Roberts v The King
[2024] NZHC 670
•22 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-17
[2024] NZHC 670
BETWEEN SAMUSETA EZRA ROBERTS
Appellant
AND
THE KING
Respondent
Hearing: 12 March 2024 Counsel:
R Hinds and C Farquhar for Appellant C Best for Respondent
Judgment:
22 March 2024
JUDGMENT OF BECROFT J
[Appeal against sentence]
This judgment was delivered by me on 22 March 2024 at 4.00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel: Crown Law, Wellington
C Farquhar, Barrister, Auckland
ROBERTS v R [2024] NZHC 670 [22 March 2024]
This appeal
[1] Mr Samuseta Ezra Roberts appeals against a sentence of 27-and-a-half months’ imprisonment imposed by District Court Judge Grau (as she then was) at the Manukau District Court on 20 December 2023.1
[2]The sentence was imposed in respect of three charges:
(a)aggravated burglary;2 and
(b)two separate charges of unlawful use of a motor vehicle, involving different vehicles on different days.3
Grounds of appeal and result
[3] For Mr Roberts, it is submitted that the end sentence was manifestly excessive and ought to have resulted in an end sentence of two years’ imprisonment. There are two grounds of appeal:
(a)the Judge erred in not applying a separate discount for Mr Roberts’ remorse which should have been five per cent; and
(b)the 15 per cent discount afforded to Mr Roberts’ personal circumstances causative of the offending was insufficient. Also, Mr Roberts’ prospects of rehabilitation and mental health struggles deserved further recognition.
[4] Mr Roberts submits that the Court would have granted him further 10- 15 per cent discounts if these factors had been recognised.
[5]My conclusion is that this appeal must fail.
1 R v Roberts [2023] NZDC 28895.
2 Crimes Act 1961, s 232(1)(a). Maximum penalty 14 years’ imprisonment.
3 Section 226(1). Maximum penalty seven years’ imprisonment.
[6] There is no fundamental error in the discounts given to Mr Roberts and there is no demonstrable error in the Judge’s approach overall. Even if there was, any alteration to the sentence would be only “tinkering”. Any reduced sentence would not result in two years’ imprisonment or less, at which point home detention could be considered. Even if it did, the Judge was right when she said that if the end sentence was two years or below, she would not have granted home detention because it was inappropriate and wrong in principle to do so.
[7] When I stand back and analyse the sentence as a whole, the only word to which the descriptor “manifestly” could attach, is the word “lenient”. There is no basis to call this sentence manifestly excessive. I now provide my detailed reasons.
The facts
Aggravated burglary
[8] At about 8:27 am on 29 October 2022, Mr Roberts arrived at the victim’s address in a stolen Mitsubishi Pajero. He had a large knife in his possession (approximately 30 cm in length). He rang the bell at the gate. When there was no response, he climbed over the gate and armed himself with the knife. He walked around the outside of the house. He used the knife to break the glass on a ranch slider door in order to unlock it and enter the house.
[9]Inside the house he took jewellery, watches, and an Apple iPad valued at
$60,000 as well as $25,000 cash from the victim’s house. He left the house with the stolen items, and while still armed with the knife, he jumped the fence and left the area in the Mitsubishi Pajero.
Unlawful use of a motor vehicle
[10] Previously, in the late afternoon of Monday 24 October 2022, Mr Roberts was the driver of a stolen Mitsubishi vehicle in Manurewa. This vehicle was different to the one used in the burglary.
[11] On 31 October 2022 at Clover Park, the Police were called to an unrelated incident at which address Mr Roberts was present. The stolen Mitsubishi Pajero used in the burglary was found down the road with Mr Roberts’ Kiwi Access Card inside along with the knife used in the burglary.
The Judge’s decision in the District Court
[12] Consistent with her earlier sentencing indication, which had been accepted by Mr Roberts, the Judge adopted a starting point of three years and three months’ imprisonment. Even though Mr Roberts took steps to make sure nobody was at home, the property taken was of very high value, and it was not recovered. In the Judge’s view, this was “very, very serious offending”.
