TITO-FURZE v NEW ZEALAND POLICE [2020] NZHC 2555

TITO-FURZE v NEW ZEALAND POLICE [2020] NZHC 2555 [30 September 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-20[2020] NZHC 2555ETHAN PAUL TITO-FURZEvNEW ZEALAND POLICEHearing: 25 September 2020 via AVLAppearances: J C Hannam for AppellantJ E Bourke and L A Blencowe for RespondentJudgment: 30 September 2020JUDGMENT OF CLARK J[1] Mr Tito-Furze was sentenced in the District Court on the following charges:1(a) two charges of driving recklessly causing injury,2(b) two charges of operating a motor vehicle recklessly,3(c) one charge of failure to remain stopped for an enforcement officer,4(d) one charge of failing to stop for red/blue flashing lights,51 New Zealand Police v Tito-Furze [2020] NZDC 15437 [Sentencing Notes].2 Land Transport Act 1998, s 36(1)(a), maximum penalty five years' imprisonment or $20,000 fine.3 Section 35(1)(a), maximum penalty three months' imprisonment or $4,500 fine.4 Section 52A(1)(b), maximum penalty $10,000 fine.5 Section 52A(1)(a)(ii), maximum penalty $10,000 fine.(e) one charge of obstructing a medical officer of health,6(f) one charge of breaching prison release conditions.7[2] Mr Tito-Furze appeals his sentence of two years, two months' imprisonment.Facts[3] Mr Tito-Furze is 39 years of age. He has numerous convictions but has nothad driving convictions since 2015 when he was convicted of driving whilesuspended.[4] At the time of the offending, New Zealand was in a state of national emergencydue to the COVID-19 pandemic. Alert level four was in place nationwide. Travel andmovement were limited substantially. Mr Tito-Furze had been warned by Police forbreaches of the Ministry of Health guidelines. On 17 April 2020 he was arrested butreleased from custody on a pre-charge warning for breaching the guidelines.[5] On the evening of Saturday 25 April, Mr Tito-Furze was stopped for speeding.When asked why he was out during alert level four he said he was getting stamps andenvelopes so he could send a letter to his partner in prison. The officer said he wasgoing to issue a non-operation order in relation to the vehicle and asked Mr Tito-Furzeto turn off the ignition. He became argumentative and refused to comply. The officerreached into the driver's window and grabbed hold of the keys at which point therewas a brief struggle over the keys. When Mr Tito-Furze noticed the arrival of anotherpolice unit he reversed a short distance while the officer was still holding onto the keysand then drove forward. The officer broke free and moved out of the car's path toavoid harm.[6] Mr Tito-Furze then travelled east on the state highway before performing a U-turn and accelerating at speed on the wrong side of the road. A patrol car activatedflashing lights and followed Mr Tito-Furze in an effort to stop him. He refused to stopand continued to travel at high speed into the path of several oncoming cars. The6 Health Act 1956, s 72, maximum penalty six months' imprisonment or $4,000 fine.7 Sentencing Act 2002, s 96(1), maximum penalty one year's imprisonment or $2,000 fine.pursuit was abandoned due to the extreme risk to the public and other motorists.Mr Tito-Furze drove for approximately 2.5 kilometres on the wrong side of the roadtravelling through five intersections and putting other road users at extreme risk.[7] The next incident was a few weeks later on Friday 1 May 2020. Mr Tito-Furzewas driving a car on Pembroke Street, New Plymouth. A passenger was in the frontpassenger seat. A marked patrol car travelling behind Mr Tito-Furze activated flashinglights and siren, signalling for him to stop. Mr Tito-Furze accelerated away. He turnedinto several streets continuing to accelerate as he fled from Police. He sped throughan intersection and continued at excess speed through a residential area, overtakingand driving on the wrong side of the road. He narrowly avoided crashing intooncoming traffic. He swerved onto the wrong side of the road through a roundabout,navigated a blind corner on the wrong side of the road and drove over a blind hill onthe wrong side of the road.[8] Mr Tito-Furze continued at speeds in excess of 100 km/h along roads with50 km/h speed limits, weaving between cars and forcing other users off the road. Ashe approached an intersection controlled by lights, with a line of cars stopped in bothlanes, Mr Tito-Furze forced his car between the two lines of stationary cars knockingoff the wing-mirror of one. He drove through the red lights at high speed. As heapproached another intersection controlled by lights which were red he travelled intothe intersection without slowing down.[9] The three victims were travelling through the intersection. Mr Tito-Furzesmashed into their car with a force that caused it to spin 180 degrees. It struck thetraffic lights, bounced back and continued to spin. The force of the impact caused an11-year old to be ejected. Mr Tito-Furze fled on foot and was located and arrested ashort distance from the scene.[10] The front passenger in the victims' car had to be cut from the wreckage byemergency services. She was admitted to hospital with four broken ribs. The 11-yearold victim received grazes and bruising and was admitted to hospital.[11] The charge of breaching release conditions follows Mr Tito-Furze's failure toattend an assessment for a departmental programme as directed by his probationofficer on 5 May 2020.Decision under appeal[12] The District Court Judge regarded the facts as "about as bad" as he had everread and Mr Tito-Furze's driving as "appallingly reckless".8 The Judge took intoaccount pre-sentence and s 27 cultural reports. In light of those reports he consideredimposing a "purely rehabilitative sentence" but ultimately determined the offendingwas so serious a sentence of imprisonment was warranted.