ROBERTS v R [2020] NZCA 441

ROBERTS v R [2020] NZCA 441 [21 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA564/2019[2020] NZCA 441BETWEEN SAMUSETA EZRA ROBERTSAppellantAND THE QUEENRespondentHearing: 15 June 2020Court: Courtney, Brewer and Hinton JJCounsel: L O Smith for the AppellantE J Hoskin for the RespondentJudgment: 21 September 2020 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The application for leave to adduce fresh evidence on appeal is grantedC The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] On 13 September 2017 Judge Sainsbury sitting in the District Court atManukau sentenced Mr Roberts to an effective term of seven and a half years'imprisonment for a two-month crime spree (as they are inaptly described) includingfive aggravated robberies.11 R v Roberts [2017] NZDC 20833 [Sentencing decision].[2] Mr Roberts appeals that sentence as manifestly excessive on the basis that theJudge gave insufficient discount for youth and mental health.[3] At the age of 19 Mr Roberts was deported from Australia to New Zealand.This was in March 2016.[4] The index offending was committed in May and June 2016. Mr Roberts alsocommitted other offending in the same time frame for which he was sentenced byJudge Fraser in the District Court at Auckland on 4 November 2016.2 This is relevantas the September 2017 sentence at issue was imposed by Judge Sainsbury on acumulative basis.[5] Mr Roberts filed two notices of appeal. The second notice, replacing the first,was filed on 10 March 2020, some 18 months out of time.3 The Crown does notoppose leave being granted given the absence of any prejudice. In those circumstanceswe grant leave.Background[6] The following summary is taken from Judge Sainsbury's description of thefacts of the index offending.[7] The first charge of aggravated robbery arose on 22 May 2016.4 Mr Robertsthreatened a bakery owner and the owner's daughter with a screwdriver. He demandedthey hand over money. When told there was CCTV, he said "I don't care about shit,just give me money". The occupants handed over about $160.[8] On 27 May 2016 Mr Roberts again committed aggravated robbery when heand an associate robbed two occupants of a car parked in a carpark. He approachedthe driver's door and his associate the passenger's door. Mr Roberts opened thedriver's door and picked up a handbag sitting between the seats. One of the victimstried to hold onto the bag. Mr Roberts dragged that victim out of the car and onto the2 Police v Roberts [2016] NZDC 22610.3 Criminal Procedure Act 2011, s 248(2).4 Crimes Act 1961, s 235(c). Maximum penalty 14 years' imprisonment.ground before stomping on the victim's back, ribs, and buttocks and punching thevictim in the face. He took off with the victim's bag which contained a bank card, cellphone and passport. Meanwhile, Mr Roberts' associate had taken a wallet, money,cigarettes and another mobile phone from the other victim. Transactions were madeusing one of the bank cards on 30 May, giving rise to a charge of dishonestly using adocument.5[9] On 4 June 2016, Mr Roberts converted a motor vehicle that had been leftparked on East Tamaki Road.6 Mr Roberts and two associates then went to theKathmandu store at Botany Downs in the converted vehicle. They smashed their wayinto the store, took property with a retail value of $20,000, then sped off in the stolenvehicle. This gave rise to a charge of burglary.7[10] That same day Mr Roberts and some of his associates went into a liquor storeat Pakuranga after disguising their faces. They demanded cash and alcohol.Mr Roberts ran towards one of the store workers armed with a crowbar. One of hisassociates gave the impression that he also had a weapon. Mr Roberts assaulted oneof the shop workers, stomping on his head two or three times. The offenders tookalcohol and cigarettes with a retail value of around $1,500. They demanded thatsomeone else hand over his wallet, which he did. It contained a little under $200 cash.As the offenders were leaving Mr Roberts picked up a full bottle of alcohol and threwit at one of the victims. It smashed over the victim's right shoulder but did not leaveany cuts. This again gave rise to a charge of aggravated robbery.[11] Another aggravated robbery arose on 5 June 2016. Mr Roberts and twoassociates went to a service station in Botany Downs. They drove their car at the frontdoors, causing them to break, and entered the store. Again, Mr Roberts was armedwith a crowbar. The staff present managed to get into a safe room. Mr Roberts andhis associates took the cash register which contained about $200 and fled.5 Section 228(1)(b). Maximum penalty seven years' imprisonment.6 Section 226(1)(a). Maximum penalty seven years' imprisonment.7 Section 231(1)(a). Maximum penalty 10 years' imprisonment.