Tasi v The King
[2023] NZHC 2121
•9 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000277
[2023] NZHC 2121
BETWEEN CHRISTOPHER TASI
Appellant
AND
THE KING
Respondent
Hearing: 8 August 2023 Appearances:
P I Pati for Appellant
R J McDonald for Respondent
Judgment:
9 August 2023
REASONS JUDGMENT OF VAN BOHEMEN J
[appeal against sentence]
This judgment was delivered by me on 9 August 2023 at 3:30 pm Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors: P I Pati, Auckland
Crown Solicitor, Manukau
TASI v R [2023] NZHC 2121 [9 August 2023]
[1] On 10 May 2023, Christopher Tasi was convicted and sentenced to two years and ten months’ imprisonment by Judge J C Moses in the District Court at Manukau after pleading guilty to one charge for sexual violation by unlawful sexual connection.1 On 7 June 2023, Mr Tasi appealed his sentence on the grounds that the Judge erred by setting an excessive starting point and by giving insufficient discounts for his personal circumstances. The Crown opposed the appeal.
[2] At the conclusion of the hearing on 8 August 2023, I dismissed Mr Tasi’s appeal. This judgment sets out the reasons for my decision.
The offending
[3] In the early hours of 10 January 2021, Mr Tasi went to a house on the same street where he had been living with his wife, children and mother-in-law, following an argument with his wife. He had been drinking at a neighbour’s house since the early evening.
[4] Mr Tasi took a wallet from the victim’s unlocked car, knocked on the victim’s front lounge window, then walked around the back to the laundry door where he forced open a louvre window. The victim went downstairs and saw Mr Tasi, who identified himself. The victim recognised him as a local although she did not know his name. Mr Tasi told her a friend of his had broken into the victim’s vehicle and stolen her wallet. He said he wanted to return it. He dropped the victim’s licence through the window and said he had left her wallet on the front lawn.
[5] Mr Tasi gave the victim her wallet after she came outside and locked her car. As they conversed, Mr Tasi grabbed the victim by her crotch. The victim jumped back and asked Mr Tasi what he was doing. He replied “I think you’re pretty hot.” The victim told him not to do that and said nothing like that was going to happen. Mr Tasi became upset and told the victim that his wife had left him three years ago, that his children were with his parents and that he did not have a place to stay. Following a discussion about Mr Tasi’s children, Mr Tasi asked if he could stay the night. After being assured by Mr Tasi that she and her house were going to be safe, the victim
1 R v Tasi [2023] NZDC 9227.
allowed him to stay. The victim made up an airbed for Mr Tasi in her lounge, told him where the bathroom was and went to sleep.
[6] Approximately twenty minutes later, Mr Tasi entered the victim’s bedroom, leapt onto her bed, restrained the victim with his hands and moved her phone away as he pushed down on her. The victim was unable to reach her phone but struggled as she told Mr Tasi to get off her and tried to kick him off the bed. While holding her down with one arm, Mr Tasi put one of his hands inside the complainant’s underwear, inserting his fingers into her vagina and moving them a number of times. Throughout this, the victim told him “No” and “this was not the agreement”. Mr Tasi then stopped, got off the bed, said, “I’m so sorry”, and left. The victim called Police later that morning. Although she did not sustain any physical injuries, the complainant said she felt a burning pain in her vaginal area for 30 minutes after Mr Tasi left.
Sentencing decision
[7] The Judge noted that Mr Tasi had pleaded guilty on the day he was to go to trial, and that sentencing had been put off for over a year to enable him to complete counselling. Despite adjournments for him to do that, Mr Tasi had not completed his counselling and the Court had no report from the counsellor. The Judge said he was not prepared to adjourn the matter to enable the completion of a cultural report, as urged by Mr Tasi’s counsel. He noted that the victim was present for the sentencing.2
[8] The Judge set out the pleaded facts and said it was apparent from the victim’s impact statement that the offending had a significant effect on her and it was clear she still had ongoing issues, even though she was grateful Mr Tasi had pleaded guilty.
