Police v Tehei

[2013] NZHC 2236

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-463-34 [2013] NZHC 2236

BETWEEN  NEW ZEALAND POLICE Appellant

ANDWESLEY MARAURAU TEHEI Respondent

Hearing:                   27 June 2013 (Heard at Rotorua)

Appearances:           S A Christensen for the Appellant

G Tomlinson for the Respondent

Judgment:                31 July 2013

Reasons:                  3 September 2013

REASONS FOR JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 3 September 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms S A Christensen, Ronayne Hollister-Jones and Lellman, Office of Crown Solicitor, Tauranga

Mr G Tomlinson, Gowing & Co. Ltd, Solicitors, Whakatane

POLICE v TEHEI [2013] NZHC 2236 [3 September 2013]

[1]      This  is  a  Solicitor-General’s  appeal  against  sentences  imposed  on  the respondent for aggravated robbery and three less serious offences.1    By judgment dated 31 July 2013 I dismissed the appeal with the reasons to follow.2   These are the reasons.

Outline

[2]      The robbery occurred in Whakatane in October 2009.  The respondent’s first

appearance was on 4 November 2009 when he was remanded on bail without plea to

16 December 2009.  He did not attend Court on 16 December and a warrant to arrest was issued.   He was not arrested until January 2013.   By then the appellant had turned his life around from what it had been, in terms of criminal behaviour, when the robbery was committed.  The Judge took a starting point of 4 years 9 months for the robbery.  With reductions for various matters I will come to, but in particular the steps the respondent had taken to turn his life around, the Judge arrived at an end sentence for the robbery of 12 months home detention, 200 hours community work and reparation of $775.26.   For two offences committed in October 2009 of male assaults female the respondent was sentenced to 150 hours community work on each charge concurrent with the preceding community work sentence.  For the breach of bail in December 2009 the respondent was sentenced to 200 hours community work cumulative on the robbery sentence of community work.

[3]      The grounds of appeal recorded in Ms Christensen’s submissions are:

(a)       The  end  sentence  of  12  months  home  detention,  400  hours community work and an order to pay $775.26 in reparation was manifestly inadequate to reflect the totality of the offending;

(b)       The  sentencing  approach  was  wrong  in  principle,  permitting  an overly generous and undefined level of credit for mitigating factors;

(c)       In combination, the above two factors suggest an artificial tailoring of the sentence to result in an end sentence of 2 years to enable a sentence of home detention to be imposed, which approach would be wrong in principle.

1      Police v Tehei DC Whakatane CRI-2009-087-002172, 5 April 2013.

2      Police v Tehei [2013] NZHC 1917.

The offences

[4]      The offences that were first in time were the two offences of male assaults female.   Both occurred on 7 October 2009 in Kawerau.   The respondent and the victim had been in a relationship for 18 months and had a 9 month old child.  In the course of an argument the respondent punched his partner three times in the head. She ran from the house and returned about two hours later.   There was a further argument about their relationship.  The respondent head-butted his partner once in the forehead.  When she fell the respondent told her to get up and then punched her in the neck when she did not get up.   The respondent claimed that the head-butt occurred after he had been slapped and punched by his partner.

[5]      The respondent appeared on these charges in the Whakatane District Court on

15 October 2009 when he was remanded on bail.

[6]      The aggravated robbery occurred on 24 October 2009 when the respondent was on bail.   It was committed with two brothers, Joseph Stewart, also known as Joseph Pukeroa, and Alex Pukeroa.   The respondent was aged 22, Joseph Stewart was 23, and Alex Pukeroa was 20.   Joseph Stewart and the respondent entered a dairy.  Alex Pukeroa stayed in a car in the driver’s seat.  Joseph Stewart was armed with a machete and the respondent was also armed with a machete or a spanner.  The dairy owner was confronted by Joseph Stewart, who took the lead role.  The owner managed to flee to a room at the back of the shop where he was able to lock himself in with his family.   The respondent and Joseph Stewart then took a quantity of tobacco and cigarettes and drove off in the car with Alex Pukeroa.

[7]      There were no physical injuries to the shop owner but he was very frightened for himself and his family.  There was no damage to the shop or any other property. The cigarettes and tobacco were worth $825.80.

[8]      The respondent  handed  himself  in  to  Police  when  he  heard  Police  were looking for him. The Police summary of facts records:

He was co-operative and admitted his involvement in this offence.  He said that he went into the dairy disguised and armed with a spanner to back him up if he got hit.

In explanation for his actions he said that his bro was stressed out and that he was also going through some rough times with his partner and was in the wrong frame of mind at the time.  He repeatedly said he was very sorry to the shop keeper for what he had done as he could see his pain and fear as they robbed him.

