SOLICITOR-GENERAL AND PETER KOSETATINO
[2024] NZHC 1464
•5 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000063
[2024] NZHC 1464
BETWEEN SOLICITOR-GENERAL
Appellant
AND
PETER KOSETATINO
Respondent
Hearing: 20 May 2024 Appearances:
Z R Hamill and W J Harvey for Plaintiff
S R Norrie and L R Brown for Respondent
Judgment:
5 June 2024
Reissued:
20 November 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew
on 5 June 2024 at 3.00 pm and re-issued on 20 November 2024 pursuant to r 11.5 of the High Court Rules 2016
Registrar / Deputy Registrar Date …………………………….
SOLICITOR-GENERAL v KOSETATINO [2024] NZHC 1464 [5 June 2024]
Introduction
[1] The Solicitor-General appeals against a sentence imposed by the District Court1 in respect of two charges of aggravated robbery, one charge of sexual violation by rape and one charge of threatening to kill.2
[2] The appellant, Mr Kosetatino, was 17 years old at the time of the offending. He has no previous convictions. The District Court Judge adopted a starting point for her sentence of 11 years three months’ imprisonment. She then applied discounts totalling approximately 80 per cent, reaching an end sentence of two years, two months’ and one week imprisonment.
[3] The Solicitor-General contends that this was very serious offending and that the Judge erroneously gave separate and excessive discounts for overlapping personal features. She says these discounts were disproportionate to the starting point and the seriousness of the offending, resulting in a manifestly inadequate sentence.
[4] The Solicitor-General says that the minimum available end sentence was the end point adopted by the Judge in her sentence indication, namely three years and 11 months’ imprisonment.
Factual background
The offending
[5] At 1.00 am on 2 November 2022, Mr Kosetatino and an associate approached two members of the public (the first two victims) who were sitting on a bench in Albert Park, central Auckland. Both offenders were wielding knives. Mr Kosetatino held his knife to the chest of one victim; his associate held his knife at the other victim’s throat. They demanded the victims hand over all their property, and robbed them of their phones, a small amount of cash and cards, and some other personal items. The two offenders then left the park.
1 R v Kosetatino [2023] NZDC 28287. [Sentencing decision].
2 Crimes Act 1961, s 235(b): maximum penalty of 14 years’ imprisonment (aggravated robbery); Crimes Act 1961, ss 128(1)(a) and 128B(1): maximum penalty of 20 years’ imprisonment (sexual violation by rape); Crimes Act 1961, s 306: maximum penalty of seven years imprisonment (threatening to kill or do grievous bodily harm).
[6] Mr Kosetatino and an associate returned to Albert Park around 1.00 am five days later, again both armed with knives. They approached two members of the public, EF and GH (the second two victims), who were walking together in the park. They told the victims not to move or they would be stabbed, then ordered them to the ground. Mr Kosetatino’s associate robbed GH of his wallet. Mr Kosetatino took some personal items from EF, and while searching for more belongings, reached up under her top and squeezed her breasts. He then took her by the arm and walked her to a nearby bush, directing her movement at knifepoint. Mr Kosetatino’s associate, also still armed with a knife, prevented GH from intervening.
[7] Once in the bush area, Mr Kosetatino told EF to take off her pants. He inserted his penis into her vagina and raped her for about five minutes. He was holding the knife when he started raping her but then put it on the ground. He told EF he would stab her if she did not do as he said.
[8] After the rape, EF offered to get Mr Kosetatino and his associate some money if they let them go. She said she would need to go back to her apartment to get her phone in order to make the bank transfer. When GH tried to speak during this exchange, Mr Kosetatino put his knife to GH’s throat and said, “Shut the fuck up or I’ll kill you.” He agreed to take EF to get money and left GH with his associate, still held at knifepoint.
[9] While EF and Mr Kosetatino (still in possession of the knife) were walking towards EF’s home address she asked Mr Kosetatino to call his associate to ensure GH remained unharmed. Mr Kosetatino then tried to call several times, but when the calls went unanswered, he suddenly ran away, leaving EF alone on the street. His associate left GH in Albert Park after subsequently seeing the missed calls. Both offenders were arrested later that afternoon.
Procedural history
[10] Mr Kosetatino was arrested on 7 November 2022 and remanded in custody. He was granted electronically monitored (EM) bail on 10 February 2023 to a residential facility run by the Grace Foundation.
[11]On 1 May 2023, Mr Kosetatino received a sentence indication of:3
(a)A global starting point of 11 years and three months (135 months);4
(b)The following discounts:
(i)25 per cent for guilty plea;
(ii)30 per cent for youth; and
(iii)10 per cent for previous good character.
