Sulusi v Police

[2020] NZHC 3314

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-25

[2020] NZHC 3314

BETWEEN

VIENNA SULUSI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 December 2020 (partly by AVL)
Counsel:	R D Stone for Appellant J Mara for Respondent
Judgment:	15 December 2020

JUDGMENT OF ELLIS J

[1]                  On 3 November 2020, Ms Sulusi was sentenced to three years’ imprisonment for aggravated burglary.1 Ms Sulusi appeals that sentence.

Facts

[2]                  At around 11.30 am on  2  March  2019,  Ms  Sulusi,  with  her  half-sister  Ms Nahora and two associates (one wearing a Mongrel Mob patch), went to the home of the victim (N) in Havelock North to recover $7,000 that N was holding for       Ms Nahora. N had previously told Ms Nahora that the money had been stolen from her in a burglary.

[3]                  The four entered the home; Ms Nahora was carrying a gun wrapped in a blanket.2 Ms Sulusi was unaware that Ms Nahora had a firearm until they arrived at

1      R v Sulusi [2020] NZDC 22595.

2      The gun was apparently loaded.

SULUSI v NEW ZEALAND POLICE [2020] NZHC 3314 [15 December 2020]

the address. Ms Nahora threatened N and another occupant with the gun. They looted the complainant’s handbag. Ms Sulusi took N’s car keys, and the group left, taking N’s car.

[4]                  Ms Sulusi was later charged with aggravated burglary. She also faced other minor charges of theft and breaching bail.

District Court sentencing

[5]                  While the Judge noted that Ms Sulusi’s role was lesser than that of her sister, she said the offending itself had several aggravating features: the weapon, the gang patch, the group of four, the home invasion when the victim was asleep, and the property stolen. She  agreed  with  the  starting  point  previously  indicated  by Judge Adeane of five years’ imprisonment.3

[6]                  The Judge noted that Ms Sulusi was under the influence of methamphetamine at the time of the offending, and that Ms Sulusi was regretful about her involvement. The Judge acknowledged the s 27 report, noting that Ms Sulusi’s troubled childhood had made life hard for her.

[7]                  The Judge gave Ms Sulusi a 20 per cent discount for her guilty plea. She then noted several other factors for which she collectively gave a further 20 per cent discount:

(a)Ms Sulusi’s co-operation with police, which was over and above what would ordinarily be expected;

(b)her good rehabilitative prospects; and

(c)the contents of the s 27 cultural report, which revealed a troubled upbringing that, while not being directly causative, might be seen as reflected in Ms Sulusi’s adult lifestyle.

3      Ms Sulusi did not accept Judge Adeane’s sentence indication, although her counsel did not take issue with his five-year starting point at sentencing.

[8]                  The combined 40 per cent discount resulted in an end sentence of three years’ imprisonment. Ms Sulusi was convicted and discharged on the theft and bail breach charges.

Grounds of appeal

[9]                  Ms Sulusi takes no issue with the five-year starting point. Rather, she appeals her sentence on the basis that the Judge ought to have given greater, discrete discounts—enough to bring her sentence down to home detention range. Home detention was the sentence suggested by the pre-sentence (PAC) report writer and would enable her to participate in Te Waireka. Te Waireka is a therapeutic community programme for Māori women offenders serving a sentence of home detention, or who are subject to release or parole conditions.

Approach on appeal

[10]              Ms Sulusi’s appeal is governed by s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. It must only be allowed if the Court is satisfied both that there has been an error in the sentence and that a different sentence should be imposed.4 The focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.5

Discussion

[11]              I consider that the appeal should be allowed and that a sentence of home detention is the least restrictive outcome here. Home detention properly becomes an option because, in my view:

(a)the starting point adopted in the District Court was too high; and

(b)the global 20 per cent discount for personal mitigating factors (not counting guilty plea) does not adequately recognise:

(i)Ms Sulusi’s rehabilitative prospects;

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      Ripia v R [2011] NZCA 101 at [15].

(ii)her childhood trauma; and

(iii)the importance of her maintaining as much contact as possible with her four young children.

Starting point

[12]              Notwithstanding Mr Stone’s acceptance of a five-year starting point, I think the following review of comparable cases (home invasions involving more than one offender and the presence of a weapon) demonstrates that something in the order of four years would have been appropriate. All these cases were decided after, and referred to, the Mako guideline judgment.6

[13]              McCormack-Cameron v R.7 Mr McCormack-Cameron was playing very loud music in his parked car outside a residential address. The residents asked him to move on, and an altercation ensued. Mr McCormack-Cameron left but then, after recruiting friends from a party, returned. A co-offender had an imitation pistol and threatened to shoot the residents. Mr McCormack-Cameron ran up to the house carrying a tyre iron and began to smash windows. He and a co-offender burst into the house. The pistol was put to the head of a man in the house, who was told he was going to die.         Mr McCormack-Cameron also threatened people with the tyre iron. The starting point for Mr McCormack-Cameron on appeal was three years’ imprisonment.