[12] Mr Roberts and a large group of associates returned to the Botany DownsKathmandu store on 8 June 2016. They pulled up to the rear roller door of the store.Because of the burglary on 4 June, there was a security guard present. Mr Roberts andhis associates, using one of their cars, broke through the roller door. They entered thestore. Mr Roberts, seeing the security guard, ran towards him and punched him in thehead numerous times. The security guard was dazed but managed to escape.Mr Roberts and his associates went into the store, stealing $40,000 or so (retail value)of property. Some but only a minority of this property had been recovered at the timeof sentencing. This gave rise to the fifth charge of aggravated robbery.[13] The final offence for which Judge Sainsbury sentenced Mr Roberts was arobbery.8 In the early evening of 10 June 2016 Mr Roberts went to a residentialaddress in Manukau, went into the victim's bedroom in the garage and threatened tokill the victim. He told the victim to "[s]how me your shit and give me your phone".The victim handed over the phone, valued at about $600. There were other demandsmade for property, but it was the phone that was stolen.The District Court sentencing[14] Having recited the facts of this offending, Judge Sainsbury referred to theoffending for which Mr Roberts had been sentenced to two years' imprisonment byJudge Fraser in November 2016. This separate offending included robbery, an assaultand driving offences. Judge Sainsbury said the separate offending was not dissimilarto the index offending and noted it had taken place during the same period in 2016.The Judge said he intended to impose a sentence cumulative on that imposed byJudge Fraser and noted he needed to ensure the overall sentence was appropriate,having regard to totality.[15] As no issue is taken with the starting point adopted in respect of the offending,or the Judge's approach to totality, it is unnecessary for us to detail Judge Sainsbury'scareful approach to setting a starting point. Suffice to say, the Judge noted theaggravating features of each aggravated robbery offence, and, having taken the liquorstore robbery as the lead offence, likened that to the example of the robbery of a small8 Section 234. Maximum penalty 10 years' imprisonment.retail store given by this Court in the guideline case of Mako.9 Having also comparedthe facts of Mr Roberts' offending to those of three cases considered by this Court,the Judge adopted a starting point of 11 years' imprisonment, with an uplift to 11 yearsand six months' imprisonment to reflect that the offending occurred while on bail.The Judge recorded that he was uplifting by 12 months but in fact uplifted by sixmonths.[16] Turning to consider the personal mitigating factor of youth, the Judge notedthat Mr Roberts was 19 at the time of the offending, had criminal history in Australiaand had been deported as a consequence. The details of that offending were unclear.The Crown did not seek an uplift in that respect but the Judge noted it bore on theextent to which a discount for youth was appropriate. The Judge accepted, on the basisof Churchward v R,10 that incomplete cognitive development, susceptibility toimpulsive actions and lack of understanding of consequences meant "youth should betaken into account".11[17] As to the role of mental illness in Mr Roberts' offending the Judge said:[30] Where this offending is clearly linked, and it is apparent in thepre-sentence report and in the material that I have been referred to in thesubmissions, is that during this time Mr Roberts had developed a severemethamphetamine addiction and offending was very much driven by that.Further, his situation was that he had recently been deported from Australia.It meant that he arrived in New Zealand with no support; most of his familyare in Australia and he was simply left to his own devices. At age 19 comingfrom a background where he had problems with the law in Australia andclearly some difficulties coping and managing to live in a pro-social way, it isnot surprising that he has ended up where he is.[41] A further factor is that of mental illness. The information is providedtoday through the forensic liaison nurse noting that there is a forensic history.The exact nature of it cannot be ascertained at this point. There had beendiscussions to whether it would be better for the sentencing to be put off.Mr Roberts was keen to proceed today, perhaps against the very good adviceof Mr Cassidy it would seem. But what I can take from the information beforeme is that there appears to be a history of mental illness. Mr Roberts has beenon medication for psychosis. Unfortunately it seems at the time of thisoffending he had stopped taking his medication.9 R v Mako [2000] 2 NZLR 170 (CA) at [56].10 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.11 Sentencing decision, above n 1, at [40].