Wipa v R
[2018] NZCA 219
•27 June 2018 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA323/2017 [2018] NZCA 219 |
| BETWEEN | TANE WIPA |
| AND | THE QUEEN |
| Hearing: | 9 May 2018 |
Court: | French, Miller and Williams JJ |
Counsel: | D S Niven for Appellant |
Judgment: | 27 June 2018 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe appellant is sentenced to four years and nine months imprisonment.
CIndication that, but for s 86C of the Sentencing Act 2002, the Court would have confirmed a minimum period of imprisonment of two-thirds of the appellant’s sentence.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Mr Wipa was found guilty at trial of the aggravated robbery of an Auckland dairy. The Crown case was that his two accomplices, both youths, robbed the dairy while he, the adult leader, stood lookout outside. The case against him rested on CCTV footage. Mr Wipa challenged his identification and argued that the footage did not establish participation or guilty knowledge of what was happening in the dairy. He elected not to give evidence.
The sentence was five years and three months imprisonment, a term which included a nine-month uplift for, among other things, previous relevant offending.[1] One of those previous offences was a robbery, a first-strike offence.[2] The aggravated robbery was a second‑strike offence. Accordingly, Judge Gibson was required to, and did, order under s 86C(4) of the Sentencing Act 2002 that Mr Wipa serve the full term without parole.[3]
[1]R v Wipa [2017] NZDC 10679 at [14].
[2]Sentencing Act 2002, s 86A, definition of “serious violent offence”.
[3]R v Wipa, above n 1, at [18].
This appeal is brought against sentence only. It is said that a different sentence would have resulted had the defence been run differently, or had Mr Wipa pleaded guilty. He attributes the sentence he actually received to counsel error. For reasons which we can state quite shortly, we do not accept that his trial counsel, Ms Ives, erred.
When sentencing an offender on a second-strike offence the court must also order that the offender serve the full term, meaning that the offender may not be admitted to parole on a long-term sentence or granted early release on a short-term one.[4] The appeal requires that we decide whether the court may also increase the sentence for previous convictions that include the first-strike offence. This Court was not required to decide this point in its recent substantive decisions on second-strike sentencing, Barnes and Paerau,[5] although the Court in the latter case expressed the view that an uplift for a first strike offence contained an element of “double counting”,[6] and there is some conflict in High Court decisions.[7]
Relevant facts
[4]Sentencing Act 2002, s 86C(4).
[5]Barnes v R [2018] NZCA 42; and Paerau v R [2018] NZCA 139. The Court also briefly considered the issue in Dibben v R [2018] NZCA 134 but did not have the benefit of full argument on the issue, and we say no more about it.
[6]Paerau v R, above n 5, at [43].
[7]R v Wereta [2014] NZHC 2555; and Palalagi v Police [2015] NZHC 1832. In Barnes v R, above n 4, at [63]–[64] and [77], this Court held that Palalagi was wrongly decided insofar as it held that parole is not a relevant consideration in second strike sentencing, but there was no uplift to contend with and the Court did not consider whether an uplift would amount to double counting.
Mr Wipa admits that he initially instructed Ms Ives that he was not at the scene of the robbery. He also knew that aggravated robbery was a second‑strike offence, and he acknowledged before us that he wished to avoid conviction on that charge if possible.
He changed instructions when the CCTV footage from the dairy was disclosed, telling counsel that he was passing and picked up cigarettes thrown onto the street. On this basis Ms Ives sought unsuccessfully to negotiate a plea to theft.
Much later, the police disclosed footage of Mr Wipa with the co-offenders in a nearby McDonalds. The footage showed what appeared to be a drug transaction some minutes before the robbery. The Crown was also able to show the two youths apparently trailing Mr Wipa as he walked up Queen Street in the direction of the dairy.
However, Mr Wipa’s instructions at the time of trial remained as we have set out above. The substance was that he was guilty of an opportunistic theft but had nothing to do with the robbery.
