TELEFONI v NEW ZEALAND POLICE [2020] NZHC 1417

TELEFONI v NEW ZEALAND POLICE [2020] NZHC 1417 [23 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000063[2020] NZHC 1417BETWEEN LOPETI TELEFONIAppellantAND NEW ZEALAND POLICERespondentHearing: 15 June 2020Appearances: Emma Priest for the AppellantLydia Wilson for the CrownJudgment: 23 June 2020JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 23 June 2020 at 1:00 pmRegistrar / Deputy RegistrarDate:Introduction[1] On three occasions within a week Lopeti Telefoni entered suburban liquorstores and stole cigarettes and alcohol. He was identified as the offender through acombination of CCTV, photographic montages and fingerprints. He was charged withtwo counts of robbery1 and one of burglary.2 He also faced a charge of breachingrelease conditions by failing to report.3[2] He pleaded guilty to all charges and appeared before Judge B A Gibson on11 February 2020 in the Auckland District Court for sentencing. He was sentenced tofour years and six months' imprisonment.4[3] He appeals that sentence on the grounds that in all the circumstances it ismanifestly excessive and that a sentence of less than two years' imprisonment isavailable, thus permitting home detention. He is presently serving his sentence as ahigh security prisoner because he was recently charged as a party to the murder of afellow inmate. Such a sentence would permit Mr Telefoni to access rehabilitationprogrammes such as Odyssey House's residential programme into which he hasrecently been accepted.The offending[4] In the early evening of 9 June 2019 Mr Telefoni entered the Sunny Liquor Storein Northcote. He walked behind the unmanned counter where he removed a largenumber of cigarette cartons before taking two bottles of brandy. He then confrontedthe proprietor. He told him that if he did anything he would assault him. He left thestore with the stolen items estimated to be worth approximately $2,500.[5] At about 10:00 pm the next day, 10 June 2019, the second robbery occurred.Mr Telefoni entered a different Northcote liquor store. He climbed over the counterand removed a large number of cigarette packets. The proprietor ran over andconfronted him. Mr Telefoni responded by punching the proprietor three times in the1 Crimes Act 1961, s 234; maximum penalty 10 years' imprisonment.2 Section 231(1)(a); maximum penalty 10 years' imprisonment.3 Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment and/or $2,000 fine.4 Police v Telefoni [2020] NZDC 2139.face, knocking him over and causing bruises to his face. Mr Telefoni then picked upa bottle of spirits and threatened the victim. He told him that if he tried to stop him hewould hit him with the bottle. Mr Telefoni took another three bottles of spirits beforefleeing.[6] The third incident, for which Mr Telefoni was charged with burglary, occurredsix days later on 16 June 2019 in the early evening. Again, the target was the SunnyLiquor Store in Northcote. Mr Telefoni walked behind the counter, pushed past theproprietor and filled a bag with cigarettes. The proprietor, fearing for his safety, leftthe shop. Mr Telefoni ran away on foot.[7] The charge of breaching post-release conditions followed Mr Telefoni's releasefrom Mt Eden Prison in May 2019 on charges of assault with a blunt weapon, drivingwith excessive breath alcohol, two charges of breaching home detention and a chargeof being unlawfully being in a building. His six months' post-release conditionsincluded the requirement he report to his probation officer weekly. He never attended.Personal circumstances[8] Mr Telefoni is aged 20. He was 19 at the time of the offending. He is ofTongan heritage. His parents moved to New Zealand from Tonga in the hope ofsecuring a better life for themselves and their children. Mr Telefoni was born inHawke's Bay in 1999 although his family later relocated to the North Shore wherethey still reside.[9] A comprehensive cultural report was prepared for the purpose of sentencing.5It describes a domestic environment plagued by financial stress, domestic and parentaldisharmony and violence.[10] The family's circumstances were such that Mr Telefoni would walk to schoolwithout breakfast. By the time he arrived at school he had eaten his lunch. This ledhim to steal lunches from other pupils, a practice which became habitual. It was alsoat primary school that he exhibited violence towards other children leading him to5 Sentencing Act 2002, s 27.spend time with friends outside school. He shoplifted and so it was then that he beganhis first encounters with the Police.