[9]      On his first appearance on the robbery charge on 4 November 2009  the respondent was remanded on bail without plea to appear again in the Whakatane Court on 16 December 2009.  He was bailed to an address in Auckland.  His failure to appear on 16 December 2009 resulted in the third charge of breach of bail.  The explanation for the failure to appear was that he did not have the means of travelling from Auckland to Whakatane.   There is no suggestion that he made any effort to contact Police in Auckland.  On the other hand, there is no indication in any of the information I have seen that he was not living at the address in Auckland to which he had been bailed.  The latter point is not made to excuse the respondent in some way. What it does tend to confirm is the submission made by Mr Tomlinson on sentencing that the respondent just kept his head down.

Personal circumstances

[10]     At the date of the robbery the respondent, at the age of 22, had 29 previous convictions.  There was a conviction for injuring with intent on 8 June 2005 which resulted in a sentence of imprisonment for 1 year.   On the same date there was a sentence for an assault which had occurred two days earlier resulting in a concurrent sentence of 6 months imprisonment.  There were 11 convictions for various driving offences, including five committed in September and October 2008 resulting in a sentence of 6 months imprisonment imposed in January 2009.  There had been three burglaries  and  three  other  less  serious  property  offences.     There  were  four convictions for failure to answer District Court bail, one for breach of a community work sentence and three other minor offences.

[11]     The respondent was arrested in January 2013.  His initial appearance was in the Manukau Court on 21 January 2013 with a transfer to the Whakatane Court.  On his appearance in the Whakatane Court on 30 January 2013 he pleaded guilty to the robbery charge.  He pleaded guilty to the breach of bail on the sentencing date of 5

April 2013.   The information available to me does not indicate when he pleaded guilty to the two assault charges.

[12]     No further offences were committed by the respondent between the breach of bail on 16 December 2009 and his arrest in January 2013.   The circumstances leading to his arrest are also not in the information provided to me.  There was no submission for the appellant of anything untoward in this regard, and no statement by the Judge attaching any significance to the circumstances of the arrest.  For the appellant Ms Christensen accepted that the evidence is that the respondent has fully rehabilitated himself since 2009.

The District Court sentence

[13]     Judge P S Rollo, who sentenced the respondent  in April 2013, had also sentenced his co-offenders in the robbery in March 2010.   The starting point for Joseph Stewart was 5 years imprisonment.   The Judge concluded that he was the initiator of the robbery and the ringleader in carrying it out.  The end sentence was 3 years imprisonment, an existing community work sentence was cancelled, and he was ordered to pay reparation of $775.26.  The starting point for Alex Pukeroa, the younger brother and person who took a lesser role, was 4 years 6 months.   With various discounts the starting point was brought down to 2 years imprisonment; that is, a reduction totalling 55.6%.  The end sentence was 10 months home detention,

200 hours community work and an order to pay reparation of $775.26.

[14]     The Judge commented that the respondent’s case presented “something of a conundrum”.   His subsequent comments make clear that this was directed to the need to have regard to consistency in sentencing, but also to have regard to the respondent’s personal circumstances and, in particular, the extent to which the respondent had reformed.  It is clear that the Judge gave considerable thought to the proper way to approach the sentence.   Having regard to the submissions for the appellant it is appropriate on this appeal to reproduce the most relevant part of the Judge’s sentencing comments.

[8]       A complicating factor in your sentencing today, Mr Tehei, is that whilst you have been in breach of your bail, that is you did not attend Court on  or  after  16  December  2090,  I  am  told  because  you  were  living  in

Auckland and did not have the means to come to Court, but you have just kept your head down to use Mr Tomlinson’s words, you have substantially rehabilitated yourself, not only through your own efforts but through the involvement and encouragement of your partner who seems to have been a very beneficial person in your life.

[9]       Mr Tomlinson’s submission is that whilst you should not escape the consequences of your failing to answer your bail, the reality is that your circumstances now are such that you are quite a different man to that who committed this aggravated robbery back on 24 October 2009, some three and a  half  years  ago.     He  submits  that  when  a  fair  assessment  of  the circumstances including where you are at now is taken into account, you should be treated more like Mr Pukeroa with home detention rather than Mr Stewart with a sentence of imprisonment.

[10]      In that regard, Mr Tomlinson perhaps strains the available discounts that the Courts would recognise in your instance emphasising your victim empathy.  You have acknowledged that at an early stage and certainly in the pre-sentence report, your rehabilitation, your greater maturity and the fact that you [have] not reoffended over the period since you appeared on these charges. Those are all valid points to make at a certain level.