[13] Taking into account several factors that aggravated the offending (attemptingto evade Police, serious injuries to the adult and injuries to the child, and the prolongednature of the reckless driving) the Judge adopted a starting point of 36 months'imprisonment, uplifted by two months for the 25 April offending and a further monthfor the breach of COVID-19 restrictions, resulting in a sentence of 39 months'imprisonment. He then discounted Mr Tito-Furze's sentence by a global 33 per centfor his guilty plea, his genuine remorse and factors raised in the cultural report.9 Theend result was a sentence of two years, two months' imprisonment and disqualificationfrom driving for six months.[14] Although there was a focus in written submissions on the starting point, in oralargument Mr Hannam helpfully focused the appeal on what he said was the key issuenamely, whether the Judge gave a sufficient discount for mitigating factors.[15] For the respondent Ms Blencowe accepted Mr Tito-Furze was entitled to thefull 25 per cent discount for his swift guilty plea.[16] The question then is whether the eight per cent reduction in sentence(additional to an entitlement of 25 per cent for guilty pleas) sufficiently recognisesMr Tito-Furze's genuine remorse and the matters revealed by the cultural report writer.8 Sentencing Notes, above n 1, at [8] and [14].9 At [17], where the Judge recognised that deducting 13 months from the 39 months sentence wasmore than a 30 per cent deduction.The Judge gave careful consideration to the report and acknowledged the "veryeffective" submissions made on Mr Tito-Furze's behalf by his counsel. Ultimately hewas not persuaded to a lesser term of imprisonment as the incident was so serious.Discussion[17] Evidence of genuine remorse has been regarded as justifying discounts in therange of five to eight per cent.10 There is no dispute that Mr Tito-Furze was, andremains, genuinely remorseful. Mr Hannam suggested that, as with many addicts,Mr Tito-Furze's emotions run deep. He understands the seriousness of what he didand has expressed particular upset about the fact a child was involved. Mr Tito-Furzealso wished to engage in post-sentence restorative justice. In fact, a restorative justiceconference was arranged for 6 July but 45 minutes before the due time the facilitatorof the Taranaki Restorative Justice Trust advised that the victims did not wish toproceed. Of course, they were fully entitled to change their minds. Mr Tito-Furze isnot entitled to a discount for demonstrating a willingness to participate in a restorativejustice conference that has not proceeded but the law recognises genuine remorse willbe reflected in some reduction in sentence. Although the Judge did not attribute aparticular percentage figure to the reduction he intended to apply, in Watene v R theCourt of Appeal considered Mr Watene's early guilty pleas and his genuine remorseshould have attracted a discount of between 25 and 33 per cent.11[18] Being in the order of 33 per cent, the reduction in this case falls within a rangeconsidered appropriate for an early guilty plea and genuine remorse. The questionthen is whether there has been sufficient recognition of the cultural report.[19] The Court of Appeal has confirmed that "ingrained, systemic poverty resultingfrom loss of land, language, culture, rangatiratanga, mana and dignity are matters thatmay be regarded in a proper case to have impaired choice and diminished moral10 See for example McArthur v R [2013] NZCA 600 at [13]–[14] and Rowles v R [2016] NZCA 208at [18].11 Watene v R [2014] NZCA 381 at [18].culpability".12 Those matters are to be considered at sentencing where they are shownto contribute in a causative way to the offending.13[20] A cultural report for Mr Tito-Furze was prepared by Ngaruahine Iwi HealthService. Counsel for the respondent correctly submits that discounts for factorsidentified in cultural reports are not automatic, but as Whata J observed in Solicitor-General v Heta:14[50] The evidence of the presence of systemic deprivation (or socialdisadvantage more generally) on an offender need not be elaborate. Thesymptoms of systemic Māori deprivation are reasonably self-evident,including (among other things) intergenerational social and culturaldislocation of the whānau, poverty, alcohol and or drug abuse by whānaumembers and by the offender from an early age, whānau unemployment andeducational underachievement, and violence in the home. Evidence fromwhānau about the offender's life is enough. But there must be some evidenceidentifying the presence of systemic deprivation in the offender's backgroundand linkage to the offending.