[11] When he was 13 he was sent to a secondary boarding school in Tonga with hisbrother. This was an attempt by his parents to correct his behaviour, althoughMr Telefoni interpreted it as punishment. He remained in Tonga for just over twoyears during which he and his brother were subjected to violence which, on oneoccasion, was sufficient to put his brother in hospital. He described daily beatings byprefects including a "super hiding" during which he was struck with a piece ofconstruction timber for what appear to have been real or imagined misdemeanours. Inthe end he elected not to return to school but, instead, undertook work which providedhim with a subsistence living.[12] He said he was 12 when he first got drunk and has continued to drink. He firstsmoked methamphetamine when he was 14 in Tonga. He believes it is likely he isaddicted to alcohol.[13] On his return to New Zealand he took up with his former acquaintances anddescended back into his earlier, anti-social behaviour.[14] The author of the cultural report summarised Mr Telefoni's background andchildhood as one of deprivation, isolation and struggle punctuated by growingdishonesty and violence. There is a clear connection between his childhood and hisoffending. The author recommends that Mr Telefoni undertakes courses in prison andshould be encouraged to seek qualifications towards obtaining university entrancefollowed by tertiary education. He says that Mr Telefoni is driven to succeed in turninghis life around to support his partner and their young son who are central to hismotivation to change.[15] Aside from the present convictions, Mr Telefoni has accumulated 44convictions between 2006 and 2019. He has 18 Youth Court notifications whichinclude trespass, shoplifting, assault, aggravated assault and aggravated robbery. Hisfirst appearance in the District Court related to offending in January 2017. Since thenhe has amassed 27 convictions including shoplifting, escape, burglary, aggravatedassault, robbery, numerous breaches of home detention, excess breath alcohol andassault with a blunt instrument.[16] The pre-sentence report recorded that Mr Telefoni showed little insight into hisoffending and was assessed as presenting as a high risk of harm " due to the natureof his offending and gradual escalation and the seriousness of his charges". It recordedthat Mr Telefoni's offending factors were identified as alcohol and drug consumption,self-entitlement and offending attitudes. His risk of re-offending was assessed as highdue to the number of breaches of community-based sentences as well as his regularpattern of offending. For the same reasons, his compliance was assessed as low.[17] A departmental alcohol screening tool was administered. While reliant on self-reporting, this assessed Mr Telefoni's risk as low. The author of the report expresseduncertainty as to whether Mr Telefoni was being truthful.[18] Due to Mr Telefoni's previous criminal history, including nine breaches ofhome detention between 2018 and 2019, Mr Telefoni was not considered a suitablecandidate.District Court decision[19] In order to provide context to Judge Gibson's decision it is necessary to brieflycover some of the procedural background.[20] On 9 October 2019 Judge R G Ronayne gave Mr Telefoni a sentenceindication.6 In doing so the Judge referred to the comments of the Court of Appeal inthe aggravated robbery guideline judgment in R v Mako.7 He considered thecircumstances of Mr Telefoni's offending were most analogous to the aggravatedrobbery of small retail business operators where an armed offender demanded money.Where there is no actual violence and a small sum is taken, the starting point shouldbe around four years.8 For the first robbery he set the starting point at three years andnine months discounted by 30 per cent to acknowledge the lesser crime of robbery6 Police v Telefoni HC Auckland CRI-2019-044-002120, 9 October 2019.7 R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA) at [42].8 At [56].simpliciter. This led to a sentence of two years and seven months. As for the secondrobbery, which involved actual violence and injury, he set a starting point of five years'imprisonment.9 He discounted this by 30 per cent, leading to a sentence of three yearsand six months. For the burglary he considered 18 months was appropriate. Thecombined total led to a sentence of seven years and seven months' imprisonmentwhich, after a totality adjustment, led to a provisional sentence of five-and-a-halfyears' imprisonment. To that the Judge added two months for the breach of releaseconditions and four months for Mr Telefoni's previous convictions. This brought thestarting point to six years.[21] As for discounts for personal circumstances, the Judge pointed out that therewas no presumptive entitlement to a youth discount. He stated that "age alone maypoint to neurological immaturity, but you are 19 years old and nearly 20." He alsonoted that the rationale for such a discount lay in an offender's impulsivity andprospects for rehabilitation, butMr Telefoni's offending was not characterised byimpulsiveness and, given Mr Telefoni's long history of offending, the prospect ofrehabilitation was doubtful. He noted that much more information was needed for ayouth discount. However, the Judge noted that a 20 per cent discount would beavailable leading to a provisional end sentence of four years and nine months'imprisonment.