Taufui v The King
[2023] NZHC 2619
•27 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000335 CRI-2023-404-000336
CRI-2023-404-000337 [2023] NZHC 2619
ONESI TAUFUI
Appellant
v
THE KING
Respondent
Hearing: 19 September 2023 Appearances:
B C S Moyer for Appellant S E Cann for Respondent
Judgment:
27 September 2023
JUDGMENT OF WHATA J
Appeal against sentence
Solicitors/Counsel: BCS Moyer, Auckland
Crown Solicitor, Auckland
TAUFUI v THE KING [2023] NZHC 2619 [27 September 2023]
[1] Mr Onesi Taufu’i appeals his sentence of 30 months imprisonment following guilty pleas on three sets of separate charges in the Auckland District Court.
[2] His sets of offending, committed between December 2021 and April 2022, were as follows:1
(a)set one: burglary2 and wilful damage3;
(b)set two: driving with blood containing evidence of use of controlled drug (methamphetamine and cannabis)4 and operating a vehicle carelessly5; and
(c)set three: arson,6 assault with a weapon,7 conversion,8 driving in a dangerous manner,9 and failure to stop when followed by flashing red and blue lights.10
Facts
First set of offending
[3] On the afternoon of 10 December 2021, Mr Taufu’i entered a property and used an object to smash a glass panel to gain entry to the house. Once inside the house, Mr Taufu’i went through the house and smashed various items. As he returned to his car, he saw a witness watching him from outside her house. He then returned to the house and there was more smashing heard before he returned to his car and left.
1 I record for completeness that I have identified the sections I consider to be the relevant charging provisions. It does not affect the outcome.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty three months’ imprisonment.
4 Land Transport Act 1998, s 58(1). Maximum penalty of three months’ imprisonment or a $4,500 fine.
5 Section 37(1). Maximum penalty or a $3,000 fine.
6 Crimes Act, s 267(2)(a). Maximum penalty of seven years’ imprisonment.
7 Section 202C. Maximum penalty of three years’ imprisonment.
8 Section 226(1). Maximum penalty of seven years’ imprisonment.
9 Land Transport Act, s 35(1)(b). Maximum penalty of three months’ imprisonment or a $4,500 fine.
10 Section 52A(1)(a)(ii) and (3). Maximum penalty of a $10,000 fine.
[4] The police found the presence of blood in three areas of the house. The blood was swabbed and analysed and found to contain Mr Taufu’i’s DNA.
Second set of offending
[5] At about 11:30pm on 5 April 2022, Mr Taufu’i drove a motor vehicle on the Northern Motorway. He lost control of the vehicle and slid at high speed towards the centre median barrier. He collided with the median barrier and his vehicle spun several times back towards the left-hand lane before rolling backwards towards the emergency breakdown shoulder under the Wellington Street overbridge.
[6] Accompanied by police, Mr Taufu’i was transported by St John’s ambulance to hospital where a blood specimen was taken. Upon analysis, that blood was found to contain methamphetamine and cannabis. He admitted consuming both prior to driving.
Third set of offending
[7] On 9 April 2022, Mr Taufu’i was in a rented apartment in the Tetra Serviced Apartments on Wakefield Street, Auckland City. For an unknown reason, Mr Taufu’i lit fire to towels and linen in the bathroom, to a couch in the living room and to linen and a chair on the balcony. He then climbed from the second-floor balcony and ran along Wakefield Street. Fire Services were called and the extent of the fire in the apartment resulted in all occupants of that building having to be evacuated.
[8] After fleeing the apartment, Mr Taufu’i approached a vehicle and pulled open the driver’s door. He shouted at the occupant multiple times to get out of the car. The occupant did not respond. Mr Taufu’i then pulled out a kitchen knife and pointed it towards the occupant’s abdomen, dragging her by the hair out of the vehicle. After retrieving the car key, he got into the car and drove away.
[9] The vehicle, valued at $9,000, was subsequently reported stolen and police alerted to its movements. Mr Taufu’i proceeded to drive erratically: cutting off other vehicles, travelling at high speed on the motorway, travelling through red lights and driving on the wrong side of the road. At one point, Mr Taufu’i disregarded flashing
red and blue lights behind him before colliding with another vehicle. He made no attempt to stop and ascertain if there were any injuries.
