Tihema v The Queen
[2017] NZHC 1018
•17 May 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2017-441-9 [2017] NZHC 1018
BETWEEN TENAHU TIHEMA
Appellant
AND
THE QUEEN Respondent
Hearing: 16 May 2017 Counsel:
E J Forster for Appellant
M L Wong for CrownJudgment:
17 May 2017
JUDGMENT OF THOMAS J
Introduction
[1] On 7 March 2017, Tenahu Tihema was sentenced to 10 months’ imprisonment by Judge AJ Adeane in the Napier District Court.1 Mr Tihema had pleaded guilty to aggravated assault,2 attempting to introduce contraband into a prison,3 possession of a knife in a public place,4 and threatening to do grievous bodily harm.5
[2] Pursuant to s 244(1) of the Criminal Procedure Act 2011, Mr Tihema appeals against that sentence on two grounds: first, the Judge erred as evidenced by the disparate sentences Mr Tihema and his co-accused received; and secondly, the Judge erred in failing to properly account for the time Mr Tihema spent on electronically
monitored bail (EM bail).
1 R v Tihema [2017] NZDC 4599.
2 Crimes Act 1961, s 192(1); maximum penalty three years’ imprisonment.
3 Corrections Act 2004, s 141(1)(a); three months’ imprisonment and $2000 fine.
4 Summary Offences Act 1981, s 13A ; three months’ imprisonment.
5 Crimes Act 1961, s 306; seven years’ imprisonment.
TIHEMA v THE QUEEN [2017] NZHC 1018 [17 May 2017]
Facts
[3] At about 5.15pm on 28 July 2016, a Department of Corrections prison officer discovered Tenahu Tihema, together with Christopher Hawkins, John Kaka and Pito Wainohu, in a vehicle in an orchard approximately 50 metres from the boundary fence of Hawkes Bay Regional Prison. Mr Tihema was the driver. He attempted to drive away, but the officer blocked the exit. The Corrections officer attempted to detain Mr Tihema and his associates, who verbally challenged the Corrections officer. All four exited the vehicle and began walking in different directions. Mr Kaka, claiming he wanted to urinate, was observed fumbling with something in his pants.
[4] The Corrections officer noticed four or five packages wrapped in electrical tape about three metres from the car, and believed they were packages intended to be thrown over the fence. The Corrections officer saw a similar package in the back seat of the car.
[5] Further Corrections staff arrived. Mr Hawkins and Mr Kaka were detained but Mr Wainohu and Mr Tihema walked away. The Corrections officer pursued Mr Tihema. Mr Tihema “leapt towards” the Corrections officer three times, raising his arms and yelling, causing him to leap backwards to get out of the way. Mr Tihema said he would “fuck him up”. This gave rise to the threatening grievous bodily harm charge. On the third time, the Corrections officer fell backwards into a ditch. This gave rise to the aggravated assault charge.
[6] Mr Tihema then ran away and was picked up by another vehicle. Police stopped this vehicle and arrested Mr Tihema.
[7] The abandoned vehicle was searched by Police, who discovered three knives under the seats. This gave rise to the possession of a knife charge.
[8] The four or five packages the Corrections officer had seen were missing. Four were found by Police in a nearby drain, allegedly deposited there by Mr Wainohu. Another was found by Police near to where Mr Kaka had walked while in the presence of the Corrections officer. The packages contained 60 grams of
tobacco, cigarette papers, 93 nicotine patches, 55 grams of cannabis, and 2.5 grams of methamphetamine. This gave rise to the attempting to introduce contraband into a prison charge.
[9] Mr Kaka pleaded guilty to possession of cannabis, possession for methamphetamine for supply, and attempting to introduce contraband into a prison. On 28 October 2016, he was sentenced to one year and 10 months’ imprisonment on the methamphetamine charge, and a two month concurrent sentence in relation to the cannabis and contraband charges.6
[10] Mr Wainohu pleaded guilty to possession of a knife, attempting to introduce contraband into a prison, and breaching community detention. On 6 September
2016, he was sentenced to two months’ imprisonment, uplifted by one month for re-sentencing on the charges for which he was originally sentenced to community detention.7
[11] It is not clear what charges Mr Hawkins faced in relation to the Hawkes Bay Prison incident, as those charges were subsumed by charges for burglary, punching the burglary victim in the face, driving charges and breach of bail stemming from unrelated offending. He was sentenced on 29 November 2016 to six months’ home
detention and eight months’ disqualification from holding a drivers licence.8
[12] Mr Tihema was on remand for one month prior to his bail hearing. He was subject to EM bail from 6 September 2016. This was varied in October to allow him to attend work. That bail condition was rescinded on 18 November 2016 due to non-compliance; he was not needed at work and instead of returning home drove around the town. He remained on EM bail until sentencing on 7 March 2017. There
were no further recorded bail breaches.
