Papa v R

[2020] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-44

[2020] NZHC 80

BETWEEN

MIHARO JASON PAPA

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 February 2020
Counsel:	M J Phelps for Appellant L M Marshall for Crown
Judgment:	4 February 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 5 December 2019, Mr Papa was sentenced by Judge Rea in the Napier District Court to one year four months’ imprisonment after he pleaded guilty to a charge of assault with intent to injure.1 The maximum penalty for this offence is three years. Mr Papa also pleaded guilty to assaulting a prison officer in the execution of her duty.2

[2]    Mr Papa appeals the sentence on the ground that the Judge made an error of law in imposing a sentence of imprisonment as opposed to home detention, as a result of giving too much priority to the principle of deterrence without properly considering any of the other countervailing sentencing purposes.

1      The Queen v Brodie Stewart, Miharo Papa and Eddie Teunuku Paul [2019] NZDC 24535; Crimes Act 1961, s 193.

2      Summary Offences Act 1981, s 10.

PAPA v R [2020] NZHC 80 [4 February 2020]

[3]    The Crown opposes the appeal, submitting that the judge did not err and that a sentence of imprisonment rather than home detention is appropriate in the circumstances of this case.

Factual background

[4]    On 21 October 2017, Mr Stewart, Mr Papa, Mr Paul and two others were involved in an assault in Hawkes Bay Regional Prison. All five were affiliated with the Mongrel Mob and there had been rising tensions in the particular unit of the prison due to the presence of rival gang members.

[5]    At 10:45 am prison officers noted that a particular cell in the unit, occupied by an inmate affiliated to Black Power, was closed and guarded by Mr Paul. They moved towards the cell to investigate but Mr Paul would not let them open the door to the cell. They were able to see through the window that Mr Papa, Mr Stewart and another were kicking the complainant, Mr Nathan, in the head while he was lying on the floor.

[6]    After a passage of time, the group carrying out the assault moved away from the cell, after which the complainant came out of the cell, making further challenges to the group. This led the group to rush back towards the cell in response to the complainant’s challenges, while Corrections officers tried to prevent the group from entering back into the cell. In this altercation, Mr Papa rushed the Corrections officers to try to get back into the cell, causing one officer to suffer a broken finger. The complainant suffered multiple facial lacerations, significant bruising to his eyes, and concussion.

[7]    Mr Stewart, Mr Paul and Mr Papa all pleaded guilty to assault with intent to injure, while Mr Papa also pleaded guilty to the additional charge of assaulting a prison officer in the execution of her duty.

District Court decision and sentencing

[8]    The Judge sentenced Mr Stewart, Mr Paul and Mr Papa together. He acknowledged that it had taken some time for this matter to reach the sentencing stage,

noting that the defendants had earlier elected a trial by jury on more serious charges, but this had been resolved shortly before the trial was due to commence.

[9]    In considering an appropriate sentence for the offence, the Judge firstly noted that the offending “had a gang base to it”,3 and was worsened by the decision of the defendants to enter into the cell as a group to assault the complainant in a space where he had nowhere to go.

[10]   Secondly, the Judge referred to the conviction histories of Mr Stewart, Mr Paul and Mr Papa, all three having a significant history of violence. He noted that Mr Papa had  a  significant  criminal  conviction  history,  including  violent  offences   and   27 breaches of sentences or orders, leading him to conclude that the defendant did not respond well to sentences that he had a choice about.4

[11]   The Judge indicated that violence in a prison setting must be dealt with in a way that denounces the activity, and that cases at appellate level have consistently held that people who are prepared to use violence in this situation must receive a custodial sentence. He observed that the imposition of anything short of a reasonably substantial custodial sentence would simply provide encouragement for others to commit prison violence.5

[12]   Consequently, the Judge considered that the starting point for this level of violence, based on the offence, was 18 months’ imprisonment. The Judge uplifted the sentence by three months to reflect the past history of the defendants, leading to a starting point of 21 months’ imprisonment. He considered that each defendant was entitled to a discount of between 15 and 20 per cent for the fact that they pleaded guilty, leading to an end sentence of one year four months’ imprisonment.6

