Solicitor-General v Kaokao

[2019] NZHC 2352

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000293

[2019] NZHC 2352

BETWEEN

SOLICITOR-GENERAL

Appellant

AND

JOSEPH KATAINA KAOKAO

Respondent

Hearing:

26 August 2019

Appearances:

E Hoskin for the Appellant

S Tait and J Hudson for the Respondent

Judgment:

18 September 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 18 September 2019 at 11:00 am.

Registrar/Deputy Registrar Date:

Solicitors:           Crown Law, Wellington Counsel:     S Tait, Barrister, Manukau City

SOLICITOR-GENERAL v KAOKAO [2019] NZHC 2352 [18 September 2019]

[1]    On 28 April 2018, Joseph Kataina Kaokao was given a sentence indication of three years and nine months’ imprisonment on charges of sexual violation by unlawful sexual connection and sexual violation by rape. The victim was a friend who fell asleep on his couch following a party in 2009. On 4 May 2018, Mr Kaokao pleaded guilty to both charges. On 29 May 2019, Mr Kaokao was sentenced to 12 months’ home detention and 200 hours’ community work. The Solicitor-General now appeals against the sentence on the basis that:

(a)The Judge granted a discount for remorse and rehabilitation, which was excessive and contrary to established authority; and

(b)The Judge erred by grouping all discounts for mitigating factors together, rather than discounting for a guilty plea after all other factors had been considered. This produced a sentence that was manifestly inadequate in the circumstances.

Summary of facts

[2]    The respondent and victim are known to each other and had been friends for a number of years at the time of the offending. The victim’s best friend is married to the respondent’s brother.

[3]    On Saturday 11 July 2009, the respondent and the victim both attended the thirtieth birthday party of the respondent’s  partner.  In the early hours  of Sunday   12 July 2009, a number of people returned to the respondent’s home address and continued to drink in the garage. The respondent and victim were both intoxicated by this stage. The victim decided to stay the night at the address, as her vehicle was parked somewhere else.

[4]    The victim went to sleep on a couch in the living room. The respondent went to sleep with his partner in another room. The victim was wearing a dress with tights and underwear when she went to sleep. She was woken by the respondent performing oral sex on her. Her tights and underwear were on the floor and the respondent’s mouth was on her genitalia. The victim was in shock and did not react. The respondent crawled on top of her and inserted his penis into her vagina. The respondent then had

sex with the victim and ejaculated inside her. During the incident, the respondent and victim did not speak to each other. After the respondent ejaculated, he left and returned to his own room. When spoken to eight years later, the respondent stated that he did not remember the details of the incident as he was intoxicated, but stated that if that was what the victim said, that must be what occurred.

Sentencing

[5]    At the sentence indication hearing, Judge S Patel adopted a starting point of six years’ imprisonment. The Judge also indicated the respondent would receive discount of 12 months’ imprisonment (16.6 per cent) for good character, which would bring the sentence down to five years’ imprisonment, and 25 per cent for his early guilty pleas, which would bring the sentence down further to three years and nine months’ imprisonment. The Judge indicated there could be further discounts at sentencing, depending on whether the respondent took part in a restorative justice conference or other forms of rehabilitation.

[6]    At sentencing over a year later, in addition to the discounts indicated earlier, the Judge also granted a further discount of 26 per cent to take into account the respondent’s remorse, rehabilitation and “humanitarian considerations”. To calculate the respondent’s end sentence, the Judge grouped all of these discounts together and reduced the starting point by 66 per cent, rather than applying the guilty plea discount after other mitigating factors were considered. The Judge relied on the High Court decision of Reweti v R as authority for this approach.1 This produced a sentence of two years’ imprisonment.

[7]    Section 128B(2) of the Crimes Act 1961 provides for a presumption of imprisonment for sexual violence. The Judge considered this was displaced in the respondent’s case because he was genuinely remorseful, had made significant efforts to rehabilitate himself, including completing the Relapse Prevention programme and had positive character references from his partner and current employer. A clinical psychologist, Dr Woodcock, had also completed an assessment, which concluded the

1      Reweti v R [2018] NZHC 809 at [23].

respondent was at low risk of reoffending. Finally, the offences had occurred over  10 years previously and the respondent had not subsequently offended.

