Tafere v Police
[2020] NZHC 3303
•14 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000419
[2020] NZHC 3303
BETWEEN TEWODROS TAFERE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 December 2020 Appearances:
L O Smith for the Appellant
J M Phillips for the Respondent
Judgment:
14 December 2020
JUDGMENT OF WOOLFORD J
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: Mrs L O Smith, Barrister, Auckland
TAFERE v NZ POLICE [2020] NZHC 3303 [14 December 2020]
[1] On 22 May 2020, Tewodros Tafere was sentenced by Judge P J Sinclair to 30 months’ imprisonment on two charges of burglary, three charges of receiving and one charge each of being unlawfully in an enclosed yard, using a document and possession of a glass pipe.1 He had been in custody for 10 and a half months at the time of his sentence. By my calculations, he was then immediately eligible for parole. He now appeals against sentence as being manifestly excessive.
[2] On 6 November 2020, after serving another five and a half months of his sentence, Mr Tafere was granted electronically monitored bail by Judge Sinclair to the Grace Foundation, a residential rehabilitative facility, pending his appeal to this Court.
The law
[3]On an appeal against sentence, the Court must allow the appeal if satisfied:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
Otherwise the Court must dismiss the appeal.2
Fresh evidence
[4] Because he had already been in custody for 10 and a half months and wanted to be sentenced that day, Mr Tafere waived his right to a pre-sentence report. A pre- sentence report would have outlined personal factors which may have provided the basis for a discount in addition to that for his pleas of guilty.
[5] Counsel has therefore now obtained a report dated 20 November 2020 under s 27 of the Sentencing Act 2002, which outlines Mr Tafere’s background and suggests a link between his struggles as a child refugee from Ethiopia who did not know
1 Police v Tafere [2020] NZDC 9148.
2 Criminal Procedure Act 2011, s 250(2) and (3).
whether his parents were alive or dead and his subsequent problems with addiction and offending to feed his methamphetamine habit.
[6] Mr Tafere now makes application for leave to file the report as fresh evidence on appeal. The Court of Appeal has recently found that it was in the interests of justice and not prejudicial to the Crown to admit s 27 reports on appeal where the information was “highly relevant to the appeals.”3
[7] In this case, the Crown is neutral on the admission of the report, given the detail on Mr Tafere’s background and circumstances it provides. It is therefore admitted on appeal as fresh evidence.
Discussion
[8] It is apparent that the Judge did make an error in the sentencing imposed on conviction. The Judge concluded:4
Because a pre-sentence report has not been prepared, as you wish to advance sentence today, and given your particular circumstances and your drug addiction, what I’m minded to do is grant you leave to apply for home detention to serve the rest of your sentence, particularly and if possible at a facility that addresses drug addiction and alcohol addiction.
[9] This was an error. A sentence of imprisonment can only be converted to one of home detention if the sentence is 24 months or less. Here, the sentence imposed was 30 months’ imprisonment so the Judge was not able to grant leave to Mr Tafere “to apply for home detention to serve the rest of [his] sentence.” It is clear, however, that the Judge was focused on a more rehabilitative approach because she looked to the sentence of home detention to be served “at a facility that addresses drug addiction and alcohol addiction”.
[10] The Judge’s intention is also reflected in the fact that she granted Mr Tafere bail to a residential rehabilitative facility pending appeal, which is unusual because of the more stringent rules set out in s 14 of the Bail Act 2000. Section 14 provides:
3 Poi v R [2020] NZCA 312 at [30].
4 Police v Tafere, above n 1, at [21].
14 Exercise of discretion when considering bail pending appeal
(1)This section applies if an appellant—
(a)is appealing his or her conviction or sentence, or both; and
(b)is—
(i)in custody; or
(ii)in a home detention residence subject to a sentence of home detention.
(1A) The court must not grant bail to the appellant unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
(2)The onus is on the appellant to show cause why bail should be granted.
(3)When considering the interests of justice under subsection (1A) the court may, instead of the considerations in section 8, take into account the following considerations:
(a)the apparent strength of the grounds of appeal:
(b)the length of the sentence that has been imposed on the appellant:
(c)the likely length of time that will pass before the appeal is heard:
(d)the personal circumstances of the appellant and the
appellant’s immediate family:
(e)any other consideration that the court considers relevant.
