Tairi v The the Queen
[2022] NZHC 809
•20 April 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-36 [2022] NZHC 809
BETWEEN ROBERT TAIRI
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 April 2022 Appearances:
P N Allan for Appellant
L Fiennes for Respondent
Judgment:
20 April 2022
JUDGMENT OF EATON J
This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TAIRI v R [2022] NZHC 809 [20 April 2022]
Introduction
[1] Mr Robert Tairi pleaded guilty to one charge of robbery.1 On 3 March 2022 Judge Gilbert sentenced Mr Tairi to 19 months' imprisonment with leave to apply for home detention with release conditions.2
[2] Mr Tairi appeals this sentence on the grounds that it was manifestly excessive due to the starting point being too high, an unjustified uplift and insufficient credit for mitigating factors.
Facts
[3] On 17 April 2021 Mr Tairi and his partner and co-defendant, Ms Norman, went to the victim’s address. The victim lived there with her three children. They were let inside by the victim’s three-year-old child.
[4] Mr Tairi sat down on the couch and Ms Norman asked the victim if she had any gear or cash. After the victim said no, Ms Norman accused her of talking behind her back to other people.
[5] The victim asked Mr Tairi and Ms Norman to leave, but they refused. When the victim asked her daughter to get her phone so she could call the police Ms Norman lunged at the victim, grabbed her hair and pulled her to the ground in the living room. She then stomped on the victim’s body, face and back in front of the children.
[6] During the assault Mr Tairi was close to the victim’s head and saying, “we just want $250”. The victim said she had no money but offered her car. Mr Tairi and Ms Norman then released the victim to look for her keys. The victim took her three children to the back garden and screamed for help from the neighbours, passing her children over the back fence before fleeing herself.
[7]Mr Tairi and Ms Norman took the victim’s Samsung cell phone and purse.
1 Crimes Act 1961, s 234 and 66; maximum penalty of 10 years’ imprisonment.
2 R v Tairi [2022] NZDC 3686.
[8]The victim sustained bruising to her body and face.
District Court decision
[9] The Judge considered the aggravating features of the offending as the fact Mr Tairi had remained in the victim’s home after being asked to leave and that the offending, which was largely perpetrated by Ms Norman, involved quite substantial violence carried out in front of the victim’s children.
[10] By reference to a two year ten month starting point taken in sentencing Ms Norman as the principal offender, the Judge set a starting point of two years’ imprisonment, to reflect the secondary role Mr Tairi played in the offending. An uplift of five per cent was imposed to recognise Mr Tairi’s previous criminal history and the fact the offending took place while Mr Tairi was still serving a sentence of intensive supervision.
[11] The Judge referenced the pre-sentence report as confirming that Mr Tairi’s life has gone downhill since meeting Ms Norman. The majority of Mr Tairi’s criminal history fell within the period in which he was in a relationship with Ms Norman. Prior to meeting Ms Norman, Mr Tairi ran a large business and appeared to have a productive life. It was noted that Mr Tairi wanted to shift to Southland to find work and be with his whānau, but that he did not consent to electronically monitored sentences. The recommendation in the pre-sentence report was either intensive supervision or imprisonment.
[12] The Judge considered the s 27 report and noted the challenging and positive aspects to Mr Tairi’s upbringing. Mr Tairi was deported from Australia many years ago and upon his return to New Zealand found stability and success in both his family life and business life. Mr Tairi’s marriage then floundered, and with it his business. After that he met Ms Norman and they used Mr Tairi’s resources up over a short period of time. Mr Tairi reported using alcohol and drugs but say they are not a major issue for him.
[13] The Judge considered there was “at best” a tenuous link between Mr Tairi’s childhood experiences and this offending. He considered that Mr Tairi overcame any
challenges he faced as a young person and lived a prosocial and productive life for many years, until it unravelled though his own actions. The Judge identified the real risk for Mr Tairi as his choice of partner. He allowed a five per cent discount for the factors covered in the s 27 report.
[14] The Judge gave an “almost full discount” for Mr Tairi’s guilty plea, noting it was shortly before trial and there had been changes to the charges but the underlying factual basis for sentencing did not change materially.
[15] The Judge arrived at an end sentence of 19 months' imprisonment. Home detention would have been considered but for Mr Tairi’s refusal to consent to that sentence. The Judge reserved leave under s 80I of the Sentencing Act 2002 for Mr Tairi to apply to have his sentence substituted for home detention with release conditions.