Mr Wipa and Ms Ives agree that she advised he had a reasonable defence founded on identification. She succeeded in having ruled inadmissible the evidence of a police officer who knew Mr Wipa and would have identified him from the CCTV footage.[8]
[8]R v Wipa DC Auckland CRI-2016-004-6338, 9 March 2017.
However, in evidence before us Mr Wipa maintained that Ms Ives overstated the prospects for his defence and strongly advised him not to give evidence. He now says that he wanted to give evidence and would have been prepared to plead guilty to aggravated robbery. He accepts that at trial he gave Ms Ives signed instructions that he would not give evidence but contends that because of its effect on the choice of defence the decision had to be made pre-trial.
We do not accept this evidence. Rather, we prefer Ms Ives’s evidence that there was no difference of opinion about the defence and Mr Wipa did not say he wanted to give evidence. He is not a stranger to the court system, and he understood that to give evidence was to put all his eggs in the participation basket, ruling out a viable identification defence. The participation defence carried significant risk in that the inference was clearly available that the robbery was planned by the three at McDonalds. As noted, Mr Wipa signed instructions stating that he did not wish to give evidence.
That being so, this is a case in which an appellant regrets a tactical decision made at trial. No miscarriage of justice has resulted.[9] Nor did Mr Wipa instruct counsel that he wanted to plead guilty to the aggravated robbery. He knew it was a second‑strike offence, and a guilty plea would have been incompatible with his instructions about his non-participation.
Implications for the sentence appeal
[9]R v Sungsuwan [2005] NZSC 37, [2006] 1 NZLR 730 at [65]–[67]; and R v Scurrah CA159/06, 7 August 2006 at [17]–[18].
As noted, this is a sentence appeal only.[10] It proceeds on the basis, accordingly, that Mr Wipa was rightly convicted of aggravated robbery. Mr Wipa maintains that he would have been better off had he pleaded guilty because he could then have put his account before the judge in a disputed facts hearing.
[10]In Singh v R [2017] NZCA 398 at [3] this Court held that a sentence appeal may be brought for counsel error.
We accept that on a guilty plea Mr Wipa would have been able to seek a disputed facts hearing if aggravating facts were disputed in some material way. He might also have given evidence at such a hearing after trial, if the Crown had taken the unusual step of asking the judge to rely on material aggravating facts not proved at trial.
However, the obvious difficulty is that a sentencing judge must take as proved all facts essential to the charge, and those facts may compel inferences about knowledge. Judge Gibson inevitably found that Mr Wipa knew that violence would likely be used because that violence was the natural consequence of the complainant’s protests when his co-offenders robbed the dairy.[11] We agree. Mr Wipa could not have been heard to advance his claims that he knew and did nothing culpable except steal some cigarettes.
[11]R v Wipa, above n 1, at [10].
This leaves very little room to complain about the facts relied upon at sentencing. Any difference in outcome would have to result from the view taken of the facts by the sentencing judge after trial. We accept that after trial a judge may take as proved any aggravating facts given in evidence and consistent with the jury verdict, while at a sentencing hearing the Crown would have to prove any disputed aggravating fact, and in practice the Crown is unlikely at such a hearing to call all the evidence it would lead at trial. But Mr Niven could point to no fact that Judge Gibson relied upon and which was not necessarily implicit in a guilty plea.
Had he pleaded guilty Mr Wipa certainly would have been better off in that he would have received a discount for his plea, though it would have been reduced had a disputed facts hearing been held. But that possibility would arise here only if we accepted that his election to go to trial was attributable to counsel error, such that he ought to receive credit on appeal for a notional guilty plea. Our finding that there was no counsel error precludes any such allowance.
The appeal must fail insofar as it rests on counsel error. That leaves only the uplift for prior offending.
The uplift
Mr Wipa, who is now 31, was raised in Australia and had a significant criminal history there before he was deported to this country in 2012. His record since then contains some 15 offences. Three of the prior offences are for offences of violence. At the time of this offence, he was still subject to release conditions pursuant to his previous sentence of imprisonment.
