Pasifatama v Police

[2023] NZHC 3801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-534

[2023] NZHC 3801

BETWEEN

TYRELL PASIFATAMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 December 2023
Appearances:	M Johnstone for the Appellant S Vreeburg for the Respondent
Judgment:	4 December 2023

ORAL JUDGMENT OF BECROFT J

[As to appeal against sentence]

Solicitors:

Public Defence Service, Auckland Meredith Connell, Auckland

PASIFATAMA v NEW ZEALAND POLICE [2023] NZHC 3801 [4 December 2023]

The appeal

[1]    This is an appeal against a sentence of 22 months and eight days’ imprisonment imposed by Judge Jelaš in the Auckland District Court on 23 August 2023.

[2]    The sentence was for five charges arising out of four separate incidents, described later, but mainly involving assaults.

Summary of the result: wrong process but result not manifestly excessive

[3]    In my view, the end sentence imposed was calculated inadequately without adopting the now appropriate sentencing methodology. There were no discrete and separate allowances made – in this case for an early guilty plea; for matters causative of the offending revealed in the s 27 report; and for personal mitigating factors.

[4]    With great respect to Judge Jelaš, who is an experienced District Court Judge, no doubt in the pressure of a busy District Court list, she rather compressed the sentencing process; and the process she used the Crown accepts was in error. It is impossible to know from the Judge’s sentencing remarks what mitigating features she precisely relied upon and what allowances she made for them.

[5]    All that said, even the appellant’s submission is that if the correct methodology had been followed, the end sentence would have resulted in a sentence of 19 to 21 months’ imprisonment. In my view the Crown is quite right to say that the end sentence was clearly within range and should not be “tinkered” with on appeal.

[6]    Therefore, from the outset in this decision, I indicate that even if the correct methodology had been used and even if the sentence should have been between 19 to 21 months, that does not, and could not, render a sentence of 22 months “manifestly excessive”. As I observed to Mr Johnstone, this is a case where he has “won the battle”

– that is, he has persuaded me there is a deficiency in the sentencing process. But he has “lost the war” in that he has not demonstrated, and in my view cannot demonstrate, that the end sentence imposed was manifestly excessive.

[7]    I compliment both counsel on their detailed and helpful submissions. What now follows is my detailed reasoning which, in my view, inevitably leads to the conclusion that this appeal must be dismissed.

What charges did Mr Pasifatama face?

[8]The five charges are as follows:

(a)Giving a false alarm of fire:1 On 23 October 2022, while the Police were in attendance for an unrelated matter, Mr Pasifatama set off the fire alarm on his apartment building twice in short succession. He knew there was no fire. His intention was to distract the Police. Instead, Fire and Emergency New Zealand (FENZ) attended and silenced the alarms. That Mr Pasifatama fully activated the alarms was then discovered.

(b)Assault on a person in a family relationship:2 While attending to the second fire alarm, FENZ staff witnessed Mr Pasifatama using a closed fist to strike his partner on the side of her face. At the time she was attempting to grab hold of their two-month-old baby.

Mr Pasifatama was released on bail after appearing on these charges.

(c)Common assault:3 On 5 December 2022, while on bail, Mr Pasifatama and a friend assaulted an innocent member of the public who had observed Mr Pasifatama driving erratically. That member of the public phoned the Police because he thought the driving was dangerous and constituted a public risk. When the civilian’s car stopped at traffic lights, Mr Pasifatama got out and punched the civilian once in the face, following which Mr Pasifatama’s associate punched him a further three times. That innocent member of the public, acting in my view quite responsibly, received bruising to his right eye and soreness to his face. Mr Pasifatama was again remanded on bail.

1      Fire and Emergency New Zealand Act 2017, s 157.

2      Crimes Act 1961, s 194A.

3      Summary Offences Act 1981, s 9.

(d)Assault on a person in a family relationship:4 On 3 January 2023 Mr Pasifatama punched his partner with a closed first to the side of her face, causing her to scream and rock backwards. As she tried to escape, he chased after her, grabbed her and wrapped his arms around her. The victim suffered a bruise to her face and a small cut to her nose. Mr Pasifatama was remanded in custody before being subsequently released on electronically monitored bail nearly two months later.

(e)Assault with intent to injure:5 On 2 April 2023 an argument ensued between Mr Pasifatama and his partner at a bus stop. He approached her in an aggressive manner, grabbed her by the hair and pushed her towards the bus shelter. This lasted approximately five minutes. Mr Pasifatama put his forearm around his partner’s throat, a vulnerable and exposed part of her body, dragged her and lifted her up off the ground to prevent her from leaving. Mr Pasifatama was remanded in custody following this assault and has remained there ever since.

