TIPENE v R [2021] NZCA 565

TIPENE v R [2021] NZCA 565 [27 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA393/2020[2021] NZCA 565BETWEEN ADAM TIPENEAppellantAND THE QUEENRespondentHearing: 27 September 2021Court: Goddard, Woolford and Mander JJCounsel: H G de Groot and J A H Randerson Reid for AppellantM H Cooke for RespondentJudgment: 27 October 2021 at 11.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentences imposed in the District Court for the aggravated burglary,the aggravated assault using a motor vehicle, and the injuring a police dogcharges are quashed and substituted with cumulative sentences of threeyears and nine months' imprisonment, nine months' imprisonment andsix months' imprisonment, respectively. That results in an overalleffective sentence of five years' imprisonment.C The minimum period of imprisonment is quashed.D All other sentences imposed in the District Court remain unchanged,including the cumulative periods of disqualification from driving inrespect of the dangerous driving and failing to stop charges.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] During the course of his trial in the Whangārei District Court, Mr Tipenepleaded guilty to a range of charges relating to his aggravated burglary of a Northlandaddress. He was sentenced by Judge McDonald to five years and three months'imprisonment and ordered to serve at least 60 per cent of that term.1 He appeals hissentence on the basis the starting point for the aggravated burglary charge wasexcessive, and no allowance was afforded for mitigating factors detailed in a reportprepared pursuant to s 27 of the Sentencing Act 2002. He also argues it was notnecessary to impose a minimum period of imprisonment (MPI).Background[2] In the early hours of 22 December 2018, police received a report that a stolenvehicle was being driven dangerously. After a patrol car located this vehicle and pulledup behind it, Mr Tipene got into the vehicle and sped away. He reached speedsestimated between 120 and 140 kph and drove on the wrong side of the road. At timeshe would stop around blind corners and reverse towards the following patrol car,forcing the police to take evasive action to avoid being rammed. He threw items fromhis car, including glass bottles, in an attempt to stop the police pursuing him.[3] Mr Tipene drove up a narrow, winding country road and lost control of hisvehicle. He crashed into a fence and then took off on foot. He made his way toa residential address surrounded by bush at the end of a long driveway.After unsuccessfully attempting to start a motorcycle, he entered the house through anunlocked door. The two occupants, who were asleep upstairs, were woken by thesound of Mr Tipene in the house. When they confronted him and asked him what hewas doing, he became aggressive and demanded $50,000 from them.[4] The male occupant convinced Mr Tipene to go downstairs, and the femaleoccupant was able to call the police after hiding in a wardrobe. Once downstairs,Mr Tipene demanded the keys to a utility vehicle parked outside. He then obtained1 R v Tipene [2020] NZDC 11896 [District Court decision].a knife from the kitchen and threatened to stab the male occupant if he did not handover the keys. The occupant provided Mr Tipene with the keys to his vehicle butMr Tipene continued to demand $50,000 and, armed with the knife, followed the maleoccupant back upstairs.[5] At this point, a police dog handler arrived at the address. He announced hispresence and directed Mr Tipene to surrender himself. Mr Tipene climbed througha window onto the roof of the house. The constable moved around the sloped sectionto a position adjacent to where Mr Tipene was on the roof. He instructed him to liedown or he would release his dog. When Mr Tipene refused, the constable lifted hisdog onto the roof, whereupon Mr Tipene stabbed the animal twice in the head. He thenran across the roof and jumped onto a retaining wall, at which point the officer wasable to tackle him. Mr Tipene continued to resist. He struggled with the constableand had to be pepper-sprayed before finally being subdued when the male occupantand an off-duty officer arrived to assist.