GREEN v NEW ZEALAND POLICE [2019] NZHC 2565

GREEN v NEW ZEALAND POLICE [2019] NZHC 2565 [9 October 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2019-483-11[2019] NZHC 2565REIJHAN RENEE GREENvNEW ZEALAND POLICEHearing: 24 September 2019Appearances: R L Leith for AppellantR N Benic for RespondentJudgment: 9 October 2019JUDGMENT OF CLARK JIntroduction[1] Mr Green appeals his sentence of two years and two months' imprisonment inrelation to the following charges to which he pleaded guilty:1(a) one charge of burglary;2(b) three charges of unlawfully possessing a firearm;3(c) one charge of dangerous driving;41 R v Green [2019] NZDC 15726 [sentencing notes].2 Crimes Act 1961, s 231; maximum penalty 10 years imprisonment.3 Arms Act 1983, s 45; maximum penalty four years imprisonment.4 Land Transport Act 1998, s 35(1)(b); maximum penalty three months imprisonment.(d) one charge of failing to stop for police;5(e) one charge of driving while disqualified;6(f) one charge of theft;7 and(g) two charges of breaching release conditions.8[2] The key issue on appeal is whether Judge Crayton adequately recognisedcultural factors.Summary of offending[3] On 9 November 2018, Mr Green stole approximately $50 worth of petrol froma Z Energy petrol station in Turangi. About half an hour later, Mr Green failed to stopfor police. He accelerated away and travelled through a residential area (where thespeed limit was 50 km/h) at speeds of up to 90 km/h. Police abandoned pursuit.Shortly thereafter, Mr Green encountered further police officers, who witnessed himmanoeuvring around a corner on the wrong side of the road, at speed, while avoidingother vehicles. Police followed Mr Green at a distance for approximately two hoursas he drove towards Whanganui. Police deployed a roadblock and spike strips.Mr Green avoided the spike strips by driving through a muddy ditch but in doing sodamaged the steering column on his vehicle. When Mr Green stopped his vehicle heand his passenger attempted to escape on foot but were apprehended by police.Mr Green does not hold a driver's licence.[4] Mr Green was remanded on bail and remained subject to release conditions forprevious burglary offending. On 7 December 2018 and in breach of his releaseconditions, Mr Green failed to report. Subsequently, Mr Green moved address withoutinforming his probation officer, again in breach of his release conditions.5 Land Transport Act 1998, ss 52A(1)(a)(ii) and (4); maximum penalty $10,000 fine.6 Section 52(1)(c); maximum penalty $10,000 fine.7 Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.8 Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment.[5] Between 31 December 2018 and 2 January 2019, while on bail, Mr Greenentered an unoccupied residential address through a door that had been left unlocked.He left behind a hunting knife he was carrying at the time. He stole several items,including a laptop valued at $300, two passports, and a piggybank belonging to thevictim's eight-year-old daughter.[6] On 18 January 2019, police searched Mr Green's address and located in thewardrobe of his sleepout a guitar case containing three rifles. The rifles werefunctional but no ammunition was present. Mr Green admitted ownership of the rifles.He does not hold a current firearms licence.Background[7] Mr Green is 35 years old. He has an extensive record of offending thatcommenced in 1998 when he was barely 14 years old. He has committed what onereport writer described as a "smorgasbord of crimes", 22 of which are driving related,25 are dishonesty offences, seven are breaches of court orders and one is a firearmsoffence. He is a patched Mongrel Mob member.[8] Two pre-sentence reports were prepared, the first in April 2019 and the secondin May 2019. Both are spectacularly brief. Mr Green attended the interview inApril 2019 but he declined to comment on the majority of the questions put to him.The report writer noted there appeared to be no malice behind Mr Green not wantingto comment. Rather, he did not see the relevance of the interview questions tosentencing. His main focus during the interview was his driver's licence status.[9] The writer of the May 2019 report recorded Mr Green's refusal to beinterviewed for the PAC report process.[10] Mr Green was assessed by both the PAC report writers as posing a high risk ofre-offending given the escalation in offending since his release from prison. He wasassessed as posing a high-risk of harm to others, evidenced by the nature of his pastand current offending in relation to weapons offences.[11] A cultural report was prepared by Lawrence O'Reilly and Denis O'Reilly ofthe Matau Cultural Annotators Practice. The report, prepared pursuant to s 27 of theSentencing Act 2002, was dated July 2019. I return to the report but for immediatepurposes I draw on it for its description of Mr Green's personal circumstances.