[13]   With regard to Mr Papa’s additional offence of assaulting a prison officer, the Judge noted that as the appellant had pleaded guilty to the charge, had spent quite a bit of time on EM bail, and that the charge was to be treated as all part of the one

3 Above n 1, at [5].

4 At [6].

5 At [7].

6 At [8].

incident, he should receive the same sentence for the assault with intent to injure as the other co-defendants of one year four months’ imprisonment, and a concurrent sentence of three months’ imprisonment for the assault on a prison officer in the execution of her duty.7

[14]   The Judge also imposed release conditions running six months beyond the sentence expiry date for Mr Papa and Mr Stewart, to be determined by the probation officer. 8

[15]   The Judge considered that given the past history of the defendants and the nature of the offending home detention was not adequate to meet the seriousness of the offence or to denounce the conduct that occurred.9

Standard on appeal

[16]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

Relevant law

[17]   Section 7 of the Sentencing Act 2002 sets out the purposes for which a Court may sentence an offender.12 These include denouncing the conduct in which the offender was involved,13 deterring the offender or other persons from committing the same or similar offence,14 and assisting in the offender’s rehabilitation.15

7 Above n 1, at [10].

8 At [11].

9 At [9].

10     Tutakangahau v R [2014] NZCA 279.

11     Ripia v R [2011] NZCA 101 at [15].

12     Sentencing Act 2002, s 7.

13     Sentencing Act 2002, s 7(e).

14     Sentencing Act 2002, s 7(f).

15     Sentencing Act 2002, s 7(h).

[18]   The Court of Appeal has indicated that there is no presumption for or against the commutation of a short-term sentence of imprisonment to home detention.16 What is called for is an exercise of sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Sentencing Act 2002.17 This approach was affirmed in Palmer v R, where the Court of Appeal also held that in marginal or borderline cases, the margin of appreciation extended to judges is usually significant.18

[19]   With regard to specific cases concerning issue of deterrence and denunciation in a prison violence case, the Court of Appeal in R v Kepu held that in the prison environment, particularly where actual violence occurs to prison officers, issues of deterrence and denunciation are at the forefront of the principles that the Courts must apply when offenders are sentenced.19

[20]   In R v Connelly, the Court of Appeal ruled that re-offending while in prison, particularly violent re-offending, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.20

[21]   In Tryselaar v R, the Court of Appeal made a similar observation, ruling that offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response.21

Submissions on appeal

[22]   The submissions by Mr Phelps, counsel for the appellant, are similar to the submissions by counsel for Mr Stewart (Mr Papa’s co-defendant) in that the principal point of appeal is that the Judge erred in imposing a sentence of home detention. This is advanced under two grounds:

16     R v Vhavha [2009] NZCA 588 at [29].

17 At [29].

18     Palmer v R [2016] NZCA 541 at [19].

19     R v Kepu [2011] NZCA 104 at [19].

20     R v Connelly [2010] NZCA 52 at [31].

21 Above n 11, at [18].

(a)that the Judge gave complete priority to deterrence without having regard to any of the countervailing purposes of the sentence; and

(b)that the Judge erred in declining to impose a sentence of home detention.

[23]   To the extent that Mr Phelps’ submissions differed from those of Mr Willis, it was to assert that rather than the sentencing Judge having applied insufficient weight to the principle of rehabilitation, he effectively disregarded it altogether.

[24]   With regard to the first ground, Mr Willis acknowledged the need for a “stern response” to offending within the prison environment, particularly for violent offences, placing the principles of denunciation and deterrence at the forefront of a sentencing Court’s consideration, as observed by the Court of  Appeal in Tryselaar v

R.22   Counsel also acknowledged that this approach had been endorsed in other cases,

including R v Connelly, and R v Kepu.23

[25]   Counsel submitted that despite the stern approach outlined by the Court of Appeal, recent jurisprudence has increasingly recognised the fact that incarceration can breed, or factor into, violent behaviour. He gave as an example, the decision in Vincent v R, where the Court of Appeal allowed a discount of six months to the appellant’s sentence to reflect his circumstances, namely that he had been in prison for at least seven years at the time of the offending and had become institutionalised:24

