Tutakangahau v R
[2014] NZCA 279
•29 May 2014 at 10 am
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA168/2014 [2014] NZCA 279 |
| BETWEEN | THOMAS TENI TUTAKANGAHAU |
| AND | THE QUEEN |
| Hearing: | 27 May 2014 |
Court: | Ellen France, French and Miller JJ |
Counsel: | T Epati for Appellant |
Judgment: | 29 May 2014 at 10 am |
Reasons: | 27 June 2014 |
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal against sentence is allowed. The sentence of 11 months imprisonment is quashed and a sentence of six months imprisonment is substituted.
CA post-release special condition that the appellant attend and complete such counselling or treatment programmes as may be directed by his Probation Officer is imposed together with the standard conditions under s 14(1) of the Parole Act 2002. These conditions expire six months after the sentence expiry date.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No
Introduction [1]
Background [5]
Basis of application [9]
Should leave be granted? [14]
The statutory scheme [18]
Our analysis [26]
Application to this case [41]
Result [48]
Introduction
In December 2013 the 18-year-old appellant jumped a fence and entered a camping ground at Churchill Park, Gisborne. He went into two closed tents and removed clothing and other personal items belonging to four campers who were out attending the “Rhythm and Vines” festival. The appellant was located the next morning and admitted he had stolen the property. He showed the officers where the goods were hidden. A portion of the property was unrecovered.[1]
[1]Counsel for the Crown advises that reparation was sought by one victim in the amount of $760. An additional reparation schedule for another victim lists property to a total value of $850.
The appellant pleaded guilty to two charges of burglary. He was sentenced by Judge Adeane in the District Court to a term of 11 months imprisonment.[2] He unsuccessfully appealed against that sentence to the High Court.[3] He now seeks leave for a second appeal to this Court.
[2]Police v Tutakangahau DC Gisborne CRI-2013-016-3096, 18 February 2014 [sentencing remarks].
[3]Tutakangahau v R [2014] NZHC 556 [first appeal].
The appellant’s appeal in the High Court was dealt with under s 250(2) of the Criminal Procedure Act 2011 (the Act). Under that section, the first appeal court must allow the appeal if satisfied that there has been “an error in the sentence imposed” and that “a different sentence should be imposed”. The appellant says his case raises a question about the approach to s 250(2) and, in particular, to the requirement that the Court be satisfied there has been an error.
Because of the appellant’s imminent release date, we heard both the application for special leave to appeal and the proposed appeal.[4] On 29 May 2014 we delivered a judgment granting the application for leave and allowing the appeal.[5] We now set out our reasons for that decision.
Background
[4]Tutakangahau v R CA168/2014, 2 May 2014 (Minute of Ellen France J).
[5]Tutakangahau v R [2014] NZCA 208.
When the matter came before the District Court on 18 February 2014, the appellant sought an adjournment of sentencing to enable home detention to be considered. Judge Adeane declined to adjourn and proceeded to sentence the appellant. At that point the appellant was in custody, bail having been declined from 8 January 2014 when the appellant pleaded guilty.
In sentencing the appellant, Judge Adeane took a starting point of 15 months imprisonment relying on R v Columbus.[6] From that starting point, Judge Adeane gave a 25 per cent discount for the early guilty plea. The Judge declined to afford any further discount for the appellant’s youth because he said that was offset by the appellant’s previous convictions. The Judge had earlier referred to “chapter upon chapter of similar offending with all manner of intervention attempted” and to the appellant having had “youthful treatment for the same offence on 11 previous occasions”.[7]
[6]R v Columbus [2008] NZCA 192.
[7]Sentencing remarks, above n 2, at [4] and [6] respectively.
In the High Court, Brown J accepted that the description of the appellant’s previous offending was inaccurate. Counsel for the appellant had submitted that the correct analysis was that, as a 15-year-old, between August and December 2010, the appellant had been involved in a spree of burglary offending which resulted in one intervention sentence of supervision and reparation concurrent on all matters.[8] The appellant had committed one further burglary in June 2011 for which the sentence in the Youth Court was for reparation only. The appellant did not come to the attention of the authorities again until the present case in December 2013.
[8]The appellant notes there was also a noting in the Youth Court for “theft ex car and possession of an offensive weapon”.