[8]    In light of these factors, rather than sentence the respondent to two years’ imprisonment, the Judge imposed an end sentence of 12 months’ home detention and 200 hours community work.

Approach to appeal

[9]    The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:2

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[10]   This court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.3 The sentence does not have to be ‘manifestly excessive’ or ‘manifestly inadequate’, but these are helpful concepts for assessing whether an error is material enough to justify an appeal.4 The focus is on whether the end sentence was within range.5  Because it  is a Solicitor-General's appeal against sentence, this Court will be reluctant to increase a sentence and will only do so in clear-cut cases where compelling reasons are presented.6

Crown submissions

Discount for remorse and rehabilitation

[11]   The Crown accepts the respondent is remorseful and has taken rehabilitative steps and acknowledges that it is well recognised that genuine remorse can be considered as a discrete mitigating factor.7 However, the Crown submits that the

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279 at [30].

4 At [35].

5 At [36].

6      R v Beaman CA177/82, 16 November 1982.

7      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

26 per cent discount for remorse and rehabilitation is excessive and contrary to authority. The Crown submits that additional discounts of around five to eight per cent have been considered appropriate where there is tangible evidence of genuine remorse.8 The Crown states the 26 per cent remorse discount is well outside this range. When the respondent’s remorse, rehabilitation, good character and lack of previous convictions are considered together, a total discount of 41 per cent has been applied for these personal mitigating factors combined.

[12]   The sentencing Judge drew support for his approach from V v R and Solicitor- General v Heta.9 The Crown distinguishes these cases: the 30 per cent discount upheld on appeal in V v R encompassed all of V’s personal mitigating circumstances (youth, rehabilitation, remorse) and in Solicitor-General v Heta, the Court upheld a 30 per cent discount based on s 27 report factors (relating to the defendant’s culpability and rehabilitation), plus 10 per cent for positive participation in a restorative justice process. The Crown submits that such mitigating circumstances are not present here.

[13]   The Crown notes that similar discounts have been applied in other cases, but submits these include the substantially mitigating factor of youth, like V v R.10 The Crown submits that discounts are less substantial where youth is not a factor. In R v Findlay, the Court of Appeal considered a 50 per cent discount for previous good character and service to the community was excessive and  reduced it on  appeal to 25 per cent.11

[14]   On this basis, the Crown submits that a 26 per cent discount for the respondent’s remorse and rehabilitative efforts was unduly lenient and elevated the overall discount for personal mitigating factors to a level which was unsupported by authority.

8      McArthur v R [2013] NZCA 600 at [13]-[14]; Rowles v R [2016] NZCA 208 at [17]-[18]; Watene

v R NZCA 381 at [18]; Poi v R [2015] NZCA 300 at [7]-[8].

9      V v R [2012] NZCA 465; Solicitor-General v Heta [2018] NZHC 2453.

10     M (CA468/2018) v R [2018] NZCA 630 and BB (CA732/2012) v R [2013] NZCA 139.

11     R v Findlay [2007] NZCA 553.

Guilty plea methodology

[15]   The Crown acknowledges that the respondent’s guilty pleas should attract the full 25 per cent discount. However, the Crown submits that the Judge should have followed the orthodox approach and applied the guilty plea discount after all other factors had been applied.

[16]   The standard approach derives from the Court of Appeal’s decision in Hessell v R, where the Court said a discount for a guilty plea “is to be seen as a discrete mitigating factor”, provided as “the final step in the sentencing process”.12

[17]   Instead of adopting this settled methodology, the Judge preferred the approach taken by France J in Reweti v R, in which all discounts were grouped together and then applied simultaneously.13 In that case, France J drew support from the Supreme Court’s observations in Hessell, that what matters is a:14

… call for evaluation by the sentencing Judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[18]   In Reweti, France J considered home detention to be the right sentence in the circumstances and grouped together the discounts to achieve that end. Altering the methodology increased the guilty plea discount by three months, reducing the sentence to one of 22 months’ imprisonment, rather than 25 months’ imprisonment.