Approach in the District Court

[9]    Against this background, Judge Jelaš sentenced Mr Pasifatama in the Auckland District Court to 22 months’ imprisonment.

[10]   The methodology was to adopt a starting point of 18 months’ imprisonment for the assault with intent to injure charge, which she appropriately considered was the lead charge. She took into account the degree of force applied to the victim’s neck, the prolonged nature of the assault and that Mr Pasifatama was subject to EM bail at the time of the offending. As the Crown observed, a starting point higher than this, of at least 20 months, would have been well justified in the circumstances.

[11]   In respect of the other four charges, her Honour added a further 10 months’ imprisonment adopting the totality principle. The overall starting point she took was 28 months’ imprisonment.

4      Crimes Act 1961, s 194A.

5      Section 193.

[12]   From that starting point, the Judge deducted or applied a discount of six months. It is agreed that this equates to approximately 21.5 per cent. This was expressed to be for the guilty pleas and personal history factors. This resulted in an end sentence of 22 months’ imprisonment. A further eight days were added in respect of the remission of outstanding fines.

Was this the correct sentencing methodology?

[13]   It is common ground between counsel that there should have been an explicit and separate allowance for the guilty pleas and that should have been made clear. That must be the case.

[14]   I also accept that in these circumstances there should have been clarity as to the discount for matters set in the s 27 report, and for personal mitigating factors. It is clear that Judge Jelaš took those matters into account, although she said at paragraph

[22] of her decision that Mr Pasifatama continued to offend and place others at risk. The allowance given in recognition for those factors would be reduced. However, on the face of her decision, there is no way of knowing what allowance was given for that factor.

[15]   Given that a guilty plea in these circumstances must have attracted at least a 20 per cent reduction, the allowance for s 27 matters would have been 1.5 per cent. Logically, that cannot follow. In my view, there was a clear error in approach in failing to apportion allowances for each component that justified mitigation.

[16]   There were three areas in my view where there should have been clear and separate allowances given. It was not appropriate to compress all those matters into a simple global figure of six months. The problem with that approach is that it leaves a defendant totally unclear as to what extent, if at all, separate factors were properly considered and factored into the sentencing process.

What should have been the allowance for the guilty plea?

[17]   As for the allowance for the guilty plea, the Crown accepted that 20, possibly 25 per cent, might have been possible in the circumstances.

[18]   While Ms Vreeburg contended for a 20 per cent allowance, she did accept that in her understanding it was becoming standard practice in the Auckland District Court for a 25 per cent allowance to be made if the plea was entered at the first available opportunity after disclosure was made. This was the case here.

[19]   Mr Johnstone is quite clear that as soon as full disclosure was made in respect of all the offences, the guilty pleas were entered. In fact, a very early guilty plea was entered in respect of the common assault charge against the member of the public who phoned the Police regarding the defendant’s driving. That plea was entered on 20 December 2022, which was Mr Pasifatama’s second appearance.

[20]   In all the circumstances, although I need to make no final decision on the matter, Mr Johnstone’s submission in my view seems to be correct that, here, a 25 per cent discount would have been appropriate and warranted. This was not a matter that Judge Jelaš turned her attention to precisely. It is impossible to know what her view was. But given that the total reduction was 21.5 per cent, on any analysis, the reduction must have been 20 per cent or less. But there is no discussion that I can see in any detail on that point other than to record Mr Pasifatama did plead guilty to the charges and is entitled to credit for those guilty pleas.6 More reasoning than that was required.

Allowance for factors in the s 27 report

[21]   The s 27 report is comprehensive and sets out the background of this offender in sad detail. In short, Mr Pasifatama is a man aged 26 who is disconnected from his Niuean culture. He experienced significant what might be called “family dysfunction” involving rejection and abandonment and him running away from home at the age of

13. He found “belonging” in a street gang and this became his culture, and the values and norms of that gang were those that he adopted. He resorted to alcohol and drugs to medicate his anxiety and his inability to cope.

6      New Zealand Police v Pasifatama [2023] NZDC 18102 at [17].

[22]   It is observed that “Crips were everywhere around [the defendant]”. Gang membership was a normal progression. The decisions that he made at 12 and 13 have in many ways trapped him into the reality that he is facing today. At age 14 he became a parent himself and the inter-generational transmission of violence with his partner continued.

[23]   I can well understand Judge Jelaš’s frustration noted at [21] and [22] of her decision. She acknowledged the connection between Mr Pasifatama’s history and the offences before the Court. But, in terms of his ongoing offending and his continuation of placing others at risk, that meant recognition for the s 27 factors needed to be reduced. The problem is there is no way of knowing how much they were reduced or whether they were effectively considered at all given the simple six months’ reduction. On one analysis, if the guilty plea attracted a 20 per cent reduction, the s 27 factors could have only attracted 1.5 per cent – which cannot be correct.

