ENOKA v R [2018] NZCA 185

ENOKA v R [2018] NZCA 185 [8 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA528/2017[2018] NZCA 185BETWEEN ALBERT ENOKAAppellantAND THE QUEENRespondentHearing: 17 April 2018Court: Kós P, French and Miller JJCounsel: A J D Bamford for AppellantC J Lange and S R D D Bicknell Young for RespondentJudgment: 8 June 2018 at 10.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of four years' imprisonment imposed in the High Court foraggravated burglary is quashed and substituted with a sentence ofthree years and four months' imprisonment.C The sentence of five years' imprisonment imposed in the High Court forwounding with intent to injure is quashed and substituted with a sentenceof four years and three months' imprisonment to be served cumulatively.D The sentence of 12 months' imprisonment imposed in the High Court forunlawful detainment is quashed and replaced with a sentence of10 months' imprisonment to be served cumulatively.E All other sentences imposed in the High Court are confirmed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Enoka was sentenced in the High Court by Nation J to a total term ofimprisonment of 10 years following guilty pleas to a number of charges.1[2] Mr Enoka now appeals his sentence on the grounds it was manifestlyexcessive.Factual background[3] All of the offending occurred over a four day period in February 2015.[4] On 14 February 2015 Mr Enoka rode a motorcycle despite being a disqualifieddriver. When stopped by police, he gave a false name. The motorcycle wasimpounded but Mr Enoka two days later forcibly removed it from a towing yard.[5] On the evening of 15 February 2015, Mr Enoka and a co-offender togetherwith another unknown male drove to a location to collect Mr Enoka's partnerMs Johnston. Ms Johnston had been at the house of a Mr Kovacs. Mr Enoka whowas a member of the Rebels Motor Cycle gang was wearing a gang vest and balaclavaand carrying a knife with a six inch blade. The co-offender Mr Francis was a gangprospect. He too was carrying a knife.[6] Mr Enoka was angry with his partner because she had been at Mr Kovacs'shouse and not at home when he had tried to contact her. He suspected her of infidelity.When Ms Johnston arrived, Mr Enoka punched her in the face, pulled her hair,verbally abused her and threw her into the car. Ms Johnston had been accompaniedto the meeting place by Mr Kovacs's partner Ms Neho and Mr Enoka then told1 R v Enoka [2017] NZHC 2032 [sentencing notes].Ms Neho to take them to Mr Kovacs's house. The unknown male remained withMs Johnston.[7] On arrival at the house and wearing a balaclava, Mr Enoka pointed a knife atMr Kovacs and demanded to know if he was having sex with Ms Johnston and whyshe had been at his house. Mr Enoka held the knife against Mr Kovacs's throat andpunched him twice in the mouth with a closed fist resulting in broken teeth and afractured jaw. He threw Mr Kovacs and Mr Kovacs's flatmate Mr Morgan onto a bedin the house and threatened to stab them both. At some point Mr Francis grabbed anornamental machete off the wall and threatened both men with it. He also heldMr Kovacs's hand on a bedside table and told him he would cut it off with a katana hefound at the house.[8] Instructing Mr Francis to guard Messrs Kovacs and Morgan, Mr Enoka thenwent through the house looking for money and items to steal. Various items weretaken and some property damaged before Mr Enoka departed in a car taking Ms Nehowith him against her will along with Mr Kovacs's pet dog. As they were leaving,Mr Francis told Mr Morgan that if he called the police, he would burn the house downand kill him.[9] Ms Neho was detained overnight and the following morning, 16 February, wasmade to get back in the car. Mr Enoka and Mr Francis drove around Christchurch andsurrounding districts for several hours trying to find a motel. During the trip, Ms Nehoobserved two firearms under a seat in the car. Finally, they left Ms Neho at an addressin Addington with an associate telling him to keep an eye on her.[10] It was at this point, at approximately 4 pm on 16 February, that Mr Enokaremoved his impounded motorcycle. About half an hour later, he left a satchel withhis mother-in-law. She opened it in his absence and found ziplock bags containing28 grams of methamphetamine and 34 grams of cannabis plant. She called the policewho seized the drugs.[11] Fearful of how Mr Enoka would react, the mother-in-law and other familymembers went to another address. That evening Mr Enoka tracked them down thereand when they drove off he followed them on foot. Shortly thereafter a gunshot washeard. No one was injured.[12] In the early hours of the morning of 17 February, Mr Enoka was observed bypolice driving a motor vehicle. He absconded on foot with the firearm which he laterabandoned at another property.[13] He then returned to the Addington property where Ms Neho was still beingheld. Mr Enoka told Mr Francis that he had started shooting. He and Mr Francis thenleft the Addington property as did the occupant who had been guarding Ms Neho. Shethen made her escape with the pet dog. By this time it was 7 am on 17 February. Shehad been detained for approximately 32 hours.[14] Mr Enoka first appeared in court on 18 February 2015.[15] He entered guilty pleas on 7 August 2015 to charges of:(a) driving while disqualified;(b) providing false details as to identity; and(c) unlawfully removing an impounded vehicle.[16] Guilty pleas were entered to two drug related charges (possession ofmethamphetamine and cannabis for supply) and unlawful possession of a firearm on19 February 2016. He maintained his not guilty pleas in relation to the charges ofaggravated burglary, wounding with intent to injure and unlawful detainment.[17] The trial on those charges was scheduled to commence on 7 June 2016.On 3 June, Mr Enoka entered guilty pleas to those charges but then on 8 July soughtto vacate them. The application to vacate the guilty pleas initially related to all threecharges but was later limited to the unlawful detainment charge. The application wasdeclined by Nation J on 16 January 2017.[18] Mr Enoka then sought and was granted a disputed facts hearing, necessitatingMessrs Kovacs and Morgan having to give evidence. Mr Enoka disputed everthreatening Mr Kovacs with a knife, dragging him into the bedroom, threatening tostab the two men, threatening them with an ornamental machete and ransacking thehouse. Mr Enoka testified that he had visited Mr Kovacs's house to collect a debt andnot for the purpose of harming anyone. Despite pleading guilty to the unlawfuldetention charge, he also claimed Ms Neho had been with him of her own free willthroughout and that he had never threatened her.[19] Justice Nation rejected this evidence,2 which in the Judge's view indicated acomplete lack of remorse and acceptance of responsibility on the part of Mr Enoka.3Because of that, and the seriousness of the attacks at Mr Kovacs's house, Nation J saidhe would have to consider a sentence of preventive detention.4The sentencing in the High Court[20] Ultimately Nation J decided not to impose preventive detention and wetherefore address only his reasoning in relation to the finite sentence which he didimpose.5[21] The Judge adopted a starting point of nine years' imprisonment in respect ofthe aggravating burglary and wounding with intent charges which he then uplifted byone year on account of the unlawful detainment offence.6 Justice Nation thenidentified a starting point of five and a half years for the drug offending, making a totalof 15 and a half years which he then reduced to 13 years on account of totality.7[22] Turning to personal factors, Nation J referred to Mr Enoka's extensive criminalrecord and considered that it justified an uplift of 18 months' imprisonment.8He acknowledged the guilty pleas but considered that only those entered early relating2 R v Enoka [2017] NZHC 698. While the Judge accepted Mr Francis held the machete, notMr Enoka, the two were threatening with it in conjunction.3 Sentencing notes, above n 1, at [23].4 Sentencing notes, above n 1, at [23].5 At [52].6 At [29]. Although the Judge described the one year as an uplift, at [59] he clarified these threeconvictions were sentenced cumulatively.7 At [31] and [33]–[35].8 At [37]–[38].to the drugs and firearm charges justified any discount. That together with attemptsMr Enoka had made to address his offending and the assistance he had rendered to theauthorities in another case warranted in the Judge's view a total discount of30 per cent.9[23] That resulted in a sentence of 10 years' imprisonment structured as follows:10Conviction SentenceDrove while disqualified (third orsubsequent)12 months' disqualificationGives false name and address toenforcement officerConvicted and dischargedUnlawfully removes impounded vehicle Convicted and dischargedAggravated burglary Four years' imprisonmentWounding with intent to injure Five years' imprisonment (cumulative)Unlawful detainment One year's imprisonment (cumulative)Possession of a Class A controlled drugfor supplyFour years' imprisonment (concurrent)Possession of a Class C controlled drugfor saleTwo years' imprisonment (concurrent)Unlawful possession of a firearm One year's imprisonment (concurrent)Arguments on appeal[24] Mr Bamford accepted on behalf of Mr Enoka that the notional starting pointsof 10 and five and a half years were within range. However he submitted the endsentence was manifestly excessive because (a) the adjustment for totality wasinadequate, (b) the uplift of 18 months for previous convictions was excessive and(c) insufficient credit had been given for Mr Enoka's assistance to the authorities.9 At [39]–[41]. Although the Judge described the reduction as 30 per cent, in fact a reduction from14 and a half years to 10 years is about 31 per cent.10 At [56]–[60].Analysis[25] Mr Bamford contends that the Judge's approximately 16 per cent adjustmentfor totality was inadequate because it did not sufficiently recognise that all of theoffending was part of one prolonged incident — "a drug fuelled crime spree" — ratherthan a number of separate offences. In Mr Bamford's submission, in thosecircumstances, a reduction in the order of 25 per cent was appropriate.[26] It is well established that the totality principle must be applied flexibly.11 Thereis no formula. In our view, correctly analysed the drugs offending was distinctoffending and not connected with the sequence of events relating to the partner. Theadjustment made by the Judge in our view was open to him and adequately representedthe totality of the offending.[27] As regards the uplift for previous convictions, Mr Lange for the Crownconceded it was unusual for an uplift to exceed 12 months and that this was at theupper end of the range. However, he submitted it was justified on the grounds ofpublic protection. Mr Enoka had accumulated almost 70 previous convictions whichincluded two for aggravated robbery and seven for other violent offending.Report writers assessed his risk of violent offending as mid-high to high.