Tialata v Police
[2017] NZHC 3096
•11 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-360 [2017] NZHC 3096
BETWEEN JOSHUA TIALATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 December 2017 Counsel:
Y Lee for appellant
D Houghton for respondentJudgment:
11 December 2017
ORAL JUDGMENT OF KATZ J
Solicitors: Meredith Connell, Crown Solicitor, Auckland
TIALATA v NEW ZEALAND POLICE [2017] NZHC 3096 [11 December 2017]
Y Lee, Barrister & Solicitor, Auckland
Introduction
[1] Joshua Tialata pleaded guilty to a charge of indecent assault and was sentenced by Judge D J Sharp to 18 months’ imprisonment.1 His conviction was for a stage-2 offence,2 under the three strikes regime. As a result, Mr Tialata must serve the full term of his sentence and must not be released before its expiry.3
[2] Mr Tialata appeals against his sentence, primarily on the ground that the
Judge’s decision not to grant home detention was in error.
[3] Section 80A(4) of the Sentencing Act 2002 (“Act”) requires the Court to specify the home detention address when sentencing an offender to home detention. Mr Tialata does not currently have an approved home detention address available. Rather, he hopes that if his appeal is successful he will be able to arrange accommodation in a halfway house or rehabilitation facility in order to undertake a long-term rehabilitation programme. Mr Tialata appears to be a chronic user of synthetic cannabis and possibly also other drugs.
[4] I proceed on the basis that the relief sought in the appeal is for leave to be granted pursuant to s 80I of the Act for Mr Tialata to apply for cancellation of his sentence of imprisonment and substitution of a sentence of home detention, in the event that a suitable home detention address can be found.
Facts
[5] Judge Sharp summarised the relevant facts as follows:
[3] … at about 6 o’clock in the evening, there was a female walking down Canal Road in Avondale. She had been walking down the road and she noticed a male following her. She continued walking down the street and noticed that you had been following her for a period of time. Then you grabbed the victim from behind and put both your hands between the tops of her thighs near her vagina in an attempt to pull the victim’s trousers down. At this point the victim has started to scream and turn around and you have grabbed her around the torso and she has ended up on the ground. You were lying on top of her and she was still screaming. The victim felt you trying to get control of her then suddenly you have gotten up and ran away. The victim had minor injuries to her knees. …
1 Police v Tialata [2017] NZDC 21385.
2 Sentencing Act 2002, definition of “stage-2 offence” in s 86A.
3 Sentencing Act 2002, s 86C(4).
District Court Decision
[6] The Judge noted that the attack was both premeditated and violent. There were no mitigating features of the offending. His Honour noted, correctly, that the fact that Mr Tialata was affected by synthetic cannabis at the time cannot be a mitigating factor. The Judge selected a starting point of 18 months’ imprisonment.
[7] Two uplifts were applied. First, the sentence was uplifted by two months to reflect that the offending took place while Mr Tialata had been completing a sentence of intensive supervision following an earlier conviction for indecent assault. Second, a further uplift of six months was applied to reflect Mr Tialata’s previous conviction for indecent assault and his history of dishonesty, violence and illicit drug use. Following these uplifts, Mr Tialata’s sentence stood at 26 months’ imprisonment.
[8] The Judge then discounted Mr Tialata’s sentence by two months to reflect his recognition that it was Mr Tialata’s consumption of alcohol and drugs that placed him in the position he now found himself in.
[9] Finally, the maximum available guilty plea discount, 25 per cent, was applied to reflect Mr Tialata’s guilty plea.
[10] The final sentence reached was 18 months’ imprisonment, which placed it within the jurisdictional range of a home detention sentence. However, the Judge considered home detention inappropriate, emphasising deterrence and denunciation in sentencing. He stated:
[10] The sentence is within the range of electronically-monitored sentences but for purposes of denouncing this behaviour, which I have to do, and deterring you and others from behaving this way, I do not believe the sentence could be properly served in any other way than a custodial sentence. There is also the fact that over a period of time you have racked up a number of occasions when you have not complied with community-based sentences. That also influences my view in relation to the sentence.
[11] The Judge also imposed special post-release conditions.
Appeals against sentence – general principles
[12] Under s 250 of the Criminal Procedure Act 2011, this Court must allow the appeal if satisfied that:4
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should have been imposed. In any other case, the Court must dismiss the appeal.5
[13] The Court of Appeal has confirmed that s 250 was not intended to alter the approach taken previously under the Summary Proceedings Act 1957.6 As well, despite s 250 making no express reference to a sentence being “manifestly excessive”, that principle is “well-engrained” in the courts’ general approach to appeals against sentence.7
[14] The approach taken under the Summary Proceedings Act was set out by the
Court of Appeal in R v Shipton:8
(a) There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.