[11]     The dilemma of course is how to recognise that situation whilst dealing with you in a way which is fair compared to your co-offenders.  The reality is that the purpose of sentencing is in part to punish people for unlawful actions, but it is also to deter them from criminal offending particularly of that type, … in a general sense also, but also it has a purpose of rehabilitating the person so they become more useful members of the community, not a burden on it but a complement to it.

[12]      On the facts of this case, Mr Tehei, through dint of circumstance and the relationship it would seem you have been in and your greater maturity, you have achieved that latter objective yourself.

[13]      When I step back and look at what I consider the justice of this case to be, the starting point is clearly one of imprisonment.  Your starting point should be either equivalent to Mr Stewart’s or very close to it, perhaps four years, nine months.  You are entitled to a discount for the admissions you made, you presented yourself to police as I have said, you acknowledged what you had done and the mistake that you had made. You were remorseful at a very early stage for your actions and express some victim empathy.  You have cemented that by the comments you have made to the pre-sentence report writer.

[14]     You were 22 years of age at that time.   You have a number of previous convictions and have served sentences of imprisonment previously for your offending.  Therefore the turnaround in your behaviour since this offending is perhaps the more remarkable and worthy of recognition.

[15]      The practicality of it is that this sentencing needs to impose  an adequate penalty on you for what you have done but it should also recognise the steps which you have made to rehabilitate yourself.  What I look at it in those simple terms, I am satisfied that the sentence I now impose adequately meets the necessary sentencing objectives of your accountability, responsibility for your actions, deterrence and denunciation, interests of the

victim but also the least restrictive outcome as the circumstances of the case now are.

[15]     The sentence earlier outlined was then imposed.

Discussion

[16]     Some of the submissions for the appellant are either contrary to, or not easily reconciled with, well established principles relating to the approach of an appellate court to an appeal against sentence.  Most of the principles have been worked out on appeals by defendants, but they apply with at least equal force to a Solicitor- General’s appeal.  It is appropriate to set out relevant principles in some detail.

[17]     An appellate court should not interfere with a sentence unless the sentence is manifestly excessive or wrong in principle.3   The appellate court should not simply substitute its opinion for that of the sentencing Judge.4     Whether a sentence is manifestly excessive is to be considered by reference to the end sentence imposed, rather than the process by which the sentence was reached.5   As the Court of Appeal observed in R v Shipton:6

The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an ‘error principle’.

Reference may also be made to Yorston v Police.7

[18]     When  a  sentence  of  home  detention  is  available  under  s 15A  of  the Sentencing Act 2002 and the sentencing Judge decides to impose a sentence of home detention rather than imprisonment, the Judge is exercising a discretion. The Court of Appeal has made plain that the sentencing Judge’s exercise of this discretion is not

lightly to be interfered with on appeal.  In R v D the Court of Appeal said:8

3      R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

4      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

5      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

6      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

7      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].

8      R v D [2008] NZCA 254 at [66].

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending. The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other. In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular  Judge  sees,  the  more  likely  it  is  that  the  chosen  sentencing response will be appropriate.

[19]     This was restated by the Court of Appeal in R v James as follows:9

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? [Counsel] 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.

[20]     A primary submission for the appellant was that the Judge did not follow the normal  sentencing  methodology as  summarised  by the  Court  of Appeal  in  R  v Clifford.10    That is to say: first, assess the gravity of the offending, which includes any mitigating or aggravating factors relating to the offence; second, make allowance for personal aggravating and mitigating factors, including remorse; third, assess any discount for a guilty plea.  There were some further submissions for the appellant on

specific aspects of the process, but the short answer to the main submission, as Ms Christensen   acknowledged,   is   that   apparent   errors   in   the   process   are   not determinative of the question on appeal.

[21]     In relation to the process, Ms Christensen took no issue with the starting point of 4 years 9 months.  But she submitted that the Judge then erred by failing to

articulate any increase for personal aggravating factors.  It is correct that the Judge

9      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

10     R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60]. As the Court noted at [60] this is a summary of “the guidance given in R v Taueki [2005] 3 NZLR 372, in the light of the Court of Appeal’s judgment in R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298 and the correction of that judgment by the Supreme Court in Hessell v R [2010] NZSC 135, [2010] 1 NZLR 607”.

did  not  itemise  uplifts,  but  it  is  clear  that  the  Judge  had  regard  to  personal aggravating factors that were present at the time of the offending.

