Tia-Talivaa v The Queen

[2010] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA487/2010
[2010] NZCA 516

BETWEENERIC TIA-TALIVAA
Appellant

ANDTHE QUEEN
Respondent

Hearing:9 November 2010

Court:Stevens, Gendall and Cooper JJ

Counsel:M E Mann for Appellant
M J Inwood for Respondent

Judgment:17 November 2010 at 10.00 am 

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The sentence of six years imprisonment is quashed.

CThe conditions referred to at [27] of the District Court decision are quashed.

DThe following sentences are substituted:

(i)On the charge of aggravated robbery, three years six months imprisonment;

(ii)On the charge of injuring with intent to cause grievous bodily harm, 18 months imprisonment, cumulative on the sentence of three years six months;

(ii)On the charge of burglary and aggravated assault, a sentence of 18 months on each, concurrent with each other and concurrent with the sentences on the other two charges.

This means that the appellant’s total sentence is five years imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1]       Mr Tia-Talivaa appeals against a sentence of six years imprisonment for three episodes of offending spanning almost three years.  The sole ground is that in the District Court[1] Judge Epati did not apply the totality principle stated in s 85 of the Sentencing Act 2002 with the result that the sentence is manifestly excessive.

The offending

First episode

[1]      R v Tia-Talivaa DC Manukau CRI-2010-092-249, 6 July 2010.

[2]       The first episode resulted in a charge of aggravated robbery.  On 3 January 2007, the appellant cycled to a superette near his house.  He put on a balaclava and entered the store, brandishing an air rifle.  He took $194 of tobacco and left on his bicycle, abandoning it to run when he realised he was being chased by a member of the public. 

Second episode

[3]       The next episode involved violence against one of the appellant’s neighbours.  At about 10 pm on 10 October 2009, the appellant was drinking with friends outside his house.  The neighbour arrived home and stopped to have a drink with the appellant.  An argument ensued and the appellant punched the neighbour in the face, after which the neighbour left.  Six days later, the neighbour noticed the appellant standing at the end of his driveway.  The neighbour approached the appellant, who punched the neighbour in the head twice, hitting his cheek and eye.  An altercation developed during which the two fell to the ground and rolled down the driveway.  The appellant ended up on top of the neighbour and punched him again in the head and face about 10 times before running away.  The neighbour was left with cheek and skull fractures and brain bleeding, as well as bruising and abrasions to his head and other parts of his body. 

Third episode

[4]       On 8 November 2010, the appellant was drinking at a friend’s house in Otahuhu.  He left and went onto a nearby property, entered the garage through the unlocked door, and began to take packets of ice cream, ice blocks and sausages out of the freezer.  He was disturbed by the occupier of the house, who attempted to prevent him from leaving.  The appellant punched the occupier in the eye and then punched and kicked two others who came to help the occupier.  They managed to subdue the appellant until the police arrived to arrest him. 

Procedural history

[5]       The appellant was first arrested after the third episode and charged summarily with burglary and aggravated assault.  At that stage he was being considered for diversion, but was soon interviewed and charged with injuring with intent to cause grievous bodily harm in relation to the second episode.  He provided a DNA sample and fingerprints in relation to the second episode, which led to the discovery that he had perpetrated the aggravated robbery referred to as the first episode.  He was charged with that also.  In January 2010, he pleaded guilty to all charges except the aggravated robbery, to which he pleaded guilty at callover in April 2010.  He came before Judge Epati for sentence.

The Judge’s approach

[6]       Judge Epati assessed the three episodes as being appropriately punished by cumulative sentences.  He took the aggravated robbery as the lead offence.  The aggravating factor in relation to that was that the balaclava and the concealed weapon showed premeditation.  With regard to the injuring charge, the aggravating factors were the attack to the victim’s head, the serious nature of the victim’s injuries and the repeated punching once the appellant was on top of the victim.  With regard to the burglary, the Judge noted some degree of premeditation as an aggravating factor. 

[7]       With the agreement of both counsel, the Judge set a starting point of four years for the aggravated robbery in accordance with the guideline judgment R v Mako.[2]  He took a starting point of two years in relation to the remaining charges of injuring with intent, burglary and aggravated assault.  The burglary and aggravated assault sentences were to be concurrent.  There were no aggravating or mitigating circumstances personal to the appellant.  The Judge reached a total of eight years imprisonment which he discounted by 25 per cent for the early guilty pleas.  The end result was a sentence of six years imprisonment.