[42] It is difficult for me to know whether this is a situation of psychosisexacerbated by methamphetamine use or methamphetamine inducedpsychosis. But there does appear to be certainly some basis that there isunderlying mental illness. It is difficult, I think, for me to give a discount onthe basis of diminished responsibility without more detailed information. ButI do think that the issue of mental illness does need to be factored in. In termsof the youth discount, it can be looked at as adding to the weight of argumentabout impulsive action, lack of understanding of consequences.[18] The Judge concluded by deducting two years for youth and mental illness (alittle over 17 per cent) and then a guilty plea discount of 25 per cent. The Judge thenexpressly rounded down (by about six weeks) to an end sentence of seven years'imprisonment on the basis that "people who have been brought back from Australiathrough deportation [are] effectively left in the community to their own resourceswithout appropriate supervision or support".12 While the Judge made clear he did notsee the deportation or related challenges as excusing Mr Roberts' offending, heconsidered it "hardly surprising" that Mr Roberts "fell into drug use and into crime"following his forced return here while "young with an overlay of mental healthissues".13 The effect of the rounding down brings the discount up to over 18 per cent.[19] The Judge refused to impose a minimum period of imprisonment under s 86(2)of the Sentencing Act 2002 for essentially the same reasons that he had awarded youthand mental health discounts. While agreeing that Mr Roberts' offending was serious,such that concerns of denunciation, deterrence and community protection needed tobe given weight, the Judge said he did not "believe that even a young person with abad history has no prospect of rehabilitation".14 So as to prioritise that purpose ofsentencing he did not accede to the Crown's request for a 50 per cent minimum periodof imprisonment.[20] While the end sentence was seven years' imprisonment, taking account of thealready existing two-year prison sentence and considerations of totality, the Judgeimposed a cumulative sentence of five years and six months' imprisonment in respectof the liquor store robbery as the lead offence. The total sentence Mr Roberts would12 At [45], citing Police v Roberts, above n 2, at [1].13 At [46].14 At [50]–[51].serve in respect of all the 2016 offending was therefore seven years and six months'imprisonment.15Analysis[21] Counsel for Mr Roberts on appeal, Mrs Smith, submits that the aggregatediscount awarded by the Judge in respect of Mr Roberts' youth and mental health wasinsufficient, such that the sentence was manifestly excessive. Mrs Smith says that theyouth discount alone should have been approximately 20 per cent and a discrete furtherdiscount should have been awarded for mental health of somewhere between 12 and30 per cent.[22] The appellant says the Judge should have ensured there was further evidenceto properly assess the mental health discount before proceeding to sentencing.He seeks leave to adduce further evidence including an affidavit from himself, a letterfrom Dr Chua and an extensive affidavit from Dr Duggal, both forensic psychiatrists.[23] We begin by noting that it is permissible for a Judge to consider youth andmental health together, providing each mitigating factor is properly allowed for in theprocess.16 However, to address the argument on appeal we consider each factorseparately.Youth[24] Youth is relevant to sentencing in several ways. These include youngoffenders' incomplete neurological development; associated poorer judgment andgreater impulsivity than adults, which can lessen the culpability of their offending; thefact that younger offenders not yet hardened into a life of criminality have a greatercapacity for rehabilitation, which can be imperilled by the imposition of a severecustodial sentence early in life; and the greater harshness of imprisonment on youngoffenders.1715 At [53].16 P (CA479/2015) v R [2016] NZCA 128 at [34].17 Churchward, above n 11, at [77]].[25] Mr Roberts was only 19 when deported from Australia and when he committedthe offending. He had no family or any real support here other than a brother whocame back to help him. A discount for youth was clearly warranted. We agree withthe Judge that the discount would be tempered by the previous offending in Australia.It would also be tempered by the scale of the 2016 offending in total. A sustainedsequence of offending such as occurred here cannot be described as impulsive ornaive.