[19]   The Crown acknowledges that the approach taken in Reweti has been considered in three subsequent High Court decisions.15 The Crown submits that the cases in which there have been departures from the orthodox methodology involve a marginal difference in the sentence and a need for a merciful approach. The Crown submits that in the present case the difference caused to the respondent’s guilty plea discount is significantly more than marginal. Using the sequential method, the 25 per cent guilty plea discount would have resulted in a 10 and a half month discount,

12     Hessell v R [2009] NZCA 450, [2010] 1 NZLR 298 at [21].

13     Reweti v R [2018] NZHC 809 at [23].

14     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72]-[77]; cited in Reweti v R [2018] NZHC 809 at [23].

15     Barlow v R [2019] NZHC 725, Peke-Meihana v R [2019] NZHC 642, and R v Kokiri [2019] NZHC 501.

bringing the end sentence to a little under 32 months’ imprisonment. By contrast, the global discount methodology resulted in an 18 month reduction attributable to the guilty pleas, bringing about an end sentence of 24 months’ imprisonment. Changing the methodology increased the guilty plea discount by seven and half months, nearly doubling its effect. For this reason, the Crown submits that this is not an appropriate case for invoking the Reweti methodology.

[20]   Another reason relied on by the Crown is the nature of the respondent’s offending. Although the Reweti approach may be considered appropriate in some circumstances, the respondent’s offending is specifically of the type and nature that Parliament has stipulated warrants a presumption in favour of imprisonment.16 The Crown submits it is inappropriate to depart from settled methodology for the sole purpose of making a sentence less than imprisonment available in the face of this presumption.

[21]   The Crown submits that the mitigating factors relied on by the Judge for displacing the presumption are similar to those which were unsuccessfully put forward in R v Donaldson.17 In that case, both offenders came before the Court at a mature age with no criminal history, favourable references, genuine remorse, having undertaken voluntary counselling and after pleading guilty. However, the Court of Appeal had no hesitation in concluding that:18

Even when due weight is given to these mitigating factors, they do not outweigh the need for the Court to impose a custodial sentence which is appropriate to reflect the seriousness of the offence. Such offending must be met with a sentence which is sufficiently substantial to mark the community’s denunciation of it and to reaffirm the community’s approbation of the human values which were denied in the process. Further, it must be a sentence which recognises the ordeal and continued psychological pain of the victim.

Respondent submissions

[22]   Counsel for the respondent submits that the sentence imposed is at the lower end of the scale, but it is not manifestly inadequate.

16     Crimes Act 1961 s 128B(2).

17     R v Donaldson (1997) 14 CRNZ 537.

18     At 650.

[23]   Counsel notes that in setting the discount for remorse and rehabilitation, the Judge observed there was no upper limit in relation to discounts. Counsel distinguished the case put forward by the Crown, R v Findlay, as the large discount for the appellant’s previous good character was reduced because of his obvious lack of remorse.19 Accordingly, counsel submits that the discounts in this case were not out of range because the respondent has the benefit of multiple mitigating factors.

[24]   As for the guilty plea discount, counsel submits that the Judge used the Reweti approach for the same reasons it was taken in that case.20 The outcome of the sentence, whether or not home detention was available, would be determined by where the plea discount was applied. Counsel noted that the Court of Appeal has said on numerous occasions that home detention is a deterrent sentence,21 but submits that the present facts do not require deterrence to take precedence as the respondent quickly took responsibility and willingly undertook rehabilitative steps.

Discussion

[25]   Firstly, as to the remorse and rehabilitation discount awarded by the Judge, there is no doubt that during the year that the respondent was on remand after pleading guilty, he made extensive rehabilitative efforts with the assistance of the Court, who adjourned the sentencing from time to time to enable him to do so. He completed the Adult Relapse Prevention Treatment programme for sexual offenders, written and published by the Safer Society Press, through Mr Greg Woodcock of Auckland Psychological Associates Limited. Mr Woodcock told the Court that the effort the respondent put into the programme was exemplary. Mr Woodcock also said the reason the respondent benefitted from the therapeutic input provided by him was because he was genuinely empathetic and very conscious of the grief that he caused the victim by his offending.

