Zafar v Police

[2014] NZHC 3084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-249
CRI-2014-404-282
CRI-2014-404-284

CRI-2014-404-283 [2014] NZHC 3084

BETWEEN

AHMAD ZAFAR

LENEUOTI AUVA'A JUNIOR KALOLO TANE EGGLESTONE Appellants

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2014
Appearances:	M Pecotic for Zafar and Kalolo J Mackey for Auva'a M Hislop for Egglestone R Thomson for Respondent
Judgment:	4 December 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Thursday 4 December 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

M Pecotic, Barrister, Auckland

J Mackey, Barrister, Auckland
M Hislop, Barrister, Auckland

R Thomson, Meredith Connell, Auckland

ZAFAR, AUVA'A, KALOLO, EGGLESTONE v NEW ZEALAND POLICE [2014] NZHC 3084 [4 December

2014]

[1]      In  June  2013  the  four  appellants  (Messrs  Zafar,  Kalolo,  Auva’a  and Eggleston) along with others, broke into a house in Mt Roskill. Their object in doing so  was  to  retrieve  a  King  Cobras’ gang  patch,  and  to  “tax”  the  occupants  for (allegedly) dealing in drugs using the King Cobras’ name.  The patch, some rings, and two televisions were taken.   The majority of the occupants fled the property before  the  break-in  occurred,  but  one  remained  and  was  roughed  up  by  the appellants’ associates.

[2]      Although the appellants each originally faced an aggravated robbery charge the  charge  was  subsequently reduced  to  one  of  burglary and  guilty pleas  were entered.   The final sentences imposed by the learned District Court Judge ranged from 3 years 5 months’ imprisonment to 2 years 5 months’ imprisonment.1

[3]      Each now appeals his sentence on the grounds that it is manifestly excessive.

Background

[4]      Mr Zafar was a prospect for the King Cobra gang.   On 27 June 2013 he observed a man outside the Mt Roskill address wearing a King Cobra shirt.   He subsequently established that this man was not a member of the King Cobra gang.

[5]      On 30 June 2013, Mr Zafar and other of the appellants met to discuss the use of a King Cobra shirt by a non-member.   It was agreed that they would go to the address retrieve the shirt and ‘tax’ the occupants, whom they believed to be drug dealers.2

[6]      At  approximately  5.40  pm  the  appellants  arrived  at  the  address  and approached a number of the occupants who were outside.  Those occupants fled the

address, fearing for their safety.  Mr Auva’a chased one of them.

1      Police v Kalolo & Ors DC Auckland CRI-2013-044-007378, 17 July 2014; Police v Auva’a DC Auckland CRI-2013-044-007378, 25 July 2014.

2      “Taxing” is a term used to describe the demanding of payment of fictitious debts in order to impose control over others.

[7]      Mr  Zafar  punched  the  glass  window  of  the  front  door,  smashing  it  and allowing him to reach through and open the door.   At that time another of the occupants was in his room inside the house.

[8]      Unknown associates of the appellants forcefully entered the room where the remaining occupant was and demanded to know where the tinnies were.  A struggle followed and the victim suffered soft tissue injuries.  The injuries were not inflicted by any of the present appellants and the occupant was left alone after Mr Zafar said that he was not the one he had seen wearing the patch.  Four rings were taken from him at the instigation of Mr Kalolo, although it seems Mr Kalolo was not in the room when this occurred.

[9]      After a search of the house the King Cobra shirt was found and taken by Mr Eggleston.  Television sets were removed, and placed in a car driven by Mr Zafar. Another television was placed outside.

[10]     The Police arrived soon after and located the  appellants still outside the address. When spoken to by Police:

(a)      Mr  Kalolo  admitted  to  going  to  the  address  to  interrogate  the occupants about where the gang colours had come from.   He stated they were going to clean the whole house out and sell the property off.

(b)Mr Zafar admitted going to the address and entering it to look for the patch.

(c)      Mr Eggleston, Mr Tyson Tumai-Totorewa and Mr Jashua Tumai- Totorewa admitted going to the address and entering it to look for the patch but denied involvement in the violence.

(d)Mr Auva’a admitted to going to the address to tax some people and to having chased one of the occupants who had fled from the address.

[11]     The appellants were initially charged with aggravated robbery, presumably by virtue of their number.  It is accepted that they pleaded guilty as soon as practicable

following the reduction of the charge to one of burglary.3     Although sentencing indications had earlier been sought, none were given.

District Court Decision

[12]     In sentencing the appellants Judge Dawson noted the following aggravating features of their offending:

(a)       actual violence by their associates;

(b)unlawful entry into a dwelling house and deliberate confrontation with the occupants;

(c)       broken window to obtain entry;

(d)      vulnerability of the victim due to his facing multiple offenders; and

(e)       the high level of premeditation.

[13]     The  Judge  held  that  a  starting  point  of  4  years  was  appropriate  for  the principal offenders, identified as Messrs Zafar, Kalolo and Auva’a.

[14]     Mr Kalolo was given a 3 month uplift to reflect previous offending and a 20 per cent discount for his guilty plea, resulting in a final sentence of 3 years 5 months.

[15]     Mr Zafar was given a two month discount to reflect remorse and family support and a 20 per cent guilty plea discount resulting in an end sentence of 3 years.

[16]     Mr Auva’a received a 20 per cent discount for his guilty plea and an end sentence of 3 years and 5 months

3      I record in passing that the appellants’ must have been some of the first offenders to have been

dealt with under the Criminal Procedure Act 2011; their first appearance in Court was on 1 July
2013.

[17]     A starting point of 3 years was taken for Mr Eggleston to reflect the less serious nature of his role.  He was given no discounts or uplifts other than 20 per cent for his guilty plea. Thus he was sentenced to 2 years 5 months’ imprisonment.4

[18]     For Mr Tyson Tumai-Totorewa and Mr Jashua Tumai-Totorewa the Judge adopted a starting point of 12 months but ultimately (after taking into account their youth, previous good records and contribution to the community) discharged them without conviction.  Unsurprisingly, they do not appeal that decision.

The focus of the appeals

[19] Although some of the appellants contended that Judge Dawson inappropriately took account (or failed to take account) of various personal matters, that ground of appeal is, in my view, hopeless. In my judgment the appellants’ personal circumstances were (to the extent they were known) carefully considered by the Judge and appropriate allowances were made for them. I nonetheless briefly discuss this issue further, at [41] below.

[20]     The  principal  focus  of  the  arguments  before  me  was  simply  that  by comparison with other sentences imposed in other burglary cases the starting points adopted by the Judge were clearly excessive.   No specific error of approach or analysis was relied upon.  It was also submitted that there was a parity problem as between the appellants and their two co-offenders who were discharged without conviction.

[21]     I note that one of the appellants, Mr Auva’a, also contends that the Judge was

under a misapprehension as to his involvement in the offending.

Relevant Law

[22]     There is no tariff case for burglary because the range of circumstances in which the offence can be committed is so varied.5   That fact is further complicated in

a case such as the present where the original charge has been modified (reduced) and

4      He  was  convicted  and  sentenced  on  a  charge  of  driving  whilst  disqualified  resulting  in disqualification and a sentence of one month imprisonment to be served concurrently.

5      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

alterations made to the summary of facts to reflect that.   I accept as a general proposition that the resulting (and possibly somewhat sanitised) facts do not lend themselves easily to an orthodox burglary sentencing analysis.

[23]     In  particular,  the  Senior  line  of  sentencing  decisions,  which  focuses principally on recidivism, is in my view of no assistance here.6   Notwithstanding Mr Hislop’s focus on them (his submission being that because his client was not a recidivist burglar his offending was at the lowest end of the Senior scale) I do not propose to consider those cases further.

