Tauri v The King

[2023] NZHC 870

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-403

[2023] NZHC 870

BETWEEN

CHRISTOPHER TAURI

Appellant

AND

THE KING

NEW ZEALAND POLICE

Respondents

Hearing:	13 February 2023
Counsel:	K Snelgar for Appellant T Riley for Respondents (Via VMR)
Judgment:	1 May 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 1 May 2023 at 9.00 am.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Kayes Fletcher Walker, Manukau

TAURI v R [2023] NZHC 870 [1 May 2023]

[1]This is yet another tragic sentencing case.

[2]        The appellant, Christopher Tauri, aged 55, pleaded guilty to one charge of aggravated robbery, three charges of driving while disqualified (third or subsequent) and one charge of driving with excess blood alcohol (third or subsequent). He was sentenced by Judge Yelavich in the Manukau District Court on 6 July 2022 to an effective term of 3 years, 5 months’ imprisonment. The Judge also made an order disqualifying Mr Tauri from driving for one year and one day.

[3]Mr Tauri appeals.

Summary of submissions

[4]        Mr Tauri says that the end sentence is manifestly excessive in that a discount of 30 per cent, rather than 20 per cent, should have been allowed for his social and cultural deprivation, particularly his abuse in State care. The discount would also reflect his remorse, willingness to address the underlying cause of his offending and desire to engage in restorative justice.

[5]        The respondents submit that the appeal should be dismissed. They say the sentence was not manifestly excessive. The discount of 20 per cent was within range and, to the extent it was open to the Judge to allow a greater discount, this was balanced by the starting point and uplifts which arguably were generous to Mr Tauri.

Offending

[6]        I first summarise the earlier driving offences and then turn to the aggravated robbery offending:

(a)On 31 October 2019, Mr Tauri was driving in Manurewa as a disqualified driver. In explanation he said he drove to get a food parcel from the Salvation Army.

(b)On 8 May 2020, Mr Tauri was driving in Ngātea as a disqualified driver. In explanation he said he was heading to

Auckland to “sort a few things out” and that he thought he would not be stopped.

(c)On 16 June 2020, Mr Tauri was driving in Manurewa as a disqualified driver when he was stopped by Police who observed him swerving in his lane. He admitted he had been consuming alcohol and evidential blood test procedures established his blood contained 108 milligrams of alcohol per 100 millilitres of blood. This was double the legal limit.

[7]        The aggravated robbery offending occurred on 20 July 2021. Mr Tauri entered the Thirsty Liquor store on St George Street, Papatoetoe and asked the victim to sell him alcohol. The victim refused due to Mr Tauri’s apparent level of intoxication and asked him to leave.

[8]        Mr Tauri approached the victim behind the counter and punched him in the head. He then grabbed the victim by his arm and neck. Within seconds, Mr Tauri’s co-offender, Mr Poutu, entered the store and punched the victim’s head about twenty times. Mr Tauri released the victim and punched him in the head a further four times.

[9]        Mr Poutu grabbed a glass bottle of alcohol and hit the victim on the head, causing the bottle to smash. Mr Tauri himself grabbed a bottle of alcohol and hit the victim on the head. He swung the bottle at the victim a second time but missed.

[10]      Mr Poutu picked up a second bottle of alcohol and swung it at the victim, initially missing, before striking the victim’s shoulder.

[11]      The victim managed to escape and ran away from the store. Mr Poutu chased him out of the store with the glass bottle before returning.

[12]      Mr Tauri and Mr Poutu then took several bottles of alcohol and a box of Steinlager before leaving.

The sentence imposed in the District Court

[13]      Judge Yelavich fixed a starting point of 5 years’ imprisonment on the lead offence of aggravated robbery, relying on the guideline decision of R v Mako.1

[14]      An uplift of one year was imposed for the three charges of driving while disqualified and single charge of driving with excess blood alcohol. The Judge noted these were Mr Tauri’s 14th, 15th and 16th convictions for driving whilst disqualified or suspended and 13th conviction for excess breath alcohol. On a stand-alone basis, given Mr Tauri’s poor history, the Judge considered that the driving while disqualified charges and driving with excess breath alcohol charge would each attract a starting point of around 18 months’ imprisonment. But taking into account totality, she uplifted the starting point of the aggravated robbery charge in total by one year’s imprisonment.

[15]This uplift resulted in an overall starting point of 6 years’ imprisonment.