[22]     Ms Christensen submitted that the total discounts equated to 57% and that this was “overly generous and led to an end sentence which was manifestly inadequate”.  This involves two questions – the appropriateness of the total discount and an assessment of the adequacy of the end sentence.  As to the discount I am not persuaded that there was any appealable error by the Judge.  For reasons that follow, it was well within the Judge’s sentencing discretion to allow a significant discount for the steps the respondent had demonstrably taken to turn his life around and further discounts for other matters.  Sentencing Judges will often and quite properly allow a reasonably substantial discount for positive factors such as rehabilitation based on a limited amount of information at the date of sentencing coupled with a forward looking assessment.   In this case, by dint of circumstances, as the Judge said, there was concrete evidence of substantial reform.  In addition, there were the mitigating factors present when the respondent was arrested, which were also noted by the Judge. And there were the guilty pleas.

[23]     The second question concerns the end sentence.  There was a further direct submission that the end sentence was out of line with similar sentences.  In general it is unhelpful to compare end sentences. The best indicator, in terms of parity between co-offenders, or consistency more generally, is the starting point and no issue arises in that regard in this case.   In any event, to the extent that comparisons of end sentences can be made, this end sentence is not out of line.  It is broadly consistent with  the  end  sentence  for  the  younger  co-offender, Alex  Pukeroa.    There  were personal mitigating factors available to Alex Pukeroa that were not available to the respondent,  such  as  the  former’s  lack  of  previous  convictions.    However, Alex Pukeroa could not point to the mitigating factor which, in the end, is pivotal for the respondent’s sentence – the reality of his reform and demonstrated over a period of some 3 years.

[24]     The end sentence in this case, with home detention for an aggravated robbery, may also be seen to be broadly consistent with the end sentences for some others

convicted of aggravated robbery and also consistent with significant discounts for personal factors in cases of aggravated robbery.

[25]     In  Burke  v  Police11   the  offence  was  significantly  more  serious  than  the offence in this case in terms of aggravating features.  The offenders targeted a petrol station.   The attendant had locked the doors but one offender had brought a glass cracker from work in order to force entry.   A second offender brandished a steak knife at the attendant and demanded money and cigarettes.  On appeal the sentencing Judge’s starting point of 5 years to 5 ½ years imprisonment was fixed at 5 years. Reductions allowed by the sentencing Judge totalling 2 years 3 months (based on a starting point of 5 years) were increased on appeal to a total of 3 years (60%).  That reduced a prison sentence to 2  years and leave  was granted to apply for home detention.

[26]     In R v Hall12 the appellant and an associate robbed a video store with a knife. The appellant had no previous convictions and was 18 at the time of the offending but did not plead guilty.  The District Court Judge adopted a starting point of 4 years and  reduced  this  by 21  months  for  the  offender’s  age,  reparation,  prospects  of rehabilitation and remorse.   The Court of Appeal commented that the reductions were  appropriate,  although  remorse  would  have  been  better  expressed  by  the offender through a guilty plea.  The Court further commented that, despite imposing an end sentence of 2 years 3 months imprisonment, the Judge could have considered home detention.   This is important in relation to the present appeal because it emphasises that sentencing is not simply a mechanical process. The Court said:

[15]     Clearly the Judge wished to impose home detention and he would have done so if he thought he could. Had he done so, the sentencing outcome would have been lenient but nonetheless legitimately within his discretion. Given the youth of the appellant, his previous good record and prospects of rehabilitation, and the fact that the offending was at the lower end of the scale for aggravated robberies, a sentence of home detention would have been proper. It fell within the sort of situation where social and individual benefits available from such a sentence made it proper.

[16]      We  think  in  this  case  the  seriousness  of  the  offending  does  not exclude  home  detention  in  favour  of  the  more  punitive  prison  regime. Factors  such  as  the  appellant’s  age,  personal  circumstances,  absence  of

11     Burke v Police HC Tauranga CRI-2006-470-32, 16 November 2006.

12     R v Hall [2008] NZCA 207.

previous convictions, motivation to address rehabilitation and a low risk of reoffending are all such that it is in society’s interests, as well as his, that he be given the chance, there being reasons for optimism about his future. The Judge clearly felt this.

[27]     Ms Christensen further submitted that the Judge’s approach was contrary to

observations of the Court of Appeal in Rogers v R:13

[22]      … It would be entirely wrong to give credence to the notion that an offender, by absconding, can avoid the essential step of serving   a   sentence   which   is   appropriate   for   the   offending, particularly when the absconding involves the commission of further serious offending (in this case passport fraud).

[23]      Recognising that there is scope for a reasonable difference of opinion on how to treat the reformed absconder, we have concluded that the appropriate approach is broadly what was taken by the Judge here:

(a)      To set a starting point sentence referable to the offending as a whole including that associated with the absconding.