[26]   Such engagement in extensive rehabilitation programmes can merit significant discounts. At the sentencing hearing on 29 May 2019, the Crown’s submission was that the respondent was entitled to an extra 15 - 20 per cent discount for remorse and

19     R v Findlay [2007] NZCA 553.

20     Reweti v R [2018] NZHC 809 at [24].

21     R v Iosefa [2008] NZCA 453 at [41].

rehabilitation. The Judge therefore granted only a six per cent discount over and above what the Crown submitted was appropriate.

[27]   Nevertheless, a 26 per cent discount for remorse, rehabilitation and humanitarian considerations is extremely generous, especially since it was awarded on top of a 16.6 per cent good character discount. Discounts of this scale only tend to be awarded for extreme mitigating circumstances such as youth, or time spent on restrictive bail.22

[28]   In setting the 26 per cent discount, the Judge seems to also have taken into account factors that were counted in the discrete good character discount, such as the fact that the offending was out of character for the respondent or that, according to Mr Woodcock, there is only a remote chance that he will offend again.

[29]   Lastly, any credit the respondent receives for his remorse and good attitude must be tempered by the fact that the offending occurred in 2009. In Ashcroft v R the Court of Appeal upheld a 10 per cent deduction for genuine remorse and reparation, as the appellant had done nothing about his offending for years until complaints were made.23 Although the respondent’s rehabilitative efforts are admirable, the most significant discounts in rape cases tend to be reserved for offenders who turn themselves in.24 It cannot be said here that the respondent quickly took responsibility for his actions.

[30]   Overall, the Judge’s discount for remorse and rehabilitative efforts was too great and elevated the total reduction for mitigating circumstances outside the available range. The Judge appears to have selected the discount to achieve the desired outcome of a sentence of home detention. The Court of Appeal has said that an otherwise appropriate sentence of imprisonment should not be lowered artificially to enable home detention to be considered.25

22 R v Hereora [2012] NZHC 3422: The Court awarded a 40 per cent discount, which they acknowledged was an “extreme proportion”, when the defendant had been on restrictive bail conditions for over two years and had made serious rehabilitative gains.

23     Ashcroft v R [2014] NZCA 551 at [29].

24     R v Sanday CA 146/99, 29 July 1999; D v Police (2000) 17 CRNZ 454.

25     R v Edwards [2006] 3 NZLR 180 at [24].

[31]   I have looked at the cases put forward by the Crown,26 as well as other similar cases,27 and consider that the overall discount to recognise the respondent’s combined personal mitigating factors (his good character, his remorse, rehabilitative efforts and other humanitarian factors) should be no more than 33 per cent (double the discount specified in the sentence indication of 16.6 per cent for good character alone).

[32]   Secondly, it is questionable whether it was open to the Judge to use the Reweti approach to guilty plea discounts. The Reweti approach is best suited to finely balanced cases:28

[8]  … to apply the guilty discount plea on discounted starting points achieves consistency in form not substance. To illustrate, a person who commits an offence with identified aggravating factors, but no mitigating factors will receive a larger guilty plea discount than a person who commits the same offence, with the same aggravating features, but with substantial personal mitigating features.

[9]  In any event, cases like the present, and Rewiti and Kokiri, which so plainly call for a merciful approach are principled exceptions to the orthodoxy. These are not marginal cases of arithmetic engineering to reach eligibility for home detention. Rather these are cases where formulaic consistency must yield to substance.

[33]   This is not a matter that “so plainly calls for a merciful approach”, given the generous discounts granted and the nature of the offending. It is an accepted principle that rape is inherently violent and harmful,29 and there is a statutory presumption in favour of sexual offenders receiving sentences of imprisonment.30

[34]   Further, the Reweti approach has been recommended as a way to accommodate an overlap between guilty pleas and interdependent mitigating factors, such as remorse or assistance to investigations.31 Here, the sentencing Judge awarded discrete and generous discounts for the related mitigating factors.

