Peke-Meihana v R

[2019] NZHC 642

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2019-454-3

[2019] NZHC 642

BETWEEN

ARAMA TE WHETU O TE ATA PEKE- MEIHANA
Appellant

AND

THE QUEEN

Respondent

CRI 2019-454-4

BETWEEN

CAELUM TAHIWI
Appellant

AND

THE QUEEN

Respondent

Hearing:

19 March 2019 via AVL

Counsel:

P L Murray for Mr Peke-Meihana P J Drummond for Mr Tahiwi

K Peirse-O’Byrne for Respondent

Judgment:

29 March 2019

JUDGMENT OF MALLON J

Introduction

[1]    Mr Peke-Meihana and Mr Tahiwi each pleaded guilty to a charge of aggravated robbery. They were each sentenced  in  the  Palmerston  North  District  Court  to two years and nine months’ imprisonment and ordered to pay $1,626.66 in reparation.1

[2]    They each appeal against their sentence on the basis it is manifestly excessive and that home detention ought to have been imposed. Their appeal was initially on

1      R v Peke-Meihana [2019] NZDC 1791.

PEKE-MEIHANA v R [2019] NZHC 642 [29 March 2019]

the basis that the sentencing judge ought to have followed Reweti v R and applied the discount for their early guilty pleas from the sentencing starting point rather than after all other mitigating factors had been taken into account.2 However, in the course of the hearing, all components which gave rise to the end sentence were addressed.

The offending

[3]    At around 7 pm on 15 June 2018, Mr Tahiwi, Mr Peke-Meihana and a young associate carried out a robbery of a student flat in Palmerston North. The flat was known to Mr Peke-Meihana through his friend, who had lived there until the day before the robbery. This friend had been asked by his flatmates to leave due to concerns over missing property.

[4]    The three offenders knocked on the door of the flat and forced their way in when it was answered. They wore bandanas covering their faces and two of them carried metal bars around 30 cm long. At this time four of the five flatmates were at the house. Three of them were in the lounge. These three were threatened, told to lie on the floor and not to look up, and to give the offenders their unlocked cellphones. One of the three flatmates looked up and was kicked in the head. The fourth flatmate had been in his bedroom. He went into the hall to see what was happening. He was pushed up against a wall and threatened with a metal bar. He was then told to lie on the floor like his flatmates.

[5]    The house was then searched by two of the offenders. The third offender was standing guard over the flatmates, but then retrieved a knife from the kitchen and directed one of the flatmates to walk to his room to get more property. In total, two gaming consoles, three cellphones, two televisions, a laptop and a gold watch were stolen. As the offenders left, one of them told the victims they were going to return with a gun.

[6]    When spoken to by the police Mr Peke-Meihana said he did not have a weapon and he stayed in the lounge and watched over the flatmates. Mr Tahiwi admitted to being involved in the robbery and also said he did not have a weapon and his role had

2      Reweti v R [2018] NZHC 809.

been to take the property from the address. The third offender declined to say anything to the police.

The third offender

[7]    The third offender was 16 years old. The Youth Court ordered six months’ custody in a Youth Justice residence, followed by supervision on his release until he turned 18 years old. This sentence was for the aggravated robbery as well as an assault. The assault occurred in the Court foyer and it involved the offender hitting another young man a number of times.3

The appellants’ other offending

[8]    On 26 June 2018 Mr Peke-Meihana took a cellphone from his teacher’s desk when she had left it there during the lunch break. The teacher asked Mr Peke-Meihana if he had taken it, but he denied this even after she had used “Find my Phone” which had identified it as being in close proximity to where Mr Peke-Meihana lived. Around a week later, the phone was returned to the teacher via a courier sent to the school. Mr Peke-Meihana admitted to the police that he had taken the phone.

[9]    At around 1 am on 26 July 2018 Mr Tahiwi entered a property and took a chair from the front porch. When spoken to about this, Mr Tahiwi said he had been drunk at the time and he had taken the chair because there were not enough chairs at his friend’s house where he had been at the time.

The appellants’ personal circumstances

[10]   Mr Peke-Meihana was 17 years old at the time of the offending. He was a first offender, both in the youth and in the adult jurisdiction. He was a school student at the time of the offending. He was removed from the school by his parent to focus on addressing the causes of his offending. He attended counselling with his parents who are supportive of him. He was also undertaking a physical education course at a polytechnic. He hoped to join the Army. He is in a relationship and has recently become a father.

