Telefoni v Police

[2020] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000063

[2020] NZHC 1417

BETWEEN

LOPETI TELEFONI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 June 2020
Appearances:	Emma Priest for the Appellant Lydia Wilson for the Crown
Judgment:	23 June 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 23 June 2020 at 1:00 pm Registrar / Deputy Registrar

Date:

TELEFONI v NEW ZEALAND POLICE [2020] NZHC 1417 [23 June 2020]

Introduction

[1]    On three occasions within a week Lopeti Telefoni entered suburban liquor stores and stole cigarettes and alcohol. He was identified as the offender through a combination of CCTV, photographic montages and fingerprints. He was charged with two counts of robbery1 and one of burglary.2 He also faced a charge of breaching release conditions by failing to report.3

[2]    He pleaded guilty to all charges and appeared before Judge B A Gibson  on 11 February 2020 in the Auckland District Court for sentencing. He was sentenced to four years and six months’ imprisonment.4

[3]    He appeals that sentence on the grounds that in all the circumstances it is manifestly excessive and that a sentence of less than two years’ imprisonment is available, thus permitting home detention. He is presently serving his sentence as a high security prisoner because he was recently charged as a party to the murder of a fellow inmate. Such a sentence would permit Mr Telefoni to access rehabilitation programmes such as Odyssey House’s residential programme into which he has recently been accepted.

The offending

[4]    In the early evening of 9 June 2019 Mr Telefoni entered the Sunny Liquor Store in Northcote. He walked behind the unmanned counter where he removed a large number of cigarette cartons before taking two bottles of brandy. He then confronted the proprietor. He told him that if he did anything he would assault him. He left the store with the stolen items estimated to be worth approximately $2,500.

[5]    At about 10:00 pm the next day, 10 June 2019, the second robbery occurred. Mr Telefoni entered a different Northcote liquor store. He climbed over the counter and removed a large number of cigarette packets. The proprietor ran over and confronted him. Mr Telefoni responded by punching the proprietor three times in the

1      Crimes Act 1961, s 234; maximum penalty 10 years’ imprisonment.

2      Section 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment and/or $2,000 fine.

4      Police v Telefoni [2020] NZDC 2139.

face, knocking him over and causing bruises to his face. Mr Telefoni then picked up a bottle of spirits and threatened the victim. He told him that if he tried to stop him he would hit him with the bottle. Mr Telefoni took another three bottles of spirits before fleeing.

[6]    The third incident, for which Mr Telefoni was charged with burglary, occurred six days later on 16 June 2019 in the early evening. Again, the target was the Sunny Liquor Store in Northcote. Mr Telefoni walked behind the counter, pushed past the proprietor and filled a bag with cigarettes. The proprietor, fearing for his safety, left the shop. Mr Telefoni ran away on foot.

[7]    The charge of breaching post-release conditions followed Mr Telefoni’s release from Mt Eden Prison in May 2019 on charges of assault with a blunt weapon, driving with excessive breath alcohol, two charges of breaching home detention and a charge of being unlawfully being in a building. His six months’ post-release conditions included the requirement he report to his probation officer weekly. He never attended.

Personal circumstances

[8]    Mr Telefoni is aged 20. He was 19 at the time of the offending. He is of Tongan heritage. His parents moved to New Zealand from Tonga in the hope of securing a better life for themselves and their children. Mr Telefoni was born in Hawke’s Bay in 1999 although his family later relocated to the North Shore where they still reside.

[9]    A comprehensive cultural report was prepared for the purpose of sentencing.5 It describes a domestic environment plagued by financial stress, domestic and parental disharmony and violence.

[10]   The family’s circumstances were such that Mr Telefoni would walk to school without breakfast. By the time he arrived at school he had eaten his lunch. This led him to steal lunches from other pupils, a practice which became habitual. It was also at primary school that he exhibited violence towards other children leading him to

5      Sentencing Act 2002, s 27.

spend time with friends outside school. He shoplifted and so it was then that he began his first encounters with the Police.

