Silulu v The King
[2023] NZHC 1244
•25 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000507
[2023] NZHC 1244
BETWEEN DALEY OFFIAH SILULU
Appellant
AND
THE KING
Respondent
Hearing: 15 May 2023 Appearances:
S Brickell for Appellant
B Archibald for Respondent
Judgment:
25 May 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 25 May 2023 at 3.45 pm
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
SILULU v R [2023] NZHC 1244 [25 May 2023]
Introduction
[1] Daley Silulu (the appellant) was sentenced by Judge J M Jelaš in the District Court at Waitākere on 9 December 2022 to imprisonment for two years and six months’ on 12 charges of dishonesty related offending and one charge of failing to comply with a condition of a previous sentence.1
[2] He appeals his sentence on the grounds that a report prepared in accordance with s 27 of the Sentencing Act 2002 should have been prepared and placed before the Judge at sentencing. He seeks to have a s 27 report which has been subsequently prepared admitted for the purposes of his appeal. He says that having regard to the contents of the report which sets out his background in detail, the sentence imposed is manifestly excessive.
District Court sentencing
[3] The appellant pleaded guilty to 12 charges of dishonesty offending and one charge of failing to comply with a sentence condition. The charges relate to offending during the period between 9 December 2020 to 26 September 2022. They include: theft; receiving stolen property; obtaining by deception; unlawful taking of a motor vehicle; making a false document; and two charges of burglary.2
[4] In her sentencing decision the Judge briefly described the appellant’s offending in respect of each of the charges, and noted that the most serious offending was the burglary he committed on 26 September 2022.
[5] The burglary offending on 26 September 2022 involved the appellant and a co-offender: renting a property under a false name; disconnecting the property’s security alarm; gaining access to a locked workshop which he was not authorised to enter; and taking multiple items including a Honda quad bike, trailer, an outboard motor and hand tools, estimated at a total value of $11,686. The other dishonesty and burglary charges involved: taking items from a communal locker storage area at the apartment block where the appellant was living; receiving a motor vehicle, changing
1 Police v Silulu [2022] NZDC 24902.
2 Crimes Act 1961, s 231(1)(a)(maximum penalty 10 years’ imprisonment)
its registration plates, convincing another person to register the vehicle in their name and on selling the vehicle; obtaining $1,050 by deception through the fake sale of an iPhone listed online; obtaining $15,000 by deception through the sale of a rental car the appellant had rented and on sold to an unknowing buyer; obtaining the keys to a slot-machine located in a bar, and taking $1,000 from the machine. The total loss caused by the appellant’s offending for which he was sentenced, was $78,036.
[6] The Judge noted that on 3 March 2021 the appellant received a sentence of 12 months’ supervision. That sentence was breached early on and the Judge noted that many of the offences for which she was sentencing the appellant were committed while he was on bail for the breach of sentence conditions charge and for other of the charges comprising the 13 charges in total for which he was to be sentenced.
[7] The Judge adopted a starting point of 24 months’ imprisonment for the 26 September 2022 burglary offending which she considered to be the most serious offending, and applied an uplift of 24 months imprisonment in respect of all of the other dishonesty charges to reach a nominal starting point for all of the dishonesty offending of four years’ imprisonment.3 The Judge then allowed what she described as being “a rather generous” totality adjustment which reduced the starting point by eight months to 40 months’ imprisonment.4
[8] The Judge then allowed a 20 per cent discount to take account of the appellant’s guilty pleas which brought the end sentence to 32 months’ imprisonment.5 And she allowed a further two months’ reduction to take account of the fact that the appellant had spent 259 days on EM bail since it was granted on 25 March 2022, notwithstanding that on 26 September 2022, and while on EM bail, the appellant had committed the most serious and most recent burglary offending.6 Those two discounts produced the end sentence of two years and six months’ imprisonment.