3      Police v RS [2019] NZYC 19.

[11]   The probation officer described Mr Peke-Meihana as being apologetic and understanding of the harm he had caused to the victims. The recommendation was for community detention with supervision.

[12]   Mr Tahiwi was 18 years old at the time of the offending. He was also a first offender, both in the youth and in the adult jurisdiction. He is from a supportive family, which had never been involved in the Court system. Teachers from the schools he attended described him as polite and respectful with academic and sporting ability. He was said to have become involved with a negative group towards the end of his schooling and to have continued his associations with this group when he left school.

[13]   When he left school he worked part-time as a teacher aid at an intermediate school. He continued this work while on bail on the present charges. His career aspiration is to join the Navy. The probation officer described Mr Tahiwi as expressing a high sense of remorse. He was assessed as using alcohol to a moderate degree and cannabis to low degree. He had undertaken counselling to address any substance abuse issues. He and his family were willing to attend a Restorative Justice process and were willing to make a financial contribution towards any medical bills or counselling costs incurred by the victims. The probation officer’s recommendation was for intensive supervision and community work.

Victim impact statements

[14]   Four victim impact statements were filed, three from the four who were present when the robbery took place and one from the person who was not at home at the time. None of them report sustaining any physical injuries. They do, however, describe the lasting emotional effects of the offending on them as well as the financial impacts. They all felt too afraid to live in the flat. They moved out but were still required to pay rent for a number of weeks. The person whose laptop was stolen had her study notes on this device so losing it caused his difficulties. The gold watch had sentimental value.

The District Court sentence

[15]   The Judge adopted a starting point of seven years, relying on the Court of Appeal guideline judgment in R v Mako.4 To this she applied a discount of three years for all the mitigating factors other than the time spent on bail and the guilty plea. She then reduced the sentences by four months for the time spent on restrictive bail. Finally, she reduced the sentences by 25 per cent for the guilty pleas.

[16]   This meant an end sentence of two years and nine months which put the two young men outside the range where home detention could be considered. It is clear that the Judge was concerned that sending the two of them to jail was not necessarily the best course for them. However, she felt R v Mako did not allow her to impose a lesser sentence. This is apparent from her sentencing remarks, which included the following:5

[30]      Your lawyers and your family have urged me not to sentence you both to prison today. The letters and references I have, express very real concerns about the impact of imprisonment on you as young men. There is a genuine concern that as far as rehabilitation and putting you back on the right path is concerned, prison is not the answer. I share those concerns.

[31]      I also heard your parents when they spoke today questioning themselves about what they could have done to prevent this and I say to them, please, do not blame yourselves. There is a real validity to what your mother said, Arama, about us needing to understand and deal better with the very pressures on our young people and to create a system that deals better with offending by young people, especially those who fall outside the Youth Court jurisdiction.

[32]      As you may have gathered by now, the law provides that the only type of sentence of imprisonment that can be changed to home detention is a sentence of two years’ imprisonment or less. To get there, your lawyers are asking me to take the seven-year starting point that in my view is the proper one, based on the Court of Appeal guidance in R v Mako, and reduce it by  75 percent or three-quarters. Sentencing is not a numbers game. It is not a mechanical exercise and I have a certain amount of discretion in what I do, and in how I sentence, but I am bound by the law and by the decisions of our Court of Appeal and by the guidelines that they provide. Regrettably, to do what I am being urged to do, I do not think would be consistent, nor would it be fair. In particular, it would not be fair to other young men and young women, I and my colleagues have sentenced for similar offending. You might remember at the beginning, I said that one of the things I have to do is impose the least restrictive outcome that is appropriate, taking into account other

4      R v Mako [2000] 1 NZLR 170 (CA). No uplift was applied for the other low level offending.

5      R v Peke-Meihana, above n 1.

similar cases. That is what I mean about being consistent, so that everybody feels that they are being dealt with fairly.

[33]      This is what I believe is the extent of what I am able to do today. From that starting point of seven years’ imprisonment, I am going to allow each of you a reduction of three years for all of the personal mitigating factors I have just talked about. There is no daylight between you, in that both of you have so much that is positive in your favour. You are both young. You both lost your way for a period that resulted in this offending.