(b)       To  equate  the  appellant’s  subsequent  exemplary  life  and

voluntary surrender with a reasonably prompt plea of guilty.

[28]     I do not agree that there was any error of principle by the Judge arising from the observations in Rogers.  In relation to [22] in Rogers, the sentence imposed in this case, for reasons already discussed and for further reasons to be noted shortly, does not result in the respondent avoiding a sentence which is appropriate for his offending because the overall sentence has to be assessed by reference to factors personal to the offender as well as the facts of the offence. As to [23] in Rogers, I do not read the Court’s observations as intended to prescribe an approach to be adopted

in all cases.14   This is made sufficiently clear by the first part of the opening sentence

in [23]. In addition, the facts of this case, in relation to the appellant’s breach of bail, are markedly different from the facts in Rogers, with the latter involving the defendant fleeing New Zealand and committing further offences in the process.  The observations in [23] also indicate that the Court was there concerned primarily with the question whether the particular sentence under appeal had been appropriately

assessed.

13     Rogers v R [2010] NZCA 48, (2010) 24 CRNZ 809 at [22]-[23].

14     Compare Dillon v Police [2012] NZHC 2956 at [18]; R v Millington HC Auckland CRI-2010-

004-452, 20 August 2010 at [19].

[29]     Ms   Christensen   further   submitted   that,   because   the   Judge   had   not “methodically” followed the usual sentencing approach it is difficult to assess how the  end  sentence  was  achieved.     She  submitted  that  the  process  was  not “transparent”.   This submission again involves undue emphasis on process.   It is clear enough as to how the Judge arrived at the end sentence.  It is not necessary to undertake a purely mechanical exercise, identifying every item taken into account, and attaching to each item the extent to which it would increase or decrease a starting point in months, or years, or percentages.

[30]    The submissions for the appellant already referred to founded a further submission  that  there appeared  to  be “an  artificial  tailoring to  result  in  an  end sentence of home detention”.  It was submitted that it would be wrong in principle for a sentencing Court to commence with home detention as being the appropriate outcome.  In terms of principle, as opposed to the approach by the sentencing Judge

in this case, there is Court of Appeal support for these submissions.15   However, I am

not persuaded that there was any appealable error by the Judge.  I am not persuaded that he started from a fixed position that home detention should be the outcome and then artificially produced that result. That would be an impermissible fettering of the sentencing discretion, just as it would be an impermissible fettering of the sentencing discretion to start from the fixed position that aggravated robbery, or any other

offence, should result in imprisonment.16     But that is different from starting the

assessment of a sentence on the basis that a particular type of sentence may be appropriate.

[31]     These considerations come back to the point already made – sentencing may require a good deal more than fixing a starting point, assisted where available by a Court of Appeal tariff case, and then simply increasing or decreasing that starting point by reference to relevant factors.   Broad evaluative judgments as to the appropriate type of sentence may also be necessary.  One consideration in this case

of central importance is that a sentence of imprisonment could easily have undone

15     See R v  Vhavha [2009] NZCA 588 at [29]-[37] (per William Young P). The President’s comments were made in a dissenting judgment, but those comments have been affirmed and followed by the Court of Appeal. See Osman v R [2010] NZCA 199 at [20]-[21]; Doolan v R [2011] NZCA 542 at [37]-[38]; Manikpersadh v R [2011] NZCA 452 at [10]; ZZ v R [2011] NZCA 662 at [32]-[36].

16     R v Vhavha, above n 15.

everything that had been achieved by this reasonably young man who, 3  years earlier, was heading rapidly downhill in terms of the increasing seriousness of his offending.  The Judge was fully justified in concluding that it would be contrary to the interests of the community as a whole, quite apart from the respondent’s own interests, to send the respondent to jail.  This did not mean that the punitive elements of sentencing were ignored.   The end sentence for the aggravated robbery of 12 months home detention and 200 hours community work and reparation is a severe sentence in itself.   Sentencing purposes of denunciation, deterrence and holding a defendant accountable in cases of relatively serious crime can be met in suitable cases with sentences of home detention.  What is likely in most such cases to tip the balance in favour of home detention is the assessment of other purposes and principles of sentencing and, in particular, those relating to the individual offender. But, of course, mitigating factors relating to the offender may also bear upon the assessment of the extent to which denunciation, deterrence and holding to account are required for the individual offender.

[32]     For these reasons I am satisfied that the sentences imposed in this case were not manifestly inadequate or otherwise wrong.

Woodhouse J