[9] The Judge said the Sentencing Act required him to hold Mr Tasi accountable, to publicly denounce Mr Tasi’s behaviour and to deter others, while imposing the least restrictive sentence.3 The Judge said the aggravating features of Mr Tasi’s offending included Mr Tasi’s unlawful presence on the victim’s property, the way he lured her outside through lies about returning her wallet and his exploitation of her generosity
2 At [1] – [3].
3 At [13] – [14].
of spirit in allowing him to stay. The Judge said the victim was vulnerable and, in his view, had been manipulated into allowing Mr Tasi to stay that night.4
[10] The Judge took a starting point of four years’ imprisonment, noting that this was “the very least appropriate starting point for this offending”, and that it “could be higher”. Despite Mr Tasi’s previous convictions, which included convictions for burglary and drug possession and supply, the Judge did not apply any increase for those prior convictions. The Judge then gave Mr Tasi a 10 per cent discount for his guilty plea because it meant the victim did not have to go through the ordeal of giving evidence. The Judge also allowed a five per cent discount in recognition of the fact that Mr Tasi had commenced and attended some counselling sessions, even though he had not completed his counselling, and a further seven months discount in recognition of Mr Tasi’s approximately 14 months on electronically monitored bail (EM bail).
[11] The end result was a final sentence of two years and ten months’ imprisonment.5 The Judge observed that had the end sentence reached two years, there would still have been a presumption in favour of a sentence of imprisonment in light of the significant breach of the victim’s trust.6
Mr Tasi’s application for adjournment
[12] On 22 June 2023, Downs J set down Mr Tasi’s appeal for 8 August 2023 and made timetable orders for the filing of submissions. Downs J directed that submissions on behalf of Mr Tasi were to be filed by 25 July 2023.
[13] On 25 July 2023, Mr Pati, counsel for Mr Tasi, filed submissions on behalf of Mr Tasi. He also filed a memorandum seeking an adjournment to a further appeal callover to enable Mr Tasi to provide an affidavit explaining updates in his personal situation, such as his willingness to re-engage in the counselling he was receiving prior to sentence and the prospects of employment post-release.
4 At [15] – [17].
5 At [18] – [22].
6 At [24] – [25].
[14] By minute dated 26 July 2023, Downs J confirmed the fixture for 8 August 2023.
[15] Mr Pati reiterated the application for an adjournment at the hearing on 8 August 2023. He submitted that evidence from Mr Tasi about his personal circumstances would provide context about Mr Tasi’s poor attendance at the counselling courses and about some of his breaches while on EM bail, some of which had been beyond Mr Tasi’s control because he had been required to work overtime. Mr Pati handed up copies of emails showing that Mr Tasi had worked as a devanner for The Warehouse Group in September 2022 and had been offered the opportunity for work in June 2023.
[16] Mr McDonald, counsel for the Crown. opposed the application for the adjournment. He said Mr Tasi had had plenty of opportunity since sentence to put forward further evidence. In any event, any such evidence would not be fresh and would not affect the outcome of the appeal.
[17] I dismissed the application for an adjournment. Even putting aside issues of freshness and timeliness, it was clear the evidence would be unlikely to affect the outcome of the appeal. Whatever contextual evidence Mr Tasi may have wished to adduce, his attendance at the counselling courses had been poor. Moreover, evidence of Mr Tasi’s post-offending behaviour would not affect the starting point adopted for his sentence, which was the focus of his appeal. Whatever the reasons for the bail breaches, he had been given the normal 50 per cent credit for time spent on EM bail. It was apparent that the bail breaches had not affected the discount.
Approach on appeal
[18] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.7 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate,
7 Criminal Procedure Act 2011, s 250(3).
vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[19] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.8 Unless there is a material error in the end sentence, the Court will not intervene.9 There will be a material error if the end sentence is manifestly excessive or wrong in principle.10 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.11 Accordingly, mere tinkering is not permitted.12 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.13
Submissions for Mr Tasi
[20] Mr Pati submitted that Mr Tasi’s offending properly fell within band one of R v AM,14 the guideline sentencing judgment for unlawful sexual connection. He referred to Sharma v R,15 Tanuvasa v R16 and Hohua v R17 where starting points of two years and ten months, two years and eight months and three years and a half were approved on appeal, respectively, for digital penetration offending. He contended that Mr Tasi’s offending was within a similar range to those cases, and that at its highest, a starting point of three years and six months should have been adopted. He asserted that, in Hohua, the Court of Appeal had set the upper limit for starting points for offending of this nature
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30] .
9 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 8, at [14].