[24]   There are two cases relied upon Mr Johnstone, that of Carr v R7 and Minogue v R,8 which support his submission that a 15 per cent reduction minimum was justified even given Mr Pasifatama’s apparent ongoing offending. In his view, even given the comments at [94] in the Supreme Court case of Berkland v R,9 the time has not yet arisen where the factors in the s 27 report have ceased to have relevance. There is some force in that submission.

Allowance for “personal factors”

[25]   Thirdly, in my view, there should have been credit for personal factors. In saying that, a court has to be careful not to double count the current personal factors with the factors explained in the s 27 report. In this case, that includes his methamphetamine addiction and the fact that he is the father of a young child.

[26]   There was one matter in the sentencing that was not considered and that is the fact that Mr Pasifatama underwent a restorative justice conference with the innocent member of the public who reported on his driving. That appeared to go well. It was

7      Carr v R [2020] NZCA 357 at [67].

8      Minogue v R [2020] NZCA 515 at [47].

9      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94].

productive and ended in understanding, forgiveness and a handshake. That was not even considered by Judge Jelaš. It may well be that it was not even put before her because, as the Crown notes, the report was completed the day before sentencing, although the conference had occurred 14 days prior to that. Mr Johnstone did not appear at the sentencing and is unable to throw light on that point. But in any case, it is information now known to this Court and it certainly does justify an allowance in terms of sentence reduction for personal factors in the way of remorse.

The appellant’s view as to the correct sentence

[27]   Mr Johnstone concluded his submissions by setting out the appropriate methodology that should have been applied at sentencing. That is:

(a)A starting point of 18 months’ imprisonment for assault with intent to injure. I observe that, quite responsibly, he did not contend for a lower starting point.

(b)An uplift of 10 months’ imprisonment for the remaining charges – just as the Judge decided.

(c)A discount of 20 to 25 per cent for an early guilty plea.

(d)A discount of 15 per cent for s 27 factors.

(e)A discount of 10 per cent for personal mitigating factors;

(f)An uplift of two months for offending while on bail.

(g)An uplift of a further two months to take into account of previously relevant offending.

[28]   In my view, that responsibly set out a correct methodology. In principle, I agree with it. It is not necessary for me to make a final decision regarding the specific percentages, particularly for the s 27 factors and for the personal mitigating factors. I say that because if that approach is adopted and Mr Johnstone’s figures are taken at

their highest, then that would result in an end sentence of 19 months’ imprisonment. If slightly lower figures were taken for the s 27 factors and personal mitigating factors, that would result in an end sentence of 21 months’ imprisonment or even slightly more.

Conclusion

[29]   I have set this all out in considerable detail so that Mr Pasifatama knows that all possible matters in this appeal were raised on his behalf.

[30]   There was an error in the methodology and, on reflection, I am sure that Judge Jelaš would accept this.

[31]   All that said, the question must be “was the end sentence appropriate?” When I stand back, has the error in approach caused the sentence to be manifestly excessive? In my view it has not. Even if the sentence was 19 months’ imprisonment rather than 22 months’ imprisonment, that could not be said to render the sentence imposed as manifestly excessive. The word “manifestly” must be given meaning. It is not grossly, clearly or significantly out of proportion to an appropriate sentence.

[32]   I have reflected on this at some length. Mr Johnstone has pressed me firmly by saying “with Christmas approaching, it would mean a six-week difference for Mr Pasifatama” and it could mean that “he would be out before Christmas, to spend Christmas with his family”. That is a fair submission to make. But it does not render the sentence manifestly excessive. As if to exemplify that, Mr Johnstone accepted that if Christmas was not occurring in four weeks’ time, it would be much harder for him to submit that the sentence was manifestly excessive.

[33]   The Crown has emphasised strongly that I should not “tinker” in this case. I accept that submission. If I were to interfere in this case, I would be “tinkering”.

Result

[34]   The end result for the reasons I have outlined must be that the appeal is dismissed. That said, Mr Johnstone is successful in his clear analysis of the error in the sentencing process.

[35]   I do not address the issue of home detention because Mr Johnstone has now, again, responsibly abandoned that aspect of the appeal. Correctly, he notes that the sentence, on any analysis, would be served before home detention could be put in place.

[36]   I also note that the sentence appeal is out of time by 46 days. That was occasioned by a delay in receiving final legal aid approval for the appeal. Responsibly the Crown does not object and concedes there is absolutely no prejudice.

[37]I grant leave to appeal out of time, but dismiss the appeal.

Becroft J