26 R v Findlay [2007] NZCA 553.

27  L E v R [2013] NZCA 264, concerning sexual offences, where the Court of Appeal awarded a 33 per cent discount for the mental disability and youth of an appellant; and Clarke v R [2016] NZCA 91, concerning sexual offences, where the Court of Appeal upheld a 35 per cent discount for the appellant’s youth at the time of the offending, his lack of offending in the 25 years since, his full cooperation with inquiries and the hardship his conviction would cause, as he lived in Australia.

28 Barlow v R [2009] NZHC 725.

29 R v AM (CA 27-2009) [2010] NZCA 114, [2010] 2 NZLR 750, (2010) 24 CRNZ 540.
30 Crimes Act 1961, s 128B.

31 Luke Elborough “Sentencing in Hard Cases: Just Outcomes Through a Holistic Approach” (2019) NZLJ 45 at 47.

[35]   This is not a marginal case and the difference in the outcome of the two guilty plea approaches is substantial. Although the application of all discounts on a global basis as utilised by France J in Reweti has not yet received detailed consideration by the Court of Appeal,32 I am of the view that the Judge was wrong to utilise the Reweti approach here because it cannot be said that a sentence of home detention was the right outcome in all the circumstances. The Judge utilised a sequential approach in his sentence indication of three years and nine months’ imprisonment. There was no justification to change to a global approach on sentencing when it made such a significant difference.

Conclusion on sentencing

[36]   Bearing in mind that this is a Solicitor-General’s appeal, I have concluded that the considerations justifying an increase in sentence are sufficiently compelling. The sentencing exercise at the District Court seems to have been contrived to ensure the respondent would be eligible for home detention. A sentence of home detention does not reflect the gravity and the harmfulness of the respondent’s offending. The Judge erred materially in setting discounts for the respondent’s personal mitigating circumstances and in utilising the Reweti approach, resulting in a manifestly inadequate end sentence.

[37]   I can only increase a sentence to the lowest end of the applicable range, not to the level I would have imposed if sentencing afresh.33 Also, I acknowledge the harsh effect of substituting a sentence of home detention with a prison sentence, but this consideration does not mean the original sentence has to be left in place.34

[38]   Accordingly, from the starting point of six years’ imprisonment, a 33 per cent deduction for the respondent’s personal mitigating factors is appropriate, which brings the sentence down to four years’ imprisonment. A 25 per cent discount for the respondent’s guilty plea is then applied to further reduce the sentence to three years’ imprisonment.

32 In R v The Queen [2018] NZCA 582, the Court of Appeal refused leave to amend the grounds of appeal to include another ground that the sentencing Judge should have adopted France J’s sentencing methodology in Reweti.

33 R v Fidow [2013] NZCA 209 at [30].

34 R v Donaldson (1997) 14 CRNZ 537 (CA) at 549—550.

[39]   Finally, credit must be given for the portion of the home detention sentence that the respondent has already served and his completion of 70 hours’ community work. On a proportional basis, a six month discount for time served on home detention and doing community service is appropriate.35 This makes the end sentence on both charges one of two years and six months’ imprisonment.

Result

[40]   The sentence of 12 months’ home detention and 200 hours’ community work is quashed and a sentence of two years and six months’ imprisonment is imposed concurrently on each charge.

[41]   The respondent is directed to surrender himself to the Registrar of Manukau District Court at 12 noon on Tuesday, 24 September 2019 to commence serving his sentence.

Woolford J

35 One month’s home detention is equivalent to two months’ imprisonment in terms of the end sentence, but this does not necessarily translate to replacing a sentence of home detention with twice the period of imprisonment: R v Fidow [2013] NZCA 209, a one and a half month discount was applied for one month spent on home detention. In R v Pene [2010] NZCA 387, a five month discount was applied for four months on home detention and 51 hours of community work.