Palalagi v Police
[2015] NZHC 1832
•4 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000124 [2015] NZHC 1832
BETWEEN BRYDEN JOSEPH PALALAGI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 July 2015 Appearances:
Paul Pati for the Appellant
Rebecca Thomson and Sarah McKone for the RespondentJudgment:
4 August 2015
JUDGMENT OF MOORE J [Appeal against sentence]
This judgment was delivered by me on 4 August 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
PALALAGI v NEW ZEALAND POLICE [2015] NZHC 1832 [4 August 2015]
Introduction
[1] Bryden Joseph Palalagi appeared in the Manukau District Court for sentence having entered pleas of guilty to the following charges:
(a) two charges of burglary;1 and
(b) three charges of indecent assault.2
[2] He was sentenced to three years and nine months’ imprisonment, concurrent in respect of all offences. He now appeals on the grounds that, in all the circumstances, the sentence was manifestly excessive.
Background facts
[3] The offending at the centre of this appeal arises from three separate events which occurred in August 2014.
[4] The first took place on 1 August 2014 when Mr Palalagi entered the home of the first victim through an unlocked window. She was in bed asleep. He approached her, slid his hand up her ankle and leg for some minutes. After a time, she realised what was happening. She sat up and Mr Palalagi fled. These events form the basis for one charge of burglary and a charge of indecent assault.
[5] The second incident took place on 24 August 2014 when Mr Palalagi entered another victim’s home through an unlocked ranch slider. He then entered the victim’s bedroom and knelt down at the end of her bed where she was sleeping with her seven year old son. He moved his hand up and down the victim’s leg several times, waking her up. She sat up, saw Mr Palalagi and screamed. He ran out of the room and out of the house. As with the first victim, he was not known to her. These
events form the basis for one charge of burglary and one charge of indecent assault.
1 Crimes Act 1961, s 231(1)(a); maximum penalty of 10 years’ imprisonment.
2 Crimes Act 1961, s 135; maximum penalty of seven years’ imprisonment.
[6] Two days later, on 26 August 2014, the victim, in relation to the third indecent assault, was standing outside an internet cafe in Papatoetoe when Mr Palalagi, who, again, was not known to her, approached her from behind. He told her that she had something white on her pants, to which she replied “Where?” Mr Palalagi pointed to her bottom, approached her and repeated his earlier statement. Then, using his finger, he poked her bottom with some force before turning and entering the internet cafe where he was located a short time later by the Police.
[7] Mr Palalagi pleaded guilty to all charges at the first reasonable opportunity. Furthermore, following Mr Palalagi’s arrest in relation to the 24 August 2014 offending, he volunteered to the Police he was also the offender for the 1 August
2014 offending and, as a consequence, was arrested and charged in relation to that matter. While expressing some cynicism for Mr Palalagi’s motive in doing so, the Judge was prepared to assume, for the purposes of sentencing, that he was motivated by his good conscience.3
Pre-sentence report
[8] Mr Palalagi declined to be interviewed for the purposes of the pre-sentence report. However, with access to his criminal history and psychiatric history, the report writer was able to assess Mr Palalagi as representing a high risk of re- offending and harm to others. The writer identified the factors related to the offending as being Mr Palalagi’s binge drinking and his offending-related sexual arousal. While serving his most recent term of imprisonment, Mr Palalagi did not meet the criteria for the SAFE programme for child sex offenders due to his lack of motivation to address his offending behaviour. However, it seems that position changed following his most recent psychological report in January 2015, which confirmed his willingness to engage in any intervention which was offence-focused. The report recorded Mr Palalagi as posing a risk to the community which cannot be
managed effectively with any community based sentence.
3 The Judge suggested a cynic might have believed the motive was actuated by a concern he might have been identified by DNA in any event. Before me, the Crown suggested that he had a motive to admit this offending because he knew he would receive a “second-strike” sentence. Avoiding the consequences of this offending being separately dealt with subsequently and receiving a “third-strike” sentence was, the Crown said, a powerful incentive.