Principles on appeal
[16] 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
[17] As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “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
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[18] Mr Allan, for Mr Tairi, submitted the Judge made a mathematical error in reaching the end sentence.
[19] He further submitted the Judge adopted an excessive starting point, with reference to the authorities of Bell v Police6 and R v Dwyer.7
[20] In respect of the uplift, Mr Allan accepted Mr Tairi was on a sentence of intensive supervision at the time of the offending, however noted that the Crown did not seek an uplift at sentencing and Mr Tairi had gone on to complete the sentence whilst on bail, at a level where it was recommended again by Probation. Mr Allan also submitted that Mr Tairi does not have an extensive history of offending and has no previous convictions relevant to the charge before the Court.
[21] Mr Allan submitted the five per cent credit afforded for Mr Tairi’s personal circumstances was insufficient having regards to his s 27 report. Mr Allan referred in particular to Mr Tairi’s deep sense of loyalty to his father, who was a drug dealer in Sydney. He submitted Mr Tairi’s involvement in the robbery was a consequence of his loyalty to Ms Norman.
[22] Overall, it was submitted the sentence was manifestly excessive and failed to meet the sentencing principle of imposing the least restrictive outcome and the need to reserve prison terms for those cases where they are strictly necessary.8 Mr Allan contends a community-based alternative was available and recommended in the form of a combination of intensive supervision and community work. Mr Allan argued that similar robberies have been subject to combination sentences of supervision and community work, citing Tuitama v Police.9 Mr Allan submitted the Judge gave no reason for rejecting a community based sentence and submits that if the Judge had
6 Bell v Police [2016] NZHC 1715.
7 R v Dwyer [2017] NZHC 339.
8 See Sentencing Act 2002, ss 8(g) and 16.
9 Tuitama v Police HC Wellington CRI-2003-485-50, 9 September 2003.
considered there was no option other than home detention, the Judge should have adjourned sentencing so that an electronically monitored sentence could be explored.
Respondent’s submissions
[23] Ms Fiennes, for the respondent submitted there was no mathematical error in the Judge’s calculations on the assumption the guilty plea credit amounted to 20 per cent. She submitted with the 24-month starting point, the appropriate outcome was a sentence of 19.2 months imprisonment, which the Judge rounded down,
[24] As to the starting point, Ms Fiennes submitted that of the cases provided by Mr Allan, Dwyer was most relevant as it involved a primary offender and secondary party.10
[25] Ms Fiennes submitted Mr Tairi’s offending was significantly more serious than in Dwyer , the facts of which are outlined below in my analysis, as the victim was violently assaulted in front of her children. Mr Tairi did nothing to intervene and demanded money from the victim.
[26] As to the uplift applied, Ms Fiennes accepted Mr Tairi has no previous convictions for robbery but submitted it was open to the Judge to impose an uplift for previous violent or dishonesty offending as these elements are reflected in the present offending. It was also a significantly aggravating factor that the offending occurred while Mr Tairi was serving a sentence of intensive supervision for threatening to kill. Ms Fiennes submitted an uplift of five per cent for these factors was modest.
[27] Ms Fiennes accepted the s 27 report indicated that Mr Tairi had a troubled childhood. However, she noted that Mr Tairi had led a relatively offence free and productive life for approximately two decades after being deported from Australia for his criminal offending. Given this period of stability and the fact his current relationship can clearly be linked to his recent actions, Ms Fiennes submitted the Judge was correct to find there was only a tenuous link between Mr Tairi’s childhood experiences and his offending.11 Ms Fiennes submitted it was open to the Judge to
10 R v Dwyer, above n 7.
11 Citing Shadbolt v R [2020] NZHC 1312 at [17].
conclude there was no nexus between Mr Tairi’s background and his offending, but conceded the five per cent credit might be justified by reference to the “loyalty” factor.
[28] Ms Fiennes submitted the end sentence of 19 months' imprisonment was appropriate and the Judge was correct to conclude a sentence of home detention was the least restrictive option available. The Judge was fully aware of the need to impose the least restrictive outcome in the circumstances.
Analysis
[29] The focus on appeal is whether the end sentence reached by the Judge was manifestly excessive irrespective of the process by which the end sentence was reached.