[11]The place of s 27 reports on sentencing is explained by the Court of Appeal in
Carr v R.5
[56] We refer first to the statutory context. Reports are now increasingly provided under s 27 of the Sentencing Act which contemplate sentencing courts considering, amongst other things, information about the “personal, family, whanau, community, and cultural background of the offender” and “the way in which that background may have related to the commission of the offence”. Some of this language reflects s 8(i) of the Sentencing Act, which prescribes as one of the principles of sentencing that the court must take into account “the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose”. This in turn has an obvious connection with s 8(g), requiring the sentencing court to “impose the least restrictive outcome that is appropriate in the circumstances”.
5 Carr v R [2020] NZCA 357.
[60] It is significant that this reasoning was endorsed by the Full Court in Zhang. We consider this means that where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing. …
[12] In the present case, the s 27 report refers to the way in which Mr Tafere’s background may have been related to the offending as follows:
Mr Tafere is a young man who fled to NZ under refugee status to escape a war torn and politically unstable country at home. He had no parents, he did not know who his father and mother were, and he does not know to this day, whether or not they are still alive. He was raised by his grandmother alone throughout his entire life. He was only 10 years old when they fled to New Zealand. The displacement caused by political instability in his home country, destroyed what could have been a strong family foundation for him. Unfortunately, he only had his grandmother and had only just started a relationship with his uncles in NZ upon their arrival. Unfortunately, this was not strong enough to replace the family foundation that his grandmother represented in his life. When situations and issues presented later in his life as a young adolescent and she was no longer around to be the anchor that she has always been in his life. This triggered depression which resurfaced old historical trauma and led to deeply rooted depression.
[13] I am of the view that it is appropriate on an appeal to have regard to the s 27 report in calculating a sentence which should have been imposed in terms of s 250(2) of the Criminal Procedure Act 2011. It is evident that, at the time of the offending, Mr Tafere was suffering from depression and a severe addiction. The offences were all committed to obtain money to feed his methamphetamine habit. In those circumstances, a discount of 15 per cent should be granted to appropriately recognise his lesser moral culpability because of what drove him to depression and addiction.
[14] I therefore quash the sentence of 30 months’ imprisonment imposed on the two burglary charges and the concurrent sentences of one year’s imprisonment imposed on the three receiving charges and the using a document charge.
[15] The Judge adopted a starting point of 39 months’ imprisonment for the two burglary charges which she reduced by nine months, or 23 per cent, for Mr Tafere’s pleas of guilty to reach an end point of 30 months’ imprisonment. If a further 15 per cent is added to the initial 23 per cent, that reduces the starting point of 39 months’
imprisonment by 15 months, or 38 per cent, to reach an end point of 24 months’ imprisonment.
[16] What then is the appropriate sentence if the sentence of 24 months’ imprisonment is converted to home detention, which was the Judge’s original intention? The sentence of 24 months’ imprisonment would normally be converted to one of 12 months’ home detention because of the statutory release from prison after serving one-half of a short term of imprisonment. A sentence of home detention has to be served in full.
[17] Giving Mr Tafere credit for the 16 months’ imprisonment he has already served leads to a sentence of four months home detention. However, Mr Tafere was on restrictive bail between February 2019 and June 2019. Furthermore, he has been on electronically monitored bail to the residential rehabilitative programme since last month so I am of the view that a month should be taken off the sentence of four months’ home detention to arrive at an end sentence of three months’ home detention.
[18] Mr Tafere is therefore sentenced to concurrent terms of three months’ home detention on the two charges of burglary, the three charges of receiving and one charge of using a document. The conviction and discharge on the charges of being unlawfully in an enclosed yard and possession of a glass pipe remain.
[19] The three-month sentence of home detention is to be served at the premises of the Grace Foundation, 25 Moa Street, Otahuhu. The standard conditions set out in s 80C of the Sentencing Act 2002 are to apply. In addition, Mr Tafere is to attend and engage in any Grace Foundation programmes and activities at the direction of and to the satisfaction of both the provider and the Probation Office.
Woolford J