[16]      Next Judge Yelavich considered Mr Tauri’s lengthy criminal history. She put to one side the previous driving convictions as they had been factored into the uplift for the driving-related charges, and also put to one side a 1994 conviction for aggravated robbery. Relying on “recent violence convictions”, the Judge uplifted the sentence by a further 3 months’ imprisonment.

[17]      Turning to mitigating features, a discount of 25 per cent was given for the early guilty pleas.

[18]      The Judge then summarised the various reports about Mr Tauri that were before her which included his criminal and bail histories, two pre-sentence reports dated 17 January and 22 March 2022, a psychiatrist report by Dr Skipworth, and a s 27 cultural report prepared by Anthony Jacobsen.

[19]From these reports the Judge observed:

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

(a)Mr Tauri was homeless at the time of the aggravated robbery;

(b)he had a traumatic childhood, running away from home, leaving school and being in State care during his teenage years;

(c)Mr Tauri’s experience in State care was worse than the abuse he suffered at home;

(d)he was involved in drug and alcohol abuse, and suffered mental health issues in the 1990s in particular;

(e)Mr Tauri’s most recent diagnosis was for antisocial personality and polysubstance abuse;

(f)it was heartening to see from the psychiatric report that Mr Tauri remained insightful and hopeful for a future life outside prison;

(g)at the time of the psychiatric assessment, Mr Tauri was not suffering from a serious mental illness, and did not meet the criteria for compulsory treatment; and

(h)the cultural report provided an additional focus on Mr Tauri’s disconnection with Te Ao Māori – though noting this occurred early in his upbringing.

[20]      With regard to the factors identified in Mr Tauri’s background, Judge Yelavich acknowledged that one of the underlying drivers of the aggravated robbery offence was the problematic use of alcohol which was part of Mr Tauri’s upbringing, and continued throughout his life. Accordingly, the Judge accepted that there was a causal nexus between Mr Tauri’s offending and his background.

[21]      Mr Tauri also provided a letter which the Judge said was insightful and expressed a degree of remorse towards the victim.

[22]      A discount of 20 per cent was then given for the matters raised in the cultural report, the psychiatric report and Mr Tauri’s remorse letter.

[23]      Applying the combined discount of 45 per cent and the 3-month uplift for previous convictions, the Judge arrived at an effective end sentence of 3 years, 5 months’ imprisonment. The Judge also disqualified Mr Tauri from driving for one year and one day.

Victim Impact Report

[24]      I consider it important in cases focusing on the personal circumstances of an offender, to clearly record those of the victim which must always be at the forefront of sentencing in a case like this. The victim received wounds to the back of his head, the back left ear, and the back of his neck. He had glass fragments in his head. He suffered nightmares and sleepless nights. His studies were affected. While he seems to have largely recovered and learned to live with the consequences of the attack, there are still times he feels scared.

Extension of time for filing appeal

[25]      The present appeal was filed on 28 October 2022, some 60 days out of time. This was because, following sentencing by Judge Yelavich, Mr Tauri’s file was reassigned to present counsel through Legal Aid Services and Mr Tauri only sought to appeal when he became aware of the sentence passed on his co-offender, Mr Poutu, on 7 September 2022.

[26]      The respondents do not oppose the application for an extension of time to file the appeal and I consider an extension is appropriately granted.

Fresh evidence

[27]      In written submissions the respondents object to Mr Tauri’s reliance on a report by the Royal Commission of Inquiry into Historical Abuse in Care, dated 1 December

2021.2 This report addresses the struggles of survivors of abuse to restore their lives, regain their mana and hold the State to account. The respondents say the report was not before Judge Yelavich at sentencing. They contend that for further evidence to be admitted on appeal, although the overriding criterion is the interests of justice, as a general principle the evidence must be fresh, cogent and credible.3

[28]      The respondents say that the report is not fresh as it could have been provided at the sentencing, and it is not cogent because it addresses matters of general importance and does not relate specifically to Mr Tauri.

[29]      I do not view the report as evidence, so much as general background information. In any event, I consider it of broad relevance and, in the interests of justice, I have read it to the limited extent it was expressly relied upon by Mr Snelgar, counsel for Mr Tauri.

Approach on appeal

[30]The Court must allow an appeal against sentence if satisfied that:

(a)for any reason there is an error in the sentence imposed; and

(b)a different sentence should be imposed.

[31]      In Tutakangahau v R4 the Court of Appeal confirmed the focus of sentence appeals is on the sentence imposed, rather than the process by which it was reached. The appellate court will not intervene where the sentence is within the range that can be justified by accepted sentencing principles but if the Court determines the sentence is manifestly excessive, it will allow the appeal and form its own view on the appropriate sentence.

