Kingi v The Queen

[2010] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND

CA69/2010
[2010] NZCA 159

BETWEENDYLAN KINGI

Appellant

ANDTHE QUEEN

Respondent

Hearing:29 April 2010

Court:Baragwanath, MacKenzie and Lang JJ

Counsel:R M Gould for Appellant

S B Edwards for Respondent

Judgment:29 April 2010 

Reasons:6 May 2010 at 3pm

JUDGMENT OF THE COURT

A            The appeal is allowed

B            The minimum term of imprisonment is quashed

CThe sentence of three years nine months imprisonment on the charge of aggravated robbery is confirmed

REASONS OF THE COURT

(Given by Lang J)

[1]        Mr Dylan Kingi pleaded guilty in the District Court to charges of aggravated robbery and burglary.  On 7 December 2009 His Honour Judge Saunders sentenced him to three years nine months imprisonment on the charge of aggravated robbery.  The Judge also made an order under s 86 of the Sentencing Act 2002 requiring Mr Kingi to serve one-half of that sentence before being eligible to apply for parole.  Mr Kingi was convicted and discharged on the burglary charge.

[2]        Mr Kingi appealed to this Court against the sentence that the Judge imposed.  The sole ground of the appeal was that the Judge should not have made an order requiring Mr Kingi to serve a minimum term of imprisonment.

[3]        At the conclusion of the hearing on 29 April 2010 we allowed Mr Kingi’s appeal and quashed the minimum term of imprisonment that the Judge imposed.  In all other respects we confirmed the sentences.  We now give our reasons for doing so.

The procedural history

[4]        In order to understand the issue that the appeal raises it is necessary to set out the somewhat unusual procedural history that led to the sentences that Mr Kingi ultimately received.

[5]        Mr Kingi was jointly charged with his brother, Mr Harris Kingi.  The charges arose out of an incident on 25 October 2008, when the two cousins and an unknown third person broke into a sleep-out occupied by a person whom they believed to have “narked” to the police about an earlier incident.  After breaking into the sleep-out, Mr Kingi and his associates threatened the occupier and stole various items of property from him.

[6]        Both cousins pleaded not guilty, and were committed for trial.  The trial was allocated a fixture in the District Court at Nelson on 25 September 2009.

[7]        On 12 June 2009 the charges were called before His Honour Judge Zohrab, and counsel for both accused sought sentence indications.  The Judge had earlier received full written submissions from both the Crown and the defence, a pre-sentence report in respect of both defendants and a victim impact statement from the complainant.

[8]        After hearing oral submissions from both counsel, the Judge delivered a comprehensive sentence indication in relation to each accused.  This traversed all matters relevant to sentence.  The Judge considered that the offending warranted an overall starting point of four years imprisonment for both men.  He added 12 months to the sentence to be imposed upon Mr Dylan Kingi to reflect his significant list of previous convictions for violent offending.  He made no adjustment on that score to the sentence to be imposed on Mr Harris Kingi. 

[9]        The Judge then noted that both accused would be entitled to credit for guilty pleas, although these had not come at the earliest point.  He said that he would reduce the sentences by 25 per cent to reflect that fact.  This meant that the sentence to be imposed on Mr Harris Kingi would be reduced by one year, whilst the sentence to be imposed upon Mr Dylan Kingi would be reduced by 15 months.  This resulted in end sentences of three years imprisonment for Mr Harris Kingi and three years nine months imprisonment for Mr Dylan Kingi.

[10]       The Judge said that the sentence indications would remain open for acceptance for a period of approximately one week.  Thereafter they would be, to use his words, “off the table”.

[11]       Neither defendant entered guilty pleas during that period. 

