Waikato-Tuhega v R
[2021] NZCA 503
•4 October 2021 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA112/2021 [2021] NZCA 503 |
| BETWEEN | ZION WAIKATO-TUHEGA |
| AND | THE QUEEN |
| Hearing: | 26 July 2021 |
Court: | Goddard, Thomas and Wylie JJ |
Counsel: | H M S Cheeseman for Appellant |
Judgment: | 4 October 2021 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of six years and four months’ imprisonment is quashed and substituted with a sentence of four years and five months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Introduction
Zion Waikato-Tuhega was sentenced to six years and four months’ imprisonment in the Auckland District Court following his conviction on two charges of aggravated robbery, two charges of theft, one charge of unlawfully using or taking a vehicle, one charge of possession of an offensive weapon and one charge of burglary.[1]
[1]R v Waikato-Tuhega [2021] NZDC 2506.
Mr Waikato-Tuhega appeals his sentence on the grounds the Judge erred in granting inadequate discounts for his personal circumstances, namely his youth and cultural background, and as a result, the sentence was manifestly unjust. The Crown response is that, given the scale of the offending, the end sentence was, if anything, lenient.
Background
Factual background
Mr Waikato-Tuhega was involved in four separate sets of offending which occurred between November 2018 and May 2020.
On two occasions in November 2018, when Mr Waikato-Tuhega was 17 years old, he arranged via Facebook to meet people who had advertised iPhones for sale. When he met each of them, he asked to look at the phone and, upon it being handed to him, he ran off with it. On the second occasion, Mr Waikato-Tuhega was apprehended by the police and was found to be in possession of both phones and a claw hammer. This resulted in the two charges of theft and one of possession of an offensive weapon.
In December 2018, six people, including Mr Waikato-Tuhega (still aged 17 and wearing a white cap at the time), entered a liquor store in Auckland, with their faces partially obscured. One of them pointed a pistol at the manager. The manager was struck several times in the head and body with a tennis racquet causing minor bruising but was able to escape the store. The offenders took the cash till and a quantity of alcohol which they transferred into a previously stolen vehicle parked outside the store and then drove away. The police located a white cap containing Mr Waikato-Tuhega’s DNA outside the store near where the vehicle had been parked. CCTV footage showed Mr Waikato-Tuhega entering the store twice wearing the white cap and a third time without it but pulling his hood over his head to conceal his face from view. This resulted in the first aggravated robbery charge.
In the early hours of 8 May 2019, Mr Waikato-Tuhega (then 18 years old) and three others entered a mall in Auckland by smashing through two sets of glass doors. They then entered a mobile telephone store by smashing through security doors. They stole at least 15 electronic items, including mobile phones, with a total value of $5000. The police saw them driving on the motorway exceeding the speed limit by some 30 kilometres per hour. A police pursuit was abandoned but a police helicopter located the vehicle and tracked it travelling at dangerous speed against oncoming traffic. The vehicle eventually crashed. Mr Waikato-Tuhega and the other three offenders were apprehended by the police a short time later. This resulted in the burglary charge.
The final set of offending occurred in May 2020. A car was stolen from an address in Auckland. About two weeks later, Mr Waikato-Tuhega (then 19 years old and on bail) and four others travelled in the stolen car to a mall in Auckland. They wore gloves and hooded jerseys with bandanas covering their faces and carried hammers. One offender carried a large rock.
The offenders smashed the glass door of a jewellery store (while several assistants, customers and the store owner were inside) and threatened the staff while smashing several glass display cabinets with hammers. After removing gold jewellery valued at over $1 million, they returned to the waiting stolen car and fled the scene. Shortly afterwards, the offenders exited the car and ran through a park, dropping some of the stolen items as did so. They got into a waiting motor vehicle and drove away at speed. The offenders were located by a police helicopter at an address in Papatoetoe and apprehended. This resulted in the second aggravated robbery charge and one charge of unlawful taking of a vehicle.
Sentencing indication and sentencing decision
On 20 November 2020, Judge Bouchier gave a sentencing indication to the five offenders involved in the May 2020 aggravated robbery of the jewellery store and unlawful taking of a motor vehicle, and for Mr Waikato-Tuhega on the December 2018 aggravated robbery and May 2019 burglary.[2]
[2]R v Waikato-Tuhega DC Auckland CRI-2020-004-4486, 20 November 2020 [Sentence indication].
The Judge identified the aggravating features of the jewellery store offending as premeditation, the value of the items stolen, the use of weapons, and the presence of multiple offenders.
