Paerau v Police

[2020] NZHC 547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-528

[2020] NZHC 547

BETWEEN

RAMA PAERAU

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing:	18 February 2020 and 17 March 2020
Counsel:	T Beach for Appellant (via telephone) J Kang for Respondent
Judgment:	24 March 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 24 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

RAMA PAERAU v NEW ZEALAND POLICE [2020] NZHC 547 [24 March 2020]

[1]    Mr Paerau pleaded guilty on one charge of burglary.  He was sentenced  to  22 months’ imprisonment. He now appeals against that sentence on the basis that the Judge failed to consider home detention.

[2]    Mr Paerau has filed an affidavit setting out his background by reference to the matters set out in s 27 of the Sentencing Act. It was agreed that this should be admitted as both relevant and cogent evidence.

Background facts

[3]    On Friday, 9 August 2019, at approximately 11.50 am, Mr Paerau was at the victim’s address. Mr Paerau, together with two associates, gained entry into the dwelling at that address by forcing open the locked back door with a prying tool. Once inside, Mr Paerau ransacked several rooms in the house, including a bedroom and the kitchen, stealing multiple items, including a wallet, bankcard, cheque book, cellphone and other electronics.

[4]    Mr Paerau and his associates were interrupted by the victim whilst in the house. The offenders in reaction ran out the front door, passing the victim. The victim recognised Mr Paerau as a previous employee. The victim managed to grab hold of one of Mr Paerau’s associates who reacted by punching the victim in the head several times. During the scuffle, most of the stolen items were dropped in the driveway of the address. However, the victim’s iPhone and Excess Max were not recovered, both valued at $2,400.

[5]    The victim suffered swelling in affected areas, but this was not inflicted by Mr Paerau.

Sentencing indication

[6]    Mr Paerau sought a sentencing indication. In that indication, the Judge referred to Mr Paerau’s many previous convictions, including 13 burglary-related convictions. The Judge also noted Mr Paerau’s long history of otherwise failing to comply with sentences and prohibitions. Further, the Judge noted another recent burglary committed by Mr Paerau in September last year (for which he was sentenced to

imprisonment in February this year), only one month after the burglary now in question. The Judge noted:

[5]        The issue has reduced itself to a basic one, what would be the duration of the sentence? I did not receive written submissions and I did not have any greater opportunity to consider this recital prior to commencement. The Court of Appeal in the case of Arahanga have stated that burglary convictions of private dwellings invariably draw sentences of between 18 months and two and a half years. I consider this to be serious. While it was not at the hand of this defendant, the victim was punched and confrontation is always a fear for consideration.

[6]        I would see a start point accommodating the horrendous list of previous convictions for two and a half years. I would allow an eight month concession which would serve to reduce the sentence to one of one year and 10 months. That is the indication I give you Mr Paerau.

(Footnotes excluded.)

Sentence

[7]       At sentencing, Mr Paerau sought home detention. The Judge noted that “there was no indication or suggestion of home detention anywhere during the sentencing indication process.” He noted that Mr Paerau pleaded guilty on the basis of the sentencing indication. He said he did not “believe that prisons are a place where people are reformed”. The Judge was told that Mr Paerau “had engaged with rehab” processes and that his mother, aged 85, was ill. He said that “should have been a matter that went through your mind before this event occurred”. The Judge then said:1

[7]        I am not prepared to find that there is any room for adjustment, and nor am I prepared to re-open the issues that I consider are already done and dusted. The short point is, you were given an indication. You pleaded on that indication, and you will be so sentenced. The prison sentence is one year and 10 months.

Error

[8]        It is evident to me that the Judge did not consider the availability of a home detention sentence. In short, he was not prepared, in his words, to “reopen the issues”. In so doing, the Judge erred. The Judge had to consider whether home detention was the most appropriate sentence in light of the personal mitigating factors put to him. I note there is nothing in the sentencing indication to show that the Judge considered

1      New Zealand Police v Rama Kantu Paerau [2019] NZDC 22612 at [7].

personal mitigating factors when fixing sentence. It therefore remained incumbent on the Judge to consider those factors prior to imposing a final sentence.

Home detention

[9]       The period of imprisonment is not challenged as manifestly excessive. The sole issue is whether the sentence should be commuted to home detention.

[10]     As stated, it is settled law that there is nothing in the Sentencing Act to suggest a presumption for or against computation to home detention, either generally or in respect of particular types of offending.2

[11]     Woodhouse J helpfully provided a summary of the relevant principles in Brittin v Police, namely:3

The following principles, contained in the Sentencing Act and leading cases, are relevant:

(a)Imprisonment is a measure of last resort.

(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.

(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.

(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.

(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.

2      R v Vhavha [2009] NZCA 588 at [31], see also Manikpersadh v R [2011] NZCA 452 at [14].

3      Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].

(g)One of the purposes of sentencing is to assist in the offender's rehabilitation.

(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

(Footnotes excluded.)

[12]     The Crown has set out a number of aggravating factors of the offending and the offender which bear on the exercise of granting home detention. The offending was premeditated – Mr Paerau and his associates organised and armed themselves with a prying tool which they used to forcefully open a locked back door of the address. The offending caused a substantial amount of harm, both in terms of physical property damage and loss, as well as injury to a victim (though not caused by Mr Paerau directly).