Judge Gibson imposed a nine-month uplift, as noted above. He said:
[13] The Crown also seeks an uplift for your previous history both in New Zealand and in Australia as well as the fact that you offended while under sentence you having shortly been released from prison before this offence took place. You are in fact a habitual criminal and have been since a young age, both in Australia and, as your record shows, now in New Zealand. Your previous convictions in both countries are obviously relevant in terms of uplift purposes.
[14] Overall and taking into account the fact that the uplift has to include a small degree of uplift for offending while still under sentence, as you were subject to release conditions, having been released from prison shortly before the offence, the uplift will be nine months’ imprisonment so that your effective sentence is five years and three months’ imprisonment.
The Judge recorded that, following Palalagi v Police,[12] he could not adjust the uplift for the fact that this was a second-strike sentence:[13]
[15] Your counsel has sought not to have any uplift imposed on you because you are subject to the three strikes legislation and she has responsibly drawn my attention to two competing decisions in that respect. The first R v Wereta was a case where counsel argued that an uplift ought not to be imposed for previous convictions because it would amount to double counting as it was the fact of the previous convictions that led to the second‑strike warning. As Her Honour Justice Courtney noted that submission had not been raised in previous cases but she accepted it.
[16] However, a more detailed analysis of the legislation and of the effect of previous convictions in terms of an uplift was undertaken by Justice Moore in Palalagi v Police in which he examined the intent of the legislation and confirmed the existing approach that parole issues ought not to concern Judges on sentencing, and that there was nothing in the legislation to suggest that non‑eligibility for parole under s 86C was intended to affect the calculation and determination of sentence length and so he did not agree that an uplift for previous convictions could amount to double counting.
[17] That is the decision I prefer to follow. There is a detailed analysis of the relevant legislation in Palalagi and it seems to me to approach the matter in any other way would seem to undermine Parliament’s intention in enacting the three strikes legislation given that it did not incorporate any amendments to the Sentencing Act 2002 to suggest that uplifts for previous convictions should not be taken into account where the offender was subject to the legislation.
[12]Palalagi v Police, above n 7.
[13]R v Wipa, above n 1 (footnotes omitted).
Judge Gibson added that but for the second strike he would have imposed a minimum period of two-thirds of the sentence for deterrence and denunciation purposes.[14]
The appeal
[14]Section 86C(6) of the Sentencing Act provides that where the court would have ordered that the offender serve an increased minimum period it must state that period and give reasons.
Mr Niven took two points about the uplift. The first, which we accept, is that Judge Gibson misdirected himself in law by holding that he could not take the second‑strike regime into account. In Barnes, which was decided after Mr Wipa’s sentencing, this Court overruled Palalagi in this respect, holding that a sentencing judge is not precluded in law from considering the parole consequences when fixing a second‑strike sentence.[15]
[15]Barnes v R, above n 5, at [77]–[79].
The second is that such an uplift may, and in this case did, amount to double counting. This is a question of sentencing principle, as we indicated at the outset. To answer the question whether an uplift involves double counting when associated with inadmissibility to parole we must examine the rationales for both the uplift and the second‑strike consequence.
The Sentencing Act treats previous convictions as an aggravating factor that must be taken into account to the extent that they are “applicable in the case”.[16] The court must consider the “number, seriousness, date, relevance, and nature” of the offender’s past convictions.[17] They are normally taken into account by fixing an uplift on the starting point appropriate for the offending.[18]
[16]Sentencing Act, s 9(1).
[17]Section 9(1)(j).
[18]R v Taueki [2005] 3 NZLR 372 (CA) at [8]; and R v Mako [2000] 2 NZLR 170 (CA) at [34].