(c)The provisional end sentence was therefore three years 11 months’ imprisonment.
[12] The Judge explicitly left open the possibility of home detention. She noted Mr Kosetatino’s end sentence would be reduced by his time served on EM bail, his rehabilitation, and the cultural and psychological report.
[13] On 5 May 2023, Mr Kosetatino accepted the sentence indication and pleaded guilty to all four charges. The Judge then deferred sentencing to allow Mr Kosetatino to complete the SAFE programme.
Reports for sentencing
[14]The following reports were filed for sentencing:
(a)A s 38 report5 (6 June 2023);
(b)An initial SAFE report (6 June 2023);
3 R v PK DC Auckland CRI-2022-204-000343, 1 May 2023. [Sentencing indication].
4 This did not include any uplift for the charge of threatening to kill for the reasons the Judge later gave in her sentencing decision (i.e. ss 15B and 18 of the Sentencing Act 2002 and New Zealand Bill of Rights 1990, s 25(g)). See R v Kosetatino, above n 2 at [5]–[6].
5 Criminal Procedure (Mentally Impaired Persons) Act 2003, s38: provides that a court may order that a health assessor prepare an assessment report (s 38 report).
(c)A further SAFE report (13November 2023); and
(d)A s 27 cultural report6 (15 November 2023).
[15] A pre-sentence report (PAC report) was also prepared and provided on 7 December 2023. The Judge noted that there were significant conflicts in the factual narratives given by Mr Kosetatino to the respective report writers.
[16] Mr Kosetatino also tendered multiple reports on his rehabilitation. These included a report from the Grace Foundation remarking on his “positive transformations” and potential for leadership.7 The report detailed that he had remained drug and alcohol-free during his ten months at the facility and had reconnected with his family. Mr Kosetatino had engaged in Bible studies, Samoan language skills, CADS (Tupu Pacific), fitness programmes, educational programmes, community work programmes, Narcotics Anonymous, violence programmes and parenting programmes. The Grace Foundation continues to support Mr Kosetatino.
The sentencing decision
[17] At sentencing on 15 December 2023, the Judge adopted the starting point and discounts given in her sentencing indication.8 This resulted in a provisional end point of three years and 11 months’ imprisonment. From there the Judge then gave a 12 per cent discount for the “extensive rehabilitation [Mr Kosetatino] has done” as well as a five-month discount for the 10 months he spent on EM bail at the Grace Foundation.9
[18] The Judge’s determination that a further 12 per cent discount was available for rehabilitative steps was based on three factors:
(a)Mr Kosetatino had not offended at all while on EM bail for 10 months.
6 Sentencing Act 2002, s27: provides that an offender may request the court to hear a report on the personal, family, whanau, community and cultural background of the offender.
7 Grace Foundation letter dated 30 November 2023.
8 In regard to the charge of threatening to kill, the Judge convicted and discharged Mr Kosetatino. See R v Kosetatino, above n 2, at [5]–[6].
9 R v Kosetatino, above n 2, at [183].
(b)His “excellent involvement in stopping violence, alcohol and drugs, and in the SAFE programme”; “doing good work to right the wrong”; “showing that he wants to do good things”; and “involving himself in courses”.10
(c)Mr Kosetatino’s participation in SAFE. The Judge acknowledged that Mr Kosetatino had previously completed a SAFE programme (in 2020) and that his risk was still assessed by both Dr Whiting11 and the PAC report writer as being high. However, she considered Mr Kosetatino’s “exemplary” behaviour while at the Grace Foundation demonstrated that he was “ready” for rehabilitation “this time round”.12
[19] The reduction of five months was given for time spent on EM bail on the basis that Mr Kosetatino had “behaved really well on EM bail”.13 The Judge did note that his conditions were less stringent than normal given the extensive leave he had been granted to go out to complete activities with the Grace Foundation.
[20] Overall, the Judge adopted a discount of 77 per cent, in addition to the five- month credit applied for time spent on EM bail. As the Solicitor-General submits, from a starting point of 11 years and three months, the sentence was accordingly reduced by over nine years.
Relevant legal principles
[21] The Solicitor-General, on behalf of the Crown, appeals Mr Kosetatino’s sentence under s 246 of the Criminal Procedure Act 2011. This Court must allow the appeal only if satisfied there was an error in the sentence and a different sentence should be imposed.14
10 R v Kosetatino, above n 2, at [181].
11 Dr Whiting, consultant psychiatrist for Regional Forensic Psychiatry, compiled the s 38 psychiatric assessment report.