Starting point
[30] Counsel have been unable to identify any cases with a strong factual similarity. Bell is not particularly helpful given it involved a lone offender facing multiple serious charges.12 I agree with Ms Fiennes, that Dwyer is the most comparable authority as it involved two parties.13 In that case, the offenders unlawfully entered an associate’s flat with the intention of taking her phone. The principal offender believed the phone had images of his girlfriend being indecently assaulted. He wanted the photographs for the purpose of extorting the suspected offender. Within the house, the principal party lunged at the woman, wrestled with her on the bed and took the phone from her hand. The Judge described this violence as at the “lower end of the scale” and noted the secondary party intervened to end the use of force once the cell phone was acquired. A starting point of 15 months’ imprisonment for the principal, and 10 months for the secondary offender was adopted.
[31] In contrast, Mr Tairi acted in concert with Ms Norman throughout. He refused to leave the premises when asked. He stood by during the nasty assault when Ms Norman repeatedly stomped on the victim in front of her children. Rather than intervene Mr Tairi told the victim “[w]e just want $250”. He and Ms Norman then
12 Bell v Police, above n 6.
13 Dwyer, above n 7.
released her, rummaged through her house and stole her phone and purse before leaving.
[32] Mr Tairi’s offending was of a far more serious nature than that of the secondary party in Dwyer. In my view, whilst the two year starting point might be seen as stern given the absence of premeditation and Mr Tairi’s lack of directphysical involvement in the assault on the victim, it was within range. It was not manifestly excessive.
Uplift
[33] The Judge imposed a five per cent uplift to reflect Mr Tairi’s previous convictions and the fact he was subject to a sentence of intensive supervision at the time of the offending.
[34] In sentencing an offender, the court must take into account recognised aggravating factors. Those factors include that the offence was committed while the offender was on bail or still subject to a sentence14and the number, seriousness, date, relevance and nature of any previous convictions.15
[35] As I have said in Norman v Policean uplift should not be imposed simply by reference to the fact of previous convictions. 16 A default position of imposing an uplift in that circumstance would re-punish an offender for past offending.17 Any uplift must reflect a considered response to specific aspects of an offender's previous criminal history.18 An uplift might be appropriate for deterrence and public protection principles.19 Previous convictions might be an indicator of the offender’s character and enhanced risk of re-offending. The Court of Appeal in Jones v R referred with approval to Beckham v R20 and the principle that an uplift will only be warranted if the previous convictions indicate some tendency to commit the particular type of offence for which the offender is before the court.21
14 Sentencing Act 2002, s 9(1)(c).
15 Sentencing Act 2002, s 9(1)(j).
16 Norman v Police [2022] NZHC 808.
17 R v Casey [1931] NZLR 594 (CA) at 597.
18 O’Connor v R [2014] NZCA 328 at [41].
19 Te Hau v R [2013] NZCA 431 at [18].
20 Beckham v R [2012] NZCA 290.
21 Jones v R [2021] NZCA 402 at [33].
[36] As noted by the Court of Appeal when considering sentencing for dishonesty offending in Burton v R, “[s]ubstantial uplifts for aggravating factors, including previous convictions, may be necessary to respond to calculated offending by recidivists”.22 Mr Burton was a recidivist burglar and was sentenced in relation to serious burglaries and other offending.
[37] Mr Tairi has previous convictions in New Zealand including receiving (2017), male assaults female (2017), shoplifting (2020) and threatening to kill (2020).
[38] I agree with Mr Allan that Mr Tairi’s criminal history is of little relevance to the robbery offending. His history does not reveal offending at a level such that an uplift is necessary to achieve deterrence or to protect the public. I accept there is nothing in Mr Tairi’s criminal history which indicates a tendency to commit robbery. Whilst his history would negate any credit for good character, it did not, of itself warrant an uplift.
[39] But Mr Tairi was only midway through a sentence of 12 months intensive supervision imposed in October 2020 when he committed the robbery in April 2021. That sentence was imposed following his conviction on the charge of threatening to kill. I am told the victim of that offending was Ms Norman.
[40] Offending while still subject to a sentence is an aggravating factor the court must take into account in sentencing.23 As the Court of Appeal recognised in R v Clunie an uplift for offending while on sentence is not double-counting but a reflection of an offender’s disregard for court processes and orders.24 Uplifts of 20 per cent have been upheld in cases of offending whilst subject to a sentence for similar offending.25 This is not one of those cases.
