Nahora v The Queen

[2021] NZHC 189

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-1

[2021] NZHC 189

RENEE MARIA NAHORA

v

THE QUEEN

Hearing:	16 February 2021
Appearances:	W R Hawkins for the Appellant L Marshall for the Respondent
Judgment:	17 February 2021

JUDGMENT OF COOKE J

[1]        Ms Nahora appeals against an end sentence of three years and five months’ imprisonment following the entry of guilty pleas to the following charges:1

(a)Aggravated burglary;2

(b)Shoplifting under $500;3

(c)Failure to answer District Court bail;4

1      R v Nahora [2020] NZDC 25566.

2      Crimes Act 1961, s 232(1)(a).

3      At ss 219 and 223(d).

4      Bail Act 2000, s 38.

NAHORA v R [2021] NZHC 189 [17 February 2021]

(d)Possession of methamphetamine utensils;5

(e)Common assault.6

[2]        The grounds of appeal are that the District Court Judge erred by adopting a starting point that was excessive and failing to give the proper discount for mitigating features and that the end sentence was manifestly excessive. The appellant submits that the appropriate end sentence would have been in the range of two years and two years three months’ imprisonment.

[3]        The appeal is governed by s 247(b) of the Criminal Procedure Act 2011,7 and to be determined in accordance with s 250 of that Act. Ms Nahora’s half-sister and co-offender, Ms Sulusi has successfully appealed her sentence in this Court in Sulusi v New Zealand Police.8 The key issue on appeal is whether Ms Nahora’s sentence should be reduced in much the same way as her sister’s has. The appeal is not opposed by the respondent such that the main issue is what the appropriate sentence should be.

Relevant offending

[4]        The aggravated burglary charge is the lead charge, and relates to the victim’s car, wallet and hand bag. The other charges were dealt with by minor concurrent sentences and discharges.

[5]        Ms Nahora had earlier given the victim of the offending $7,000 in cash to hold for safekeeping. The victim subsequently told Ms Nahora that the cash had been stolen. Ms Nahora thought this claim was false. She repeatedly requested the victim to return the cash.

[6]        On 1 March 2019 Ms Nahora demanded over the phone that the victim return the money, or her vehicle would be taken as “collateral”. The victim again said the money had been stolen.

5      Misuse of Drugs Act 1975, ss 13(1)(a) and (3).

6      Crimes Act 1961, s 196.

7      Criminal Procedure Act 2011, s 247(b).

8      Sulusi v New Zealand Police [2020] NZHC 3314.

[7]        On 2 March 2019, Ms Nahora and Ms Sulusi, as well as two associates, arrived at the victim’s address at about 11:30 am. One of the associates, a male, was wearing a Mongrel Mob patch. The victim and a friend were asleep in the lounge at the time. Ms Nahora was able to gain access into the house through an open window and by then unlocking the front door. She then retrieved a firearm from the vehicle they had travelled in, and all four entered the house. At this stage the firearm was wrapped in a small red blanket.

[8]        By this point the victim and her friend had woken up by the sounds. Ms Nahora sat down on the lounge floor, unwrapped the firearm in front of the victim and her friend, and informed the victim that they had come to take her Ford Falcon and another vehicle parked in the driveway until she got her money back. The gun was pointed at the victim and waved around. At one point Ms Nahora slammed the gun down on the bench.

[9]        One of the associates grabbed  the  victim’s  handbag  to  search  for  keys. Ms Nahora took it from her and Ms Sulusi told her to tip out its contents. Meanwhile, the victim called the Police. Ms Nahora told her she did not care if she called the Police, though Ms Sulusi told her to hurry when she saw the victim was on the phone.

[10]      Ms Sulusi then picked up the car keys, house keys and wallet that had been tipped out of the handbag and the group left the house both in the vehicle they arrived in and the victim’s vehicle.

[11]      Ms Nahora and Ms Sulusi admitted they were going to the address to obtain the vehicle as collateral. Ms Nahora said the gun was loaded but had a safety pin and was taped so that it would not go off, it was used only to scare the victim. Ms Sulusi also said the gun was only intended for intimidation.

District Court decision

[12]      Judge AJ Adeane provided a sentencing indication guided by R v Mako.9 He noted that the case fell into a grey area, given the offenders and the victim were not

9      R v Mako [2000] 2 NZLR 170 (CA).

strangers, the victim had been forewarned, and that there was apparently a civil issue around the $7000 entrusted to the victim by Ms Nahora. In that regard, he indicated a starting point of six years for Ms Nahora whom he identified as the principal player, and five years for Ms Sulusi who played a lesser and supporting role.

