ANDERSON v NEW ZEALAND POLICE [2023] NZHC 3581

ANDERSON v NEW ZEALAND POLICE [2023] NZHC 3581 [8 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-445[2023] NZHC 3581BETWEEN JACKSON TOKOMANAHI ANDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 4 December 2023Appearances: M J Taylor-Cyphers for AppellantT A Veikune for RespondentJudgment: 8 December 2023JUDGMENT OF O'GORMAN JThis judgment was delivered by me on 8 December 2023 at 12 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:M J Taylor-Cyphers, Barrister, AucklandMeredith Connell, Auckland[1] This is an appeal against a sentence of 26 months' imprisonment imposed byJudge B R Pidwell on the following charges:1(a) on 24 January 2023, breaching home detention;(b) on 26 January 2023, unlawfully taking a motor vehicle;(c) on 27 January 2023, theft of petrol valued at $50; and(d) on 28 January 2023, theft of jewellery valued at over $10,000.[2] The grounds of appeal are:(a) the starting point imposed by the sentencing Judge was too high due toa failure to take into account totality in setting an adjusted startingpoint; and(b) inadequate discounts for personal circumstances.[3] In particular, additional discounts are sought for:(a) mental health;(b) addiction and rehabilitative efforts;(c) remorse and willingness to participate in restorative justice; and(d) hardship and deprivation.1 Police v Anderson [2023] NZDC 17982.Legal principles[4] The Court must allow an appeal against sentence if it is satisfied that there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.2 Generally, the sentence must be shown to be manifestly excessive or wrongin principle.3 The focus is on the end sentence imposed, rather than the process bywhich it is reached.4[5] The claim that a sentence is manifestly excessive (or inadequate) is inevitablypremised on the contention of prior error, which may include questions of whether thestarting point was too high given the facts, or of incorrect discounts.5[6] Appellate courts do not indulge in mere tinkering with a sentence.6 The Courtgenerally will not intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles.[7] An exception is where a mathematical error has resulted in a sentence moresevere than the sentencing judge intended. Such an error must be corrected, givingeffect to the judge's intentions even if the sentence imposed was within the availablerange.7 Conversely, an error favouring a defendant will not be corrected unless it hasresulted in a sentence manifestly inadequate or inappropriate.8[8] The practical effect of these general principles is that the appellate court doesnot just start afresh or substitute its own opinion. If there is an error of the requisitecharacter, the court will then form its own view of the appropriate sentence.92 Criminal Procedure Act 2011, s 250.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].4 At [36].5 At [32].6 R v Boyd (2004) 21 CRNZ 169 at [38].7 Tutakangahau, above n 3, at [36]; and Ferris-Bromley v R [2017] NZCA 115 at [15(a)].8 Ferris-Bromley, above n 7, at [15(c)].9 Tutakangahau, above n 3, at [30], referencing R v Shipton [2007] 2 NZLR 218 (CA) at [140]; andTe Aho v R [2013] NZCA 47 at [30].Methodology[9] In Moses v R, the Court of Appeal set out a two-step methodology forsentencing:10(a) the first step is to calculate the adjusted starting point, incorporatingaggravating and mitigating features of the offences;(b) the second step incorporates all aggravating and mitigating factorspersonal to the offender, together with any guilty plea discount, whichshould be calculated as a percentage of the adjusted starting point.[10] Totality is to be considered at stage one, before personal mitigating(or aggravating) factors are taken into account.11 This is because the totalityassessment is not to be influenced by personal factors that are irrelevant to the gravityof the offending.12[11] When dealing with a previous conviction history, an uplift is applied under thesecond stage.13District Court decision[12] The sentencing Judge took the following approach for calculating endsentence:(a) A starting point of 15 months' imprisonment was adopted for the leadcharge of the jewellery theft.(b) An uplift of a further six months' imprisonment was added for the otherexisting charges.10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].11 Polaapau v R [2020] NZCA 227 at [44].12 Jacobson v R [2023] NZHC 1358 at [14].13 See Stewart v R [2021] NZCA 539 at [16]; Mo'unga v R [2023] NZHC 1976 at [28]–[34]; andMatthew Downs (ed) Adams on Criminal Law – Sentencing Levels and Guidelines (online ed,Thomson Reuters) at [SAC3].(c) An uplift of three months was then added for previous convictions.(d) A 25 per cent discount was then applied under the second limb of Mosesfor the appellant's guilty plea.(e) The outstanding home detention sentence was then converted to anequivalent of 10 months' imprisonment.(f) At that stage, the Judge took into account totality and removed twomonths of imprisonment. The final end sentence was 26 months'imprisonment.Adjusted starting point and totality[13] Counsel for the appellant submits that the sentencing Judge made an error byconsidering totality at the wrong stage. The adjustment was made after the discountfor the appellant's guilty plea was applied. The appellant's counsel seeks a reductionof two months' imprisonment to the global starting point in respect of this allegederror. In other words, the calculation for the global starting point should have been:(a) A starting point of 15 months' imprisonment for the lead charge of thejewellery theft.