[24]     Because the focus of the appeal nonetheless remained on relativity between the starting points adopted by Judge Dawson and those adopted in other burglary cases, it is necessary to refer to those which I regard as either analogous or in some other way instructive.

[25]     In McRae v R three people broke into a garage and stole goods amounting to

$800-$1500, and seriously assaulted the homeowner who interrupted the burglary.7

In that case a starting point of 3 years and 8 months was upheld by the Court of Appeal in relation to the oldest of the offenders who had not himself committed the violence.    Importantly,  the  Court  considered  that  the  violence  by  Mr  McRae’s juvenile co-offender could not have been foreseen by Mr McRae.

[26]     In Dixon v Police, D and a co-offender broke into a house and severely assaulted the occupant.8   Their motive was said to be retribution for wrongs done by a friend of D and his girlfriend (who was also his co-offender).  In that case a starting point of 2½ years was adopted.  On appeal, however, Lang J referred to this starting point as “generous”.

[27]     Arahanga v R involved two burglaries of dwelling houses committed in the early hours of the morning by two offenders.9   On one of these occasions the victims

were asleep and the presence of two burglars was regarded as heightening the risk of

6      Senior v Police (2000) 18 CRNZ 340.

7      McRae v R [2013] NZCA 75.

8      Dixon v Police HC Tauranga CRI-2011-470-24, 5 October 2011.

9      Arahanga v R, above n 5, at [79].

confrontation.  A car and other high value items were taken.   Notwithstanding the Court of Appeal’s finding that the sentencing Judge had been wrong to take into account the presence of a weapon as an aggravating feature the Court considered the four year starting point was appropriate.10

[28]     In reaching that conclusion the Court also referred to its earlier decision in

Skipper v R.11  As outlined in Arahanga, in Skipper:12

… the appellant was convicted of two counts of burglary. The appellant and his co-offender had burgled two flats in the early hours of the morning. During the burglary of the second flat, the appellant’s co-offender had assaulted the occupant with a wooden baton. Initially, the appellant had been charged with one count of aggravated burglary, but this was reduced to burglary simpliciter at the conclusion of the Crown case. This Court held that the four years and six months starting point adopted by the sentencing judge was perhaps too high, but that the end sentence of four years was within range. The Court said that the presence of actual violence was a highly significant aggravating feature of the offending, as it facilitated the offending.

[29]     The Court in Arahanga then went on to say at [82]:

While the present offending did not involve the use of actual violence, the risk of danger to or confrontation with others was high. The risk of violence throughout the burglaries was demonstrated by the brazen behaviour of the appellants, both in returning to the second bach and issuing threats to the occupants (which also would have exacerbated the harm to the occupants), and by their violent behaviour upon arrest. Thus while the appellants had been charged with burglary simpliciter, not aggravated burglary, the risk of violence remained highly relevant as an aggravating feature of the offending. We consider that the starting point of four years adopted by Judge Wade was an appropriate one for this offending and we adopt it also.

[30]     Another case involving an appeal against a sentence for burglary where a more serious charge had initially been laid was R v Te Hira.13   The Court of Appeal described the facts and background to that case as follows:

Mr Te Hira, along with four others, one of whom was carrying a knife, entered a dwelling-house occupied by three elderly women and a middle aged man. The offenders demanded to know where the drugs were and carried out a systematic search of the house. Drugs were not found but other property, including cash, telephones, a watch, a mountain bike and the male

10     The presence of a knife was disputed and had not been proved by the Crown.

11     Skipper v R [2011] NZCA 250.

12     Arahanga , above n 5, at [81].

13     R v Te Hira CA 73/02, 18 June 2002, at [1].

victim’s car, were taken. Mr Te Hira admitted his involvement and was subsequently found guilty by a District Court jury on one charge of aggravated burglary. Mr Te Hira appealed on the grounds that he did not know that someone would be carrying a knife, that weapon being the aggravating feature of the burglary. The conviction was quashed  by the Court of Appeal which ordered a new trial: see R v Mokaraka [2002] 1

NZLR 793. Mr Te Hira then pleaded guilty to a charge of burglary, and was sentenced to five years imprisonment. He has appealed against this sentence on the grounds that it is manifestly excessive and, in particular,

the Judge failed to give a sufficient discount for his guilty plea and placed too much weight on the aggravating features of the case.

[31]     The  sentencing  judge  had  found  that  the  aggravating  features  were  the planning, the prospect of confrontation of and danger to the people, and the violence used to ensure that the intentions of the offenders were carried out.  In addition the co-offenders intimidated, and stole property.  Mr Te Hira’s previous convictions were limited, and were regarded as less serious than the burglary charge.   The Judge accepted Mr Te Hira was not the principal offender and that he had not used any violence. A 6 year starting point was reduced to 5 years’ for mitigating factors.

[32]     The Court upheld the sentence.  It is worth setting out the Court of Appeal’s

(brief) reasoning in full:

[8]       When this Court considered Mr Te Hira’s appeal at the same time as it considered Mr Mokaraka’s appeal against sentence, it noted that it would be difficult to argue that Mr Te Hira did not enter voluntarily, did not know that the entry was without the express or implied consent of the occupiers, and did not have the intent of stealing drugs once in there. Mr Te Hira entered the house through the window and opened the door so other co- offenders could enter. The Court noted it would scarcely have been realistic to suggest that Mr Te Hira was anything other than a willing participant in a planned robbery. It was also the Court’s then view that with or without a weapon, an offence involving the entry of five men into a house at night, through a combination of deception and force, for the purpose of stealing once inside, could not have been anything other than a serious offence. On conviction, it would be likely to attract a substantial term of imprisonment.

[9]       Mr  Mokaraka  was  subject  to  a  maximum  term  of  19  years imprisonment because his offence was one of home invasion. The Court did note that in the peculiar circumstances of this case there was little distinction to be drawn between aggravated burglary and aggravated robbery for sentencing purposes. The intended crime was aggravated robbery. The sentencing Judge was correct in applying the decision of this Court in R v Mako [2000] 2 NZLR 170. This Court dismissed Mr Mokaraka's appeal against a sentence of 10 years for his involvement.

[10]      This was a serious offence. The aggravating features identified by

Mr Raftery were present. There were five intruders who entered a private

house at night, knowing it was occupied. They intended to steal drugs and must have anticipated a confrontation with the occupants of the house, if not the need to use violence to achieve their objective of obtaining the drugs. They persisted in their plan to rob, even after it became apparent that there were no drugs in the house and that three of the four occupants were elderly women. The female occupants were menaced and violence was applied to the male occupant who was beaten and suffered injury. All four occupants have  since  moved  from the  home  they loved  and have  suffered serious psychological effects. Property was stolen. Of course many of these features cannot fairly be attributed to the appellant in view of the lesser offence of which he now stands convicted. But he committed the burglary with a jointly held  intent  to  rob  whoever  the  inhabitants  were,  and  some  measure  of violence and willingness to employ it must have been anticipated by all four of the offenders.

[11]      We are of the view that an appropriate starting point of six years, after taking into account the aggravating features, is a stern sentence but cannot be said to be manifestly excessive. This was in effect an aggravated robbery. Mr Te Hira may have had a lesser role than Mr Mokaraka, but a sentence of one half of Mr Mokaraka's sentence does not infringe parity considerations, even allowing for Mr Te Hira's guilty plea.

[33]     I agree with Ms Thompson that Te Hira shares a number of features with the present cases.   In light of that decision it is very difficult to say that the starting points imposed here were not within the available range (which may, I accept, be wide).     The  other  decisions  canvassed  above  only  serve  to  emphasise  that conclusion.

[34]     It seems to me that the critical and most aggravating feature of the appellants’ offending was that which was expressed by Judge Dawson (when sentencing Mr Avua’a) in the following way:14

In most burglary cases the burglars seek or prefer to avoid confrontation with the occupants of the house because their principal purpose is to steal items, but this case is different. You and your associates wanted to confront the occupants and you wanted to frighten and to intimidate them. Your purpose was to impose your illegal gang law upon persons in the community. This significantly raises the gravity of your offending to a higher level which must be reflected in the starting point adopted for your sentencing.

[35]     When viewed through that lens there is, in my view, little to distinguish between the four appellants.   Mr Eggleston is thus perhaps fortunate not to have received a higher sentence.  Mr Zafar may also be fortunate in not receiving a higher

sentence given that he appears to have been the instigator of the whole unpleasant

14     R v Auva’a, above n 1.

plan.  In my view the practice of “taxing” by gangs or those associated with them is particularly pernicious and warrants a strongly deterrent sentencing message.  I also reject entirely the submission that the seriousness of the offending was in any way mitigated by the fact that the occupants of the Mt Roskill house “provoked” the appellants’ to act as they did or that they themselves may (but may not) have been engaged in criminal activity.

[36]     I have carefully considered Mr Mackie’s submission that Mr Auva’a was less

culpable than the others because:

(a)       He was not a member of the King Cobra gang;

(b)He was only involved because he had been in a car with a friend who received a text from Mr Zafar saying that he needed help.  Although he then drove with his friend to meet Mr Zafar in the city and then to Mr Falolo’s house he was not part of the planning process; and

(c)       He had not gone inside the house.

[37]     Mr Auva’a deposed to these matters in an affidavit that was before Judge Dawson but not expressly referred to by him.  Notably, in his affidavit Mr Auva’a also said:

I thought the reason why so many of us went over there was just in case the people at the house had guns.  People like that are really unpredictable.

[38]     He also admits to understanding that the purpose of the trip to Mt Roskill was to get the patch back and that the occupants of the house would be “taxed”.  Thus he knew in advance that:

(a)       the undertaking was gang-related and its purpose was “taxing”;

(b)that  there  would  be  a  lot  of  people  involved,  a  high  risk  of confrontation and a risk of serious violence.

[39]     So regardless of whether or not Judge Dawson regarded Mr Auva’a as being in some way associated with the King Cobras (and Mr Auva’a does not in fact say he had no connection with the gang) he was a knowing (and not unwilling) participant in events that, as I have said, had a particularly pernicious intent and which could have gone very badly wrong.  Moreover, Mr Auva’a does not explain why he chased one of the occupants of the house when he ran away; it seems highly unlikely that any good would have come of it had he in fact managed to catch him.

[40]     Nor do I accept that there is any other real parity issue here.  The appellants’ two co-offenders had a significantly more minor role in the offending.  They were not involved in the planning and they did not go inside the house.  They were little more than bystanders who had been taken along to boost numbers.

[41]     As I have said, the submissions made about the Judge’s alleged failure to give appropriate weight to various personal matters are without merit.  Although I accept (for example) that some judges might not have uplifted Mr Zafar’s starting point by three months for his very historic (but serious) previous offending, to allow that aspect  of  the  appeal  would  be  to  ride  roughshod  over  judicial  discretion  in sentencing matters and the threshold for upsetting a sentence on appeal.  Moreover, the fact that Judge Dawson did impose that uplift could (for example) easily be counterbalanced by the fact that he allowed Mr Zafar (and each of the other appellants) a full 20 per cent discount for their guilty pleas.  In light of the Supreme Court’s comments at [62] of Hessell v R the Crown might well have successfully

contended that some lesser discount was warranted.15

[42]     For the reasons I have given none of the sentences imposed by Judge Dawson can be said to be manifestly excessive. The appeals are dismissed accordingly.

Rebecca Ellis J

15     Hessell v R [2011] NZLR 607 (SC).