We have also reached the view that the Judge ought to have made some allowance for several mitigating factors. First, while we accept that the nature of Mr Vincent’s attack on the victim carried very serious risks, the injuries actually sustained were relatively minor and did not result in any permanent disability. Second, we consider the Judge ought to have made some allowance for Mr Vincent’s circumstances at the time of the attack. He had been in prison for at least seven years at the time of the offending and, as the Judge acknowledged, had become institutionalised. While his fears may have been irrational, it is evident they were genuinely held. We accept that the need to uphold prison discipline required a sentence of sufficient severity to act as a deterrent against conduct of this kind, but some allowance should have been made for the frustrations that inevitably arise where inmates are forced

22     Tryselaar v R [2012] NZCA 353 at [18].

23     R v Connelly [2010] NZCA 52 at [31]; R v Kepu [2011] NZCA 104 at [19].

24     Vincent v R [2015] NZCA 201 at [64].

together in close quarters over lengthy periods of time with minimal periods allowed each day outside their cells.

[26]   It was submitted that this approach was endorsed in R v Wereta, where Andrews J observed that while offending in a prison places a greater strain on those who are in charge of prison discipline and must be met with a stern response, it should also be tempered with the recognition that the prison environment could be a violent one.25 Despite this observation, Andrews J still uplifted the appellant’s sentence by six months to reflect a “stern response” to offending in prison.

[27]   Counsel submitted that these authorities, and their recognition that incarceration can give rise to risks of further violent offending, should be considered as a factor in favouring a sentence of home detention over imprisonment, and balance against the outdated notions of deterrence.

[28]   With regard to the second ground, Mr Phelps emphasised the fact that s 16 of the Sentencing Act 2002 requires the Court to 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.26 Counsel cited the case of R v Rawiri, where the Court identified the purpose of assisting in an offender’s rehabilitation and reintegration and principle of imposing the least restrictive outcome appropriate circumstances as informing and balancing against the principles of deterrence and denunciation in sentencing.27

[29]   Counsel finally submitted that the Courts have repeatedly emphasised that a sentence of home detention is not a soft option, and a sentence of home detention can carry with it the principles of deterrence and denunciation.28

[30]   After citing the above authorities, Mr Phelps outlined a number of factors that favoured a sentence of home detention over a sentence of imprisonment. This included the time between the offending and the sentence, the issue of incarceration causing violence, the appellant’s guilty plea and remorse, and the Provision of Advice to Courts Report recommending home detention on the basis that it would be

25     R v Wereta [2015] NZHC 2248 at [35].

26     Sentencing Act 2002, s 16.

27     R v Rawiri [2011] NZCA 244 at [19]-[20].

28     R v Iosefa [2008] NZCA 453.

beneficial to the rehabilitative activities that the appellant had already begun to carry out. Counsel submitted that in sentencing the appellant, the Judge did not conduct the nuanced analysis required when balancing these factors with the principles of denunciation and deterrence to determine whether a sentence of home detention was appropriate.

Submissions on appeal – the Crown

[31]   The submissions by counsel for the Crown opposing Mr Papa’s appeal are also similar to the submissions made in opposing Mr Stewart’s appeal.

[32]   Counsel have submitted that the Judge did not err in sentencing the appellant to imprisonment instead of home detention, and that the appeal should be dismissed. Counsel for the Crown referred to the approach to appeals against a sentence of imprisonment where home detention is available as outlined in Manikpersadh v R:29

[11]              This Court identified the appropriate approach in James v R in this way:

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[12]              We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

[33]   Counsel for the Crown also referred to the case of Palmer v R, noting the Court of Appeal’s ruling that in marginal cases balanced between a sentence of imprisonment and one of home detention, the margin of appreciation extended to Judges is usually

29     Manikpersadh v R [2011] NZCA 452 at [11]-[12].

significant.30 The cases of Connelly and Tryselaar were also cited in support of the assertion that a stern response is mandated for offending in a prison environment.