Victim impact statements
[9] Unsurprisingly, Mr Palalagi’s victims were shocked, disgusted and disturbed
by his actions.
District Court decision
[10] After giving Mr Palalagi a second-strike warning, the Judge proceeded to sentence him on all charges. He referred to Mr Palalagi’s criminal history, which included previous convictions for burglary, indecent assault and unlawful sexual connection. He also referred to the pre-sentence report assessment of the risk Mr Palalagi presents.
[11] Despite Mr Palalagi’s relative youth,4 the Judge considered a discount for youth was excluded by reason of Mr Palalagi’s recidivist criminal history. His Honour also determined that no additional discount for remorse was appropriate for much the same reasons.
[12] The Judge’s sentencing methodology and sentencing construction is regrettably abbreviated and difficult to follow. However, it seems he took:
(a) a starting point of four years for the offending on 24 August 2014; and
(b) an uplift of 12 months for the admitted/confessed offending on
1 August 2014.
[13] It is unclear how the offending of 26 August 2014 was taken into account.
[14] The sole discount was 25 per cent on account of Mr Palalagi’s early guilty
pleas.
[15] Mr Palalagi was sentenced to concurrent sentences of the full term of three years and nine months’ imprisonment.
4 He turned 23 in April 2015 and was thus aged 22 at the time of the offending.
[16] Although his Honour made no express reference to Mr Palalagi’s confession to the 1 August 2014 offending and the discount he applied in recognition, it appears that after the sentencing hearing, counsel raised this question with the Judge who confirmed he had taken it into account in setting the starting point.
Approach to appeal
[17] Section 250(2) of the Criminal Procedure Act 2011 states that the court must allow the appeal if it is satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[18] In any other case, the court must dismiss the appeal.5
[19] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the courts’ approach to sentence appeals.7
[20] The approach taken under the former Summary Proceedings Act was set out in Yorston v Police, where the Court said:8
(a) there must be an error vitiating the lower court’s original sentencing
discretion (the appeal must proceed on an “error principle”);
(b)to establish an error in sentencing, it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of
additional material submitted to the appeal court;
5 Criminal Procedure Act 2011, s 250(3).
6 Tutakangahau v R [2014] NZCA 279 at [26]–[27].
7 At [33] and [35].
8 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].
(c) it is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
[21] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached. I will therefore undertake the sentencing exercise afresh and compare the result with the sentence imposed by the Judge, to determine whether the sentence imposed was within range.
Appellant’s submissions
[22] Mr Pati, for Mr Palalagi, in detailed and helpful submissions argues that the sentence is manifestly excessive. He relies on five grounds, namely:
(a) the starting point of four years’ imprisonment was too high;
(b) inadequate consideration was made for the principle of totality;
(c) no discount was given for assisting the Police (in relation to the 24
August 2014 offending);
(d) no discount was given for remorse; and
(e) no discount was given for youth.
Starting point and totality
[23] Mr Pati submits that a starting point closer to two years would have been appropriate for the offending. In support of this submission, he refers to several cases involving similar assaults. In relation to the 1 August 2014 offending, he accepts that a one year uplift from the starting point was merciful in all the circumstances and he does not challenge that aspect of the Judge’s methodology.
[24] In summary, he submits that on the authority of Sipa v R (discussed more fully later in this judgment),9 for the 24 August 2014 offending, the appropriate starting point would have been two years and three months. To that should be added an uplift of between six and nine months for the relatively minor indecent assault on
26 August 2014 and a further one year uplift, as given, for the 1 August 2014 offending. This comes to a final starting point of three years and nine months to four years’ imprisonment before the discounts he submits should have been applied are deducted. These discounts include youth, remorse and assistance to the Police.
