R v Kawhe

[2022] NZHC 1852

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-2048

[2022] NZHC 1852

THE QUEEN

v

WILLIAM KAWHE

Hearing:

29 July 2022

Counsel:

M Heslip for Crown

P Mitchell for Mr Kawhe
L R van der Lem for Department of Corrections

Sentencing:

29 July 2022

SENTENCING NOTES OF GWYN J

[1]    Mr Kawhe you appear for sentencing for a charge of robbery1 and breach of a sentence imposed in the Wellington District Court for intensive supervision.2 You committed the offending with your co-offender who pleaded guilty and was sentenced to five months’ community detention and nine months’ supervision. You have entered your guilty plea this morning, following a sentencing indication given by Churchman J on 15 July 2022.

1      Crimes Act 1961, s 234 (maximum term of imprisonment of 10 years; category 3 offence).

2      Sentencing Act 2002, s 70(A)(a) (maximum penalty of imprisonment for a term not exceeding six months or a fine not exceeding $1500; category 2 offence).

R v KAWHE [2022] NZHC 1852 [29 July 2022]

The offending

Robbery

[2]    The offending for which you have been convicted is robbery on Leeds Street in Te Aro, Wellington with your co-offender.

[3]    The victim reversed his ute into a parallel park and you hit the rear of the victim’s vehicle. The victim got out of the  vehicle  and  began  walking  along  Leeds Street. You and your co-offender followed after the victim and accused him of hitting your car, challenging him to fight. Your co-offender told the victim that things would go badly for him if he did not hand over his keys. When the victim tried to get away, you both pressed your chests against the victim threateningly so that he could not leave. You both continually demanded the victim’s keys and said that “we’ll fuck you up if you don’t give us the keys”. The victim, facing the threat of violence, handed over the keys and your co-offender took them, unlocked the doors of the victim’s vehicle and walked away. You were apprehended by Police not long after. The keys were not recovered.

Breach of intensive supervision

[4]    Mr Kawhe, you were sentenced to 18 months’ intensive supervision in the Wellington District Court on 2 March 2021 following convictions for injuring with intent to injure, theft ($500-$1,000) and assault with intent to injure.

[5]    You were required to report to a PO every Friday at 2.00 pm for 18 months and this requirement, and the consequences for non-compliance, were explained to you on 5 March 2021. You signed papers indicating your understanding.

[6]    On 22 September 2021 you had a call with your PO who repeated your reporting obligations and the requirement for you to report to Community Probation.

[7]    On 24 September 2021, you failed to report to the PO as directed without reasonable excuse. Since the commencement of that sentence, you failed to report to Community Probation as directed on 16 occasions.

Victim impact statement

[8]    I received a victim impact statement. At the time of the offending, the victim describes how your threats of violence made him fear for his safety. Since the offending, he has become more aware of his surroundings, is “on the lookout” for people who might threaten or rob him and worries about walking around at night. He also worries that one set of his ute keys have not been recovered. His girlfriend also worries about walking around at night.

Approach to sentencing

Third strike offence

[9]    You have been charged with your third strike offence. Both your counsel and counsel for the Crown agree on the applicable legal principles, with the leading case being Fitzgerald v R.3 In that case, the Supreme Court held that where a sentence required to be imposed under s 86D(2) of the Sentencing Act 2002 would result in a breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), ordinary sentencing principles apply.

[10]   The Court of Appeal in Phillips v R expanded on where a sentence may “constitute disproportionately severe treatment or punishment”.4 Such circumstances may include where: a prison sentence may be required under s 86D(2) but a non- custodial sentence would have been imposed; the difference between any prison sentence that would have been imposed but for the three strikes regime and that imposed under s 86D(2); and the nature of the offending, specifically, whether the defendant is “an unforeseen casualty of the three strikes regime”.

[11]   To determine whether the sentence required to be imposed under the regime would breach s 9 of NZBORA, I assess what your sentence would be ordinarily and then consider the Phillips factors.

3      Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.