[13]      The end sentence for Ms Nahora was ultimately imposed on 8 December 2020 by Judge BM Mackintosh. The starting point adopted was of five years and ten months’ imprisonment for aggravated burglary uplifted by two months for the other offending. The following deductions were then allowed:

(a)a 20 per cent discount was applied for the guilty plea;

(b)a 15 per cent discount was applied for overall remorse and the cultural report;

(c)a six-month reduction was made for time spent on EM bail (12 months).

[14]This brought the end sentence to three years and five months’ imprisonment.

The decision in Sulusi v New Zealand Police

[15]      In Sulusi the appellant did not dispute the five-year starting point adopted by the District Court Judge. She appealed instead on the basis that the Judge should have given greater discounts to bring her sentence down to home detention range. This was suggested for her in the pre-sentence report. This would have enabled her to participate in Te Waireka, which is a therapeutic community programme for Maori women offenders.

[16]      Ellis J allowed the appeal. She found that the starting point adopted by the District Court Judge was too high. After reviewing a number of comparable cases she concluded the range for similar cases emerged between two and four and a half years imprisonment. In light of those cases the starting point was lowered to four years.10

10     Sulusi v New Zealand Police, above n 88, at [29].

[17]      She also found that the 20 per cent discount applied by the Judge did not adequately recognise the appellant’s personal mitigating factors (namely, rehabilitative prospects, childhood trauma, importance of maintaining as much contact as possible with her four young children).11 A 30 per cent discount was applied for the personal mitigating factors. This brought the end sentence to two years. A further discount was given to take into account the time the appellant had already served.12

[18]The end sentence was of eight months’ home detention.

Did the District Court Judge err by adopting a starting point that was excessive?

[19]      Here the Judge adopted the higher starting point of six years imprisonment. The appellant submits that the starting point should not have exceeded four and a half years imprisonment. The basis for this submission is Ellis J’s reasoning when allowing the appeal for Ms Sulusi. It is acknowledged that Ms Nahora wielded the firearm and is to some extent more culpable such that a higher starting point was appropriate. But Mr Hawkins argues the difference between six years and four years is too great, including because of the principle of parity.

[20]      Section 8(e) of the Sentencing Act 2002 provides that the Court must take into account the “general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”.13 In R v K the Court of Appeal said: 14

Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[21]      In R v Lawson the Court of Appeal said the test for a court to intervene is “whether a reasonably minded independent observer aware of all the circumstances of

11 At [11].

12 At [30].

13     Sentencing Act 2002, s 8(e).

14     R v K (2003) 20 CRNZ 62 (CA) at [20].

the offence and of the offenders would conclude that something had gone wrong with the administration of justice”.15 In R v Rameka it was also stated that:16

The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 Cr App R 191). In each case the whole of the surrounding circumstances and the situation of the offender have to be taken into account and, as this Court has said previously, these factors vary infinitely.

[22]      The Court of Appeal in that case emphasised that the Court would have regard to disparity in special cases, but would only intervene when the disparity appears unjustifiable and is gross.17

[23]      In Stone v R this Court stated that when considering parity between two co- offenders, the parity of starting points is more important to be considered rather than end sentences.18

[24]      Each case ultimately turns on its own facts. Here Ms Sulusi’s offending was treated as less culpable as she did not wield the firearm. It is also clear that Ms Nahora was the primary instigator of what was premeditated offending. However, Ms Sulusi was also an active participant throughout. She instructed Ms Nahora to empty the contents of the victim’s bag. It can be seen as a joint enterprise by the two sisters. The respective roles are different, but nevertheless very similar. In the sentencing indication Judge Adeane referred to Ms Sulusi as only having a “marginally lesser role”. So a two year difference in starting point appears disproportionate.

[25]     As indicated, however, what is most important is whether the sentence is manifestly excessive in its own terms. The most significant aggravating factor in the present case is the use of a firearm. The tariff case on aggravated robbery is R v Mako.

Here the Court of Appeal stated:19

[39]     The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the

15     R v Lawson [1962] 2 NZLR 219 at 223.

16     R v Rameka [1973] 2 NZLR 592 (CA) at 593.

17     At 594.

18     Stone v R [2016] NZHC 1289 at [23].

19     R v Mako, above n 9 at [39].

more potentially lethal the weapon the more serious the offence although there will be greater danger of harm to a greater number of people where a loaded firearm is presented…The actual potential danger should be evaluated, not merely assumed from the nature of the target premises. Generally the use of unloaded firearms (though no comfort to the victims) gives rise to less danger…It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.

