Waipouri v R
[2015] NZHC 2029
•26 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000154 [2015] NZHC 2029
BETWEEN ILYA MONTY WAIPOURI
Appellant
AND
THE QUEEN Respondent
Hearing: 25 August 2015 Counsel:
M Scally for the Appellant
T McGuigan for the RespondentJudgment:
26 August 2015
JUDGMENT OF DUFFY J
This judgment was delivered by me on 26 August 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland
WAIPOURI v THE QUEEN [2015] NZHC 2029 [26 August 2015]
[1] The appellant, Mr Waipouri, was sentenced to four years, three months’ imprisonment, with a 50 per cent minimum period of imprisonment (“MPI”) by Judge Harvey in the District Court on 1 May 2015. The sentence was imposed for three charges of burglary, two charges of receiving, two charges of unlawfully taking a motor vehicle and one charge of theft. Two further charges of theft carried a maximum sentence of three months imprisonment. Mr Waipouri was convicted and discharged on those charges. He now appeals against the sentence of imprisonment on the grounds that Judge Harvey erred by failing to discount for mitigating factors, resulting in an end sentence that was manifestly excessive.
Factual background
[2] In the early afternoon of 24 May 2013, Mr Waipouri “jemmied” a bedroom window of a residential home and entered the house. He stole a laptop, a mountain bike, an ipod, jewellery and other miscellaneous items to the value of approximately
$4,000.
[3] The second burglary took place between 9 pm of 25 May 2013 and 7 am on
26 May 2013. Mr Waipouri gained access to a residential home through french doors and stole jewellery, a television, a handbag containing a wallet and the keys for a motor vehicle. He used the keys to steal the vehicle. The victim was home asleep during the burglary. The loss caused to the victim was appropriately $2,000. The vehicle was later found and returned to the owner.
[4] The third burglary took place in the morning of 4 July 2013. Mr Waipouri approached the ranch slider door of a residential property and forced the door open. He entered the address and stole a laptop computer and other items.
[5] The first receiving charge relates to Mr Waipouri being found on 4 July 2013 with a USB stick, 300 Mexican pesos and a purple backpack. These items belong to the victim of a burglary. The second receiving charge relates to Mr Waipouri being found on 4 July 2013 with National Bank cards in his possession that belong to another victim of a burglary.
[6] The unlawful taking of a motor vehicle charge arose on 4 July 2013 when the victim had started up his motor vehicle and left it to warm up on the driveway. Mr Waipouri stole the vehicle and drove away from the address. When the vehicle was located, a child’s car seat was missing from the vehicle.
[7] The theft charges related to Mr Waipouri entering two motor vehicles, removing property from both, scattering papers on the ground and taking an unspecified amount of coins. He also entered another vehicle and stole a red wallet containing $60 cash, a CD player and food items.
District Court decision
[8] Judge Harvey took the three burglary charges as the lead offence and canvassed the background facts relating to each burglary. The Judge considered that there were a number of circumstances which increased the level of culpability, namely the burglary of residential properties and the loss of property that have sentimental value and electronic equipment. The Judge said that in relation to electronic equipment such as computers, they frequently contain personal photographs and important information, therefore, the loss of that equipment can be significant and cannot be replaced.
[9] Further, the Judge noted that in one of the burglaries, the complainant was at home. In relation to the total loss caused from the burglaries, the Judge recorded that it was over $7,000, along with bankcards and drivers’ licences, items that involve inconvenience and stress in replacing.
[10] Turning to Mr Waipouri’s personal circumstances, the Judge acknowledged and sympathised with the appalling treatment Mr Waipouri received while as a ward of the state. However, the Judge considered that post traumatic stress disorder is no excuse and can only go part of the way in mitigating the offending. He noted that Mr Waipouri lacks empathy and is unable to contemplate the damage that he causes to other people and their lives.
[11] Turning to the pre-sentence report, the Judge highlighted the report’s
observations that Mr Waipouri attempted to justify his offending and that he has had
numerous interventions. Despite those effects, Mr Waipouri had accumulated further convictions. However, the Judge said he was prepared to recognise and give credit for the fact that Mr Waipouri had undertaken a number of courses in custody and that he had undergone drug tests.
[12] Taking in to account all the aggravating circumstances of the burglary, the Judge adopted a starting point of four years’ imprisonment. He uplifted this sentence by one year to account for the other charges. He gave a 15 per cent discount for a belated guilty plea, reaching an end sentence of four years, three months’ imprisonment.
