Kisiogo v R
[2021] NZHC 1648
•5 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000121
[2021] NZHC 1648
BETWEEN MARE KISIOGO
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 July 2021 Appearances:
R Slade for Appellant
M Davie for Respondent
Judgment:
5 July 2021
ORAL JUDGMENT OF VENNING J
Appeal against sentence
Solicitors: Crown Law, Wellington
Public Defence Service, Auckland
KISIOGO v R [2021] NZHC 1648 [5 July 2021]
[1] Mare Kisiogo pleaded guilty to one charge of aggravated robbery and one charge of unlawfully taking a vehicle. Following a sentence indication,1 which he accepted, Judge Bouchier sentenced him to three years, seven months’ imprisonment.2 He now appeals on the ground the sentence was manifestly excessive as the Judge erred by failing to give him sufficient credit for his personal mitigating factors.3
The offending
[2] On 2 May 2020 a Subaru car was stolen from an address in Epsom. Less than a fortnight later on the afternoon of 14 May 2020 that car was used by the appellant and his four co-defendants to commit an aggravated robbery. They drove to the Tulja Centre at Stoddard Road, Mount Roskill. The appellant and three of his co-defendants got out of the vehicle wearing hooded jerseys, and bandanas that covered their faces. They were also wearing gloves. They brandished hammers and one of them carried a large rock. The remaining co-defendant remained inside the car as the getaway driver. The appellant and the others forced their way into the premises at Sona Sansaar, a jewellery store specialising in handcrafted gold and diamond jewellery inside the Tulja Centre, by completely smashing the glass door. At the time Vishal Lodhia and three female staff members were present in the store. There were also three adult customers and a baby in the store. The robbers yelled threats at the staff and customers while others of them smashed several glass cabinet displays with the hammers. They gathered up large amounts of gold jewellery from the display cabinets valued at over
$1 million. They then left the store in the waiting Subaru car. The appellant and his co-defendants had a further getaway car, a BMW, waiting for them some distance away. About 40 minutes later they were tracked by a Police helicopter to an address in Papatoetoe and were subsequently arrested. The Police were able to recover jewellery and items to a retail value of about $840,000.
[3] The appellant and his co-defendants were given sentence indications on 20 November 2020. The appellant subsequently accepted his indication. He pleaded guilty and was sentenced on 15 February 2021.
1 R v Kisiogo DC Auckland CRI-2020-004-4486; CRI-2019-044-3038; CRI-2020-004-000393, 20
November 2020.
2 R v Kisiogo [2021] NZDC 2547.
3 This appeal is to this Court as s 247(1)(c), Criminal Procedure Act 2011 applies.
District Court sentence
[4] In sentencing the appellant Judge Bouchier took as a starting point five years, 10 months (reflecting a start point of five years, six months for the offending and an uplift for four months as the offending was committed whilst the appellant was on post home detention conditions). The Judge then applied a 35 per cent discount, 25 per cent for the guilty plea and 10 per cent for his personal factors. She then further reduced the sentence by two months to take account of the appellant’s attendance at a restorative justice conference. That led to the end sentence of three years, seven months’ imprisonment.
Appellant’s points
[5] In support of the appeal against sentence Mr Slade submits the sentencing Judge erred by failing to allow sufficient credit for the appellant’s personal mitigating circumstances.
[6] In particular, he submitted that the Judge erred by refusing the application for adjournment to enable the preparation of a s 27 report, which then meant the Judge failed to allow sufficient credit for the following personal mitigating factors:
(a)his family and cultural background;
(b)his remorse, youth and prospects for rehabilitation; and
(c)the time spent on restrictive bail conditions.
[7] As noted Mr Slade submitted the Judge should have adjourned the sentencing to enable the preparation of a s 27 report. A report has been prepared for the purposes of this appeal which Mr Slade submits demonstrates a strong causal nexus between the many factors in relation to the appellant’s personal family and cultural background and the offending.