[11]   When he was 13 he was sent to a secondary boarding school in Tonga with his brother. This was an  attempt  by his  parents  to  correct  his  behaviour,  although Mr Telefoni interpreted it as punishment. He remained in Tonga for just over two years during which he and his brother were subjected to violence which, on one occasion, was sufficient to put his brother in hospital. He described daily beatings by prefects including a “super hiding” during which he was struck with a piece of construction timber for what appear to have been real or imagined misdemeanours. In the end he elected not to return to school but, instead, undertook work which provided him with a subsistence living.

[12]   He said he was 12 when he first got drunk and has continued to drink. He first smoked methamphetamine when he was 14 in Tonga. He believes it is likely he is addicted to alcohol.

[13]   On his return to New Zealand he took up with his former acquaintances and descended back into his earlier, anti-social behaviour.

[14]   The author of the cultural report summarised Mr Telefoni’s background and childhood as one of deprivation, isolation and struggle punctuated by growing dishonesty and violence. There is a clear connection between his childhood and his offending. The author recommends that Mr Telefoni undertakes courses in prison and should be encouraged to seek qualifications towards obtaining university entrance followed by tertiary education. He says that Mr Telefoni is driven to succeed in turning his life around to support his partner and their young son who are central to his motivation to change.

[15]   Aside from the present convictions, Mr Telefoni has accumulated 44 convictions between 2006 and 2019. He has 18 Youth Court notifications which include trespass, shoplifting, assault, aggravated assault and aggravated robbery. His first appearance in the District Court related to offending in January 2017. Since then he has amassed 27 convictions including shoplifting, escape, burglary, aggravated

assault, robbery, numerous breaches of home detention, excess breath alcohol and assault with a blunt instrument.

[16]   The pre-sentence report recorded that Mr Telefoni showed little insight into his offending and was assessed as presenting as a high risk of harm “… due to the nature of his offending and gradual escalation and the seriousness of his charges”. It recorded that Mr Telefoni’s offending factors were identified as alcohol and drug consumption, self-entitlement and offending attitudes. His risk of re-offending was assessed as high due to the number of breaches of community-based sentences as well as his regular pattern of offending. For the same reasons, his compliance was assessed as low.

[17]   A departmental alcohol screening tool was administered. While reliant on self- reporting, this assessed Mr Telefoni’s risk as low. The author of the report expressed uncertainty as to whether Mr Telefoni was being truthful.

[18]   Due to Mr Telefoni’s previous criminal history, including nine breaches of home detention between 2018 and 2019, Mr Telefoni was not considered a suitable candidate.

District Court decision

[19]    In order to provide context to Judge Gibson’s decision it is necessary to briefly cover some of the procedural background.

[20]   On 9 October 2019 Judge R G Ronayne gave Mr Telefoni a sentence indication.6 In doing so the Judge referred to the comments of the Court of Appeal in the aggravated robbery guideline judgment in R v Mako.7 He considered the circumstances of Mr Telefoni’s offending were most analogous to the aggravated robbery of small retail business operators where an armed offender demanded money. Where there is no actual violence and a small sum is taken, the starting point should be around four years.8 For the first robbery he set the starting point at three years and nine months discounted by 30 per cent to acknowledge the lesser crime of robbery

6      Police v Telefoni HC Auckland CRI-2019-044-002120, 9 October 2019.

7      R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA) at [42].

8 At [56].

simpliciter. This led to a sentence of two years and seven months. As for the second robbery, which involved actual violence and injury, he set a starting point of five years’ imprisonment.9 He discounted this by 30 per cent, leading to a sentence of three years and six months. For the burglary he considered 18 months was appropriate. The combined total led to a sentence of seven years and seven months’ imprisonment which, after a totality adjustment, led to a provisional sentence of five-and-a-half years’ imprisonment. To that the Judge added two months for the breach of release conditions and four months for Mr Telefoni’s previous convictions. This brought the starting point to six years.