[6] The home invasion had a severe psychological impact on the female occupant.The 111 call she made, which was recorded and played at the trial, was described bythe Judge as chilling. The police dog suffered several skull fractures and underwentemergency surgery but has since recovered to return to full duties.The sentencing decision[7] After identifying the lead offence to be the aggravated burglary charge,Judge McDonald took a starting point of four and a half years' imprisonment.2In making adjustments from that starting point, the Judge took into account theprinciple of totality and the need to impose the least restrictive outcome. However,the arithmetic he applied to arrive at an end sentence of five years and three months'imprisonment is difficult to follow.3 The various figures referred to by the Judge asrepresenting either uplifts for Mr Tipene's other offending or a discount for totalitycannot be reconciled with the various adjusted starting points referred to in thesentencing decision. It is essential that the reasoning process that leads to the sentence2 At [25].3 At [53].ultimately imposed is logical and capable of being followed by the defendant, thevictims, and the public. In this case, it is not possible to understand how the decisionsmade by the Judge about the various steps in the sentencing analysis resulted in theoverall effective sentence that was imposed. It is therefore necessary for us toundertake the sentence analysis afresh.Starting point for aggravated burglaryThe argument[8] On behalf of Mr Tipene, Mr de Groot contended that a starting point of nomore than three years' imprisonment was appropriate for the aggravated burglarycharge.4 He submitted Mr Tipene's conduct was characterised by a lack of planningand premeditation and that the aggravated burglary had occurred in the context ofa "botched" escape attempt. He submitted this was to be contrasted with cases whereoffenders have targeted the occupants of addresses and disguised themselves. It wasalso emphasised that, unlike in a number of serious home invasions, Mr Tipene hadnot brought a weapon to the property and had only obtained the knife from the kitchenin an improvised attempt to obtain access to another vehicle.[9] Mr de Groot submitted that no actual violence had been directed at theoccupants and that care was required to ensure there was no doubling up of the penaltyfor brandishing the knife as an aggravating feature of the burglary when Mr Tipenefaced a separate charge of carrying a weapon. While Mr de Groot acceptedMr Tipene's offending had significantly impacted on the victims, he argued that noproperty had been taken or damage caused to the dwelling, with entry having beenobtained by way of an unlocked door.4 Crimes Act 1961, s 232(1)(b) — maximum penalty of 14 years' imprisonment.Discussion[10] It is well-established that the guideline decision for aggravated robbery,R v Mako, expresses principles that are equally applicable to aggravated burglary.5In that case, this Court relevantly stated:6[58] Forced entry to premises at night by a number of offenders seekingmoney, drugs or other property, violence against victims, where weapons arebrandished even if no serious injuries are inflicted would require a startingpoint of seven years or more. Where a private house is entered the startingpoint would be increased under the home invasion provisions to around tenyears.[11] The home invasion legislation was subsequently repealed, meaning the abovepassage must be read in light of the fact there was previously a higher maximumpenalty for an aggravated robbery or burglary that involved a home invasion.However, the unlawful entry into a dwelling place is a recognised aggravating factor.7[12] Recently, in Pearson v R, this Court reviewed a number of sentences foraggravated burglary or aggravated robbery that involved home invasions.8Those cases mainly involved multiple offenders, the use of disguises and weapons,planning and premeditation, and injuries to vulnerable victims. As a result, the startingpoints of between eight to 11 years' imprisonment identified in those decisions mustbe viewed as falling into the upper bracket of the category of cases identified in Mako.However, in another recent decision of this Court, Poi v R, which included a reviewof sentences for aggravated robbery-type home invasions, it was concluded thata starting point of at least seven years' imprisonment would be appropriate for suchoffending. Starting points for offending that involved an element of home invasiongenerally ranged between six and a half to 10 years.9[13] Mr de Groot sought to rely upon a number of decisions of this Court thatinvolved starting points of between two and a half to four and a half years'imprisonment where weapons had been taken to the scene and premeditated plans to5 R v Mako [2000] 2 NZLR 170 (CA); R v Watson CA224/03, 24 October 2003 at [27]; andR v Drewett [2007] NZCA 48 at [15].6 R v Mako, above n 5.7 Pearson v R [2020] NZCA 573 at [23]; and Sentencing Act 2002, s 9(1)(b).8 At [28].9 Poi v R [2020] NZCA 312 at [16]–[17].steal property or inflict injury had been executed in order to target particular victims.10However, Ms Cooke, on behalf of the Crown, observed that those cases did not involvea home invasion at night, and