[10] Mr Taufu’i was eventually stopped in Point Chevalier, the vehicle having been spiked multiple times. He attempted to flee on foot but was apprehended by police.
District Court Sentence
[11] Judge K J Glubb sentenced Mr Taufu’i to 30 months imprisonment.11 The sentence was composed of:
(a)A starting point of 20 months for the arson.
(b)An uplift of 18 months for the assault with the weapon, unlawful taking of a vehicle, and failing to stop for police.
(c)An uplift of 18 months for the burglary.
(d)An uplift of two months for driving under the influence and careless driving.
(e)An uplift of one month for previous convictions, adding up to 59 months total.
(f)A discount of 15 per cent for totality, bringing the global starting point to 50 months.
(g)A discount of 15 per cent for the s 27 report.
(h)A discount of 25 per cent for guilty plea.
[12] When considering the aggravating factors of the burglary offending, the Judge noted a degree of planning and premeditation and the fact it was a domestic dwelling. It resulted in damage of approximately $4,700 and led the occupant of the dwelling to
11 R v Taufu’i [2023] NZDC 12337.
move out due to safety concerns. In terms of the arson, it was a multi-storey accommodation that had to be evacuated and the quantum of property damage was approximately $12,000. For the unlawful taking of a motor vehicle, the Judge took into account the significant damage to the vehicle. There was forced entry into the complainant’s car, yelling at her and then the use of a weapon to ensure the taking. There was also violence.
[13] In terms of aggravating and mitigating factors personal to Mr Taufu’i, the Judge noted that he had no previous conviction history in New Zealand, though did in Australia. The Judge also acknowledged the contents of the PAC report, noting the appellant’s background including his struggle to sustain employment once deported back to New Zealand, his unstructured lifestyle, and drug use. He noted Mr Taufu’i is assessed as being in the low percentile of substance abuse moving forward and has some health issues. He acknowledged the appellant was remorseful during the interview and had said he was willing to pay reparation.
Grounds of appeal
[14] Mr Taufu’i appeals his sentence on the basis that it was manifestly excessive on the following grounds:
(a)The starting point for the arson offending was excessive.
(b)The percentage allocated for the s 27 report was inadequate.
(c)A discount for addiction should be applied and this should be separate from the s 27 discount.
(d)No discount was allocated for time spent on electronically monitored (EM) bail.
(e)No discount was allocated for remorse.
Arson starting point
[15] Mr Moyer submits that the 20-month starting point for the arson charge was excessive. A starting point of 15 months for the arson charge is sought, in line with the case of R v Lee in which the defendant similarly deliberately set fire to the house in a domestic dispute after breaking in.12
[16] Ms Cann for the Crown submits the Judge was correct in finding the arson in the present case was more serious than that in Lee. The quantum of property damage was higher in this case (approximately $12,000 compared to approximately $3,000 in Lee). The Judge also acknowledged the arson in this case was committed in a multi- storey residential apartment where the risk of safety to others was far more serious.
Assessment
[17] I agree with Ms Cann, the arson offending in this case is materially worse than the offending in Lee simply in terms of the scale of the risk associated with setting a multi-storey residential apartment on fire as compared to a single apartment. Moreover a 20-month starting point for arson of this kind was within range.13
Personal circumstances discount
[18] While Mr Moyer treats the discount for s 27 factors and addiction separately, it makes sense to deal with these matters together in terms of a personal circumstances discount. First, Mr Moyer submits that the contents of the s 27 report prepared by Ms Tulley warrant a discount of 15 to 20 per cent due to the appellant’s upbringing, disconnection from his culture and being deported from Australia in 2018 with little to no family support.
