WIPA v R [2018] NZCA 219

WIPA v R [2018] NZCA 219 [27 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA323/2017[2018] NZCA 219BETWEEN TANE WIPAAppellantAND THE QUEENRespondentHearing: 9 May 2018Court: French, Miller and Williams JJCounsel: D S Niven for AppellantK S Grau and J E Mildenhall for RespondentJudgment: 27 June 2018 at 11.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The appellant is sentenced to four years and nine months imprisonment.C Indication that, but for s 86C of the Sentencing Act 2002, the Court wouldhave confirmed a minimum period of imprisonment of two-thirds ofthe appellant's sentence.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Wipa was found guilty at trial of the aggravated robbery of an Aucklanddairy. The Crown case was that his two accomplices, both youths, robbed the dairywhile he, the adult leader, stood lookout outside. The case against him rested on CCTVfootage. Mr Wipa challenged his identification and argued that the footage did notestablish participation or guilty knowledge of what was happening in the dairy.He elected not to give evidence.[2] The sentence was five years and three months imprisonment, a term whichincluded a nine-month uplift for, among other things, previous relevant offending.1One of those previous offences was a robbery, a first-strike offence.2 The aggravatedrobbery was a second-strike offence. Accordingly, Judge Gibson was required to, anddid, order under s 86C(4) of the Sentencing Act 2002 that Mr Wipa serve the full termwithout parole.3[3] This appeal is brought against sentence only. It is said that a different sentencewould have resulted had the defence been run differently, or had Mr Wipa pleadedguilty. He attributes the sentence he actually received to counsel error. For reasonswhich we can state quite shortly, we do not accept that his trial counsel, Ms Ives, erred.[4] When sentencing an offender on a second-strike offence the court must alsoorder that the offender serve the full term, meaning that the offender may not beadmitted to parole on a long-term sentence or granted early release on a short-termone.4 The appeal requires that we decide whether the court may also increase thesentence for previous convictions that include the first-strike offence. This Court wasnot required to decide this point in its recent substantive decisions on second-strikesentencing, Barnes and Paerau,5 although the Court in the latter case expressed theview that an uplift for a first strike offence contained an element of "double counting",6and there is some conflict in High Court decisions.71 R v Wipa [2017] NZDC 10679 at [14].2 Sentencing Act 2002, s 86A, definition of "serious violent offence".3 R v Wipa, above n 1, at [18].4 Sentencing Act 2002, s 86C(4).5 Barnes v R [2018] NZCA 42; and Paerau v R [2018] NZCA 139. The Court also briefly consideredthe issue in Dibben v R [2018] NZCA 134 but did not have the benefit of full argument on the issue,and we say no more about it.6 Paerau v R, above n 5, at [43].7 R v Wereta [2014] NZHC 2555; and Palalagi v Police [2015] NZHC 1832. In Barnes v R, aboven 4, at [63]–[64] and [77], this Court held that Palalagi was wrongly decided insofar as it held thatparole is not a relevant consideration in second strike sentencing, but there was no uplift to contendwith and the Court did not consider whether an uplift would amount to double counting.Relevant facts[5] Mr Wipa admits that he initially instructed Ms Ives that he was not at the sceneof the robbery. He also knew that aggravated robbery was a second-strike offence,and he acknowledged before us that he wished to avoid conviction on that charge ifpossible.[6] He changed instructions when the CCTV footage from the dairy was disclosed,telling counsel that he was passing and picked up cigarettes thrown onto the street.On this basis Ms Ives sought unsuccessfully to negotiate a plea to theft.[7] Much later, the police disclosed footage of Mr Wipa with the co-offenders in anearby McDonalds. The footage showed what appeared to be a drug transaction someminutes before the robbery. The Crown was also able to show the two youthsapparently trailing Mr Wipa as he walked up Queen Street in the direction of the dairy.[8] However, Mr Wipa's instructions at the time of trial remained as we have setout above. The substance was that he was guilty of an opportunistic theft but hadnothing to do with the robbery.[9] Mr Wipa and Ms Ives agree that she advised he had a reasonable defencefounded on identification. She succeeded in having ruled inadmissible the evidenceof a police officer who knew Mr Wipa and would have identified him from the CCTVfootage.8[10] However, in evidence before us Mr Wipa maintained that Ms Ives overstatedthe prospects for his defence and strongly advised him not to give evidence. He nowsays that he wanted to give evidence and would have been prepared to plead guilty toaggravated robbery. He accepts that at trial he gave Ms Ives signed instructions thathe would not give evidence but contends that because of its effect on the choice ofdefence the decision had to be made pre-trial.8 R v Wipa DC Auckland CRI-2016-004-6338, 9 March 2017.