Three points are not controversial: a sentence ought to be based primarily on the facts of the offence for which the offender is being sentenced;[19] any uplift must be kept in proportion;[20] and the sentence must not be increased merely because of a previous conviction, for that would be to increase the sentence imposed on the previous occasion.[21] But although uplifts for recidivism are near-ubiquitous in western jurisdictions, the professional and academic literature struggles to account for them.[22] Explanations divide broadly into two: progressive loss of mitigation and recidivist premium. The progressive loss of mitigation account holds that a first offender gets a discount from the appropriate sentence for the offence and the discount is gradually removed for subsequent offences.[23]
[19]R v Power [1973] 2 NZLR 617 (CA) at 618.
[20]R v Ward [1976] 1 NZLR 588 (CA) at 590–591; and Tiplady-Koroheke v R [2012] NZCA 477 at [24].
[21]The King v Casey [1931] NZLR 594 (CA) at 597.
[22]For a general discussion of the subject see Julian V Roberts and Andrew von Hirsch (ed) Previous Convictions at Sentencing: Theoretical and Applied Perspectives (Hart Publishing, Oxford, 2014); and Andrew Ashworth Sentencing and Criminal Justice (6th ed, Cambridge University Press, Cambridge, 2015) at 207–216.
[23]It is well articulated in the judgment of Deane J in Veen v The Queen [No 2] (1988) 164 CLR 465 at 491. See also Ashworth, above n 23, at 211–214.
The recidivist premium account holds that a recidivist is more culpable or more likely to reoffend, and so merits a sterner sentence. A range of explanations has been advanced for increased culpability: the offender failed to reform after the previous sentence; the offender reoffended after having been put on notice of the consequences; and the offender failed to exhibit the co-operation upon which the law ultimately depends. Some emphasise conduct after the previous sentence (the failure to reform), others the decision to reoffend after having been given a formal warning.[24]
[24]Compare, for example, Youngjae Lee “Repeat Offenders and the Question of Desert” in Roberts and von Hirsch, above n 23; and Christopher Bennett “‘More to Apologise For’: Can a Basis for the Recidivist Premium Be Found within a Communicative Theory of Punishment?” in Roberts and von Hirsch, above n 23.
New Zealand courts have adopted a recidivist premium approach when fixing uplifts under the Sentencing Act. Progressive loss of mitigation would call for a structured approach in which each relevant offence attracts a specified loss of discount.[25] In practice the premium is treated as a matter of sentencing discretion and the court focuses on the offender rather than the offence. The usual justifications offered are retributive (past convictions evidence failure of past deterrence) or utilitarian (community protection is engaged because past offending is predictive of future offending) in nature. A premium has sometimes been justified for bad character as well,[26] but the better view is that an offender’s character is relevant under the Sentencing Act 2002 only to the extent that it contributed to the offending or evidences a risk of reoffending.[27]
[25]The Swedish model has been characterised as progressive loss of mitigation for more serious offences: Andrew von Hirsch “Proportionality and Progressive Loss of Mitigation: Further Reflections” in Roberts and von Hirsch, above n 23, at 14.
[26]Casey, above n 22, at 597; Ward, above n 21, at 590–591; and Beckham v R [2012] NZCA 290 at [84].
[27]Paerau, above n 6, at [44]. Sentencing Act, ss 8(a), 8(h), 8(i), 9(1)(e), 9(1)(h), 9(2)(b), 9(2)(e), 9(2)(f) and 9(2)(g).
The three-strikes regime combines both approaches.[28] It follows a sharply progressive loss of mitigation approach by prescribing that on the third strike the offender receives the maximum sentence for the offence regardless of personal circumstances. It follows a recidivist premium approach by denying parole for the second strike. Parliamentary debates and official reports identify a two-fold justification for denying parole: the offender exhibited disregard for the law by reoffending after notice of the consequences, and public safety requires that the offender be incapacitated for longer.[29] These considerations justified what the proponents recognised as a deliberately disproportionate sentence.[30]
[28]A Ministry of Justice briefing paper tabled with the Law and Order Select Committee on 23 April 2008 explains why this is so. It describes the first and second strikes as part of the National Party’s policy of denying recidivists the privilege of parole and the third strike as part of the Act Party’s three-strikes policy. See Ministry of Justice “Sentencing and Parole Reform Bill — Initial Briefing” (April 2009) at [2].