10 Tamihana v R, above n 8, at [14].
11 Tutakangahau v R , above n 8, at [36]; Tamihana v R , above n 8, at [14].
12 Maihi v R [2013] NZCA 69 at [21].
13 Tutakangahau v R, above n 8, at [36].
14 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
15 Sharma v R [2022] NZCA 648 at [37] and [42].
16 Tanuvasa v R [2019] NZCA 217 at [14].
17 Hohua v R [2017] NZCA 89 at [33] and [39].
[21] Mr Pati acknowledged that Mr Tasi’s breach of trust, the vulnerability of the victim and the element of home invasion (in the sense of invasion into the victim’s bedroom and personal space) were aggravating features. However, for reasons of consistency in sentencing of similar offending, Mr Pati invited the Court to accept that the starting point of four years adopted by Judge Moses was too high. Mr Pati submitted that Mr Tasi’s offending was not more serious than the offending in Hohua. He said the six month difference between the starting point in Hohua and that adopted by the Judge was significant and could not be justified. Mr Pati pointed out that the theft of the victim’s wallet and the assault outside the house were not part of any charge. He also said that Mr Tasi showed remorse by apologising, being tearful and then running away.
[22] In respect of Mr Tasi’s personal circumstances, Mr Pati noted that Mr Tasi has nine children living in a home that is insufficient to house them all and that between Mr Tasi’s guilty plea through to sentencing, Mr Tasi had been attempting to work and obtain full time employment. Mr Pati submitted that this showed Mr Tasi’s significant responsibilities and explained why he had been unable to complete his sexual offending counselling. Mr Pati also said that, in the context of South Auckland, the fact that Mr Tasi had attended more than one counselling session was itself an achievement. Mr Pati said that the psychologist from whom Mr Tasi originally received counselling was reconsidering engaging with Mr Tasi while in custody. Mr Pati also noted that the recommendation in the pre-sentence report was for Home Detention and submitted that the five per cent discount given for Mr Tasi’s rehabilitation efforts was insufficient in light of the fullness of his responsibilities.
Submissions for the Crown
[23] Mr McDonald, counsel for the Crown, submitted that the Judge did not err in setting a four years starting point.
[24] First, the Judge had appropriate regard to the gravity of the aggravating features present in Mr Tasi’s offending. Mr McDonald said that the starting point taken at the upper end of band one or at the cusp of bands one and two of AM was appropriate because two aggravating features were present – unlawfully being on
property and victim vulnerability to a moderately serious degree. Mr Tasi had abused the trust the victim had placed in him and exploited her vulnerability as an unaccompanied woman in the supposed safety of her own home. Mr McDonald said Mr Pati’s proposed starting point of three years and six months was in the middle of band one of AM, which would not be compatible with the Judge’s assessment of the aggravating features which were not disputed.
[25] Secondly, Mr McDonald said that the three cases cited by Mr Tasi to support a lower starting point all involved materially less serious offending. Most significantly, the offenders in all the cases cited by Mr Tasi were lawfully present in the locations of their offending. All involved a single count of sexual violation by digital penetration against victims who were vulnerable either because they were sleeping or intoxicated. He submitted that Mr Tasi’s offending was much graver because of the dishonest pretence with which he tried to enter the victim’s property and exploited the victim’s kindness. These features and the element of restraint against the victim elevated the gravity of his offending beyond the opportunism evident in Tanuvasa, Sharma or Hohua. In addition, even though Mr Tasi was not charged for the theft or for the assault on the victim outside the house, they were part of the summary of facts and were part of the circumstances of Mr Tasi’s offending.
[26] Thirdly, Mr McDonald referred to B(CA182/2018) v R,18 where a stepfather digitally penetrated his 12-year old stepdaughter under the guise of playing a game. Mr McDonald agreed that Mr Tasi’s offending was less serious than that case, in which a five years imprisonment starting point was approved, but submitted that, by comparison, the starting point of four years adopted by the Judge was well within range.
[27] Mr McDonald submitted that the Judge gave sufficient discounts for Mr Tasi’s personal mitigating factors. He said no discount was warranted for remorse. There was no tangible evidence of anything resembling remorse between Mr Tasi’s guilty plea and sentence. Mr Tasi had failed to engage meaningfully in rehabilitation and counselling and, his comments to the pre-sentence report-writer suggested a concern
18 B(CA182/2018) v R [2019] NZCA 18.
with his own predicament rather than the impact on the victim. Mr McDonald noted that there was no letter of remorse to the Court in advance of sentencing.
[28] Mr McDonald said the 10 per cent discount for Mr Tasi’s guilty plea at the last hour, the five per cent discount for Mr Tasi’s efforts at rehabilitation and the seven months for time spent on EM bail were generous. The guilty plea was made just before the empanelling of a jury. Mr Tasi’s completion of seven sessions out of eighteen for his counselling was self-reported. The seven months discount for time on EM bail was generous in light of the number of bail variations Mr Tasi received and the three bail breaches that occurred over that period.