[25] Importantly, this is a stage-2 offending under the “three-strikes” regime contained in ss 86A to 86I of the Sentencing Act 2002 (“the Act”). Mr Pati submits that the Judge should have taken into account the consequences of the three-strikes regime in recognition of the principle of totality, referring to what Judge Winter in the District Court decision of R v Muraahi described as the principle of “enhanced
totality deduction”,10 the application of which, in Mr Pati’s submission, would have
resulted in a discount of approximately three to six months.
Assistance to the Police
[26] As I understood Mr Pati’s submission, he does not advance this ground with any vigour in recognition of the modest one year uplift which the Judge gave in relation to the 1 August 2014 offending (which was identified only as a result of Mr Palalagi’s confession). On the authority of Sipa, I agree with Mr Pati that this was a modest uplift having regard to the nature of the offending.
Remorse
[27] Mr Pati submits that the Judge’s dismissal of Mr Palalagi’s remorse was not justified in the circumstances. He submits that Mr Palalagi’s recidivist offending needs to be assessed against the psychological background to the offending. In reliance on the psychological report, Mr Pati submits that the high chance of repeat offending is owed to Mr Palalagi’s status as a victim of sexual abuse from a very
early age, combined with his modest age when he first committed a sexual offence.11
Mr Pati, relying on the report, submits Mr Palalagi’s own experience of sexual abuse has not been dealt with properly and the report recommended that he have ACC- funded counselling to address his past trauma. The report writer indicated that Mr Palalagi was willing to attend treatment to deal with his sexual deviancy.
Youth
[28] The Judge also declined to give a discount for youth by reason of
Mr Palalagi’s extensive recidivist criminal history.
[29] Mr Palalagi has seven convictions in the adult jurisdiction, including five relating to sexual offending. Mr Pati submits that while Mr Palalagi was 22 years old at the time of the present offending, it is instructive to examine the pattern of his past offending which, according to Mr Pati, started in 2006 and paused after mid-
2010. He accepts that, for some time after this period, Mr Palalagi was in custody but submits this related to offending which occurred in 2006
[30] He submits this factor, coupled with the unresolved sexual abuse issues,
demonstrate that youth, in Mr Palalagi’s case, should have been discounted.
Crown submissions
[31] Ms Thomson, for the Crown, in helpful and extensive submissions, argues that overall, the five year starting point, while at the top end of the available range, does not fall outside the Judge’s sentencing discretion.
[32] As with Mr Pati, Ms Thomson relies on Sipa. Mr Sipa was convicted of burglary, indecent assault and breaking out of a dwelling after committing indecent assault. He had snuck into a stranger’s bedroom at night and touched the leg of a woman sleeping. The woman and her partner (who had been sleeping next to her) chased Mr Sipa out of the house. In allowing his sentence appeal, the Court of
Appeal noted that the gravity of the crime lay in:12
“entering into premises at that hour and committing an offence on a stranger
in the privacy of her home.”
[33] It appears Mr Sipa had no relevant aggravating or mitigating features. As he was found guilty at trial, the end sentence of two years and three months may be taken as the starting point.
[34] Ms Thomson accepts that the starting point was at the upper end of the Judge’s sentencing discretion. But she submits that if one indecent assault can result in a sentence of two and a half years, taking the starting point to five years for two similar incidents and another indecent assault cannot be regarded as falling outside the available range.
[35] Ms Thomson also refers to similar cases where starting points of three and a half years13 and two and a half years’ imprisonment14 have been upheld on appeal.
[36] Ms Thomson submits that taking the three discrete episodes of sexual offending together, a starting point of five years’ imprisonment reflects the totality of the offending, albeit at the higher end of the range.
[37] There should be no deduction for totality, in Ms Thomson’s submission. The “enhanced totality principle” to which Mr Pati refers, in Ms Thomson’s submission, is not a recognised step in sentencing methodology and runs contrary to Parliament’s intention in establishing the three-strikes regime, the purpose of which was to increase sentences for repeat serious violent offenders.