[26] Youth discounts vary widely and are often combined with other related factors,as the Judge did here, such that comparison with other cases is difficult.[27] We consider a reasonable parallel can be drawn with Hemopo v R.18 This Courtconsidered a discount of approximately 11 per cent appropriate from a nine-yearstarting point for a 19-year-old offender with previous convictions for violence anddrug offending who was being sentenced in respect of a single charge of aggravatedrobbery. The Court agreed any larger discount for youth and rehabilitative prospectswas inappropriate given Mr Hemopo's already significant criminal history.19[28] Ms Hoskin, counsel for the respondent, referred us to two further cases.[29] In Molia v R, Mr Molia and his co-offender robbed a dairy with a slug pistol.20Even though he was only 18 at the time this was Mr Molia's eighth offence as an adult,having been convicted of wilful damage on five occasions and two burglaries, allwithin a narrow period of time. This constrained the availability of a youth discount,but a discount of 15 per cent was allowed in light of what the Court regarded asMr Molia's nonetheless strong rehabilitative prospects.21[30] In Tukaki v R, which we consider more comparable, Mr Te Rangi had alongwith two others used a shotgun to steal $16,000 from a tavern, assaulting staff andpatrons.22 At the age of 19, the appellant had already accrued 28 convictions as an18 Hemopo v R [2016] NZCA 242.19 At [19]–[20].20 Molia v R [2013] NZCA 512.21 At [19].22 Tukaki v R [2013] NZCA 411.adult, the majority of which were for burglary and other dishonesty offences. Giventhis lengthy track record, and his complete lack of remorse and insight, the Court heldthat a discrete discount for youth was not necessary. Instead, removal of the six-monthuplift on the starting point imposed in the District Court was appropriate.23[31] Mrs Smith relies on R v Feleti.24 An 18-year-old offender, convicted of themanslaughter of his colleague in a spontaneous outburst, was awarded a 25 per centdiscount for youth and remorse. Toogood J divided this into separate discounts of 20per cent for youth and five per cent for remorse but clearly intended these to be relatedto each other.25 Furthermore, the Judge was strongly influenced by Mr Feleti'srehabilitative prospects and demonstration of insight.[32] Feleti is clearly distinguishable. Toogood J considered it significant that themanslaughter was entirely out of character for Mr Feleti. Mr Feleti had taken steps torehabilitate and was at a low risk of reoffending. The manslaughter involved a single,spontaneous, wanton act illustrating the impulsivity of youth.[33] Conversely Mr Roberts has a history of offending which suggests he is alreadysomewhat hardened into a life of criminality. He is assessed at a medium to high riskof reoffending, and was regarded by pre-sentence report writers as insincere andsuperficial in his statements of remorse and insight. We are particularly concernedthat Dr Duggal notes Mr Roberts has left both courses he has attempted to engagewith, saying he did not need them. Moreover, as noted, Mr Roberts engaged in asustained pattern of offending over time, not a single impulsive, albeit devastating,attack.[34] Clearly a youth discount is less appropriate in Mr Roberts' case than inMr Feleti's. The same is true by comparison to Molia given Mr Molia was assessedas having strong rehabilitative prospects which are not evidenced here. ThoughMr Roberts' offences display the poor judgment characteristic of many youth23 At [16]–[18].24 R v Feleti [2019] NZHC 94.25 At [44].offenders, this is not a case in which his youth significantly reduces the call fordenunciation, deterrence or community protection in sentencing.26[35] Rather, by comparison to Hemopo and Tukaki, an appropriate discount foryouth could not exceed ten per cent.Mental health[36] Broadly speaking, a mental disorder not amounting to exculpatory insanity ispotentially relevant to sentencing in three ways.27 First, if causative of the offending,it may reduce the moral culpability (if not legal responsibility) of the offender in termsof the first stage of sentencing. This is because mental illness can impair the rationalchoice made to offend. 28 Second, for the same reason, it may also bear on the weightto be given to the deterrent aspect of sentencing at stage one.29 Third, the disordermay mean that an otherwise appropriate sentence would be disproportionately severebecause of consequential impairment in coping with prison life, being a mitigatingcircumstance personal to the offender.30[37] The Judge recognised that Mr Roberts had a history of mental illness that wasexacerbated by methamphetamine use or possibly triggered by it. He noted thedifficulty of giving a discount on the basis of "diminished responsibility" (in the firstsense noted above) without more detailed information.31 He referred to a letter fromthe forensic liaison nurse dated 12 September 2017 and also to Mr Roberts havingbeen on medication for psychosis, which it seemed he had stopped taking at the timeof the offending.