[19] Second, Mr Moyer submits that when there is a clear causal link between methamphetamine addition and the offending a discount is available.14 He submits the appellant’s methamphetamine addiction has had a causative effect on the burglary
12 R v Lee CA217/06, 28 November 2006.
13 Wall v R [2010] NZCA 494 at [15] and [22].
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
offending in the sense of funding that addiction — though this is a matter of self- reporting. In this regard, Mr Taufu’i claims he had no recollection of the first set of offending due to being under the influence of methamphetamine. Mr Taufu’i also tested positive for methamphetamine in relation to the second set of offending and in the third set of offending, a methamphetamine pipe was located. A further discount of five per cent for addiction is said to be warranted.
[20] The Crown submits that there should be no additional discount for personal circumstances, noting that no authority is cited for this proposition. In addition, no discount is warranted for claimed addiction issues, noting that the mere presence of methamphetamine utensils does not provide evidence that a methamphetamine addiction was causative of offending.15 Reference is made to Zhang v R and the point made there that “non-causative addiction will be of little mitigatory relevance”.16
Assessment
[21] I am not satisfied that the Judge erred in applying a 15 per cent discount for personal factors. Those factors included family dysfunction, abuse, violence, bullying, limited education, peer influence at a young age, substance abuse from a young age, and experience as a 501 deportee. A letter from a cousin was tendered to the Court to support the observations made in the cultural report. I have little trouble in finding that such a background, and ongoing addiction issues contributed to the offending in this case. The arc of Mr Taufu’i’s troubled upbringing, lengthy drug addiction and 501 social dislocation, undoubtedly mars his life today in many ways, including his ability to make the right choices.
[22] But it does not follow that this demands a greater discount than that applied in this case. The factors mentioned are not direct contributors to the offending — on the information available to me, their impact is largely diffuse rather than an overwhelming reason for the offending. This bears on Mr Taufu’i’s actual and relative culpability and mitigates the extent of any discount available to him, as does the seriousness of the offending and in respect of the arson, the potential risk of
15 Wilson v Police [2021] NZHC 402.
16 Zhang v R, above n 14, at [147] and [149].
catastrophic harm. It must also be remembered that intoxication is not a mitigating factor in itself.17 The submissions suggesting otherwise are misplaced.
[23]For my part therefore, I have no reason to depart from the discount applied.
Time spent on EM bail
[24] Mr Moyer submits that the Judge did not take into account that Mr Taufu’i had spent a total of 220 days on EM bail. A discount of two to three months is said to be warranted for time spent on EM bail. In terms of the breach, there was no offending during the breach, and he explained that he felt unwelcome at the then premises and was in the process of transferring to the address that he alighted to.
[25] Ms Cann submits that Mr Taufu’i is not entitled to a discount for time spent on EM bail as he breached his bail conditions by leaving his address and tampering with his bracelet. It is also noted that he was able to leave the premises for exercise, so it was not strictly a 24-hour curfew. Even if the Court decided to apply a discount, it would be minimal and would not cause the end sentence reached to be manifestly excessive.
Assessment
[26] There should have been some recognition of the very lengthy period Mr Taufu’i spent on EM bail. As Simon France J said in Longman v Police:18
[7] Credit for time spent on EM bail is considered when fixing the appropriate length of any sentence of imprisonment. It is a mitigating factor that is assessed in the same way and at the same time as factors such as remorse, guilty plea and rehabilitative efforts. It feeds in the appropriate length of sentence.
[27] The fact that he breached EM bail is a countervailing factor that in some cases may mean a discount is not appropriate. But there remained the need to recognise the punitive effect of EM bail for such a long time.
17 Sentencing Act 2002, s 9(3); and R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 at [54].
18 Longman v Police [2017] NZHC 2928.
[28] There is no formula for this. The Court of Appeal in Agar v R applied a discount of ten per cent or three months to account for 26 months on EM bail.19 No reasons were given for this. Mr Longman received a one-month discount for two and half months on 24-hour curfew.20 However, there were no breaches in his case.
[29] In the present case a discount based on 10 per cent of the EM bail period of around seven months would amount to a discount of approximately three weeks. For my part that seems unduly parsimonious, even accounting for the breach. I consider that a discount of one month better reflects the restrictive nature of EM bail.