[38] In reliance on Hessell v R, Ms Thomson submits that to grant a discount for remorse, separate from that of a guilty plea, a “proper and robust evaluation of all the circumstances” must be undertaken to determine whether genuine remorse has been shown or demonstrated by the defendant.15 She submits there is no sufficient
evidence of remorse beyond the guilty plea.
13 Milne v Police [2012] NZHC 320.
14 Penitani v Police [2014] NZHC 1622.
[39] In relation to Mr Pati’s criticism that Mr Palalagi was given no discount for youth, Ms Thomson correctly submits there is no presumption in favour of a youth discount. An assessment must be made in all the circumstances of the case.16
Discounts for youth are given in recognition of age-related neurological differences between adults and young people (particularly where the offending is impulsive), to avoid the crushing effect of long sentences on young people and because of their greater capacity for rehabilitation.17 However, Mr Thomson submits the objective seriousness of the offending is also relevant. She points to the fact that Mr Palalagi was 22 years old at the time of the offending. Further, she submits that it is stretching the definition and rationale behind a youth discount to say that a 22 year old, with an established pattern of criminal offending behind him, is entitled to a
reduction in his sentence on the same basis as an 18 year old. She thus distinguishes Tutakangahau v R, cited by Mr Pati.18 At the age of 15, Mr Tutakangahau had been involved in a spree of burglary-related offending for which he had been sentenced to supervision and reparation. He had a single previous conviction, also for burglary. He was only 18 years old at the time of the index offending and immediately confessed to the relatively minor burglary.
[40] Ms Thomson submits that Mr Palalagi’s position is entirely different. For a start, Mr Palalagi is five years older and, like Mr Huata, is at the “upper end of the range” of youth.19 She says that Mr Palalagi’s offending is persistent and serious.
[41] She also takes issue with Mr Pati’s submission that there is a noticeable gap in Mr Palalagi’s pattern of offending as disclosed in his list of previous convictions. From the analysis provided, it is apparent that there was little or no hiatus as is claimed by Mr Pati.
Analysis
Starting point
[42] There are no tariff cases for burglary or indecent assault.
16 Huata v R [2013] NZCA 470 at [32].
17 Churchward v R [2011] NZCA 531at [77].
18 Tutakangahau v R [2014] NZCA 279.
19 Huata v R, above n 16 at [34].
[43] Both parties rely on Sipa, which involved a single incident of indecent assault during a burglary. The facts of that case have already been discussed. They are very similar to the present, involving the offender entering a stranger’s bedroom at night, touching the complainant’s leg and leaving abruptly after being discovered. It would appear Mr Sipa had no relevant aggravating or mitigating features.
[44] Other cases, involving similar facts, have resulted in comparable sentences being imposed.20
[45] As noted, Ms Thomson submits that if one incident can result in a sentence of almost two and a half years, taking a starting point of five years for two similar incidents and another indecent assault cannot be outside the available range. I cannot agree. The overall seriousness of Mr Palalagi’s offending cannot be assessed as being effectively twice that of Mr Sipa’s simply because he has offended in a similar way twice. Even adding the later indecent assault does not elevate the starting point to that level.
[46] I am satisfied, on the authorities, that the starting point of five years’ imprisonment was manifestly excessive. Applying Sipa, as both counsel urged, an appropriate starting point for the 24 August 2014 offending is two years and three months. I agree with Mr Pati. An uplift of six to nine months to account for the relatively minor indecent assault on 26 August 2014 amply reflects that offending. The uplift given by the Judge for the 1 August 2014 offending properly reflects the Judge’s finding that, but for Mr Palalagi’s confession to the Police, this offending would likely have remained unsolved and Mr Palalagi’s co-operation and implicit remorse is properly reflected in that substantial discount. This brings the final starting point to between three years and nine months and four years.