[9] A Department of Corrections pre-sentence report had been provided to the Judge which said that the appellant had a history of using cannabis and
3 Police v Silulu, above n 1, at [11].
4 At [12].
5 At [12].
6 At [12].
methamphetamine which had led to his current offending when he found himself owing money for drugs to fuel his drug addiction. The Judge noted that the appellant had told the author of the Department of Corrections pre-sentence report that most of his offending was related to his drug dependency.7 The Judge also noted the appellant had been assessed as being a high risk of re-offending and “also a problem gambler which is frequently seen in persons who suffer from addiction.”8
[10] However, the Judge did not expressly address whether there were any personal mitigating factors that could have had a bearing on the final sentence she imposed, and she did not allow a discrete discount on account of the appellant’s background and personal factors.
[11] Finally, the Judge added a further two weeks’ imprisonment to clear the appellant’s outstanding fines.9
Submissions
The appellant
[12] The undated s 27 cultural report prepared by Ms Karen Taylor and filed in support of the appeal was not before the sentencing Judge. It was prepared for the purposes of the appellant’s appeal after his sentencing. Mr Brickell for the appellant applies to have the report admitted for the purposes of the appeal on the grounds that it is in the interests of justice for this Court to consider its contents.
[13] Mr Brickell says the s 27 report provides a comprehensive account of the appellant’s background which is relevant to sentencing considerations. Counsel says Ms Taylor’s report details the appellant’s childhood, his relationships with his parents, his schooling, his early association with gangs and his related descent into addiction first to alcohol and then drugs. Mr Brickell says the pre-sentence report suggests that the appellant alluded to these issues in the course of his interview for the Department
7 At [10].
8 At [10].
9 At [15].
of Corrections pre-sentence report but they were not as developed in detail as they could have been.
[14] Mr Brickell says that the appellant had raised the possibility of obtaining a cultural report with his trial counsel prior to sentencing. The appellant says he was advised by his trial counsel that he was not eligible for funding to obtain a report. The appellant waived privilege and these issues were raised with his trial counsel. Mr Brickell says that there appears to be a conflict between the appellant and his trial counsel as to the reasons why a s 27 cultural report was not obtained, with trial counsel saying that he did not consider that there was a compelling case for obtaining a report.
[15] Substantively, the appellant submits that the s 27 report explains a causative contribution between factors in the appellant’s background, most notably his early exposure to violence, gangs and drugs and his resulting addiction to substances, and to his offending. Mr Brickell submits the appellant’s offending was driven by his addiction to methamphetamine which is now long standing, and has its roots in his upbringing. He says the report further provides information regarding the support network available to the appellant once he is released from prison, which when considered together with the appellant’s trade skills, are likely to be strongly protective factors when he is released into the community.
[16] Mr Brickell says that had the information detailed in the report been made available to the sentencing Judge, a further discount in the range of between 10–15 per cent would have been likely. He notes that had the sentence been reduced by the application of such a discount, the appellant could have been eligible to apply for home detention. Mr Brickell says a reduction of that kind would not amount to “tinkering” with the sentence, which is appropriately assessed by reference to the proportionate reduction of the sentence involved, rather than the period involved.
[17] Mr Brickell accordingly submits that the sentence of two years and six months’ imprisonment should be quashed and a sentence of between 24 and 26 months should be substituted. He submits that if a 24 month imprisonment sentence is substituted, leave will then be sought to apply for home detention.
[18] In response to the Crown submission that the Judge failed to apply an uplift to take account of the appellant’s prior convictions, Mr Brickell says that an uplift in the order of four to six months’ imprisonment as suggested by the Crown would be excessive and disproportionate to the sentences that were in fact imposed on the appellant in respect of the previous offending. He submits that the appellant’s prior offending would have been factored into the starting point adopted by the Judge for the offending, and was also taken into account by the Judge when deciding to allow a two month reduction on account of the 259 days the appellant spent on restrictive EM bail. Mr Brickell further submits that the sentencing objective of deterrence would also have been taken into account by the Judge when setting the starting point for the offending. And furthermore, the fact that the appellant maintained an offence free period of around six years during which he maintained a pro-social life-style and completed a painting apprenticeship before he succumbed to alcohol abuse and lost his job, is a factor that reduces the need for a deterrent sentence because he has shown that he is capable of living for an extended period without offending.
Respondent
[19] Ms Archibald for the respondent does not oppose admission of the s 27 report for the appeal. She acknowledges that the appellant’s background as detailed in the report may warrant a sentence reduction within the range of 10 to 15 per cent as sought by the appellant.