[29]Cabinet Business Committee “No parole for worst repeat violent offenders and worst murder cases” (5 December 2008) at [9].
[30](18 May 2010) 663 NZPD 10940.
However, the legislation leaves the length and makeup of the second-strike sentence to the sentencing judge and it does not indicate that the offence should earn a longer sentence than it would otherwise do. Accordingly, the usual sentencing purposes and principles apply.[31] They emphasise the circumstances of the particular offending and the particular offender. Notably:
(a)the sentence should reflect the gravity of the offending in the particular case;[32]
(b)it should also reflect the impact on the victim;[33]
(c)the most serious offending should receive the maximum sentence, unless circumstances of the offender make that inappropriate;[34] and
(d)the outcome must be the least restrictive that is appropriate in the circumstances.[35]
The Sentencing Act’s sentencing principles also specify that similar offenders who commit similar offences should be treated consistently.[36]
[31]Barnes, above n 5, at [59]–[64]; and Paerau, above n 5, at [21]–[25].
[32]Sentencing Act, s 8(a).
[33]Section 8(f).
[34]Section 8(c).
[35]Section 8(g).
[36]Section 8(e).
Were it not for the second strike the offender would serve a minimum one-third of the sentence, or up to two-thirds if the court so ordered. The statutory criterion for an order extending the non-parole period at sentencing appears in s 86. It is that the statutory minimum is insufficient for accountability, denunciation, specific or general deterrence, or community protection.[37] These considerations are listed among the general purposes of sentencing in s 7 of the Sentencing Act, and they correspond generally to the reasons given in the legislative record for excluding parole altogether at the second strike.
[37]Section 86(2).
Put another way, an uplift for previous convictions, an order for an increased minimum period, and statutory ineligibility for parole on a second strike all serve the sentencing goals of accountability, denunciation, deterrence or community protection.
It is well established that as a matter of methodology the court sets the determinate sentence first and then follows with the minimum period, and this does not in itself result in double-counting of aggravating factors or result in the sentence being manifestly excessive.[38] Put another way, it is sentencing orthodoxy to count the same considerations at more than one point when constructing a sentence. However, the sentence may be disproportionately severe or manifestly excessive if, viewed overall, it attaches too much weight to them. That risk can be avoided in practice because all relevant sentencing principles inform both the sentence and any increase in the minimum period.[39]
[38]Taueki, above n 19, at [56]; and R v Brown [2002] 3 NZLR 670 (CA) at [36]. See also R v Walsh (2005) 21 CRNZ 946 (CA) at [25]–[27].
[39]R v Nguyen [2009] NZCA 239 at [32]–[34]; and R v Gordon [2009] NZCA 145 at [46].
Section 86C also increases the minimum period in pursuit of the above sentencing purposes, and to that extent it bears superficial similarities to an order under s 86. However, it works in a very different way. It takes the decision out of the court’s hands and excludes parole without reference to the circumstances of the offence or the offender, or the principle of like treatment.[40] It must follow that inadmissibility to parole may sometimes result in an effective sentence that is harsher than it would have been had those considerations been taken into account. Indeed, it is possible that the effective sentence may be much harsher, because the circumstances of the offence and the offender are centrally important in sentencing.
[40]Sentencing Act, s 86C(4).
This possibility could not affect the sentence calculation if the court were required to put parole considerations aside when sentencing. The court would be required to wash its hands of any resultant injustice. But as this Court explained in Barnes, the legislation does not so provide.[41] As a matter of sentencing practice courts usually set the term of a sentence without reference to parole, but this is not an inflexible rule. In pursuit of Sentencing Act objectives a court may depart from it for good reason.[42]
[41]Barnes, above n 5.
[42]At [77]–[79].
We conclude that when considering an uplift for previous convictions, or for offending while on bail or subject to sentence, the court should decide whether, having regard to the loss of parole under s 86C, an uplift is needed to achieve the sentencing purposes of denunciation, accountability, deterrence and community protection.