2      Royal Commission of Inquiry He Purapura Ora, he Māra Tipu. From Redress to Puretumu Torowhānui (1 December 2021).

3      Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273 at [120].

4      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

Discussion

[32]      The Courts’ approach to sentencing is directed by application, primarily, of  ss 7, 8 and 9 of the Sentencing Act 2002 (the Act). These dictate the purposes and principles of sentencing, and make specific reference to factors that should be taken into account, including the seriousness of an offence, consistency with other sentences, and the need to impose the least restrictive outcome appropriate in the circumstances.5 These factors are not expressed as a hierarchy and leave room for the exercise of judicial discretion that is essential to reaching a fair outcome in individual cases.6

[33]In Hessell v R the Supreme Court considered that:7

[42] … in articulating the purposes and principles of sentencing, and circumstances which will aggravate or mitigate offending, Parliament has both clarified the factors to be addressed and given legislative force to the duty to take them into account. It has done so both for the benefit of judges and to foster greater awareness of the public concerning the complexity of what has to be considered in the sentencing task. That complexity, as the legislation makes apparent, arises both from the large number of principles and purposes of sentencing and the infinite variety of circumstances of criminal offending that will be relevant to the appropriate sentence. …

Mr Tauri’s background – ss 8(h) and 8(i) of the Act

[34]      It is well settled that discounts for personal mitigating circumstances are available where there is a causal connection between an offender’s background and the offending, though it does not need to be shown there is a proximate cause.8 Section 8(i) of the Act provides a broad mandate to consider “the offender’s personal, family, whanau, community, and cultural background in imposing a sentence”, while s 8(h) refers the court to “any particular circumstances of the offender” that may impact the appropriateness of a particular outcome.

5      Sentencing Act 2002, s 8.

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26].

7 At [42].

8      See Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].

[35]      In the recent decision of the Supreme Court in Berkland v R, the Court clarified the difference between proximate cause and causative contributions of an offender’s background as follows:9

[108]    Where it can be established that background was an operative or proximate cause of the offending it is likely to be a potent sentencing factor. Proximate afflictions such as addiction or mental illness may be examples. There may be other background factors that invite similar inferences in particular cases. As we have said, restrictive rules or heuristics that tend to exclude factors at the outset without assessing their potential relevance have no place in the making of factual assessments. They create analytical blind spots.

[109]    But requiring operative or proximate cause in every case sets the bar too high. We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.

[110]    Although causative contribution is a lower standard than operative or proximate cause, it must still be satisfied. There will be a point at which background factors can no longer assist in explaining the offending. For example, the link between historical deprivation and the offending can be severed. To illustrate this, not all Māori still live in circumstances of relative economic, social or cultural deprivation today. For some, the cycle of deprivation has been broken or, at least, much weakened. This too is important to understand, because any mitigatory effects of historical deprivation must be based on explanatory facts, not ethnic assumptions. As we will come to, the evidence of Mr Harding’s background raises these issues.

[111]    The causative contribution of background may also be displaced, in whole or in part, where the offending is particularly serious. Complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency. The contribution of background to offending with this level of agency may therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may

9      Berkland v R, above n 8 at [108]-[111].

become more important. Such assessment will depend very much on the facts, however.

(Footnotes not included.)

[36]      In applying the s 8 principles, there is an acknowledgement that an offender has been subject to circumstances out of their control10 – poverty, alcohol and drug abuse including by whānau members, unemployment, few educational opportunities and violence being just some examples which often apply, and that apply here. It will not be enough to show that these factors are present. The relevant circumstances must be shown, in a credible manner, to have affected the offender such that their moral culpability with respect to the offending is mitigated. The Court is assisted, as in this case, by the provision of materials including s 27 reports, PAC reports and psychiatric reports. Ultimately, the Court must assess these factors globally with respect to the individual being sentenced.

[37]      The District Court Judge found there was a causal connection in this case, particularly between Mr Tauri’s alcohol addiction and the offending. That is clearly correct. Mr Tauri’s state of homelessness was equally causative. In cases such as this there will almost invariably be a causative link. In terms of the Berkland analysis, I consider Mr Tauri’s addiction and homelessness are proximate causes and his background generally to be contributory.

[38]      The Crown readily accepts the causal connection but says the 20 per cent deduction made was sufficient.