[41] The Judge reduced the uplift in recognition of Mr Tairi having successfully completed the sentence of intensive supervision. Mr Allan submits that given the
22 Burton v R [2018] NZCA 355 at [42].
23 Sentencing Act 2002, s 9(1)(c).
24 R v Clunie [2013] NZCA 110
25 Lavea v R [2014] NZCA 192 at [24]; Benson v R [2013] 39 at [1] – [11].
sentence was completed and that Corrections saw fit to recommend the same sentence for the robbery offending, the Judge was wrong to impose an uplift.
[42] Whilst I have some sympathy for that argument and I accept that another Judge might not have applied an uplift, I do not find the Judge’s decision to impose a modest uplift of five per cent can be characterised as an error. The Judge was entitled to have regard to the fact Mr Tairi committed a serious violent offence whilst only half way through a sentence imposed for domestic violence offending.
Personal mitigating factors
[43] It was submitted the five per cent discount for Mr Tairi’s personal factors was insufficient to fairly reflect matters raised in the s 27 report.
[44] The report sets out how Mr Tairi’s father was largely absent from the family home, and when he was present, he was violent towards his family and abused substances. As a child, Mr Tairi was often described as “difficult”. He was sent to live with relatives in the North Island, and eventually to his father in Sydney. Mr Tairi was exposed to his father’s drug dealing and his affiliations with gangs of organised criminals. After his father’s death, Mr Tairi was deported back to New Zealand. He then met and married his wife of 17 years. They had two biological children and one foster daughter. He subsequently had a long period of domestic and financial stability from the 1990’s for almost two decades, in which he established several businesses which proved to be very successful.
[45] Mr Tairi advised the report writer that things began to unravel when he was forced to liquidate his business. Around the same time, his marriage deteriorated after he was unfaithful to his wife and fathered two children with another woman. He now has very little contact with any of his family. Mr Tairi said he was subsequently forced to sell his property and moved to Christchurch, where his current partner, his co- offender, resides. Together, they exhausted Mr Tairi’s money in a “binge” fashion and Mr Tairi reports he has since struggled to fund what he described as a low-level methamphetamine habit.
[46] Mr Tairi has struggled with substance abuse and gambling, but reported that although he always used alcohol and smoked cannabis, substance abuse was not a major problem for a number of years. Mr Tairi does not feel that treatment is necessary for his methamphetamine use, as he said he does not use the drug on a daily basis. An alcohol and other drug assessment was requested by the District Court but no assessment was completed as Mr Robert did not attend at the scheduled time.
[47] Mr Tairi advised both he and Ms Norman struggled with addiction. He accepted his current relationship with her is problematic, but advised he was unsure if the relationship will continue once his partner is released back into the community.
[48] The report writer opines Mr Tairi’s exposure to violence at an early age was such that it was normalised as a way of life. It highlights Mr Tairi’s substance abuse issues, explaining how this lifestyle was glamourised by the criminal activities of Mr Tairi’s father and how Mr Tairi admitted his recent offending was directly motivated by a desire to obtain drugs.
[49] This report speaks of a possible nexus between Mr Tairi’s early traumatic experiences and his exposure to violence and the commission of the robbery offence.
[50] Both the s 27 and the pre-sentence report reflect Mr Tairi’s conflicted position as regards an ongoing relationship with Ms Norman. Mr Allan suggests the connection between his past and this offending is Mr Tairi’s sense of loyalty to those closest to him.
[51] The Judge allowed what he described as a generous five per cent discount for Mr Tairi’s personal mitigating factors, given the “tenuous” nexus between Mr Tairi’s background and his offending. The Judge observed Mr Tairi had a troubled background but then spent approximately 20 years living a prosocial and productive life.
[52] There is a range of authority that considers the extent to which a period of time spent living a prosocial life can break the nexus between an unfavourable background and offending. In Shadbolt v R, it was found that despite a challenging childhood, Mr
Shadbolt was able to lead a productive life and stay away from criminal offending for 14 years.26 There, the Judge considered the ability to lead a productive life was not the usual hallmark of a person who had been traumatised and left vulnerable by an appalling family life. Conversely, Cobham v R effectively reached the opposite outcome, finding that unresolved anger that was likely to have its genesis in the offender’s childhood was clearly linked to the index offending.27
[53] The assessment of the proper allowance to reflect matters raised in a cultural report is a fact specific exercise as the Court of Appeal emphasised in Whittaker v R.28
[54] I acknowledge Mr Tairi was denied a consistent and positive influence throughout his formative years. Under the positive influence of his wife, he had healthy personal relationships and business success. When that relationship broke down, his business collapsed and Mr Tairi’s struggles began. It was then he resorted to more serious drug use and to criminal offending. In Ms Norman he has settled on a partner who is a recidivist offender. The relationship strikes as unhealthy.
