Maiko v The Queen
[2020] NZHC 2958
•10 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000371 CRI-2020-404-000372
CRI-2020-404-000373 [2020] NZHC 2958
BETWEEN LUCAS MAIKO
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 November 2020 Appearances:
G H Vear & A Oh for Appellant B S Rorrison for Respondent
Judgment:
10 November 2020
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 10 November 2020 at 3:00 pm
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland
MAIKO v R [2020] NZHC 2958 [10 November 2020]
Introduction
[1] Lucas Maiko (the appellant) appeals the decision of Judge E P Paul delivered in the District Court at Auckland on 28 August 2020, sentencing him to two years and five months’ imprisonment on three charges of aggravated robbery.1 He was also convicted and discharged on charges of driving in a dangerous manner2 and failing to stop for police3 in respect of which he was convicted and discharged and disqualified from holding a driver’s licence for a period of six months.
Background
[2] In the space of 21 days between 21 July 2019 and 11 August 2019, the appellant then just 20 years4 of age, committed three separate aggravated robberies.
[3]The first was committed at a petrol station on 21 July 2019. At approximately
7.30 am that day, the appellant and an associate entered the Gull service station in Avondale. They approached the victim and purchased a chocolate bar so that the till was opened. Once the till was open the appellant held the victim against the wall while his associate took cash from the till. The appellant and his associate then fled and drove away in a vehicle.
[4] The second occurred at a bar in Auckland’s Royal Oak on 3 August 2019. The appellant was at the bar with an associate. The bar had a gambling area and the appellant and his associate spent some time loitering in that area and playing on the slot machines. The appellant then asked the Duty Manager of the bar to change some money, and when the Bar Manager agreed and opened the till, the appellant moved behind the counter and pushed him away from the till. The appellant’s associate then went to the till and began taking cash from it. While this was happening the appellant presented what appeared to be a switchblade knife to the Duty Manager and threatened
1 R v Maiko [2020] NZDC 17444.
2 Land Transport Act 1998, s 35(1)(b).
3 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(3), 52A(6), and 114(2).
4 Date of birth 24 July 1999.
to assault him if he interfered, causing the manager to fear for his safety. The appellant and his associate then ran from the bar taking $3200 in cash.
[5] The third aggravated robbery was committed on 11 August 2019 when the appellant robbed another petrol station. Just before 8.00am that day he arrived at a Mobil service station in Parnell. He approached a staff member and demanded that he open the till and clear it out. In the course of making this demand the appellant presented a switchblade style knife and gestured to the victim to hurry up. The victim emptied the till and handed the appellant approximately $175 in cash together with some cigarettes that the appellant had also demanded. The appellant then fled and drove away in a vehicle. Shortly afterwards he was located by Police driving on Manukau Road in a dangerous manner and failed to stop when required by the Police. After a Police pursuit he was apprehended and found to be in possession of the cigarettes and cash.
[6]He pleaded guilty to the three offences.
Approach to appeals against sentence
[7] I must allow the appeal only if satisfied there is both an error in the sentence, and that a different sentence should be imposed.5 In any other case, I must dismiss the appeal.6
[8] The approach previously taken by courts on sentencing appeals continues to apply,7 so the measure of error is that the sentence be “manifestly excessive” — this principle is well established in this Court’s approach to sentence appeals.8 I shall not intervene where the sentence is within a range properly justified by accepted sentencing principles. Whether the sentence imposed is ‘manifestly excessive’ is to be determined by reference to the sentence imposed rather than by reference to the process by which it is reached.9
5 Criminal Procedure Act 2011, s 250(2).
6 Section 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8 At [33] and [35].
9 Ripia v R [2011] NZCA 101 at [15].
Discussion
[9]It is well-understood, on sentencing, it becomes:10
… necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the [end-]sentence to be imposed should be higher or lower ….
[10] However the offender’s personal circumstances must be taken into account only “to the extent that they are applicable in the case”.11 That is to say, they must have some causative link to the offending or to punishment for the offender’s culpability for it,12 and therefore evidence of such must be adduced for the sentencing judge’s assessment.13
[11] Judge Paul adopted a seven year starting point,14 and I note this is not challenged on appeal. He applied discounts totalling 65 per cent. For the appellant’s early guilty plea, the Judge allowed a discount of 25 per cent. For mitigating factors personal to the offender he allowed a further 40 per cent discount. In reaching this composite discount the Judge determined that the appellant should receive: a 20 per cent discount in recognition of his youth; a 10 per cent discount to recognise the appellant’s previous good character; a 20 per cent discount to recognise the pre- offending trauma suffered by the appellant which was a contributing causative factor of his offending; and an unquantified discount to recognise the appellant’s drug addiction and his post offending efforts towards rehabilitation. The Judge’s precise calculations are somewhat difficult to follow, however he observed that there were “some overlapping features”,15 and adopted a total discount of 40 per cent for the appellant’s personal mitigating factors. I note the extent of discount given for mitigating factors is a highly discretionary exercise.16