[38] The forensic nurse's letter referred to clinical notes made between January andJuly 2017 which recorded Mr Roberts reporting auditory hallucinations but alsoreferred to clinical staff noting inconsistencies in his reporting and a suggestion that26 Churchward, above n 11, at [84]. See also Mako, above n 8, at [65]; and Tukaki, above n 14, at[19].27 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].28 E(CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70]; and Shailer v R [2017]NZCA 38, [2017] 2 NZLR 629 at [50].29 E(CA689) v R, above n 29, at [70(c)].30 Sentencing Act 2002, s 8(h). See generally R v Verschaffelt [2002] 3 NZLR 772 (CA).31 Sentencing decision, above n 1, at [42].the symptoms related rather to "ruminative thoughts". The same notes record that asat July 2017, despite his claims, Mr Roberts appeared to be functioning well.The nurse's letter records that Mr Roberts was not experiencing any hallucinations orpsychotic symptoms as of 12 September 2017. The Judge made no reference to anyof these details.[39] In an affidavit filed in support of his appeal, Mr Roberts says the forensicnurse's letter was incorrect in that he had been experiencing auditory hallucinationsand other psychotic symptoms for 20 months before sentencing, that is over the timeframe of the offending. He says he has been diagnosed by Dr Chua withschizophrenia, re-started on medication and feels completely different including nolonger hearing voices. That diagnosis and decision to re-medicate appears to havebeen in late 2019.[40] Mr Roberts attaches to his affidavit a one-page letter dated 7 February 2020from Dr Chua. Dr Chua says that at an earlier assessment, apparently in October 2019,Mr Roberts did not disclose psychotic symptoms, but he subsequently describedhaving paranoid delusions. She concludes that in her opinion Mr Roberts isschizophrenic and suffers from auditory hallucinations, paranoia and referentialdelusions with associated dysphoric mood (intense feelings of depression, discontent,and anomie). She concludes he also has a co-morbid substance use disorder (namelymethamphetamine and cocaine). Dr Chua's letter says that, following Mr Roberts'restarting a course of psychotropic medication, he was much improved as at February2020 and the hallucinations had ceased.[41] Mrs Smith also sought to adduce a comprehensive affidavit dated 6 March2020 from Dr Duggal, a forensic psychiatrist employed by the Regional ForensicPsychiatry Service in Auckland. Dr Duggal deposes in considerable detail to hisevaluation of Mr Roberts' mental health based on an interview conducted on24 February 2020, information related to Mr Roberts' offending, and Mr Roberts'clinical history.[42] Mrs Smith asked Dr Duggal to advise whether Mr Roberts suffered fromschizophrenia at the time of the offending. In reply (making no reference toschizophrenia) he deposes that Mr Roberts was "vulnerable to developing seriousmental illness on the basis of contracting meningitis during childhood and exposure tomethamphetamine by early adolescence". Dr Duggal notes that Mr Roberts presentedwith symptoms of psychosis during the period of the offending in 2016, likely inducedby methamphetamine use, and demonstrates signs of antisocial personality disorder.However, Dr Duggal seems to agree with the forensic nurse, and other assessments hedetails, that Mr Roberts' later self-reporting of symptoms is inconsistent, and thatMr Roberts' condition is susceptible to effective management through medication.[43] When asked where he could establish a causative relationship between anymental illness and the offending Dr Duggal answers:While symptoms of psychosis may have been active during the period of indexoffending and contributed to impulsivity and impaired judgment, they did notappear to be a direct 'driver' of the index offending. By [Mr Roberts'] ownadmission, the nature of the index offending was predominantly acquisitive innature and driven primarily by the need to obtain more methamphetamine.Further, methamphetamine use during that time was also highly likely to haveaffected Mr Roberts' judgment.Therefore, I was of the view that Mr Roberts' index offences were primarilydriven by the use of methamphetamines in the context of antisocial personalitydisorder. Mr Roberts' psychotic symptoms may have contributed to impairinghis judgment, but were not likely to be 'causative' of his index offending.