[26]      Despite Ms Nahora’s comments that the firearm was taped and not intended to be used it was nevertheless loaded. On the other hand the victim did not appear to take the threat seriously. She proceeded to telephone the police. So she appeared to understand that the firearm was likely being displayed for intimidation reasons.

[27]      In terms of comparable cases these were considered in detail by Ellis J.20 The most comparable is R v Gibbons.21 Here the defendant here had a sawn-off rifle which he pointed at the victim’s face. He also detained the victim and their flatmate while his associate searched the address. The defendant explained he had gone to the address to get some information about where a person had gone with his money. In that case a starting point of four and a half years imprisonment was regarded as appropriate. That is significantly lower than the six years adopted here. More generally I agree with Ellis J that the comparable authorities suggest that the starting point of six years is too high. In those circumstances it seems to me that the starting point, and accordingly the end sentence, was manifestly excessive.

[28]      In assessing the appropriate starting point for the imposition of the new sentence on appeal I adopt five years. It remains materially higher than for Ms Sulusi given that Ms Nahora can be seen to be the principal organiser of the offending given it related to the recovery of her money, and given she held the firearm.

20     Sulusi v New Zealand Police, above n 8 at [13]–[22].

21     R v Gibbons HC AK CRI-2009-090-009224.

Did the District Court Judge err by failing to give the proper discount for mitigating features?

[29]      The appellant also contends that the District Court Judge did not apply the proper discounts. The submissions referred to the cultural factors that led Ellis J to conclude a 30 per cent deduction was more appropriate for Ms Sulusi.

[30]      Ms Nahora’s cultural report reveals the difficulties she has had in life due to a history of sexual abuse, drug use and an abusive relationship. She reports that she has had to ‘give up’ her children as a result of the abusive relationship she has been in with her partner, who is a Mongrel Mob member. The $7,000 Ms Nahora had given to her friend for safe-keeping was part of a sum that she wanted to use to get herself back on her feet and getting her children back. Her actions came from her sense of betrayal at what she saw as her friend’s disregard for the hardships she knew Ms Nahora was facing.

[31]      Ms Nahora and Ms Sulusi share many of the same personal features. They both experienced abuse as children, came from dysfunctional families, expressed the importance of their children to them, and showed a willingness to engage in rehabilitative prospects. They have both expressed remorse, although Ms Nahora is not remorseful towards the victim, rather she is remorseful of her actions.

[32]      The discount applied here was 15 per cent. I see no error in that approach in itself, and I recognise that the higher discount of 30 per cent adopted for Ms Sulusi on appeal may well have been highly influenced the desirability of the end sentence being one of home detention. Home detention is not suggested here. I accept Ms Marshall’s submission that 30 per cent is outside the range of discount usually provided for personal/cultural reasons. But given that I have reached the conclusion that the District Court erred in the imposition of the starting point and that the sentence was manifestly excessive it seems to me that when determining what the new sentence should be the principle of parity is an important consideration. The differences in roles have already been taken into account in the higher starting point that I have adopted. The circumstances justifying a discount are very similar. For that reason it seems to me that Ms Nahora should also receive the same 30 per cent discount as her sister to reflect personal and cultural factors. When added to her 20 per cent discount for the

guilty plea the period of imprisonment comes down to two years six months. I also agree with the District Court Judge that she should have a further discount of six months for the 12 months spent on EM bail. That takes the final sentence down to two years’ imprisonment. I also agree with the Judge’s approach in relation to the other charges.

[33]      The appeal is allowed and a sentence of two years is substituted for that of three years five months on the aggravated burglary charge. The sentences on the other charges are confirmed. In terms of special release conditions I agree with those suggested in the pre-sentence report, although I do not agree with a condition relating to the consumption of alcohol. I see that as an unrealistic expectation post-release. The standard conditions and following release conditions shall apply for a period of 12 months following release:

(a)To attend alcohol and other drug assessments and attend and complete any treatment/counselling as recommended by the assessment, to the satisfaction of the Probation Officer and treatment provider.

(b)To abstain from the consumption and/or possession non-prescription drugs, unless prescribed by a medical practitioner.

(c)To undertake any further counselling/programmes as directed by the Probation Officer to the satisfaction of the Probation Officer and treatment provider.

(d)Not to communicate or associate with the victims of the offending without prior written consent of the Probation Officer.

Cooke J

Solicitors:

Bramwell Bate, Hastings for the Appellant

Crown Solicitor’s Office, Napier for the Respondent