12 R v Kosetatino, above n 2, at [182]–[183].
13 R v Kosetatino, above n 2, at [184].
14 Criminal Procedure Act 2011, s 250(2).
[22] Particular principles govern Crown appeals.15 Crown appeals are not for borderline cases.16 As described in Adams on Criminal Law:17
Their main purpose is to maintain consistency in the application of sentencing principles in those cases that fall clearly below established sentencing levels, or in cases where it can be said that the sentence is manifestly inadequate even though there is no established pattern of sentencing.
[23] A sentence should not be increased unless either the Court is clearly of the opinion the sentence imposed was manifestly inadequate or the prosecution is able to point to some error in principle made by the sentencing Judge.18
[24] Where the Court finds that a sentence should be increased on the grounds of manifest inadequacy or error of principle, the increase will not be to the level that would have been imposed where the appellate court were the original sentencing court. Rather, it is to the minimum extent required to remedy the manifest inadequacy. The sentence should, in other words, only be increased to the level which accords with the lowest range of appropriate sentences.19
Analysis and decision
Issue (a) – Fresh evidence
[25] Mr Kosetatino applies to admit fresh evidence on appeal in the form of a joint psychological/psychiatric report prepared by:
(a)Dr Craig Immelman, a child and adolescent psychiatrist; and
(b)Dr Julia Ioane, a Pasifika clinical psychologist, specialising in youth and adolescent psychology.
15 Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAB5.09]; McCaslin-Whitehead v R [2023] NZCA 259 at [29]–[32].
16 R v Cargill [1990] 2 NZLR 138 (CA) at [140].
17 Adams on Criminal Law, above n 15, at [SAB5.09].
18 McCaslin-Whitehead v R, above n 15, at [30], citing R v Muavae [2000] 3 NZLR 483 (CA) at [10].
19 McCaslin-Whitehead v R, above n 15, at [32]; R v Ormsby-Turner [2023] NZCA 601 at [5].
[26] The Court is able to receive new evidence in an appeal if it considers it necessary or expedient in the interests of justice.20 Generally, new evidence will need to be credible and fresh, but the overriding criterion is the interests of justice.21
[27] The fresh evidence was filed to address issues that arose in the course of the sentencing hearing, namely the significant concern the Judge raised about the inconsistencies between Mr Kosetatino’s accounts to the various report writers regarding his background and the offending.22
[28] The report from Drs Immelman and Ioane directly addresses the issue of whether the inconsistent narratives given by Mr Kosetatino to the various report writers can be explained by any neurodevelopmental, cognitive and/or cultural factors. It concludes that the inconsistent narratives were likely due to cultural and communication factors.
[29] The Solicitor-General does not oppose the application to admit the fresh evidence.
[30] I find that the fresh evidence should be admitted. It is fresh, credible, and cogent and should be admitted in the interests of justice. The critical matter is the extent to which it is of relevance in determining the overriding issue of whether the end sentence was manifestly inadequate.
Issue (b) – Manifestly inadequate
[31] The Solicitor-General does not contest either the global starting point adopted by the Judge, or the 25 per cent discount given for guilty pleas. Nor does she seek to disturb the five-month discount given for time spent on EM bail. She does, however, submit that there was overlap in the factors that attributed to both that discount and the discount for rehabilitation.
20 Criminal Procedure Act 2011, s 335.
21 R v Bain [2004] 1 NZLR 638 (CA) at [22].
22 R v Kosetatino, above n 2, at [173] and [174].
[32] The appeal principally concerns the discounts given for Mr Kosetatino’s personal circumstances. The Solicitor-General submits that those discounts were excessive and disproportionate to the gravity of the offending.
[33] In her submissions opposing the appeal, Ms Norrie, for the respondent, emphasised the powerful combination of significant discounting factors: youth, guilty plea, rehabilitation, cultural factors, previous good character, and remorse. Her submissions emphasised the negative effects of imprisonment on young offenders. She made express reference to the recent expert evidence given by Dr Ian Lambie, Chief Science Advisor for the justice sector, in the Court of Appeal decision Dickey v R.23 This was accepted by the Crown as authoritative.24 Dr Lambie observed:25
… the existing research shows that the longer a young person is incarcerated, the worse their psychological wellbeing is, the higher the risk of recidivism and the less likely it is they will ever achieve a productive adult future.