4      Phillips v R [2021] NZCA 651; and Moses v R [2020] NZCA 296.

[12]   Calculating an appropriate sentence is a two-stage process.5 First, I must fix the starting point that your offending would attract. This involves identifying the aggravating and mitigating features of your offending to arrive at an appropriate sentence. I must decide whether this starting point should be adjusted for totality considerations so that the overall offending is proportionate to the term of imprisonment. At the second stage, I must then take into account any of your personal circumstances that are relevant, including guilty pleas, and determine whether the starting point should be adjusted as a result of those personal circumstances.

[13]   The Court must also have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. The sentence must hold you accountable for the harm that you have done, promote in you a sense of responsibility for and acknowledgement of that harm, denounce your conduct, deter you and others from committing similar offences and protect the community from you as an offender. The gravity of the offending and degree of culpability, and the seriousness of that offending, must also be considered. The sentence must be consistent with other similar cases and I should impose the least restrictive sentence appropriate in the circumstances.6

Starting point

[14]   For this first step, I will set the starting point for your robbery offending (discrete offending attracting the highest penalty), a starting point for your conviction for breaching intensive supervision and will then adopt a global starting point that reflects the totality of your offending.7

[15]   There is no tariff case for robbery, but the Court of Appeal has held that       R v Mako (a tariff case for aggravated robbery) is a useful guide, adjusting for the lesser maximum sentence.8

5      Moses v R, above n 4, at [46].

6      Sentencing Act 2002, s 8(g).

7      Section 85.

8      R v Mako [2000] 2 NZLR 170; R v Ha’apai CA 294/05, 2 May 2006 at [25]; and Heteraka v R

[2013] NZCA 339 at [24].

[16]   Both parties referred to the lower end of the scale of offending identified in Mako – between 18 months and three years’ imprisonment for street robbery9 – but disagreed over the appropriate starting point. The Crown argued that your offending was aggravated by the fact that you acted in concert with your co-offender which increased the intimation and that you made threats of violence. The Crown advocated for a starting point of 24 or 18-months’ imprisonment. The defence submitted that this was low-level, opportunistic offending where there were only two offenders, no weapons, no actual violence and the property stolen was insignificant; there was no attempt to take the victim’s car. Your defence counsel also referred to your co- defendant’s sentencing indication, where Judge Davidson described the offending as “lowish level” street robbery and adopted a starting point of 18 months’ imprisonment. It was submitted that a similar starting point should be adopted on a parity basis.

[17]   With regard to the above, I consider that the following aggravating factors are present in your offending:

(a)The number of participants: You acted together with your co-offender and this in itself must have been intimidating for the victim. Although your co-offender took the keys and unlocked the car, your role in the threatening and intimidation was equal to his.10

(b)Threats of violence: There was no actual violence used in the robbery, but there were distinct threats of violence. You threatened the victim that if he did not comply with requests to hand over the keys, he would face harm. You also pressed your chest against the victim in a threatening manner and blocked him from getting away.

[18]   In my assessment, while you played a different role in the offending than your co-offender, your level of involvement is effectively the same. You approached the victim, blocked his exit, threatened him and demanded his keys together. Taking into account the aggravating features of your offending, the Mako guidelines, the relevant

9      R v Mako, above n 8, at [59].

10 At [37].

comparative cases,11 and the need to maintain parity, I adopt a starting point of 18 months’ imprisonment.

[19]   I now consider your breach of sentence offending. I have considered similar cases,12 your history of breaching court release conditions, community work sentences and conditions of supervision (with the most recent of this offending occurring in 2013), and the circumstances of the recent breach where you were reminded of your obligations and failed to comply 16 times. While I could have imposed a very small uplift for this offending, I consider that it can be wrapped up into the 18 months’ starting point.

[20]This gives an overall starting point of 18 months’ imprisonment.

Personal aggravating and mitigating factors

[21]I now consider personal aggravating and mitigating factors.