[12]       Mr Harris Kingi eventually entered guilty pleas on 13 August 2009.  He was then remanded to appear before Judge Zohrab for sentence on 15 October 2009.  When Mr Kingi appeared on that date, the Judge adopted a starting point of four years imprisonment as he had done when giving his sentence indication.  The Judge then reduced the level of the discount that he applied in recognition of Mr Kingi’s guilty pleas.  He did so to reflect the fact that Mr Kingi had not entered those pleas as early as had been contemplated at the time of the sentence indication.  He therefore imposed an end sentence of three years three months imprisonment on Mr Harris Kingi.  This was three months longer than the end sentence of three years imprisonment that would have been available if Mr Kingi had accepted, within the period that the Judge prescribed, the sentence indication that the Judge had given on 12 June 2009.

[13]       Mr Dylan Kingi did not enter guilty pleas until his arraignment on 25 September 2009.  He entered those pleas after his counsel asked the presiding Judge, His Honour Judge McKegg, whether the sentence indication that Judge Zohrab had given on 12 June 2009 would still be available.  Judge McKegg intimated that, having reviewed the file, he was satisfied that that sentence remained appropriate.  After Mr Kingi entered his pleas the Judge directed that Mr Kingi was to be sentenced in the Christchurch District Court on 7 December 2009.  It seems that he took this step because an earlier sentencing date could be provided if the charges were transferred to Christchurch that would be the case if they remained in Nelson.

[14]       When Mr Kingi appeared for sentence in the District Court at Christchurch on 7 December 2009, he came before His Honour Judge Saunders.  Judge Saunders was aware of the sentence that Judge Zohrab had imposed upon Mr Harris Kingi in Nelson on 15 October 2009.  The Judge had also read a minute that Judge McKegg had issued at the conclusion of the hearing in Nelson on 25 September 2009.

[15]       Counsel for the Crown invited the Judge to consider whether the discount for Mr Kingi’s guilty pleas should be reduced by three months.  This would reflect the fact that, like his brother, Mr Kingi had pleaded guilty at a significantly later stage than Judge Zohrab had anticipated would be the case when he gave his sentence indication in June 2009.  Judge Saunders said, however, that he would “keep faith” with the sentence indication that Judge McKegg had given, and that he would impose a sentence of three years nine months imprisonment.

[16]       The Judge then departed from the script that all parties had been following up until that point.  He took the view that Mr Kingi should serve one-half of the sentence that he imposed, and he made an order accordingly..

Should a minimum term of imprisonment have been imposed?

[17]       Counsel for Mr Kingi accepted that the end sentence that the Judge imposed was appropriate. She contended, however, that the Judge should not have imposed a minimum term of imprisonment when that possibility had never been signalled at either of the two earlier hearings before Judge Saunders and Judge McKegg.

[18]       A minimum term of imprisonment could only have been imposed if Mr Kingi’s offending and/or his personal circumstances met the criteria set out in s 86(2) of the Sentencing Act 2002.  Section 86(2) provides:

86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

...

(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)protecting the community from the offender.

...

[19]       In the present case there were undoubtedly aspects of Mr Kingi’s offending that potentially brought s 86(2) into play.  Issues of accountability, denunciation and deterrence all arose by virtue of the nature of Mr Kingi’s offending.  It involved a home invasion at night and threats of violence.  Mr Kingi’s significant list of previous convictions for violent offending also needed to be recognised.  They suggest that he is a person from whom the community was entitled to be protected for a considerable period.

[20]       We consider that it is at least arguable, however, that the starting point that the Judge selected, coupled with the uplift that he applied to take into account Mr Kingi’s previous offending, adequately recognised the factors set out in s 86(2).  The appropriateness of the order requiring Mr Kingi to serve a minimum term of imprisonment is also called into question by several factors that arise out of the procedural history set out above.

[21]       First, it is significant that the Crown did not seek a minimum term of imprisonment in the submissions that it made before both Judge Zohrab and Judge Saunders.  The stance that the Crown took suggests that it considered that an end sentence of three years nine months imprisonment was appropriate, and that no minimum term was required.

[22]       Secondly, Judge Zohrab did not suggest in his sentencing indication that a minimum term of imprisonment was warranted.  He did not refer to the possibility that such an order might be made notwithstanding the very detailed examination that he undertook of Mr Kingi’s offending and personal circumstances. 