[13] The Judge added three months to that sentence in respect of the two unlawful use of a motor vehicle offences. She also uplifted the sentence by four months in respect of what, on any analysis, was Mr Roberts previous serious offending.4
[14] Mr Roberts received a 25 per cent reduction for his guilty plea and a further 15 per cent allowance to recognise the matters raised in the cultural report under s 27 and an earlier psychiatric report.5
[15] The end result was 27-and-a-half months’ imprisonment. The Judge specifically noted that, had the end sentence been a short term of imprisonment, she would not have been minded to consider home detention given Mr Roberts’ poor compliance with previous electronically monitored bail conditions imposed on him. She would not have regarded him as suitable for that sentence.
4 Judge Grau did not specify in the sentencing itself the exact amount of the uplift for this offending. However, R v Roberts DC Manukau CRI-2023-092-007093, 19 September 2023 at [11] and [13] (being the sentencing indication), clearly indicates that the uplift was four months’ imprisonment. As if to confirm that, her Honour’s calculations in R v Roberts, above n 1, at [14] records that, she gave to Mr Roberts 40 per cent in reduction from the starting point. This must mean that she calculated that amount from a figure of 46 months which is consistent with a four-month uplift for previous offending. Whether she erred in calculating the percentage reduction from a total of 46 months is a matter to which I will return to later.
5 Sentencing Act 2002, s 27.
Law on appeal
[16] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[17]In any other case, the Court must dismiss the appeal.6
[18] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:7
[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.
[19] The meaning of manifestly excessive, however, is not conceptually vague and “instinctive” and should not be considered in a vacuum. As noted in Tutakangahau v R noted:8
It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to a parity with co-offenders.
[20] A sentence that is manifestly excessive is but one possible error in the sentence imposed. Others include a sentence that involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.
6 Criminal Procedure Act 2011, s 250(3).
7 Campbell v R [2022] NZCA 579 (footnotes omitted).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
[21] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.9 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.10
Mr Roberts’ previous offending history
[22] An assessment of the Judge’s sentencing and my analysis of the grounds of appeal, make no sense without understanding Mr Roberts’ serious offending history. It can be summarised as follows.
[23] Mr Roberts was deported from Australia to New Zealand in 2015 after offending in Australia. It is not disputed this included four aggravated robberies, one of which included being armed with an offensive weapon, aggravated burglary and other violence and dishonesty-related offending including two charges of stalking/intimidation intending fear of physical harm.
[24] After arrival in New Zealand, Mr Roberts committed 16 offences in April and June 2016, some of which were extremely serious. They include four charges of aggravated robbery; two charges of robbery; two charges of burglary (on one occasion with a weapon); assorted motor vehicle charges, and one charge of possession and use of methamphetamine and utensils. Apparently, 15 of these charges were committed while on bail.
[25] It is difficult from the conviction history to ascertain the previous sentences imposed. I am content to rely on Judge Grau’s analysis in her sentencing indication when she said that in September 2017 Mr Roberts was sentenced to five-and-a-half years’ imprisonment imposed cumulatively on a two-year sentence he was already serving in respect of robbery and charges which had been imposed on 4 November 2016.11
9 R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].
10 Polyanszky v R [2011] NZCA 4 at [17].
11 R v Roberts, above n 1, at [11].
[26] On any assessment, Mr Roberts came to New Zealand with some very serious charges to his name. He then continued to offend in the same way very serious way, soon after his arrival.
[27] He was released from prison on the sentence end date of 1 August 2022. He was subject to release conditions until 31 January 2023. It can thus be seen that these offences, the subject of this appeal, were committed just less than three months after his release from a substantial period of imprisonment and while he was still subject to parole release conditions.
[28] Sadly, since his time in New Zealand, he has spent more time in prison than out of it.