Although the description of the appellant’s previous offending was inaccurate, Brown J concluded there had been no error because, first, the sentence was within the range available and, secondly, the District Court Judge was right that any discount for youth would be offset by the uplift for the previous offending.
Basis of application
The appellant sought leave to argue a question about the test for a sentence appeal, namely, whether the test in s 250(2) of the Act was correctly applied. In oral argument, the Crown did not develop its written submissions opposing leave.
Both counsel accept that in s 250(2) the legislature has adopted the error correction approach to sentencing as described by this Court in R v Shipton.[9] However, there are some differences between counsel as to what that approach entails.
[9]R v Shipton [2007] 2 NZLR 218 (CA) at [138].
For the appellant, Ms Epati says that if there is an error then, irrespective of whether the sentence imposed is within range, a different sentence should be imposed although “not in a way that amounts to a minor adjustment”.[10] In this respect, Ms Epati challenges the statement made by Brown J that the High Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[11] Ms Epati also says there is no place now for the concept of a “manifestly” excessive sentence.
[10]Adopting the language used in Sionetuato v Police [2014] NZHC 626 at [24].
[11]First appeal, above n 3, at [10].
For the Crown, Mr Lillico submits that where the sentencing judge is exercising a discretion, the appellate court’s ability to intervene is constrained. The focus in these cases is on the appropriateness of the end sentence reached, rather than the process by which it was reached. Further, he says that the significance of the error must be considered in order to determine whether or not a different sentence should be imposed. The concept of a manifestly excessive or inadequate sentence is relevant to that stage of the inquiry.
In terms of the application of the principles in this case, the appellant challenges the sentence imposed on two grounds, first, that the starting point was too high and, secondly, that Brown J was wrong to conclude that any discount for youth would be offset by the uplift for the appellant’s previous offending. The Crown supports the approach taken by Brown J.
Should leave be granted?
Second appeals are governed by s 253 of the Act. Section 253(1) deals with an application by a convicted person.[12] The subsection states that:
A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of a first appeal by that person or the prosecutor under this subpart in respect of the person’s sentence.
[12]Rights of appeal for a prosecutor are set out in s 253(2).
The threshold for leave for a second appeal is found in s 253(3). Section 253(3) reads as follows:
The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
We were satisfied that this appeal did involve a matter of general importance, namely, the correct approach to be taken to s 250(2). This case is the first in this Court to address the interpretation of s 250(2). Although, as we have foreshadowed, the respondent formally opposed the application for leave, it was accepted the Court may consider it appropriate to address this issue. In light of that approach, we need say no more about the test for second sentence appeals.[13]
[13]See the discussion of the approach to second appeals in McAllister v R [2014] NZCA 175.
We turn then to consider the approach to s 250. We begin by setting out the relevant statutory provisions and then discuss s 250(2) in more detail.
The statutory scheme
Section 250 of the Act sets out how a first appeal court must determine a sentence appeal. Section 250(2) provides that the first appeal court “must” allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
The first appeal court must dismiss the appeal in any other case.[14]
[14]Section 250(3).
Section 251 sets out what the first appeal court must do if allowing an appeal. Section 251(2) states that:
The first appeal court must, within the limits allowed by law,—
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
In remitting a sentence under s 251(2)(c), the first appeal court may give the sentencing court “any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court”.[15]
[15]Section 251(3).
A second appeal court must determine a second appeal against sentence in accordance with s 256.[16] Section 256(2) repeats s 250(2) and provides:[17]
The second appeal court must allow the appeal if satisfied that,—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
As with s 250, the second appeal court must dismiss the appeal in any other case.[18]
[16]Section 256(1).
[17]Because the operative wording in the two sections is identical, we refer only to s 250(2).
[18]Section 256(3).
If the second appeal court allows a second appeal, s 257(2) provides that:
The second appeal court may exercise any powers that the first appeal court exercised or could have exercised under this subpart if it had allowed the first appeal.
For completeness we record that, under s 258, every determination of a second appeal to the High Court against sentence by that Court is final. There is an ability to seek leave from a second appeal against sentence determined by the Court of Appeal. Section 259(1) provides that a party to a second appeal determined by this Court may, with the leave of the Supreme Court, appeal to the Supreme Court. The appeal may be brought only on a question of law.[19] The Supreme Court must allow the appeal if satisfied that:[20]
(a) the determination appealed against is wrong in law; and
(b)for any reason, there is an error in the sentence imposed on conviction; and
(c) a different sentence should be imposed.
