Tauia v The Queen

[2021] NZHC 2803

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-004486

[2021] NZHC 2803

BETWEEN

MATTHEW TAUIA

Appellant

AND

THE QUEEN

Respondent

Hearing:	18 October 2021
Appearances:	D Schellenberg for Appellant D Becker for Respondent
Judgment:	20 October 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 20 October 2021 at 11.45 am.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Auckland

TAUIA v R [2021] NZHC 2803 [20 October 2021]

[1]    Mr Tauia pleaded guilty in the District Court to one charge of aggravated robbery and one charge of converting a motor vehicle. On 14 February 2021, Judge A-M Bouchier sentenced him to four years imprisonment on each charge, with the sentences to be served concurrently.1

[2]    Mr Tauia appeals against sentence. He contends the Judge adopted a starting point that was too high. He also contends the Judge erred in applying uplifts to the starting point and did not give him sufficient credit for mitigating factors. He argues that these errors led the Judge to impose an end sentence that was too high. Furthermore, the conviction for aggravated robbery was a “second strike” offence. This means Mr Tauia will be required to serve the whole of the sentence without parole.2

The offending

[3]    On 2 May 2020 a Subaru motor vehicle was stolen from an address in Epsom. On the afternoon of 14 May 2020 Mr Tauia and four associates travelled in the vehicle to Mount Roskill to rob a jewellery store located in a suburban shopping centre.

[4]    Mr Tauia and three of his co-defendants left a getaway driver in the vehicle. They then walked into the shopping centre wearing disguises and gloves. They brandished hammers and one of them also carried a large rock. They forced their way into the jewellery store by completely smashing a glass door. The proprietor of the premises and three female staff members were present in the store when the intruders entered. Three adult customers were also present in the premises, one of whom had her baby with her. The intruders yelled threats at the staff and customers and then smashed several glass cabinet displays using their hammers and the rock.

[5]    Mr Tauia and his associates gathered up large quantities of gold jewellery from the display cabinets and then left the store. They went back to the waiting Subaru and drove to a park. They then ran across the park to a location where they had another

1      R v Tauia [2021] NZDC 2609.

2      Sentencing Act 2002, s 86C(4)(a).

vehicle waiting for them. As they did so they dropped items of jewellery having considerable value.

[6]    The police helicopter tracked Mr Tauia and his associates to an address in Papatoetoe, where they were arrested about 40 minutes later. In total, they had stolen jewellery having a retail value of approximately $1 million. The police were able to recover items having a value of approximately $840,000. Items to the value of approximately $260,000 remain unrecovered.

[7]    Mr Tauia entered his guilty pleas following a sentence indication given by the Judge on 20 November 2020.3

The sentence

[8]    The Judge took a starting point of five years six months imprisonment. She then added uplifts of two months and three months respectively to reflect the fact that Mr Tauia committed the offences whilst he was serving a sentence of intensive supervision and has two previous convictions for aggravated robbery.

[9]    From the resulting sentence of five years 11 months imprisonment the Judge gave Mr Tauia discounts of two months each for the fact that he had attended a restorative justice conference and had been on restrictive EM bail conditions for a period of approximately six months. She then applied a discount of 25 per cent, or 18 months, to reflect guilty pleas. This resulted in the end sentence of four years imprisonment.

Decision

Starting point

[10]   On Mr Tauia’s behalf Mr Schellenberg contends that a starting point of no more than five years imprisonment was warranted. He points out that the Judge referred to the decision of the Court of Appeal in Inamata v R.4 In that case a starting point of

3      R v Waikato-Tuhega DC Auckland CRI-2020-004-4486, 20 November 2020.

4      Inamata v R [2017] NZCA 556.

five years six months imprisonment was approved. Mr Schellenberg contends Mr Taiua’s overall culpability is less than that of the offenders in Inamata.

[11]   This submission faces the obvious difficulty that the appropriate starting point for offending such as this will always fall within a range. The range is informed by the guideline judgment of the Court of Appeal in R v Mako.5 In that case the Court of Appeal observed:

[56] A further example can be given taking another  combination  of  features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.

[12]   Applied to the facts of the present case these observations make it clear that the starting point of five years six months imprisonment was within the appropriate range. Furthermore, the Court of Appeal has recently considered the sentence imposed on Mr Waikato-Tuhega, one of Mr Taui’s co-offenders.6 The Judge had selected a global starting point of nine years six months imprisonment for Mr Waikato-Tuhega on two charges of aggravated robbery. This comprised five years six months for the robbery of the jewellery store and four years for the robbery of a liquor store. The Court agreed with the Crown that there could be “no real challenge” to the global starting point.