[23]       Thirdly, Mr Kingi pleaded guilty on the basis of remarks that Judge McKegg made on 25 September 2009.  By that stage, of course, the sentence indication that Judge Zohrab had given on 12 June 2009 had expired.  This meant that, if a sentence indication was to be given, it had to be a fresh indication by Judge McKegg.  In the minute that he issued after the hearing before him Judge McKegg said:

[1]         Prior to his arraignment today on a charge of aggravated robbery, Mr Kingi sought an indication from me as to whether the sentence indication given by Judge Zohrab on 12 June 2009 would still be open to him.  He sought that indication because in the sentence indication Judge Zohrab indicated that it would only be available for seven days.

[2]         In that indication Judge Zohrab indicated, for the lengthy reasons that he gave, that a prison sentence of three years and nine months would be appropriate.  That was discussed with counsel and the Crown and the Crown raised no objection to that sentence being renewed.  It seemed on a review of the file by me that that was an appropriate course of action and I indicated that if a plea of guilty was entered that that sentence would be imposed.

[3]         There is a complication in that the original indictment also contained a charge of burglary to which Mr Kingi pleaded guilty at his arraignment in August.  The proposal was that the sentence would apply on the aggravated robbery and that the burglary, which relates only to the entry of the offenders into the premises where the aggravated robbery occurred, would be dealt with by a conviction and discharge.  It was then suggested that, because of time constraints, the length of time he has been on remand in custody and an earlier available [date] of sentencing in Christchurch, that this matter be transferred to the Christchurch District Court for sentence.  I indicated that I was not in a position to bind the sentencing Judge in Christchurch, but that I would indicate to him the basis upon which Mr Kingi had entered his guilty plea before me and the course that I would have taken if I were to sentence him here.  That I have done in this memorandum. (Emphasis added)

[24]       We accept that Judge McKegg told Mr Kingi that he was not in the position to bind the Judge who ultimately sentenced him in Christchurch.  Nevertheless, the Judge expressly recorded at [2] that he had told Mr Kingi that, if he pleaded guilty, a sentence of three years nine months imprisonment would be imposed.  Judge McKegg made no reference to the possibility that a minimum term of imprisonment might also be ordered.  We consider that the assurance that Judge McKegg gave to Mr Kingi was, as Judge Saunders later recognised, a fresh sentence indication.

[25]       Fourthly, Judge Saunders appears to have been influenced in his decision to impose a minimum term of imprisonment by his concern that Mr Kingi should receive treatment for his addiction to drugs.  We draw this conclusion from the following passages in the Judge’s sentencing remarks:

[5]         However, I consider that s 86 of the Parole Act [sic] comes into play on this occasion, that there is a need at time of sentencing to signal what is termed deterrence and deterrence can be signalled by imposing a minimum non-parole period of up to two thirds of the sentence imposed.  The reality is that if the sentence of three years nine months is imposed without a minimum non-parole [period] you would almost be scheduled forthwith to go before a Board for consideration of release proposals.

[6]         As I have said, that is completely unrealistic in your case given your history of offending, the fact that you have been to Odyssey House and that did not, it seems, have sufficient impact to stop you offending again in a serious manner.  You may well solicit people like Moana House [and] Odyssey to regain entry into a programme in the future but I suspect that you will only mitigate your risk in the institution by a period of sustained good behavior and showing that you can abide by rules in the institution particularly around use or misuse of drugs.

[7]         I am pleased to hear that at the present time you are free of any IDU sanctions and that needs to continue if the Board is to take the view that you would be safe to release to Odyssey or Moana House.  I have drawn to your attention, through the course of counsel’s submissions, the fact that the Christchurch Prison has the drug treatment unit, a 37 week programme available to people like yourself who have substance abuse issues.  I encourage you to consider entering that programme as some indication that you are serious about tackling the causes of your offending.  That is entirely for you to determine and will be discussed with you in the coming weeks with the sentence planner.