[2]      R v Mako [1999] 2 NZLR 170 (CA).

[8]       Because it is relevant to the orders we are required to make, we set out below verbatim the reasoning of the Judge in reaching the final sentence.  He stated as follows:

[22]     The defence agrees aggravated robbery should be four years, but argues that injuring with intent to cause grievous bodily harm should be around two years and burglary and aggravated assault together should be one year imprisonment or 12 months.

[23]     Again, there is not much difference insofar as those are concerned.  I feel having taken into account not only the written submissions and points made therein, but most helpfully the oral discussion that I have had with counsel and it is my opinion, taking into account all the aggravating and mitigating circumstances as I have indicated, that the end starting points should be, for aggravated robbery four years, injuring with intent to do grievous bodily harm should be two years and both burglary and aggravated assault should be two years together.

[9]       The Judge then dealt with mitigating and aggravating factors, noting that “there were none”.  The Judge continued:

[25]     Starting points of four years for aggravated robbery, injuring with intent to do grievous bodily harm two years, burglary and aggravated assault together two years.  I am satisfied, I am also in agreement with counsel, that the discount for an early guilty plea should be 25 per cent.

[26]     So that in my sentence you are sentenced in totality of the starting points is eight years, less 25 percent, an end sentence of six years imprisonment.

[27]     In the circumstances I will attend to the report and as identified throughout all of this offending is your alcohol aspect to it.  I am imposing a release condition as follows:

(i)That you are to undertake and complete an alcohol and drug assessment and if deemed suitable, to complete counselling and/or programme and abide by the rules to the satisfaction of the clinician and probation officer.

(ii)Secondly, you are to undertake any other such counselling as directed by the probation officer.

[10]     The Judge must have later realised that he had no jurisdiction to impose such conditions.[3]  He therefore added:

NBPara 27 above is not valid.  I have issued a direction to disregard it and notified counsel.

[3]      Sentencing Act 2002, s 93(5).

[11]     Apart from the jurisdictional point, there are several difficulties with the approach taken by the Judge.  First, he did not actually pronounce sentence.[4]  Second, he did not say what sentences he was imposing for each of the four charges.  Next, he did not say whether the respective sentences were cumulative or concurrent.

Submissions of the parties

[4]Section 85(1) of the Sentencing Act implicitly requires that an offender be sentenced for each offence.

[12]     Counsel for both parties are in agreement that the Judge’s sentencing methodology was flawed on account of his failure to consider the totality of the offending as required by s 85 of the Sentencing Act.  We agree that the Judge erred in this respect.

[13]     Mr Mann for the appellant accepts that cumulative sentences were available to the Judge and that the starting points on the aggravated robbery and injuring charges were appropriate.  However, he takes issue with the starting point of two years for the burglary and aggravated assault, contending that 12 months would have been appropriate.  He submits that the offending in that episode was not premeditated, but was rather a drunken, opportunistic crime.  This would result in a total end sentence of seven years, which should be discounted to five years three months for the guilty pleas.  He accepted that the 25 per cent discount was appropriate.  But the correct application of the totality principle would then see the end sentence reduced further to around four and a half years.  This would reflect the gravity of the overall offending while not being unfair to the victims.

[14]     Ms Inwood, for the Crown, submits that an appropriate end sentence would be one of five years seven months imprisonment.  She submits that an appropriate approach would have been to assess the starting points, add them together (in the event that cumulative sentences are used), consider the totality principle, and finally apply the guilty plea discount.  She agrees with Mr Mann that four years was an appropriate starting point for aggravated robbery, but submits that the starting point on the injuring charge was too lenient.  Rather, the offending was appropriately categorised as Taueki[5] band one, which would justify a starting point of three years. 

[5]      R v Taueki [2005] 3 NZLR 372 (CA).

[15]     Ms Inwood also submits that a starting point of two years for the burglary and aggravated assault was available, citing two High Court decisions (in the absence of authority from this Court) where similar sentences were upheld.[6]  Thus, the eight-year total starting point was within range.  There being no aggravating or mitigating factors personal to the appellant, the Court should then apply the totality principle.  Ms Inwood submits that a discount of six months would be appropriate to ensure the total term was not out of proportion to the gravity of the offending.  The discount should be restricted to six months, given the completely separate nature of the episodes of offending, the premeditation inherent in each episode, the serious nature of the aggravated robbery and injuring charges, and the fact that the appellant had voluntarily consumed alcohol and so could not rely on his drunkenness as an excuse.  This left a sentence of seven and a half years which should be reduced to five years seven months following the 25 per cent guilty plea discount.

