Police v Tiatia HC Auckland CRI 2010-404-304

[2011] NZHC 985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-304

CRI 2010-404-305

NEW ZEALAND POLICE

Appellant

v

HENDRICK TIATIA

Respondent

Hearing:         28 February 2011

Appearances: G Kayes for Appellant

M Mortimer for Respondent

Judgment:      8 April 2011 at 2:15 PM

JUDGMENT OF WHITE J

This judgment was delivered by me on 8 April 2011 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………….

Counsel:            M Mortimer, PO Box 210 Shortland Street, Auckland 1140

Solicitors:           Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

NZ POLICE V TIATIA HC AK CRI 2010-404-304 8 April 2011

Introduction

[1]      This is an appeal by the Police, with the consent of the Solicitor-General, against a sentence of 18 months’ intensive supervision and 200 hours’ community work imposed on Mr Tiatia in the District Court at Auckland on 29 July 2010 in respect of the following charges:

(a)      injuring with intent to injure under s 189(2) of the Crimes Act 1961, for which the maximum penalty is five years’ imprisonment;

(b)shoplifting  under  s  227  of  the  Crimes  Act  1961,  for  which  the maximum penalty is three months’ imprisonment;

(c)      behaving  threateningly  (x  2)  under  s  21(1)(a)  of  the  Summary Offences Act 1981 for which the maximum penalty is three months’ imprisonment or a $2,000 fine; and

(d)      fighting in a public place under s 7 of the Summary Offences Act

1981, for which the maximum penalty is a $1,000 fine.

[2]      The appeal, brought under s 115A of the Summary Proceedings Act 1957, is on the grounds that the sentence imposed was ―manifestly inadequate‖ in terms of s 121(3)(b) of that Act.

Background facts

[3]      The factual background to the five charges, set out below in chronological sequence, is not in dispute.

Shoplifting

[4]      At 1.00 pm on 1 September 2008 Mr Tiatia went shopping with his partner and child at Foodtown at 72 Church Street, Onehunga.   He uplifted a packet of chicken pieces and a packet of lamb chops which he concealed down the front of his trousers.  He then accompanied his partner through the checkout and attempted to

leave the store making no effort to pay for the items.  The packets of meat were the property of Foodtown and were valued at $26.20.  They were able to be returned to the shelves for resale.

Behaving threateningly

[5]      Mr Tiatia  was  detected  by store  security and  willingly  accompanied  the security guard to an upstairs office.  While Mr Tiatia was speaking with the security guard, he became increasingly aggressive.  Fearing for his safety, the security guard left the office and waited for the Police to arrive.   Following his arrest, Mr Tiatia admitted stealing the meat.   In explanation for the threats to the security guard he stated that he believed he was going to be beaten up.

Injuring with intent to injure

[6]      At 2.40 pm on 21 February 2009 Mr Tiatia was with his partner at the premises  of  Metal Trading  Limited  at  1/13  Industry Road,  Penrose.    Mr Tiatia approached the victim who at the time was unloading scrap metal from his vehicle. A verbal altercation ensued between Mr Tiatia and the victim about prior threats made against the victim’s partner.   The verbal altercation resulted in pushing and shoving.   Mr Tiatia picked up a metal bar from a nearby pile of scrap metal and struck the victim twice with the bar.  One of the blows was directed at the victim’s forehead which was hit by a metal protrusion on the bar.  As a result, the victim’s forehead was split open and blood flowed freely.  Mr Tiatia then struck the victim on the left shoulder area causing bruising and swelling.  Mr Tiatia left the scrap yard in his vehicle while the victim obtained medical assistance.   The victim suffered a compound fracture of the right frontal sinus (skull), a four centimetre long gash to the  forehead  requiring  nine  stitches  and  bruising  to  the  left  upper  arm  area. Mr Tiatia declined to provide a statement to the Police.

Fighting in a public place

[7]      At 3.30 pm on 15 September 2009 Mr Tiatia was outside 18 Hull Place, Onehunga.   Also  at  the  address  was  the  victim  in  this  matter.    Mr Tiatia  and

neighbours on the street became involved in a verbal argument.  Mr Tiatia and some of the neighbours began to fight physically and Mr Tiatia punched the victim in the lip, causing it to bleed and swell.