[20] However, the respondent submits that notwithstanding this Court accepting that a further sentence reduction as sought by the appellant is appropriate, nevertheless the sentence imposed is not manifestly excessive because in determining the sentence she imposed, the Judge failed to apply an uplift to take account of the appellant’s prior convictions. The respondent notes that the appellant had a number of recent and relevant previous convictions for dishonesty offending at the time he was sentenced for the index offending. The previous offending being:
(a)receiving property (under $500), for offending on 18 March 2020;
(b)unlawfully taking a motor vehicle, for offending 16 March 2020;
(c)theft (under $500), for offending on 19 February 2020;
(d)unlawfully taking a motor vehicle, for offending 23 January 2020;
(e)receiving property (under $500), for offending on 18 January 2020; and
(f)theft (under $500) for offending on 13 January 2019.
[21] The respondent submits that just as the appellant is entitled to a reduction of his sentence in recognition of his background circumstances, an uplift of his sentence is equally justified to take account of his relevant and recent previous convictions.
[22] Ms Archibald submits that taking into account an appropriate reduction for the appellant’s background, and also an appropriate uplift to take account of his recent and relevant previous convictions and the fact that some of his index offending was committed while he was subject to a sentence of supervision and on EM bail, the net effect of these adjustments would be to effectively cancel out the other, with the result that the sentence imposed by the Judge is not manifestly excessive.
[23] Ms Archibald says that an uplift of that order would not be disproportionate to the gravity of the prior offending and the sentences imposed in respect of that prior offending. She submits that if the appellant’s submission on this issue is correct, it would mean that a sentencing court could never uplift a prison sentence to take account of prior offending which itself had not attracted a prison sentence. Ms Archibald submits that having regard to the number and type of the recent and previous dishonesty offending by the appellant prior to his commission of the 12 further dishonesty offences for which he was sentenced, an uplift of around 10 per cent of the adjusted starting point to take account of the prior offending would not be disproportionate.
Approach on appeal
[24] Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow the 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.
[25]In any other case, the court must dismiss the appeal.10
[26] The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which that sentence is reached.11
Discussion
The appellant’s personal background and the s 27 report
[27] As explained by the Supreme Court in Berkland v R, contributory addiction and contributory deprivation are important factors which can help to explain how the offender came to offend and will amount to causative contribution and be relevant for the purpose of sentencing.12 The Court said:13
[107] There will always be connections between different dimensions of an offender’s background and their choice to offend, although the nature and strength those connections will vary. As the cases have said, background factors can be the “operative” or “proximate” cause of offending or they can make a less direct “causative contribution”.
[108] Where it can be established that background was an operative or proximate cause of the offending it is likely to be a potent sentencing factor. Proximate afflictions such as addiction or mental illness may be examples. There may be other background factors that invite similar inferences in particular cases. As we have said, restrictive rules or heuristics that tend to exclude factors at the outset without assessing their potential relevance have no place in the making of factual assessments. They create analytical blind spots.
[109] But requiring operative or proximate cause in every case sets the bar too high. We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as
10 Criminal Procedure Act 2011, s 250(3).
11 Ripia v R [2011] NZCA 101 at [15].
12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].
13 Footnotes omitted.
insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purposes of sentencing.
[28] The s 27 report prepared by Ms Taylor sets out a detailed account of the appellant’s personal background based on her interviews with the appellant, and information obtained from speaking with the appellant’s mother, father, and girlfriend, and also on her review of the prosecution summaries of fact and the appellant’s criminal history. In her report Ms Taylor describes the appellant as being subjected to and affected by: multiple instances of childhood physical and emotional violence from close family members; witnessing his parents’ drug use which included use of methamphetamine and dealing methamphetamine; frequent and normalised exposure to gang members and gang culture; first use of alcohol aged 12 and subsequent development of addiction to methamphetamine and alcohol abuse; truancy and court appearances multiple times during his adolescent years; and suffering serious injury in a car accident when aged 18 which thereafter prevented him from playing rugby league which was something in which he had previously excelled. The report also addresses the appellant’s cultural disconnection, noting that he is of both Māori and Samoan background, and feels more connected to the Samoan background and has limited knowledge of Māori culture. The report also addresses the issue of intergenerational trauma which arose from the harsh manner in which the appellant’s father had been raised as a child, which contributed to the manner in which the appellant says his father treated him during his childhood.