[21]   As for discounts for personal circumstances, the Judge pointed out that there was no presumptive entitlement to a youth discount. He stated that “age alone may point to neurological immaturity, but you are 19 years old and nearly 20.” He also noted that the rationale for such a discount lay in an offender’s impulsivity and prospects for rehabilitation, butMr Telefoni’s offending was not characterised by impulsiveness and, given Mr Telefoni’s long history of offending, the prospect of rehabilitation was doubtful. He noted that much more information was needed for a youth discount. However, the Judge noted that a 20 per cent discount would be available leading to a provisional end sentence of four years and nine months’ imprisonment.

[22]   Mr Telefoni did not accept the sentence indication. However, it would appear that despite this, he entered pleas of guilty that day.

[23]   Four months later Mr Telefoni appeared before Judge Gibson for sentencing. By this time the Court had the PAC report and the cultural report. The Judge started his comments by summarising Mr Telefoni’s background from the narrative contained in the cultural report. He accepted that there were factors in Mr Telefoni’s background which put his offending into perspective and undertook to recognise those difficulties with a discount, adding that it was important to appreciate that the commission of some offences require the Court to impose sentences to deter the offender and others similarly minded from offending against those who are vulnerable by reason of

9      In accordance with [56] of Mako which suggested that where the shop keeper is confined or assaulted five years, or in bad cases, six years, should be the starting point.

operating shops. He noted that while youth and the prospects of rehabilitation are mitigating factors, those who have accumulated considerable lists of convictions whilst still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. There must be a deterrent response from the Courts.

[24]   The Judge, at counsel’s suggestion, adopted Judge Ronayne’s approach of setting the robbery starting points by reference to the aggravated robbery guideline principles in Mako discounted by 30 per cent to reflect the lesser crime of robbery.10 He regarded the second robbery as the lead offence, adopting a four-year starting point before the discount.

[25]However, the calculation for the second robbery and the burglary is less clear.

[26]   At the hearing, both counsel believed that the most probable interpretation is that set out by Ms Wilson, for the Police, in a table containing her submissions as follows:

Four years’ imprisonment for the lead robbery charge and two years’ imprisonment for the further robbery charge (applying the bands in Mako)	72 months
Less thirty per cent	-22 months
Plus two years for the burglary charge	+24 months
Starting point	74 months

[27]   Except for a rounding error, this interpretation produces the starting point of six years and three months identified at [13] of the Judge’s sentencing remarks. However, it is not consistent with either the Judge’s methodology discussion or with the calculation of the further uplifts and discounts the Judge applied.

[28]   It can be taken from the Judge’s comments that he intended to take an eight year starting point for all three charges and discount this by 30 per cent to arrive at the total starting point. That method produces a total starting point of 67 months or five years and seven months. It seems likely this was the starting point the Judge intended to apply.

10     Smeed v P HC Whangarei AP50/50, 24 October 2000.

[29]   He then uplifted the starting point by six months for Mr Telefoni’s previous convictions, added a further three month uplift for the breach of release conditions, then discounted that cumulative figure by eight months on account of Mr Telefoni’s background and six months for his youth. To that adjusted figure he then applied a discount on account of Mr Telefoni’s guilty pleas of eight months.

[30]This led to the final, end sentence of four years and six months’ imprisonment.

Approach to appeal

[31]   Section 250 of the Criminal Procedure Act 2011 applies. I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.11 The focus is on the sentence imposed, rather than the process by which it is reached.12 Although the sentence does not need to be “manifestly excessive”, this is a helpful concept when assessing the seriousness of the error.13

Appellant’s submission

[32]   Ms Priest, for Mr Telefoni, submitted that the starting point was too high, the uplifts for his previous convictions and offending while on release conditions were too high and insufficient credit was given for Mr Telefoni’s personal mitigating factors, including his youth, background as set out in the cultural report and his guilty pleas. She submitted that given the unusual circumstances, it was appropriate to take into account Mr Telefoni’s time on remand and apply global discounts as necessary to achieve a final sentence of home detention.