[47] I am of the view that an appropriate starting point, taking into account the
totality of the offending, is four years’ imprisonment.
20 Tonihi v Police [2015] NZHC 201; R v King [2013] NZHC 3362; and Milne v Police [2012] NZHC 320.
Relevance of Mr Palalagi’s non-eligibility for parole (“three-strikes regime”)
[48] Mr Palalagi is caught by s 86C of the Act. The effect of that section means he must serve the full term without eligibility for parole.
[49] There appear to be two judicial approaches dealing with the relationship between s 86C and determining sentence length. One approach, R v Wereta, focuses on s 86C at the “adjustment to starting point” stage,21 and the other, R v Muraahi, engages s 86C at the totality stage. To answer Mr Pati’s submission, I am required to consider each approach.
[50] In Wereta, Courtney J did not make any adjustments to Mr Wereta’s sentence to reflect his previous convictions. Her Honour accepted the submission for Mr Wereta that to impose an uplift on account of his previous convictions would amount to double counting “because it is the fact of those previous convictions that has resulted in the effect of the second strike warning”.22 Her Honour acknowledged that there was no apparent legislative intention to alter the sentence structure that would otherwise be imposed, and so, arguably, imposing a lower sentence than would otherwise be imposed would undermine the intention of the legislation. Notwithstanding those observations, her Honour held:23
“However, I accept your counsel’s submission which I record Crown counsel’s agreement on, that the deterrent effect of the three strike legislation is achieved through the requirement to serve the whole of the sentence and then to uplift that sentence I referenced [sic] a previous convictions would be double counting.”
[51] In Muraahi, Judge Winter approached the sentencing function in the usual way. He applied an uplift to reflect Mr Muraahi’s previous convictions and, having reached the end sentence range, stepped back and applied what he referred to as an “enhanced totality deduction”. Its purpose was to create an element of judicial discretion to adjust the end sentence in light of the fact that the offender, by virtue of
s 86C, would not be eligible for parole. The Judge explained:24
21 R v Wereta [2014] NZHC 2555.
22 At [12].
23 At [12].
“The availability of that deduction stems from the tension now found within the Sentencing Act 2002 as a result of the amendments contained in the New Zealand Sentencing and Parole Reform Act 2010.”
[52] The use of the word “tension” is important because the Judge plainly viewed it in that way rather than as an “inconsistency”. Because s 86 prevails only to the extent of any inconsistency,25 the Judge was of the view that the “enhanced totality
principle” does not offend the predominance of s 86.26
[53] In summary, the decisions are inconsistent. Under Muraahi, the three-strikes regime is not relevant in determining sentence length but it does, however, justify giving a discount at the totality stage. Under Wereta, the three-strikes regime is relevant in determining sentence length to the extent that, where an offender appears for a stage-2 (or even stage-3) offence, there is no uplift for previous convictions for fear of double-counting.
[54] In the present case, it is implicit from the reasoning of the Judge that he considered himself bound by Courtney J’s approach in Wereta. The Judge acknowledged:
“[16] Because I have given you now a second strike warning I am obliged to direct that you serve a minimum period of imprisonment and there I must take care not to double count the prior convictions.”
[55] As I understand Mr Pati’s submission, aside from there being no uplift for previous convictions, he submits that there should also be a discount in totality to reflect Mr Palalagi’s non-eligibility for parole. In other words, both Muraahi and Wereta should be applied in Mr Palalagi’s favour. That submission cannot be correct because it would mean that repeat offenders are able to obtain the best of both worlds.
[56] Putting the question of precedence aside, I consider that the position is better put as follows: since the “double-counting” approach (Wereta) is the other side of the coin to the “enhanced totality” approach (Muraahi), which approach (if any) should
prevail?