6 Police v Kaka [2016] NZDC 21983.
7 Police v Wainohu [2016] NZDC 17407.
8 Police v Hawkins [2016] NZDC 24422.
Pre-sentence report
[13] The pre-sentence report noted Mr Tihema had expressed concern about his violence, and said he has stopped drinking in order to reduce the likelihood of further violence. It also noted Mr Tihema’s history of violent offending. The report noted his removal from prison programmes due to a lack of engagement and/or violence to others, but later suggested this may be in part because Mr Tihema is not suited to group intervention programmes. Mr Tihema has refused counselling in the past. He stated a desire to work it out himself.
[14] Mr Tihema submitted the address of his cousin for home detention. The pre-sentence report found this address technically suitable, but noted that the cousin’s convictions for violence could present issues.
The District Court decision
[15] The Judge considered a sentence to denounce and deter was required. He noted that despite not being a patched member, Mr Tihema has gang connections and convictions for serious violent offending including intentional injuring, wounding with intent to cause grievous bodily harm, and assault.
[16] On the violence charges, the Judge noted that, despite the fact that there was no application of force, Mr Tihema’s history meant that the Corrections officer was at serious risk of harm. The Judge considered this an aggravating feature. The Judge, however, considered the attempt to introduce contraband as the matter of greatest concern.
[17] The Judge set a starting point of 12 months’ imprisonment for the totality of the offending. He then reduced that to 10 months’ imprisonment, recognising he needed to deter activities of the kind Mr Tihema had undertaken, and Mr Tihema’s failure to comply with the authority of the Corrections officer in the particular circumstance.
[18] The Judge stated he had taken into account the time Mr Tihema spend on restrictive bail conditions. The Judge acknowledged that Mr Tihema had pleaded
guilty, not at the earliest possible stage, but at a callover. He did not expressly state this was being taken into account.
Approach on appeal
[19] Pursuant to Section 250 of the Criminal Procedure Act 2011 the Court must allow an appeal if satisfied:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[20] In any other case, the Court must dismiss the appeal.9
[21] Section 250 confirms the approach taken by the courts under the former Summary Proceedings Act 1957. This approach is set out in Yorston v Police where the Court said:10
(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 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.
[22] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles.
Submissions
[23] Counsel for Mr Tihema, Mr Forster, submitted first the sentence imposed causes disparity between the co-offenders. Mr Forster submitted that while
9 Criminal Procedure Act 2011, s 250(3).
10 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15] (footnotes omitted).
Mr Tihema faced additional technical violence charges, this does not account for the wide disparity in sentences.
[24] Secondly, Mr Forster submitted the Judge failed to take appropriate account of the six months Mr Tihema spent on restrictive EM bail. He said, but for one blemish for which more restrictive conditions were imposed, Mr Tihema demonstrated good compliance.
[25] Counsel for the Crown, Ms Wong, submitted that the sentence imposed was within range. She submitted the disparity between offenders was adequately explained by the different charges each defendant faced. Finally, she submitted the Judge did take into account Mr Tihema’s time spent on EM bail, and no further discount was required.
Analysis
Disparity
[26] The Sentencing Act 2002 directs the court to take into account the “general desirability of consistency … in respect of similar offenders committing similar offences in similar circumstances”.11 The Court of Appeal has noted that disparity “can result in injustice to an accused person and may raise doubts about the even- handed administration of justice”.12 With respect to sentencing appeals:13
… the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him [or her] compared with that imposed on his [or her] fellow offender but whether the disparity is such as not to be consonant with the appearance of justice.
[27] I agree with the Crown that the disparity of sentences as between the co-offenders is adequately explained by the variance in charges they each faced. The
test is objective and the disparity must be such that:14
11 Sentencing Act 2002, s 8(e).
12 R v Morris [1991] 3 NZLR 641 (CA) at 645.
13 R v Lawson [1982] 2 NZLR 219 (CA) at 223
14 At 223.
… a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[28] The statements above have been endorsed by the more recent Court of
Appeal judgment in Macfarlane, where the Court stated:15
A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
[29] Mr Kaka’s sentence is easily discounted as a comparator due to the seriousness of the methamphetamine charges he faced, which carry a maximum sentence of life imprisonment. Mr Wainohu’s sentence is equally easily discounted due to the lack of any comparable violent offending on his part.
[30] Mr Hawkins’ sentence is not comparable because his violence charge stemmed from entirely different offending, replete with its own set of circumstances. The Judge treated the burglary charge as the lead offence and took a starting point of
18 months’ imprisonment, with an uplift of eight months for the Hawkes Bay Prison offending and for other reasons. However, when a judge is uplifting a starting point to reflect other offending, the totality principle comes into play and it is not possible to decipher with any certainty what starting point the Judge would have taken were she sentencing on the Hawkes Bay Prison offending alone.
[31] Further, Mr Hawkins’ criminal history reveals far fewer incidents of violence than Mr Tihema’s. These factors mean a reasonably minded independent observer would see justifiable reasons for disparity as between the co-offenders.