[34]   Counsel also submitted that the appellant had a recent history of a failure to comply with community-based sentences or other Court orders, which as held in the case of Hampton v Police, may tip the balance in favour of imprisonment.31 In this case, this included the appellant’s 27 breaches of previous sentences or orders.

Analysis

[35]   The cases of Kepu and Tryselaar both firmly support the proposition that the principles of deterrence and denunciation should be significant considerations when sentencing for violent offences that occur in a prison environment. It should be noted that both these cases involved violent offences of greater severity than the current case. Unlike his other co-defendants, the appellant was also charged with assaulting a prison officer in the execution of her duty. However, the assault in this case was not nearly as severe as Kepu and Tryselaar, and the Provision of Advice to Courts Report indicates that the appellant has expressed significant remorse for this offence. Tryselaar concerned the aggravated wounding of two prison officers with a weapon,32 while Kepu concerned the manslaughter of a prison officer that was premeditated.33

[36]   Connelly is probably the most analogous case as it concerned an attack by a group of prison inmates on a fellow inmate in the victim’s cell, with those inmates being charged with wounding with intent to cause grievous bodily harm.34 At [30], the Court cited the English Court of Appeal case of R v Ali, where a “stern attitude” towards violent offences in prison was supported, and endorsed this approach at [31], indicating that violent re-offending while in prison must have significant consequences for the offender.

[37]   The Provision of Advice to Courts Report indicates that the appellant has significant rehabilitative potential. The appellant is involved in a Kaupapa Māori

30     Palmer v R [2016] NZCA 541 at [19].

31     Hampton v Police [2014] NZHC 2423 at [28]-[29].

32     Above n 21, at [3]-[4].

33     Above n 19, at [6] and [18].

34     Above n 20, at [5]-[8].

Pathway Programme, has participated in a departmental alcohol and drug screening tool and has whanau that are willing to support him. There is also potential for him to develop links with his iwi (Tainui) through the Kaupapa Māori Pathway and Community Probation.

[38]   The appellant’s efforts at rehabilitation and the regard that the Court is required to have for them on sentencing must be balanced against the gravity and nature of the offending and the need for deterrence and denunciation. There was no challenge by counsel for the appellant to the proposition that the cases all consistently state that violent offending committed in prison demands a stern response. It is the type of offending where the principles of deterrence and denunciation are likely to be given prominence. In emphasising the principles of deterrence and denunciation, as he did in [7] of the judgment, the Judge did not make an error.

[39]   However, given the ambiguity of some of the language used, it is important to record that it is not correct to state that a sentence of imprisonment, as opposed to home detention, must be imposed in these situations. As indicated by the Court of Appeal in R v Vhavha, there is no presumption either for or against commutation of a sentence of imprisonment to home detention.35 Instead, what is required is an exercise of sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Sentencing Act 2002.36 This obviously includes denunciation and deterrence but may also include the rehabilitation of the offender.37

[40]   When sentencing the co-defendants, including the appellant, the Judge did not specifically refer to their rehabilitative potential and ideally should have. However, the Judge did acknowledge that for the offenders in this case who had recommendations of home detention, this sentence would not be adequate to meet the seriousness of the conduct, or properly denounce it. Given the Court of Appeal’s comments in Palmer v R, where it held that in marginal or borderline cases, the margin of appreciation extended to Judges is usually significant,38 the Judge has correctly exercised his discretion to impose an appropriate sentence by balancing the benefits

35 Above n 16, at [29].

36 At [29].

37     Sentencing Act 2002, s 7(h).

38     Palmer v R [2016] NZCA 541 at [19].

of home detention with the violent nature of the offence, previous convictions and the principles of denunciation and deterrence, which appellate courts have ruled should be at the forefront of sentencing decisions in these circumstances.

[41]   In relation to Mr Papa’s submission that his sentence should have been one of home detention, the fact that he is currently in prison awaiting trial on other charges would also have rendered a sentence of home detention inappropriate. Therefore, it cannot be said that the Judge erred in imposing a sentence of imprisonment rather than one of home detention.

Conclusion

[42]For the reasons given above, the appeal is dismissed.

Churchman J

Solicitor:
Crown Solicitor’s Office, Napier

Counsel:
M J Phelps, Hastings