Aggravating factors

[22]   The Crown submitted that the scale of your previous offending (103 convictions between 2002 and 2021), including eight robbery or robbery-type offences between 2011 and 2021, and the fact that this offending was committed while you were subject to a sentence of “come up if called”, justifies an uplift of 15 to 20 per cent. The previous pre-sentence reports for robbery-type offences provided to me refer to the fact that this history of offending means that you have a high risk of re-offending in similar circumstances. I take it that these previous convictions have relevance to the current offending and justify an uplift of 15 per cent.13

11 R v Stuart [2008] NZCA 66; and Ah-Hing v Police HC Auckland CRI-2011-404-331, 26 October 2011.

12 R v Renata HC Napier CRI-2010-041-3244, 28 September 2011 (The defendant was convicted of low-level and opportunistic robbery and two breaches of an intensive supervision order. The defendant was given one month’s imprisonment for each breach of supervision to be served concurrently); and Whakarau v Police HC Palmerston North CRI-2011-454-35, 26 October 2011 (The defendant was convicted of a breach of community work and intensive supervision. She was given two months’ imprisonment for her breach of intensive supervision. She had met all the requirements up until early December 2010, but on 20 January 2011 had a biopsy and was excused from reporting until 4 February 2011 but did not return after that).

13 Reedy v Police [2015] NZHC 1069 at [18].

Mitigating factors

[23]   In terms of personal mitigating factors, Churchman J has already indicated that you are entitled to a discount of 20 per cent for your guilty plea. Although your plea has not been entered at the earliest time,14 this is largely the result of the serious consequences flowing from a Stage 3 offence under the three strikes regime and the need to seriously consider these.

[24]   Mr Mitchell submitted that you have expressed remorse for this offending and that you would like to attend a restorative justice conference where you can formally apologise to the victim or that you will write a letter of apology. Churchman J was sceptical of your claims of remorse in the absence of positive evidence indicating genuine remorse,15 and I have not seen any further information that would make me reach a different view.

[25]   Mr Mitchell submitted that you have an addiction to alcohol and methamphetamine and that most of your offending has occurred while intoxicated. He also submits that you have been homeless, unemployed for over 20 years and disconnected from your whanau. Mr Mitchell advocated for a discount for these personal circumstances.

[26]   Although – at your request – no pre-sentence or s 27 report has been prepared for your sentencing today, in Zhang v R, the Court of Appeal observed that social, cultural or economic deprivation may be mitigating factors when shown to contribute causatively to the offending.16 Some evidence is needed to establish this connection.17 These factors are relevant as they may have impaired your rational choice made to offend and diminish moral culpability, diminish the deterrent aspect of sentencing, and add to the severity of a term of imprisonment imposed on you.18

[27]   In terms of the causative link between your addiction and the offending, as Churchman J noted in the sentencing indication, there is no clear evidence that you

14     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

15 At [76].

16     Zhang v R [2019] NZCA 507 at [159].

17     Arona v R [2018] NZCA 427 at [59].

18     Zhang v R, above n 16, at [138].

were intoxicated at the time of this offending or that you offended to fuel an addiction; no item of value was taken to turn into cash.19 I do note however that you were apprehended by Police a short way from Leeds Street after the ute was opened and that any plans you may have had to convert the vehicle for this purpose may have been disrupted. I have also had the benefit of reading pre-sentence reports for other robbery-type offending which describe your addiction issues and other factors mentioned above. Overall, I consider that there is not enough persuasive evidence to find a causative link between your addiction and the present offending aside from your self-reporting.20

[28]   Taking into account all matters discussed, the starting point of 18 months’ imprisonment is to be:

(a)uplifted by 15 per cent (2.7 months) for your previous convictions and offending while subject to sentence; and

(b)reduced by 20 per cent (3.6 months) for your guilty plea.

[29]   This leaves an end sentence of 17 months and three days’ imprisonment, rounded down to 17 months.

[30]   There is no dispute that this short term of imprisonment is in such disparity with the maximum sentence required to be imposed under s 86D(2) of the Sentencing Act that it is sufficient to engage s 9 of NZBORA. This is exacerbated by the fact that a sentence of 18 months’ imprisonment is a short sentence where in the normal course you would be released after serving half the sentence.21 You would be denied this opportunity under s 86D(2). In light of that, I adopt the ordinary sentence on Fitzgerald and Phillips principles.