[33]   While not taking issue with the Judge’s identification of the lead  charges,  Ms Priest submitted that the Judge appeared to have erroneously treated the burglary charge at the same level of seriousness as the robbery charges, but applied no discount to reflect that. She submitted that the 30 per cent discount from the Mako band ought to have applied to the entire starting point resulting in an overall starting point of five

11     Criminal Procedure Act 2011, s 250.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13 At [35].

years and six months. She submitted that the offending was relatively spontaneous and unsophisticated. There was no use of disguises or weapons. The use of actual violence occurred only once and involved only the low degree of violence inherent in the nature of the charge. In terms of robberies of small retail premises, the offending sat at the low end of seriousness.

[34]   Ms Priest then submitted that the uplifts for his other offending were too great and that the appropriate figure would have been in the order of four to four-and-a-half years’ imprisonment.

[35]   She then submitted that the six month uplift for his previous convictions and the three month uplift for his offending while on release conditions were too high, representing a longer period than the longer sentence of imprisonment Mr Telefoni had previously received. To impose a three -month uplift for a relatively minor breach of release conditions following a seven -month term of imprisonment was completely disproportionate.

[36]   Against this, Ms Priest submitted that the Judge gave insufficient weight to Mr Telefoni’s youth, pointing to the comments of the Court of Appeal in Churchward v R.14

[37]   Citing the Court of Appeal’s decision in Zhang v R, Ms Priest also observed that substantial discounts for social, cultural and economic deprivation may be given in appropriate cases.15 Discounts can be in the order of 20 to 30 per cent.16 She submitted that against that background, a discount of eight months, equating to around 10 per cent, was wholly inadequate.

[38]   Finally, she pointed to the guilty plea. She noted that the discount was in the region of 15 per cent. She submitted that a discount of 20 per cent should be given following the reasoning of Judge Ronayne at the sentencing indication

14     Churchward v R [2011] NZCA 531 at [98].

15     Zhang v R [2019] NZCA 507 at [158]-[162].

16     Citing R v Rakuraku [2014] NZHC 3270; Keil v R [2018] NZCA 56; Solicitor-General v Heta

[2018] NZHC 2453.

Discussion

[39]    As did counsel at the hearing before me, I agree that the Judge was correct to take the robbery involving actual violence as the lead offence. The analogy with the aggravated robbery of a small retail shop was apt. Indeed, the Judge’s treatment of this charge might be considered generous given the infliction of actual violence causing injury. Violence is implicit in a charge of robbery simpliciter,17 but the offence is also proved where there is a threat of violence. Thus, where there is an actual application of force sufficient to cause injury it must be a seriously aggravating feature. I also do not agree that the offending can be characterised as spontaneous and unplanned. The offence occurred the day after Mr Telefoni had successfully robbed a different liquor store in the same area. While it was not sophisticated, the pattern of offending across the week gives rise to the inevitable inference that this was deliberate and targeted offending. I agree with Ms Wilson’s assessment that this was a moderately serious example of a small retail premises robbery. I am thus satisfied the four year starting point before the 30 per cent discount was well within range.

[40]   The next question is whether the two-year uplift for the first robbery (appropriately adjusted) was within range. Adjusted, this equates to one year and five months (or 17 months). On its own it cannot be criticised. However, the burglary uplift of two years is excessive. While I accept the underlying offending could well have justified a charge of robbery rather than burglary, the choice of charge no doubt reflects the limited threat of violence involved. Even though robbery and burglary share the same maximum penalty, the culpability in the last set of offending sits at a lower level. It should have been reflected in lesser, rather than greater, penalty. This means the combined total of six years and three months (or 74 months) for what might rightly be described as a “spree” is excessive.

[41]   In my view the appropriate, combined starting point for both robbery charges and the burglary charge is one of five years.

[42]   I turn next to the uplifts. The three-month uplift for breaching release conditions represents 25 per cent of the maximum penalty. It is a single charge relating

17     Crimes Act 1961, s 234.

to a specific failure. Ms Wilson described the sentence as “stern but within range”.18 I accept that Mr Telefoni’s history of failing to comply with legally-imposed orders is notable, but that is a factor which is better evaluated when considering the uplift for previous convictions. In the context of a re-sentencing I am satisfied that a two-month uplift is appropriate.