25 Sentencing Act 2002, s 86I.
[57] I agree with the Crown submission that parole eligibility is a factor which Judges should not take into account in determining sentence length. That position is consistent with s 82 of the Act, which provides that, in determining the length of a prison sentence, the court is not permitted to take into account the period during which the offender was on pre-sentence detention. The reason for that is because under s 90 of the Parole Act 2002 the period is automatically counted by the Parole Board as time served. That suggests parole is not a matter to be taken into account when imposing sentence. It is an area best left to the administration of the Parole Board.
[58] It is clear that separating the judicial function of sentencing from the statutory consequences of the three-strikes legislation was Parliament’s intention. In the third reading of the Sentencing and Parole Reform Bill, the Hon Judith Collins said:27
“For the benefit of the House, I will recap the main elements of the regime. When convicted of a serious violent offence for the first time, an offender will be sentenced as normal but will be very clearly warned that he or she will now be subject to the three-stage regime, and warned what will happen if he or she is convicted of a further serious violent offence. If the offender is convicted of a second serious violent offence, the implications are more serious. He or she will be sentenced as normal but any jail sentence will be served in full without parole. The offender will be warned again, both verbally and in writing, of the consequences of a third conviction for a serious violent offence. If the offender fails to heed the previous warnings and is convicted of a third serious violent offence, he or she will be sentenced to the maximum penalty for that offence, to be served without parole. The exception to this regime is for conviction for manslaughter, for which an offender will be required to serve a life sentence, with a minimum non-parole period of at least 20 years.”
[59] The emphasis is on the phrase “he or she will be sentenced as normal” which suggests that the three-strikes regime was not intended to influence the sentencing function and discretion of a Judge. Rather, non-eligibility for parole is a consequence of the three-strikes regime and is separate to and distinct from the sentencing exercise.
[60] Accordingly, and with respect, I do not agree with the approach in Wereta for the following reasons:
(a) First, the scheme of the three-strikes regime recognises that parole is a privilege, not a right. As the Hon Judith Collins said in the third reading of the Bill:28
“Parole is a privilege that will not be available to those who fail to take heed of warnings and continue to commit serious violent offences. This bill ensures that the rights of victims and their families are put before the rights of offenders who choose to continue to offend in this way.”
It is contrary to this principle to compensate for the effect the legislature intended. To exempt repeat offenders caught by the three- strikes regime from the usual uplift for past offending is to treat them differently from others who qualify for an uplift.
(b)Secondly, there is nothing in the Act to suggest that non-eligibility for parole under s 86C was intended to affect the calculation and determination of sentence length. Indeed, the Sentencing and Parole Reform Act 2010, which incorporated the three-strikes regime into the Sentencing Act, is a reprint of the Sentencing Act. There were no consequential amendments made to the “purposes and principles” of sentencing, as set out in ss 8 and 9 of the Act, to reflect the changes brought by the three-strikes regime.
(c) Thirdly, I cannot agree an uplift for previous convictions amounts to double-counting. It is the fact of a s 86A previous conviction which gives effect to a second-strike warning. That is, the very nature of a stage-2 offence assumes that an offender is convicted of a serious violent offence (listed under s 86A) for the second time. There is no consideration of the offender’s previous convictions other than the serious violent offence which led to the first warning. It does not reflect other previous convictions which might justify an uplift.
(d)Finally, I question any principle which has the effect that those convicted of stage-2 offences are exempt from any uplift for previous convictions in contrast to other offenders (not convicted of a stage-2 offence) who can expect such an uplift. This creates an arbitrary distinction not intended by Parliament and offends the principle that the sentencing process should be both consistent and predictable. There can be no guarantee that those who are subject to the ordinary principles of sentencing will be released after serving one third of their sentence. Paradoxically, if the approaches in Wereta and Muraahi were adopted, it is conceivable that some second-strike offenders could be treated more leniently than their counterparts who are not subject to the three-strikes regime.
[61] In conclusion, I am of the view that non-eligibility for parole is a consequence of the three-strikes regime which is separate to and distinct from the sentencing exercise. Previous convictions should be taken into account in the ordinary way, as required by s 9(1)(i) of the Act.