[32] It would also appear that all three co-offenders pleaded guilty at an earlier stage than Mr Tihema.
[33] For these reasons, I do not accept the submission that any disparity between
Mr Tihema’s sentence and that of his co-offenders was present, or if it was, to the extent to establish an error.
15 Macfarlane v R [2012] NZCA 317 at [24].
Adequate reduction
[34] The Judge considered a reduction of two months was appropriate in this case, in light of the need for deterrence, the totality of offending, and failure to “comply with the authority of the prison officer”. These latter two are aggravating factors.
[35] It is fair to say that the sentencing did not follow the standard R v Taueki approach.16 That said, although the Judge referred to aggravating factors in the context of his discussion about a two-month reduction from the starting point, it is clear that the reduction of two months related to the guilty plea and, the Judge said, time spent on restrictive bail conditions.
[36] Time spent on EM bail is a mandatory mitigating factor for consideration in sentencing.17 Subsection 3A goes on to require:
(3A) In taking into account that the offender spent time on bail with an
EM condition under subsection (2)(h), the court must consider—
(a) the period of time that the offender spent on bail with an EM
condition; and
(b) the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender's authorised absences from the electronic monitoring address; and
(c) the offender's compliance with the bail conditions during the period of bail with an EM condition; and
(d) any other relevant matter.
[37] While the Judge stated he had taken Mr Tihema’s time spent on restrictive bail conditions into account when setting the final sentence length, he did not make clear what specific discount he applied in light of it. Nor did he refer to any of the other matters in s 9(3A).
[38] The Crown submitted that despite a lack of express statement to that effect, it was implicit that the Judge also took into account the guilty plea. This means that
for a guilty plea and six months on EM bail, Mr Tihema received a combined
16 R v Taueki [2005] 3 NZLR 372 (CA).
17 Sentencing Act 2002, s 9(2)(h).
reduction of 16.7 per cent. The Crown submissions on sentencing recommended a discount of 15–20 per cent for the guilty plea alone.
[39] I have noted cases where the Court of Appeal has approved very modest reductions for time spent on EM bail. In Keown v R, for instance, a two month reduction from a seven year starting point for 12 months spent on EM bail was appropriate.18 In Chea v R, a discount of four months from a starting point of 16 years’ imprisonment was allowed for 13 months on EM bail.19
[40] Although a mathematical formula should not apply,20 and any discount is largely left to the trial Judge’s discretion,21 it is certainly arguable that the Judge’s reduction could amount to an error on the basis the two month discount could not reasonably reflect time on EM bail and the guilty plea discount. Mr Tihema spent
six months on restrictive EM bail, only one month of which had less restrictive conditions for attending work. In the circumstances, it would have been reasonable to give a further discount of one month in respect of time spent on EM bail, reflecting that, for a period, Mr Tihema was under less restrictive conditions when he was attending work and the restriction was increased as a result of Mr Tihema’s non compliance.
Was the sentence nevertheless within range?
[41] A court should not effectively tinker with a sentence, even if there has been an error in sentencing. The issue is whether the final sentence is within the range which can properly be justified by accepted sentencing principles.
[42] Although the charge of attempting to bring contraband into a penal institution carries a maximum of three months’ imprisonment, in my assessment the characterisation of Mr Tihema’s offending against the Corrections officer as a “technical” assault improperly minimises the offending. The assault was aggravated
because Mr Tihema was trying to facilitate his flight after having tried to bring
18 Keown v R [2010] NZCA 492.
19 Chea v R [2016] NZCA 207.
20 R v Faisandier CA185/00, 12 October 2000 at [28]; Keown v R [2010] NZCA 492 at [12];
Baillie v R [2010] NZCA 507 at [18]; and Rangi v R [2014] NZCA 524 at [10].
21 Chea v R, above n 19, at [110].
contraband into the prison. There were three instances of his aggression towards the
Corrections officer and the identity of the victim is a further aggravating factor.22
The victim impact statement speaks to the impact of the offending on the victim. He has found it difficult to resume normal duties and the offending has caused him considerable stress both at home and at work.
[43] Furthermore, it would have been open to the Judge to impose an uplift on the starting point to reflect Mr Tihema’s relevant prior offending. This includes convictions in 2006 for wounding with intent to cause grievous bodily harm, injuring with intent to cause grievous bodily harm and assault, resulting in a sentence of seven years’ imprisonment; an assault in 2013 resulting in six months’ imprisonment; injuring with intent to injure in 2014 resulting in one year ten months’ imprisonment. Mr Tihema was subject to release conditions until 3 June 2016. The current offending occurred eight weeks only after the expiration of those release conditions.
[44] Given these factors, I am not satisfied a sentence of ten months’ imprisonment was outside the acceptable range and for this reason the appeal is dismissed.
Thomas J
Solicitors:
Crown Law, Wellington
22 Sentencing Act 2002, s 9(1)(fa).
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