[21] That very passage was cited in Zhang v R.15 I am satisfied that this is a "propercase"16 for considering the presence of systemic deprivation in Mr Tito-Furze'sbackground. The Judge also recognised Mr Tito-Furze's traumatised background.17He said:[12] The report confirms that you have very little foundation orunderstanding or knowledge of Te Reo Māori. You are in its words"Completely separate from your Māori heritage. As a young child you wereexposed to very anti-social, abusive and illegal activities which haveprofoundly impacted on you and conditioned your view of the world." Youhave had what is described as extremely traumatic, unresolved experiences.The report notes you have reached the age of maturity where you understandthat changing is your responsibility and something you want to do. The reportwriter believes that if you had been raised with strong concepts of tikanga youwould not have ended up offending in the way you have for all of your adultlife. It is reported that you experienced continual exposure to alcohol, drugs,crime and violence while in the care of your parents. The report writer, in anentirely appropriate way, observes that a sentence served within the prisonsentence would not be the best foundation for making the changes that youneed to make and which you apparently want to make.12 Zhang v R [2019] NZCA 507 at [159], citing Solicitor-General v Heta [2018] NZHC 2453, [2019]2 NZLR 241 at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].13 Zhang v R, above n 12, at [159].14 Solicitor-General v Heta, above n 12.15 Zhang v R, above n 12, at [159].16 At [159].17 Sentencing Notes, above n 1.[13] The report contains a detailed biography of your early years inAustralia and then back in New Zealand. Your father is the Sergeant at Armsin a gang. Both parents had a strong addiction to meth and they introducedyou to the drugs. Almost inevitably you started dealing in drugs which ledyou to prison. Again almost inevitably that led to you being ripped off andaccused of ripping others off. You suffered one particularly serious assaultand you believe that has left you with what you describe as mental healthissues and anxiety. You have been on prescribed medication for years and yousay you cannot function without it. Those were the meds' that you referred towhen you first took off from the police. You have commented that what makesyou particularly sad is that until then you were doing well and were makingreal progress on weaning yourself off drugs. You have been in custody sinceMay.[22] Mr Tito-Furze is described as "completely severed" from any of his Māoriheritage, and his core beliefs and values have been hugely impacted by the socialnorms of gangs, alcohol and drugs. His exposure as a young child to antisocial,abusive and illegal activities and behaviours has conditioned his view of the world andgiven rise to traumatic and unresolved experiences. Sadly, many children sufferdeprivation but Mr Tito-Furze was also subjected to the distorted view that his parents,who were strongly addicted to methamphetamine, held in relation to their children'swelfare. By age 15 Mr Tito-Furze and his twin were smoking methamphetamine andcannabis with their parents who thought it better for their children to do it with themthan elsewhere. A causative connection between Mr Tito-Furze's harmful,disconnected and psychologically damaging background and this offending may beinferred.[23] I am satisfied that a discount of eight per cent was insufficient to reflect boththe genuine remorse and the factors raised in the s 27 report that the Judge regardedas relevant. From the Judge's end sentence of 39 months' imprisonment there shouldbe deducted:(a) a 25 per cent discount for early guilty pleas; and(b) a 15 per cent discount for Mr Tito-Furze's genuine remorse and thepresence of systemic and cultural deprivations that are closely relatedto his offending.[24] In acknowledging the systemic challenges and deprivations that havecontributed to Mr Tito-Furze's offending I do not overlook the impact of the dreadfulcrash on his victims. Each has provided a victim impact statement. One of the victimswas the 18 year-old daughter of another of the victims. She sustained broken ribs anda small puncture in her lung. She continues to relive the crash. It impacts on herespecially at intersections where she often has flashbacks. Her mother spoke of therestorative justice conference which she said they could not go through because thethought of facing the offender was too much. As she says, he could have killed all orany one of them that day. She hopes Mr Tito-Furze learns a lesson from what hashappened.[25] The pre-sentence report writer has suggested a framework that may be usefulfor Mr Tito-Furze to enable him to succeed on his release from imprisonment. Forexample, it is suggested that he undertake and complete a suitable programme whilein custody, preferably in the drug treatment unit. This may give him the tools tocontinue his present path of rehabilitation through further alcohol and drug counsellingon release. I commend the thoughtful report to those who will have a responsibilityfor Mr Tito-Furze during his period of imprisonment. Several suggestions are madeto help Mr Tito-Furze overcome the challenges that have resulted from theenvironment in which he has been raised.Disposition[26] The appeal is allowed. The sentence of two years, two months' imprisonmentis quashed and substituted with a sentence of one year, 10 months' imprisonment.There is no need to address the possibility of home detention.18 Mr Hannamacknowledged there is currently no address at which Mr Tito-Furze could be supportedin such a sentence.[27] Disqualification for six months remains.18 Sentencing Act 2002, s 15A.[28] Within six months of release, Mr Tito-Furze is to be referred for engagementwith a Whānau Ora Service or attend a Māori focus programme (such as Te IhuWhaka) with the assistance and at the direction of his probation officer._____________________________Karen Clark JSolicitors:Hannam & Co Lawyers Ltd, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent