Sagote v The King
[2023] NZHC 1008
•1 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000070
[2023] NZHC 1008
IN THE MATTER OF an appeal against sentence BETWEEN
BRADLEY SAGOTE
Appellant
AND
THE KING
Respondent
Hearing: 1 May 2023 Appearances:
S Tait for Appellant
J L Gibson for Respondent
Judgment:
1 May 2023
(ORAL) JUDGMENT OF EDWARDS J
Counsel/Solicitors:
S Tait, Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland
SAGOTE v R [2023] NZHC 1008 [1 May 2023]
[1] Mr Sagote pleaded guilty to a charge of injuring with intent to injure,1 and a charge of aggravated robbery.2 On 24 January 2023, he was sentenced by Judge Pidwell in the Auckland District Court to four years and six months’ imprisonment.3
The offending
Injures intent to injure
[2] At 6.50 pm on Thursday, 15 July 2021, the complainant and Mr Sagote were outside a central Auckland location. They started talking to each other.
[3] Mr Sagote walked up to the complainant and, with a closed fist, punched the complainant six times in the face causing him to fall to the ground. While the complainant was on the ground, Mr Sagote kicked him twice to the body. Mr Sagote then walked away leaving the complainant on the ground.
[4]The complainant sustained a facial fracture to his left orbital wall.
Aggravated robbery
[5] At around 1.30 am on Friday, 15 April 2022, Mr Sagote, together with an unknown male, arrived at the complainant’s address in New Lynn. The complainant was home alone with her 14-month-old son.
[6] The complainant woke to the men arriving and went to the door thinking it was her partner. Mr Sagote spoke to the complainant through the door saying, “you know who I am, I’m Brad”, before pushing the door. The complainant managed to push the door closed.
[7] Mr Sagote and the other man then forced their way into the address by kicking in the front door, causing it to smash.
1 Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.
2 Crimes Act 1961, s 235(b). Maximum penalty: 14 years’ imprisonment.
3 R v Sagote [2023] NZDC 1116.
[8] The complainant ran to her bedroom so that she could call the police. However, she was followed into the room by Mr Sagote who stood over her. He held up a closed fist and said, “where are the keys for the car outside?”.
[9] The complainant told Mr Sagote that she did not have them, so he instead demanded her cellphone before taking it from her.
[10] Mr Sagote and the other man then left. The complainant noticed her TV was missing. This was later found on the street. Police found the phone at Mr Sagote’s home address.
District Court decision
[11] Mr Sagote accepted a sentence indication on 10 October 2022. He was convicted and sentenced by Judge Pidwell in the Auckland District Court on 24 January 2023.
[12] The Judge summarised the offending, and referred to Mr Sagote’s personal circumstances. This included his young age (22 at the time of sentencing) and his relatively long list of previous convictions.
[13] The impact of the offending on both complainants was acknowledged. The complainant in the assault charge was finding it difficult to concentrate properly from the head knock, and he was fearful that Mr Sagote or his associates would find him again.
[14] The other complainant described the offending as one of the most terrifying nights of her life. She had trouble sleeping and feared repercussion from Mr Sagote and had been forced to relocate. She had described herself as being carefree and happy before the offending, but that had now changed.
[15] The Judge adopted the starting points given in the sentencing indication. Those were six years’ imprisonment for the aggravated robbery, uplifted by two years for the injuring with intent charge. This was then discounted for totality purposes resulting
in a starting point of seven years’ imprisonment. The Judge noted the courses Mr Sagote had completed in prison but recorded that he had a “long way to go”.4
[16] As for mitigating features, the Judge referred to the cultural report before the Court, noting that she could not identify a clear link between any deprivation and Mr Sagote’s offending. However, the Judge acknowledged that Mr Sagote had used and abused drugs and alcohol from a very early age and that may have had a negative impact on him. She noted that this could be causative of where Mr Sagote found himself today.5
[17] The Judge went on to say that Mr Sagote’s criminal record showed that the sentences received in the past (home detention, imprisonment, community work and supervision) had not worked and Mr Sagote had just gone on to reoffend again.
[18] In terms of remorse, the Judge could not identify any remorse over and above the guilty plea.6
[19] The Judge considered that all these factors cumulatively justified a 10 per cent discount.
[20] A 25 per cent discount for the guilty plea was also applied leading to an end sentence of four years and six months’ imprisonment.