[34] Ms Norrie submitted that the public would ultimately be protected from Mr Kosetatino if he is given the opportunity to address the underlying causes of his offending behaviours in a therapeutically appropriate way. She submits this will not be achieved by increasing the length of his sentence.
[35] This was serious offending as the Judge correctly acknowledged.26 That is reflected in the starting point adopted and which the Solicitor-General does not challenge. In relation to the lead charge of sexual violation by rape, s 128B(2) of the Crimes Act 1961 is engaged. That section states that a person convicted of sexual violation must be sentenced to imprisonment except in specified circumstances.
[36] In my view, the Judge correctly identified the aggravating features of the offending at step 1 of the Moses methodology.27
23 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [77].
24 Dickey v R, above n 23, at [86].
25 Dickey v R, above n 23, at [82].
26 R v Kosetatino, above n 2, at [186].
27 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. At the first step, the Court calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence.
[37] In relation to the rape charge, there was a use of violence through the threats with the knife which coerced EF (the victim) to go with Mr Kosetatino against her will. EF was taken from her companion, GH, in circumstances in which he could not help protect her. She was very much alone in a bush in the darkness with no-one to assist her. Mr Kosetatino held EF at knifepoint and directed her to take off her clothes. The knife was nearby (laid on the ground) when the sexual violation took place. The sexual violation took place over the course of five minutes; it was not brief or fleeting. The victim had to endure, unprotected, non-consensual and penetrative sex with a stranger in circumstances which caused her psychological damage. Finally, Mr Kosetatino (still in possession of the knife) took EF from the scene with the promise of a bank transfer, before suddenly leaving and not harming her further.28
[38] In relation to the aggravated robberies (with an accomplice), there were two offences that occurred within a week of each other in which knives were used on both occasions. Both robberies occurred at night in a park, in the dark, with no-one else around. The victims were confronted with two people brandishing knives, threatening violence and stealing items from them.
[39] Ms Norrie submitted that the starting point adopted by the Judge, namely 11 years and three months imprisonment, was stern. However, in my view, it was within the available range and appropriately reflected the seriousness of the offending.29 In my opinion, this case is broadly comparable with the recent decision of Gordon J in R v Bridgeman.30 In relation to the two aggravated robberies, the Judge correctly acknowledged that on their own they would involve a high starting point.31
[40] I turn to the critical issue, step 2 of the Moses methodology.32 As the Court of Appeal has frequently recognised, in fixing discounts the Court must be mindful that
28 R v Kosetatino, above n 2, at [165]–[166].
29 The Judge placed the rape offending in the middle of band 2 (seven to 13 years) of R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
30 R v Bridgeman [2022] NZHC 450, where a starting point of nine years on a charge of sexual violation by rape was adopted.
31 R v Kosetatino, above n 2, at [168].
32 Moses v R, above n 27. At the second step, the Court incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount (which should be quantified as a percentage of the adjusted starting point does not exceed the maximum of 25 per cent of the adjusted starting point).
the end sentence remains a proportionate response to the offending, particularly when that offending is serious.33 It is always necessary to stand back and make an overall assessment when sentencing.34 Furthermore, discounts can overlap and “there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up.”35
[41] I accept that in this case Mr Kosetatino was entitled to substantial discounts for a combination of significant discounting factors. This included youth (for which a generous discount was appropriate) previous good character and positive rehabilitative steps taken. However, I find that the Judge was ultimately in error in not standing back and considering whether, when added up, the discounts led to a sentence that was not in proportion to the gravity of the offending.
[42] In parts of her judgment the Judge was certainly alive to the need to stand back and take an overall assessment. She correctly noted that sentencing is not “about finding percentages and ramming them all together and getting a discount and then saying ‘That’s it.’”36 She also referred to the issue of discounts exceeding 100 per cent and the need to avoid excessive discounts.37 However, despite making those observations, her final conclusion was very much a mathematical exercise and a failure, in my view, to stand back and make the necessary overall assessment.
[43] I accept that there may have been no technical error by the Judge in adopting separate discounts for discrete mitigating factors. However, care must always then be taken to avoid double counting. Furthermore, where there are overlapping personal mitigating factors, the Court should consider whether it is more appropriate to fix a global discount, rather than calculating individual discounts in isolation.38
[44] In this case, the Judge reached a combined discount of 52 per cent for factors of youth (30 per cent), previous good character (10 per cent), and rehabilitation (12 per cent). In other words, even before she applied the maximum discount of 25 per
33 McCaslin-Whitehead, above n 15, at [61].
34 Dickey v R, above n 23, at [175].
35 Dickey v R, above n 23, at [175].
36 R v Kosetatino, above n 2, at [121].
37 R v Kosetatino, above n 2, at [121].
38 R v Ormsby-Turner, above n 19, at [85]–[86].
cent for the guilty pleas, the discounts exceeded 50 per cent. I agree with the submission of the Solicitor-General that by providing a series of discrete discounts in this manner, when those discounts relied on a number of the same underlying factors, they resulted in a manifestly excessive composite discount.