She took a starting point of five years and six months’ imprisonment, considering the offending to be similar to Inamata v R.[3] That case concerned a daylight robbery of a jewellery store by multiple offenders wielding hammers and fleeing with items valued at around $1 million (although in that case only two stolen watches were recovered, whereas here $850,000 of gold jewellery had been recovered). A five-and-a-half-year starting point was upheld on appeal.
[3]At [34], relying on Inamata v R [2017] NZCA 556.
The Judge uplifted the starting point by four years to account for Mr Waikato‑Tuhega’s involvement in the December 2018 aggravated robbery and the May 2019 burglary.[4] She applied additional uplifts of four months for Mr Waikato‑Tuhega’s Youth Court notations for unlawfully taking a motor vehicle and aggravated robbery, and three months for the fact that the May 2020 aggravated robbery of the jewellery store occurred while Mr Waikato-Tuhega was on bail pending sentence for the December 2018 aggravated robbery and the May 2019 burglary.[5] This resulted in a final starting point of 10 years and one month’s imprisonment.
[4]At [52].
[5]At [52]. For the December 2018 aggravated robbery and the May 2019 burglary, Mr Waikato‑Tuhega was convicted in the Manukau District Court and remanded on bail pending sentencing.
In terms of mitigating factors, the Judge acknowledged Mr Waikato-Tuhega’s youth (being aged 19 at the time of his most recent offending and 17 at the time of the first aggravated robbery), as well as the factors identified in his report prepared under s 27 of the Sentencing Act 2002 (s 27 report). The s 27 report recorded Mr Waikato‑Tuhega’s time in State care and the youth justice system, exposure to family violence and alcohol and drugs at a young age, and alienation from mainstream education in his early teens. However, the Judge also noted that the report-writer said Mr Waikato-Tuhega appeared “disinterested” throughout the interview and that his lack of engagement was reflected in the scarcity of information contained in the report.[6]
[6]At [28].
The Judge considered that a total discount of 35 per cent was appropriate in the circumstances, consisting of 25 per cent for a guilty plea and 10 per cent for youth and time spent on electronically-monitored bail (EM bail).[7]
[7]At [49].
Following the sentencing indication, Mr Waikato-Tuhega pleaded guilty to the May 2020 aggravated robbery (he had already pleaded guilty to the other charges).
By the time of sentencing, a second pre-sentence report was available. This recorded that Mr Waikato-Tuhega did not express remorse for the offending but said he had reflected while in prison on how he had affected the victims, that his offending was committed as part of a gang called “Know Your Role” (KYR), and that he was in a relationship with a partner described as “pro-social”.
At sentencing, the Judge noted that Mr Waikato-Tuhega was also being sentenced for the 2018 two thefts and possession of an offensive weapon.[8] After considering totality and Mr Waikato‑Tuhega’s age, the Judge concluded that no uplift was required for those charges.[9] Mr Waikato-Tuhega had been unable to participate in restorative justice as he had been remanded in custody but the Judge considered a small adjustment to the sentence indication of an additional discount of two months was appropriate.[10] Applying that plus the 35 per cent discount, the final sentence was six years and four months’ imprisonment.[11]
[8]R v Waikato-Tuhega [2021] NZDC 2506 at [1].
[9]At [2].
[10]At [3].
[11]At [4].
Mr Waikato-Tuhega was also given his first strike warning.[12]
Our approach
[12]At [8]. The notice of consequences of first warning signed by the Judge dated 15 February 2021 lists the relevant serious violent offences as both aggravated robberies. However, the warning can only apply to the aggravated robbery of the jewellery store. It cannot apply to the aggravated robbery of the liquor store because Mr Waikato-Tuhega was 17 years old at the time of that offending. A stage-1 offence is an offence that is a serious violent offence and was committed by an offender at the time they were 18 years old or older: see Sentencing Act 2002, s 86A definition of “stage-1 offence”.
Given the ultimate question is whether we are satisfied there was an error and a different sentence should be imposed,[13] we propose to examine Mr Waikato‑Tuhega’s sentence as follows:
(a)Was the starting point too high?
(b)Were the uplifts appropriate?
(c)Was the discount for the factors identified in the s 27 report inadequate?
(d)Was the discount for youth inadequate?
Was the starting point too high?
[13]Criminal Procedure Act 2011, s 250(2).
Mrs Cheeseman, for Mr Waikato-Tuhega, acknowledged that the global starting point of nine and a half years’ imprisonment was not outside the available range, although it was in her view stern.