[22] Mr Telefoni did not accept the sentence indication. However, it would appearthat despite this, he entered pleas of guilty that day.[23] Four months later Mr Telefoni appeared before Judge Gibson for sentencing.By this time the Court had the PAC report and the cultural report. The Judge startedhis comments by summarising Mr Telefoni's background from the narrative containedin the cultural report. He accepted that there were factors in Mr Telefoni's backgroundwhich put his offending into perspective and undertook to recognise those difficultieswith a discount, adding that it was important to appreciate that the commission of someoffences require the Court to impose sentences to deter the offender and otherssimilarly minded from offending against those who are vulnerable by reason of9 In accordance with [56] of Mako which suggested that where the shop keeper is confined orassaulted five years, or in bad cases, six years, should be the starting point.operating shops. He noted that while youth and the prospects of rehabilitation aremitigating factors, those who have accumulated considerable lists of convictionswhilst still in their teens cannot expect leniency in sentencing for serious aggravatedrobbery offences. There must be a deterrent response from the Courts.[24] The Judge, at counsel's suggestion, adopted Judge Ronayne's approach ofsetting the robbery starting points by reference to the aggravated robbery guidelineprinciples in Mako discounted by 30 per cent to reflect the lesser crime of robbery.10He regarded the second robbery as the lead offence, adopting a four-year starting pointbefore the discount.[25] However, the calculation for the second robbery and the burglary is less clear.[26] At the hearing, both counsel believed that the most probable interpretation isthat set out by Ms Wilson, for the Police, in a table containing her submissions asfollows:Four years' imprisonment for the lead robbery charge and twoyears' imprisonment for the further robbery charge (applying thebands in Mako)72 monthsLess thirty per cent -22 monthsPlus two years for the burglary charge +24 monthsStarting point 74 months[27] Except for a rounding error, this interpretation produces the starting point ofsix years and three months identified at [13] of the Judge's sentencing remarks.However, it is not consistent with either the Judge's methodology discussion or withthe calculation of the further uplifts and discounts the Judge applied.[28] It can be taken from the Judge's comments that he intended to take an eightyear starting point for all three charges and discount this by 30 per cent to arrive at thetotal starting point. That method produces a total starting point of 67 months or fiveyears and seven months. It seems likely this was the starting point the Judge intendedto apply.10 Smeed v P HC Whangarei AP50/50, 24 October 2000.[29] He then uplifted the starting point by six months for Mr Telefoni's previousconvictions, added a further three month uplift for the breach of release conditions,then discounted that cumulative figure by eight months on account of Mr Telefoni'sbackground and six months for his youth. To that adjusted figure he then applied adiscount on account of Mr Telefoni's guilty pleas of eight months.[30] This led to the final, end sentence of four years and six months' imprisonment.Approach to appeal[31] Section 250 of the Criminal Procedure Act 2011 applies. I must allow theappeal against sentence if I am satisfied that there has been an error in the sentenceimposed for any reason and that a different sentence should be imposed.11 The focusis on the sentence imposed, rather than the process by which it is reached.12 Althoughthe sentence does not need to be "manifestly excessive", this is a helpful concept whenassessing the seriousness of the error.13Appellant's submission[32] Ms Priest, for Mr Telefoni, submitted that the starting point was too high, theuplifts for his previous convictions and offending while on release conditions were toohigh and insufficient credit was given for Mr Telefoni's personal mitigating factors,including his youth, background as set out in the cultural report and his guilty pleas.She submitted that given the unusual circumstances, it was appropriate to take intoaccount Mr Telefoni's time on remand and apply global discounts as necessary toachieve a final sentence of home detention.