10 R v Mako [2000] 2 NZLR 170 (CA) at 179.
11 Sentencing Act 2002, s 9(2).
12 R v Goodlet [2011] NZCA 357.
13 Nelson v R [2014] NZCA 121.
14 R v Maiko, above n 1, at [14].
15 At [16].
16 Kumar v R [2015] NZCA 460 at [81].
Submissions
For the appellant
[12] Ms Vear for the appellant advances two grounds of appeal: firstly Judge Paul erred by not granting a greater discount in recognition of the appellant’s personal circumstances; and by overlooking the appellant’s restrictive bail conditions. Ms Vear submits that the Judge erred in his finding that the overall discount for the appellant’s personal mitigating factors should be 40 percent to account for the overlapping between the mitigating factors he had identified. Ms Vear submits that the Judge made no allowance for the appellant’s remorse and no credit was given in respect of the time spent by the appellant subject to restrictive bail conditions. Moreover, she submits that insufficient credit was given for the appellant’s personal, family and cultural background as detailed in a s 27 report prepared and filed for sentencing but which was not referred to by the Judge.
[13] As regards the 20 per cent discount to recognise the appellant’s youth, Ms Vear submits that it was an appropriate level of discount. She submits that the appellant’s offending illustrates his lack of appreciation of the consequences of his offending which is characteristic of young offenders. Counsel submits that with the anniversary of the suicide of his girlfriend imminent, the appellant was motivated to offend in order to get money with which to make a financial contribution towards the cost of her memorial to be unveiled on the anniversary of her death. Following his girlfriend’s death the appellant was introduced to using methamphetamine which he says he used to alleviate the pain of her loss.
[14] Ms Vear submits that the Judge correctly gave the appellant a separate discount for youth and rehabilitation, and for his drug addiction and his efforts towards drug rehabilitation, because they are separate mitigating features. Ms Vear notes that prior to his partner’s death, the appellant and his partner had both enrolled for the Police pre-entry course and he had been progressing well. Following her death he dropped out of the course. Since his arrest he has completed a CADS17 course of counselling to address his drug addiction, and has engaged with the Tupu and Te Ira support groups
17 Community Alcohol and Drug Services
where he receives support and mentoring. He has also undertaken an Education Foundation Course at the Manukau Institute of Technology that leads into social services courses. Ms Vear accordingly submits that the appellant’s encouraging rehabilitation prospects are evident from those initiatives he has taken. Moreover, she submits that his rehabilitative efforts do not overlap with the fact of his youth and that the Judge was correct to treat them separately in terms of the discounts he gave.
[15] Ms Vear further submits the appellant’s youth is a factor, meaning a term of imprisonment would be likely to have a greater impact on him than an older offender. She submits that the 20 per cent discount the Judge gave on account of the appellant’s youth was appropriate and not generous.
[16] She submits however, that the Judge erred by failing to specifically take the appellant’s genuine remorse into account, noted by the authors of the Department of Corrections pre-sentence report and the s 27 cultural report.18 And furthermore by failing to give adequate weight to the appellant’s personal and cultural background as summarised and described in the s 27 report. Counsel submits that although the Judge did refer to and place weight on the traumatic effect that the appellant’s partner’s death has had on him, that was not the only feature of his personal and cultural background that warranted recognition by way of a sentencing discount. Ms Vear submits that notwithstanding that there is a degree of overlap, when the appropriate credit is given for each of the factors, the level of adjustment applied by the Judge to yield the overall 40 per cent discount was excessive. She submits that a total discount in the range between 45 and 55 per cent was available for those mitigating factors, leaving aside the further discount warranted by reason of the appellant’s lengthy period of a year spent subject to restrictive bail conditions including a 24 hour curfew. In relation to the bail curfew, counsel acknowledges that on one occasion during that year the appellant breached his curfew by going to purchase cigarettes but on all other occasions when police checked his compliance with the curfew he was at home, including those occasions when he did not answer the door to police as required. Ms Vear says that the appellant is a heavy sleeper and had left written instructions
18 Ms Angeline Nielsen, TapuLaw Consulting Limited
taped beside the door of the house for police to use the telephone to ring him and wake him when making curfew checks at night.