[34]      This reduces the sentence to four years’ imprisonment. I am also going to allow each of you some credit for the time that you have spent on bail. It has not been as restrictive as some bail conditions. There has not been a 24 hour curfew, but there has been a night-time curfew. You have not always been able to engage in the sort of activities you might have like to. You have not always been able to play your sport. For two fit young men, any sort of confinement or restriction is a difficult thing, and you have both done so well over the last six or seven months complying with your bail conditions. I am going to take four months off the four years for the time you have spent on bail.

[35]      There is no question that you both took immediate responsibility for what you did and entered guilty pleas at an early opportunity. This means you should be allowed a further credit of 25 percent which reduces the end sentence down to two years and nine months’ imprisonment. That is not at a level where I can consider commuting it to home detention, but I will be clear that if it was, I would commute the sentence to home detention for you both. You both have almost ideal environments at which you could serve home detention. You have strong support. While home detention is a difficult sentence, I do not doubt you both have the ability to comply with it.

[17]   The Judge also ordered the appellants each to pay reparation of $1,626.66. I am told this was paid on the day of sentencing.

The approach on appeal

[18]   Section 250 of the Criminal Procedure Act 2011 requires the appeal Court to allow an appeal against sentence if for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed. Whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.6 If the end sentence is within range then the appeal court will not change it, even if the lower court made an error to reach that end sentence.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

Should the Judge have applied Rewiti?

[19]   The appellants submit that the sentence was in error because this was the kind of case where the approach taken by Simon France J in Reweti should have been followed. That is, the 25 per cent discount for the guilty plea should have been applied with the other discounts to the starting point, rather than after the other discounts had been applied.

[20]   Reweti involved an appeal from an end sentence of two years and nine months imprisonment for an aggravated robbery. The aggravated robbery was of a service station in the early hours of the morning. Mr Reweti and his associate had been drinking alcohol. The aggravated robbery occurred when they were returning from Taranaki to Wellington by car. Mr Reweti demanded money and cigarettes. He received a single packet of cigarettes. His companion, armed with a spanner, stole chocolate bars and ice-blocks. Mr Reweti was also being sentenced for an assault with intent to injure and car conversion.

[21]   In the District Court the Judge had adopted a starting point of four years because this was the guideline from R v Mako based on one of the examples given in that case. An uplift of ten months was applied for the other offending. To this a discount of 20 per cent was applied for personal mitigating factors and then 25 per cent was applied for the appeal.

[22]On appeal to the High Court the Judge described Mr Reweti as follows:7

[2]        Mr Reweti fits within a group concerning whom there is considerable present concern. He is a young Māori man, presently aged 18 years, already sentenced to prison. … He is one of a family of 13 who all live at home, and his mother is supportive of him. As noted, the home and the environment were assessed as suitable for a home detention sentence.

[3]        In my view, there is little doubt that a non-custodial sentence would be the best outcome for Mr Reweti and for society. An impediment, however, is s 15A(1)(b) of the Sentencing Act 2002 which limits the standalone sentence of home detention to situations where the person would otherwise receive a sentence of two years’ imprisonment or less.⁸ Unless that is a tenable outcome for Mr Reweti, the sentence is unavailable.

[4]        Mr Reweti has done much to make himself a viable home detention candidate. It is far from being a case of simply relying on him being a youthful

7      Rewiti v R [2018] NZHC 809.

8      A “short-term” sentence is defined as a sentence of two years’ or less imprisonment: Sentencing Act 2002, s 4(1); and Parole Act 2002, s 4(1).

Māori man, far too many of whom are in prison. First, he is remorseful, and genuinely so. He provided a letter to the Court which contained, in my view, genuine rather than learned sentiments, and which pointed to developing insights. That cannot be overstated, but that is primarily because Mr Reweti is 18 years of age and one cannot expect the maturity of an adult.

[5]        Mr Reweti has an interest in cars and attended prior to sentencing an automotive training course. He enjoyed it and did well, and the course seems to have opened his eyes to a different way of going through life than the path on which he was headed. …

[23]   The Judge considered the four year starting point was sufficient to cover both sets of offending and accordingly the ten month uplift should not have been applied. He also considered the discount for youth and rehabilitative progress should have been 30 per cent. With a 25 per cent discount for a guilty plea, this meant an end sentence of 22 or 25 months’ imprisonment depending on whether the guilty plea discount was applied with the 30 per cent discount to the starting point, or only after the 30 per cent discount was deducted.