[13]   Similarly, Venning J recently determined an appeal against sentence by Mr Kosiogo, another of Mr Tauia’s co-offenders.7 Venning J considered the Judge could have taken a starting point of six years imprisonment rather than five years six months.8

5      R v Mako [2000] 2 NZLR 170 (CA).

6      Waikato-Tuhega v R [2021] NZCA 503.

7      Kisiogo v R [2021] NZHC 1648.

8 At [26].

[14]   This means there is no substance to the argument that the Judge adopted a starting point that was too high.

Uplifts to starting point

[15]   Mr Schellenberg contends the Judge erred by applying uplifts to reflect the fact that Mr Tauia has two previous convictions for aggravated robbery and he was still subject to a sentence of supervision when the present offending occurred. He submits the uplifts were unnecessary and amounted to double counting. He points out that Mr Tauia’s first strike offence was one of his previous convictions for aggravated robbery and this means he will be required to serve the whole of the sentence.

[16]In Wipa v R the Court of Appeal observed:9

We conclude that when considering an uplift for previous convictions, or for offending while on bail or subject to sentence, the court should decide whether, having regard to the loss of parole under s 86C, an uplift is needed to achieve the sentencing purposes of denunciation, accountability, deterrence and community protection.

[17]The Court then went on to say:10

In our view a small uplift was indeed justified notwithstanding s 86C, to recognise that Mr Wipa was still subject to a sentence. That is a serious aggravating factor which points to a substantial reoffending risk and a corresponding need for community protection. We do not consider that an uplift was otherwise needed, having regard to the loss of parole. We would fix the uplift at three months.

[18]   In the present case, for the reasons given in Wipa, I consider the fact that the present offending occurred whilst Mr Tauia was serving a sentence of intensive supervision justified the uplift of two months the Judge applied.

[19]   I take a different view in relation to the uplift to reflect the two previous convictions for aggravated robbery. Ordinarily Mr Tauia would have been eligible for parole after serving just 15 months of the present sentence. The effect of s 86C is to require him to serve 48 months before being released. This means I do not consider a further uplift was required to reflect the previous convictions for aggravated robbery.

9      Wipa v R [2018] NZCA 219 at [36].

10 At [42].

Discounts

Restorative justice

[20]   Mr Schellenberg contends the Judge ought to have given Mr Tauia a discount of at least seven months, or ten per cent, to reflect the fact that he attended a restorative justice conference with the proprietor of the jewellery store. During the conference Mr Tauia apologised to the victim and expressed his remorse and shame as to what had occurred in the robbery.

[21]   I agree that this factor was worthy of recognition. I also accept the level of recognition to be given to this type of factor is very much a matter of discretion for the sentencing Judge. She was not bound to apply a discount of any particular size. However, I consider a discount of just over two per cent was not sufficient. It would not have been a comfortable experience for Mr Tauia to face his victim and I consider he deserved greater credit than the Judge gave him. I consider this factor warranted a discount of at least four months.

EM bail

[22]   Mr Tauia was subject to restrictive EM bail conditions for a period of approximately six months. Mr Schellenberg contends the Judge ought to have applied a discount of approximately six months to reflect this factor.

[23]   This submission is not tenable. A sentencing judge may apply a discount to reflect that an offender has been subject to restrictive bail conditions. The level of discount is very much a matter of discretion. It is unusual to see discounts of more than one-third of the time spent on restrictive EM bail. A discount of two months was therefore plainly within the available range.

Section 27 report

[24]   At sentencing the Judge had the benefit of a report prepared by Mr David Lui. This contained considerable detail regarding Mr Tauia’s family and cultural background. The report reveals that Mr Tauia moved to New Zealand with his family when he was just five months of age. The family then lived in impoverished

circumstances for several years. In addition, the family sent Mr Tauia to live with relatives in Australia to address behavioural issues when he was just 15 years of age. Mr Schellenberg submits the factors identified in the report have a direct causative link with the offending because it shows he had developed a drug habit and the present offending was committed to feed that habit. He contends a discount of up to 30 per cent would be allowed for the factors identified in the report.

[25]   The Judge acknowledged the factors identified in the report and observed that these indicated a disadvantaged upbringing that may have been a factor leading to the offending. The Judge went on to observe:11

[2] But, however, he has also in his letter to the Court noted that he was brought up in a family where religion was regarded as important, and that was something which both parties considered important, and also I do not[e] that he is in a pro-social relationship which is described as good. Also, in relation to the issue of drugs, because all certainly, as has been stated by counsel, and they pointed out what portions of the report that his drug use has been told to the authors of those reports, his partner says that he has stopped using drugs and made many good changes in his life and is a good father.