[12] Mr Green was born into a family of five in Parikino, a small town located onthe Whanganui River. He was primarily raised by his grandfather. His father wasabsent from his childhood. Due to the nature of his mother's work as a shearingcontractor, the family was itinerate, living variously in Gore, Whanganui, Napier,Waverley and Invercargill. Being "shipped around" fractured the young Mr Green'srelationships and made engaging in schooling difficult. Mr Green began offending atage 14, when he left school. He quickly became a serial offender. Mr Green'sextended whānau had Mongrel Mob connections and Mr Green soon becameassociated with the Mongrel Mob, which framed his lifestyle and became a substitutewhānau.[13] The report narrates the ways in which systemic Māori deprivation9 and otherrelated background factors, influenced Mr Green's childhood and adolescentdevelopment. The report focusses in particular on the experience of Māori along theWhanganui River, particularly after many of "the protective and social factors of atraditional lifestyle were lost" to urbanisation. Along with his contemporaries,Mr Green faced high levels of unemployment, poverty, gang membership andsubstance abuse. In short, Mr Green was born into a community facing disadvantageon multiple levels.[14] The report writers suggest Mr Green has reached a stage where he is willing toturn his life around. The particular indicia are his age (some people tend to "grow outof criminality"), that he blames only himself for his situation, and his willingness toadopt a new lifestyle disassociated from his gang connections. The report writersaccept Mr Green will have difficulty adopting a new lifestyle, but they emphasise his9 The writers of the cultural report used the term as an "abbreviated summary of the long trajectoryon Māori of the impacts of colonisation and post-war policies of assimilation". I have used theterm, as Whata J did in Solicitor-General v Heta [2018] NZHC 2453 at [40], as a shorthand forthe "pervasive and persistent social disadvantage affecting Māori".willingness to accept help in the form of courses offered by the Department ofCorrections. In particular, Mr Green seeks to obtain his driver's licence.District Court decision[15] Judge Crayton provided a sentence indication on 15 April 2019. Adopting theburglary charge as the lead offence, Judge Crayton set the starting point at two years'imprisonment, in line with the Court of Appeal's decision in Arahanga v R.10 TheJudge then applied the following uplifts: four months for Mr Green's numerousprevious convictions for burglary; eight months for the firearms charge; one month forthe dangerous driving charge; and one month for each of the breach of releaseconditions. The result was a starting point of 39 months, arriving at an indicative endsentence of 29 months and three weeks' imprisonment.[16] At sentencing, on 8 August 2019, Judge Crayton began with the starting pointidentified in his sentence indication. The Judge then turned to the cultural report. Incontrast to his engagement with the PAC report writers, it was clear Mr Green hadengaged with the cultural report writers on a much greater personal level in relation tohis background and his aspirations for the future. Judge Crayton described LawrenceO'Reilly as "someone who speaks with great insight and force when it comes tooffending and offenders from the Māori community".11 Judge Crayton took on boardwhat had been placed before him in the cultural report. The reality was that unlessMr Green distanced himself from gang members, and distanced himself from thosewho influenced his life in antisocial ways, Mr Green would continue to offend and useand abuse drugs.12[17] Although the best indicator of future behaviour was often said to be pastbehaviour, Judge Crayton took into account Mr Green's wish for stability in hisrelationship and his equally strong wish to change his life.[18] Judge Crayton applied a discount of 11 per cent to recognise the factors in thecultural report that inextricably linked Mr Green's offending to his background.10 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.11 Sentencing notes, above n 1, at [15].12 At [16].[19] Applying a 25 per cent discount for guilty pleas, the Judge imposed an endsentence of two years and two months' imprisonment. With Mr Green's consent, thecultural report was to be provided to the Parole Board, the Department of Correctionsand the probation service. The Judge also delayed Mr Green's licence disqualificationto enable him to obtain his licence, following which the 18-month period ofdisqualification would take effect. Prominent in the Judge's mind was the possibilitythat Mr Green would have made different choices when confronted by the police if hehad his driver's licence. Those different choices would not have presented the dangerto the community or to himself that his decision to evade the police presented. TheJudge specifically wanted to make the process of obtaining a drivers' licence "easy"for Mr Green.Submissions for Mr Green[20] The main issue identified by Mr Leith, counsel for Mr Green, was the high riskof reoffending Mr Green is said to pose if he does not engage in rehabilitation.Mr Green is said to be at a turning point in his life and had he received a sentence oftwo years' imprisonment, or less, he could begin the rehabilitative steps upon hisrelease from prison having served half the sentence. Mr Leith made the followingsubmissions:The effect of the Judge's decision not to give a discount of 20% or more forthe s 27 factors