Siale v The King
[2024] NZHC 3495
•21 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000501
CRI-2024-404-000502 [2024] NZHC 3495
BETWEEN SIONE SIALE
Appellant
AND
THE KING
Respondent
Hearing: 12 November 2024 Counsel:
AWB Zhao for Appellant
LS Seybold for Respondent
Judgment:
21 November 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 21 November 2024 at 3 pm.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland.
Public Defence Service, Auckland.
SIALE v R [2024] NZHC 3495 [21 November 2024]
The appeal
[1] Sione Siale received a five-year term of imprisonment for a raft of offending, including aggravated robbery. Mr Siale appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.1 The ultimate concern is whether the sentence is manifestly excessive.2
Background
[2] The facts in connection with Mr Siale’s most serious offence, the aggravated robbery, are helpfully captured by a sentence indication of Judge E M Thomas which Mr Siale accepted. Mr Siale’s partner, Darylyn Menary-Colley, was one of two-offenders:3
On 8 August 2021, Mr Holmes reported his partner missing to the police. On 14 August, he got calls from you about his partner. He did not previously know you. He agreed to meet the three of you to discuss the potential whereabouts of his partner. Initially, that meeting took place on the footpath outside his apartment. It appears to be accepted by everyone that he then invited you upstairs to his apartment. You all went there and, very quickly, things went badly wrong.
Mr Siale, you grabbed him from behind. You put him in a headlock. You threw him to the ground. Once he was on the ground, you kept your arm around his neck while he was down. He struggled to breathe. He panicked. You tied his hands with a power cord. You threatened to get a knife and to hurt him. You threatened to come after him if he went to the police.
Ms Menary-Colley, you and Mr Mafi made similar threats to him. While Mr Siale held him down, the two of you searched his apartment for items that would be worth taking. Mr Mafi, you used another cable to tie up Mr Holmes’ feet and then you hogtied him. So, from there, he had nowhere to go and he stayed bound like that for a long period of time, somewhere around an hour to an hour and a half.
You all continued your threats towards him, including a threat to throw him off the balcony of his building. You forced him to hand over PIN details to his phone and to his bank accounts so that you could steal the money from his banking apps. You went into his banking apps. He did not have any money, so that did not work. Mr Siale, you gagged him with a pair of socks and then the three of you plundered what you could from his apartment. You left with items that were worth $1,600.
1 Criminal Procedure Act 2011, s 250(2).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
3 Police v Menary-Colley [2024] NZDC 19565 at [24]–[27].
[3] Between 22 August 2022 and 20 February 2023, Mr Siale committed 24 thefts. These comprised:
(a)Eleven instances of shoplifting goods worth more than $1,000.
(b)Nine of shoplifting goods valued between $500 and $1,000.
(c)Four of shoplifting goods valued under $500.
[4] Mr Siale twice assaulted police. He punched a constable on the arm, attempted to punch another, then wrestled a third. They fell down a flight of stairs together, after which Mr Siale was arrested.
[5] Mr Siale also committed two offences of breaching release conditions; two of breaching conditions of community work; an offence of possessing methamphetamine utensils; and finally, failing to answer District Court bail.
[6] Judge Thomas adopted a four-year starting point for the aggravated robbery and added two years for all other offending. The Judge added 10 percent for the fact many of the offences were committed on bail, and in recognition of Mr Siale’s criminal record. He deducted five percent for “very late” guilty pleas;4 10 percent for the death of Mr Siale’s child; an additional 10 percent for personal circumstances; and two percent for remorse. As observed, this resulted in a sentence of five years’ imprisonment.
A précis of the case for Mr Siale
[7] Mr Siale contends the starting point for the aggravated robbery was too high. He also contends the Judge should have afforded greater discounts for his personal circumstances; the effect of Mr Siale’s incarceration on his children; and remorse. Disparity is hinted at too.
4 At [15].
Analysis
The starting point for the aggravated robbery
[8] On behalf of Mr Siale, Mr Zhao contends the starting point should have been “in the region” of three and a half years’ imprisonment, not four years’ imprisonment. Mr Zhao noted the victim let Mr Siale and the other offenders into his home. The offending was not, therefore, a home invasion. Mr Zhao emphasised the apparent lack of sophistication; the fact no weapons were brought to the home; and the absence of disguises. Mr Zhao said the somewhat opportunistic nature of the offending also diminished Mr Siale’s culpability.