(b) An uplift of a further six months' imprisonment for the other existingcharges.(c) Two months of imprisonment removed based on the totality principle,leaving a global starting point of 19 months' imprisonment.[14] The Crown submits that totality consideration ought to have been whether thetotal period of imprisonment (including the cumulative term as a result of there-sentence of the home detention) was in proportion to the gravity of the overalloffending. The position was explained by the Court of Appeal in Haywood v R:1414 Haywood v R [2015] NZCA 551 at [11] (emphasis added).Therefore, we do not think the end sentence should be approached sequentiallyas an adjustment of the appropriate end sentence of the burglary and assault inorder to fit the totality principle. Rather, the analysis should be guided fromthe outset with the appreciation that the total period of imprisonment shouldbe in proportion to the gravity of the overall offending. That is so even thoughtechnically the result is achieved by adjusting the second sentence, becausethe first sentence is already in place. So we think the question is not whethera two year adjustment from the starting point of eight and a half years isappropriate to satisfy s 85(2). Rather, the question is whether 13 and a halfyears would be wholly out of proportion to the gravity of the whole of theoffending, comprising one charge of supplying 11 ounces ofmethamphetamine, a second charge of aggravated burglary and a third ofassault with intent to rob. In doing so the sentencing Judge would bear inmind that two separate incidents were involved, that the second and third arosewhile on bail for the first, and that all, to a degree, arose from the appellant'sown dependence on methamphetamine. In that sense, although the offenceswere separate and distinct, they were also a connected sequence of events.[15] Accordingly, the Crown submits that there was no effective error inconsidering totality. It also says there is a countervailing consideration that when thesentencing Judge converted the remaining home detention sentence to an additional10 months' imprisonment, this was based on the incorrect understanding that theappellant had five months remaining on his home detention sentence when heabsconded. In fact, there were six months remaining at that time, so this error was inthe appellant's favour (an advantage of two months' imprisonment).[16] I accept it was a methodological error to consider the totality principle after theapplication of the guilty plea discount. On the other hand, I do not consider that theJudge intended to apply a two-month totality reduction simply for the additionalexisting changes, in the way suggested in [13] above. An uplift inherently takes intoaccount the incremental significance of the other offending, and I accept that asix-month uplift for the other current charges was modest in circumstances, given thatthose charges included one of unlawfully taking a motor vehicle.15[17] The appellant has established an error, and accordingly a jurisdictional basisfor this Court to form its own view of the appropriate sentence. I will thereforeconsider the question of totality in making my own assessment.15 Wood v Police [2018] NZHC 1629 at [24], a single unlawful taking charge resulted in a startingpoint of 18 months' imprisonment, with aggravating features present.Previous convictions[18] The Crown accepts that there was an error in the way that the uplift for previousconvictions was applied. As referred to above, that type of uplift should be applied atstage two, rather than stage one. However, mathematically that error favoured theappellant.[19] The appellant has established that this is a second error, and accordinglyanother jurisdictional basis for this Court to form its own view of the appropriatesentence.Mitigating factors[20] The appellant seeks a further 40 per cent of discounts for factors that were notspecifically addressed in the sentencing notes. It appears that this was because theywere not sought at sentencing and the documents relied on (aged pre-sentence reportsand a remorse letter) were apparently not before the Court, possibly because counselfor the appellant was unable to attend. As the discounts were neither sought norsubstantiated in the evidence before the sentencing Judge, these do not raise any errorsin the approach taken at that time. Given the errors referred to above, I neverthelessconsider whether there are justified discounts that render the sentence manifestlyexcessive.Addiction and rehabilitation, dislocation from whānau and mental health[21] Mr Anderson explained the reasons for the theft in his undated apology letter(which was written before sentencing but not placed before the sentencing Judge). Hedecided to cut off his tracking bracelet so that he could go to his family in their timeof grief when his daughter died. Rather than drug addiction being offered as the reasonfor the offending, he said he committed the crimes to pay for the funeral costs. Inaddition, he said he just wanted to "hold my babies and be with them" and stay withthem until he handed himself up.