Behaving threateningly

[8]      Mr Tiatia then made his way to his home address at 5 Hull Place.  He went inside and retrieved a baseball bat and then returned to the front garden where he began banging the baseball bat on the fence and shouting abuse at the people he had fought with.  Mr Tiatia then went into his house where he was located by the Police. He admitted being in a fight with the neighbours and punching the victim in the mouth,  stating  that  he  pushed  the  victim  away  as  he  was  defending  himself. Mr Tiatia also admitted retrieving the baseball bat and returning to the front of the property where he banged the fence with the bat at the neighbours.

District Court sentencing decision

[9]      Mr Tiatia appeared in the District Court at Auckland on 29 July 2010 for sentence on the five charges to which he had pleaded guilty.  He also appeared for sentence on three other charges, namely:

(a)      breach of conditions of community work (x 2) under s 71(1)(a) of the Sentencing  Act  2002,  for  which  the  maximum  penalty  is  three months’ imprisonment or a $1,000 fine; and

(b)breach of bail under s 37(a) of the Bail Act 2000, for which the maximum penalty is one year’s imprisonment or a $2,000 fine.

[10]     The reasons for the sentences imposed in the District Court are set out in the sentencing notes of District Court Judge P A Cunningham.  After summarising the background facts, the District Court Judge continued:

[7]       I refer to the lead charge of injuring with intent to injure, and my first task is to establish a starting point.  In my view, the aggravating features are the fact that there was violence, which is obviously implicit in the charge for the use of a weapon.  I accept it was not brought to the site, and in that

sense, it was not premeditated, but there were strikes to the head, the most dangerous place to hit someone, and clearly, this man has suffered what appear to be long lasting effects from what occurred.

[8]       I have considered the three bands set down by the Court of Appeal for this kind of injury in R v Harris [2008] NZCA 528, CA 497-2008, William Young P, Ronald Young & Fogarty JJ, at paragraph 10. I agree that this falls within Band 3. It is a serious injury. The band there is 18 months to five years imprisonment.

[9]       The Crown have also supplied me with the case of R v Tait, an appeal to the High Court of Rotorua on 26 August 2008, where a starting point of four and a half years had been adopted, for strikes to the head with a golf club.   I consider this less serious than the Tait decision, where there were more acts of very serious violence.

[10]     I adopt the starting point of three years.  To that, I would give an uplift of six months, partly because the lead charge was offending while you were already on bail for other violent charges, and also because you have an appalling history of previous violent offending.   There are numerous convictions for assault, serious sexual offending, although it goes back some

17 years, and of course, many of these other offences which you appear for sentence on today, also involve violence or the threat of violence.   From

there, some discounts are appropriate.

[11]      Mr Tiatia has been on a 24 hour curfew for almost a year.  All I can say is that it has worked, because there has not been any offending during that time.  It is possible for a Judge to give a discount when a person has been on electronic bail.  It seems to me that a discount is appropriate here as well,  because  there  is  really  very  little  difference  between  e-bail  and  a

24 hour curfew,  in terms of  a person’s confinement in their  own home. Neither counsel is able to provide me with any relevant cases, except that Ms Mills said that she was of the view that that is something the Parole Board took into  account  when  looking at  parole.    I do  not  see  any reason in principle, why I should not apply a discount for the fact that he has been on a

24 hour curfew for almost a year.  I would apply a discount of six months.

[12]      That brings me to a discount for a guilty plea. Again I would allow a full one third, the reason for that being, that he was originally charged with a more serious violent offence, and although it took some months (I think about 10) before a guilty plea was entered, he did enter it at the time that a plea was negotiated down, and this offence would have occurred prior to R v Hessell [2009] NZCA 450, where guidance to counsel and defendants on guilty pleas was given. So that would bring him down to a sentence of around two years.

[13]      No appendix has been prepared, so I cannot impose home detention. [14]      What the pre-sentence report suggests is intensive supervision and

community work.  Normally I would have no hesitation in a case like this, of

sentencing someone to imprisonment.  That was a very nasty incident.  You could have killed that man.  However, the pre-sentence report gives me some real  hope  that  you  are  starting  to  tread  a  different  path,  Mr Tiatia.    It describes something that comes as no surprise, namely that you suffered at the  hands  of  your  father  in  terms  of  violence,  as  a  child.    You  have

perpetrated that violence on other people, including on your own family, your wife, and at least one child.   You have just completed a sentence of supervision.   The person who wrote the report has been your probation officer who speaks  of how well  you  have  been  doing both in terms  of addressing substance abuse.  You were out of it on methamphetamine at the time that you carried out this serious assault on this man.   You have also undertaken a stopping violence programme.   It is not unusual to get good reports from those agencies which deal with drug and alcohol and violence courses.

[15]      In  addition, there is a comment from Constable Auv’a from the Family Safety Team at the Onehunga Police, who said, that in the short period of time he has been working with you and your family, he has seen a positive change in your behaviour.  He describes how you are working on strategies to handle difficult situations.  I take from that that you do not do what you have always done which is resort to violence as a first resort.

[16]      Your partner is sticking by you. You have children together. At least one of those is still in the care of Child Youth and Family. But it would seem from everything in front of me, that the agencies are working to try and get your family back on track, that you now have some understanding of why you resort to violence so quickly, and that you are trying to do something about it.

[17]     Another important factor in my view, that means I should not send you to prison, is that you have been associated with the Mongrel Mob.  If I send you back to prison, I do not know what will happen about that.  But one hears stories of the difficulties people have keeping out of gang life when they are in a prison. That you have disassociated yourself from that gang life is a credit to you.  I do not want to see you go backwards.

[18]      So on this charge of injuring with intent to injure, you are sentenced to 18 months’ intensive supervision, on the conditions that you attend a Tikanga Maori programme as directed; that you undergo any further counselling or treatment with Community Alcohol and Drug Services, and I am going to add to that, including a residential programme; to live at an approved address; not to undertake any employment or training without the approval of your probation officer; and to undertake any other counselling. You are also required to complete 200 hours’ community work.

[19]      On the theft of the meat from Foodtown, eighteen months’ intensive supervision on those two charges from 1 September.   Breach of bail, convicted and discharged.  The same intensive supervision sentence on these two more recent charges.

[11]     In summary the District Court Judge adopted a starting point of three years’ imprisonment on the lead offence of injuring with intent to injure, increased that by six months because the lead offending was committed while on bail and because of Mr Tiatia’s history of violent offending and then applied two discounts, one of six months for the time spent on e-bail and the other of 33% for his guilty plea to bring the sentence down to around two years’ imprisonment.   Home detention was not

considered because no ―appendix‖ had been prepared.  The sentence of 18 months’ intensive  supervision  and  200  hours’ community work  was  imposed because of indications that Mr Tiatia had taken steps to turn his life around.   On the two

1 September 2008 charges of theft (shoplifting) and behaving threateningly, the two

15 September 2009 charges of fighting in a public place and behaving threateningly, and  the  two  charges  of  breach  of  conditions  of  community  work,  concurrent sentences of 18 months’ intensive supervision were imposed.  On the breach of bail charge Mr Tiatia was convicted and discharged.

[12]     It  does  not  appear from  the District  Court Judge’s  sentencing notes  that separate consideration was given to the question whether the final sentence adequately reflected  the  totality and  overall  criminality of  the  offender  and  the offending.

Submissions for appellant

[13]     For the appellant, the Police, Mr Kayes submitted that the end sentence was manifestly inadequate having regard to the seriousness of the offending, the totality of the offending, the fact that the offending was while Mr Tiatia was on bail, his history of violent offending and the consequences for the victims.   Mr Kayes submitted that the only appropriate sentence was a custodial one.

[14]     Mr Kayes submitted that the District Court Judge had made a number of errors of principle that ultimately led to the imposition of a manifestly inadequate end sentence, namely:

(a)      A short  cumulative  sentence  of  imprisonment,  or  an  uplift  in  the starting point, was not imposed on the lead charge of injuring with intent to reflect the additional, unrelated offending for which the respondent appeared for sentence;

(b)      A discount of 33% was given for the respondent’s guilty plea despite

the fact that the guilty plea was not entered at the earliest opportunity;

(c)      Due to the failure to impose a cumulative sentence or an uplift in the starting point, and due to the excessive discount the respondent was awarded for his guilty plea, the sentencing Judge incorrectly arrived at an end sentence of two years’ imprisonment, which incorrectly provided the Court with jurisdiction to consider home detention:

(i)It was acknowledged that a sentence less restrictive than home detention was ultimately imposed.