Remorse
[30] Mr Moyer submits the Judge ought to have taken into account Mr Taufu’i’s remorse; in particular his attempts to partake in the restorative justice process (even if it did not occur) and efforts to make full payment of reparation. He notes that Mr Taufu’i has now made a reparation payment of $3,500. It is thus submitted that the Judge erred in not allocating a discount for remorse and that a discount of five to 10 per cent should be allocated.
[31] The Crown submits the Judge did take into account the appellant’s remorse. At [33] the Judge noted Mr Taufu’i was “remorseful during the interview” and “said [he was] willing to pay reparation.” Ms Cann further submits that this may have fed into the uplift and the reparation sum. She says that even if the Judge did not expressly reference a discount for remorse, he did take it into consideration when handing down the sentence.
Assessment
[32] It appears the Judge took into account remorse but it is not clear how. I disagree with Ms Cann that it likely found its way into the uplift or the reparation sum. I think it more likely that it formed part of the personal circumstances discount. The remaining issue is whether a discount of 15% is sufficient in the circumstances to reflect both background and remorse.
19 Agar v R [2021] NZCA 350 at [49].
20 Longman v Police, above n 18, at [13].
[33]The Court of Appeal in Moses v R notes that:21
Remorse is a question of fact and judgement. The defendant bears the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence.
[34] Having regard to Mr Taufu’i’s materials he illustrates clear remorse as outlined in his PAC report, s 27 report and efforts to make full reparation. Discounts in the order of 5-10% for such remorse would not be out of range in a case like this.22 A discount therefore of 15% for personal circumstances including remorse seems light and a combined discount in the order of 20% appears more appropriate.
Overall
[35] Mr Moyer submits the sentence is manifestly excessive and that a sentence of 24 months or less is warranted. As the PAC report for sentence recommends home detention Mr Moyer submits this is the least restrictive sentence available to the Court.
[36] Ms Cann responds that the end sentence reached through discounts totalling 55 per cent was within the available range for serious offending by a recidivist offender. Further, a sentence of home detention in a Kāinga Ora property, without the supervision and assistance of rehabilitation, would be setting Mr Taufu’i up to fail. She also submits that were I to discount for EM bail curfew and remorse, any such discount would not mean the end sentence was manifestly excessive.
[37] On my assessment Mr Taufu’i was eligible for discounts of one month (or two per cent of the global starting point of 50 months) for his time on EM bail, and another 5 per cent for his remorse. Taken together, this is an unaccounted-for discount in the order of 7 per cent. This, if added to the existing discounts of 40 per cent,23 brings the overall discount to 47 per cent and the end sentence to one of about 26 months’ imprisonment.
21 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24]-[26].
22 See for example Poi v R [2015] NZCA 300 and Rowles v R [2016] NZCA 208.
23 For completeness, the existing discounts comprise 25 per cent for guilty plea and 15 per cent for the s 27 report.
[38] In the result, I consider that the sentence imposed of 30 months’ imprisonment was manifestly excessive. For completeness, I reject the submission that the discount for totality is relevant to this assessment. That discount goes to starting point and is not a discretionary matter going to personal circumstances.
[39] For completeness I have turned my mind to whether, taking a more generous view of the available discounts, home detention might have been the most appropriate outcome. It was recommended in the PAC report of 1 June 2023. However, there is real complexity now in terms of commuting the sentence to home detention. The report appears premised on the completion of rehabilitative programmes and the suitability of the address had not been re-assessed as at today’s date. Whether there remains a commitment to that rehabilitation is unclear to me. Furthermore, and importantly, the offending is moderately serious; the arson in particular could have had catastrophic effects. A cautious approach is thus warranted in this case and I am not convinced that home detention is obviously the most appropriate sentence. The Parole Board is also now particularly well placed to make the requisite forward- looking assessment including Mr Taufu’i’s commitment to rehabilitation and any practical considerations in terms of ongoing rehabilitative programmes. Overall, therefore, I consider the balance of considerations favours the completion of the shortened prison sentence in any event.
Outcome
[40] In the result, I am satisfied that the sentence imposed is manifestly excessive. The sentence of 30 months’ imprisonment is quashed, and a sentence of 26 months’ imprisonment imposed in its place.
Whata J
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