Sorensen v The Queen
[2020] NZHC 2982
•11 November 2020
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2020-476-000016
[2020] NZHC 2982
BETWEEN CLINT HUIA SORENSEN
Appellant
AND
R
Respondent
Hearing: 03 November 2020 Counsel:
A L Hollingworth and C A Twyman for the Appellant H V Bennett for the Respondent
Judgment:
11 November 2020
JUDGMENT OF DOOGUE J
Introduction
[1] Mr Clint Huia Sorensen appeals against a sentence of 27 months’ imprisonment imposed by Judge Maze in the District Court at Timaru 6 August 2020,1 for one charge of robbery (representative).2
[2]The appeal is brought on the following grounds:
(a)the Judge erred by giving an inadequate discount for personal mitigating factors, in particular by failing to adequately consider Mr Sorensen’s cultural report under s 27 of the Sentencing Act 2002; and
1 R v Sorensen [2020] NZDC 15691.
2 Crimes Act 1961, s 234(1); maximum penalty 10 years’ imprisonment.
SORENSEN v R [2020] NZHC 2982 [11 November 2020]
(b)the District Court Judge erred by failing to have regard to parity with the co-offender’s end sentence of 23 months’ imprisonment, with leave to apply for home detention.
[3] Mr Sorensen submitted that these errors led to the imposition of an end sentence that was manifestly excessive.
[4] The Crown submitted that the Judge made no errors, and that the end sentence imposed was within the range available .
Background
[5] At around 7 pm on 10 January 2019, Mr Sorensen and his co-offender, Ms Nikelle Richmond-Henke, travelled by car to the home address of Ms K in Timaru. Ms M was also present at Ms K’s address. Mr Sorensen and Ms Richmond-Henke knew Ms K, and were angry about an earlier dispute.
[6] On arrival, Mr Sorensen and Ms Richmond-Henke entered the address through the backdoor and met Ms K in the hallway. Ms K picked up a samurai sword from a bedroom and come back into the hallway, brandishing it. Mr Sorensen picked up a can of bourbon that was in the hallway and threw it at Ms K’s face. Her vision was temporarily affected due to the liquid from the can getting into her eyes.
[7] Ms K continued to brandish the samurai sword. Mr Sorensen picked up a chainsaw that was in the hallway and used it strike the sword away from Ms K. Ms Richmond-Henke then tackled Ms K to the ground, pinning her down and cutting her hair with scissors. Mr Sorensen turned the chainsaw on (it was accepted that it was missing a chain) and approached Ms K, who was wrestling with Ms Richmond- Henke on the ground. Mr Sorensen told Ms K to leave some mutual associates alone.
[8] Ms Richmond-Henke then stood up and met Ms M in the hallway, and threatened her with a weapon while pushing her forehead up against Ms M’s forehead. Ms Richmond-Henke then returned to Ms K, who was still on the ground.
[9] Mr Sorensen and Ms Richmound-Henke then entered Ms K’s bedroom and took a number of items, before leaving the address. Ms K was left with bruising and a black eye. Ms M suffered no injuries, but both women were frightened by the event. Mr Sorensen and Ms Richmond-Henke were each charged with, and pleaded guilty to, one representative charge of robbery.
District Court decision
[10] The Judge considered the aggravating factors of the offending were that: there were two offenders; they entered the victim’s home without permission; and they went there seeking a confrontation, even if the use of weapons was unplanned. She adopted a starting point of three and a half years for each offender, to reflect those aggravating features of the offending.
[11] The Judge then turned to personal factors. She imposed an uplift of three months each for personal aggravating factors, accepting there was “no real basis to differentiate between” the two offenders.
[12] The Judge gave each offender a discount of 18 months for personal mitigating factors. This reflected a 25 per cent for guilty plea, and efforts at self-improvement in relation to personal impairments and limitations. In respect of Mr Sorensen, the Judge took into account his letter of apology. She went into some detail about the contents of a psychological report, which indicated that Mr Sorensen has resorted to gang association as a result of abuse in his childhood, among other issues. The report stated Mr Sorensen recognised he needed to address his drug abuse, and that he had put his time in custody to good use by undertaking counselling and study. The Judge recorded the cultural report provided a different lens, but entirely supported the conclusions in the medical report:
[11] A medical report indicates that you suffered from infancy from exposure to abuse, as a result of alcohol and other drug abuse by a parent. You experienced marked difficulties in education, and you were subject to anxiety as a result of your childhood abuse. You joined the navy, presumably seeking some sort of routine and order to your life but, as a result of your experiences in service, you have suffered post-traumatic distress disorder. On discharge you resorted again to looking for supports and in this case, you turned to gang association, with resultant exposure to drugs and violence. That led to repeated periods of imprisonment over the next decade. You recognised you have to
stop your drug use and you have to address the psychological factors which lie behind that drug use. You accept you need help to do that. At the time of this offending, you were using methamphetamine heavily and I have no difficulty accepting that will have coloured your perception both of what you intended to do and what was happening at the time. It undoubtedly influenced your ability to weigh up consequences in a responsible and mature fashion. You have yourself been the victim of a violent attack, relatively recently and so, perhaps it could be said that you understand the impact of your own offending and what that will have done emotionally, as well as physically to the victims. It is clear you have been trying to put time to good use, with counselling and study. I also have a cultural report, one that views the psychological concerns from a different lens, but it entirely supports the conclusions drawn by Mr Prince.