has resulted in Mr Green having to wait for potentially an extra14 months before he is able to begin the very steps that the Court hopes hewill take.For the sake of 2 months the outcome for Mr Green is significant in terms ofthe overall time that he will end up spending in custody. That extra time injail eats away the very motivation that he has expressed in the s27 report.Submissions for Crown[21] For the Crown, Mr Benic submitted there was no material error in the sentence.Given the nature of the offending, and Mr Green's culpability, the end sentence wasnot manifestly excessive. Mr Benic observed the Judge had not applied an uplift forMr Green's many previous convictions and the 11 per cent discount for personalmitigating and cultural factors approximately reflected the extent of linkage betweenthe cultural factors, the appellant, and his offending. Critically, there was no basis todepart from the general principle that parole eligibility should not be taken intoaccount at sentencing. This was not an exceptional case requiring an emphasis onMr Green's rehabilitation over and above other sentencing principles.Discussion[22] Mr Green has not challenged the starting point adopted by the sentencing Judgeon the lead burglary charge, nor the uplifts for the other charges. The focus ofMr Green's appeal is squarely on the discount provided for cultural factors. Inessence, Mr Green's argument is that the 11 per cent discount allowed by thesentencing Judge was manifestly inadequate because it resulted in a long-term endsentence. For this reason, I begin by considering whether Mr Green may legitimatelyrely on his parole eligibility to support his appeal before turning to consider whetherthe sentencing Judge erred in discounting the sentence by 11 per cent.[23] A principle of long-standing requires a sentencing Judge to pass the sentencehe or she thinks appropriate to the occasion without consideration of the possibility ofparole. In R v Stockdale, the Court of Appeal explained the rationale for theprinciple:13The duration of any custodial sentence is generally best determined withoutreference to an offender's eligibility for parole. There are good reasons fortaking such a view. Sentences imposed by the Courts reflect the balancing ofa number of factors, including the nature and circumstances of the offence, thecharacter of the offender, the need for the imposition of a deterrent penalty,and the presence of mitigating factors. Moreover, the desirability of preservingsome uniformity of penalties between offenders convicted of the same kind ofoffence is always to be borne in mind. The balancing of these factors will notbe better effected if the sentencing Court is obliged to take into account, inimposing a sentence of imprisonment, an offender's eligibility for parole byreference to the length of sentence imposed.[24] In addition to these reasons for determining sentence without reference toeligibility for parole, the different roles of the Court and Parole Board must berecognised.1413 R v Stockdale [1981] 2 NZLR 189 (CA) at 190.14 At 191.[25] More recently, in Barnes v R, the Court of Appeal emphasised the limited scopefor parole eligibility to play a role in sentencing:15[77] In most cases sentencing will take place without consideration ofparole eligibility. However, if a court forms the view that a sentenceemphasising rehabilitation is appropriate and rehabilitation might be betterachieved by earlier eligibility for parole than would otherwise be the case, weconsider it will be legitimate to sentence on that basis having regard to therelevant principles set out in s 8(g), (h) and (i) of the [Sentencing] Act,notwithstanding s 84C(4). In an appropriate case, the result could beimposition of a sentence of imprisonment of two years or less, therebyenabling imposition of the standard and any relevant special conditions ofrelease.[78] We emphasise that course could only be taken for a genuine purposeunder the Sentencing Act; it would be quite wrong simply to adopt thatapproach for the purpose of avoiding the effect of s 86C.[79] We anticipate that it will only be in exceptional cases that sentencingjudges will be able to take this approach while ensuring that the purposes ofboth the Sentencing Act and the Sentencing and Parole Reform Act are served.[26] I have formed a clear view that Mr Green's circumstances are such that asentence emphasising rehabilitation is appropriate and that rehabilitation is more likelyto be achieved via a release date that is earlier than might be expected under the paroleprocess for a long-term sentence.16[27] Judge Crayton drew from the cultural report the likely causal factors inMr Green commencing a pattern of offending at a crucial stage in his childhooddevelopment. After identifying "systemic Māori deprivation" Judge Craytoncontinued:17The fact that you did not have a present father figure, that on research and onexperience identifies that you are at greater risk on a number of levels. Thatinextricably leads to offending, incarceration and drug misuse. That you weresomeone who shifted, not just shifted occasionally but shifted very frequentlythrough your early development. That of course impeded your ability toachieve academically and, of course, prevented the development of thoserelationships which would have been protective for you. That led you, itseems, to the gang life. As a young person you found those adult figures ofsupport, the adult male figures who were to influence your life, in that gang.And as is noted, this is something which reflects a compromised childhood.15 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.16 See Parole Act 2002, s 86(1).17 Sentencing notes, above n 1, at [14].