First ground of appeal: failure to apply a separate discount for Mr Roberts’ remorse
[29] Mr Hinds, who appeared with instructions from Ms Farquhar, presented a thoughtful and considered argument for Mr Roberts. He maintained that the Judge should have awarded a five per cent deduction for remorse. He noted that a letter was handed up to the Judge at sentencing (no longer available but summarised by the Judge) stating that Mr Roberts was remorseful for poor decisions, sorry for his choices that caused a ripple effect in the community and that he did not want to make anyone feel unsafe. He said that he was now different, “had got responsibilities as a father”, was seeing life differently and was hopeful he would see a change in his lifestyle.
[30] That said, the letter came to the Court on the day of sentencing. In the Crown’s view should be accorded limited weight—certainly without more detail.
[31] Concerningly, the 10 November pre-sentence report notes that “no remorse was expressed, or forthcoming during the interview, and Mr Roberts would seem to have a total lack of concern for his victims”. There are other matters in the report including his so-called “sense of self-entitlement” that casts further doubt on the genuineness or, at least, the extent of his remorse. That said, he was willing to undergo a restorative justice process which was not conducted due to the victims, perhaps understandable, reluctance.
[32] In short, Mr Hinds submitted that Mr Roberts was not the same man now as he was during his previous offending. As a parent, he is seeing life differently.
[33]Both counsel highlighted the observations in Moses v R:12
… remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and judgment. The defendant has the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount but it does require something more than bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence such as engagement in restorative justice processes. In the end if remorse should be separately acknowledged is a question of judgment and an exercise of discretion by the Judge.
[34]It is worth noting Judge Grau’s comments in this respect. She felt unable to:13
… apply a further reduction for remorse or prospects of rehabilitation. That is because you have such a bad history of the same kind of offending, and in my view, the most important sentencing principle at this stage (or at least a very high priority) is the need for protection of the community until your rehabilitation is further underway.
[35] The Judge particularly had in mind Mr Roberts’ extensive conviction history, which I have already described.
[36] I am unable to see any clear error in this respect, even taking into account the Judge’s additional comments regarding the need to protect the community which is a separate consideration from remorse. Some Judges may have granted an additional amount for remorse; but many would not have done so. The learned sentencing Judge was not in error in this respect.
Second ground of appeal: insufficient allowance for s 27 background factors and the psychiatric report
[37] The first thing to say is that, as I understand it, the submissions for Mr Roberts at his sentencing sought a 15–20 per cent reduction for these factors. The Judge gave exactly what was asked for. I accept that the sentencing Judge did not discuss the contents of the psychiatric report and only mentioned Mr Roberts’ methamphetamine
12 Moses v R [2020] NZCA 296; [2020] 3 NZLR 583 at [24].
13 R v Roberts, above n 1, at [13].
addiction once. That said, the Judge certainly mentioned the report and she can be taken to have understood its contents. Mr Hinds emphasised that Mr Roberts, at the time of this offending, was on a “methamphetamine binge”—in the grip of a pernicious and corroding drug.
[38] The psychiatric report is detailed, but I note is dated 4 March 2020—now almost four years old. The report concludes that Mr Roberts has most likely experienced periods of methamphetamine-induced psychotic disorder and that he met the criteria for methamphetamine abuse disorder. The report also concludes that his prior offending history and then lack of remorse for his earlier offending, met the criteria for antisocial personality disorder. Interestingly, the report concludes that Mr Roberts’ psychotic symptoms may have contributed to impairing his judgment but were not likely to be “causative” of his index offending.
[39] No doubt Judge Grau was aware of all these matters. She clearly had in mind the harrowing and sad contents of the s 27 report. Indeed, she notes on this aspect of the sentencing that she has not “found this easy at all”.14 She accepted there was a clear connection between how Mr Roberts’ life developed in Australia, his turning to crime, being deported in what is a brutal regime with no support on his arrival, and his circumstances not having changed—and this offending. She was also concerned that Mr Roberts may almost be institutionalised.
