offender does not comply with the bail conditions the Court is more reluctant to allow a reduction in sentence. In R v Bidois, an offender was disqualified from any credit through a pattern of breaches.13 The offender had breached bail four times over a period of nine months. A fifth allegation of breach of bail was disregarded because it had not been admitted or proved.14 In R v Bishop, no discount was given to an offender who had breached bail on four occasions over a four-and-a-half month bail period.15
[39] The Police record identifies breaches of bail conditions on 10 occasions between November 2013 and 26 October 2014. I accept some of those are disputed. The dispute was never resolved because of the appellant’s return to custody after the last of the breaches. From October 2014, the appellant was remanded in custody. I do note that in November 2013 there appears to have been some Police confusion about the appellant’s actual bail address. Of the recorded breaches, seven came before the Court with three resulting in warnings and four breaches were disputed by the Defence. The breaches primarily involved the appellant not presenting himself at the bail address.
[40] I accept that a 24-hour bail curfew for 11 months is onerous. If the appellant had complied, even substantially complied, with the conditions, a significant
reduction in sentence would have, in my opinion, been appropriate. However, even
9 Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613 at [137]; Bennett v R [2012] NZCA 173 at
[25]; R v Iosefa [2008] NZCA 453 at [43]; R v Cristia [2008] NZCA 19 at [14].
10 R v Faisandier CA185/00, 12 October 2000; Molia v R [2013] NZCA 512.
11 Keown v R [2010] NZCA 492 at [12].
12 R v Bishop [2009] NZCA 265 at [13].
13 R v Bidois [2009] NZCA 426; R v Bishop [2009] NZCA 265; Murray-MacGregor v R [2011] NZCA 66; Gage v R [2014] NZCA 140
14 At [12].
15 At [13].
ignoring the disputed or unproven breaches, there is a pattern of habitual breach which in my assessment precludes any reduction in sentence. It was, in my opinion, appropriate for the Judge not to take the restrictive bail conditions into account in those particular circumstances.
Restorative justice
[41] In respect of the willingness to participate in restorative justice, under s 10 of the Sentencing Act a Court must take into account offers to make amends by the offender, including reparation offers, apologies, offers to work or provide service, or any other action which makes good the harm that occurs. Under s 10(2), a Court must take into account whether or not the offer is genuine and capable of fulfilment and whether it was accepted by the victim. The section clearly contemplates offers to make amends made in the context of a restorative justice process – including apologies or compensation. It can also provide an avenue for the offender to
demonstrate genuine remorse.16 Engagement in restorative justice can be recognised
by a reduction in sentence.17
[42] Generally, discounts arise from the outcomes of a successful restorative justice process, rather than simply a stated willingness to engage in it. The Judge, in this case, did take account of the willingness to engage, but noted that restorative justice is only of benefit where there is actually a face-to-face meeting, an acknowledgement of responsibility, a genuine apology and in appropriate circumstances an offer to make amends. Given the overarching context of the violent nature of the offending, the late guilty plea, and the fact that a restorative justice process never took place, it was, in my opinion, appropriate for the District Court Judge not to provide a discrete allowance for willingness to engage.
Remorse
[43] A willingness to participate that did not proceed can indicate a positive attitude and remorse – I accept that.18 In Scott v R, the offender was given a discount
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
17 R v Shirley [2009] NZCA 216 at [23].
18 Wrathall v Police HC Christchurch A136/02, 19 December 2002; Scott v R [2014] NZHC 1598.
for her willingness to be involved in a restorative justice process but there had been other evidence showing that the offender had approached the family before the charges were even laid.19 So there was strong evidence of genuine remorse. It was a case where the overall circumstances, alongside the willingness to engage, demonstrated that genuineness.
[44] Here, in my view, there is nothing in particular outside of the stated willingness to engage to indicate remorse. I do accept that the Provision of Advice to the District Court noted the appellant’s regret, but it also noted his “rather ingenuous attitude or a considerable lack of ability to think through his actions to their possible outcomes”. The report also suggests:
By his guilty pleas, Mr Katoa has accepted responsibility for his part in the offences. He did not seek to apportion blame, although he did say that in the first offence the victim punched him first, to which he reacted.
[45] The report further notes concerns about the appellant alleging that he was knocked unconscious early in the second incident and cannot remember anything that ensued. There is an element of minimisation and reluctance to accept responsibility, despite the guilty pleas in my assessment.
[46] The guilty pleas were entered 12 months after the offending. The appellant was initially charged with wounding with intent to cause grievous bodily harm and assault with intent to injure. However, once it became clear that Mr Kaho was the offender who used the bottle as a weapon, the grievous bodily harm charge was downgraded to wounding with intent to injure. At some point the assault with intent to injure charge was amended to a common assault charge. The initial summary of facts incorrectly identified the appellant as the offender that attacked Mr Tarai with a broken bottle. The charge of wounding with intent to cause grievous bodily harm was amended at the time that the appellant pleaded guilty on 4 December 2014.
[47] In my view, the late guilty plea does not demonstrate a lack of remorse considering that the appellant was incorrectly charged in respect of one of the
offences, though the appellant could have pleaded guilty earlier in respect of his
19 At [40].
other offences and in particular the aggravated robbery charge. On the other hand, there is nothing inherent in a guilty plea which of itself particularly demonstrates remorse,20 and the surrounding circumstances do not greatly encourage me that that was the situation. I note, in particular, that although remorse was mentioned in the pre-sentence report, it was unsubstantiated. Ms Cooper says that the provision of a letter of remorse, as indicated in the report, did not follow at the sentencing. The sentencing Judge’s scepticism about the genuineness of the alleged remorse was, in my opinion, therefore justified on the “robust evaluation” the Judge was entitled to make.21
[48] The lack of a discrete discount was, I consider, appropriate. Moreover, how the sentence was made up is, as Ms Cooper says, of secondary importance to the totality of the end sentence which was, in my opinion, within range. Relevant in that context is the 20 per cent reduction for guilty plea, which was generous in light of the late plea. In that context I am referring in particular to the aggravated robbery charge which was not the subject of the negotiations which occurred with the wounding with intent charge.
Parity
[49] There is nothing, in my view, to suggest a disparity between the appellant and Mr Philipa’s sentence. Mr Juran points to Mr Philipa’s previous aggravated robbery conviction. The Judge, however, uplifted Mr Philipa’s sentence by four months to take account of this.
[50] Mr Juran also notes the fact that Mr Philipa breached his bail and spent the rest of his time before sentence on remand in custody. This means that Mr Philipa’s sentence will end before the appellant’s, despite being sentenced to three months longer. However, this has nothing to do with the actual sentence imposed. The
Court does not take pre-sentence detention in to account when imposing sentences.22
Further, the period spent on remand is deemed to be time served.23 In other words,
20 Hessell, above n 16, at [64].
21 Above.
22 Sentencing Act 2002, s 82.
23 Parole Act 2002, s 90.
Mr Philipa is still serving his sentence, which is longer than the appellant’s. He just, in effect, started the sentence earlier than the appellant because he was on remand in custody. The fact that Mr Philipa was on remand has no impact, as such, on the parity between the sentences.
[51] Mr Juran also raises the issue of what he suggests is the appellant’s previous good character. Unlike Mr Philipa, there was no uplift on account of the other charges (in Mr Katoa’s case the common assault), nor was there a discrete discount for character. I accept that such a discount, possibly in the order of three to five per cent, may have been given but that the relevant issue on appeal is to look at the totality of the sentence and whether it was in range having regard to the nature of the offending. In my view, it was within range.
Result
[52] The appeal is dismissed.
Muir J
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