[11] We do not accept this evidence. Rather, we prefer Ms Ives's evidence that therewas no difference of opinion about the defence and Mr Wipa did not say he wanted togive evidence. He is not a stranger to the court system, and he understood that to giveevidence was to put all his eggs in the participation basket, ruling out a viableidentification defence. The participation defence carried significant risk in that theinference was clearly available that the robbery was planned by the three atMcDonalds. As noted, Mr Wipa signed instructions stating that he did not wish togive evidence.[12] That being so, this is a case in which an appellant regrets a tactical decisionmade at trial. No miscarriage of justice has resulted.9 Nor did Mr Wipa instructcounsel that he wanted to plead guilty to the aggravated robbery. He knew it was asecond-strike offence, and a guilty plea would have been incompatible with hisinstructions about his non-participation.Implications for the sentence appeal[13] As noted, this is a sentence appeal only.10 It proceeds on the basis, accordingly,that Mr Wipa was rightly convicted of aggravated robbery. Mr Wipa maintains thathe would have been better off had he pleaded guilty because he could then have puthis account before the judge in a disputed facts hearing.[14] We accept that on a guilty plea Mr Wipa would have been able to seek adisputed facts hearing if aggravating facts were disputed in some material way. Hemight also have given evidence at such a hearing after trial, if the Crown had takenthe unusual step of asking the judge to rely on material aggravating facts not provedat trial.[15] However, the obvious difficulty is that a sentencing judge must take as provedall facts essential to the charge, and those facts may compel inferences aboutknowledge. Judge Gibson inevitably found that Mr Wipa knew that violence would9 R v Sungsuwan [2005] NZSC 37, [2006] 1 NZLR 730 at [65]–[67]; and R v Scurrah CA159/06,7 August 2006 at [17]–[18].10 In Singh v R [2017] NZCA 398 at [3] this Court held that a sentence appeal may be brought forcounsel error.likely be used because that violence was the natural consequence of the complainant'sprotests when his co-offenders robbed the dairy.11 We agree. Mr Wipa could not havebeen heard to advance his claims that he knew and did nothing culpable except stealsome cigarettes.[16] This leaves very little room to complain about the facts relied upon atsentencing. Any difference in outcome would have to result from the view taken ofthe facts by the sentencing judge after trial. We accept that after trial a judge may takeas proved any aggravating facts given in evidence and consistent with the jury verdict,while at a sentencing hearing the Crown would have to prove any disputed aggravatingfact, and in practice the Crown is unlikely at such a hearing to call all the evidence itwould lead at trial. But Mr Niven could point to no fact that Judge Gibson relied uponand which was not necessarily implicit in a guilty plea.[17] Had he pleaded guilty Mr Wipa certainly would have been better off in that hewould have received a discount for his plea, though it would have been reduced had adisputed facts hearing been held. But that possibility would arise here only if weaccepted that his election to go to trial was attributable to counsel error, such that heought to receive credit on appeal for a notional guilty plea. Our finding that there wasno counsel error precludes any such allowance.[18] The appeal must fail insofar as it rests on counsel error. That leaves only theuplift for prior offending.The uplift[19] Mr Wipa, who is now 31, was raised in Australia and had a significant criminalhistory there before he was deported to this country in 2012. His record since thencontains some 15 offences. Three of the prior offences are for offences of violence.At the time of this offence, he was still subject to release conditions pursuant to hisprevious sentence of imprisonment.[20] Judge Gibson imposed a nine-month uplift, as noted above. He said:11 R v Wipa, above n 1, at [10].[13] The Crown also seeks an uplift for your previous history both inNew Zealand and in Australia as well as the fact that you offended while undersentence you having shortly been released from prison before this offence tookplace. You are in fact a habitual criminal and have been since a young age,both in Australia and, as your record shows, now in New Zealand.Your previous convictions in both countries are obviously relevant in terms ofuplift purposes.[14] Overall and taking into account the fact that the uplift has to includea small degree of uplift for offending while still under sentence, as you weresubject to release conditions, having been released from prison shortly beforethe offence, the uplift will be nine months' imprisonment so that your effectivesentence is five years and three months' imprisonment.