[33] While not taking issue with the Judge's identification of the lead charges,Ms Priest submitted that the Judge appeared to have erroneously treated the burglarycharge at the same level of seriousness as the robbery charges, but applied no discountto reflect that. She submitted that the 30 per cent discount from the Mako band oughtto have applied to the entire starting point resulting in an overall starting point of five11 Criminal Procedure Act 2011, s 250.12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 At [35].years and six months. She submitted that the offending was relatively spontaneousand unsophisticated. There was no use of disguises or weapons. The use of actualviolence occurred only once and involved only the low degree of violence inherent inthe nature of the charge. In terms of robberies of small retail premises, the offendingsat at the low end of seriousness.[34] Ms Priest then submitted that the uplifts for his other offending were too greatand that the appropriate figure would have been in the order of four to four-and-a-halfyears' imprisonment.[35] She then submitted that the six month uplift for his previous convictions andthe three month uplift for his offending while on release conditions were too high,representing a longer period than the longer sentence of imprisonment Mr Telefonihad previously received. To impose a three -month uplift for a relatively minor breachof release conditions following a seven -month term of imprisonment was completelydisproportionate.[36] Against this, Ms Priest submitted that the Judge gave insufficient weight toMr Telefoni's youth, pointing to the comments of the Court of Appeal inChurchward v R.14[37] Citing the Court of Appeal's decision in Zhang v R, Ms Priest also observedthat substantial discounts for social, cultural and economic deprivation may be givenin appropriate cases.15 Discounts can be in the order of 20 to 30 per cent.16 Shesubmitted that against that background, a discount of eight months, equating to around10 per cent, was wholly inadequate.[38] Finally, she pointed to the guilty plea. She noted that the discount was in theregion of 15 per cent. She submitted that a discount of 20 per cent should be givenfollowing the reasoning of Judge Ronayne at the sentencing indication14 Churchward v R [2011] NZCA 531 at [98].15 Zhang v R [2019] NZCA 507 at [158]-[162].16 Citing R v Rakuraku [2014] NZHC 3270; Keil v R [2018] NZCA 56; Solicitor-General v Heta[2018] NZHC 2453.Discussion[39] As did counsel at the hearing before me, I agree that the Judge was correct totake the robbery involving actual violence as the lead offence. The analogy with theaggravated robbery of a small retail shop was apt. Indeed, the Judge's treatment ofthis charge might be considered generous given the infliction of actual violencecausing injury. Violence is implicit in a charge of robbery simpliciter,17 but the offenceis also proved where there is a threat of violence. Thus, where there is an actualapplication of force sufficient to cause injury it must be a seriously aggravatingfeature. I also do not agree that the offending can be characterised as spontaneous andunplanned. The offence occurred the day after Mr Telefoni had successfully robbed adifferent liquor store in the same area. While it was not sophisticated, the pattern ofoffending across the week gives rise to the inevitable inference that this was deliberateand targeted offending. I agree with Ms Wilson's assessment that this was amoderately serious example of a small retail premises robbery. I am thus satisfied thefour year starting point before the 30 per cent discount was well within range.[40] The next question is whether the two-year uplift for the first robbery(appropriately adjusted) was within range. Adjusted, this equates to one year and fivemonths (or 17 months). On its own it cannot be criticised. However, the burglary upliftof two years is excessive. While I accept the underlying offending could well havejustified a charge of robbery rather than burglary, the choice of charge no doubt reflectsthe limited threat of violence involved. Even though robbery and burglary share thesame maximum penalty, the culpability in the last set of offending sits at a lower level.It should have been reflected in lesser, rather than greater, penalty. This means thecombined total of six years and three months (or 74 months) for what might rightly bedescribed as a "spree" is excessive.[41] In my view the appropriate, combined starting point for both robbery chargesand the burglary charge is one of five years.[42] I turn next to the uplifts. The three-month uplift for breaching releaseconditions represents 25 per cent of the maximum penalty. It is a single charge relating17 Crimes Act 1961, s 234.to a specific failure. Ms Wilson described the sentence as "stern but within range".18I accept that Mr Telefoni's history of failing to comply with legally-imposed orders isnotable, but that is a factor which is better evaluated when considering the uplift forprevious convictions. In the context of a re-sentencing I am satisfied that a two-monthuplift is appropriate.