[39]      In this case the s 27 cultural report and the psychological report strongly support the conclusion that Mr Tauri has a history of deprivation. I agree with the factors set out by the Judge, but expand upon them as follows:

(a)Mr Tauri suffered sexual, physical and psychological abuse as a child.

(b)Mr Tauri has never known who his father is. His mother refused to tell him. He says that this “affects my whakapapa, my identity, but Mum

10     Carr v R [2020] NZCA 357 at [57] – [60].

won’t tell me who he is … I know it must have been something bad, that’s the only thing that makes sense”. There was also no positive relationship between Mr Tauri, his mother, his stepfather and his siblings. This lack of a relationship continues.

(c)Mr Tauri was subject to daily beatings by his stepfather. He says that he was treated like a servant.

(d)His education effectively ended at 12 years old.

(e)Violence, alcohol and drugs were normalised from a young age within the family. Later, Mr Tauri began abusing substances in State care, and primarily used alcohol over the next several decades as a coping tool. He says that he often has flashbacks to his time in care.

(f)Mr Tauri reports that the social welfare placements of Owairaka and Kohitere were worse than both his home environment and his later time in jail. In 2011 Mr Tauri received a letter of apology from the State and compensation of $15,000 (50 per cent of which was applied to legal fees). He has never received trauma-related treatment.

(g)At around 12 years old, Mr Tauri ran away from Owairaka due to his abuse. He says he sought help from a member of the public who, upon collecting Mr Tauri from the street in his car, sexually abused him.

(h)He has chronic health conditions, for which he is medicated, including back, spine and neck injuries, and arthritis in his joints. He attributes his health issues to the beatings he suffered at home and in care. These limit his ability to work. The s 27 report also states that he has suffered from traumatic brain injuries from an early age.

(i)Although assessed as not suffering from  a  serious  mental  illness, Mr Tauri clearly struggles with his mental health. He has an anxiety disorder, which he says began as a child, and for which he is prescribed

diazepam. He was earlier diagnosed with schizophrenia (in 1992) and has at times been medicated with antipsychotics. He has on several occasions been institutionalised after experiencing delusions. More recently, his records show a diagnosis of polysubstance abuse disorder.

(j)Mr Tauri’s first prison sentence was at the age of 15 for a burglary conviction.11

(k)He remains disconnected from Te Ao Māori, but for some involvement in cultural practices within the prison setting.

[40]      The end result is that Mr Tauri is one of a cohort of the most vulnerable and marginalised in our community.

[41]      He says of himself that he was a “hateful little boy”, a sad description to apply to oneself and one unlikely to be of his own creation. He also says of himself that he has an anti-social personality, and it is clear that he is anti-authority. This means he is not helped by group programmes and not suited to parole. He told the PAC report writer that he wanted to serve the full term of any prison sentence rather than be subject to release conditions because he could not comply with them.

[42]      In short, Mr Tauri has been doomed to life in prison and to a life of crime since well before he first entered prison at age 15.

Rehabilitation prospects

[43]      The present offending is serious but, surprisingly, given Mr Tauri’s personal history, it stands out in his criminal record. As is apparent from the present charges, the bulk of his convictions relate to repeated drink driving and driving while disqualified offending. His only recent violence offences are for family violence offending in July 2016, in respect of which Mr Tauri was sentenced to one year and one month’s imprisonment; common assault in 2006 for which he was sentenced to

11 A prison sentence would not now be possible for that offence at that age, under s 18 of the Act. A person under 18 may only be sentenced to prison if convicted of an offence punishable by at least 14 years’ imprisonment. More therapeutic options would now be engaged.

one month’s imprisonment; and male assaults female in 2005 where he was sentenced to 5 months’ imprisonment. There are other pre-2000 violence convictions, but they are minor and/or very historic. Mr Tauri’s record, despite being extensive, does not show a strong propensity towards violence.

[44]      It is also notable that apart from the present driving offences, Mr Tauri had not offended between the family violence offending in July 2016 and the 2021 aggravated robbery conviction. During this period, he was spending time with his partner and he had his own accommodation. The person providing the accommodation then died. He began living in his car, which was then impounded. At the time of the offending, he was sleeping rough.

[45]      It seems that when he has accommodation, Mr Tauri manages in the community. Also, he manages much better in one-on-one settings. Mr Sneglar commented that Mr Tauri was “good with him”. My reading of the reports is that he has cooperated with and related well enough to the writers, perhaps better than he himself would allow. Mr Tauri has some insight as can be seen from his comments above.