[13]     The offending has had a profound impact on the victim, as noted by the Crown. That victim stated:

I felt very sad and angry, I experienced 5 burglary in the past 6 years in Henderson, Massey and New Lynn area, and this situation seems getting worse and worse, I don’t know what happening, but I think that the government needs to pay more attention to this situation and increase police forces. I remembered when I came NZ 19 years ago, my family went out for travelling for one week without door locked and back home, nothing happened. That time, I felt very safe.

[14]     All of those factors support a sentence of imprisonment insofar as they give vent to the principles of denunciation, deterrence and protection of the public.

[15]     There are also aggravating features personal to Mr Paerau which must be considered. He has 101 previous convictions in total and 100 of those convictions were for offending on bail. He has 13 relevant convictions for burglary and 13 convictions for breaching bail or sentences. Mr Paerau’s lengthy criminal history as a recidivist burglar and offender, while subject to sentence or Court order, is a strong factor against the granting of home detention. As Mr Kang noted, this Court in Gavin

v R4 and Papa v R5 declined home detention given the prior conviction history of the offenders in those cases. Consistency in sentencing of recidivist offenders is an important principle to weigh in the present context.

[16]     Balanced against this, I have an affidavit from Mr Paerau setting out his background circumstances. That background is relevant to both his relative culpability and his capacity to rehabilitate. It is not challenged. Mr Paerau is 46 years old. He is a father and a grandfather. He was adopted out as a whāngai child at a young age. There was a lot of violence in the home and he was often beaten. He contemplated suicide on many occasions. Alcohol abuse was rife in the home. He also refers to having been sexually abused by an older whāngai brother. He says he took to alcohol at a young age and would often visit the pub with his mother. Criminality was a large part of his life as a child. His first burglary occurred when he was nine. His brother shot a police officer when he was 14.

[17]     Mr Paerau was kicked out of school at a young age and he started using cannabis. He met his partner when he was 18 and had two children with her. He admits to being violent with her.

[18]     He is of Ngā Puhi and Ngāti Rēhia. He feels connected to the land and Māori culture. He can speak Māori and actively participates in the kapa haka group in prison. He also feels connected to his community. He has played sports in the past, including rugby league. He has worked from time to time.

[19]     He acknowledges that he previously had gang associations with The Tribesmen, but he is not associated with them now. He is thinking about having his tattoos, connecting them to him, removed. He would like to attend The Bridge Programme, or a similar rehabilitation provider, and he would like to stay clean. He has booked an appointment to sit his driver’s licence test and would like to get a motorcycle licence as well. He is a qualified painter and he would like to have his own painting team. He says that in 2019 he was doing odd jobs (e.g. fixing a boat)

4      Gavin v R [2018] NZHC 2193.

5      Papa v R [2020] NZHC 80.

but the employer ran out of money, so he was paid in methamphetamine. This led him off the rails.

Assessment

[20]     At face value, Mr Paerau is a poor candidate for home detention. The offending was serious, and he is a recidivist offender. Deterrence, denunciation and protection of the public are strong relevant factors. However, multiple rolling sentences of imprisonment since 2009 have not achieved those goals except, perhaps, temporary protection of the public while he has been in prison. I therefore think it is necessary to have a closer look at a different approach, if one is available, as it is here, given that Mr Paerau is otherwise subject to a short term sentence.

[21]     As stated at s27(1)(b) of the Sentencing Act 2002, the way in which Mr Paerau’s background “may have related to the commission of the offence” is a relevant consideration. While not directly causative of the present offending, we can readily see that the genesis of his criminality lies in an early life of violence and substance abuse. He started stealing at nine and, basically, has not stopped. He also went off the rails most recently because of methamphetamine use.

[22]     But Mr Paerau is now 46. While not yet evident with Mr Paerau, we know that with age, the propensity to offend diminishes in many cases.6 He is a father and grandfather. He is seeking out opportunities to rehabilitate. He wants to find work. He has agreed to undertake a full-time residential placement with the Bridge programme. These are strong factors that mitigate the probability of reoffending. The last aspect especially so, because it indicates a commitment to change.

[23]     Needless to say, I am conscious of the risk Mr Paerau presents in light of his history. But home detention to a full-time rehabilitative facility mitigates the risk of burglary offending and substance abuse. Furthermore, I invited Mr Beach to obtain instructions about whether Mr Paerau is prepared to commit himself to a full-time residential programme. As noted, he is. In my view, therefore, home detention to such

6      See Sophie Klinger “Three Strikes for New Zealand? Repeat Offenders and the Sentencing and Parole Reform Bill 2009” (2009) 15 Auckland UL Rev 248 at 251.

a programme sufficiently mitigates the short and long term risks presented by him, while providing the opportunity to help break Mr Paerau’s cycle of criminality.

[24]     In the result, with the benefit of the information I have before me, I allow the appeal and grant leave to Mr Paerau to apply for home detention. The period of any such detention will correspond to 50 per cent of the period left on his sentence. However, the grant of leave is for placement with the Bridge Programme or a similar full-time residential programme, at least for the period of the home detention. The residence must also be suitable for home detention.

[25]     It is regrettable that this option has only recently been considered. Mr Paerau has already served a substantial part of his sentence of imprisonment. But that is not a reason to deprive him of the opportunity still to seek home detention.

[26] The is appeal allowed. Mr Paerau is granted leave to apply for home detention, subject to the conditions set out at [24].