[45] I accept that in principle youth and rehabilitation can be treated separately. However, it is important to recognise that there can be overlap between youth and rehabilitation. Youth is recognised as a discounting factor because of both the inherent neurological factors associated with youth and the increased rehabilitative potential of young people.39 In this case, the Judge having fixed the youth discount at 30 per cent also took youth into account when assessing the separate discount for rehabilitation.40
[46] I also find there was an element of double counting by the Judge for the quantum of discount given for time spent on EM bail (five months discount) and the discount given for rehabilitation. In relation to time spent on EM bail, her Honour commented that Mr Kosetatino had “behaved really well on EM bail” and she acknowledged “his good behaviour on EM bail and the time that he has spent without putting a foot out of line.”41 However, Her Honour also considered it relevant to her assessment of rehabilitation that Mr Kosetatino had “not stepped a foot out of line in 10 months” nor “foiled his bracelet” nor “cut it off and absconded.”42
[47] In principle, the Judge was correct in identifying a separate discount for previous good character. However, in circumstances where Mr Kosetatino had previously failed to engage in CADS and had gone on to commit a serious sexual offence after actually engaging in a SAFE programme (while still assessed as being at risk of further sexual offending), 10 per cent, when viewed in the round, was on the very high side.
[48] I acknowledge that sentencing young people to a term of imprisonment is never an easy task. There is force in Ms Norrie’s submission that prison can have negative
39 R v Kosetatino, above n 2, at [85]; Dickey v R, above n 23, at [85]; Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
40 R v Kosetatino, above n 2, at [182].
41 R v Kosetatino, above n 2, at [184].
42 R v Kosetatino, above n 2, at [182].
and counter-productive consequences for young people in particular. There are competing tensions to address and balance, and rehabilitation is to be encouraged. The Judge carefully and conscientiously attempted to address and reconcile the many reports made available to her. She was also no doubt mindful of the sentence indication which raised the possibility of a sentence of home detention.43 Ultimately, however, it is necessary to apply the purposes and principles of the Sentencing Act 2002 (mandatory legislative requirements). These include accountability, denunciation, deterrence, victim harm and protection of the community. In my view, the Judge was in error in her application of these principles in this case.
[49] As I have emphasised, this was serious offending. It carried significant implications for public safety, being two sets of offending against strangers in a public setting, by two associates, each armed with knives. Threats of violence and use of the knives to reinforce those threats, occurred on both occasions. Mr Kosetatino’s rape offending, at knifepoint, against a member of the public walking through a central Auckland park, was grave. It caused the victim extensive and ongoing harm.44
[50] The fresh evidence tendered on Mr Kosetatino’s behalf is helpful in seeking to explain the inconsistent accounts given to the various report writers. It may also assist with his rehabilitation. However, it is ultimately of limited assistance or relevance in determining the critical issue of whether the sentence was manifestly inadequate.
[51] There may also be merit in Ms Norrie’s submission about remorse. However, sentencing is not a case of simply adding up the various discounts. Neither the fresh evidence nor the factor of remorse, whether added separately or considered in combination, can trump the need for an overall proportionate sentence and the application of the totality principle.
43 R v PK, above n 3, at [140]–[141].
44 The Victim Impact Statement of EF states that she suffered post-traumatic stress disorder, depression, anxiety, and bi-polar disorder. The incident impacted her life course. [This part of the footnote is redacted and will be omitted from all copies of this decision, other than the original on the court file and the copy delivered to counsel].
Conclusion
[52] I find that the Judge was in error in giving an excessive overall discount for personal factors resulting in an end sentence that was disproportionate to the starting point and the seriousness of the offending. That end sentence was manifestly inadequate.
[53] Consistent with this being a Solicitor-General appeal, the minimum available end sentence was the end point adopted by the Judge in her sentence indication, namely three years and 11 months’ imprisonment.
Result
[54]The appeal is allowed.
[55] In substitution for the District Court sentence of two years, two months’ and one week imprisonment, I substitute a sentence of three years and 11 months’ imprisonment.
Andrew J
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