the victims were either known to the offenders (fromwhom compensation for perceived debts was being sought) or did not involvea potentially lethal weapon such as a knife. Ms Cooke pointed to other decisions ofthis Court which suggested starting points of between six and seven and a half years'imprisonment were appropriate.11Decision[14] Invariably, the circumstances of each case will differ and differentcombinations of factors will lead to different starting points across the range availableindicated for this type of offending. Whatever distinctions are sought to be madebetween the present case and other sentencing decisions, we are satisfied the corefeatures of the present offending of a home invasion by night, the brandishing ofa knife, and the violence threatened towards the occupants (who had no priorconnection with Mr Tipene) in an endeavour to extract money and obtain a getawayvehicle, fall squarely within the category of case that could attract a starting pointconsiderably greater than four and a half years' imprisonment.[15] We do not consider either the absence of a co-offender or the limitedpremeditation renders the starting point of four and a half years' imprisonmentimposed by the Judge for the aggravated burglary charge excessive. To the contrary,it could, in the circumstances, be considered generous.Uplift for balance of offending[16] In addition to the aggravated burglary charge, Mr Tipene was also for sentenceon charges of conversion of a vehicle,12 failure to stop,13 dangerous driving,1410 Norton v R [2012] NZCA 334; Te Hau v R [2013] NZCA 431; McCormack-Cameron v RHC Invercargill CRI-2007-425-42, 5 February 2008; and R v Drewett, above n 5.11 Hay v R [2015] NZCA 329, [2015] NZAR 1426; R v Edwards CA67/00, 18 April 2000; Tereorav R [2015] NZCA 120; and Stratton-Pineaha v R [2020] NZCA 50.12 Crimes Act, s 226(1) — maximum penalty of seven years' imprisonment.13 Land Transport Act 1998, s 52A(1)(a)(ii) — maximum penalty of six months' disqualification,and $10,000 fine.14 Section 35(1)(b) — maximum penalty of three months' imprisonment, or $4,500 fine, andsix months' disqualification.aggravated assault (arising from the attempt to ram the police car),15 and unlawfulinterference with a motorcycle.16 These charges all arose from Mr Tipene's initialattempt to escape before he entered the house. Mr Tipene was also sentenced oncharges of wounding a police dog,17 and resisting police.18 Because of the discretenature and seriousness of this offending, both sets of charges are required to be markedby separate uplifts.[17] Judge McDonald sought to impose such uplifts but it is not clear from hiscalculations what figures he actually arrived at for the purpose of an adjusted startingpoint. Having regard to the principle of totality, we consider Mr Tipene'sendangerment of the public and the police from his driving, including his attempt toram the police vehicle, and his wounding of the police dog justify uplifts of 12 andnine months, respectively.Discount for factors identified in the s 27 report[18] Judge McDonald declined to provide any discount for the personal factorsdisclosed in the s 27 report. The Judge did not consider there was any link betweenMr Tipene's personal background and his offending on this occasion. As the Crownresponsibly acknowledged, that conclusion is not realistically tenable in light of thedetails set out in the report. These include Mr Tipene's difficult childhood, which wasmarked by violence and deprivation, cultural disconnectedness despite stronglyidentifying as Māori, lack of schooling, early entry into the criminal justice system,and alcohol and drug dependence.[19] Mr Tipene grew up in circumstances of poverty, surrounded by a subculture ofexcessive drinking, following his parents' separation. The only source of stability wasfrom his grandmother who died when he was 10 years old. He was exposed to andexperienced physical violence from his father and, when he ended up living with hismother, he was exposed to further violence, gangs, alcohol and drugs. There was littlefood in the house and he did not attend school very often. Mr Tipene reported finishing15 Crimes Act, s 192(1)(c) — maximum penalty of three years' imprisonment.16 Section 226(2) — maximum penalty of two years' imprisonment.17 Policing Act 2008, s 53 — maximum penalty of two years' imprisonment and/or $15,000 fine.18 Summary Offences Act 1981, s 23(a) — maximum penalty of three months' imprisonment, or$2,000 fine.school at around 12 years of age, at which point he began accompanying an uncle whowould break into houses to steal food and items of value. Around this age, Mr Tipenebegan using methamphetamine. He became addicted. He recalls a change in hisbehaviour, as he became overly aggressive and started bullying others.