Discussion

[6]R v Rao HC Timaru CRI-2009-476-26, 29 March 2010 and Taylor v Police HC Auckland CRI‑2009-416-22, 14 September 2009.

[16]     There is no disagreement between the parties as to the appropriateness of some cumulative sentences, the starting point in respect of the aggravated robbery charge and the 25 per cent discount for the early guilty pleas according to Hessell v R.[7]  Likewise the failure to apply the totality principle is not disputed.  The outstanding issues are the starting points for the injuring charge on the one hand and for the burglary and aggravated assault on the other, and the appropriate discount under the totality head. 

[7]      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

[17]     We think that little is to be gained by closely scrutinising the contested starting points.  Any error there can aptly be cured by the proper application of the totality principle.  Nevertheless, we are satisfied that the starting points were within range.  In the case of the burglary and aggravated assault, we reject Mr Mann’s submission that 12 months was appropriate; this was not a mere drunken opportunistic endeavour.  The appellant reacted violently when disturbed in the course of a burglary inside the victim’s property.  In an attempt to avoid apprehension he attacked each of the three people who attempted to subdue him.  We do not find it necessary to deal with the High Court cases cited as examples.  A two‑year starting point, while stern, can be taken into account when considering totality.

[18]     With regard to the injuring charge, the appellant was fortunate that the injuries were not more serious.  That said, we are satisfied that this case does not constitute Taueki band two offending as the Crown submitted.  This Court stated in Taueki that it would only be in exceptional cases that a starting point below band one would be justified, giving the example of such a case as being where the offending was charged under s 188(1) of the Crimes Act (wounding with intent to cause grievous bodily harm) but involves culpability which may have been reflected in a lesser charge.[8]  We consider that the appellant was aptly charged with the less serious offence under s 189(1) and that the case is appropriately categorised as an “exceptional” one below band one. 

[8] At [27].

[19]     As to totality, the methodology to be applied is set out in s 85 of the Sentencing Act.  This section provides:

Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)       If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)       If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[20]     The application of this methodology has been described by this Court in O’Leary v R:[9]

The policy behind this section is clear. Where an offender is to be sentenced for multiple offences, individual sentences must be fashioned which reflect the seriousness of each offence. This is an overarching requirement. But, the sentence must also be structured in such a way as to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the offending. Various options as to how the sentence might be structured are described. Longer concurrent sentences, or a combination of concurrent and cumulative sentences, may have to be preferred.

[9]      O’Leary v R CA258/05, 3 March 2006 at [19].

[21]     The approach required by s 85 is for the Court to stand back and ask whether the end sentence of six years imprisonment was out of proportion to the gravity of the appellant’s overall offending viewed in totality.  We think it was, by a considerable margin.  It is therefore necessary to reconsider the sentence imposed.

[22]     We take the assessed starting points totalling eight years imprisonment.  We consider that an adjustment of one year would meet the requirements of the totality principle, giving a figure of seven years imprisonment.  We then consider that a discount of four months should be given to recognise that the appellant made an offer of amends. We see this as a tangible expression of remorse additional to the early guilty pleas.  Further, such a discount would be some recognition for the otherwise clean record of the appellant prior to these three episodes of offending.

[23]     After applying the discount to reflect mitigating factors, the sentence would be 80 months imprisonment.  To this there finally needs to be applied the agreed discount of 25 per cent for the early guilty pleas, resulting in an end sentence totalling 60 months imprisonment (five years).  That sentence then needs to be allocated to each of the four charges.

[24]     We consider that the respective sentences should be:

(a)On the charge of aggravated robbery, three years six months imprisonment;

(b)On the charge of injuring with intent to cause grievous bodily harm, 18 months imprisonment, cumulative on the sentence of three years six months;

(c)On the charges of burglary and aggravated assault, a sentence of 18 months on each, concurrent with each other and concurrent with the sentences on the other two charges.

This means that the appellant’s total sentence is five years imprisonment.

Result

[25]     The appeal is allowed.  The sentence of six years imprisonment is quashed.  The conditions set out at [27] of the Judge’s decision are quashed.

[26] In place of the sentence imposed in the District Court the appellant is sentenced as set out at [24] above.

Solicitors:
Crown Law Office, Wellington for Respondent