It remains the case that, as held in Barnes, it will be an exceptional case in which the loss of parole is otherwise taken into account when constructing a second-strike sentence.[43] As the Court explained there, the question whether the case is exceptional is answered by reference to the policy of s 86C and the register of sentencing purposes and principles. A survey of the legislative history and other sentencing considerations led a Full Court of this Court to make the same point in R v Harrison; R v Turner.[44] As the Court explained there, such cases need not be rare.[45] To say that cases must be adjudged exceptional against all the statutory criteria is not to predict that such cases will be few in number. It is to say that because they must respect the policy of s 86C judges need good reason to adjust a second-strike sentence for loss of parole.
[43]At [79].
[44]R v Harrison; R v Turner [2016] NZCA 381, [2016] 3 NZLR 602 at [67]–[71], [78], [83], [91], [96], [107], [108(d)], and [110]–[111]. The case concerned a statutory exception for manifest injustice in murder sentencing, so the jurisdiction to impose a different sentence was not in issue, in contrast to Barnes. Rather, the question was when may a court do so. That is the question we are addressing here.
[45]At [108(b)]. The Court used the phrase “rare or exceptional”, meaning that such cases need not be uncommon.
We emphasise that we are speaking here only of discrete sentences for second‑strike offences. As the Court explained in Paerau, normal sentencing principles, including s 8(g), govern non-strike offending that is being sentenced at the same time as a second-strike offence and judges should structure the effective sentence accordingly.[46]
This case
[46]Paerau, above n 5, at [31] and [42].
The end sentence of five years and three months imprisonment (for convenience, 63 months) was reached by adding an uplift of nine months to the starting point of four years and six months (54 months). The uplift of approximately 17 per cent appears to have been calculated primarily by reference to Mr Wipa’s criminal history in Australia and New Zealand, but it included a small allowance for the fact that Mr Wipa was subject to release conditions.[47]
[47]We have quoted the Judge’s sentencing remarks at [20] above.
Applying the above methodology, the starting point was appropriate. It was set by reference to R v Mako, in which this Court established guidelines for aggravated robbery that were intended to achieve deterrence and community protection.[48] The appropriate starting point for the aggravated robbery of a small shop was set at four to six years.[49] The loss of parole notwithstanding, there is nothing sufficiently exceptional about this case to warrant a lesser starting point. There were no mitigating factors.
[48]R v Mako, above n 19.
[49]At 56.
That leaves only the uplift of nine months. But for the uplift, Mr Wipa would serve 54 months under s 86C, rather than the 63 months actually imposed. As we have just explained, when considering it the Judge ought to have considered whether a minimum non-parole period of 54 months sufficiently served the purposes of denunciation, accountability, deterrence or community protection. By way of context, we have noted that had he been making an order under s 86 he would have increased the minimum non-parole period to two-thirds of the end sentence, or 36 months, which was plainly justified. Section 86C added an additional 18 months.
In our view a small uplift was indeed justified notwithstanding s 86C, to recognise that Mr Wipa was still subject to a sentence. That is a serious aggravating factor which points to a substantial reoffending risk and a corresponding need for community protection. We do not consider that an uplift was otherwise needed, having regard to the loss of parole. We would fix the uplift at three months.
It is debateable whether the difference of six months is sufficient to justify interfering with the sentence. The appellate question is whether the end sentence was manifestly excessive, not whether it was structured incorrectly. When answering it an appellate court must recognise the legislative policy behind the three strikes regime. In this case, however, we are examining and illustrating a methodology for assessing uplifts on a second-strike sentence, and it would be unfair to Mr Wipa to fail to give him the benefit of our calculation.
Result
The appeal is allowed.
The appellant is sentenced to four years and nine months imprisonment.
We indicate that, but for s 86C of the Sentencing Act, we would have confirmed the minimum period of imprisonment of two-thirds of the appellant’s sentence.
Solicitors:
Crown Law Office, Wellington for Respondent
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