[14]              R v Gibbons.8 Mr Gibbons and an associate went to the victim’s home. The victim knew Mr Gibbons and offered him a coffee, but Mr Gibbons responded by producing a sawn-off rifle and pointing it in his face. He detained the victim and his flatmate while his associate searched the address. The flatmate managed to escape. As Mr Gibbons and his associate were leaving the address another man approached their vehicle. He was then made to walk to the top of the driveway with the sawn-off

6      R v Mako [2000] 2 NZLR 170, which is the guideline judgment for aggravated robbery sentencing but is also applied by analogy to aggravated burglary.

7      McCormack-Cameron v R HC Invercargill CRI-2007-425-42, 5 February 2008. Mr McCormack- Cameron was sentenced for a number of offences, but aggravated burglary was the lead charge.

8      R v Gibbons HC Auckland CRI-2009-090-9224, 27 July 2010. Mr Gibbons was sentenced for aggravated burglary, kidnapping, and offering to supply a Class A drug (methamphetamine).

rifle pointed at him. The starting point for Mr Gibbons for the burglary charge was four and a half years’ imprisonment.9

[15]              Holmes v R.10 The victim was known to Mr Holmes and one of his co- offenders. Three offenders travelled to the victim’s home, where two of them burst in, demanded money, and threatened the victim. Mr Holmes drew the curtains at his associate’s request, who began to strike the victim on the head, body and legs with the blunt end of a small tomahawk axe. Mr Holmes stood nearby to prevent escape or resistance. The Court of Appeal remarked that a starting point of three and a half years’ imprisonment would have been appropriate.11

[16]              Kahotea v Police.12 Armed with a pistol and a machete, Mr Kahotea and two associates entered the victims’ house through the open front door. They stole a television, digital camera, cell phone, and cannabis plants. Two of the occupants were held at gunpoint, but nobody was hurt. On appeal the Judge noted that an appropriate starting point would have been around three and a half years’ imprisonment, but she dismissed the appeal because the end sentence was nevertheless not manifestly excessive.

[17]              Warren v Police.13 Mr Warren went to the victim’s home with five associates. Mr Warren believed that the victim had stolen his cannabis. Two women in the group knocked on the door and were let in by the victim. After talking to him, the two women left, leaving the door to the victim’s bedroom open. Almost immediately, Mr Warren entered the room with his brother. He then started shouting abuse and threats. The victim was beaten up, including being hit with a drawer by Mr Warren. The starting point of two years’ imprisonment was upheld on appeal.

9      The starting point was uplifted to five years for the associated kidnapping charge, but that element is not present here.

10 Holmes v R [2010] NZCA 47.

11 Mr Holmes was sentenced for aggravated burglary (as a party) and injuring with intent to cause grievous bodily harm. The higher starting point was not disturbed by the Court because of the generous first instance discounts.

12 Kahotea v Police HC Tauranga,  CRI-2011-470-18, 15 August 2011.  Mr Kahotea was charged  with aggravated burglary and possessing an explosive.

13 Warren v Police HC Greymouth CRI 2011-418-7, 17 November 2011.  Mr Warren was charged with aggravated burglary and assault.

[18]              McNeice v R.14 Mr McNeice and his partner went to the victim’s address to try and retrieve belongings she had left there. Mr McNeice was carrying a meat cleaver. The victim went outside to talk to Mr McNeice. Mr McNeice grabbed him by the throat, pushed him against the wall of the house, and threatened him. Mr McNeice then went into the victim’s house and removed a television and a laptop computer. The Court of Appeal allowed the appeal, substituting a starting point of two and a half years’ imprisonment.

[19]              Deo v R.15 Mr Deo and others were asked to leave a party. Around 1.40 am, they returned with one or two more associates. Mr Deo was the driver and waited in the van. The co-offenders that approached the house were wearing hoodies and had bandannas over the lower part of their faces. They broke several large ranch slider doors to get into the house. One of the intruders had a large knife and threatened to stab a victim who confronted them; another attacked him with a large metal bar or pipe aimed at his head. He managed to deflect the bar with his arm, suffering a large gash. The intruders took a number of items from the house including a guitar, laptop computers, iPods, iPod speakers, and a camera.   The Court did not consider that    Mr Deo’s starting point of four and a half years’ imprisonment was too high.

[20]              Eldershaw v R.16 Mr Eldershaw, after a prior altercation, returned to the victim’s address with a friend and two baseball bats. He struck the victim’s head with a baseball bat. A starting point of two years and eight months’ imprisonment was upheld.

[21]              Kiri v Police.17 Following a fight with the occupants, Mr Kiri and two associates returned to the house, armed with a steel pole and a hammer. They stood outside the house and demanded that the two others involved in the fight come outside. They kicked down the front door and searched the house for the two people for whom they were looking. They then fled. A starting point of three years’ imprisonment was agreed on appeal.

14     McNeice v R [2012] NZCA 566. Mr McNeice was charged with aggravated burglary.

15     Deo v R [2012] NZCA 484. Mr Deo was charged with aggravated burglary.

16     Eldershaw v R [2013] NZCA 374. Mr Eldershaw was charged with aggravated burglary, assault with a weapon, and common assault.