[28] As did Judge Crayton, I have read the cultural report very carefully and morethan once. And, as was the Judge, I am impressed by its realism but also by the factthat, perhaps for the first time, Mr Green engaged with the report writer in a way thatbecame meaningful for him. From this engagement it seems Mr Green has gainedclarity and insight into how he comes to be where he is today.[29] Mr Green has continued to offend and continues to be returned to prison. Buthe says he has "had enough" and he wants a fresh start. Mr Green faces a dilemmabecause, as the Judge acknowledged, unless Mr Green distances himself from gangmembers and from those who influence his life in antisocial ways he will continue toreoffend and continue to use and abuse drugs. Judge Crayton took some confidencefrom Mr Green's engagement with the cultural report writer but that tended to be offsetby Mr Green's attitude towards "authority figures, particularly Probation, who aretrying to help or those who may have to supervise [his] sentence ".18[30] The most Judge Crayton felt able to allow by way of a percentage discount forthe cultural factors was 11 per cent.[31] The 11 per cent discount provided was within range given the circumstancesas they were before Judge Crayton, particularly when considering comparable casesinvolving burglary charges:(a) In Carroll v R, the Court of Appeal gave a combined discount of12.5 per cent for cultural factors and time spent on EM bail.19Ms Carrol was raised as a whāngai child by her grandmother becauseboth her parents had substance abuse problems. She was subjected tosevere physical discipline and was sexually abused as a child. She alsoreceived a disjointed education and withdrew from schooling afterfourth form with no formal qualifications.(b) In Te Whata v Police, Mander J gave a combined discount of 11 per centfor youth and traumatic upbringing.20 Ms Te Whata was aged 21 and18 Sentencing notes, above n 1, at [17].19 Carroll v R [2019] NZCA 172.20 Te Whata v Police [2016] NZHC 1293.22 at the time of her offending. She had lived in the streets as ateenager, and became addicted to synthetic cannabis, which fuelled herdishonesty offending.(c) In Waipouri v R, Duffy J gave a discount of 12 per cent for post-traumatic stress disorder and social deprivation.21 Mr Waipouri had anunsettled early childhood, raised initially by his great-grandparents andgrandparents, before being placed in state care at age 12. While in statecare, Mr Waipouri was physically, psychologically and sexually abusedby other boys and by staff. Mr Waipouri had developed amethamphetamine dependency.[32] Arguably, on the face of the decisions, the defendants in these casesexperienced more challenging backgrounds than Mr Green. There are, nevertheless,two particular matters that did not feature in Judge Crayton's assessment but which Iregard as highly relevant to my assessment of Mr Green's rehabilitative potential andwhether, therefore, that potential should dominate other sentencing principles. Thefirst has arisen since sentencing.[33] Mr Green has handed in his patch. Apparently, Mr Green has a familyconnection to the Mongrel Mob (the President of the local chapter) and Mr Green hascommunicated to that family member that he has handed in his patch. Mr Greenunderstands that taking this step may result in consequences for him on release. Iquestioned Mr Leith about what can legitimately be made of Mr Green's actions. Iaccept the submission that turning his back on the gang in this way is consistent withthe description in the cultural report of the stage Mr Green has reached. Mr Green'sacceptance of responsibility for his actions and their consequences has assisted himtowards what the report writers describe as a "reconfigured social identity". In thisregard Mr Green was said to be at a "liminal point". He is a known gang member,will highly likely have anti-social associates and in some respects harbours anti-socialviews himself. On the other hand, Mr Green is aware of the cost of his gangassociation and wants a different lifestyle.21 Waipouri v R [2015] NZHC 2029.[34] I take Mr Green at his word. It is not just that he has expressed to the culturalreport writers a set of aspirations but since that time he has followed through by takingpossibly the most difficult step of all — relinquishing membership of the gang thatrepresented his extended whānau.[35] A further indication of Mr Green's rehabilitative potential might be seen fromhis willingness to participate in restorative justice. While a submission to that effectwas made at sentencing, in fairness to Judge Crayton there was no reference in thecultural report to any restorative process being undertaken.