[20] It is notable that as a young man Mr Tipene obtained work in the forestryindustry, obtained machinery certificates and maintained employment for some14 years. However, Mr Tipene remained addicted to drugs and he began getting intomore trouble when he started affiliating with gangs. His dependency onmethamphetamine resulted in further offending and increasing periods ofimprisonment for burglaries which were committed to feed his habit. It cannot betaken into account as a mitigating factor but it is notable that Mr Tipene was under theinfluence of methamphetamine on the night he offended, such is its obviousdeleterious effect on him.19[21] We consider it to be an inescapable conclusion that Mr Tipene's offending islinked to his addiction, which we do not consider can be separated from his culturalalienation and his impoverished and violent upbringing which in turn exposed him tocrime and drugs at a very early age. Mr Tipene has demonstrated that, if he can masterhis addiction, he has the ability to lead a constructive life. He has indicateda willingness to address his alcohol and drug issues, and other rehabilitative needs,including his disconnectedness from te ao Māori. The pre-sentence report records thatMr Tipene has abstained from methamphetamine for over a year. He has attendeda drug programme and is described as fully engaged with his probation officer in aneffort to "remain pro-social".[22] In Zhang v R, this Court recognised that where systemic deprivation impairsa defendant's choice it diminishes moral culpability.20 In declining to extend anycredit for the content of Mr Tipene's s 27 report, the sentencing Judge referenceda decision of the High Court that emphasised the need for some link or nexus to bemade between a person's upbringing and their offending.21 The approach taken in that19 Sentencing Act, s 9(3).20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138] and [159].21 District Court decision, above n 1, at [40], referring to R v Carr [2019] NZHC 2335.case was the subject of an appeal to this Court in Carr v R which, while acknowledgingthat the gravity of the person's offending may temper the extent of any discount formatters personal to an offender, did not consider it should exclude any allowance atall. Where there is a link of the kind recognised in Zhang, it should be recognised byan appropriate deduction.22 Indeed, in a very recent decision, this Court observed Carrshould not be interpreted as saying that discounts of more than 15 per cent are notwarranted in cases of serious offending.23[23] Discounts for systemic deprivation and disadvantaged backgrounds can rangewidely depending upon the identifiable linkage between the offender's personalcircumstances and their offending, and thus their moral culpability.24 Recent decisionsof this Court have approved discounts of some 15 per cent as being appropriate incases of serious offending in the context of a culturally alienated and marginalisedupbringing.25 In this case, we consider there is a linkage between Mr Tipene'sdependence on methamphetamine, which is rooted in his deprived traumatic childhoodand youth, which itself is a product of systemic cultural deprivation, and his offending.We consider it was an error not to recognise that linkage by making an appropriateallowance for that aspect of his personal circumstances when imposing sentence.We consider a 15 per cent deduction would have been appropriate.Guilty plea discount[24] Notwithstanding Mr Tipene having only pleaded guilty on the afternoon of thethird day of his trial, he was afforded a five per cent discount. That must be viewedas generous. The Judge would have been entitled to have declined any credit for sucha late plea, particularly when regard is had to the fact the female victim of theaggravated burglary was required to give evidence and the distress that caused her.However, for the purposes of the recalculation exercise, we do not intend to departfrom the approach taken by the sentencing Court, nor did the Crown urge us to dootherwise.22 Carr v R [2020] NZCA 357 at [65]–[66].23 Waikato-Tuhega v R [2021] NZCA 503 at [45].24 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [62]–[63].25 King v R [2020] NZCA 446 (sexual offending); Moses v R [2020] NZCA 296, [2020] 3 NZLR 583(possessing methamphetamine for supply); and Carr v R, above n 22 (aggravated robbery).Overall assessment[25] An appeal court must only allow an appeal against sentence if it is satisfiedthere is an error in the sentence. It is plain that we have found that to be the case.However, it is also necessary for us to be satisfied that a different sentence should beimposed.26 Sentencing