[8]The factors particular to the appellant referred to in detail in the s 27 report are:
(a)he lost his father when he was nine;
(b)his mother fell ill and into depression after the death of his father and was barely present in his life;
(c)he was left to fend for himself in the absence of parental guidance and took to the streets. He has been smoking cannabis and drinking alcohol from the age of 13 and involved in the Youth Court since 15;
(d)he did not have the spiritual connections that are often common in his community;
(e)his family operated as a nuclear family unit and he was not provided the opportunity to engage in cultural values and norms; and
(f)the appellant has reported mental unwellness.
[9] Mr Slade accepted that the Judge would have been aware of the loss of his father, the loss of connection to his family and his exposure to anti-social networks at a young age but noted that the Judge did not have the other aspects of the s 27 report dealing with his lack of faith, lack of cultural values and norms and his self-reported depression, and the further detail provided in the report.
[10] Mr Slade also emphasised that Mr Kisiogo was 20 years old when he committed the aggravated robbery which clearly warranted a discount for youth. He submitted the 10 per cent allowed by the sentencing Judge for all personal mitigating factors including youth and remorse was insufficient.
[11] Mr Slade also noted no allowance had been provided for the time the appellant had spent on restrictive bail conditions in his written submissions. The appellant had spent about seven months on bail on a 24 hour curfew.
[12] For the above reasons he submitted a discount approaching 35 per cent for youth, remorse, prospects of rehabilitation and other personal circumstances was appropriate which, when taken with the 25 per cent for the guilty plea, would have led to a reduction of 60 per cent from the starting point and an end sentence of two years,
four months, although during the course of oral submissions counsel suggested perhaps 50 per cent overall was appropriate.
The approach to the appeal
[13] This Court must allow the appeal if satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. Otherwise the Court must dismiss the appeal.4 In Tutukangahau v R the Court of Appeal confirmed that while s 250(2) of the Criminal Procedure Act 2011 makes no express reference to the concept of manifestly excessive sentence, the concept is longstanding, is consistent with statutory language and should continue to be applied.5 The focus on a sentence appeal must remain on whether the sentence imposed is within range rather than the process by which the sentence was reached.
Preliminary matter – s 27 report
[14] As noted the Judge declined to adjourn the sentencing date to enable the appellant to provide a s 27 report to the Court. If a Judge declines a request that the Court hear from any person under s 27(1) the Court must give reasons for doing so.6 In this case the Judge was of the view it was unnecessary to adjourn the hearing for a s 27 report because she had a pre-sentence report (and other cultural reports in respect of the other young men who were involved with the appellant) and the Judge considered the sense of absence of a parental figure and dislocation could be deduced from the information that she already had in front of her and the issues of drug taking again were common, not only in young but old as well.
[15] The Judge also had a letter from the appellant and one from his aunt detailing his personal circumstances.
[16] Under s 8(i) of the Sentencing Act 2002 the Court must take into account the defendant’s personal family whanau community and cultural background in imposing a sentence. To assist the Court to achieve that s 27 provides a defendant may request
4 Criminal Procedure Act 2011, s 250.
5 Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 Sentencing Act 2002, s 27(3)
the Court to hear from a person who may speak to the Court in relation to those issues. The language of the section read in context suggests it is expected the Court will be most assisted by hearing from a person who is from the defendant’s whanau or who at least knows the defendant and his whanau. Despite that, the use of s 27 has evolved so the Court now regularly receives written reports from people who have no previous connection with the defendant. The usefulness of such reports varies markedly. The most value is in reports such as the present which provide further relevant personal information regarding the defendant.
[17] Given the information available to her, the Judge in this case was justified in not further adjourning the sentencing hearing for the purposes of obtaining a s 27 report. In addition to the letters referred to there was a comprehensive pre-sentence report and a restorative justice session report. Also relevant is that the sentence indication had been given in November 2020 and the sentence date was scheduled for 15 February 2021. Finality in the criminal process is important to all parties, not only the defendant but also victims.
