TIALATA v NEW ZEALAND POLICE [2017] NZHC 3096

TIALATA v NEW ZEALAND POLICE [2017] NZHC 3096 [11 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-360[2017] NZHC 3096BETWEEN JOSHUA TIALATAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Counsel: Y Lee for appellantD Houghton for respondentJudgment: 11 December 2017ORAL JUDGMENT OF KATZ JSolicitors: Meredith Connell, Crown Solicitor, AucklandY Lee, Barrister & Solicitor, AucklandIntroduction[1] Joshua Tialata pleaded guilty to a charge of indecent assault and was sentencedby Judge D J Sharp to 18 months' imprisonment.1 His conviction was for a stage-2offence,2 under the three strikes regime. As a result, Mr Tialata must serve the fullterm of his sentence and must not be released before its expiry.3[2] Mr Tialata appeals against his sentence, primarily on the ground that theJudge's decision not to grant home detention was in error.[3] Section 80A(4) of the Sentencing Act 2002 ("Act") requires the Court tospecify the home detention address when sentencing an offender to home detention.Mr Tialata does not currently have an approved home detention address available.Rather, he hopes that if his appeal is successful he will be able to arrangeaccommodation in a halfway house or rehabilitation facility in order to undertake along-term rehabilitation programme. Mr Tialata appears to be a chronic user ofsynthetic cannabis and possibly also other drugs.[4] I proceed on the basis that the relief sought in the appeal is for leave to begranted pursuant to s 80I of the Act for Mr Tialata to apply for cancellation of hissentence of imprisonment and substitution of a sentence of home detention, in theevent that a suitable home detention address can be found.Facts[5] Judge Sharp summarised the relevant facts as follows:[3] at about 6 o'clock in the evening, there was a female walking downCanal Road in Avondale. She had been walking down the road and she noticeda male following her. She continued walking down the street and noticed thatyou had been following her for a period of time. Then you grabbed the victimfrom behind and put both your hands between the tops of her thighs near hervagina in an attempt to pull the victim's trousers down. At this point the victimhas started to scream and turn around and you have grabbed her around thetorso and she has ended up on the ground. You were lying on top of her andshe was still screaming. The victim felt you trying to get control of her thensuddenly you have gotten up and ran away. The victim had minor injuries toher knees. 1 Police v Tialata [2017] NZDC 21385.2 Sentencing Act 2002, definition of "stage-2 offence" in s 86A.3 Sentencing Act 2002, s 86C(4).District Court Decision[6] The Judge noted that the attack was both premeditated and violent. There wereno mitigating features of the offending. His Honour noted, correctly, that the fact thatMr Tialata was affected by synthetic cannabis at the time cannot be a mitigating factor.The Judge selected a starting point of 18 months' imprisonment.[7] Two uplifts were applied. First, the sentence was uplifted by two months toreflect that the offending took place while Mr Tialata had been completing a sentenceof intensive supervision following an earlier conviction for indecent assault. Second,a further uplift of six months was applied to reflect Mr Tialata's previous convictionfor indecent assault and his history of dishonesty, violence and illicit druguse. Following these uplifts, Mr Tialata's sentence stood at 26 months' imprisonment.[8] The Judge then discounted Mr Tialata's sentence by two months to reflect hisrecognition that it was Mr Tialata's consumption of alcohol and drugs that placed himin the position he now found himself in.[9] Finally, the maximum available guilty plea discount, 25 per cent, was appliedto reflect Mr Tialata's guilty plea.[10] The final sentence reached was 18 months' imprisonment, which placed itwithin the jurisdictional range of a home detention sentence. However, the Judgeconsidered home detention inappropriate, emphasising deterrence and denunciation insentencing. He stated:[10] The sentence is within the range of electronically-monitoredsentences but for purposes of denouncing this behaviour, which I have to do,and deterring you and others from behaving this way, I do not believe thesentence could be properly served in any other way than a custodial sentence.There is also the fact that over a period of time you have racked up a numberof occasions when you have not complied with community-based sentences.That also influences my view in relation to the sentence.[11] The Judge also imposed special post-release conditions.Appeals against sentence – general principles[12] Under s 250 of the Criminal Procedure Act 2011, this Court must allow theappeal if satisfied that:4(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should have been imposed.In any other case, the Court must dismiss the appeal.5[13] The Court of Appeal has confirmed that s 250 was not intended to alter theapproach taken previously under the Summary Proceedings Act 1957.6 As well,despite s 250 making no express reference to a sentence being "manifestly excessive",that principle is "well-engrained" in the courts' general approach to appeals againstsentence.7[14] The approach taken under the Summary Proceedings Act was set out by theCourt of Appeal in R v Shipton:8(a) There must be an error vitiating the lower court's original sentencingdiscretion: the appeal must proceed on an "error principle".(b) To establish an error in sentencing it must be shown that the Judge inthe lower court made an error whether intrinsically or as a result ofadditional material submitted to the appeal court.