Approach on appeal
[21] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.7
[22] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. Whether a sentence is
4 At [12].
5 At [15]–[17].
6 At [18].
7 Criminal Procedure Act 2011, s 250(2).
manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.8
Was the sentence manifestly excessive?
[23] The starting point adopted by the Judge, and the guilty plea discount of 25 per cent, are not challenged on appeal. The appeal is only concerned with the discounts given for matters raised in the s 27 report, rehabilitative prospects and remorse. Each of these are taken in turn.
[24] The cultural report before the Court recorded that Mr Sagote was a 23-year- old male born into a Samoan family. He lived with his mother, grandparents and two younger half-siblings.
[25] Mr Sagote had never met his father, and his mother refused to discuss his father with him. The report records that Mr Sagote developed a sense of abandonment and anger over the years due to seeing his friends interacting with their father.
[26] Mr Sagote started using alcohol and drugs at a young age and was stealing to feed this habit. Mr Sagote’s first conviction was entered at 15 years of age and he was then expelled from school at 16 years of age. When he was 18, Mr Sagote’s grandmother passed away and he found it difficult to deal with this loss.
[27] Mr Sagote has been in one significant relationship for approximately eight years and they have a three-year-old son together.
[28] Counsel for Mr Sagote, Mr Tait, submits that the sentencing Judge erred in concluding that there was little in the s 27 cultural report addressing the nexus between Mr Sagote’s background and his offending. Mr Tait says Mr Sagote was not given every opportunity to engage properly in society and many of the factors mentioned in Carr v R are present in Mr Sagote’s case too.9
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Carr v R [2020] NZCA 357.
[29] Further, Mr Tait submits that there is a causal connection between that background and the offending. He submits that Mr Sagote’s sense of alienation from his mother over the issue of the identity of his father, affected his connection with his family and his genealogy, which in turn impacted on other aspects of his fa’asamoa, or Samoan way. Mr Tait says these factors justify a discount of 20 per cent from the starting point.
[30] I consider there to be little in the way of evidence to substantiate Mr Tait’s submission. Indeed, the cultural report records that Mr Sagote was raised in the “Samoan way”, and Mr Sagote’s mother reported that they practiced their culture at home. Mr Sagote appears to understand the Samoan language as that is the language in which he converses with his grandfather. Although Mr Sagote is reported as saying he has grown distant from his culture, that is something altogether different to the cultural dislocation and systemic deprivation described in cases such as Carr and Berkland.10
[31] In theory, I accept that a sense of alienation and anger from not knowing his father may have (indirectly) contributed to Mr Sagote’s offending. But if there is such a link, then it is very weak, and is more than adequately accommodated by the 10 per cent discount applied by the Judge.
[32] As for remorse, Mr Tait submits that Mr Sagote expressed remorse to the author of the pre-sentence report and expressed a willingness to engage in restorative justice. He submits that this should have also been taken into account by the sentencing Judge.
[33] Given the nature of the offending, I do not consider a willingness to explore restorative justice warrants a separate and additional discount for remorse over and above the guilty plea. On this issue too I agree with the sentencing Judge.
[34] Finally, turning to the issue of rehabilitation, Mr Tait submits that further discount was required to reflect Mr Sagote’s rehabilitative efforts on remand. Those rehabilitative efforts were exemplified by the programmes completed by Mr Sagote
10 Berkland v R [2022] NZSC 143.
totalling 15 workbooks and short courses. These included a methamphetamine self- help workbook and an alcohol and drugs course which Mr Sagote found beneficial.
[35] The sentencing Judge was aware of the programmes completed by Mr Sagote. She referred to them specifically in her sentencing notes. She noted that completing these courses had started Mr Sagote along the right pathway, however he had a long way to go. The Judge also referred to Mr Sagote’s criminal record which showed that nothing had worked in the past. In the face of this evidence, I do not consider the Judge erred in failing to separately recognise Mr Sagote’s rehabilitative efforts by way of a discrete discount.
[36] It follows that the 10 per cent discount applied by the Judge was well within range to account for personal mitigating factors and a further discount was not warranted in this case.
[37] As a result, the end-sentence cannot be considered manifestly excessive and the appeal must be dismissed.
Result
[38]The appeal is dismissed.
Edwards J
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