For the respondent
[17] Ms Rorrison for the Crown submits that the Judge gave the appellant a generous discount of 65 per cent for mitigating factors, and that it would have been open to the Judge to give less credit on account of the appellant’s personal factors. She submits that bearing that in mind, the apparent reduction on account of the overlapping nature of the mitigating factors is not as stark as the appellant claims it to be, and the sentence imposed is not manifestly excessive. Ms Rorrison further submits that the starting point adopted by the Judge was a “lenient” one and that being the case it undermines the appellant’s submission that the sentence imposed was manifestly excessive.
[18] As regards the actual discounts given by the Judge, Ms Rorrison submits in relation to the youth discount that it was generous. She says that although the appellant was young at the time of his offending, his offending was clearly premeditated, rather than impulsive. She further submits there is also a moderate degree of overlap between youth discount and the discount given to the appellant as regards his prospects of rehabilitation. In relation to the effect of a prison sentence on a young adolescent offender, Ms Rorrison submits that that factor assumes greater significance the younger the offender is. She submits that as the appellant was a few days away from his 20th birthday when he committed the first of the three aggravated robberies, this factor is of little significance in his case.
[19] Ms Rorrison says the respondent accepts the appellant has expressed genuine remorse and has sought to engage in restorative justice with the victims of his offending. Counsel submits however, that were the Judge to have more specifically taken the appellant’s remorse into account in determining the sentence, the overall discount for personal mitigating factors would not have been any different, and certainly not to the extent necessary to characterise the sentence as being manifestly excessive.
[20] As regards the 10 per cent discount given to the appellant for his previous good character, Ms Rorrison acknowledges that the appellant’s previous good character is relevant to his prospects of rehabilitation, but says that such a discount is usually reserved for older offenders who have otherwise led a blameless life. She submits that that here there is a risk that a discount for good character overlaps the other discounts.
[21] The Crown submits that contrary to the appellant’s submission, the Judge did take proper account of the appellant’s other personal and whanau related circumstances and background. Ms Rorrison says that had the Judge taken the appellant’s background circumstances more directly into account the outcome in terms of the sentence would not have been any different, and the 20 per cent discount he gave on account of the personal trauma suffered by the appellant prior to his offending was in all the circumstances generous for the totality of all the s 27 information placed before the Judge for the appellant’s sentencing.
[22] The Crown further submits as regards the discounts given to the appellant that the Judge was correct in concluding that aside from the discount for the appellant’s early guilty pleas, the overall discount for personal factors of 40 percent was appropriate. Ms Rorrison says that the present case is an example where an aggregation of discounts allowed for closely related or interrelated mitigating factors can give rise to “discount creep”. Ms Rorrison submits that in the appellant’s case there was a high degree of overlap as regards the justification for the individual mitigating features of; youth; prospects of rehabilitation; traumatic events causative of the offending and s 27 factors; drug addiction; and good character. Counsel submits that, mindful of that overlap, the Judge set the overall discount for personal factors at 40 per cent.
Discussion and decision
[23] Whilst I acknowledge the significant grief and trauma the appellant has experienced following his former partner’s tragic death, I find that the Judge afforded the appellant the maximum possible discount for those personal circumstances which contributed to the causes of his offending. While the Judge may not have explicitly referred to his generous discount in respect of the matters referred to in the s 27 report,
I nonetheless consider that he was correct to do so. The s 27 report does not suggest there to be causative link between the appellant’s background and the offending, and the driver for the spree of aggravated robberies appears to be the appellant’s desire to contribute financially to his deceased partner’s headstone. No further discount is appropriate, and in my view, “mercy has been extended in terms of the appreciation of the trauma this man has suffered”.19
[24] In relation to Ms Vear’s second advanced ground: credit on account of compliance with restrictive bail conditions is unusual,20 and would be inappropriate here. Furthermore, the appellant failed to fully comply with his bail conditions by not remaining at the bail address on one occasion and by failing to present himself at the door of the premises when Police conducted their checks. Breaches occurred six times between 25 September 2019 and 4 June 2020. It is compliance with restrictive bail conditions which may warrant a discount. The Judge was correct in not applying a further discount to recognise the appellant’s compliance with bail conditions.