(c) It is only if an error of that character is involved that the appeal courtshould re-exercise the sentencing discretion.4 Subsection (2).5 Subsection (3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].7 At [33] and [35].8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].[15] The Court should not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles. Whether a sentence ismanifestly excessive is to be examined in terms of the sentence given, rather than theprocess by which the sentence is reached.9Grounds of appeal[16] Mr Lee did not suggest that the end sentence of 18 months' imprisonment wasmanifestly excessive in itself, or argue that a lesser prison term should have beenimposed. Rather, the challenge to the Judge's decision is simply that he refused tocommute Mr Tialata's sentence of imprisonment to one of home detention. Twospecific errors on the part of the Judge are said to have caused or contributed to thisoutcome:(a) the Judge did not consider restorative justice processes; and(b) the Judge did not impose the least restrictive sentence appropriate,because he failed to adequately consider rehabilitative options.Failure to consider restorative justice processes[17] Mr Lee submitted that restorative justice conferences are a mandatoryconsideration under the Act, but that the Judge did not expressly refer to this.[18] It is common ground that no restorative justice process took place. The reasonsfor that are not clear. Ms Houghton, for the respondent, noted that there is noobligation on victims to participate in such a process. This is consistent with ss 9-10of the Victims' Rights Act 2002, which emphasise that restorative justice meetings arevoluntary. I accept Ms Houghton's submission that, given the particular nature of thisoffending, it is quite possible that the victim may not have been willing to participatein a restorative justice process.[19] As Ms Houghton observed, s 8 of the Act merely requires the Court to take intoaccount "any outcomes of restorative justice processes that have occurred, or that the9 Ripia v R [2011] NZCA 101 at [15].court is satisfied are likely to occur, in relation to the particular case". No restorativejustice process has been undertaken, nor is there any indication that one is likely totake place. Judge Sharp did not err, in such circumstances, by not expressly referringto the possibility of a restorative justice conference.Failure to consider Mr Tialata's rehabilitative prospects[20] Mr Lee's second argument was that Judge Sharp did not fully considerMr Tialata's rehabilitative prospects when selecting a sentence of imprisonment ratherthan one of home detention.[21] Mr Lee submitted, in his oral submissions, that the Judge should haveadjourned the proceedings prior to sentencing, pursuant to s 25 of the Act. Such anadjournment would have enabled Mr Tialata to undertake a rehabilitative programmeprior to being sentenced. The implication, as I understand it, is that this would havebeen a further factor supporting a sentence of home detention. Mr Lee submitted thatMr Tialata would be a good candidate for a lengthy rehabilitation programme and heshould now be given the opportunity to try and secure entrance to such a programme.He submitted that substituting a term of home detention for imprisonment wouldfacilitate such a course.[22] As Ms Houghton noted, it would have been highly unusual for the Judge tohave adjourned the proceedings prior to sentencing when, at the time, no request hadbeen made by Mr Tialata for such an adjournment. Ms Houghton submitted (and Iaccept) that normally, before an adjournment is granted pursuant to s 25, the defencewill have already made appropriate enquiries and some evidence will have beenprovided to the Court indicating that a place is available at a suitable rehabilitationfacility. An adjournment under s 25 was simply not warranted in this case.[23] At the heart of Mr Lee's submissions lies the concern that the Judge focussedunduly on the principles of denunciation and deterrence, without appropriatelybalancing those factors against Mr Tialata's individual rehabilitative needs andprospects.[24] The Court of Appeal has, on a number of occasions, emphasised that it will bean error of law to focus exclusively on denunciation and deterrence.10 As the Court ofAppeal noted in Fairbrother v R, one of the two commonly observed reasons forallowing an appeal against a refusal to grant home detention is where denunciationand deterrence have been given complete priority.11[25] In my view, however, it is at least implicit in the Judge's sentencing notes thathe did consider Mr Tialata's rehabilitation prospects, but did not consider that asentence with a rehabilitative focus was justified in all the circumstances. His Honournoted, for example, that the offending occurred when Mr Tialata was part way througha 12-month sentence of intensive supervision. That sentence was imposed on 27March 2017. The present offending occurred only six months later. The Judgeobserved that:12Turning to you, you have a history which includes dishonesty, violence,misuse of drugs but most significantly there is the previous indecent assault.On the last occasion, the attempt was made to try and provide you with themeans of not getting back where you are now. That was the intensivesupervision sentence. Sadly, that was unsuccessful [26] The Judge was therefore mindful of the fact that a recent attempt to impose arehabilitative sentence, also relating to an indecent assault conviction, had failed.[27] The Judge also noted that the Provision of Advice to Courts Report assessedMr Tialata as having a high risk of re-offending and a high risk of causing seriousharm. He noted that:13The report writer records that you have previously not complied withcommunity-based sentences and it assesses you as unsuitable for acommunity-based sentence.