[8]         All up the view is that there should be an overall sentence of three years nine months.  I consider a minimum non-parole period of 50 percent of that sentence is appropriate.  It means that you will still be considered in the middle of next year for parole and in that time you hopefully will have started to address the causes of your offending through an appropriate programme in the institution.

[26]       These aspects of the Judge’s remarks give rise to two particular concerns.  First, it can be argued that they intrude into an area that is properly the domain of the Parole Board.  Secondly, they can be construed as penalising Mr Kingi for the fact that he had been in custody for a considerable period before he was sentenced.  Counsel for the Crown helpfully summarised these concerns in the following passage of her written submissions:

11.However, the Judge’s reasoning produces surprising or difficult consequences when the link is made (at para [5] of His Honour’s remarks) to the effect on his parole eligibility of the lengthy period the appellant spent remanded in custody prior to sentencing.  It is difficult to escape the conclusion that if the appellant had been on bail while awaiting sentence (with the result that he would not be eligible to be considered for release on parole until over a year after sentencing) the Judge would not have been satisfied the standard non-parole period was insufficient and a longer MPI necessary.

12.It appears that the learned Judge’s desired objective was for the appellant to have the opportunity to address his drug dependency issues by undertaking an appropriate programme in prison, prior to reaching his parole eligibility date.  The difficulty that arises is the sense that, for the appellant, the postponement of his parole eligibility penalises him for not undertaking such a  programme earlier, when the reality is that intensive rehabilitative programmes are not generally available to offenders on remand.

13.In any event, in terms of achieving this objective, even if the appellant is eligible to be considered for parole at an early stage of his sentence because he has served a significant portion of it on remand, it remains for the Parole Board to determine if and when release is appropriate.

[27]       This aspect of the Judge’s sentencing remarks make it clear that he was of the view that Mr Kingi needed to undertake a treatment programme whilst in prison.  That is entirely understandable given the difficulties that Mr Kingi obviously has with substance abuse.  We do not consider, however, that s 86 is designed to be used in this context.  Although it permits a minimum term to be ordered where the protection of the community requires that that be done, that particular factor had already been adequately recognised by the uplift that the Judge applied.

[28]       Viewed in combination, these factors persuade us that it was inappropriate in the circumstances of the present case for the Judge to impose a minimum term of imprisonment. 

Is the sentence of three years nine months imprisonment appropriate?

[29]       As we have already indicated, Judge Zohrab reduced the discount for Mr Harris Kingi’s guilty pleas to reflect the fact that he had pleaded guilty at a later stage than the Judge anticipated when he gave his original sentence indication.  The issue that we need to consider is whether we should adopt a similar approach to the sentence imposed on Mr Dylan Kingi.  This issue arises because of the principle that, generally speaking, there should be parity between sentences imposed on co-offenders who are sentenced for similar offending.

[30]       Judge Saunders considered this issue, but ultimately elected to keep faith with the sentence indication that Judge McKegg had been given.  For that reason he imposed the sentence of three years nine months imprisonment and did not increase it in the way that Judge Zohrab had increased Mr Harris Kingi’s sentence.

[31]       The principle relating to parity is an important sentencing principle, and it is one that needs to be applied wherever possible.  Sometimes, however, it must give way to other principles of equal or greater importance.  In the present case, and notwithstanding his observation that he could not bind the sentencing Judge in Christchurch, we consider that Judge McKegg gave Mr Kingi a firm indication that, if he pleaded guilty upon arraignment on 25 September 2009, he would receive a sentence of three years nine months imprisonment.  Judge Saunders took the view that it was appropriate to honour that commitment, and we share that view.  For that reason we confirmed the original sentence of three years nine months imprisonment.

Postscript

[32]       During the hearing counsel for Mr Kingi advised us that the order requiring Mr Kingi to serve a minimum term of imprisonment may have had a significant side-effect.  This arises out of the possibility that Mr Kingi may not have been eligible to undertake treatment for his drug addiction until such time as the minimum term had expired.  If that is in fact the case, we express the hope that the prison and parole authorities are able to address this issue as quickly as possible.

Solicitors:

Crown Law Office, Wellington