[31]   As you are being convicted of an offence punishable by imprisonment and are receiving a sentence of less than 24 months’ imprisonment, home detention is an available sentencing option I can consider.22 Rehabilitative considerations are

19 At [26].

20     At [159]–[148].

21     Parole Act 2002, s 86. See s 4 (definition of “release date”).

22     Parole Act, s 4; and Sentencing Act, s 15A(1)(b).

expressly relevant to this consideration.23 Mr Mitchell submitted that you have spent most of your life incarcerated, which suggests that prison has little deterrent effect for you. I also note that your co-defendant received a sentence of five months’ community detention and nine months’ supervision to keep him in work and out of prison; but that you have a far more extensive conviction history, a pattern of breaching conditions of release, conditions of supervision and failing to appear for bail and there is no further information before me as to your employment status. In the absence of specialist reports, I would have declined to commute your sentence to home detention.

Sentence

[32]Mr Kawhe, please stand.

[33]   With a 15 per cent uplift and 20 per cent discount  on your starting point of  18 months’ imprisonment, I am sentencing you to a period of 17 months’ imprisonment in relation to the charges of robbery and breach of intensive supervision.

[34]   You have been remanded in custody for a period of 10 months and two weeks. Your sentence will be credited as time served by the prison manager in accordance with s 91 of the Parole Act 2002. That means that the time you have already spent in prison will count as time served towards the sentence I have just imposed. In addition, because this is what is called a short-term sentence of imprisonment, in the usual course you would be  entitled  to  be  released  from  prison  after  you  had  served 50 per cent of the sentence. So, the combined effect of those two things means that you are entitled to be released, subject to the conditions I am going to mention now.

Standard release conditions

[35]   You will be subject to the standard release conditions set out in s 14 of the Parole Act 2002, until six months after the sentence expiry. Those conditions are annexed to these sentencing notes.

23     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

Special release conditions

[36]   You will be subject to the following special release conditions until six months after the sentence expiry:

(a)Not to enter Wellington, as defined in writing by a Probation Officer, without the prior approval of a Probation Officer;

(b)Not to associate with the victims of your offending without the prior written consent of a Probation Officer;

(c)To reside at [Redacted] or other address approved in writing by a Probation Officer, and not to move address without prior written approval of a Probation Officer.

[37]   In the usual course I would also have imposed the further special conditions sought by the Department of Corrections, requiring you to attend a psychological assessment and an alcohol and drug use assessment, and to abstain from alcohol and drug use. However, I have been persuaded by Mr Mitchell that those conditions would be setting you up to fail. As he submits, the important factor here is the support that your uncle has offered you – to live with him in Christchurch and to employ you in his building work. As your uncle’s affidavit makes clear, he will not tolerate any alcohol or drug use by you. I agree with Mr Mitchell that your uncle has offered you a lifeline. His support is the most effective support you can have.

[38]   Finally, I make a direction that Mr Kawhe is to be released by the Department of Corrections from Christchurch Prison. Release is not to occur until the Department can facilitate transfer of Mr Kawhe from Wellington to Christchurch for the purpose of release.

Gwyn J

APPENDIX A

Conditions

14       Standard release conditions

(1)An offender who is subject to the standard release conditions must comply with the following conditions:

(a)the offender must report in person to a probation officer in the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after release:

(b)the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:

(c)the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:

(d)if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender’s arrival in the new area:

(e)if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:

(f)the offender must not reside at any address at which a probation officer has directed the offender not to reside:

(fa)the offender must not leave or attempt to leave New Zealand without the prior written consent of a probation officer:

(fb)the offender must, if a probation officer directs, allow the collection of biometric information:

(g)the offender must not engage, or continue to engage, in any employment or occupation in which the probation officer has directed the offender not to engage or continue to engage:

(h)the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:

(i)the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.

(2)[Repealed]

(3)In this section, probation area means an area designated by the chief executive for the administration of release conditions, community- based sentences, sentences of home detention (including post- detention conditions), or orders.

(4)For the purposes of any provision of this Act relating to the imposition of standard release conditions, those conditions must be treated as if they were imposed by the Board.