[28] The recommended sentence in the Provision of Advice to Courts Report wasone of imprisonment, with release conditions.10 See, for example, Manikpersadh v R [2011] NZCA 452 at [17]-[19]; and Fairbother v R [2013]NZCA 340 at [29].11 At [29].12 Above n 1, at [6].13 Above n 1, at [7].[29] The Judge did, however, recognise that Mr Tialata did have at least someprospects of rehabilitation. He stated that:14I will give you some credit for your insight into the fact that you know that itis alcohol and drugs that got you where you are now. Knowing that to me isworth something as far as you are concerned and I will give you credit for that.If you take your past knowing about it to get into the point of doing somethingabout it then there is a chance of you avoiding any repetition of this. For thatreason, I reduce the sentence to 24 months and I consider that I will add to theprison term that I must impose, release conditions which will included specialconditions [30] The special conditions imposed were that Mr Tialata attend and complete suchprogramme or assessment as is undertaken by community probation at the end of hissentence, and that he carry out such treatment or counselling or programmes asdirected by community probation. Those conditions are to apply for six months fromthe end of Mr Tialata's sentence and clearly have a rehabilitative focus.[31] I accept that the Judge did not expressly evaluate Mr Tialata's rehabilitationprospects at the final step of choosing between a sentence of imprisonment and asentence of home detention. In my view, however, when the entirety of the sentencingnotes are considered, it is quite clear that the Judge did consider Mr Tialata'srehabilitative prospects, and expressly addressed them. He did not, however, considerthat Mr Tialata's rehabilitative prospects were sufficient to justify commuting MrTialata's sentence to one of home detention.Should home detention have been granted?[32] Sections 15A and 16 of the Act are relevant to the issue of whether homedetention should have been granted. Amongst other things, those sections require theCourt to have regard to the desirability of keeping offenders in the community as faras that is practicable and consonant with the safety of the community. They alsoprovide that the Court must be satisfied that the relevant purposes and principles ofsentencing cannot be achieved by a less restrictive sentence than imprisonment.[33] There is no presumption in favour of either a sentence of home detention or asentence of imprisonment; it is an evaluative judgment which requires the Judge to14 At [7].consider all the circumstances of the case.15 In some cases, the seriousness of theoffending will justify attributing more weight to the principles of denunciation anddeterrence, which will require a sentence of imprisonment.16 In other cases a morerehabilitative focus will be appropriate.[34] In this case I do not consider that the Judge erred in imposing a sentence ofimprisonment. In my view, it was well open to the Judge to conclude that the purposesand principles of sentencing could not be achieved in a way other than by imposing asentence of imprisonment. I refer to the various factors identified by the Judge that Ihave summarised above, including that:(a) The offending was serious. It was a premeditated, sexually motivatedattack on a stranger. Violence was used. The victim would no doubthave been terrified.(b) Mr Tialata had been sentenced to intensive supervision (a sentence witha rehabilitative focus) only six months previously, following an earlierindecent assault.(c) The Provision of Advice to Courts Report assessed Mr Tialata as havinga high risk of re-offending and a high risk of causing serious harm.(d) Mr Tialata has a poor history of compliance with community-basedsentences.[35] It is also of concern that the present offending represents an escalation ofoffending. It is more serious in nature than the previous indecent assault that MrTialata committed.[36] Although Mr Tialata clearly does have some prospects of rehabilitation, in thecircumstances the Judge did not err in concluding that they could best beaccommodated by a modest reduction in his sentence, combined with the imposition15 R v Stacey [2008] NZCA 465 at [21].16 R v Stacey, above n 15, at [20].of post-release conditions. The sentencing principles of denunciation and deterrencehad to take priority, together with the need to protect society from Mr Tialata'sconduct.[37] I also note, for completeness, that it is somewhat difficult to see how a homedetention sentence could have been substituted for an 18-month sentence ofimprisonment, given the broader "three strikes" context.[38] Normally an 18-month sentence of imprisonment would equate to a nine-month sentence of home detention. This reflects the general "rule of thumb" thatsentences of home detention are set at half the term of imprisonment that wouldotherwise have been imposed. The rationale for such an approach is that, if an offenderis serving a short-term sentence of imprisonment of two years or less, under the ParoleAct 2002 they must be released after serving half of their sentence.17[39] In this case, however, Mr Tiliata will not be eligible for parole at half-waythrough his term of imprisonment. He must serve the full 18-month term ofimprisonment, due to the operation of the three strikes regime. Logically, then, anyperiod of home detention (whether it is to be served in a rehabilitative facility orelsewhere) would also have to be set at 18 months, to constitute an equivalentsentence. The maximum permissible term of home detention, however, is12 months.18Result[40] For the reasons outlined above, the appeal is dismissed.____________________________Katz J17 Section 86(1).18 Sentencing Act 2002, s 80A(3).