Personal considerations
[18] I turn to the personal issues relied on to support the appeal. As noted the appellant was 20 at the time of the offending. He was entitled to an allowance for youth. However, that allowance must be tempered somewhat by the nature of the offending in this case. This aggravated robbery involved the previous stealing of a car, the robbery was planned and the robbers were disguised. It was serious offending. It was not an impulsive act of stupidity by a young person. Further, unfortunately the appellant has previous convictions for serious offending. At the time of the offending he was subject to post release conditions and was also on bail for other serious charges. He has a number of previous convictions.
[19] In Carr v R the Court of Appeal declined to give a discount for all personal factors greater than 15 per cent because of the extent of the offending in that case.7
7 Carr v R [2020] NZCA 357.
[20] Counsel also refers to the appellant’s remorse. The information before the Court falls short of establishing genuine remorse. Genuine remorse as discussed by the Supreme Court in Hessell v R requires rather more understanding of the impact on victims and the consequences of his actions than the appellant has displayed.8 The references in the pre-sentence report to his explanation that he was just kind of following others and was intoxicated at the time suggest an attempt to minimise responsibility. The very general apologies expressed at the restorative justice session do not particularly advance his cause on this point. The comment of the victim during the course of that report that the victim believes the appellant’s future actions will be more of a determination of genuine remorse than any words he can say are to the point.
[21] I note that the Judge gave a further discount of two months for the appellant’s attendance at the conference in any event.
[22] The Judge was aware of the particularly relevant personal circumstances of the appellant. The additional material in the s 27 report is of limited value on this appeal. His self-reporting of his feelings falls well short of supporting any recognised diagnosis of depression. Further, the comments that the appellant has a lack of spiritual connection and the discussion about the associated disadvantage of the nuclear family do not support a conclusion that such issues provide a nexus with the offending in this particular case. There is no causative contribution to the offending of the type envisaged by the Court of Appeal in Zhang v R.9 There is no per se rule that offenders who come from difficult backgrounds (which regrettably is common to almost all who appear before the Court) are entitled to a discount.10
[23] There can be no or little additional discount given for the prospects of rehabilitation given the appellant’s history, his response to previous sentences and the fact the offending occurred whilst subject to post release conditions and on bail. While Mr Slade referred to the courses the appellant has attended it is in the Court’s view premature to suggest that the appellant is prepared to take steps to turn his life around
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
9 Zhang v R [2019] NZCA 507.
10 Arona v R [2018] NZCA 427 at [59].
or that there is a realistic prospect of that at this stage. It will be, as the victim observed, for the appellant to prove that in the future by his actions.
[24] On the issue of the allowance for time spent on restrictive bail, another Judge may have allowed a further two months for that but it was not required. He was not subject to the constraints of electronically monitored bail.11
[25] Standing back and looking at the matter overall I accept that another sentencing Judge may have given the appellant a more substantial discount for his personal circumstances so that the total allowance for those might have been 15 to 20 per cent, rather than the 10 per cent and the additional two months given by the Judge in this case. But equally, another Judge may have fixed a higher starting point and not given the full discount of 25 per cent for the guilty plea.
[26] Having regard to the offending and the comments of the Court of Appeal in Inamata v R the Judge could have taken a starting point of six years which in turn could have been uplifted by three months for the offending whilst on bail and subject to release conditions.12 The allowance of a full 25 per cent discount for the guilty plea was generous in this case given the timing of the plea and the strength of the Crown case.
[27] The matter can be tested this way. Taking a starting point of six years, three months which would have been available, and a discount of 20 per cent for the guilty plea then, with a discount of 20 per cent for personal factors that would lead to a sentence of three years, nine months. Even allowing a further two months for the time on restrictive bail the result would be the same as in the present case of three years, seven months. The further two months the Judge allowed for attending the restorative justice conference would be included in the 20 per cent for personal factors.
[28] There is a further, perhaps minor consideration but which is still relevant and that is that the Judge also wrote off fines of $7,000. That will enable the appellant to leave prison and start afresh.
11 Sentencing Act 2002, s 9(2)(h).
12 Inamata v R [2017] NZCA 556.
[29] For the above reasons the appellant fails to satisfy the Court that in imposing an end sentence of three years, seven months on this appellant for this offending, the District Court Judge was in error.
[30]The appeal must be dismissed.
Venning J
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