[13] This resulted in an end sentence of 27 months’ imprisonment for Mr Sorensen. The Judge then gave Ms Richmond-Henke a further discount of four months, to reflect time spent on electronically monitored bail (EM bail). This resulted in an end sentence of 23 months’ imprisonment for Ms Richmond-Henke, and the Judge also granted her leave to apply for home detention.
Principles on appeal
[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.6
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 483 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
6 Skipper v R [2011] NZCA 250 at [28].
Appellant’s submissions
[15] Ms Hollingworth, counsel for Mr Sorensen, submitted that the discount given to Mr Sorensen for personal mitigating factors was inadequate, because the Judge:
(a)conflated the discounts for personal mitigating factors in respect of both offenders to a single conclusion;
(b)did not give meaningful consideration to Mr Sorenson’s s 27 cultural report, and gave insufficient discount for its contents;
(c)failed to give a sufficient discount in recognition of Mr Sorensen’s efforts at rehabilitation and self-improvement; and
(d)did not give a sufficient discount for Mr Sorensen’s genuine remorse.
[16] Ms Hollingworth also submitted the Judge failed to have regard to the parity reasonably required with the sentence imposed on Ms Richmond-Henke.
Respondent’s submissions
[17] Ms Bennett, counsel for the Crown, submitted that there was no fixed range of discount available to offenders for personal circumstances (including systemic cultural deprivation). She contended that the discount awarded to Mr Sorensen for all personal mitigating factors was sufficient, and maintained parity between him and Ms Richmond-Henke.
[18] Second, Ms Bennett submitted that while a further credit was available for the s 27 cultural report considerations, absence of such discount did not lead to a manifestly excessive sentence because the Judge could have, in Mr Sorensen’s case, adopted a higher starting point.
[19] With respect to the parity submission, Ms Bennett noted that Ms Richmond-Henke only received a further discount because of the time she spent on EM bail and submitted that for this Court to apply a similar discount to Mr Sorensen would “be unprincipled and not done in accordance with the true principles of parity”.
First ground of appeal: personal mitigating factors
[20] No issue is taken by counsel with the starting point of three and a half years (and I agree that is an appropriate starting point7), or with the uplift of three months for personal aggravating factors.
[21] The Judge gave a global discount of 18 months, which incorporated 25 per cent for guilty plea. This means the remaining discount for personal mitigating factors was seven and a half months (approximately 17 per cent of the starting point). Ms Hollingworth submitted that further credit was available for Mr Sorensen’s background (highlighted in his cultural report), his efforts at rehabilitation, and his remorse.
[22] Before I consider this matter, I think it is important to put the judgment into context. District Court Judges work in a high volume, multi-transactional environment. They are required to deal with large numbers of offenders when sentencing. In order to do right by those offenders and provide timely justice, they must of necessity adopt brevity of expression, and they often must summarise voluminous written material in an exceedingly succinct manner. The system would fall over if they did not adopt such an approach.
Did the Judge conflate the discounts for personal mitigating factors of both offenders into a single conclusion?
[23] I do not consider that the Judge did conflate the personal mitigating factors of both offenders. She gave separate and close attention to Mr Sorensen’s personal mitigating factors at [7], [9], [11], and [13] of the judgment. Then she gave separate and close attention to Ms Richmond-Henke’s personal mitigation factors at [8], [12], and [14] of the judgment.
7 By reference to R v Mako [2000] 2 NZLR 170 (CA), the guideline judgment for aggravated robbery; and the comments in Smeed v Police HC Whangarei AP50/00, 24 October 2000 regarding adjustment of those guidelines for the lesser offence of robbery.
Did the Judge give meaningful consideration to Mr Sorensen’s cultural report and give him insufficient discount in recognition of its contents?