[36] I have seen on the court file a memorandum from Whanganui RestorativeJustice reporting that Mr Green requested in May 2019 restorative justice to beconsidered but that, despite attempts being made to contact the victim, there was noresponse. Consequently, a restorative justice conference could not be convened.[37] If they chose not to engage, the victims were within their rights to do so. Thesignificance of Mr Green's offer to engage, however, is that it reflects in Mr Green anassumption of responsibility for his offending, and for the harm he caused to hisvictims.[38] This is one of those exceptional cases requiring the primary focus of thesentence to be on Mr Green's rehabilitation. These new factors suggest a greaterdiscount is available to account for the cultural background factors from whichMr Green's offending stems.[39] Mr Benic submitted it was a long bow to link the handing in of Mr Green'spatch to his statements to the cultural report writer that he wanted to change. I do notsee it as such a long bow. Mr Green is said to be motivated to rehabilitate and withinthe confines of prison there are limited options available to him to demonstrate that.Handing in his patch was one such option. It was imaginative and required real resolveand I regard it as meaningful. It seems to be completely consistent with the enhancedconsciousness Mr Green now has, as a result of the cultural report process, of thefactors in his life that have led him to his path of offending. It also demonstrates acommitment to addressing the main obstacle to rehabilitation identified byJudge Crayton: Mr Green's gang association.[40] Mr Benic submitted this appeal raised a novel issue of how cultural reports areto relate to a consideration of discounts when the offending involves different kindsof behaviours separated by weeks. For example, Mr Benic accepted that the linkbetween Mr Green's background and the firearms offending seems strong but not so,the link to the driving charges.[41] I take the point. Before Mr Green's culpability can be mitigated by culturalfactors in his background, the report must establish a nexus between the two.22 I donot read the Court of Appeal's discussion of the point in Arona v R as requiring, in thiscase, a linkage between the systemic, social deprivations that characterise Mr Green'sbackground and each particular offence for which Mr Green was charged. Ultimately,Mr Green's offending is linked to his gang lifestyle — engaging in behaviour thatignores the rules.[42] In short, the cultural report has established to my satisfaction the necessarynexus between Mr Green's cultural background, in particular his experience ofsystematic social deprivation, and his offending. And, more to the point, the real valueof the report has been in its identification of Mr Green's rehabilitation prospects.Those prospects are more than hopeful or theoretical. As I have discussed, Mr Green'sattempt to initiate a restorative justice meeting and his more recent relinquishing ofhis patch, tend to demonstrate a deep (and hopefully lasting) wish for change.[43] Mr Green has a partner who is supportive and understands how to help himand he has a pathway that he knows he can travel to achieve his rehabilitative potential.Mr Green understands it will be no easy task for him and he accepts the significanthurdle he must overcome. As Mr Leith submitted, this appeal really is about assessingMr Green's motivation. I have done that and accept Mr Leith's characterisation of thispoint as being about "trying to capture the moment" — to get Mr Green on arehabilitative track and assist him to maintain his motivation. I also accept that thelonger he is in custody the greater the risk of his motivation being eroded.22 Arona v R [2018] NZCA 427 at [59].[44] In making this assessment I have not lost sight of the caution against"tinkering". That is a long-established principle. This appeal was advanced on thebasis of exceptional circumstances justifying a sentence focused on rehabilitation,making it appropriate therefore to take parole eligibility into account at sentencing. Inconsequence of the exceptional circumstances I have found to exist, Mr Green'ssentence was manifestly excessive. In that situation, the minor reduction inMr Green's end sentence does not offend the "tinkering" principle.[45] I wish to emphasise that I have not lost sight of the victims of Mr Green'soffending, in particular the young child whose piggybank Mr Green stole. I have re-read the victim impact statement and its description of the emotional harm on bothmother and daughter. They should feel their home is a place of sanctuary. It is to behoped that with a sentence emphasising rehabilitation, others will be spared theemotional harm and sadness that was the consequence of Mr Green's indifference tothis child's, and her family's, peace of mind.Result[46] The appeal against sentence is allowed.[47] The sentence of two years and two months' imprisonment imposed in theDistrict Court is quashed. In its place a sentence of two years' imprisonment isimposed. The order for the destruction of the firearms remains._____________________________Karen Clark JSolicitors:Crown Solicitor, Whanganui for Respondent