[9] He and Ms Seybold for the respondent closely analysed a suite of decisions.5 It is not necessary to go beyond three.
[10] The first, R v Mako,6 a guideline judgment of the Court of Appeal, provides general architecture. Mako holds starting points for serious street robberies may be up to three years’ imprisonment, whereas a night-time home invasion involving the brandishing of weapons but “no serious injuries” would require a starting point of seven or more years’ imprisonment.7 Judge Thomas treated the offending as lying somewhere between the two examples. Plainly, he was right to do so.
[11] R v Crawford is instructive because of its factual similarity and that it is a decision on appeal.8 The victim lived in a boarding house. He invited the two defendants into his room and the three drank together. One defendant pushed the victim onto his bed, and the other held a steak knife to his throat. (The knife was already in the room.) The defendants rolled the victim onto his front, searched his pockets, removed his wallet, and took $130 cash and some tablets. One defendant removed the victim’s bank card and demanded the PIN; the other stabbed the knife into the wall, presumably to underscore the seriousness of the request. When the defendants were unable to withdraw cash, the victim was knocked to the ground and
5 Marsh v R [2019] NZCA 220; Te Hau v R [2013] NZCA 431; Norton v R [2012] NZCA 334;
R v Parata [2022] NZHC 3503; and Lin v R [2022] NZHC 3266.
6 R v Mako [2000] 2 NZLR 170 (CA).
7 At [58].
8 R v Crawford [2009] NZCA 479. While first instance sentencing decisions can be useful, they do not constitute more than an example, the correctness of which has not been tested.
kicked. One defendant then stomped on the victim’s face (wearing boots). The victim was then marched across the road to a service station in an attempt to gain cash. Police were called and the defendants ran away. A starting point of four and a half years’ imprisonment was held to be “well within the range available to the Judge”.9
[12] The remaining decision is Tuhi v R.10 Mr Tuhi and two other defendants were invited inside a home after asking to see an occupant. The defendants made the four victims lie face down while the other defendant stood guard, holding a knife. The victims were threatened with assault, a threat aggravated by stomping near their heads (without contact). Mr Tuhi and another defendant collected property worth approximately $2,500. The three defendants then left in a car that had been parked outside. A five-year starting point was upheld.
[13] Mr Siale’s offending is similar to that in Crawford and Tuhi. Tuhi probably exhibits a greater degree of premeditation than Mr Siale’s offending, and more valuable property was taken in that case too, but the victims were not restrained as Mr Holmes was. Crawford involved more serious violence, but that victim was not restrained in the same way either. Higher starting points were upheld in both cases.
[14] In light of all this, the four-year starting point adopted by the Judge was comfortably within range, particularly given Mr Siale (and the other offenders) exploited the victim’s trust in entering his home while he was emotionally vulnerable due to his partner’s disappearance.
Discount for personal circumstances
[15] Mr Zhao contends the Judge’s “mere 10% reduction” for Mr Siale’s personal circumstances was inadequate; the figure should have been 15 percent. Mr Zhao relied on a cultural report prepared for sentencing. It refers, among other things, to Mr Siale becoming addicted to nicotine as a minor in Tonga, and to later developing an alcohol and methamphetamine addiction in New Zealand. Mr Zhao contends the report
9 R v Crawford, above n 8, at [13].
10 Tuhi v R [2021] NZHC 459.
demonstrates “pervasive and persistent social disadvantage, resulting in impaired decision making”.
[16] In Berkland v R,11 the Supreme Court held an offender’s background may mitigate a sentence if it contributed causatively to the offending. The Court emphasised the level of discount depends on a variety of considerations, including the strength of the causal connection, the nature and seriousness of the offending, the circumstances of the case, and considerations under the Sentencing Act 2002 including, for example, denunciation and deterrence.
[17] Mr Siale’s background diminishes the culpability of his offending somewhat, but not more. And, as Ms Seybold observed, the offending was serious and for personal gain. A 10 percent deduction was, therefore, available to the Judge.
[18] For completeness, Mr Zhao drew comparisons with the personal circumstances of other offenders as a springboard for arguing the discount was too little. Ms Seybold responded in kind. This elliptical approach should not be encouraged. What matters is the instant defendant’s personal circumstances according to the principles articulated in Berkland.