Analysis
[29] In R v AM, the Court of Appeal set out relevant culpability features of sexual violation offending: planning and premeditation; violence, detention and home invasion; the vulnerability of the victim; harm to the victim; multiple offenders; the scale of the offending; breach of trust; hate crime; degree of violation; mistaken belief in consent, consensual sexual activity immediately before the offending; previous relationship and victim views.19
[30] The Court said that where none of those features increased the seriousness of the offending, a starting point at the bottom of band one (two to five years) for unlawful sexual connection would be appropriate. However, where one or more of these factors was present to a low or moderate degree, a starting point closer to the top of the band would be required.20 The Court also said that where two or three of these features were involved which increased culpability to a moderate degree, band two (four to ten years) would be appropriate.
[31] In Mr Tasi’s case, two of those features were clearly present: vulnerability of the victim and breach of trust. In addition, there were elements of home invasion (intrusion into the victim’s bedroom) and detention (restraining the victim while violating her). There were also the further aggravating factors of the theft from the
19 R v AM, above n 14, at [34] – [64].
20 At [114].
victim’s car, the apparent attempt to break into the victim’s house, the assault on the victim outside the house and the duplicity in lying to the victim to persuade her to let him stay the night. As Mr McDonald said, these are all part of the circumstances of Mr Tasi’s offending. It is clear, therefore, that the offending was near the top of band one or towards the lower end of band two. For that reason, and while the Court of Appeal in R v AM cautioned against a mechanistic approach,21 there was clearly ample basis for the Judge’s decision to adopt a starting point of four years’ imprisonment.
[32] I do not consider that the decisions in Sharma, Tanuvasa or Hohua are apposite. They all involved offenders who had some legal basis for being at the victim’s residences at the time and did not involve deception or manipulation in order to gain access to the victim. Even putting that factor to one side, just because lower starting points were adopted in those cases does not mean that a higher starting point was not open to the Judge in Mr Tasi’s case. As the Court of Appeal said in R v AM, what is required in each case is an evaluation of all the relevant circumstances of the offending.22
[33] I am satisfied that the Judge had appropriate regard to the relevant circumstances of Mr Tasi’s offending when setting the starting point of four years. I also do not accept that the Court of Appeal was intending to establish any upper limit for starting points when it upheld the starting point of two years and six months adopted by the District Court Judge in that case. The Court of Appeal found that, based on the District Court Judge’s assessment of the evidence, his starting point “was clearly within range”.23 The decision is not authority for any broader proposition.
[34] I also do not accept there is any sufficient basis for revising the discounts made by the Judge.
[35] The discount of 10 per cent for a guilty plea on the morning of the trial was appropriate. It is consistent with the Court of Appeal’s decision in McDonald v R,
21 At [36].
22 At [36].
23 Hohua v R, above n 17, at [39].
where the Court approved a 10 per cent discount for guilty pleas on the morning of a trial.24
[36] The five per cent discount for Mr Tasi’s fitful participation in counselling sessions over a year was generous, bearing in mind the Supreme Court’s guidance in Berkland v R that Courts should provide material sentencing discounts where the evidence suggests an offender is genuinely willing to engage in rehabilitative programmes.25 While Mr Tasi’s family responsibilities may have limited his time, I do not accept that these can explain his poor attendance, even in the challenging circumstances he faces in South Auckland.
[37] I do not accept that there should be any discount for remorse. The apology and tears Mr Tasi manifested when the victim managed to push him away have to be seen in the context of his behaviour earlier in the evening when he stole from the victim’s car, assaulted the victim once he had persuaded her to come outside, the lies that he fabricated to persuade the victim to allow him to stay the night and the subsequent breach of trust when he assaulted the victim in her bedroom. I do not consider that any weight should be given to the hurried apology and departure after Mr Tasi’s efforts to engage the victim sexually had been rebuffed, particularly when he later maintained to the pre-sentence report writer that he believed the encounter had been consensual.
[38] Lastly, and as Mr McDonald submitted, the discount for Mr Tasi’s time on EM bail was also generous, given the number of variations and the breaches of bail.
Result
[39]For all these reasons, I dismissed Mr Tasi’s appeal.
G J van Bohemen J
24 McDonald v R [2021] NZCA 531 at [37].
25 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [161].
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