[25] In relation to the issue of whether the Judge omitted to account for the appellant’s “genuine remorse”, I consider that to have given a separate discount for remorse in addition to the prompt guilty plea discount would have resulted in a “discount creep”.21 Whilst the Supreme Court has noted “that ‘exceptional remorse’ demonstrated in a practical and material way could attract its own credit”.22 This is not such an exceptional case, and in the circumstances here the discount for remorse is appropriately recognised within the 25 per cent guilty plea discount.
[26] However, I do find that Judge Paul erred in his calculation of Mr Maiko’s sentence, to an extent that resulted in it being “manifestly excessive”. For mitigating factors other than relating to the guilty pleas, the Judge would have allowed discounts totalling 50 per cent, which he then reduced to 40 per cent.23 The Judge did not however provide reasons for this reduction. Judges ought to provide reasons to explain
19 R v Maiko, above n 1, at [17].
20 R v Boyd (2004) 21 CRNZ 169 (CA) at [52].
21 Fisiʼiahi v Police [2016] NZHC 2683 at [19].
22 Hessell v R [2010] NZSC 135 at [63].
23 R v Maiko, above n 1, at [17]: “For all these mitigating factors I would extend a 40 per cent discount”.
their decisions.24 Ordinarily, for me to re-introduce a 10 per cent discount on appeal that had been excluded from the sentencing Judge’s calculation of the total discount to be allowed could be considered “tinkering.” However, where the exclusion of the discount would have the significant effect of making a difference between a custodial and non-custodial sentence, the Judge’s failure to give reasons for excluding a discount that he had determined to be warranted is an error which constitutes manifest injustice. I also note appellate guidance cautioning potentially heavy handed totality, in order to prevent: a “crushing sentence that sends to him the message he has no hope of being reintegrated into society”.25
[27] I consider that the correct approach and the appropriate sentence which would assist in the appellant’s rehabilitation and reintegration26 would have included the full 50 per cent originally assessed by the Judge and explained in [15] and [16] of his decision, coupled with the undisputed 25 per cent discount for early guilty pleas, which would bring Mr Maiko’s total discounts to 75 per cent, and yield an end sentence of one year and nine months at which level a consideration of the appropriateness of a sentence of home detention arises.
[28] Assessing whether a sentence of home detention is appropriate is a two-stage process:27 firstly, a determination that a short-term sentence (one of less than two years) is appropriate, I hold this to be so. Secondly, I assess whether the short-term sentence is one which should be commuted to one of home detention. In this context, I note that in its submissions to the District Court and on appeal, the Crown acknowledges that the Court may consider that a sentence of home detention is appropriate in all the circumstances of this case.
[29] Here the appellant’s residential address has been assessed as being suitable for an electronically monitored sentence. I also note that the appellant’s father is
24 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA), at [76], [80] and [82], the Court of Appeal saw the importance of giving reasons for decisions: first it assists in ensuring openness in the administration of justice; secondly it allows an appellate Court to assess more easily the lawfulness and appropriateness of the decision; and thirdly it provides a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.
25 Taylor v R [2018] NZCA 444 at [15].
26 Sentencing Act 2002, s 7(1)(h).
27 R v Vhavha [2009] NZCA 588.
pro--social, and the appellant himself has been assessed as being suitable for a sentence of home detention. Mr Maiko is fortunate to have received such wrap-around support from his whānau. I also note that as the Court of Appeal has held: sentences of home detention are a genuine alternative to imprisonment, as “It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.”28
[30] Home detention will also provide the appellant the opportunity for rehabilitation and reintegration in a way a fully custodial sentence cannot, and provide an opportunity for the appellant to overcome the traumatic and destabilising consequences of his partner’s tragic death and build on his efforts at rehabilitation and move towards a constructive and pro-social life. Prior to the death of the appellant’s partner he was on a pathway towards a life of community service. The traumatic consequences of her death, including his recourse to drugs, set him on a self- destructive pathway on which he had little regard for himself or others. The constructive progress he has made since his arrest has shown that with application and commitment he can once again set his sights on a positive future. The sentence of home detention will provide the opportunity to do so while also meeting the objectives of sentencing.
Result
[31] The appeal is allowed. I make an order quashing the sentence of two years, five months’ imprisonment imposed by the District Court Judge, and substitute it with a sentence of ten months’ home detention.29
28 R v Iosefa [2008] NZCA 453 at [42].
29 R v Bisschop [2008] NZCA 229.
[32] The home detention sentence is subject to the home detention conditions set out in the recommendation attached to the Department of Corrections Provision of Advice to Courts report dated 21 August 2020 together with the post detention conditions.30
Paul Davison J
30 Department of Corrections Provision of Advice to Courts report dated 21 August 2020 at page 5.
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