[19]Section 259(2).
[20]Section 259(3).
In any other case, the Supreme Court must dismiss the appeal.[21]
Our analysis
[21]Section 259(4).
We consider it is plain from the statutory scheme that no change to the approach taken under the earlier statutes to appeals against sentence is intended. Rather, s 250(2) reflects a synthesis or rationalisation of the existing provisions to provide a single test for those sentence appeals previously dealt with under two differently worded provisions, namely, s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.[22] Section 385(3) provided for this Court (and the Supreme Court) to impose a different sentence or remit the case back if the Court considered “that a different sentence should have been passed”. The relevant part of s 121(3) of the Summary Proceedings Act referred to a sentence that was “clearly excessive or inadequate or inappropriate”.[23]
[22]Section 121(3) of the Summary Proceedings Act 1957, which related to the High Court’s determination of sentence appeals, also applied to this Court on second appeals pursuant to s 144B.
[23]Section 121(3)(b) relevantly read in full: “if the sentence (either in whole or in part) is one which the court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the court imposing sentence, or that those facts were not substantially as placed before or found by that court, either— … ”.
We say there is no change because the previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed. That approach is supported by s 251 which makes it plain that the court, if allowing an appeal, must impose a different sentence. There is no ability to impose the same sentence.
Our view that the new Act was not intended to change the previous approach is also supported by the legislative history. In the explanatory note to the Criminal Procedure (Reform and Modernisation) Bill 2010 as introduced reference was made to the rationalisation of the appeal grounds “by adapting the Crimes Act 1961 model and incorporating reference to the error principle that underpins sentence appeals”.[24] Further, it was noted that:[25]
All appeals against sentence will be decided on the same principles. … [Under s 121(3) and s 385(3)] appellate courts take a similar approach, looking to see if the sentencing court has fallen into error in applying the sentencing discretion.
[24]Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 12.
[25]At 67.
The explanatory note went on to describe the approach taken in indictable cases, setting out the following excerpt from the judgment of Hammond J in this Court’s decision in R v Shipton:[26]
[138] Under the statutory formula in force in New Zealand, the essential question in appeals of this character is whether this Court considers that “a different sentence should have been passed” (see s 385(3)). Those words might support two different interpretations. On a more liberal view it would be open to the Court to consider the sentence in question completely afresh so that if, in the Court’s view, what is an appropriate sentence was different from the sentence appealed from, the Court could re-sentence accordingly. This would involve an unlimited judicial discretion to modify the original sentence. That view, however, has not prevailed. The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”. One of the better explications of this approach is to be found in a decision of the High Court of Australia – Griffiths v R (1977) 137 CLR 293 at p 308 and following per Barwick CJ.[[27]]
[26]R v Shipton, above n 9.
[27]Barwick CJ observed, amongst other matters, that inadequacy of sentence meant “such an inadequacy … as is indicative of error or departure from principle”: Griffiths v The Queen (1977) 137 CLR 293 at 310.
The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.[28] If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.[29] Hammond J used the terminology of an error “vitiating” the sentence but it may be more helpful to consider the issue in terms of whether the error is material. That was the terminology used in Te Aho v R where this Court said:[30]
This Court does not lightly quash a sentence of imprisonment, and in the absence of a material error in the sentencing process which requires a re‑assessment of the sentence, or a clearly excessive sentence, will not intervene.
[28]At [139].
[29]At [140].
[30]Te Aho v R [2013] NZCA 47 at [30].
The Court in Te Aho went on to state that “it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances”.[31]
[31]At [30] (footnote omitted).
We can deal here with Ms Epati’s submission that there is no place under s 250(2) for the concept of a manifestly excessive (or inadequate) sentence. We agree with Mr Lillico that the appellant’s submissions appear to misconstrue the relevance of the concept. It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co‑offenders.