[13] Regarding whether a MPI should be imposed, the Judge said that the authorities made it clear that the emphasis is on deterrence and community protection, particularly where there has been persistent offending in the past. The Judge again acknowledged Mr Waipouri’s “lamentable background” but pointed out that he is “the master of his fate” and had chosen to make wrong decisions. The Judge noted that Mr Waipouri had persistently offended soon after release from custody and concluded that a MPI of 50 percent is appropriate.
Appellant’s submissions
[14] Ms Scally, for the Mr Waipouri, submits that the Judge erred by acknowledging personal mitigating factors but did not give a discount for those factors and erred in imposing a MPI. Those mitigating factors are:
(a) Mr Waipouri’s social deprivation and consequent post traumatic stress
disorder;
(b)his genuine remorse, evident in his letter of apology to the Judge and the victims of his offending and his willingness to attend a restorative justice conference; and
(c) the completion of courses while in custody.
[15] In particular, the Judge indicated that he was prepared to give credit for the completion of courses in custody but failed to give a discount for that factor.
[16] Ms Scally accepts that no sentence short of a term of imprisonment is appropriate. She however, argues that the following discounts should have been awarded:
(a) Social deprivation and post traumatic stress disorder: 20 per cent; (b) Remorse and efforts at rehabilitation: 10 per cent.
[17] It is argued that by virtue of the social deprivation in Mr Waipouri’s childhood and his consequent post traumatic stress disorder, he is less culpable for his offending. This is said to also explain his criminal history and why he has not learnt from past mistakes. Ms Scally outlines the nature of Mr Waipouri’s background which will be discussed later. She accepts that Mr Waipouri has a lengthy criminal history but submits that since 2009, his offending has tapered off. She says that the offending has all the hallmarks of addiction driven offending and that this drug use is inextricably linked to the trauma he suffered as a child. Therefore, Ms Scally argues, the trauma and resultant post traumatic stress disorder can be linked to Mr Waipouri’s offending.
[18] Ms Scally submits that the Judge did not turn his mind to the ways in which mental disorder might mitigate the sentence imposed. She cites cases where sentencing discounts have been given if a link between mental disorder and the offending can be demonstrated.1
[19] In addition to mental disorder, Ms Scally submits that childhood deprivation can also be a mitigating factor even if a causal link cannot be demonstrated between the offending and the abuse that the offender suffered as child, citing the Court of Appeal in R v Nelson.2 She argues that a horrific history of abuse suffered as a child
can help explain, although not excuse, a pattern of offending. Ms Scally goes on to
1 R v Whiu [2007] NZCA 591; R v Mohamed [2007] NZCA 510; E (CA689/10) v R [2010] NZCA
13, (2011) 25 CRNZ 411; Tuau v R [2012] NZCA 146.
2 R v Nelson [2014] NZCA 121.
cite Australian and Canada case law that have recognised childhood social deprivation as a mitigating factor in sentencing.
[20] She submits that given the short timeframe since Mr Waipouri became aware of his post traumatic stress disorder (2009) and his lack of support following release from prison in 2012, this is not a case where an appellant has had numerous rehabilitation opportunities, as suggested by the Judge. Even if that was the case, the impact of profound childhood deprivation does not cease when a person ages.3 She notes that this is the first opportunity that Mr Waipouri has had to rely on this mitigating factor in sentencing.
[21] Turning to remorse and efforts at rehabilitation, Ms Scally submits that Mr Waipouri had never written a letter of apology before and that this indicates the progress made and insight developed into his offending. Further the offer to attend a restorative justice conference was a sign of genuine remorse as Mr Waipouri agreed to spend an extra three months remanded in custody awaiting sentence in an effort to try to attend a conference. Whilst the conference did not take place, willingness to
attend, as a sign of remorse, deserves a discount.4
[22] Lastly, Ms Scally submits that Mr Waipouri’s childhood deprivation and remorse impacts on whether a MPI is required to meet one or more of the s 86(2) purposes. She submits that a MPI does not add anything to the sentence as the best chance that the community has for protection is if Mr Waipouri receives treatment. She argues that a MPI isolates Mr Waipouri and stands in the way of reintegration. She submits that if the MPI is not removed then it should be reduced in recognition of a reduced overall sentence.
Respondent’s submissions
[23] Mr McGuigan, for the respondent, submits that no discount for personal mitigating factors was warranted and that a 50 per cent MPI was appropriate.
However, he concedes that the end sentence could be seen as manifestly excessive
3 Bugmy v R [2013] HCA 37, 249 CLR 571.
4 Citing Scott v R [2014] NZHC 1598.
and that this Court may wish to allow the appeal. He suggests an appropriate
alternative sentence in the region of three years, seven months’ imprisonment.
