RAMA PAERAU v NEW ZEALAND POLICE [2020] NZHC 547

RAMA PAERAU v NEW ZEALAND POLICE [2020] NZHC 547 [24 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-528[2020] NZHC 547BETWEEN RAMA PAERAUAppellantAND NEW ZEALAND POLICEDefendantHearing: 18 February 2020 and 17 March 2020Counsel: T Beach for Appellant (via telephone)J Kang for RespondentJudgment: 24 March 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 24 March 2020 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr Paerau pleaded guilty on one charge of burglary. He was sentenced to22 months' imprisonment. He now appeals against that sentence on the basis that theJudge failed to consider home detention.[2] Mr Paerau has filed an affidavit setting out his background by reference to thematters set out in s 27 of the Sentencing Act. It was agreed that this should be admittedas both relevant and cogent evidence.Background facts[3] On Friday, 9 August 2019, at approximately 11.50 am, Mr Paerau was at thevictim's address. Mr Paerau, together with two associates, gained entry into thedwelling at that address by forcing open the locked back door with a prying tool. Onceinside, Mr Paerau ransacked several rooms in the house, including a bedroom and thekitchen, stealing multiple items, including a wallet, bankcard, cheque book, cellphoneand other electronics.[4] Mr Paerau and his associates were interrupted by the victim whilst in the house.The offenders in reaction ran out the front door, passing the victim. The victimrecognised Mr Paerau as a previous employee. The victim managed to grab hold ofone of Mr Paerau's associates who reacted by punching the victim in the head severaltimes. During the scuffle, most of the stolen items were dropped in the driveway ofthe address. However, the victim's iPhone and Excess Max were not recovered, bothvalued at $2,400.[5] The victim suffered swelling in affected areas, but this was not inflicted byMr Paerau.Sentencing indication[6] Mr Paerau sought a sentencing indication. In that indication, the Judge referredto Mr Paerau's many previous convictions, including 13 burglary-related convictions.The Judge also noted Mr Paerau's long history of otherwise failing to comply withsentences and prohibitions. Further, the Judge noted another recent burglarycommitted by Mr Paerau in September last year (for which he was sentenced toimprisonment in February this year), only one month after the burglary now inquestion. The Judge noted:[5] The issue has reduced itself to a basic one, what would be the durationof the sentence? I did not receive written submissions and I did not have anygreater opportunity to consider this recital prior to commencement. The Courtof Appeal in the case of Arahanga have stated that burglary convictions ofprivate dwellings invariably draw sentences of between 18 months and twoand a half years. I consider this to be serious. While it was not at the hand ofthis defendant, the victim was punched and confrontation is always a fear forconsideration.[6] I would see a start point accommodating the horrendous list ofprevious convictions for two and a half years. I would allow an eight monthconcession which would serve to reduce the sentence to one of one year and10 months. That is the indication I give you Mr Paerau.(Footnotes excluded.)Sentence[7] At sentencing, Mr Paerau sought home detention. The Judge noted that "therewas no indication or suggestion of home detention anywhere during the sentencingindication process." He noted that Mr Paerau pleaded guilty on the basis of thesentencing indication. He said he did not "believe that prisons are a place wherepeople are reformed". The Judge was told that Mr Paerau "had engaged with rehab"processes and that his mother, aged 85, was ill. He said that "should have been amatter that went through your mind before this event occurred". The Judge then said:1[7] I am not prepared to find that there is any room for adjustment, andnor am I prepared to re-open the issues that I consider are already done anddusted. The short point is, you were given an indication. You pleaded on thatindication, and you will be so sentenced. The prison sentence is one year and10 months.Error[8] It is evident to me that the Judge did not consider the availability of a homedetention sentence. In short, he was not prepared, in his words, to "reopen the issues".In so doing, the Judge erred. The Judge had to consider whether home detention wasthe most appropriate sentence in light of the personal mitigating factors put to him. Inote there is nothing in the sentencing indication to show that the Judge considered1 New Zealand Police v Rama Kantu Paerau [2019] NZDC 22612 at [7].personal mitigating factors when fixing sentence. It therefore remained incumbent onthe Judge to consider those factors prior to imposing a final sentence.Home detention[9] The period of imprisonment is not challenged as manifestly excessive. Thesole issue is whether the sentence should be commuted to home detention.[10] As stated, it is settled law that there is nothing in the Sentencing Act to suggesta presumption for or against computation to home detention, either generally or inrespect of particular types of offending.2[11] Woodhouse J helpfully provided a summary of the relevant principles in Brittinv Police, namely:3The following principles, contained in the Sentencing Act and leading cases, arerelevant:(a) Imprisonment is a measure of last resort.(b) A sentence of home detention is a severe sentence, second only to a sentenceof imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.(c) When considering the imposition of a sentence of imprisonment, the Courtmust have regard to the desirability of keeping offenders in the community asfar as that is practicable and consonant with the safety of the community.(d) When a Court is considering sentencing for the purposes of deterrence,accountability and denunciation, amongst other purposes, it must not imposea sentence of imprisonment unless it is satisfied that those purposes cannot beachieved by a sentence other than imprisonment and no other sentence wouldbe consistent with the application of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measure theprinciples of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been given completepriority without regard to any of the countervailing purposes of sentencing.2 R v Vhavha [2009] NZCA 588 at [31], see also Manikpersadh v R [2011] NZCA 452 at [14].3 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].(g) One of the purposes of sentencing is to assist in the offender's rehabilitation.(h) The judge must make a considered and principled choice between the twoforms of sentence, recognising that both serve the principles of denunciationand deterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.(Footnotes excluded.)