Ms Mildenhall, for the Crown, disagreed, instead suggesting the starting point was towards the lower end of the available range, because:
(a)the five-and-a-half-year starting point adopted for the jewellery store aggravated robbery was lenient in light of the strong factual similarities with Inamata;[14]
(b)the four-year totality-adjusted starting point for the other offending was also generous, particularly given the December 2018 liquor store aggravated robbery had arguably more serious aggravating factors than the 2020 jewellery store aggravated robbery, including actual violence and the presence of a firearm — on its own this offending would have warranted a starting point of around six years; and
(c)there was no adjustment to the starting point for the two charges of theft and one of possession of an offensive weapon.
[14]We note here that the starting point cannot be described as lenient in light of Inamata, above n 3, given the same starting point of five and a half years’ imprisonment was taken in that case.
We agree with the Crown that there can be no real challenge to the first stage global starting point of nine years and six months (five years and six months’ imprisonment for the jewellery store offending plus four years’ imprisonment for the liquor store aggravated robbery and the burglary of the mobile telephone store). We largely agree with Ms Mildenhall’s analysis.
What we do wish to comment on, however, is her submission that the Judge could have increased the starting point in respect of the two thefts and one charge of possession of a weapon, and also to comment briefly on how to approach starting points where an offender is under the age of 18 years.
Amendments to ss 15B and 18 of the Sentencing Act came into effect after the offending in this case, except for the second aggravated robbery, but before Mr Waikato-Tuhega was sentenced.[15] Section 18 as amended now reads:
18 Limitation on imprisonment of person under 18 years
(1)No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time of the commission of the offence, the offender was under the age of 18 years.
[15]The amendments came into effect on 1 July 2019: see Oranga Tamariki Legislation Act 2019, ss 2(2) and 55.
Section 15B as amended provides that no court may impose a sentence of home detention on an offender under the age of 18 years except in respect of the same level of offending as specified in s 18.
Mr Waikato-Tuhega was 17 years old at the time of the two thefts and possession of an offensive weapon, and the December 2018 aggravated robbery. Aggravated robbery carries a maximum penalty of imprisonment for a term not exceeding 14 years[16] and is a category 3 offence.[17] Therefore, despite Mr Waikato‑Tuhega being only 17 years old at the time of the first aggravated robbery, the limitation in s 18 did not apply and he was liable to a sentence of imprisonment on that charge. Accordingly, that charge was properly included in the four-year uplift. That reflects the policy underpinning s 18 that a sentence of imprisonment should not generally be imposed on a young person under 18, except in the most serious cases. The burglary was also properly included within the uplift because it was committed when Mr Waikato-Tuhega was 18 years old.
[16]Crimes Act 1961, s 235.
[17]Criminal Procedure Act, s 6(1).
The Judge did not uplift her starting point to reflect the two thefts and possession of an offensive weapon, which occurred when Mr Waikato‑Tuhega was 17. We consider that the principles reflected in s 18 of the Sentencing Act confirm that there should not have been an uplift for these offences. Mr Waikato-Tuhega was entitled to be sentenced by reference to the amended provision, by virtue of s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990. It would be inconsistent with the policy of s 18 for the Court to uplift a sentence of imprisonment by reference to offending which, pursuant to s 18, could not itself result in a sentence of imprisonment. As noted in Diaz v R, that policy reflects the diminished culpability of young offenders, their greater potential for rehabilitation and the disproportionate hardship of imprisonment on young persons — factors that we discuss in greater detail below.[18] It also reflects New Zealand’s obligations under the United Nations Convention on the Rights of the Child, which provides that imprisonment of a person
under 18 “shall be used only as a measure of last resort and for the shortest appropriate period of time”.[19][18]For a more detailed discussion of this issue, see Diaz v R [2021] NZCA 426.
[19]United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 37(b).
We therefore have no issue with the first stage starting point.
Were the uplifts appropriate?
Mrs Cheeseman acknowledged that the uplifts for Mr Waikato-Tuhega’s Youth Court notations were warranted and within range, although at the higher end of that range.
Ms Mildenhall submitted that the uplifts for personal aggravating factors were restrained. The uplift for Mr Waikato-Tuhega’s Youth Court notations amounted to a 3.5 per cent uplift only. The other uplift of three months recognised that the 2020 aggravated robbery was committed while on bail pending sentencing for the 2018 and 2019 offending — and that offending was committed while on bail on the earlier charges and could have attracted a further uplift.