[46]      Despite Mr Tauri’s challenges, Dr Skipworth reports that Mr Tauri hopes for a future outside prison in the years remaining in his life. Mr Tauri says his relationship with his partner and mokopuna is a motivation for change. No doubt his age is also a factor. In the cultural report he discusses a plan for the future that focuses on getting the help he needs and being the best koro and partner he can be. It is encouraging also that his partner’s comments are insightful and supportive. She is happy for Mr Tauri to live in her house, with her mokopuna and daughter, but only short-term.

[47]      Given the circumstances set out above, especially the lack of convictions for five years while he had support and stable accommodation, I consider that, if provided with appropriate ongoing support, Mr Tauri has realistic prospects of rehabilitation. He could manage in the community, at least without serious offending. (I note the material is sometimes contradictory as to Mr Tauri’s suitability for counselling. On his own account, he says that group programmes are unhelpful, but he is also hesitant about individual counselling, particularly to address his alcoholism. This is hardly

surprising. But, on the other hand, he does express a strong desire to access trauma counselling related to his time in State care and says he has tried on many occasions to access counselling for his mental health through ACC but was unsuccessful. He clearly recognises he would benefit from treatment.)

Remorse

[48]      Mr Tauri wanted to engage in restorative justice (which was understandably declined) and he wrote a letter of apology. I have read this carefully and it satisfies me that he does very much understand the damage he has caused and regrets it deeply. He says:

“I did not mean to rob liquor shop or hurt the victim who will be scared for the rest of his life for my 3 minutes of drunken stupidity… I am so sorry he was injured and had to go through what he had experienced not only him but my wife and mokopuna (grandchildren) are suffering to.”

[49]      Dr Skipworth also commented that Mr Tauri appeared to express genuine remorse for his actions.

[50]      I consider the Judge understated the point when she said “there is a degree of remorse”. Especially bearing in mind the recognised inability of people who have been brought up with violence to feel any remorse for others, Mr Tauri’s letter, statements to professionals, and wish to engage in restorative justice, can be treated as conveying real remorse.

Assessment of overall discount and comparison with other case law

[51]      There is no cap on the discounts that can be allowed in the second stage of the sentencing process and the Court has a greater discretion at this stage.12 However, the result reached needs to be broadly consistent with other cases, bearing in mind factual differences.

[52]I agree with Mr Snelgar that Mr Tauri’s case has all of the features of

R v MacDonald13 where Grice J found that Mr MacDonald’s experience of violence,

12     Zhang v R, above n 8.

13     R v MacDonald [2021] NZHC 224.

sexual abuse and instability as a child were formative of his anti-social and anti- authority behaviours, and therefore had clear links to his offending. Mr MacDonald had also been abused in State care and fell into addiction at a young age, having been exposed to drugs by his family. He was institutionalised as a teenager and imprisoned for the first time at age 20. Having regard to those circumstances, Grice J applied a global 25 per cent discount to Mr MacDonald’s sentence for all personal factors, including remorse.

[53]      Mr Tauri’s circumstances are even worse than those of Mr MacDonald particularly given the prison sentence meted out to him at the age of 15 and his homelessness at the time of this offending.

[54]      The Crown points to the oft cited case of Solicitor-General v Heta14 where a 30 per cent deduction was upheld for personal circumstances described in a s 27 report. Ms Heta had received in addition a 10 per cent discount for participation in a restorative justice process15 and 25 per cent  for her guilty  plea.  The Crown says  Mr Tauri’s case does not measure up to Heta, particularly because Ms Heta had made significant strides towards rehabilitation while in custody, and had strong whānau support – features which do not apply here.

[55]      But although different, I do not see Mr Tauri’s case as any less compelling than Ms Heta’s.

[56]      First, I am not convinced that the absence of whānau support should be material. Where there is no whānau support, the State should be providing support especially in a case such as this. It is not logical that the very circumstances that have led to severe deprivation for an individual then count against them in assessing mitigation. Significantly here, as Mr Snelgar submits, the State is or was Mr Tauri’s whānau and it let him down. It needs to now step up, not assert that Mr Tauri does not have whānau and therefore does not fit into the category of Heta. To the extent that

14 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

15 A discount for restorative justice is a matter of fortune. As here, a complainant who is a stranger will seldom agree to it, despite the defendant seeking it. Even in Heta, had the tables been turned and Ms Heta been repeatedly stabbed with a knife by her partner while in bed, spending two weeks in hospital, a Court would likely view a reconciliation with real concern, rather than discounting the sentence.