(c) It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
4 Subsection (2).
5 Subsection (3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7 At [33] and [35].
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
[15] The Court should not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9
Grounds of appeal
[16] Mr Lee did not suggest that the end sentence of 18 months’ imprisonment was manifestly excessive in itself, or argue that a lesser prison term should have been imposed. Rather, the challenge to the Judge’s decision is simply that he refused to commute Mr Tialata’s sentence of imprisonment to one of home detention. Two specific errors on the part of the Judge are said to have caused or contributed to this outcome:
(a) the Judge did not consider restorative justice processes; and
(b)the Judge did not impose the least restrictive sentence appropriate, because he failed to adequately consider rehabilitative options.
Failure to consider restorative justice processes
[17] Mr Lee submitted that restorative justice conferences are a mandatory consideration under the Act, but that the Judge did not expressly refer to this.
[18] It is common ground that no restorative justice process took place. The reasons for that are not clear. Ms Houghton, for the respondent, noted that there is no obligation on victims to participate in such a process. This is consistent with ss 9-10 of the Victims’ Rights Act 2002, which emphasise that restorative justice meetings are voluntary. I accept Ms Houghton’s submission that, given the particular nature of this offending, it is quite possible that the victim may not have been willing to participate
in a restorative justice process.
[19] As Ms Houghton observed, s 8 of the Act merely requires the Court to take into account “any outcomes of restorative justice processes that have occurred, or that the
9 Ripia v R [2011] NZCA 101 at [15].
court is satisfied are likely to occur, in relation to the particular case”. No restorative justice process has been undertaken, nor is there any indication that one is likely to take place. Judge Sharp did not err, in such circumstances, by not expressly referring to the possibility of a restorative justice conference.
Failure to consider Mr Tialata’s rehabilitative prospects
[20] Mr Lee’s second argument was that Judge Sharp did not fully consider
Mr Tialata’s rehabilitative prospects when selecting a sentence of imprisonment rather than one of home detention.
[21] Mr Lee submitted, in his oral submissions, that the Judge should have adjourned the proceedings prior to sentencing, pursuant to s 25 of the Act. Such an adjournment would have enabled Mr Tialata to undertake a rehabilitative programme prior to being sentenced. The implication, as I understand it, is that this would have been a further factor supporting a sentence of home detention. Mr Lee submitted that Mr Tialata would be a good candidate for a lengthy rehabilitation programme and he should now be given the opportunity to try and secure entrance to such a programme. He submitted that substituting a term of home detention for imprisonment would facilitate such a course.
[22] As Ms Houghton noted, it would have been highly unusual for the Judge to have adjourned the proceedings prior to sentencing when, at the time, no request had been made by Mr Tialata for such an adjournment. Ms Houghton submitted (and I accept) that normally, before an adjournment is granted pursuant to s 25, the defence will have already made appropriate enquiries and some evidence will have been provided to the Court indicating that a place is available at a suitable rehabilitation facility. An adjournment under s 25 was simply not warranted in this case.
[23] At the heart of Mr Lee’s submissions lies the concern that the Judge focussed unduly on the principles of denunciation and deterrence, without appropriately balancing those factors against Mr Tialata’s individual rehabilitative needs and prospects.
[24] The Court of Appeal has, on a number of occasions, emphasised that it will be an error of law to focus exclusively on denunciation and deterrence.10 As the Court of Appeal noted in Fairbrother v R, one of the two commonly observed reasons for allowing an appeal against a refusal to grant home detention is where denunciation and deterrence have been given complete priority.11
[25] In my view, however, it is at least implicit in the Judge’s sentencing notes that he did consider Mr Tialata’s rehabilitation prospects, but did not consider that a sentence with a rehabilitative focus was justified in all the circumstances. His Honour noted, for example, that the offending occurred when Mr Tialata was part way through a 12-month sentence of intensive supervision. That sentence was imposed on 27
March 2017. The present offending occurred only six months later. The Judge observed that:12
Turning to you, you have a history which includes dishonesty, violence, misuse of drugs but most significantly there is the previous indecent assault. On the last occasion, the attempt was made to try and provide you with the means of not getting back where you are now. That was the intensive supervision sentence. Sadly, that was unsuccessful …
[26] The Judge was therefore mindful of the fact that a recent attempt to impose a rehabilitative sentence, also relating to an indecent assault conviction, had failed.
[27] The Judge also noted that the Provision of Advice to Courts Report assessed Mr Tialata as having a high risk of re-offending and a high risk of causing serious harm. He noted that:13
The report writer records that you have previously not complied with community-based sentences and it assesses you as unsuitable for a community-based sentence.