17     Kiri v Police [2012] NZHC 2099. Mr Kiri was charged with one charge of aggravated burglary, one of receiving, one of theft, and four of failing to appear to answer bail.

[22]              Rangi v R.18 Mr Rangi and his co-offenders entered the victims’ house in the evening. A co-offender carried a knife; Mr Rangi carried an imitation gun. They threatened the victims, one of whom was punched about the head. They took a laptop, cameras, cell phones, and a vehicle. The Court did not disturb the starting point of three and a half years’ imprisonment.

Childhood trauma

[23]              Secondly, there is the matter of Ms Sulusi’s childhood. It is not, I think, disputed that she was sexually abused from the age of four by her grandmother’s partner, who was subsequently convicted for sexually offending against her and others. Ms Sulusi’s mother has advised that she (her daughter) was required to undergo a police interview about the offending when she was six. She was (reportedly) denied ACC assistance because she was said to have been too young to have been traumatised by what happened. Whether or not that is completely accurate, it seems she has received no counselling for what happened and has since been retraumatised by her grandmother resuming a relationship with her abuser upon his release from prison.

[24]              While the District Court Judge recognised that this may have played a part in where Ms Sulusi finds herself today, I consider that it requires greater emphasis than that. And I do not agree with the Crown that it is necessary for Ms Sulusi to call further evidence establishing a causal nexus between her childhood trauma and her present addiction and her offending.

Rehabilitative prospects

[25]              As the Judge acknowledged, Ms Sulusi’s rehabilitative prospects are assessed as good. She has only a limited criminal history and is assessed as presenting a low risk of reoffending if she can address her drug use, which—at least in part—drove her offending. She is not only remorseful but committed to rehabilitating for the sake of her children. And, importantly, she has the opportunity to address her addiction, if granted home detention. More particularly, there is still a place available for her at  Te Waireka, in Otene (Central Hawkes Bay). Participation in the programme (which—

18     Rangi v R [2014] NZCA 524. Mr Rangi was charged with aggravated burglary.

as noted earlier—was recommended by the PAC report writer) will give her the opportunity to address her addiction and to begin addressing the abuse she suffered as a child.   The programme also has a reintegrative aspect, which will be critical to   Ms Sulusi’s long-term rehabilitation.

Dependent children

[26]              Lastly (and relatedly), there is the question of the children. There are four. In January this year they were aged seven, six, four, and three. Before Ms Sulusi’s offending, they had already unofficially been removed19 from the care of Ms Sulusi and her partner by her partner’s aunt, Ms Barbara Smith. This was (as I understand it) due to the couple’s increased methamphetamine use.20

[27]But Ms Smith has written a letter of support for Ms Sulusi. She says that:

(a)she had seen a significant change in Ms Sulusi’s attitude before her incarceration;

(b)Ms Sulusi had been doing hard labouring work in the orchards to support the children; and

(c)she supports Ms Sulusi’s desire to get the children back.

[28]              The signal point is that Ms Sulusi is presently incarcerated in Auckland Women’s prison. Her children are in Hawke’s Bay and cannot visit her, although are able to contact her remotely. While the proposed sentence of home detention would not see her living with them again (at least at the outset), I am advised that Te Waireka is within driving distance of Ms Smith’s home and that weekend visits may be possible.   It seems to me that there is very great advantage in the possibility of     Ms Sulusi being able to maintain some contact with them in terms both of her continued motivation to rehabilitate and the children’s well-being. I discussed both the role potentially played by the Bangkok Rules and the overseas authorities dealing

19 I am not certain if there is now a formal guardianship order in place.

20 It does not seem to be in dispute that Ms Sulusi’s drug use was very much being driven by her partner, although it worsened after the children were removed and after he was, himself, incarcerated.

with issues around imprisoning women with dependent children in Theodore v Police.21

Conclusion

[29]              As I have said, I consider that Ms Sulusi’s appeal should be allowed. The starting point should be reduced to four years, and there should be a 30 per cent discount for the personal mitigating factors just mentioned.  When  taken with the   20 per cent discount for guilty plea, that gives an end sentence of two years’ imprisonment.

[30]              Once that point is reached, it is clear to me that a sentence of home detention would best serve Ms Sulusi’s rehabilitative needs. After taking some account of the time that Ms Sulusi has already served, I think the appropriate substituted end sentence would be one of eight months’ home detention.

[31]              So the appeal is allowed. The sentence of three years’ imprisonment is quashed, and a sentence of eight months’ home detention is substituted. Her home detention address will be at Te Waireka, 58 White Road, Otene. The special conditions and post-detention conditions set out in the PAC report dated 27 October 2020 will apply.

[32]              Ms Sulusi’s release and travel to Hawke’s Bay will need to be co-ordinated with Te Waireka, which, as I understand it, is able to take Ms Sulusi on a Monday, Wednesday or Friday.

Rebecca Ellis J

Solicitors:

Souness Stone Law Partnership, Hastings for Appellant Crown Law Office, Wellington for Respondent

21     Theodore v Police [2018] NZHC 2364.