The Judge imposed a four-month uplift for Mr Waikato-Tuhega’s Youth Court notations.[20] Mr Waikato-Tuhega had committed a number of offences between 2015 and 2018 which saw him appear in the Youth Court. He was discharged on the earlier offences which mainly involved unlawfully getting into a motor vehicle. He then appeared for offending committed between 2016 and 2018, including unlawfully taking a motor vehicle, burglary and two aggravated robberies committed when he was 16 years old. He was sentenced to six months’ Social Welfare supervision with residence for three months.
[20]Sentence indication, above n 2, at [52].
In sentencing an offender a court must take into account the number, seriousness, date, relevance, and nature of any previous convictions.[21] However, as noted by the learned authors of Adams on Criminal Law, proceedings in the Youth Court do not (with limited exceptions) result in the “conviction” of an offender.[22] Therefore, instead of being considered under s 9(1)(j) of the Sentencing Act, they could be taken into account under s 9(4)(a).[23] In R v Putt, this Court endorsed the earlier observations in Kohere v Police, where Anderson J held that:[24]
[While the Youth Court] behavioural history does not amount to prior conviction it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the Court of criminal record.
[21]Sentencing Act, s 9(1)(j).
[22]Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA9.15(4)].
[23]Section 9(4)(a) provides that nothing in s 9(1) or (2) prevents a court from taking into account any other aggravating or mitigating factor that it thinks fit. See also R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742 at [88], referring to Kohere v Police (1994) 11 CRNZ 442 (HC).
[24]R v Putt [2009] NZCA 38 at [18], quoting Kohere, above n 23, at 444.
Those observations were made prior to the introduction of s 18 of the Sentencing Act, discussed above. We agree that an offender’s Youth Court history can have some relevance to sentencing and would likely preclude any credit for previous good character[25] but we do not accept that it should result in an uplift on sentencing.
[25]Sentencing Act, s 9(2)(g).
Although two of Mr Waikato-Tuhega’s Youth Court notations related to aggravated robbery, those charges were retained in the Youth Court, where a sentence of imprisonment cannot be imposed.[26] The principles of sentencing which apply in the Youth Court are different from those which apply in the adult jurisdiction.[27] So, the same general reasoning as discussed above in relation to s 18 and the starting point applies, and there should have been no uplift in respect of the Youth Court notations.
[26]Oranga Tamariki Act 1989, s 283.
[27]Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [75].
The uplift of three months for offending on bail cannot be criticised, particularly given Mr Waikato-Tuhega was on EM bail and removed the electronic tracker and absconded.
Was the discount for the factors identified in the s 27 report inadequate?
Mr Waikato-Tuhega received a total discount of 10 per cent in respect of his youth and factors identified in the s 27 report.
In Mrs Cheeseman’s submission, the 10 per cent discount did not sufficiently reflect:
(a)Mr Waikato-Tuhega’s background, including prolonged disconnection from his whānau, lack of pro-social support and impulse control, and susceptibility to anti-social influences;
(b)his increased levels of insight and remorse which indicated a heightened capacity to rehabilitate; and
(c)the impact of alcohol and drug addiction on Mr Waikato-Tuhega’s offending and his overall development.
In Mrs Cheeseman’s submission, a discrete discount of 10 to 15 per cent for the factors set out in the s 27 report would have been appropriate. She relied particularly on Solicitor-General v Heta,[28] (discussed in more detail below) where Mr Heta was granted a 40 per cent discount to recognise a range of s 27 factors.
[28]Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
Ms Mildenhall stressed that evaluation of s 27 factors is a very fact-specific exercise and that a causal linkage, as well as evidence of real potential for rehabilitation, was required. Furthermore, referring to Poi v R, Ms Mildenhall suggested that, while in some cases an increased focus on rehabilitation and a decreased emphasis on denunciation and deterrence may be called for, if it appears that an offender finds it difficult or impossible to avoid offending, this may increase the importance of community protection.[29] She said there was nothing in the s 27 report or the pre-sentence reports that demonstrated any genuine motivation for rehabilitation or willingness to change on Mr Waikato-Tuhega’s part.
[29]Poi v R [2020] NZCA 312 at [27].
As a result, in Ms Mildenhall’s submission, only a small allowance could realistically be made for Mr Waikato-Tuhega’s personal background (and his youth), particularly given the seriousness of his offending.
Discussion
In Zhang v R, a Full Court of this Court considered the role of s 27 reports, observing that sentencing must achieve justice in individual cases and this requires flexibility and discretion.[30] The Court further noted that ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to the individual’s offending.[31]
[30]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(a)].
[31]At [159]. See also Heta, above n 28, at [49].