[28] The recommended sentence in the Provision of Advice to Courts Report was one of imprisonment, with release conditions.
10 See, for example, Manikpersadh v R [2011] NZCA 452 at [17]-[19]; and Fairbother v R [2013] NZCA 340 at [29].
11 At [29].
12 Above n 1, at [6].
13 Above n 1, at [7].
[29] The Judge did, however, recognise that Mr Tialata did have at least some prospects of rehabilitation. He stated that:14
I will give you some credit for your insight into the fact that you know that it is alcohol and drugs that got you where you are now. Knowing that to me is worth something as far as you are concerned and I will give you credit for that. If you take your past knowing about it to get into the point of doing something about it then there is a chance of you avoiding any repetition of this. For that reason, I reduce the sentence to 24 months and I consider that I will add to the prison term that I must impose, release conditions which will included special conditions …
[30] The special conditions imposed were that Mr Tialata attend and complete such programme or assessment as is undertaken by community probation at the end of his sentence, and that he carry out such treatment or counselling or programmes as directed by community probation. Those conditions are to apply for six months from the end of Mr Tialata’s sentence and clearly have a rehabilitative focus.
[31] I accept that the Judge did not expressly evaluate Mr Tialata’s rehabilitation prospects at the final step of choosing between a sentence of imprisonment and a sentence of home detention. In my view, however, when the entirety of the sentencing notes are considered, it is quite clear that the Judge did consider Mr Tialata’s rehabilitative prospects, and expressly addressed them. He did not, however, consider that Mr Tialata’s rehabilitative prospects were sufficient to justify commuting Mr Tialata’s sentence to one of home detention.
Should home detention have been granted?
[32] Sections 15A and 16 of the Act are relevant to the issue of whether home detention should have been granted. Amongst other things, those sections require the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. They also provide that the Court must be satisfied that the relevant purposes and principles of sentencing cannot be achieved by a less restrictive sentence than imprisonment.
[33] There is no presumption in favour of either a sentence of home detention or a sentence of imprisonment; it is an evaluative judgment which requires the Judge to
14 At [7].
consider all the circumstances of the case.15 In some cases, the seriousness of the offending will justify attributing more weight to the principles of denunciation and deterrence, which will require a sentence of imprisonment.16 In other cases a more rehabilitative focus will be appropriate.
[34] In this case I do not consider that the Judge erred in imposing a sentence of imprisonment. In my view, it was well open to the Judge to conclude that the purposes and principles of sentencing could not be achieved in a way other than by imposing a sentence of imprisonment. I refer to the various factors identified by the Judge that I have summarised above, including that:
(a) The offending was serious. It was a premeditated, sexually motivated attack on a stranger. Violence was used. The victim would no doubt have been terrified.
(b)Mr Tialata had been sentenced to intensive supervision (a sentence with a rehabilitative focus) only six months previously, following an earlier indecent assault.
(c) The Provision of Advice to Courts Report assessed Mr Tialata as having a high risk of re-offending and a high risk of causing serious harm.
(d)Mr Tialata has a poor history of compliance with community-based sentences.
[35] It is also of concern that the present offending represents an escalation of offending. It is more serious in nature than the previous indecent assault that Mr Tialata committed.
[36] Although Mr Tialata clearly does have some prospects of rehabilitation, in the circumstances the Judge did not err in concluding that they could best be accommodated by a modest reduction in his sentence, combined with the imposition
of post-release conditions. The sentencing principles of denunciation and deterrence had to take priority, together with the need to protect society from Mr Tialata’s conduct.
[37] I also note, for completeness, that it is somewhat difficult to see how a home detention sentence could have been substituted for an 18-month sentence of imprisonment, given the broader “three strikes” context.
[38] Normally an 18-month sentence of imprisonment would equate to a nine- month sentence of home detention. This reflects the general “rule of thumb” that sentences of home detention are set at half the term of imprisonment that would otherwise have been imposed. The rationale for such an approach is that, if an offender is serving a short-term sentence of imprisonment of two years or less, under the Parole Act 2002 they must be released after serving half of their sentence.17
[39] In this case, however, Mr Tiliata will not be eligible for parole at half-way through his term of imprisonment. He must serve the full 18-month term of imprisonment, due to the operation of the three strikes regime. Logically, then, any period of home detention (whether it is to be served in a rehabilitative facility or elsewhere) would also have to be set at 18 months, to constitute an equivalent sentence. The maximum permissible term of home detention, however, is
12 months.18
Result
[40] For the reasons outlined above, the appeal is dismissed.
Katz J
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