Plainly, s 250(2) makes no express reference to a “manifestly excessive” sentence. However, this concept has been part and parcel of the approach to sentencing appeals for a considerable time and we can discern no intention to change the approach in the way contended for by the appellant. To illustrate the longevity of the concept, this Court in The King v Brooks in 1950 endorsed the statement in Archbold’s Criminal Pleading, Evidence and Practice to this effect:[32]
In exercising its jurisdiction to review sentences the Court of Criminal Appeal does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence. The sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before the Court will interefere.
[32]The King v Brooks [1950] NZLR 658 (CA) at 659 citing “Archbold’s Criminal Pleading, Evidence and Practice, 32nd Ed. 328”.
The Court noted that the statement in Archbold’s was based on the judgments of the English Court of Appeal in Rex v Shershewsky and R v Gumbs which date back, respectively, to 1912 and 1926.[33] Similarly, in R v Radich, this Court observed that before reducing a sentence, the court must be satisfied that the sentence was manifestly excessive, or wrong in principle (citing Brooks), or additionally, there must be exceptional circumstances.[34]
[33]Rex v Shershewsky (1912) 28 TLR 364 (Crim App); R v Gumbs (1926) 19 Cr App R 74 (Crim App); see also DA Thomas Principles of Sentencing (2nd ed, Heinemann, London, 1979)[34]The Queen v Radich [1954] NZLR 86 (CA) at 87; see also R v Jeffries [1992] 1 NZLR 134 (CA) at 137.
The concept of manifestly excessive is accordingly well-engrained and we see no reason not to utilise it when considering s 250(2). Indeed, the approach is consistent with the statutory language. Further, the concept is a helpful one and is consistent with the fact that sentencing is not a science.
We also need to address the appellant’s criticism of Brown J’s observation that the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[35] That statement reflects the current approach in the sense that the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases. However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge’s intentions.
[35]First appeal, above n 3, at [10].
We add that this approach to the standard of appellate review of sentences is consistent with the position in Australia,[36] the United Kingdom[37] and Canada.[38] In relation to Australia, it is helpful to note also that s 281 of the Criminal Procedure Act 2009 (Vic) matches s 250 of the New Zealand Act.[39]
[36]Cranssen v The King (1936) 55 CLR 509 at 519–520 per Dixon, Evatt and McTiernan JJ; House v The King (1936) 55 CLR 499 at 504–505; and Griffiths v The Queen, above n 27, at 308–310 per Barwick CJ, referred to by this Court in R v Shipton, above n 9, at [138].
[37]Paul Taylor (ed) Taylor on Criminal Appeals (2nd ed, Oxford University Press, Oxford, 2012) at [10.69]–[10.70]; PJ Richardson (ed) Archbold: Criminal Pleading, Evidence and Practice: 2014 (Sweet & Maxwell, London, 2013) at [7–135]–[7–142].
[38]Section 687 of the Criminal Code RSC 1985 c C-46; R v LM 2008 SCC 31, [2008] 2 SCR 163 at [14]–[15]; R v W 2000 SCC 6, [2000] 1 SCR 132; and Stone v R [1999] 2 SCR 290.
[39]See the discussion in Ludeman v The Queen [2010] VSCA 333, (2010) 208 A Crim R 298 where the Court of Appeal indicated that a “different sentence” in the equivalent section to s 250(2)(b) equated to a different individual sentence for a discrete offence rather than the total effective sentence.
Finally, we need to deal with Ms Epati’s submission that the High Court cases on s 250(2) to date reflect two divergent approaches. The first approach, it is submitted, focuses on the appropriateness of the end sentence[40] and the second approach involves first identifying whether or not there has been an error before moving on to consider whether a different sentence should be imposed.[41]
[40]Ms Epati cited the following cases as adopting this approach: Williamson v Department of Corrections [2014] NZHC 98; Kauhou v Police [2014] NZHC 140; Broderick v Police [2014] NZHC 133; Swinton v Police [2014] NZHC 298; and Green v Police [2014] NZHC 444.
[41]Examples cited as illustrating this approach were: Tecofsky v Police [2013] NZHC 3376; Morgan v Police [2013] NZHC 3431; Prasad v Police [2014] NZHC 219; Walsh v Police [2014] NZHC 320; and Sionetuato v Police, above n 10.
We agree with Mr Lillico that, on analysis, there is no real divergence of view. We can illustrate the point by reference to one of the cases Ms Epati advances for the proposition that the focus is on the end point rather than on identification of the error. The case is Green v Police. In Green, the challenge was to the starting point adopted on the lead charge of aggravated robbery. Ms Epati highlights the passage of Andrews J’s judgment where, after setting out the statutory test, the Judge said that the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[42] However, it is plain from the balance of the judgment that Andrews J moved on to consider whether there was, in fact, an error in the factual finding that was critical to the sentencing Judge’s assessment of the starting point. The Judge concluded there was an error and that a different sentence should be imposed. The appeal was allowed.
[42]At [21].
We turn now to explain why we allowed the appeal in this case.
Application to this case
We agree with the appellant that the starting point adopted was outside of the available range. There has therefore been an error in the sentence imposed.
Judge Adeane set the 15 month starting point by reference to R v Columbus.[43] However, this Court in Columbus observed that the circumstances of the burglary in that case “would not themselves justify a starting point of more than one years imprisonment”.[44] Mr Columbus had forced open the vehicle access door of a garage at a residential property one afternoon. His forced entry caused damage which cost $672 to repair. He stole a mountain bike together with gardening tools and a toolbox. Mr Columbus pawned the bike later that day but it was recovered by the police. Both sets of offending were equally opportunistic but Columbus also involved additional damage and entry into a garage attached to a dwelling house. That would suggest that for this case a starting point of no more than 12 months imprisonment was appropriate.
[43]R v Columbus, above n 6.
[44]At [16].
Brown J’s approach was that while a lower starting point than 15 months imprisonment was available, a 15 months starting point was within range.[45] However, we do not consider that the two High Court cases on which Brown J placed particular reliance are on all fours with the present case. In the first of these, Kati v Police, a starting point of 14 months imprisonment was adopted on appeal.[46] That case involved forced entry into a neighbour’s house. Although the items stolen were similar in value to the present case ($900) and were recovered, the Judge took into account the aggravating features including forced entry and the fact that the burglary was of a close neighbour’s property, the appellant and the victim occupying the same duplex complex. The present offending lacks these aggravating features.
[45]First appeal, above n 3, at [22].
[46]Kati v Police HC Napier CRI-2011-449-19, 11 July 2011.
In Newton v Police, the entry was to a house albeit in daylight.[47] Whilst equally opportunistic, Mr Newton stole a television and jewellery. The television was the only item of property recovered leaving some $2,000 worth of property outstanding. A starting point of 15 months imprisonment was adopted on appeal before prior convictions were considered. Again, the offending in Newton was more serious than that in the present case.
[47]Newton v Police [2012] NZHC 2829.
On the question of the relationship between any uplift for previous offending and the discount for youth, again, we agree with the appellant that there has been no recognition of the fact that one of the reasons identified for a discount for youth is the greater capacity for rehabilitation.[48] Because of the error made about the nature and scope of the appellant’s earlier offending, this factor has not been properly considered. If properly considered, we are not at all clear that any uplift for the previous offending would cancel outright the discount for youth, as Brown J envisaged.
[48]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77(c)].
In our view, approaching the sentence from the incorrect starting point together with the approach to the discount for youth has meant that the option of an alternative sentence more directed to the appellant’s prospects of rehabilitation has not been considered at any stage. We were therefore satisfied that a different sentence should have been imposed. Because the appellant had been in custody since January 2014, we considered that the best course was simply to substitute a sentence equating to time served.
We add that, on the material before us, it appears that the case took a wrong turn when the sentencing Judge declined to adjourn sentencing to allow consideration of home detention. That decision was based on the misdescription in the pre-sentencing report of the appellant’s previous offending.
Result
For these reasons we made orders that:
(a) the application for leave to appeal is granted;
(b)the appeal against sentence is allowed. The sentence of 11 months imprisonment is quashed and a sentence of six months imprisonment is substituted; and
(c)a post-release special condition that the appellant attend and complete such counselling or treatment programmes as may be directed by his Probation Officer is imposed together with the standard conditions under s 14(1) of the Parole Act 2002. These conditions expire six months after the sentence expiry date.
Solicitors:
Rishworth, Wall & Mathieson, Gisborne for Appellant
Crown Law Office, Wellington for Respondent
at 6–8 which includes a useful discussion of the development of the judicial role in sentencing.
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