[43]   Next is the uplift for Mr Telefoni’s criminal history. The Judge dealt with this in some detail. He referred to the Youth Court notations for aggravated assault and two aggravated robberies. He noted Mr Telefoni’s convictions in the District Court for aggravated assault, robbery, burglaries and assault with a blunt instrument. Mr Telefoni’s numerous convictions for breaching Court orders are also significant. By my calculation Mr Telefoni has, since May 2018 accumulated six convictions for breaching home detention conditions.

[44]   Ms Priest’s criticism was the size of the uplift. I did not understand her to say that there should not have been an uplift. I agree with Ms Wilson that it would have been open to the Judge to impose a greater uplift than the six months he did. However, in the context of a re-sentencing, I am satisfied that a six-month uplift is appropriate in the circumstances.

[45]   Taking into account all these factors I am satisfied that a provisional sentence of five years and eight months is appropriate before the application of discounts.

[46]   I turn now to Mr Telefoni’s personal mitigating factors being youth, cultural deprivation and guilty pleas.

[47]   Ms Priest is correct that substantial discounts may be available on account of youth. The reasons for that have already been discussed. The question here is whether the eight-month discount, equivalent to a 12 per cent reduction was appropriate. This is not a case where a momentary lapse of judgement or youthful over-exuberance or indiscretion led to the offending. This was repeated and targeted offending committed within a relatively limited time frame. Also relevant to this consideration is

18     Citing Morris-Stewart v Police [2016] NZHC 1030 where an uplift of three months’ imprisonment was applied for breaching release conditions on a starting point of 12 months’ imprisonment.

Mr Telefoni’s potential for rehabilitation. I agree with the Judge’s comments that MrTelefoni’s alarming criminal history provides little room for optimism he has the potential to change. I also accept Ms Wilson’s submission that it is almost certain that Mr Telefoni has been the beneficiary of youth discounts in the past. However, there is no evidence before me to suggest that Mr Telefoni has received rehabilitative interventions designed to arrest or mitigate the momentum which is apparent from his history. In these circumstances I am satisfied that a more generous youth discount of the order of 15 per cent is appropriate.

[48]   That then leads me to consider Mr Telefoni’s presentation as described in the comprehensive and most helpful cultural report. I have already summarised the report’s contents. It provides powerful and persuasive evidence that issues of cultural deprivation and abuse during Mr Telefoni’s formative years have formed and influenced his behaviour. I am satisfied that a more generous allowance should be given and I set that at 15 per cent. This brings the provisional end sentence to four years..

[49]   Finally, I turn to consider Mr Telefoni’s pleas of guilty.19 While, plainly, they were not entered at the earliest practical opportunity, they have saved the State the cost of a trial and victims have been speared the ordeal of giving evidence of what must have been a most frightening experience. I am satisfied that the appropriate discount is 20 per cent. Taking all these factors together I arrive at a final sentence of three years and two months’ imprisonment.

[50]   Plainly, this sentence sits well beyond the range where home detention might be an available sentencing option. In any event, had that sentencing option been available I would not have ordered it for the same reasons the Judge gave. Section 17 of the Sentencing Act 2002 preserves the discretion of a Court to impose a sentence of imprisonment if it is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence which would otherwise had been appropriate.

19 Ms Priest invited the Court to follow this Court’s decision in R v Reweti [2018] NZHC 809 in the event its application might be the difference between home detention and being an available sentence or not. Plainly, given the result, applying the methodology in Reweti would not have made home detention available to Mr Telefoni.

Mr Telefoni’s criminal history is such that if home detention was ordered the Court would be setting Mr Telefoni up to fail.

Result

[51]The appeal is allowed.

[52]The sentence of four years and six months’ imprisonment is quashed.

[53]A sentence of three years and two months’ imprisonment is substituted.

Moore J

Solicitors:

Ms Priest, Auckland Crown Solicitor, Auckland