[29] These features of the appellant’s personal background are set out in considerably more detail than the personal background factors described in the Department of Corrections pre-sentence report. For example, as regards his exposure to and involvement with gangs and gang culture form an early stage, the s 27 report notes that although the appellant’s parents were not themselves members of any gangs,
many of their friends were, and by the time he was intermediate school age, he was associating with teenage boys who were gang members. From around that time he became involved in crime, committing burglaries and “that sort of stuff” under the direction of the older boys, and involvement with either the Bloods or the Crips gangs was quite normal. His criminal activities and association with the gangs led to poor attendance at school and subsequently to him being expelled from his secondary school at around 15 years old. It was also when he was 15 years old that he first tried using methamphetamine. He became a father at aged 16. Around two years after first trying methamphetamine, his addiction had developed to the point where he was using it daily and engaging in criminal offending to fund his methamphetamine addiction, mainly by means of dishonesty offending to obtain money to pay for methamphetamine. At one point he was spending around $2,000 per week on methamphetamine.
[30] The s 27 report notes that despite his methamphetamine addiction and gang involvement the appellant managed to obtain a plastering qualification, and when he was around 18 years old he and his partner went to live in Australia in order to get away from the gang scene in New Zealand and to quit using methamphetamine. The appellant told Ms Taylor that although he found “staying straight” difficult, during a period of around three and a half years when he worked as a plasterer in Australia he was drug free. When his relationship with his partner ended he resumed using methamphetamine. After being away in Australia for around five to six years, he returned to New Zealand addicted to methamphetamine, and soon resumed his association with the people he had been involved with before going to Australia.
[31] The appellant told Ms Taylor that he recognises that his association with other methamphetamine users is what gets him into trouble. He explained that all of his index offending was committed when he was associating with other heavy users of methamphetamine, and in circumstances where he and his associates would go out to get money to pay for methamphetamine in any way they could.
[32] Having regard to the matters set out in the s 27 report, I am satisfied that the appellant’s methamphetamine addiction is an operative and causative factor leading to his offending, and I am also satisfied that his personal family background as a child
and as a teenager in which he was exposed to gang culture and drug use which was normalised within his family, was a significant factor in leading to his association with gangs and drug use. His methamphetamine addiction clearly affected his decision- making and judgment in relation to engaging in criminal actions in order to obtain money to pay for more methamphetamine. This personal background and the appellant’s methamphetamine addiction are readily identifiable as having made a causative contribution to the appellant’s offending.
[33] While the admission of a s 27 report for the purposes of a sentence appeal when such a report could have and should have been obtained and produced to the sentencing court will not generally be permitted,14 where, as is the case here, the failure to obtain a s 27 report is satisfactorily explained, and the contents of the report inform features of the personal background of the appellant that are relevant to the proper and appropriate sentence for the offending, the Court can admit the report if it considers it is in the interests of justice to do so.
[34] I am satisfied that in the circumstances of this case it is in the interests of justice that the 27 report prepared by Ms Taylor be admitted for the purposes of the appeal. While it appears that there is some disagreement between the appellant and his former counsel as to what was discussed between them regarding the obtaining of a s 27 report for his sentencing in the District Court, it appears that there is no dispute that the appellant had raised the issue of obtaining a report with his counsel, and having done so a decision was made not to obtain a report. While it is not possible to resolve this dispute on the basis of the limited evidence before the Court, it is also unnecessary to do so in the present circumstances in which the Crown does not oppose the report being admitted as fresh evidence and considered by this Court. While it is not technically ‘fresh’, in that it could have been obtained by trial counsel prior to the appellant’s sentencing, having regard to the reasons why a report was not obtained for sentencing, I consider that the interests of justice clearly favour its admission to enable the appeal court to be fully informed of the appellant’s personal background and its contribution to the offending where there was comparatively limited information on that issue available to the sentencing Judge.