(ii)However, the sentencing Judge identified imprisonment as the appropriate starting point, and that the next least restrictive sentencing outcome pursuant to s 10A of the Sentencing Act

2002 was home detention.

(iii)It was not appropriate for the sentencing Judge to ―skip‖ consideration of home detention simply because a home detention appendix had not been prepared.  Sentencing should have been adjourned for an appendix to be prepared, or the sentence should have reverted to one of imprisonment.

(iv)In any event, had the errors at (a) and (b) not occurred, an end sentence of more than two years’ imprisonment would have been imposed, and the Court would have been unable to consider a term of home detention.

(d)The sentence of intensive supervision and community work was manifestly inadequate having regard to the seriousness of the offending; the number of charges for which the respondent appeared for sentence; the offending while on bail and the respondent’s history of violent offending. A term of imprisonment was warranted; and

(e)       A concurrent term of 18 months’ intensive supervision was imposed

in relation to the offence of fighting in a public place.  The sentencing

Judge   had   no   jurisdiction   to   impose   a   sentence   of   intensive supervision for this offence: s 54B(1) of the Sentencing Act 2002.

[15]   Mr Kayes accepted that while the lenient starting point of three years’ imprisonment, the generous discount of six months for time spent on bail and the lenient uplift of six months’ imprisonment for Mr Tiatia’s previous convictions and offending while on bail were not outside the available ranges, in combination these factors ultimately resulted in a manifestly inadequate end sentence.

Submissions for Mr Tiatia

[16]     For Mr Tiatia, Ms Mortimer, while acknowledging that the sentence was lenient, supported the reasoning of the District Court Judge.   In particular, Ms Mortimer submitted that:

(a)      In terms of the Court of Appeal decision in R v Hessell,1  Mr Tiatia entered his guilty pleas at the first opportunity following the appropriate charge of injuring with intent to injure being offered.  To claim that a more serious charge might have been proved was speculative and undermined the presumption of innocence as well as the onus of proof. An accused had the right to contest charges that did not accurately reflect the nature or degree of his or her culpability.

(b)On  the  question   of  totality,   the   imposition  of  a  sentence   of imprisonment for the separate charges of shoplifting and threatening behaviour would have been perverse.   Even if a custodial sentence were appropriate, the imposition of cumulative sentences would also breach the principle of totality and result in a final sentence that was manifestly excessive in the circumstances contrary to ss 84 and 85 of the Sentencing Act 2002.  Under s 8(g) of that Act the Court must also impose  the  least  restrictive  outcome  that  is  appropriate  in  the

circumstances of the case.

1 R v Hessell [2009] NZCA 450; [2010] 2 NZLR 298.

(c)      There were special mitigating factors which were rightly taken into account  to  arrive  at  the  final  community-based  sentence.     The discount  for  time  spent  on  stringent  bail  conditions  for  almost

12 months with a 24 curfew and the absence of further offending during that time warranted a discount: R v Faisandier, R v Cristia and R v Aram.2

(d)Mr Tiatia’s  personal  circumstances  referred  to  in  the pre-sentence report and his rehabilitative efforts which had impressed the probation officer were also correctly taken into account by the District Court Judge.

Appellate approach

[17]     Counsel were in agreement that an appeal of this nature was governed by the decisions of the Court of Appeal in R v D and R v Donaldson:3

It  is  established  that  a  sentence  should  not  be  increased  pursuant  to  a Solicitor-General’s appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence which was imposed is manifestly inadequate (R v Wihapi)4  or the Crown is able to point to some error in principle upon which the trial judge acted ...   It is also settled that considerations  which  justify  an   increase  in  sentence   must   be   more compelling than those which might justify reduction ...   Even if the Court determines that the sentence is manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender.   In particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is an issue ...