[62] The three-strikes regime permits some departure from its strict adherence. The courts should be cautious to not artificially create a sphere of judicial discretion where one does not actually exist. Parliament clearly envisaged room for the exercise of judicial discretion under ss 86D and 86E. These sections recognise a “manifestly unjust” exception. However, this exception arises only at stage-3. To that extent, Parliament’s intention is clear. There is no discretion available in s 86C. I agree with the Crown submission that whether the three-strikes regime is morally, fiscally or rationally defensible, the effect of the law is plain and it is the duty of the courts to apply it.
[63] This conclusion is further supported by the application of s 86I, which provides:
“86I Sections 86B to 86E prevail over inconsistent provisions
A provision contained in sections 86B to 86E that is inconsistent with another provision of this Act or the Parole Act 2002 prevails over the other provision, to the extent of the inconsistency.”
[64] In Muraahi, the Judge referred to a “tension” between the principles of the
Sentencing Act and the effect of a stage-2 warning in this way:
“[10] There is a tension established with the Act between the proper application of the fundamental purposes and principles of the Sentencing Act including totality and the prospect that for a stage two warning on a long- term sentence the prisoner must serve that sentence without parole.”
[65] However, what in fact his Honour was referring to is better described as an “inconsistency” between s 86C and the principle contained in s 8 which requires the court to impose the least restrictive outcome. Once it is accepted there is such an inconsistency, it becomes plain that, by virtue of the operation of s 86I, s 86C is to prevail.
[66] It follows I reject Mr Pati’s submission in reliance on Wereta and Muraahi.
Discounts
[67] Next, it is necessary to consider whether any additional discounts should have been given. Plainly, Mr Palalagi was entitled to the full 25 per cent discount for his early pleas of guilty.
[68] The question then remains as to whether further discounts should have been given for youth and remorse.
[69] I accept Ms Thomson’s submission that Mr Palalagi’s case can be distinguished from the circumstances which confronted the Court of Appeal in Tutakangahau. I agree Mr Palalagi sits at the upper end of the range of youth for which a discount may be given, having regard to the policy reasons behind youth discounts. Mr Palalagi has previous convictions for similar offending. I agree with Ms Thomson’s characterisation that his offending was persistent and serious. For those reasons, I accept the sentencing Judge was correct when he concluded a discount for youth was not available.
[70] The next question is whether Mr Palalagi is entitled to a discount for remorse beyond that implicit in the discount he received for early guilty pleas.
[71] The psychological report refers to Mr Palalagi offering:
“vague and obfuscating responses regarding his offences, personal history and sexual functioning.”
[72] The report also describes Mr Palalagi’s accounts of his past and index
offending as:
“… inconsistent, varied and unreliable when compared with official offence documents and contained elements of denial and minimisation of offence seriousness, criminal intent and lacked understanding of victim consequences.”
[73] These references are inconsistent with sincere expressions of remorse. It is noteworthy that, in making the modest uplift for the 1 August 2014 offending, remorse is necessarily implicit in admitting this offending which would likely have gone unresolved otherwise. And so, at least in that context, Mr Palalagi received a generous credit for remorse beyond that included in his pleas of guilty.
[74] It follows that the only discount on the starting point of four years’ imprisonment available to Mr Palalagi is the 25 per cent given in recognition of his early pleas of guilty. This results in a final sentence of three years’ imprisonment. However, by operation of the three-strikes regime, Mr Palalagi will be required to serve the full term of his sentence, albeit now reduced on appeal.
Result
[75] The appeal is allowed. The sentence of three years and nine months’
imprisonment is quashed and a sentence of three years’ imprisonment is substituted,
the term of which is concurrent in respect of all charges.
Moore J
Solicitors:
Mr Pati, Auckland
Crown Solicitor, Auckland
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