[12] The Crown has set out a number of aggravating factors of the offending andthe offender which bear on the exercise of granting home detention. The offendingwas premeditated – Mr Paerau and his associates organised and armed themselves witha prying tool which they used to forcefully open a locked back door of the address.The offending caused a substantial amount of harm, both in terms of physical propertydamage and loss, as well as injury to a victim (though not caused by Mr Paeraudirectly).[13] The offending has had a profound impact on the victim, as noted by the Crown.That victim stated:I felt very sad and angry, I experienced 5 burglary in the past 6 years in Henderson,Massey and New Lynn area, and this situation seems getting worse and worse, I don'tknow what happening, but I think that the government needs to pay more attention tothis situation and increase police forces. I remembered when I came NZ 19 years ago,my family went out for travelling for one week without door locked and back home,nothing happened. That time, I felt very safe.[14] All of those factors support a sentence of imprisonment insofar as they givevent to the principles of denunciation, deterrence and protection of the public.[15] There are also aggravating features personal to Mr Paerau which must beconsidered. He has 101 previous convictions in total and 100 of those convictionswere for offending on bail. He has 13 relevant convictions for burglary and 13convictions for breaching bail or sentences. Mr Paerau's lengthy criminal history as arecidivist burglar and offender, while subject to sentence or Court order, is a strongfactor against the granting of home detention. As Mr Kang noted, this Court in Gavinv R4 and Papa v R5 declined home detention given the prior conviction history of theoffenders in those cases. Consistency in sentencing of recidivist offenders is animportant principle to weigh in the present context.[16] Balanced against this, I have an affidavit from Mr Paerau setting out hisbackground circumstances. That background is relevant to both his relative culpabilityand his capacity to rehabilitate. It is not challenged. Mr Paerau is 46 years old. He isa father and a grandfather. He was adopted out as a whāngai child at a young age.There was a lot of violence in the home and he was often beaten. He contemplatedsuicide on many occasions. Alcohol abuse was rife in the home. He also refers tohaving been sexually abused by an older whāngai brother. He says he took to alcoholat a young age and would often visit the pub with his mother. Criminality was a largepart of his life as a child. His first burglary occurred when he was nine. His brothershot a police officer when he was 14.[17] Mr Paerau was kicked out of school at a young age and he started usingcannabis. He met his partner when he was 18 and had two children with her. Headmits to being violent with her.[18] He is of Ngā Puhi and Ngāti Rēhia. He feels connected to the land and Māoriculture. He can speak Māori and actively participates in the kapa haka group in prison.He also feels connected to his community. He has played sports in the past, includingrugby league. He has worked from time to time.[19] He acknowledges that he previously had gang associations with TheTribesmen, but he is not associated with them now. He is thinking about having histattoos, connecting them to him, removed. He would like to attend The BridgeProgramme, or a similar rehabilitation provider, and he would like to stay clean. Hehas booked an appointment to sit his driver's licence test and would like to get amotorcycle licence as well. He is a qualified painter and he would like to have hisown painting team. He says that in 2019 he was doing odd jobs (e.g. fixing a boat)4 Gavin v R [2018] NZHC 2193.5 Papa v R [2020] NZHC 80.but the employer ran out of money, so he was paid in methamphetamine. This led himoff the rails.Assessment[20] At face value, Mr Paerau is a poor candidate for home detention. The offendingwas serious, and he is a recidivist offender. Deterrence, denunciation and protectionof the public are strong relevant factors. However, multiple rolling sentences ofimprisonment since 2009 have not achieved those goals except, perhaps, temporaryprotection of the public while he has been in prison. I therefore think it is necessaryto have a closer look at a different approach, if one is available, as it is here, given thatMr Paerau is otherwise subject to a short term sentence.[21] As stated at s27(1)(b) of the Sentencing Act 2002, the way in which MrPaerau's background "may have related to the commission of the offence" is a relevantconsideration. While not directly causative of the present offending, we can readilysee that the genesis of his criminality lies in an early life of violence and substanceabuse. He started stealing at nine and, basically, has not stopped. He also went off therails most recently because of methamphetamine use.[22] But Mr Paerau is now 46. While not yet evident with Mr Paerau, we know thatwith age, the propensity to offend diminishes in many cases.6 He is a father andgrandfather. He is seeking out opportunities to rehabilitate. He wants to find work.He has agreed to undertake a full-time residential placement with the Bridgeprogramme. These are strong factors that mitigate the probability of reoffending. Thelast aspect especially so, because it indicates a commitment to change.[23] Needless to say, I am conscious of the risk Mr Paerau presents in light of hishistory. But home detention to a full-time rehabilitative facility mitigates the risk ofburglary offending and substance abuse. Furthermore, I invited Mr Beach to obtaininstructions about whether Mr Paerau is prepared to commit himself to a full-timeresidential programme. As noted, he is. In my view, therefore, home detention to such6 See Sophie Klinger "Three Strikes for New Zealand? Repeat Offenders and the Sentencing andParole Reform Bill 2009" (2009) 15 Auckland UL Rev 248 at 251.a programme sufficiently mitigates the short and long term risks presented by him,while providing the opportunity to help break Mr Paerau's cycle of criminality.[24] In the result, with the benefit of the information I have before me, I allow theappeal and grant leave to Mr Paerau to apply for home detention. The period of anysuch detention will correspond to 50 per cent of the period left on his sentence.However, the grant of leave is for placement with the Bridge Programme or a similarfull-time residential programme, at least for the period of the home detention. Theresidence must also be suitable for home detention.[25] It is regrettable that this option has only recently been considered. Mr Paerauhas already served a substantial part of his sentence of imprisonment. But that is not areason to deprive him of the opportunity still to seek home detention.[26] The is appeal allowed. Mr Paerau is granted leave to apply for home detention,subject to the conditions set out at [24].