[55] Standing back, I agree with the Judge that the causal nexus between Mr Tairi’s early life and this offending is slight. His offending is far more strongly linked to his drug use and his relationship with Ms Norman. I therefore find the credit of five per cent to reflect the s 27 report factors was appropriate.
Mathematical error
[56] The Judge recorded that he gave an “almost full discount” for Mr Tairi’s guilty plea. Mr Allan had anticipated a discount closer to 25 per cent than to 20 per cent. Although the provision of a specific figure would have been preferable, it is clear from the subsequent calculations that the Judge applied a 20 per cent discount. Using the Moses approach, there was no mathematical error in reaching the end sentence as the Judge did, given that a 24-month starting point and a net 20 per cent discount for
26 Shadbolt v R , above n 11..
27 Cobham v R [2021] NZHC 1066 at [23] ]–[30].
28 Whittaker v R [2020] NZCA 241 at [51].
aggravating and mitigating factors results in 19.2 months’ imprisonment.29 The Judge rounded this to 19 months.
Least restrictive option
[57] Mr Allan’s final argument was the Judge did not consider the need to impose the least restrictive outcome and did not consider the recommended sentence of community work and intensive supervision.
[58] As Ms Fiennes submitted, the Judge expressly considered the need to impose the least restrictive outcome in the circumstances.30 It was also necessary for the Judge to consider the need for denunciation and deterrence. 31 Mr Allan relied on Tuitama as authority for the proposition a community-based sentence might be imposed on conviction for robbery. In Tuitama a sentence of supervision was imposed on appeal in substitution for a sentence of imprisonment in recognition of the offender’s overwhelming mitigating factors, including youth, the need for rehabilitation and offending described as “one wrong turning.”32
[59] Each case will ultimately turn on its own facts. The critical factors that determined the appeal in Tuitama do not arise in this case. The Judge did consider all sentencing options and reasonably concluded a sentence of home detention was the least restrictive outcome.
Home detention
[60] The Judge determined the least restrictive sentence was one of home detention but observed the pre-sentence report recorded Mr Tairi did not consent to an electronically monitored sentence. Mr Tairi was given leave under s 80I of the Sentencing Act to apply for home detention.
[61] When Mr Tairi entered his guilty plea the Judge did not call for appendices to consider a home detention sentence. Counsel could not explain this failure. Reports
29 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
30 R v Tairi, above n 2, at [15].
31 At [15].
32 Tuitama v Police, above n 9.
should have been called for. When it became apparent that reports had not been prepared counsel did not seek to adjourn the sentencing. Mr Allan’s complaint that the Judge ought to have adjourned sentencing is misplaced. The pre-sentence report made it plain Mr Tairi’s current address was unsuitable and that he did not otherwise consent to an electronically monitored sentence. In those circumstances it was incumbent on counsel to seek to adjourn the sentencing if home detention was to be considered.
[62] As I now understand, Mr Tairi’s only other option as an address for home detention was the address assessed for Ms Norman. Corrections had made it clear Ms Norman and Mr Tairi would not be approved to share an address. Consequently, Mr Tairi had resolved he would not put at risk Ms Norman’s prospects of securing a home detention sentence by proposing her address for him to serve an electronically monitored sentence. Once it became clear she was to be sentenced to a custodial sentence he could have applied for his sentencing to be adjourned so consideration could be given to him serving an electronically monitored sentence at her, then available, address. Inexplicably that did not happen. It may be that Mr Tairi thought the unavailability of an address to serve a sentence of home detention might lead the Judge to impose the recommended sentence of community work and intensive supervision.
[63] Mr Allan confirmed, that in the event Mr Tairi’s appeal is not commuted to a community based sentence, he will apply to cancel the sentence of imprisonment and substitute a sentence of home detention.
Conclusion
[64] Finally, I stand back and consider if a sentence of 19 months’ imprisonment with leave to apply for home detention is manifestly excessive or otherwise inappropriate for a party to a violent robbery committed within the victim’s home and in front of her children. I do not find the sentence imposed to be either manifestly excessive or inappropriate.
Result
[65]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Phillip Allan, Barrister, Christchurch
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