[24]   Unsurprisingly, the Judge  considered  it  was  not  appropriate  to  decline  Mr Reweti home detention in such circumstances. Noting that the Supreme Court in Hessell did not say that it was mandatory to apply the guilty plea discount only after other discounts had been applied, and that the sentencing Judge “in the end, must stand back and decide whether the outcome of the process followed is the right sentence”, the Judge applied the 25 per cent with the 30 per cent discount to reach an end point of 22 months.9 Home detention was therefore able to be imposed.

[25]In the present appeal, the discounts applied were as follows:

Start point/discounts	Years	Months	(Percentage)	End sentence
Start point	7 years	84 months
Discount for personal factors/youth, lack of previous rehabilitation	3 years	36 months	42.9 per cent (round to 43 per cent)	48 months
Discount for restrictive bail conditions	4 months	4 months	4.8 per cent (round to 5 per cent)	44 months
Hessell guilty plea	11 months	11 months	25 per cent	33 months
End sentence: 2 years, 9 months

[26]   If the 25 per cent discount for the guilty plea is applied with the other discounts, the total discounts are 73 per cent. When applied to the starting point of seven years

9      At [23], citing R v Hessell [2009] NZCA 950, [2010] 1 NZLR 298 at [72]-[77].

(84 months), that results in an end sentence of 23 months (rounded up from

22.7 months). An end sentence of that length would enable a sentence of home detention.

[27]   On this basis, the appellants in this case contend that, like Reweti, the only matter standing in the way of a sentence of home detention being imposed is the court’s approach to whether the guilty plea discount is applied at the same time as the other discounts or at the end. They say that, like the young man in Reweti, they are appropriate candidates for home detention and that sentence will better serve their rehabilitative needs and is in their best interests. In other words, like Reweti, home detention is “the right sentence” for these offenders at their age and stage.

[28]   In my view, it is not appropriate in this case to apply the 25 per cent discount along with the other discounts to the starting point in this case. This is because it equates to a 21 month reduction from the starting point for the guilty plea, rather than 11 months when the guilty plea discount is applied conventionally after other discounts have been applied. This is not a marginal difference, as it was in Reweti where the Judge exercised his sentencing discretion to achieve the right outcome for the offender in all the circumstances.

[29]   The Judge’s approach to the guilty plea in this case was orthodox. I consider that, if home detention is an available sentence for the appellants, it is for reasons other than any error by the Judge in when she applied the guilty plea discount. That was the view I indicated to counsel at the hearing and this indication led to submissions on the other components of the sentence.

The starting point and other discounts

[30]   In considering a seven year starting point was necessary, it is apparent that the Judge relied on the following passage from R v Mako:10

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are

10 While the Crimes (Home Invasion) Amendment Act 1999 has been repealed, in Hemopo v R  [2016] NZCA 242 at [14]-[15] the Court of Appeal confirmed the guidance continued to be appropriate and the degree of violence involved would be relevant to how much more than seven years the starting point should be.

brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions [in the Crimes (Home Invasion) Amendment Act 1999] to around 10 years.

[31]   Counsel for the appellants submitted in the District Court that the case was not on all fours with this example. This is because the group enterprise was not a targeted raid for drugs, money or other property. Rather, it involved young men playing at gangsters in support of their friend who had been asked to leave the flat, without quite the same pre-meditated intentions as the kind of aggravated robbery in the example. While property was taken, it was incidental to their core purpose of retaliatory action to support their friend. Counsel maintained this submission on appeal. There is merit in it.

[32]   The Court of Appeal in Mako emphasised that the examples it gave, which included the one quoted above, were just that, saying:11

[60] The illustrations given are intended for guidance and should minimise the need to trawl through large numbers of previous sentencing decisions seeking those in which the offending appears similar. The indicated starting points should be used flexibly. Where any particular feature or combination of features has some unusual character they should be adjusted to reflect that. It is for the sentencer to assess the seriousness of the offending and then to select a starting point. That can be related to the examples given. They are not intended to prescribe the starting point for any case but are to inform the assessment the sentencer is required to make.

[33]   The Court of Appeal discussed the various aggravating features that can arise in an aggravated robbery and their wide variability. It emphasised that it was the particular combination of these variable features which required assessment and said:12

… the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgment calling for the careful exercise of the sentencing discretion….