[24] Mr McGuigan acknowledges that Mr Waipouri suffers from post traumatic stress disorder. However, he says that it is difficult to ascertain the extent of any causative link between the disorder and the offending in the absence of a medical report canvassing these issues. Nonetheless, Mr McGuigan accepts that Mr Waipouri’s post traumatic stress disorder may have contributed to the offending, because he may have engaged in drug use to control the effects of the disorder, which in turn may have at least indirectly contributed to the offending. Mr McGuigan supports the observation made by the Judge that post traumatic stress disorder can only go part of the way to mitigate Mr Waipouri’s behaviour in this case.
[25] Mr McGuigan acknowledges that Mr Waipouri’s upbringing was very unfortunate but submits that his general background is comparable to many other offenders who appear before the courts. He submits that any reduction in culpability, to the extent that Mr Waipouri’s upbringing predisposed him to reoffend, must be weighed against the need for a deterrent and protective sentence. If the Court is of the view that a discount should have been given for personal circumstances, Mr McGuigan suggests that 10 per cent is appropriate.
[26] Turning to remorse and efforts at rehabilitation, Mr McGuigan submits that the Judge’s scepticism about the genuineness of Mr Waipouri’s remorse was an inference that was reasonably open to him. However, Mr McGuigan seemed to accept that Mr Waipouri’s offer to participate in a restorative justice conference indicated some remorse. In light of the Judge’s indication that he was prepared to give credit for rehabilitative courses completed in custody, Mr McGuigan submits that a discount in the vicinity of five per cent is appropriate.
[27] Mr McGuigan supports the observation made by the Judge, in relation to the MPI, that community protection is paramount. Given the opportunities Mr Wiapouri has had in the past, it is submitted that a MPI was warranted in the circumstances.
Appeal against sentence
Approach to appeal
[28] Section 250(2) of the Criminal Procedure Act 2011 states that the 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.
[29] In any other case, the Court must dismiss the appeal.5
[30] The Court of Appeal in Tutakangahau v R has recently confirmed that s
250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.7
[31] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:8
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[32] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is
5 Criminal Procedure Act 2011, s 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7 At [33], [35].
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9
[33] I am satisfied that the end sentence the Judge imposed is manifestly excessive. This is the result of the Judge failing to take account of Mr Waipouri’s personal factors and to give credit for the rehabilitative steps that he has taken.
Starting point
[34] Ms Scally has not challenged the starting point. In my view, the five year global starting point was at the very upper limit.
[35] There is no tariff decision for burglary. The Court of Appeal in R v Nguyen considered that the range of factors which relate to the criminality of the offending in burglary cases include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact upon owners of property, and the extent of the offending where multiple burglaries are involved.10
[36] In Carbines v Police, the appellant unsuccessfully appealed against a sentence of two years, seven months for four charges of burglary, one charge of theft and driving offences.11 The facts involved four burglaries of residential properties between 22 May 2013 and 10 July 2013. The goods stolen included electronic goods, tools, passports and other small items. The sentencing Judge saw the burglaries as premeditated and that the passports were stolen to be sold into the
“criminal underworld”. The value of the stolen goods was not referred to. A starting point of two years, six months’ imprisonment was adopted for the lead offence of burglary which was not challenged on appeal.
[37] In Wilson v Police, the appellant unsuccessfully appealed against a sentence
of two years, two months’ imprisonment for five charges of burglary, theft of a motor
9 Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].
10 R v Nguyen CA110/01, 2 July 2001 at [17].
11 Carbines v Police [2014] NZHC 439.
car and receiving.12 The appellant and two associates burgled five residential properties in a spree, stealing a range of electronic equipment, a rifle and ammunition, three motorbikes, jewellery and other items. The burglaries took place during the day or the early evening. The total value of the items was estimated to be
$108,000.
[38] The sentencing Judge adopted a starting point for the burglary charges of two years and six months’ imprisonment. Clifford J did not consider the end sentence to be manifestly excessive, noting that despite the general rule that imprisonment is not imposed upon first time burglary offenders, it was inevitable given the nature of the
offending in this case.13
[39] In Taylor v Police,14 three co-offenders appealed against their sentences for committing burglaries of three dwelling houses within a short space of time. In each case, there was a forced entry and property stolen to the value of around $4,000. Each received a starting point of three years, six months’ imprisonment. On appeal, Simon France J saw this starting point as manifestly excessive and reduced it to two years, nine months, noting that multiple burglaries in quick succession would require a stern response.15
[40] In this case, only one of the burglaries took place at night. The goods stolen amounted to a value of about $7,000. I would have adopted a starting point of between two and a half years to three years’ imprisonment for the three burglaries. Even with an uplift to account for the other charges and an uplift for prior burglary convictions, the starting point adopted by the Judge (five years’ imprisonment) is on the high side. This in my view made it important for him to give proper recognition to the factors that he omitted to take into account.