The Full Court adopted the reasoning of Williams J in R v Rakuraku and Whata J in Heta.[32] When commenting that ingrained poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity required consideration at sentencing, the Full Court cited [50] of Heta.[33] There, Whata J had described evidence and symptoms of systemic deprivation of Māori (intergenerational social and cultural dislocation of the whānau, poverty, alcohol and/or drug abuse by whānau members and by the offender from an early age, whānau unemployment and educational underachievement, and violence in the home), and then noted that there needs to be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending.
[32]R v Rakuraku [2014] NZHC 3270; and Heta, above n 28.
[33]Zhang, above n 30, at [159].
Whata J then referred to a passage in Rakuraku in which Williams J spoke about the effects of a childhood marred by poverty, violence, racism, dislocation from tikanga and exposure to gang culture.[34]
[34]See Heta, above n 28, at [50], quoting Rakuraku, above n 32, at [56]–[58].
We turn now to discuss the more recent decision of this Court in Carr v R.[35] We do so because it has been relied upon in support of the proposition that extensive serious offending precludes a discount of more than 15 per cent for personal factors.[36] Mr Carr was sentenced on four charges of aggravated robbery, two of robbery, five of unlawfully using or taking a motor vehicle, two of dishonest use of a document, one of demanding with menaces, one of aggravated assault and two of theft. The offending involved the use of a range of weapons across a number of separate events, as well as committing violence against victims. On two separate occasions, Mr Carr held a victim at gunpoint, while on another occasion he used a victim as a shield while holding an axe against her neck.[37]
[35]Carr v R [2020] NZCA 357.
[36]See for example Kisiogo v R [2021] NZHC 1648 at [19], where the High Court dismissed the appeal of Mr Kisiogo (one of Mr Waikato-Tuhega’s co-offenders). The appeal was dismissed in light of Mr Kisiogo’s personal circumstances, including age, conviction history, offending when subject to post home detention release conditions and bail, lack of genuine remorse and insufficient nexus between the s 27 report and the offending.
[37]For the facts of offending, see Carr, above n 35, at [6]–[15].
The sentencing Judge was not satisfied there was a sufficient link between the offending and Mr Carr’s background to warrant a discount. This Court disagreed but concluded that, despite the significant matters canvassed in Mr Carr’s s 27 report,[38] the extent of the offending precluded a discount greater than 15 per cent.[39] We do not, however, interpret that decision as saying discounts of more than 15 per cent are not warranted in cases of serious offending. Indeed the Court made several useful comments about the application of Zhang.[40]
[38]The report detailed that Mr Carr had experienced a severe disconnection from te ao Māori, family violence, an incident of sexual abuse at a young age, an early exit from the education system coupled with an early entry into the criminal justice system and alcohol and drug abuse.
[39]Carr, above n 35, at [67].
[40]At [65]–[66].
The Court considered it significant that the reasoning in Rakuraku and Heta was adopted in Zhang because it confirmed that, where a cultural report contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse, unemployment, educational underachievement and violence as features of the offender’s upbringing, such matters ought to be taken into account in sentencing.[41] It observed that it was inappropriate to reason that, because other people with disadvantaged backgrounds do not offend, evidence of an offender’s life of deprivation should be put to one side.[42]
[41]At [60]. This Court also directly endorsed Williams J’s reasoning from Rakuraku in Minogue v R [2020] NZCA 515 at [46].
[42]At [66].
It is simply not right to say that, in cases involving serious offending, small discounts only, or no discounts at all, can be given for factors set out in s 27 reports.[43] Cases involving murder,[44] manslaughter,[45] causing grievous bodily harm with intent to injure,[46] and attempted aggravated robbery[47] have all seen relatively substantial discounts for s 27 factors when a causal nexus between those factors and the offending is found to be present.
[43]For a useful analysis of this incorrect assumption, see Oliver Fredrickson “Systemic Deprivation Discounts and Section 27 Reports: Progress But Not Perfect” (2020) September Māori LR.
[44]Rakuraku, above n 32.
[45]R v Nepia [2019] NZHC 1932; R v Beattie [2019] NZHC 3108; and R v MacDonald [2021] NZHC 224.
[46]Waho v R [2020] NZCA 526.
[47]Taiapa v R [2020] NZHC 3355.
And there may still be a discount for the personal circumstances and background of the offender in cases of serious offending even where there is not necessarily significant evidence of an offender’s willingness to rehabilitate. For example, in Kreegher v R, the appellant had been sentenced for kidnapping, aggravated robbery, wounding with intent to cause grievous bodily harm and arson.[48] This Court found that the five per cent discount for the appellant’s personal mitigating circumstances was inadequate. Despite the fact the appellant continued to deny his offending (and thus was not granted a discrete discount for his capacity for rehabilitation), this was a case where a “meaningful discount” for his upbringing and deprived social circumstances was available.[49]
[48]Kreegher v R [2021] NZCA 22.