[34]   In this case, the offending involved a home invasion. However, relative to all home invasions, it was at the lower end of seriousness. It was not carried out in the middle of the night when the robbery would have awoken the occupants from their

11     R v Mako, above n 4.

12     At [34]-[35].

sleep. The occupants were not elderly or otherwise especially vulnerable. They were of a similar age to, and probably a little older than, the offenders. The occupants out- numbered the offenders. The offenders had weapons, but they were make shift and not, for example, likely to be as frightening as firearms. While threats were made and one of the occupants was kicked in the head, the level of violence was low as demonstrated by there being no suggestion of any physical injury arising from it. The value of the property taken was at the low end (accepting the property was important and valuable to the victims) and monetary gain does not appear to have been the motive for the offending. There was no prolonged detention of the occupants.

[35]   When these matters are looked at in combination, the seven year starting point was high. It can be compared with, for example, the starting point of six or more years for a robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation (one of the other examples provided in Mako).13 The home invasion aspect of the present case (given it is at the lower end of seriousness for cases of this type) balances out the use of a lethal weapon with the associated danger to anyone present, the planning, and the targeting for gain involved in this example. It is also too high relative to some case examples.14

[36]   The error in the approach taken by the District Court Judge was to consider she could not take a starting point of less than seven years imprisonment because she was bound by Mako. In fact, consistent with Mako, an assessment of the features of this offending enabled her to do so. A starting point of five to six years would have been well within the range available to the Judge if that assessment had been made.

[37]   The Judge allowed a discount of just under 43 per cent for a range of personal mitigating factors: youth, good prospects, genuine remorse, and the offer to pay reparation. Like the starting point assessment, the appropriate discount is very much circumstances dependent. There is no upper limit to the discount for youth.15

13 At [54].

14 See, for example, Reid v R [2017] NZCA 451 where a four year starting point was affirmed as within range for relatively similar offending. Compare with Jadallah v R [2018] NZCA 536 and R v Wharepapa [2009] NZCA 544 which concerned more serious offending than the present case and for which a seven year starting point was taken.

15 Churchward v R [2011] NZCA 531.

[38]   The appellants were just outside of the Youth Court jurisdiction. One of them was still at school. Had they committed the same offence a year or so earlier they would not have received a sentence of imprisonment. They were first offenders.16 The offending was impulsive – it involved the kind of poor thinking and failure to take into account the consequences not uncommon in males of this age group. The rehabilitative prospects for these appellants is high. The real remorse accepted as present by the Judge and the payment of reparation underlined this. These factors required real weight. At the appellants’ age and stage, a rehabilitative sentence, over a punitive custodial one, was the right outcome.

[39]   In these circumstances I consider there is room to round this discount up to 45 per cent. In doing so I note that this discount covers not only youth, remorse and rehabilitation prospects, but also payment of reparation for which a sizeable discount is available.17

[40]   Taking a starting point of five years and six months’ imprisonment and applying a 45 per cent discount gives a sentence of three years’ imprisonment. Reducing that by the four months the Judge allowed for time spent on bail gives a sentence of 32 months’ imprisonment. Applying the guilty plea discount of 25 per cent means an end sentence of two years. This means that home detention is available.

[41]   I therefore consider the sentence imposed in the District Court on each of the appellants should be quashed. They are substituted with 12 months’ home detention with conditions. I did not receive submissions as to the conditions which should apply to a sentence of home detention. I ask counsel to confer and to submit to the Court as soon as possible the proposed conditions of the home detention sentence for each appellant. I will then consider those proposed conditions.

16  As first offenders they were not the type of offenders discussed in Mako at [65], offenders who had accumulated considerable lists of convictions, who could not expect leniency.

17 Sentencing Act, s 10. See for example, R v M [2008] NZCA 112 (“[t]here can be no tariff of sentence reduction on account of such payment”); Bullen v R [2017] NZCA 517 (five to 10 per cent); Rose v R [2017] NZCA 335 (approximately seven per cent); Nathan v R [2018] NZHC 3111 (15 per cent); Gould v R [2012] NZCA 284 (five per cent); Johnson v R [2010] NZCA 168 (five plus per cent); Burke v Police HC Tauranga CRI-2006-470-32, 16 November 2006 (15 per cent); and Warne v R [2007] NZCA 353 (10 per cent but more available).

Result

[42]   The appeals are allowed. The sentence imposed in the District Court on each of the appellants is quashed. It is substituted with 12 months’ home detention with conditions to be finalised once I have received a joint memorandum of counsel about them. The sentence of home detention in substitution of the prison sentence imposed is to take effect once the conditions have been finalised and the arrangements for home detention can be put in place. In the meantime, bail continues on its current conditions.

Mallon J