[28] We accept that public protection is a relevant factor to take into account whendeciding to uplift for previous convictions.12 We also accept that public protectionwas at play in this case. However, the amount of an uplift must be proportionatehaving regard to the previous offending and the starting point for the currentoffending.13[29] As Mr Bamford pointed out, much of the previous offending dates back14 years or more. The most relevant recent conviction was one of three years'imprisonment imposed for aggravated robbery in 2010 which means that an uplift of18 months represents 50 per cent of that sentence.11 R v Dodd [2013] NZCA 270 at [31]–[33]; and Geoff Hall Hall's Sentencing (online looseleaf ed,LexisNexis) at [SA85.1]–[SA85.2].12 See Blackmore v R [2014] NZCA 109 at [12]; O'Connor v R [2014] NZCA 328, (2014) 27 CRNZ302 at [41]; and Beckham v R [2012] NZCA 290 at [84].13 See Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and Taylor v R [2012] NZCA 332 at [46].[30] In all the circumstances, we agree with Mr Bamford that an 18 month upliftwas excessive. In our view, no more than a 12 month uplift was warranted.[31] Of itself that finding would not justify our interfering with the sentence.However we have also concluded that the Judge's discount for assistance to theauthorities was inadequate.[32] Justice Nation's discount of 30 per cent was expressed to be a global discounton account of three matters: the guilty pleas to the drug and firearms offending,attempts made to address offending — which appear to have been relatively limited,and assistance to the authorities. The Judge did not identify the percentage relating toeach component.14[33] It is clear as will be apparent from our summary of the background history thatMr Enoka's guilty plea to the lead charges (the aggravated burglary, the woundingwith intent and the unlawful detainment) was late as well as being regretted. On anyview of it, he was entitled to no more than five per cent.[34] The plea to the drug offending was also late. The pleas were entered a full yearafter Mr Enoka's first appearance and two weeks before a scheduled trial date. Thequantities involved were such that the Crown could rely on a presumption of dealing.Its case was strong. In our view, contrary to a submission made by Mr Bamford, thosecircumstances meant that Mr Enoka was not entitled to a full credit of 25 per cent butonly a limited discount also in the order of five per cent. The fact that Mr Francis wasgiven a 25 per cent credit for pleading guilty in February 2016 following a sentenceindication to the aggravated burglary and unlawful detention charges does not raiseparity issues.15[35] Although Mr Enoka is only entitled to a modest discount on account of hisguilty pleas, the assistance he provided to the authorities is in a different category. Thedetails of that assistance are suppressed but Mr Lange confirmed the assistance wassubstantial and that it was given at significant cost to Mr Enoka. In those14 Sentencing notes, above n 1, at [39]–[41].15 R v Francis [2016] NZHC 646.circumstances, Mr Lange also accepted that if the assistance had been combined withan early guilty plea Mr Enoka would have been entitled on the authorities to a discountof 60 per cent.16[36] It follows that a discount of 30 per cent which also included some allowancefor steps taken to address offending as well as guilty pleas, albeit late, was inadequate.[37] In our view, on its own the assistance given to the authorities would havewarranted a 30 per cent discount and, when combined with the other two matters,means the appropriate discount was in the vicinity of 40 per cent.[38] We would therefore adjust the end sentence first by reducing the uplift forprevious convictions by six months and secondly by applying a 40 per cent discountfor personal mitigating factors, instead of 30 per cent. The effect of those twoadjustments is to reduce the total end sentence from 10 years' imprisonment toeight years and five months. In percentage terms that represents a reduction of15.83 per cent.[39] In order to effect that change we therefore reduce each of the sentencesimposed for aggravated burglary, wounding with intent to injure and unlawfuldetainment by that same percentage. The remaining sentences of imprisonment wereconcurrent and remain in place.Outcome[40] The appeal against sentence is allowed.[41] The sentence of four years' imprisonment imposed in the High Court foraggravated burglary is quashed and substituted with a sentence of three years andfour months' imprisonment.16 R v Hadfield CA337/06, 14 December 2006; and Hessell v R [2009] NZCA 450, [2010] 2 NZLR298 at [23].[42] The sentence of five years' imprisonment imposed in the High Court forwounding with intent to injure is quashed and substituted with a sentence of four yearsand three months' imprisonment to be served cumulatively.[43] The sentence of 12 months' imprisonment imposed in the High Court forunlawful detainment is quashed and replaced with a sentence of 10 months'imprisonment to be served cumulatively with the sentences for aggravated burglaryand wounding with intent to injure.[44] All other sentences imposed in the High Court are confirmed.Solicitors:Bamford Law, Nelson for AppellantCrown Solicitor, Christchurch for Respondent