[22] Accordingly, I am not satisfied that there is any evidential basis establishingthat the drug addiction was causatively related to the offending in the sense requiredin Berkland v R.16 Similarly, there is a lack of substantiating evidence to show anycausative nexus between the background hardship factors and this particularoffending.[23] Usually, s 27 information is provided from a source other than the defendant.As noted by Harland J in Mullan v Police, s 27 of the Sentencing Act 2002contemplates that a separate person, apart from an offender but at an offender'srequest, can be called by them to speak about the matters outlined in s 27(1).17[24] In Zhang v R, the Court of Appeal observed that ingrained systemic deprivationimpairing a defendant's choice, and therefore diminishing moral culpability, willrequire consideration in sentencing.18 Social, cultural or economic deprivation thathas a demonstrative nexus with the offending may be relevant in mitigation.19 Thecogency of any s 27 information depends on the strength of the link between anydeprivation, the offender and his or her offending, and the availability of rehabilitativemeasures to specifically address the effects of systemic deprivation.20[25] In Poi v R, the Court of Appeal granted a 20 per cent discount to acknowledgethe appellant's severe deprivation and disadvantage, as well as his rehabilitativeprospects and steps taken to address past trauma.21 In that case, the appellant'sbackground and the profound trauma he suffered had severely limited his choices,distorted his values, and impaired his decision-making ability.[26] Potentially separate from the issue of causation, discounts are regularlyprovided in recognition of steps taken by a defendant to engage in rehabilitation.16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]–[109]; and Zhang v R [2019] NZCA507, [2019] 3 NZLR 648.17 Mullan v Police [2023] NZHC 962 at [23]–[24].18 Zhang v R, above n 16, at [159].19 At [162].20 Cavallo v R [2022] NZCA 276 at [78], referencing Solicitor-General v Heta [2018] NZHC2453, [2019] 2 NZLR 241 at [49].21 Poi v R [2020] NZCA 312 at [39].However, such a discount may be refused if the defendant has an extensive criminalhistory.22[27] In this case, the appellant has already engaged in rehabilitation programmes,and this is the background against which the repeat offending has occurred. This is asituation where the Court may properly be sceptical about the prospects ofrehabilitation, albeit that this remains an important continuing objective.[28] I would be prepared to give the appellant the benefit of the doubt and considera combined discount that takes into account the matters addressed in the pre-sentencereports and the remorse letter.Remorse and restorative justice[29] The remorse letter was not before the sentencing Judge. The letter isexplanatory but does not demonstrate any particular remorse in terms of damage tovictims or the gravity of continuing to offend in breach of existing orders, includingabsconding from his home detention address. To a large extent Mr Anderson seeks tojustify his decisions rather than demonstrate that he intends to change his ways. In thecircumstances, only a very modest discount could be justified based on the content ofthe letter and an offer to participate in restorative justice that did not proceed.23Overall sentencing assessment[30] Naturally, the appellant makes no complaint about the error in correcting theconversion of the remaining home detention sentence, and the Crown has not pursuedany appeal. In those circumstances, it would not normally be corrected. However, ifI am required to form my own view of the appropriate sentence, it is not an error thatI am required to repeat. It is therefore something that forms part of my considerationwhen stepping back and making an overall assessment of whether the end sentence ismanifestly excessive or wrong in principle.22 Ross v R [2015] NZHC 1633 at [43]; and Hall v Police [2019] NZHC 1370 at [36].23 In Harris v Police [2019] NZHC 3044 at [13], Powell J commented that a willingness to participatein a restorative justice conference that does not proceed may, of itself, mean little.[31] My own view of an appropriate sentence would be as follows:(a) A starting point of 15 months' imprisonment for the lead charge of thejewellery theft.(b) An uplift of a further six months' imprisonment for the other existingcharges.(c) I consider that a global starting point of 21 months' imprisonment isappropriate for these charges, taking into account the totality principleand the balance of the home detention sentence to be converted andre-sentenced.(d) I would apply the following stage two adjustments to the global startingpoint:(i) an uplift of three months (approximately 14 per cent) forprevious convictions; and(ii) a discount of 15 per cent for hardship factors, rehabilitation, andremorse; and(iii) a discount of 25 per cent for the guilty plea.(e) This results in a sentence of 15 months.(f) Added to this should have been the outstanding home detentionconverted to an equivalent of 12 months' imprisonment andre-sentenced.(g) The final end sentence would be 27 months' imprisonment.[32] My calculations produce a result that would have been longer than the existingsentence of 26 months' imprisonment. On that basis I find that this existing sentenceis not manifestly excessive and there is no basis for setting it aside.Result[33] Appeal dismissed.____________________O'Gorman J