[18]     At the end of the hearing of the appeal Mr Kayes for the appellant accepted that if I were persuaded that the sentence in this case was ―manifestly inadequate‖ it would still be necessary to consider whether interfering with the sentence would

―cause  injustice to the offender‖ and that for that purpose it would be relevant to

know whether Mr Tiatia had been on bail with a 24 hour curfew since 29 July 2010 and whether there had been any further offending in the period since that date.

2 R v Faisandier CA 185/00, 12 October 2000; R v Cristia [2008] NZCA 19; and R v Aram [2006] NZCA 328.

3 R v D [2008] NZCA 254; R v Donaldson (1997) 14 CRNZ 537 at 549-550.

4 R v Wihapi [1976] 1 NZLR 422, 424 (CA).

[19]     It was also noted that in the pre-sentence assessment report provided to the

District Court it was stated that:

Electronically monitored sentences was not indicated by the Court and have not been canvassed [sic].   Although Mr Tiatia is making changes, electronically monitored sentence at his family address is not considered appropriate due to restricted elements of a [sic] electronically monitored sentence and the high stress it may cause.

[20]     Counsel were given the opportunity to provide further memoranda clarifying whether Mr Tiatia had been on bail with a 24 hour curfew since 29 July 2010, whether there had been  any further offending in the period since that date and whether there was any further information which the Court should have updating Mr Tiatia’s position in respect of a suitable address for an electronically monitored sentence if one were considered appropriate now.

Further memoranda

[21]     By memorandum dated 3 March 2011, Mr Kayes advised that when the Police filed their notice of appeal on 17 August 2010 both the sentence of intensive supervision and the sentence of community work ceased to run under s 124(3) and (3A) of the Summary Proceedings Act 1957.  At the time at which the sentence for community work ceased to run, Mr Tiatia had not completed any of the 200 hours community work.

[22]    Mr Kayes also advised in his memorandum that Mr Tiatia had had no convictions since sentence on 29 July 2010, but had previously offended while on bail and currently faced further charges in the Manukau District Court for offences alleged to have been committed on 28 January 2011, namely receiving property (over $1,000) (a motorcycle), operating a motor vehicle recklessly, failing to stop when followed by red-blue flashing lights, and possessing a methamphetamine pipe. Mr Tiatia was to appear in the Manukau District Court on 8 March 2011.

[23]     Mr Kayes advised that in relation to the charges the subject of the appeal Mr Tiatia ceased to be on bail from 29 July 2010, but he is presently on bail in relation to the new charges.   The conditions of bail include residence, non- association, and not to consume alcohol or illicit drugs. There is no curfew.

[24]     For  Mr  Tiatia,  Ms  Mortimer  filed  a  memorandum  dated  4  March  2011 advising that Mr Tiatia denied the alleged further offending on 28 January 2011 and proposed to defend the charges.   Ms Mortimer also provided information from a member of the Onehunga Family Violence team confirming that there had been no family violence encounters since October 2009 and no evidence of any involvement with  Mr  Tiatia’s  previous  gang  associates.     It  was,  however,  stated  that  the imposition of home detention at the family’s current address might be difficult on the family as Mr Tiatia and his wife have now had a new baby and require assistance.  If home detention  were  canvassed  at  the current  address,  a CYFS  alert  would  be generated which could result in the children being removed from the home.

[25]      Ms Mortimer also provided background information relating to the charge of assault on a child and submitted that if the Court were to decide that an electronically monitored  sentence  was  appropriate  Mr  Tiatia  would  be  able  to  provide  an alternative address with another family member which could be canvassed for suitability.  She also submitted that while the sentence of supervision was suspended on 17 August 2010 compliance with the previous sentence of supervision was an indicator that suggested that Mr Tiatia did engage positively with a rehabilitative sentence and it would cause injustice to now impose an electronically monitored sentence where intensive supervision was not available.

The starting point

[26]     There is no dispute that the starting point of three years’ imprisonment for the lead offence of injuring with intent to injure was lenient, but not outside the available range.   The starting point is to be determined by reference to the decision of the Court of Appeal in R v Harris.5    On the basis of that decision, the offending fits within band three, attracting a starting point of between 18 months and the maximum of five years’ imprisonment. As identified by the District Court Judge, the offending had several aggravating factors that justified a starting point at the higher end of this

band.  A suggested starting point might have been between three years six months to four years, but a starting point of three years’ imprisonment was open to the District

Court Judge.

5 R v Harris [2008] NZCA 528.

Personal aggravating and mitigating factors

[27]     The Crown accepts that the uplift of six months’ imprisonment imposed by the District Court Judge for Mr Tiatia’s previous convictions and offending while on bail, while lenient, was within the available range.  No doubt a greater uplift might have been made by the District Court Judge and it is a factor which might be relevant when looking at the penalty imposed for the totality of the offending, but on its own the uplift of six months’ imprisonment could not be described as ―manifestly inadequate‖.   That would increase the sentence to one of three years six months’ imprisonment.

[28]     The six month discount applied for time spent on electronically-monitored bail is accepted by the Crown and is sound in principle.  That reduces the sentence to three years’ imprisonment.

[29]     It is then necessary to take into account the other mitigating factors relating to Mr Tiatia which the District Court Judge referred to in [14] – [17] of her sentencing notes.  These factors justify a further discount to the sentence.  The Crown did not submit otherwise.  I assess this further discount at three months, thereby reducing the sentence to two years nine months’ imprisonment.

Recognition of other offending

[30]     Mr Tiatia was also sentenced at the time for a series of other offending, including shoplifting, fighting in public and threatening behaviour, and there were also the other charges of breaching bail and community sentences. As already noted, District  Court  Judge  Cunningham  dealt  with  all  of  these  charges  by  way  of concurrent sentences together with a conviction and discharge for the breach of bail, no doubt because that offence had been taken into account in determining the six month uplift for personal aggravating factors.

[31]     The Crown has submitted that this is not the appropriate way of dealing with these additional charges and that either cumulative sentences or an uplift to reflect the totality of the offending would have been appropriate.  It was also submitted that

the District Court Judge had no jurisdiction to impose a concurrent sentence of

18 months’ intensive supervision on the charge of fighting in a public place.

[32]     It is well-established that the final sentence must reflect ―the totality of the offending‖ and how the total sentence is made up is not important: R v Xie.6   As the judgment of the Court of Appeal in that case stated:

[18]  Those  principles  survive  the  enactment  of  the  Sentencing  Act  and indeed are endorsed by it.  Having endorsed it, Parliament then goes on in ss 84  and  85  to  describe  when  concurrent  sentences  and  cumulative sentences ―    are generally appropriate‖  .   The guidelines do not have the effect of trumping the central principle of sentencing for multiple offending, namely that the total sentence must represent the overall criminality of the offending and the offender.

[33]     The statutory guidelines in ss 84 and 85 are:

84Guidance on use of cumulative and concurrent sentences of imprisonment

(1)       Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)       Concurrent sentences of imprisonment are generally appropriate if the  offences  for  which  an  offender  is  being  sentenced  are  of  a similar kind and are a connected series of offences.

(3)       In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)      the time at which they occurred; or

(b)      the overall nature of the offending; or

(c)      any other relationship between the offences that the court considers relevant.

85       Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

6 R v Xie [2007] 2 NZLR 240 (CA) at [16] – [17].

(3)       If, because of the need to ensure that the total term of cumulative sentences   is   not   disproportionately   long,   the   imposition   of cumulative sentences would result in a series of short sentences that individually  fail  to  reflect  the  seriousness  of  each  offence,  then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)      If only concurrent sentences are to be imposed,—

(a)       the  most  serious  offence  must,  subject  to  any  maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)       each  of  the  lesser  offences  must  receive  the  penalty appropriate to that offence.

[34]     Applying the well-established principles mandated by the Court of Appeal in R v Xie and these statutory guidelines to the present case, I consider that the totality and overall criminality of Mr Tiatia’s offending on 1 September 2008, 21 February

2009 and 15 September 2009, together with the breaches of community work, required a sentence of imprisonment and that the mitigating features relating to Mr Tiatia himself did not alter that conclusion.  My reasons are:

(a)       Mr Tiatia was being sentenced for offences of three different kinds:

(i)four offences involving actual or threatened violence: the lead offence of injuring with intent to injure, fighting in a public place and behaving threateningly (x 2);

(ii)      one offence of dishonesty: shoplifting; and

(iii)     two offences relating to disregard of Court orders.

(b)      While  each  of  the  offences  committed  on  1  September  2008  and

15 September 2009 was connected with the other offence committed on each of those dates, the offences were not part of a connected series  of  offences  involving  the  lead  offence  or  the  offences committed on the other date.

(c)      For the purposes of s 84(1) and (2), if sentences of imprisonment were to be imposed for any of the offences, cumulative rather than concurrent sentences of imprisonment would have been ―generally appropriate‖, but subject to the constraints imposed by s 85(1) – (3).

(d)Bearing in mind the constraints imposed by s 85(1) – (3), however, and  taking  into  account  the  range  and  nature  of  the  offending involved, from the offences involving actual and threatened violence, coupled with the offence of dishonesty and the offences of breach of Court  orders,  all  spread  over  more  than  a  year,  an  uplift  to  the sentence for the lead offence reflecting the totality of the offending and the overall criminality of the offending was appropriate.  To avoid duplication, this uplift would not relate to the offence of breach of bail which has already been taken into account.

(e)      Taking into account the maximum penalties for the offending, other than the lead offence, and the nature of Mr Tiatia’s offending, an uplift of three months’ imprisonment would be appropriate.

[35]     With this further uplift, the sentence would amount to a term of imprisonment of three years.

Discount for guilty plea

[36]     The  District  Court  Judge  allowed  a  discount  of  33  per  cent  for  the respondent’s guilty plea on the basis of the decision of the Court of Appeal in R v Hessell.7  The amount of the discount is challenged by the Crown on appeal.

[37]     Mr Tiatia, having first appeared on 2 June 2009, pleaded guilty at depositions on 30 November 2009, but before the case was formally committed for trial.

[38]     Counsel are in agreement that the decision in the Court of Appeal in Hessell

is to apply.  They differ, however, on the application of the decision to the facts of

this case.  Ms Mortimer argued that Hessell could be read with reference not only to the timing of the plea, but also to the fact of a substituted charge arrived at after negotiation (plea-bargaining).  The Crown submitted that such an approach was not appropriate  under  the  Court  of Appeal’s  decision  and  that  the  decision  makes reference only to the timing of the plea and not its circumstances.

[39]     In Hessell the Court of Appeal said:

[31]     Three matters are important.   First, the date of ―first reasonable opportunity‖ will not be extended on the basis that:

(a)      the defendant was disputing the prosecution’s summary of

facts; or

(b)      plea bargaining was underway; or

(c)       the defendant was engaged in challenging the admissibility of evidence; or

(d)       the defendant was waiting to see what line the co-accused would take or what the outcome might be of discussions or negotiations between the prosecution and co-accused; or

(e)      the defendant was awaiting a sentencing indication.

[32]     We are aware that all these factors have been advanced as reasons why what has been on its face a late plea should nonetheless be treated as a plea made at the first reasonable opportunity.  First reasonable opportunity means what it says.   The maximum discount is appropriate only for those who are prepared to acknowledge their guilt at the outset.

[40]     The  Court  of Appeal’s  decision  was  in  a  sense  a  blunt  instrument,  and Ms Mortimer’s criticism of that approach appears to have been vindicated by the Supreme Court’s decision overturning it.8   She accepted, however, that the Court of Appeal’s decision applied in this case.   This means that the respondent was not entitled to the full 33 per cent discount because his guilty plea was not entered at the first reasonable opportunity.  On the basis of the Court of Appeal’s decision he was

entitled to a discount of around 20 per cent.   The Crown, however, proposed a discount of 25 per cent.

[41]     I am prepared to accept the figure proposed by the Crown which would have the effect of reducing the final sentence to two years three months’ imprisonment.

Home detention

[42]     With a final sentence of more than two years’ imprisonment Mr Tiatia would

be ineligible for a sentence of home detention: ss 4 and 15A of the Sentencing Act

2002.

[43]     It is therefore unnecessary to consider whether the District Court Judge also erred in passing over the sentence of home detention.  It is sufficient to note that if the final sentence had been one of two years’ imprisonment a sentence of home detention could have been considered because there is power to adjourn the matter part heard or, under s 80I of the Sentencing Act 2002, to give leave to apply for substitution of a sentence of home detention.

Manifest inadequacy

[44]     The Court is only justified in interfering on a Solicitor-General’s appeal if the sentence imposed is manifestly inadequate or there has been some significant error in principle and the considerations justifying an increase in sentence are sufficiently compelling.   For the reasons given I have concluded that the District Court Judge erred  in  failing  to  consider  whether  the  final  sentence  adequately  reflected  the totality and overall criminality of the offending and offender and in allowing a 33% discount for the guilty plea on the lead offence.   These errors resulted in the imposition of sentences which were in my view manifestly inadequate in this case and are sufficiently compelling considerations to justify an increase in Mr Tiatia’s sentence.

Injustice to Mr Tiatia

[45]     If the Court determines that the sentence is manifestly inadequate or based on a wrong principle, it will be reluctant to interfere with the sentence if this would cause injustice to the offender.  In particular the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with.

[46]     The  Court  of Appeal  in  R  v  D  cautioned  against  interfering  with  such sentences when to do so would involve imprisoning an appellant who has been on a community based sentence and was responding positively to it.9    In that case, however, the Court had concluded that a sentence of home detention was the appropriate sentence for Mr D, while in this case that cannot be said to be the case.

[47]     Mr Tiatia’s sentence which began on 29 July 2010 was suspended by the filing  of  the  appeal  by  the  Police  on  17 August  2010:  s  124  of  the  Summary Proceedings Act 1957.  Mr Tiatia was only on intensive supervision for a little over two weeks and no community work was completed before the sentences were suspended.  His electronically-monitored bail ceased at the point of conviction.

[48]    Mr Tiatia has been charged with further offences, alleged to have been committed on 28 January 2011, and he has been admitted to bail again on those charges.  He was scheduled to appear in the Manukau District Court on those charges on 8 March 2011.  It is understood that not guilty pleas were entered to the charges and that a defended hearing is to occur in June this year.  In view of the presumption of innocence, I put these charges to one side for the purpose of this appeal.

[49]     In this case because the community-based sentence was suspended as a result of the appeal by the Police it is not possible to say whether or not the conditions would have been complied with.  The fact that Mr Tiatia has convictions for breach of Court orders and bail does not assist him in this context.  This means in my view that in his case the imposition by the District Court Judge of a community-based sentence is not a constraint on interfering with the sentence.  Nor am I satisfied that there any other factors which would cause injustice to Mr Tiatia by replacing the manifestly inadequate sentences imposed in the District Court with the sentence of imprisonment which ought to have been imposed.

Intensive supervision for fighting in a public place

[50]     There is no dispute that by virtue of s 54B(1) of the Sentencing Act 2002 the

District  Court  Judge  had  no  jurisdiction  to  impose  a  concurrent  sentence  of

9 [2008] NZCA 254, at [71]-[76].

18 months’ intensive supervision for a charge of fighting in a public place under s 7 of the Summary Offences Act 1981 which carries a maximum penalty of a fine of

$1,000.  This means that this sentence must in any event be quashed and replaced in the circumstances of this case with a conviction and discharge.

Result

[51]     The  appeal  is  allowed  and  in  terms  of  s  121(3)(b)  of  the  Summary Proceedings Act 1957 the sentences imposed in the District Court, other than the sentence for breach of bail, are quashed and the following substituted sentences are imposed:

(a)       Injuring with intent to injure: two years three months’ imprisonment.

(b)      Shoplifting: one month’s imprisonment : concurrent.

(c)       Behaving  threateningly  (x  2):  one  month’s  imprisonment  (x  2)  :

concurrent.

(d)      Fighting in a public place : convicted and discharged.

(e)       Breach  of  conditions  of  community  work  (x  2)  :  one  month’s

imprisonment : concurrent.

[52]     Mr Tiatia is to surrender himself to the District Court at Auckland by Friday

15 April 2011 at 9.00 am to commence his prison sentence that day, failing which a warrant is to be issued for his arrest.

D J White J