…

[4]  What Mr Schellenberg has sought was that a further 30 per cent  discount should be granted. I am of the view that that is inappropriate in these circumstances. Mr Schellenberg has, however, submitted to the Court is that there should be some discount for his efforts that he has made, and Mr Schellenberg detailed them. Attending CADS, anger management and parenting, and that he has made changes that warrant a further discount and thus, Mr Schellenberg has submitted, that the matter could come down if applying the discounts sought by the defence to a sentence of home detention. But, I am of the clear and firm view that to do so would be to put aside and ignore the serious nature of this offending that he is before the Court for, and also to ignore the fact that he has two previous convictions for aggravated robbery. Those of course were factors that were taken into account when considering the sentence start point, which was given back on 20 November.

[26]   Mr Schellenberg contends the Judge erred in failing to give Mr Tauia any discount for the matters identified in the s 27 report. He refers me in this context to the following observations made by the Court of Appeal in Waikato-Tuhega:12

[51] However, as this Court has previously acknowledged, there does not need to be extensive evidence of a nexus between offending and socio- economic and cultural disadvantage for a discount to be granted. Furthermore,

11     R v Tauia, above n 1.

12     Waikato-Tuhega v R, above n 6.

there is ample case law, and research and reports, on the disconnection between whanau, whakapapa and culture caused by colonisation and indigenous dispossession of land and culture, and how it may play a role as a causative factor in offending. This is often augmented by other factors, such and alcohol and drug use at an early age, disconnection from the education system, abuse and gang affiliation. Therefore, following Zhang and its adoption of the of the reasoning in Heta and Rakuraku (as endorsed in Carr), when provided with evidence of s 27 factors such as socio-economic and cultural deprivation, the courts ought to assess this evidence holistically, considering the offending within the particular circumstances of the offender, including the effects of cultural dispossession within those circumstances. In short, the assessment of a nexus between the offender’s background and the offending should not be a mechanical exercise with a high threshold of proof but an overall assessment, assisted by evidence available, under s 27 and generally, of how personal circumstances might have contributed to culpability or offending.

(footnotes omitted)

[27]   The report prepared in the present case confirms that Mr Tauia grew up in a close-knit family environment. There are no indications he was subject to neglect or any form of abuse during his childhood. Violence, alcohol and drug abuse within the wider family unit were similarly not features of his early life as is so often the case. Nor have gangs been a factor. Rather, he appears to have grown up in a supportive community where numerous other members of his family were living. Mr Tauia does not appear to have exhibited behavioural issues until he began attending secondary school, where he was expelled for fighting and eventually sent to Australia to live with relatives.

[28]   Mr Tauia says he was using methamphetamine at the time of the offending and he describes this as a habit that he needed to fund. He says he was spending $700 a day on the drug at one stage. However, Mr Tauia told Mr Lui, the writer of the s 27 report, that he is interested in physical activity because it keeps him balanced and healthy. He also said that he feels positive when he is active and “less inclined to indulge in drugs and alcohol or commit crime”. I do not consider the material before the Judge amounted to persuasive evidence that Mr Tauia was addicted to methamphetamine to an extent that credit could be given in accordance with the principles referred to by the Court of Appeal in Zhang v R.13

13     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

[29]   Taking these factors into account I struggle to see any causative link between factors identified in the report and the present offending. Nor do I consider the report identifies a disadvantaged background to the extent that credit needs to be given for it. I am therefore satisfied the Judge was entitled not to give Mr Tauia credit for the factors identified in the report.

[30]   However, I consider the Judge ought to have given Mr Tauia credit for rehabilitative efforts he had undertaken after his arrest. I accept Mr Becker’s submission that these need to be viewed with some care because Mr Tauia would have known by then that he was facing a second strike offence. He would therefore have been anxious to ensure the end sentence was as low as possible.

[31]   However, I cannot say Mr Tauia undertook these measures other than in in a genuine desire to rehabilitate himself. The fact that he now has a pro-social partner and a young child provides him with obvious incentive to take steps to ensure he does not re-offend again in the future. I consider the Judge ought to have allowed a discount of six months to reflect this factor.

Result

[32]   It is necessary to deduct the three month uplift the Judge applied to reflect Mr Tauia’s previous convictions for aggravated robbery. This reduces the sentence to one of five years eight months imprisonment.

[33]   It is also necessary to increase the credit given for attending the restorative justice conference to four months and to provide a discount of six months to reflect Mr Tauia’s rehabilitative efforts. This means that, taking into account all mitigating factors, the sentence is reduced by two years five months. It follows that the appropriate end sentence is one of three years three months imprisonment.

[34]   The appeal against sentence is accordingly allowed. The sentences imposed on both charges are quashed and replaced with concurrent sentences of three years three months imprisonment. I make an order as required under s86C(4) of the Sentencing Act 2002 that Mr Tauia is to serve the sentences in full without parole.

Lang J