[40] The Judge accepted that the higher Courts have recently approved reductions of around 15 per cent of the sentence when there has been serious criminal offending but where there is a close and “causal, connection between background and criminal offending”.15
[41] Given all those matters, I cannot see that the Judge erred in assessing the reduction at 15 per cent. Again, this is a matter of discretion. I conclude that there has been no material error. All matters advanced by Mr Hinds were legitimately rolled into this “allowance” by the Judge and need not be separated out.
14 R v Roberts, above n 1, at [11].
15 R v Roberts, above n 1, at [12].
[42] Included in this part of the arguments were strong submissions that there should have been some recognition for Mr Roberts’ prospects for rehabilitation and his mental health struggles. As observed earlier, the Judge concluded that she felt unable to do so because he had such an extensive history of offending and that there was a need for protection of the community until rehabilitation was further underway. The Judge was alert to this issue and, in all the circumstances which I have already outlined, she concluded, as an exercise of her discretion, that further reductions were not appropriate.
[43] I add that, given Mr Roberts’ very quick resort to serious offending after his release from prison in October 2022, the Judge was entitled to infer, as she must have done, that in spite of Mr Roberts’ protestations to the contrary, prospects for rehabilitation were not genuine nor realistic. Again, I see no error in the Judge’s approach.
[44] As a final point, Mr Hinds submitted the Judge was in error to suggest that she could not give further reductions because of her concern that the principle of community protection was too important, especially because Mr Roberts had such a bad history for similar offending.
[45] As I read the Judge’s decision, she was effectively concluding that an exclusive focus on the disaggregated components of this sentencing would get to the point where the overall sentence would simply be inappropriately lenient. She was entitled to stand back and say that any further discounts, in the interests of community protection, simply could not be justified. The ultimate question for the Judge must always be the appropriateness of the sentence overall.
Have the component parts of the sentence resulted in a manifestly excessive sentence?
[46] The first thing to say is that had the Judge calculated the sentence in accord with the approach set out by the Court of Appeal, the end sentence would have been
two years five months’ imprisonment rather than the two years three months and two weeks that was imposed.16
[47] The sentence that was imposed could not be said to be manifestly excessive. If I were to make the slight adjustment suggested by Ms Farquhar, it would still result in a sentence of more than two years’ imprisonment. Any such interference in the Judge’s decision would be “tinkering”.
[48] Viewed in the round, the end sentence must be considered as towards the lenient end. I point to the deliberate decision to take a knife to the residence. Even if it were primarily used to break in, it was available to be employed if, contrary to expectations, there was someone else in the house. Although carriage of a weapon is an ingredient of the charge, the type of weapon is aggravating. The amount of money and possessions that were taken was very significant. In light of the similar previous convictions, the starting point of three years and three months was very fair. Three- and-a-half years’ imprisonment would have been perfectly justified. The uplift for previous convictions was modest. Also, there was no further uplift for the offending while Mr Roberts was still on parole conditions.
[49] Part of the appeal process must involve an overall assessment of whether the end sentence was manifestly excessive. Here it was not. On the contrary, in my view, it was arguably lenient considering all the circumstances. There is no basis for interfering with it.
[50] For the record, I specifically state that I agree with the sentencing Judge, that even if the sentence were to be as low as two years’ imprisonment or less, then home detention, given the previous offending and its scope and seriousness, could not be justified. Also, the Judge considered that an electronically monitored sentence served at the Grace Foundation would be unsuitable, citing instances of Mr Roberts’ poor compliance when. I agree with that assessment.
16 Tangi v R [2023] NZHC 1997 at [30] and Mo’unga v R [2023] NZHC 1967 at [28], citing Moses v R, above n 12, at [46].
Result
[51]The appeal must be and is dismissed.
Becroft J
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