14 Carroll v R [2019] NZCA 172 at [8].
[35] While the appellant’s personal factors outlined in the now prepared s 27 report are addressed in the pre-sentence report that was before the sentencing Judge, as I have noted the detailed examination and account of the appellant’s background set out in the s 27 report demonstrate that the causative contribution they made to the appellant’s offending should be recognised as a mitigating factor and result in a discrete discount of the sentence imposed for his offending.
[36] I consider that the appellant’s personal background and methamphetamine addiction warrants a discount of 10 per cent of the adjusted starting point.
Uplift to take account of previous relevant convictions
[37] As I have noted the respondent submits that a further discount to take account of the appellant’s personal background and its causative contribution to his offending, would be effectively matched by an uplift to take account of the appellant’s recent and relevant prior offending. An uplift on account of an offender’s prior recent offending of a similar kind to their index offending, may be appropriate where the sentencing judge considers that it is necessary to reinforce the sentencing principles of deterrence and denunciation and to hold an offender accountable for their further offending when it appears to have been undertaken in disregard of the previous sentence and its deterrent objectives. An uplift of sentence on that account must be proportionate to the sentence or sentences previously imposed. Its rationale is to reinforce the sentencing objective of deterrence in circumstances where further repeat offending shows that the deterrent message conveyed by the previous sentence has failed to have the intended effect.
[38]In Orchard v R the Court of Appeal explained:15 .
[41] Secondly, we accept that some uplift for Mr Orchard’s previous breach of protection order offending was needed to reflect both deterrence and risk. But any such uplift must be proportionate to the sentence imposed for the original offence. An uplift is unlikely to be proportionate if it exceeds the prior sentence. Here, the original sentence for the first protection order breach in February 2015 was five months’ home detention and for the second, in August 2015, one month’s imprisonment. A discrete uplift of six months’ to
15 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 (footnotes omitted). See also Thomas v R
[2020] NZCA 257 at [18].
reflect that prior offending constitutes a “considerable degree of further punishment”, warranting reduction.
[42] We consider an uplift of no more than two months’ imprisonment to be appropriate.
[39] Here the appellant had committed a series of previous dishonesty offences during the period between 13 January 2019 and 18 March 2020 which included theft twice, receiving property twice, and unlawfully taking a motor vehicle twice. For the most recent of the unlawful taking of a motor vehicle offences prior to the index offending he was sentenced on 3 March 2021 to 12 months’ supervision and five months’ community detention.
[40] The prior offending was of a similar nature to the index offending and having regard to the appellant’s personal background as set out in the s 27 report, that previous offending like the appellant’s index offending, would also have been committed in circumstances where the motivation for the offending was driven by the appellant’s methamphetamine addiction. I consider that the appellant’s history of prior offending in a manner similar to that of the index offending, was appropriately taken into account by the Judge when she adopted an uplift of 24 months’ imprisonment for the offending other than the burglary offending which she took as the lead offence for sentencing purposes.
[41] The fact that some of the appellant’s index offending was committed while he was subject to a sentence of supervision and his 26 September 2022 burglary offending was committed while he was on EM bail is a factor which does justify an uplift. However the Judge appears to have factored that into that part of her decision in which she allowed a discount of two months on account of the eight and half months the appellant had spent on restrictive EM bail.
[42] I accordingly find that an uplift on account of prior offending and offending while subject to a sentence of supervision an while on EM bail, is not necessary or justified in the circumstances here.
[43] Allowing a 10 per cent discount to take account of the appellant’s personal background and its causative contribution to his offending would reduce his final
sentence to 26 months’ imprisonment. The two weeks’ imprisonment imposed by the Judge to clear the appellant’s fines remains in addition.
Result
[44] The appeal against sentence is allowed, and the sentence of two years and six months’ imprisonment imposed by the District Court Judge on 9 December 2022 is quashed, and substituted with a total sentence of two years, two months and two weeks’ imprisonment. The total sentence is comprised by:
(a)Concurrent sentences of 24 months’ imprisonment on each of the two burglary charges.
(b)Concurrent sentences of two months’ imprisonment on each of the other charges, with the two month sentence on those other charges to be served cumulatively with the 24 month sentence imposed for the burglary offending.
(c)Two weeks’ imprisonment to clear the appellants’ fines, to be served cumulatively with the 26 month sentence imposed in (a) and (b) for the other offences.
Paul Davison J
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