Mr Waipouri’s background
[41] Mr Waipouri was born in 1967 and had an unsettled early childhood. He was raised by maternal great-grandparents initially and then was sent to his maternal
12 Wilson v Police [2013] NZHC 3455.
13 At [19].
14 Taylor v Police HC Whangarei CRI-2006-488-37, 29 August 2006.
grandparents with whom he lived on and off. He was placed in state care from the age of 12 and lived in a number of different homes. While admitted to Hamilton Boys’ Home, Mr Waipouri experienced assaults from other boys and witnessed gang fights. From early 1981 to mid 1982, Mr Waipouri was placed at Hokio Beach School where he was physically, sexually and psychologically abused. He was abused by other boys and by staff. He was sexually abused by another boy who would often “feel him up”.
[42] There is evidence in a Community Alcohol and Drugs Services report (“CADS”) that Mr Waipouri’s most recent offending is clearly related to his alcohol and drug dependence. Prior to his arrest on 4 July 2013, Mr Wiapouri had not slept for one week due to methamphetamine use. Under “mental health history”, the report noted that Mr Waipouri attempted suicide at aged 16 by cutting his wrists. He has not attempted to end his life since. Further:
He has a significant history of childhood and adolescent sexual, physical and psychological victimisation with related post traumatic symptoms – including a hypersensitivity to rejection and increased anger and violence.
…
Discount for post traumatic stress disorder and social deprivation
[43] The leading case on discounts for mental impairment is the Court of Appeal in E(CA689/10) v R, where the Court recognised that criminal punishment has an essentially moral base and lesser moral fault must be recognised.16 The Court observed:17
[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
[69] All relevant considerations must, however, be taken into account in the sentencing process. Mental illness or mental impairment may affect the risk of a repetition of offending. This in turn may direct attention to issues of personal deterrence or public protection. …
16 E(CA689/10) v R, above n 1, at [73].
[44] Where mental illness has contributed to the offending, the Court of Appeal indicated a discount range from 12 to 30 per cent.18
[45] The Court of Appeal in Nelson v R endorsed E v R, but cautioned that “care has to be taken when assessing the causative impact and mitigating effect of mental illness on offending”.19 In that case, the appellant had a difficult childhood and was subject to physical, sexual and psychological abuse by his stepfather. The Court upheld a small discount for personal factors awarded by the sentencing judge, stating that for the judge to have gone further, evidence directed at the causative impact of the offender’s mental or psychological health on the offending was needed.20
[46] Where there is medical evidence that the offending related to post-traumatic stress disorder and that “if the appellant is able to address his psychological issues, then his risk of re-offending would be reduced”,21 a discount is appropriate. In R v Mohamed, the appellant’s post traumatic stress disorder, including homicidal fantasies, related to his childhood experiences in Somalia. A 25 per cent deduction off the end sentence was awarded on appeal.
[47] However, in R v Sabuncuoglu, the Court did not consider the observations in a medical report to create a sufficient nexus between the post-traumatic stress disorder and the immigration fraud offending that was prolonged and sustained.22 In that case, the Court considered that the disorder did not reduce the appellant's moral culpability for the offending and declined to give a discount for that factor.
[48] In this case, the only medical evidence before the Court is the CADS report. That report links Mr Waipouri’s drug and alcohol use to the current offending but does not discuss the nexus (if any) between Mr Waipouri’s post traumatic stress disorder and drug and alcohol use. The report did note that:
[Mr Waipouri] acknowledged that he was destructive to property in response to an escalation in intense distress after he had heard disappointing news in mid-2013.
18 At [71].
19 Nelson v R [2014] NZCA 121 at [22].
20 At [28].
21 R v Mohamed [2007] NZCA 170 at [20].
22 R v Sabuncuoglu [2008] NZCA 448 at [27].
[49] The report does not expand on the nature of that “disappointing news”. There is no psychologist or psychiatrist report in this case. I accept the Crown’s submission that without such expert evidence the extent of any causative link between the disorder and the offending is difficult to assess.