Impact on children
[19] The Judge imposed a three-year prison term on Ms Menary-Colley. Her sentence recognised the couple’s four children would be without their mother while she was incarcerated. Discount for this feature was bundled with others totalling 30 percent, and disaggregation is difficult. My sense — and I put it no higher than that — is that the discount in relation to the children was approximately 10 percent.
[20] Mr Zhao contends the Judge should have given the same level of discount to Mr Siale, given the children are also his. Disparity is also hinted at in the submissions but not developed.
11 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
[21] The leading case in this context is Philip v R, a decision of the Supreme Court.12 The Court observed:13
The family situation of a convicted person, including where applicable the wellbeing of an offender’s children, will always be among the personal circumstances to which regard is had by a sentencing Judge. …What however must be recognised is that the family situation of an offender, including the wellbeing of the offender’s children, is only one of a number of relevant factors. How much weight it can be accorded in any particular case depends on its circumstances. …
[22] In Philip, the Court received a psychological report that Mr Philip’s son enjoyed a “secure attachment” to him and “would experience a significant sense of loss” if he were imprisoned.14 The evidence also linked Mr Philip’s relationship with his son to rehabilitative prospects.15
[23] There is a paucity of evidence in this case beyond that the children lived with Ms Menary-Colley; that Mr Siale “tries to keep in contact with them all”; and that “although he has spent time with them while not in custody he is wanting more time with them”. It follows the submission is essentially that Mr Siale should receive a discount because he has children. Philip does not endorse such a (broad) proposition. Absent further evidence of the impact of the sentence on the family life of the children, which Mr Siale has not sought to offer on appeal, I am not persuaded of error.
Remorse
[24]Mr Zhao’s written submissions helpfully capture the argument:
Mr Siale’s remorse was consistently evident in materials before the court at sentencing, including in his letter of remorse, the Provision of Advice to Courts (PAC) report, and cultural report. Mr Siale takes responsibility for the psychological harm he has caused. Voluntary efforts to engage in a rehabilitative programme before sentence may also be treated as material evidence of remorse. Mr Siale completed a budgeting programme while in custody.
It is submitted that the learned sentencing Judge did not sufficiently acknowledge Mr Siale’s remorse and rehabilitative efforts with a mere 2% reduction.
12 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
13 At [51], quoting R v Harlen (2001) 18 CRNZ 582 (CA) at [22].
14 At [53].
15 At [54].
[25]Mr Zhao contends the Judge should have permitted a five percent discount.
[26]Ms Seybold responds:
The respondent acknowledges the letter filed by Mr Siale. It is submitted the remorse in the cultural report takes this no further. Mr Siale’s remorse must also be viewed in light of the number of times Mr Siale absconded while subject to bail. For rehabilitation, Mr Siale has completed one budgeting program. The prospects of rehabilitation from this course must be balanced against the significant dishonesty offending that spanned from 2021 to 2023.
[27] Ms Seybold’s points have force, but an identical point arose in Tatterson v R.16 The Judge concluded the defendant was remorseful, but applied a discount of two and a half percent. On behalf of the Court of Appeal, I said:17
Having concluded Mr Tatterson was remorseful, we consider the Judge should have afforded an orthodox reduction for this feature of five per cent.
This reasoning holds true.
[28] An additional three percent deduction from the six-year starting point would have resulted in a sentence of four years and 10 months’ imprisonment. The question then becomes whether this sentence should be imposed instead of the existing term of five years’ imprisonment.
[29] The difference between the two outcomes is sufficiently modest to justify maintenance of the status quo. The idea is that sentencing is an art, not a science, and the product of a discretionary process. But given liberty is in issue, two other points assume importance. First, and as observed earlier, the starting point in relation to the aggravated robbery was comfortably within range. A starting point of four and a half years’ imprisonment — perhaps even a little more — could be sustained. Second, Mr Siale’s dishonesty offending was itself serious. Mr Siale stole thousands of dollars’ worth of property over 24 discrete occasions. An end sentence of five years’ imprisonment for all of the offending is not manifestly excessive.
16 Tatterson v R [2023] NZCA 467.
17 At [31].
Result
[30]The appeal is dismissed.
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Downs J
0
10
0