Mr Tauri has not made significant strides towards rehabilitation in the way Ms Heta did, it is because he has not had the tools to enable that.

[57]      Further, there are matters here  that  have  played  a  very  material  part  in Mr Tauri’s condition and recent offending, that do not exist in Heta. I refer again to his very early entry into the prison system, his homelessness at the time of this offending and his long-term poor health. Mr Tauri is apparently medicated with tramadol (a prescription opiate) and morphine. He also takes diazepam for anxiety. He said that at the time of offending he had mixed his medication with alcohol, which he believes led to his memory loss and exacerbated his intoxication. Mr Tauri says also that he was drinking to keep warm. He did not even know his co-offender.

[58]      Mr Tauri’s offending was also materially less serious than that of Ms Heta, a factor which can increase the scale of any discount for personal mitigating circumstances under s 8(b) of the Act.16 It must also be remembered that Ms Heta received an overall discount of 40 per cent, inclusive of restorative justice. Mr Tauri seeks a 30 per cent discount not only for personal circumstances but also for his attempt at restorative justice and genuine remorse.

[59]      To conclude on the appeal point, Mr Tauri is one of many in our society who have not had a first chance in life, let alone a second. His offending is very much the result of the deprivation he has experienced. With assistance, he has realistic prospects of avoiding serious offending in the future. He sought restorative justice and is clearly remorseful. Overall, I consider a 30 per cent is appropriate to reflect Mr Tauri’s background, rehabilitation prospects and remorse.

Was the sentence manifestly excessive?

[60]      The respondents contend that in any event  the  start  point  could  have been 5 years, 6 months’ imprisonment and the uplift higher, thereby counterbalancing any greater discount. I consider the start point to be within range, particularly bearing in mind Mr Poutu’s sentencing. Mr Poutu was sentenced to a 5-year start point. Judge Yelavich considered the two offenders bore a similar level of culpability but in my

16     See Heta above n 13 at [57]; Berkland above n 8 at [111].

view, Mr Poutu’s offending was arguably worse. Mr Tauri’s start point on that basis could have been less than 5 years.

[61]      It is true that if the driving offending was sentenced on its own it could merit a higher start point than 12 months, but similar past offending by Mr Tauri seems to have been dealt with more leniently. Allowing for totality, an uplift of 12 months is not too low. There could also have been no uplift for past violence convictions, given the relatively limited post-2000 history referred to above. Weighing up these factors, I do not agree that the sentence is in other respects overly generous to Mr Tauri.

Result

[62]      The discount for personal mitigating circumstances is increased from 20 per cent to 30 per cent, rendering the sentence imposed of 3 years 5 months’ imprisonment manifestly unjust.

[63]      The sentence for aggravated robbery is quashed and a new sentence imposed of 2 years 11 months’ imprisonment. The other sentences remain as already fixed, all sentences still to be concurrent.

Recommendations

[64]      Finally, I do not have the power to stipulate the terms of Mr Tauri’s custody or eventual release but, consistent with the above, I strongly support the recommendations made by Dr Skipworth in his report at [55] to [64]17 which are set out below:

[55]Mr Tauri’s prosocial community living will most likely be supported if he has stable accommodation, access to trauma related counselling, abstains from alcohol use, and has parole (or release) conditions which accommodate his personality and interpersonal difficulties.

[56]It is not clear to me whether Mr Tauri is eligible for ACC related trauma counselling, although in my opinion there is a strong basis to support such a referral, in the hope that if Mr Tauri is able to benefit from this type of intervention, it may assist his future prosocial engagement in community living.

17 This last paragraph is mis-numbered in the report. It should be [58].

[57]Although abstinence from drugs and alcohol will also assist with this, Mr Tauri’s refusal to engage in any group based or individual intervention will likely remain problematic, although in my opinion he is more likely to be receptive to treatment on an individual basis after successfully completing trauma related counselling. Such an intervention could occur either in prison or in the community.

RECOMMENDATIONS

I respectfully recommend as follows:

64 Irrespective of the sentence imposed, when Mr Tauri is released from custody, his future community living is most likely to be stable, prosocial and sustained if:

●he is supported to undertake trauma related counselling,

●he is supported to abstain from drug and alcohol use,

●he has stable and supportive accommodation,

●he has a coordinated and flexible approach to his parole or release conditions, other professional and family support.

[65]      It is important that the State do all it reasonably can to help Mr Tauri steer clear of any further violent offending. From my careful reading of the excellent reports and submissions provided on this appeal, I repeat that this seems a realistic goal.

Hinton J