(Emphasis in original).[44] Mrs Smith had also queried of Dr Duggal, and initially raised on the appeal,whether an appropriate sentencing response should include a "therapeutic element" totreat the mental disorder. However, Dr Duggal deposes that Mr Roberts' conditionwas unlikely to have met the criteria for "mental disorder" under the Mental Health(Compulsory Assessment and Treatment Act) 1992.32 The main therapeutic elementhe would recommend is substance abuse counselling to address Mr Roberts'methamphetamine use. This point was not of further relevance on the appeal.[45] The new reports, particularly that of Dr Duggal, provide a great deal moreinformation as to Mr Roberts' background, unfortunate mental health issues and heavy32 Accordingly, Dr Duggal considered it unlikely that Mr Roberts would have been eligible to receivea therapeutic disposition under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act2003.methamphetamine use. Absent objection from the Crown, we grant Mr Roberts'(informal) application to adduce this and the other fresh evidence referred to on appeal.[46] However, this additional evidence does not materially alter the landscape ofMr Roberts' culpability beyond that already assessed by Judge Sainsbury anddescribed above.[47] Mr Roberts' mental health issues, whether these were exacerbated or werecaused by his methamphetamine addiction, are clearly part of the background againstwhich his offending occurred, as stated by Dr Duggal. However, for the same reasonscanvassed in his report, there is not enough evidence to disclose the causative link thatwould be required for a material discount on account of mental health in the first orsecond categories noted above at [36].[48] Turning to the third basis for a mental health discount, the medical evidencedoes not establish Mr Roberts would face any greater difficulty in coping with a prisonsentence than the average offender. In fact, Dr Duggal's report suggests incarcerationmay benefit Mr Roberts' health; his methamphetamine abuse disorder is considered tobe in remission due to the controlled environment of the prison.Conclusion[49] In these circumstances the overall discount allowed by the Judge on accountof youth and mental health issues remains appropriate, having regard to the discountsallowed in the other cases noted above.[50] We also note that for similar reasons of youth and mental health concerns,Judge Sainsbury awarded a full 25 per cent discount for the guilty pleas despitelateness, allowed a further six-week discount on account of the issues arounddeportation, and declined to impose a minimum period of imprisonment, all of whichwe agree with for the same reasons. This is not a case where what was expresslydescribed as a discount for youth and mental illness stands alone. Judge Sainsburyhas brought the appellant's personal characteristics to bear throughout his decision.[51] In addition, the starting point of 11 years was arguably at the lower end of therange and although the Judge said he was uplifting by 12 months for offending on bail,he uplifted only by six months.[52] For all of these reasons we would not disturb the sentence imposed on thegrounds advanced by counsel. We note though that it is clear from Dr Duggal's reportthat Mr Roberts has been significantly benefitted by the expert medical attention hehas received, much of which must be attributed to the efforts of Mrs Smith.Change in sentencing methodology[53] Since the appeal was heard, this Court has delivered its decision in Moses vR.33 Moses departs from the three-stage approach to sentencing articulated by thisCourt in Hessell v R and recapitulated in Clifford in favour of a two-stage approachwhere discounts in respect of personal factors and guilty plea are applied together, notsequentially.34[54] Applying the Moses approach and combining the discounts would increase theoverall discount by six months from that awarded by the Judge. However for thereasons given above, we consider the end sentence arrived at by the Judge was alreadygenerous to Mr Roberts. Therefore applying the Moses methodology would not leadus to the view that the sentence imposed is manifestly excessive such that a differentsentence should be imposed.Result[55] The application for leave to appeal out of time is granted.[56] The application for leave to adduce fresh evidence on appeal is granted.[57] The appeal against sentence is dismissed.33 Moses v R [2020] NZCA 296 at [45]–[46]. See also Chai [2020] NZCA 202 at [37]; and Royal vR [2002] NZCA 129 at [29].34 Compare R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; Hessell v R [2010] NZSC 135,[2011] 1 NZLR 607; and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].Solicitors:Crown Law Office, Wellington for Respondent