cannot be an exact science and unless the end sentence finallyimposed is outside the range available to the sentencing judge an appeal will notsucceed.27 It is the end sentence that must be the primary focus rather than the methodby which that final sentence is calculated.28[26] Upholding the starting point of four and a half years' imprisonment for theaggravated burglary and applying an uplift of 21 months, being the combined effectof cumulative increases for the attack on the police dog and the offences committedduring the course of the dangerous driving (which included the attempt to ram thepursuing police), we arrive at a total starting point of six years and three months'imprisonment. The combined discount of 20 per cent for the factors personal toMr Tipene detailed in the s 27 report, and the belated guilty plea, results in a deductionof 15 months and a final sentence of five years' imprisonment.[27] Ordinarily, such an outcome would not warrant disturbing a sentence offive years and three months' imprisonment, and we do not overlook the Crown'ssubmission that aspects of the Judge's approach were generous to Mr Tipene.However, we consider, in the unusual circumstances of this case, which has requiredus to effectively repeat the sentencing exercise in order to provide a logical andunderstandable explanation of how the end sentence has been arrived at, we shouldgive effect to that analysis and impose the final sentence that it justifies.Minimum period of imprisonment[28] Judge McDonald considered that because of the nature of the offending an MPIrequiring Mr Tipene to serve 60 per cent of his sentence before becoming eligible forparole should be imposed.29 The Judge did not articulate the reasons for his26 Criminal Procedure Act, s 250.27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].28 At [36]; and Ripia v R [2011] NZCA 101 at [15].29 District Court decision, above n 1, at [53].conclusion, other than to note that the Crown sought such a non-parole period on thebasis the requirements of deterrence, denunciation and protection of the public wouldnot be adequately achieved if Mr Tipene was to become eligible for parole in thenormal way.30[29] Ms Cooke submitted the Judge did not err in imposing an MPI and accuratelyobserved that the index offending represented a significant escalation in Mr Tipene'sprior offending. However, the Crown also acknowledged Mr Tipene's rehabilitativeprospects, detailed in both the s 27 and pre-sentence reports, and fairly recognised that,notwithstanding the seriousness of the offending, it could be considered thatMr Tipene's prospects of rehabilitation and absence of similar past offending pointaway from the imposition of an MPI.[30] The seriousness of Mr Tipene's offending must be recognised but we are notsatisfied the imposition of the MPI properly takes into account Mr Tipene's apparentmotivation to address his drug addiction, which he has demonstrated by engaging inone-on-one counselling and group sessions while on electronically-monitored bail,and his attendance at a drug programme. Mr Tipene suffers from addiction and furtherinterventions will obviously be required if he is to sustain progress, but the informationavailable to us indicates he is motivated to address his issues with drugs in anendeavour to stay offence-free.[31] Mr Tipene was assessed by the pre-sentence report writer as having a moderatelikelihood of committing further offences, although because of his current offending,the assessment of his harm to others was described as being medium to high.We accept that the prospects of success are difficult to predict but, in the absence ofany previous convictions for violence, apart from a conviction for assault, for whichhe was convicted and discharged some 10 years ago, it is not apparent that eitherdeterrence or the protection of the public should prevent the Parole Board fromconsidering Mr Tipene's eligibility for parole in the normal way. We therefore quashthe order imposing an MPI.30 At [52].Result[32] The appeal is allowed.[33] The sentences imposed in the District Court for the aggravated burglary, theaggravated assault using a motor vehicle and the injuring of the police dog charges arequashed and substituted with cumulative sentences of three years and nine months'imprisonment, nine months' imprisonment and six months' imprisonment,respectively. That results in an overall effective sentence of five years' imprisonment.[34] The MPI is quashed.[35] All other sentences imposed in the District Court remain unchanged, includingthe cumulative six-month periods of disqualification from driving in respect of thedangerous driving and failing to stop charges.Solicitors:Crown Law Office, Wellington for Respondent