[49]At [44].
Mr Kreegher was described as having had a turbulent upbringing, characterised by abuse and violence, early membership of a gang and early drug abuse. He had left home at the age of 15. The Court was satisfied that these issues, and more generally a life marred by social deprivation, including at the time of the offending, likely influenced Mr Kreegher’s poor life choices generally and on the night in question, and considered a 10 per cent discount was justified in the circumstances.[50]
[50]At [47].
Trauma in a person’s background, whether intergenerational or immediate, does not guarantee that they will offend. As noted by Williams J writing extrajudicially, an approach that takes this broad assumption should be avoided, as it amounts to retrospective determinism dispossessing the offender of their own agency and, in Māori terms, denies them their mana.[51]
[51]See Joe Williams “Build a Bridge and Get Over It: The Role of Colonial Dispossession in Contemporary Indigenous Offending and What We Should Do About It” (Robin Cooke Lecture, 4 December 2019) at 20.
However, as this Court has previously acknowledged, there does not need to be extensive evidence of a nexus between offending and socio-economic and cultural disadvantage for a discount to be granted.[52] Furthermore, there is ample case law,[53] and research and reports,[54] on the disconnection between whānau, whakapapa and culture caused by colonisation and indigenous dispossession of land and culture, and how it may play a role as a causative factor in offending. This is often augmented by other factors, such as alcohol and drug use at an early age, disconnection from the education system, abuse and gang affiliation. Therefore, following Zhang and its adoption of the reasoning in Heta and Rakuraku (as endorsed in Carr), when provided with evidence of s 27 factors such as socio-economic and cultural deprivation, the courts ought to assess this evidence holistically, considering the offending within the particular circumstances of the offender, including the effects of cultural dispossession within those circumstances. In short, the assessment of a nexus between the offender’s background and the offending should not be a mechanical exercise with a high threshold of proof but an overall assessment, assisted by evidence available, under s 27 and generally, of how personal circumstances might have contributed to culpability or offending.
[52]Arona v R, [2018] NZCA 427, at [59].
[53]This is best illustrated by the case law set out below, particularly the observations of the Full Court in Zhang, above n 30, regarding loss of land, language, culture, rangatiratanga, mana and dignity requiring consideration at sentencing.
[54]See, for example: Waitangi Tribunal Tu Mai Te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 13; Te Ūepu Hāpai i te Ora | Safe and Effective Justice Advisory Group He Waka Roimata: Transforming Our Criminal Justice System (2019) at 9; Khylee Quince “Māori and the Criminal Justice System in New Zealand” in Julia Tolmie and Warren Brookbanks (eds) Criminal Justice in New Zealand (LexisNexis, Wellington, 2007) at 12.3; Mason Durie Nga Tai Matatu: Tides of Māori Endurance (Oxford University Press, Melbourne, 2005) at 62–66; and Moana Jackson The Māori and the Criminal Justice System — A New Perspective: He Whaipaanga Hou (Department of Justice, Wellington, 1988) at 34.
It is our view that a causal nexus between Mr Waikato-Tuhega’s offending and his background is evident here. Mr Waikato-Tuhega’s s 27 report describes five background factors of particular note and which significantly disadvantaged him:
(a)Whānau dysfunction and violence: Mr Waikato-Tuhega’s parents separated when he was a toddler. His father drank and family violence was prevalent in the home.[55] The separation of Mr Waikato-Tuhega’s parents led to his family being uprooted, lacking a support system.
(b)Care and protection and youth justice issues: State intervention in Mr Waikato-Tuhega’s life began at 13 years of age. He was placed in various Child Youth and Family Services homes around Auckland.[56] He experienced abuse in State care, including at the youth justice facility, but did not report it.
(c)Limited education: Mr Waikato-Tuhega began to disengage at primary and intermediate school and was alienated from mainstream education at the age of 13. He was sent to an alternative education provider. He failed to complete either NCEA Level One or Two.
(d)Alcohol and drugs: Mr Waikato-Tuhega first tried cannabis at age 14 and his substance use included cigarettes, cannabis and alcohol. According to the second pre-sentence report, he began to use methamphetamine and hallucinogens, and admitted to pursuing crime for financial gain, including being able to “buy more drugs”.
(e)Cultural disconnectedness from te ao Māori and his Niuean heritage: Mr Waikato-Tuhega was unable to elaborate on his cultural heritage. He does not speak either te reo Māori or Niuean and, according to the report-writer, did not appear to be aware of his whakapapa or turangawaewae. In the report-writer’s opinion, this confirmed Mr Waikato-Tuhega’s lack of confidence and ability to feel comfortable in his own cultural identity.
[55]In Mr Waikato-Tuhega’s second pre-sentence report (dated 28 January 2021), he expressed that his father would “beat him” when he was drunk and that he would often watch his father beat his mother too.
[56]Mr Waikato-Tuhega’s second pre-sentence report (dated 28 January 2021) states that he entered Child Youth and Family Services care at 14 years old.
Between the two pre-sentence reports and the s 27 report, it is evident that there are a range of factors which could be said to contribute to Mr Waikato-Tuhega’s culpability and decision-making. As noted by the s 27 report-writer, during his upbringing Mr Waikato-Tuhega experienced alienation and separation — from his whānau, his whakapapa and the mainstream education system. These factors may have adversely affected his development. This, combined with the adversity he suffered in the form of violence and being placed into State care, as well as the impact of drug and alcohol use from an early age, could be seen to have influenced his decision-making, particularly in relation to his offending.
We are not convinced that Mr Waikato-Tuhega’s disinterest in engaging with the s 27 report-writer (as noted by the Judge) is a particularly compelling reason for deciding that a discount for personal circumstances should not be granted. His lack of willingness to engage and lack of knowledge of his whakapapa were, if anything, additional evidence of his personal circumstances and demonstrative of his loss of cultural identity.
We also disagree with the Crown that there was nothing in the s 27 or pre‑sentence reports that suggested any genuine motivation for rehabilitation was present. In his second pre-sentence report, Mr Waikato-Tuhega stated that “being in prison helped me reflect and think about how I had affected my victims, I need to own up to my decisions I made, show the judge I am not a bad guy”. While he might not have expressed remorse for his actions, this concession does indicate some prospect of rehabilitation. In any event, there may still be a discount for the personal circumstances and background of the offender, even in the absence of significant evidence of capacity or willingness to rehabilitate.[57]
[57]See our discussion at [48] above of Kreegher, above n 48.
All these factors should have been taken into account to a greater extent than they were when considering Mr Waikato-Tuhega’s sentence. The Judge did discuss the extensive information about Mr Waikato-Tuhega revealed in the s 27 report and, in her sentencing decision, said she had “no doubt” that the Parole Board would take into account all the factors raised in the pre-sentence and other reports. While that may be true, the sentencing judge must also take these matters into account on sentencing.
We consider there should have been a discount of 15 per cent for Mr Waikato‑Tuhega’s personal circumstances as described in the s 27 and pre‑sentence reports.
Was the discount for youth inadequate?
Mrs Cheeseman relied on Churchward v R for her submission that the 10 per cent discount should have related solely to Mr Waikato-Tuhega’s age, with the result the total discount should have been in the region of 20 to 25 percent.[58]
[58]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
In Churchward v R this Court identified three ways in which youth may act as a mitigating feature:[59]
(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[59]At [77] (footnotes omitted).
The Court confirmed that these considerations are relevant under s 8(h) of the Sentencing Act which requires the Court to take into account any particular circumstances of the offender which mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe. The Court described this as preserving the longstanding principle of mercy in sentencing.[60]
[60]At [86].
The Court discussed in some detail the neurological differences between youth and adults, particularly in relation to brain development and development of rational thought:
[79] Looking at these related factors in more detail, we note first the matters discussed by Dr Chaplow as to the differences between young people and adults. As he notes, there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults.
[80] The New South Wales Department of Education and Training has stated that adolescence is a period of development, particularly in the ability to produce, establishing an individual identity and developing logical and rational thought processes. It summarises the research as follows:
(a) the ability to plan, consider, control impulses and make wise judgements is the last part of the brain to develop;
(b) adolescents are built to take risks and it is simply part of their biology;
(c) most adolescents know right from wrong, but the environment in which risk-taking and other behaviours occur can lead to inappropriate behaviour; and
(d) adolescents are more prone to react with gut instincts and impulsive and aggressive behaviour.
(Footnotes omitted.)
Then, addressing how neurological factors relating to young people may inform an assessment of a young person’s culpability, the Court said:
[81] These neurological factors can lead to a reduction in culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions: it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development. In KT v R, the Supreme Court of New South Wales (Court of Criminal Appeal) stated that:
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age.
(Footnote omitted.)
The Court in Churchward stressed the adverse effect of imprisonment on young people, noting that adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates whilst incarcerated.[61] The Court then turned to discuss rehabilitation, noting the importance of acknowledging the rehabilitative prospects of young people, even after serious offending.[62] And the Court pointed out that rehabilitation of young offenders is, of course, in both their own interests and in the interests of the public.[63]
[61]At [85].
[62]At [88].
[63]At [90].
This approach and analysis have been repeatedly endorsed by this Court. For example, Millar v R concerned an appeal against sentence for (vehicular) manslaughter and reckless driving causing injury.[64] This Court, referring to Churchward, observed that the neurological science suggests that young people do not have a fully developed system for balancing risk and reward. They have diminished capacity to control impulsive behaviour, are less future orientated, focus on the here and now rather than consequences and so tend to discount risks and calculate rewards differently from adults — not because they do not understand the risks, but rather, they attach different values to them.[65]
[64]Millar v R [2019] NZCA 570.
[65]At [26], citing Churchward, above n 58, at [53].
It is for these reasons that the sentencing purpose of deterrence needs to be considered somewhat differently in respect of young offenders.[66]
[66]Sentencing Act, s 7(1)(f).
Deterrence requires a person to respond rationally and maturely to risk versus reward. While the prospect of a prison sentence will undoubtedly have a deterrent effect even on adolescents, the relative term of the prison sentence will logically have much less impact on their decision-making when their decisions are impulsive, peer‑driven and based on an overvaluation of immediate reward.[67]
[67]Millar, above n 64, at [27].
And the fact long sentences can have a counterproductive, even destructive effect on an offender, particularly a young offender, suggests that the purpose of rehabilitation will have less chance of success if the sentence is overly long.
We regard the observations of this Court in Millar and Churchward are particularly relevant to Mr Waikato-Tuhega’s circumstances. We acknowledge that Mr Waikato-Tuhega’s offending was premeditated and serious. However, it would also be correct to describe it as peer-driven and based on an overvaluation of immediate reward with little, if any, consideration of the consequences. This is perhaps best illustrated by an observation in the s 27 report where the writer stated:
When discussing [Mr Waikato-Tuhega’s] recent charges, he lacked the ability to comprehend the extent and seriousness of the offending, stating all of his offending to date has been in order “to get money.”
(Emphasis in original.)
Similarly, and as noted above, in his second pre-sentence report, Mr Waikato‑Tuhega admitted to pursuing crime for financial gain, including being able to “buy more drugs”. Mr Waikato-Tuhega was aged between 17 and 19 when the offending occurred. As well as his young age, there is evidence of other factors which might have hindered his development, including his early use of drugs and alcohol, the breakdown of his family unit and detachment from his school environment. His offending reflects the observation in Churchward that there is a neurological difference between youth and adults in relation to decision-making and this should be considered in an assessment of his culpability.
Mr Waikato-Tuhega is still young. We consider that an unnecessarily long sentence could have a counterproductive effect, be crushing for him and adversely affect his greater capacity for rehabilitation, if given the chance. It is not clear that the Judge properly considered all of these factors.
The Judge appeared to allow a 10 per cent discount for a combination of youth and personal factors. We can understand why she would have considered them together because they are inextricably linked, with many factors relevant under both heads. However, we consider the Judge erred in granting an inadequate discrete discount for youth and that a 15 per cent discount would be more appropriate in the circumstances.
Unlike the Judge, we do not consider that a discrete two-month discount in respect of restorative justice was appropriate. The Judge granted the discount because Mr Waikato-Tuhega could not attend a restorative justice conference as he was in custody. However, Mau Te Rongo,[68] a restorative justice provider, held a pre‑conference with Mr Waikato-Tuhega on 21 October 2019 and recorded that he declined to participate in restorative justice. We are satisfied the 15 per cent discount for youth adequately reflects Mr Waikato-Tuhega’s youth and potential capacity for rehabilitation.
Total discounts
[68]Mau Te Rongo is the restorative justice arm of MUMA, the Manukau Urban Māori Authority.
Mr Waikato-Tuhega should have received a 15 per cent discount for cultural and personal background factors, and a 15 per cent discount for youth, rather than the 10 per cent given by the Judge in respect of both matters. Combined with the full 25 per cent discount for a guilty plea, this results in total discounts of 55 per cent.
Result
The appeal against sentence is allowed.
Mr Waikato-Tuhega’s sentence of six years and four months’ imprisonment is quashed and substituted with a sentence of four years and five months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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