[43] Next is the uplift for Mr Telefoni's criminal history. The Judge dealt with thisin some detail. He referred to the Youth Court notations for aggravated assault andtwo aggravated robberies. He noted Mr Telefoni's convictions in the District Courtfor aggravated assault, robbery, burglaries and assault with a blunt instrument. MrTelefoni's numerous convictions for breaching Court orders are also significant. Bymy calculation Mr Telefoni has, since May 2018 accumulated six convictions forbreaching home detention conditions.[44] Ms Priest's criticism was the size of the uplift. I did not understand her to saythat there should not have been an uplift. I agree with Ms Wilson that it would havebeen open to the Judge to impose a greater uplift than the six months he did. However,in the context of a re-sentencing, I am satisfied that a six-month uplift is appropriatein the circumstances.[45] Taking into account all these factors I am satisfied that a provisional sentenceof five years and eight months is appropriate before the application of discounts.[46] I turn now to Mr Telefoni's personal mitigating factors being youth, culturaldeprivation and guilty pleas.[47] Ms Priest is correct that substantial discounts may be available on account ofyouth. The reasons for that have already been discussed. The question here is whetherthe eight-month discount, equivalent to a 12 per cent reduction was appropriate. Thisis not a case where a momentary lapse of judgement or youthful over-exuberance orindiscretion led to the offending. This was repeated and targeted offending committedwithin a relatively limited time frame. Also relevant to this consideration is18 Citing Morris-Stewart v Police [2016] NZHC 1030 where an uplift of three months' imprisonmentwas applied for breaching release conditions on a starting point of 12 months' imprisonment.Mr Telefoni's potential for rehabilitation. I agree with the Judge's comments thatMrTelefoni's alarming criminal history provides little room for optimism he has thepotential to change. I also accept Ms Wilson's submission that it is almost certain thatMr Telefoni has been the beneficiary of youth discounts in the past. However, thereis no evidence before me to suggest that Mr Telefoni has received rehabilitativeinterventions designed to arrest or mitigate the momentum which is apparent from hishistory. In these circumstances I am satisfied that a more generous youth discount ofthe order of 15 per cent is appropriate.[48] That then leads me to consider Mr Telefoni's presentation as described in thecomprehensive and most helpful cultural report. I have already summarised thereport's contents. It provides powerful and persuasive evidence that issues of culturaldeprivation and abuse during Mr Telefoni's formative years have formed andinfluenced his behaviour. I am satisfied that a more generous allowance should begiven and I set that at 15 per cent. This brings the provisional end sentence to fouryears..[49] Finally, I turn to consider Mr Telefoni's pleas of guilty.19 While, plainly, theywere not entered at the earliest practical opportunity, they have saved the State the costof a trial and victims have been speared the ordeal of giving evidence of what musthave been a most frightening experience. I am satisfied that the appropriate discountis 20 per cent. Taking all these factors together I arrive at a final sentence of threeyears and two months' imprisonment.[50] Plainly, this sentence sits well beyond the range where home detention mightbe an available sentencing option. In any event, had that sentencing option beenavailable I would not have ordered it for the same reasons the Judge gave. Section 17of the Sentencing Act 2002 preserves the discretion of a Court to impose a sentence ofimprisonment if it is satisfied on reasonable grounds that the offender is unlikely tocomply with any other sentence which would otherwise had been appropriate.19 Ms Priest invited the Court to follow this Court's decision in R v Reweti [2018] NZHC 809 in theevent its application might be the difference between home detention and being an availablesentence or not. Plainly, given the result, applying the methodology in Reweti would not havemade home detention available to Mr Telefoni.Mr Telefoni's criminal history is such that if home detention was ordered the Courtwould be setting Mr Telefoni up to fail.Result[51] The appeal is allowed.[52] The sentence of four years and six months' imprisonment is quashed.[53] A sentence of three years and two months' imprisonment is substituted.Moore JSolicitors:Ms Priest, AucklandCrown Solicitor, Auckland