[50] However, a modest discount is still appropriate to recognise Mr Waipouri’s upbringing and consequent post-traumatic stress disorder. The material available to the Court includes Mr Waipouri’s affidavit filed in the civil proceeding against the Department of Social Welfare for the harm he experienced while a ward of the state in the care of that department. The affidavit and the copy of a letter from his solicitor in the civil proceeding to the Crown Law office sets out the alleged abuse he suffered. If true it goes some way to explain why Mr Waipouri has shown little respect to date for the law and why he has chosen to use drugs to relieve his memories of what were plainly painful experiences.
[51] I have considered a case cited by Ms Scally, R v Jenkins, where a 15 per cent discount was awarded to reflect the defendant’s traumatic childhood, the abuse he suffered, his use of drugs and alcohol to deal with the trauma and the resulting depressive, personality and post-traumatic stress disorders. These experiences are similar to those experienced by Mr Waipouri. However, in Jenkins there was a psychiatric report to assist the Court.23
[52] In the circumstances, I consider that a 12 per cent discount is appropriate in this case. Given the lack of expert evidence, I consider that discount must be at the low end of the range of discounts for this factor.
Remorse and other discounts
[53] I have read the letter that Mr Waipouri wrote in the District Court. It indicates some remorse. I accept that the pre-sentence report was not overly positive but it seems to me that the Judge placed undue weight on certain comments made in that report. Whilst that report assessed Mr Waipouri’s motivation to change as low, I consider that his motivation is evident in his letter and the CADS report that
recorded Mr Waipouri’s good insight into his post traumatic symptoms and commended him for “his resilience and maintained efforts for personal change, including his efforts towards AOD abstinence”.24 Some recognition is deserved.
[54] Lastly, the Judge indicated that credit would be given for programmes undertaken in custody but no discount was ultimately given. The Crown accepts that a discount recognising rehabilitation progress is appropriate.
[55] I consider that a five per cent discount is appropriate to recognise Mr Waipouri’s remorse, his willingness to engage in restorative justice and the programmes that he had undertaken in custody in order to rehabilitate himself.
[56] I see no need to interfere with the discount that was adopted by the sentencing Judge for the guilty plea. The end sentence, after a 15 per cent guilty plea discount comes to three years and six months. This shows the original sentence by comparison to be one that is manifestly excessive.
Is a MPI required?
[57] Section 86 of the Sentencing Act provides:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender. (3) [Repealed]
(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a) two-thirds of the full term of the sentence; or
(b) 10 years.
(5) For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under this section is a sentence.
[58] The Judge placed reliance on R v Frost, where the Court of Appeal said:25
As far as the minimum period is concerned, we agree with both sentencing Judges that protection of the public is one of the most material matters to be weighed in sentencing recidivist burglars …They are people who do not shrink from invading premises belonging to others and stealing their property. They reoffend almost immediately on release from similar previous offending. Imposition of a minimum period of imprisonment is thus indicated in many such cases to denounce such offending and provide some protection to the community from their depredations.
[59] Mr Waipouri has a long criminal history dating back to 1982. He has 37 prior convictions for burglary. I accept that between 1983 and 1987, he was a recidivist burglar. Then again between 1994 and 1999, there were more convictions for burglary. In 2000, Mr Waipouri was convicted of two charges of wounding with intent to cause grievous bodily harm. He was sentenced to 13 years’ imprisonment. It seems that in 2009, he was released and then in 2010, he was convicted for burglary and sentenced to one year imprisonment. After release, Mr Waipouri then committed the current set of offending in mid 2013.
[60] Given this conviction history, it was open to the Judge to take the view that a
50 per cent MPI was required to deter Mr Waipouri and to protect the public. However, the other errors in the sentence require me to consider the sentence afresh. This includes whether an MPI should be imposed.
[61] In my view, a MPI is not necessary to protect the community. I agree with Ms Scally’s submission that sensibly dealing with the post traumatic stress disorder is the best means of long-term public protection. The parole board must be satisfied that Mr Waipouri will not pose an undue risk to the safety of the community before releasing him on parole.26 Without further treatment, it is unlikely that the board will come to that conclusion when Mr Waipouri has served one-third of his sentence. Section 28(1AA) of the Parole Act 2002 states that the board must bear in mind that the offender has no entitlement to be released on parole.
[62] Moreover, here the sentence even after adjustment on appeal is a stern sentence. This is the result of the starting point being on the high side. I am satisfied that an MPI is unwarranted.
Result
[63] The sentence imposed by the District Court Judge is manifestly excessive. The appeal is allowed. The sentence of four years, three months’ imprisonment is set aside. In its place I impose a sentence of three years, six months for all offences save for the two charges of theft on which Mr Waipouri was convicted and discharged.
6