Tuhi v The Queen
[2021] NZHC 459
•10 March 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI 2021-441-000002
[2021] NZHC 459
BETWEEN GARY DUDLEY TUHI
Appellant
AND
THE QUEEN
Respondent
CRI 2021-441-000007 BETWEEN
JUDAS JAMES RARERE
AppellantAND
THE QUEEN
Respondent
Hearing: 9 March 2021 Appearances:
E J Forster for Mr Tuhi
W R Hawkins for Mr Rarere
S B Manning for the RespondentJudgment:
10 March 2021
JUDGMENT OF VAN BOHEMEN J
Solicitors/Counsel:
E J Forster, Barrister, Hastings
Bramwell Bate Lawyers, Hastings
Crown Solicitors Napier, Elvidge & Partners
TUHI & RARERE v R [2021] NZHC 459
[1] Gary Tuhi and Judas Rarere each appeal the sentences imposed on them by Judge B M Mackintosh on 21 January 2021 when they were sentenced together in respect of the same factual circumstances.
[1]On 21 January 2021, Mr Rarere and Mr Tuhi each pleaded guilty to charges of:
(a)Aggravated robbery;1 and
(b)Failing to comply with a direction of a medical officer of health.2
[2] In addition, Mr Tuhi pleaded guilty to an additional charge of failing to comply with a direction of a medical officer of health.3
[3] Mr Tuhi was sentenced to three years, five months and two weeks’ imprisonment after having accepted a sentence indication with a starting point of five years and nine months’ imprisonment.
[4] Mr Rarere was sentenced to three years and five months’ imprisonment after having accepted a sentence indication with a starting point of five years and eight months’ imprisonment.
[5] Both appellants appeal their sentences on the basis that the starting point adopted by Judge Mackintosh was too high and led to a manifestly excessive end sentence. Mr Rarere also appeals the sentence on the basis that the discount given for cultural factors was inadequate.
[6]The Crown opposes both appeals.
Relevant offending
[7] On 23 April 2020, during the COVID-19 national Level 4 lockdown, Mr Rarere and Mr Tuhi, together with an unidentified associate, came to the back door of a property in Napier where the complainants, four flatmates aged in their twenties,
1 Crimes Act 1961, s 235(b). Maximum penalty 14 years’ imprisonment.
2 Health Act 1956, s 72(d). Maximum penalty six months’ imprisonment or a $4,000 fine.
3 Ibid.
resided. After asking for one of the occupants by name, Mr Tuhi entered the address followed by Mr Rarere and the third associate.
[8] Mr Tuhi and Mr Rarere and the four complainants were not personally known to each other but Mr Tuhi commented that someone in the house had sold cannabis to his niece.
[9] The four complainants were gathered into the lounge by the applicants and forced to lie face-down on the floor while Mr Rarere held a knife. Mr Rarere stood guard over the complainants while Mr Tuhi and the other associate collected various items valued at approximately $2,500 from around the house, including a quantity of cannabis and cell phones belonging to the complainants. While standing guard, Mr Rarere threatened to assault the complainants and kicked the ground close to their heads to scare them into compliance.
[10] Mr Tuhi, Mr Rarere and the third associate then left the address with the items and drove away in a vehicle parked outside.
[11] On 25 April 2020, Mr Tuhi was stopped by police after he was found driving a car carrying a passenger. This was in further breach of the Ministry of Health’s Level 4 lockdown directives.
District Court decision
[12] Judge Mackintosh adopted a starting point of five years’ imprisonment for both appellants and added an uplift of six months in both cases, with an additional one- month for Mr Rarere for his COVID-19 related offending and an additional three months for Mr Tuhi for his COVID-19 related offending which included an additional charge. Although not stated in Judge Mackintosh's sentencing notes, Counsel agree that the initial six months uplifts were for previous offending by both defendants.
[13] In setting that starting point, Judge Mackintosh had regard to the fact the Crown was arguing for a starting point in the vicinity of six and a half years’
imprisonment based on R v Mako4 while counsel for Mr Tuhi and Mr Rarer had argued for a starting point of three and a half years based on Marsh v R.5
[14] The Judge considered that the aggravating features were the fact that there were three intruders, the presence of a knife, the threats to the complainants, the unwelcome entry into the dwelling, the items stolen and the gang association indicated by the tattoos on both applicant’s faces.
[15] The Judge noted the cultural reports of both appellants, which showed that both had grown up in the Black Power culture by virtue of their families’ long association with the gang.
[16] Judge Mackintosh noted that Mr Rarere had had a “tough upbringing”, immersed in the Black Power culture, which had definitely had an effect on the way he had ended up living his life. He had been born to alcoholic parents and throughout his adolescent years had witnessed first-hand the impact of systemic poverty, unemployment, violence, and the negative influence of gangs and alcohol and drug abuse on his family personally. Judge Mackintosh said that Mr Tuhi had had a similar background.
[17] Judge Mackintosh also noted that both defendants showed remorse and a willingness to change, for example, with Mr Rarere expressing a desire to have his tattoos removed.
[18]From that starting points the discounts applied to both offenders were:
(a)15 per cent cultural discount (dismissing the 30 per cent discount sought by counsel for Mr Rarere);
(b)20 per cent discount for guilty plea; and
(c)five per cent for remorse.
4 R v Mako [2000] 2 NZLR 170.
5 Marsh v R [2019] NZCA 220.
[19] This totalled a 40 per cent discount. As a result, Mr Tuhi sentenced to three years, five months and two weeks’ imprisonment and Mr Rarere to a sentence of three years and five months’ imprisonment.
Appeal against sentence
[20] The appeal is to be determined in accordance with s 250 of the Criminal Procedure Act 2011 which provides that the Court must allow an appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[21] In determining whether to impose a different sentence, the Court does not substitute its own view for that of the original sentencing Judge.6 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.7 The focus is on the end result rather than the process by which the sentence was reached.8
[22] Section 245 of the Criminal Procedure Act provides that the fact that a defendant has received a sentence indication does not affect the right of the defendant to appeal against sentence.
Ground of appeal one: Excessive starting point
[23] Both appellants appeal the decision on the basis that the starting point of five years was too high, leading to a manifestly excessive end sentence.
Submissions of appellants
[24] Both Mr Forster, counsel for Mr Tuhi, and Mr Hawkins, counsel for Mr Rarere, say that this case falls outside the guideline judgment of R v Mako and in particular paragraph [58] of that decision which states:
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
7 At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [30].
8 Tutakangahau v R, above n 6, at [36].
point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
[25] Mr Forster says Mako does not apply because Mako was a sentencing under the Criminal Justice Act 1984 and was decided when the Crimes (Home Invasion) Amendment Act 1999 was in force. In addition, Mr Forster submits that the present case does not fall within [58] of Mako because it did not involve a forced entry or violence against victims.
[26] Mr Forster says the Court of Appeal’s decision in Marsh v R has identified a class of aggravated robbery that lies between a Mako street robbery with actual violence and a Mako home invasion. In Marsh, which involved two offenders, no forced entry and no weapon, the Court of Appeal reduced the starting point from four years and nine months to three years and six months. Mr Forster also refers to Holmes v R,9 which involved three offenders bursting into the house of the victim, who was known to one of the offenders, and blows to the victim’s body with the blunt end of a small tomahawk. In that case, the Court of Appeal had made no criticism of the starting point of five years adopted with respect to the principal offender. Mr Forster also refers to Ellis J’s decision in Sulusi v R,10 where the offending included the presence of a gun and gang connotations but, like this case, no actual violence, and four years was determined to be the appropriate starting point on appeal.11
[27] Mr Forster does not refer in his written submissions to the Court of Appeal’s decision last year in Stratton-Pineaha v R12 in which the Court of Appeal upheld a starting point of seven years on the basis that the aggravating features in that case placed it squarely within the offending identified in Mako as requiring a starting point of at least seven years imprisonment, or to Nahora v R,13 in which Cooke J held that a starting point of five years was appropriate when upholding an appeal by Ms Sulusi’s co-offender. However, in answer to questions from the Bench, Mr Forster said Stratton-Pineaha was more serious because it involved entry late at night by two
9 Holmes v R [2010] NZCA 47.
10 Sulusi v R [2020] NZHC 3314 at [12].
11 At [12].
12 Stratton-Pineaha v R [2020] NZCA 50, at [14].
13 Nahora v R [2021] NZHC 189.
people in gang regalia, the brandishing of and a threat to use a knife, and an intention to try to pervert the course of justice by punishing or dissuading the complainant from giving evidence against Mr Stratton-Pineaha’s father. Mr Forster said Nahora was also more serious because it involved entry by climbing through a window and a firearm.
[28] Mr Hawkins acknowledges that Mako is still the guideline decision for aggravated robbery even though it predates the Sentencing Act 2002, but submits that more recent decisions indicate that a lower starting point should have been adopted in this case. Mr Hawkins refers to Marsh v R, 14 as well as to:
(a)Reid v R,15 where a starting point of four years was upheld on appeal for an offender who produced a knife while demanding money and held the knife to the victim’s throat leaving a long mark, then forced the victim to drive to an ATM and withdraw money;
(b)Norton v R,16 where the Court of Appeal had not disturbed a starting point of two and a half years imprisonment where two men armed with a piece of wood and a hammer had entered the victim’s flat and had hit and injured the victim with the piece of wood;
(c)Te Hau v R,17 where no issue was taken with a starting point of three years where two offenders punched the complainant in the face and demanded $1,500, entered the house and took a laptop and the complainants’ vehicle, threatening to kill them if he went to the police or kill a family member if they failed to pay the money.
[29] Mr Hawkins also submits that there exists a growing disparity between sentencing in aggravated robbery cases and aggravated burglary, where aggravated burglary sentences tend to be lower notwithstanding that the facts may be highly
14 Marsh v R, above n 5.
15 Reid v R [2017] NZCA 451.
16 Norton v R [2012] NZCA 334.
17 Te Hau v R [2013] NZCA 431.
analogous. He refers to a number of authorities on which Ellis J had relied in Sulusi
in support of a starting point of four years in that decision.
Submissions for the Crown
[30] Counsel for the Crown, Mr Manning, submits that the starting point of five years was correct. He submits that this offending aligns most closely with the scenario set out at [58] of R v Mako, which suggests that a starting point of seven years or more would be appropriate where there is forced entry into a premises at night and weapons are brandished even if no injuries are inflicted.
[31] Mr Manning says that Mako had been not been affected by the repeal of the Crimes (Home Invasion) Amendment Act and its guidelines remain authoritative. He notes that Mako has continued to be applied by the Court of Appeal, as in Stratton- Pineaha, and that home invasion remains an aggravating factor, as recognised in s 9(1)(b) of the Sentencing Act 2002. He also notes that the starting point of seven years or more in [58] of Mako was intended to apply before weight was given to the home invasion factor, as is clear from the second sentence of [58].
[32] Mr Manning acknowledges that it is not clear from the agreed Summary of Facts whether the Mr Tuhi, Mr Rarere and their associate were initially invited into the premises but says that must have been largely immaterial from the viewpoint of the complainants, who included three young women, and found themselves forced to the ground with threats of violence from three strangers, one of whom was carrying a knife openly and stood over them while their home was robbed. Mr Manning acknowledges that no actual violence was inflicted on the victims and that there was not the element of coercion that was present in Stratton-Pineaha. However, he submits that such differences as there are in the present case from the circumstances described at [58] in Mako are recognised in the five-year starting point adopted by Judge McIntosh, which was two years lowers than the minimum recommended at [58] of Mako.
[33] Mr Manning submits further that Sulusi must be seen in as specific to its own circumstances. The appellant in that case had only a limited criminal history and was assessed as presenting a low risk of further offending. Most importantly, the appellant
had four young children and, as Cooke J acknowledged in Nahora v R,18 it can reasonably be inferred that Ellis J adopted the starting point of four years to ensure that a sentence of home detention might be available.
Discussion
[34] As Mr Manning says, and Mr Hawkins acknowledges, Mako is still the guideline decision for aggravated robbery, despite the repeal of the Crimes (Home Invasion) Amendment Act and despite the later enactment of the Sentencing Act. As the Court of Appeal said in Poi v R:19
The home invasion provisions referred to by the Court in Mako have now been repealed. Nonetheless, the unlawful entry into a private home remains an aggravating factor for sentencing purposes.
[35] In Poi, the Court of Appeal noted that Mako generally requires a starting point of at least seven years for home invasion offending,20 and that starting points imposed or upheld by the Court of Appeal for aggravated robberies have generally ranged from six and a half to 10 years.21 Stratton-Pineaha was one of the decisions to which the Court referred to illustrate this statement.
[36] It is clear, therefore, that in two recent decisions, Stratton-Pineaha and Poi, the Court of Appeal has reaffirmed the continued application of Mako and the starting points it recommends. In these circumstances, I do not consider it necessary to try to analyse where the present case may fall within the continuum of cases where starting points of less than seven years have been adopted for aggravated robberies, let alone aggravated burglaries. The purpose of guideline decisions is that they are intended to provide authoritative guidance as to where starting points are to be established, with discretion then left to the sentencing judge to decide how those starting points should be adjusted by reference to the purpose and principles of sentencing in the Sentencing Act, which include taking into account the general desirability of consistency with appropriate sentencing levels and the particular circumstances of the offender.
18 See Nahora v R, above n 13, at [17].
19 Poi v R [2020] NZCA 312 at [8].
20 At [16].
21 At [17].
[37] The first question, therefore, is whether the current offending falls within that described at [58] of Mako.
[38] I agree with Mr Forster that the offending in the current case differs in two respects from that described at [58]. It did not involve a forced entry as such; the complainants opened the door to the offenders. And it did not involve actual violence. But, apart from the hour at which the offending occurred and the absence of gang regalia on the appellants’ clothing, the entry into the premises in the present case was not significantly different from what happened in Stratton-Pineaha, where the Court of Appeal referred to the entry as being “without invitation”. Stratton-Pineaha also did not involve actual violence. Yet, the Court of Appeal held that the aggravating features in Stratton-Pineaha placed that case squarely within the category of cases identified in Mako as requiring a starting point of at least seven years’ imprisonment.
[39] I accept also that the circumstances in Stratton-Pineaha were more serious in other respects: the hour of entry, the wearing of gang regalia, the stated threat to use the knife and the coercion to prevent the victim giving evidence. Whether those differences are sufficient to take this case out of [58] of Mako is debatable. The offending still involved the uninvited entry into a private dwelling by a number of offenders seeking money, drugs or other property, threatened violence against victims, and the presentation of a weapon. These are all elements of home invasion which caused real and intended fear to the complainants. And while Mr Tuhi and Mr Rarere may not have been wearing gang regalia, their Black Power affiliation was evident on their facial tattoes.
[40] However, even if the case does not fall squarely with [58] of Mako and is less serious than Stratton-Pineaha, I consider that the five-year starting points adopted by Judge McIntosh, as compared with the seven-year minimum recommended in Mako, adequately takes those differences into account.
[41] I accept also that there are some differences between the circumstances of the present case and those in Nahora, where Cooke J also adopted a starting point of five years. Apart from the different charges involved, the main difference in the physical facts was the presentation of a firearm in Nahora. However, as Cooke J noted in that
decision,22 the Court of Appeal cautioned in Mako that it is not to be assumed necessarily that the more potentially lethal the weapon, the more serious the offence.23 Cooke J noted that the victim in Nahora did not appear to take the threat of the firearm seriously and had proceeded to call the police.24 The other relevant consideration was that Cooke J set the starting point in that case by reference to the starting point Ellis J had set in the particular circumstances of Susuli. For these reasons, I do not consider the starting points of five years set by Judge Mackintosh to be inconsistent with that set by Cooke J Nahora.
[42] In addition, in a number of the decisions to which Mr Forster and Mr Hawkins refer, notably, Holmes v R,25 Norton v R,26 Te Hau v R,27 the starting point was not at issue before the Court of Appeal. In Reid v R, where the issue was whether a starting point of four years was excessive, the Court of Appeal also observed that Mako remains the leading tariff judgment for aggravated robbery, and that, given the element of home invasion in the offending, the starting point of four years could be regarded as lenient.28
[43] For these reasons, I do not accept that the starting points of five years set by Judge Mackintosh were manifestly excessive.
Ground of appeal two: Inadequate discount for cultural factors
[44] Mr Rarere also appeals the sentence on the basis that the discount of 15 per cent for cultural factors was insufficient. Mr Hawkins submits that given the dysfunctional upbringing of Mr Rarere, the abuse he suffered as a child by his parents and his family’s connections to Black Power supports the conclusion that he is a clear victim of intergenerational disconnection from his culture. The genesis of the offending was the goal to feed his partner and children. Taking these factors into account, Mr Hawkins submits that a discount of 20 – 30 per cent was appropriate.
22 Nahora v R, above n 13, at [25].
23 R v Mako, above n 4, at [39].
24 Nahora v R, above n 13, at [26].
25 Holmes v R, above n 9.
26 Norton v R, above n 16.
27 Te Hau v R, above n 17.
28 Reid v R, above n 15 at [12] and [15].
[45] Mr Manning submits that a 15 per cent reduction for matters raised in the cultural report was also appropriate and consistent with authority. Mr Manning also submits that the discount of 20 – 30 per cent for cultural factors alone would be a rare discount. He submits that the 30 per cent discount given in Solicitor-General v Heta29 is such a rare case where the defendant had had an almost offence-free adult life and had not offended for 17 years with excellent prospects of rehabilitation and a high level of remorse – which Mr Manning submits is far removed from the present case.
[46] As I discussed with counsel at the hearing, it is apparent from the cultural reports for Mr Rarere and Mr Tuhi, which were prepared by the same author, that Mr Rarere had the more difficult upbringing. He witnessed terrible abuse of his mother by his father and he and his siblings were also subject to violence at the hands of their father. He was also shot by the Mongrel Mob and lost a kidney. Mr Rarere has also suffered greater alienation from his Māori heritage and he invested his loyalty and sense of belonging in the Black Power. Although Judge Mackintosh said Mr Tuhi had a similar background and the report writer says Mr Tuhi also invested his sense of belonging in the Black Power, Mr Tuhi has maintained his cultural roots and identity. He is fluent in Te Reo and is familiar with tikanga.
[47] However, the question for the Court is not whether Mr Rarere should have been given a greater discount for cultural reasons than Mr Tuhi but whether the 15 per cent discount given to Mr Rarere was appropriate and consistent with discounts given in comparable cases.
[48] Mr Manning submits that, in cases of serious offending, the Courts have developed a practice of making a discount of around 15 per cent for cultural reasons, where the factual basis for such a discount has been established. He submits that to go beyond that would require something out of the ordinary, as was the case in Solicitor-General v Heta. Mr Manning also notes that the Court of Appeal has held that cultural factors will have a lesser effect on sentencing in cases of serious violence because considerations of denunciation and community protection will prevail. 30
29 Solicitor-General v Heta [2018] NZHC 2453.
30 Davidson v R [2020] NZCA 230 at [33].
[49] It is clear that Mr Rarere has had a very difficult upbringing and that he sought security in the brutalised and traumatised company of gang members who shared his experience and history in the sense discussed by Williams J in R v Rakuraku.31 However, I do not consider that Mr Rarere’s history is sufficiently different from that experienced by others who have suffered social alienation and deprivation, and family violence, to warrant a discount beyond that granted by Judge Mackintosh, particularly given the seriousness of the offending and Mr Rarere’s considerable criminal history. There is also nothing in the cultural report to suggest that that history was causative of the particular offending for which Mr Rarere was sentenced.
[50]For these reasons, I do not accept that this ground of appeal has been made out.
The uplifts of six months
[51] Although this was not a ground of appeal by either Mr Tuhi or Mr Rarere, in his submissions Mr Manning accepts that the uplifts of six months that Judge Mackintosh made to the starting points of five years for previous convictions may have been too high, given that it represented a 10 per cent up lift on the starting points. Mr Manning suggests that three months may have been more appropriate, having regard to the observations of Kós P in Orchard v R32 about the relevance of previous convictions in uplifts. However, Mr Manning submits that if those uplifts are adjusted, the calculation of the other discounts should also be adjusted to take account of the methodology adopted by the Court of Appeal in Moses v R,33 and that in any event the differences to the end result are not significant.
[52] Neither Mr Forster nor Mr Hawkins addressed me on this issue beyond acknowledging their clients’ readiness to receive the benefit of any reduction.
[53]In Orchard v R, Kós P said:34
Section 9(1)(j) of the Sentencing Act 2002 requires a court to take into account the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is
31 R v Rakuraku [2014] NZHC 3270 at [58].
32 Orchard v R [2019] NZCA 529 at [39].
33 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
34 Orchard v R, above n 32 at [39].
being sentenced or otherwise dealt with at the same time. … In addition, any uplift for prior offending must take into account s 26(2) of the New Zealand Bill of Rights Act 1990, which provides that no one who has been finally convicted of an offence shall be punished for it again. Previous convictions are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.
[54] Neither Mr Tuhi nor Mr Rarere has been convicted before of aggravated robbery or of any other offending that arose out of the circumstances that led to their sentences under appeal. There is no question, therefore, of the uplifts punishing them twice for the same offending. In Orchard v R, however, Kos P said that any uplift to reflect risk and deterrence must be proportionate to the sentence imposed for the original offending.35 The earlier offending of Mr Tuhi and Mr Rarere was different in nature from the current offending and custodial sentences, where imposed, were of reasonably short duration. The exception was a five-year term of imprisonment imposed on Mr Tuhi for drug related offending which occurred 10 years ago. In the circumstances, I consider the uplifts for previous offending should be reduced to three months.
[55] I am satisfied that Judge Mackintosh adopted the two-step procedure for the application of discounts recommended in Moses. The Judge began with adjusted starting points that took account of the seriousness of the offending and prior offending. The Judge then applied discounts of 5 per cent for remorse, 15 per cent for cultural factors and 20 per cent for guilty pleas, or a 40 per discount in total, to those adjusted starting points. The Judge did not make a separate deduction for the guilty plea after the other discounts had been made, as had been the practice prior to Moses.
[56] If deductions of 40 per cent are made to a starting point for Mr Tuhi of five years and six months and to a starting point for Mr Rarere of five years and four months, the end sentences are three years and three months’ imprisonment for Mr Tuhi and three years, two months and two weeks’ imprisonment for Mr Rarere. The difference in each case from the sentences imposed by Judge Mackintosh is a reduction of two months and two weeks.
35 At [41].
[57] While those reductions may not be significant in terms of end result, I am satisfied that it is in the interests of justice that the sentences should be adjusted to reflect those reductions.
Outcome
[58] The appeals against sentence on the basis the starting point of five years’ imprisonment was manifestly excessive and, in Mr Rarere’s case, that the deduction for cultural factors was insufficient, are dismissed.
[59] However, because the uplifts of six months to the starting points were excessive, the sentences of Mr Tuhi and Mr Rarere are quashed and are replaced by the following sentences:
(a)Mr Tuhi: a term of three years and three months’ imprisonment;
(b)Mr Rarere: a term of three years, two months and two weeks’ imprisonment.
G J van Bohemen J
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