[24] The Sentencing Act requires the Court to take into account the offender’s personal family, whanau, community and cultural background.8 The Court of Appeal has held:9
… ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.10
[25] There are numerous decisions that traverse the credit to be given in circumstances where such a nexus is clearly established. There is no prescribed range of discount available for systemic Māori deprivation, and discounts of up to 30 per cent have been given.11
[26] I consider the Judge did give meaningful consideration to the s 27 cultural report. That is evident from her recitation of most of the key elements of the report at
[11] of the judgment. It is clear from reading both the psychological and cultural reports that they did traverse much of the same history. The cultural report expressly addresses the racism Mr Sorensen has had to endure all his life, and the profoundly damaging effects this has had on him. It is correct that the Judge did not refer to the racism element of the report, but the essence of Mr Sorensen’s history and the effects on him relative to his offending were properly traversed by the Judge.
[27] However, I do consider the Judge erred in giving insufficient discount for Mr Sorensen’s cultural background. It is clear that Mr Sorensen has had a difficult life, characterised by abuse, trauma and racism. The effect of those difficulties has been exacerbated by his lack of connection to whānau and whanaungatanga. There is a clear correlation or nexus between those personal and cultural factors, and Mr Sorensen joining a gang and his resulting tendencies towards violence and drugs.
8 Sentencing Act 2002, s 8(i).
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]
10 Solicitor-General v Heta [2018] NZHC 2453; [2019] 2 NZLR 241 at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].
11 Solicitor-General v Heta, above n 10.
Those tendencies led clearly to the present offending, wherein Mr Sorensen accepts he has been using methamphetamine and cannabis, and where his instinct is to act violently.
[28] The pre-sentence report confirms that Mr Sorensen has engaged in a number of rehabilitative programmes. Mr Sorensen told the report writer he had completed some study relating to “self-reflection” through the Open Polytechnic, in addition to undertaking drug education courses and counselling. He expressed an interest in mechanical engineering, and he said he had been working to achieve academic credits in that area.
[29] In Poi v R, the Court of Appeal gave a 20 per cent discount for a combination of severe deprivation and disadvantage; as well as rehabilitative prospects, and the steps the offender had taken to address the impact his past had on his offending.12 Likewise, I consider Mr Sorensen’s background, combined with his prospects for rehabilitation, warrants a discount of 20 per cent.
Did the Judge give insufficient discount for Mr Sorensen’s genuine remorse?
[30] The Sentencing Act requires the Court to take into account remorse shown by the offender, as a mitigating factor.13
[31] Mr Sorensen wrote a letter of apology addressed to the Court at sentencing. The Judge expressly referred to the letter at [9] of the judgment, but does not appear to have given any credit for remorse in the overall scheme of the judgment.
[32] In the letter, Mr Sorensen begins by providing an explanation for this offending. He goes on to express regret for his actions and the fact that he got Ms Richmond-Henke into trouble as well. He expresses remorse for the pain and suffering he caused the victim. He says:
While I have been on remand I have done all I can with the resources available to better myself for the community and aviod somthing [sic] like this happening again.
12 Poi v R [2020] NZCA 312 at [39].
13 Sentencing Act, s 8(2)(f); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
[33] I note also that Mr Sorensen was prepared to participate in restorative justice, if it had been available. I also consider his attempts at rehabilitation reinforce his remorse.
[34] I consider Mr Sorensen’s expression of remorse warrants a discount of five per cent.
Second ground of appeal: parity
[35] In R v Kohey, the Court of Appeal outlined the appropriate approach to sentencing co-offenders:14
Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[36] The judge did precisely that, and clearly focused her mind to parity. She adopted the same starting point, the same uplifts for previous relevant criminal history, and the same application of discounts for personal mitigating factors.
[37] The Judge rightly addressed a further matter that applied to Ms Richmond-Henke, but was not available to Mr Sorensen – the time Ms Richmond-Henke spent on EM bail. Mr Sorensen spent time in custody prior to sentencing, which the Judge was prohibited from taking into account in sentencing him.15 Mr Sorensen will receive his credit from the Department of Corrections for the time he spent in custody.16 Applying a further discount to Mr Sorensen would not have been done in accordance with the principles as enunciated by the Court of Appeal in R v Kohey.
14 R v Kohey (2003) 20 CRNZ 62 at [20].
15 Sentencing Act, s 82.
16 Parole Act 2002, ss 89-96.
Conclusion
[38] The Judge erred in applying insufficient discounts for Mr Sorensen’s personal mitigating factors. In addition to the guilty plea discount of 25 per cent, Mr Sorensen is entitled to two discounts for personal mitigating factors: 20 per cent for his cultural background and prospects for rehabilitation; and five per cent for his expression of remorse. This results in an end sentence of two years’ imprisonment.
Result
[39] The appeal is allowed. Mr Sorensen’s end sentence is substituted for one of two years’ imprisonment.
[40] Leave is granted to Mr Sorensen to make application to the District Court to apply for home detention.
Doogue J
Solicitors:
Crown Solicitor, Timaru
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