[21] The Judge recorded that, following Palalagi v Police,12 he could not adjust theuplift for the fact that this was a second-strike sentence:13[15] Your counsel has sought not to have any uplift imposed on youbecause you are subject to the three strikes legislation and she has responsiblydrawn my attention to two competing decisions in that respect. The firstR v Wereta was a case where counsel argued that an uplift ought not to beimposed for previous convictions because it would amount to double countingas it was the fact of the previous convictions that led to the second-strikewarning. As Her Honour Justice Courtney noted that submission had not beenraised in previous cases but she accepted it.[16] However, a more detailed analysis of the legislation and of the effectof previous convictions in terms of an uplift was undertaken by Justice Moorein Palalagi v Police in which he examined the intent of the legislation andconfirmed the existing approach that parole issues ought not to concern Judgeson sentencing, and that there was nothing in the legislation to suggest thatnon-eligibility for parole under s 86C was intended to affect the calculationand determination of sentence length and so he did not agree that an uplift forprevious convictions could amount to double counting.[17] That is the decision I prefer to follow. There is a detailed analysis ofthe relevant legislation in Palalagi and it seems to me to approach the matterin any other way would seem to undermine Parliament's intention in enactingthe three strikes legislation given that it did not incorporate any amendmentsto the Sentencing Act 2002 to suggest that uplifts for previous convictionsshould not be taken into account where the offender was subject to thelegislation.[22] Judge Gibson added that but for the second strike he would have imposed aminimum period of two-thirds of the sentence for deterrence and denunciationpurposes.1412 Palalagi v Police, above n 7.13 R v Wipa, above n 1 (footnotes omitted).14 Section 86C(6) of the Sentencing Act provides that where the court would have ordered that theoffender serve an increased minimum period it must state that period and give reasons.The appeal[23] Mr Niven took two points about the uplift. The first, which we accept, is thatJudge Gibson misdirected himself in law by holding that he could not take thesecond-strike regime into account. In Barnes, which was decided after Mr Wipa'ssentencing, this Court overruled Palalagi in this respect, holding that a sentencingjudge is not precluded in law from considering the parole consequences when fixinga second-strike sentence.15[24] The second is that such an uplift may, and in this case did, amount todouble counting. This is a question of sentencing principle, as we indicated at theoutset. To answer the question whether an uplift involves double counting whenassociated with inadmissibility to parole we must examine the rationales for both theuplift and the second-strike consequence.[25] The Sentencing Act treats previous convictions as an aggravating factor thatmust be taken into account to the extent that they are "applicable in the case".16The court must consider the "number, seriousness, date, relevance, and nature" ofthe offender's past convictions.17 They are normally taken into account by fixing anuplift on the starting point appropriate for the offending.18[26] Three points are not controversial: a sentence ought to be based primarily onthe facts of the offence for which the offender is being sentenced;19 any uplift must bekept in proportion;20 and the sentence must not be increased merely because of aprevious conviction, for that would be to increase the sentence imposed on theprevious occasion.21 But although uplifts for recidivism are near-ubiquitous inwestern jurisdictions, the professional and academic literature struggles to account for15 Barnes v R, above n 5, at [77]–[79].16 Sentencing Act, s 9(1).17 Section 9(1)(j).18 R v Taueki [2005] 3 NZLR 372 (CA) at [8]; and R v Mako [2000] 2 NZLR 170 (CA) at [34].19 R v Power [1973] 2 NZLR 617 (CA) at 618.20 R v Ward [1976] 1 NZLR 588 (CA) at 590–591; and Tiplady-Koroheke v R [2012] NZCA 477at [24].21 The King v Casey [1931] NZLR 594 (CA) at 597.them.22 Explanations divide broadly into two: progressive loss of mitigation andrecidivist premium. The progressive loss of mitigation account holds that a firstoffender gets a discount from the appropriate sentence for the offence and the discountis gradually removed for subsequent offences.23[27] The recidivist premium account holds that a recidivist is more culpable or morelikely to reoffend, and so merits a sterner sentence. A range of explanations has beenadvanced for increased culpability: the offender failed to reform after the previoussentence; the offender reoffended after having been put on notice of the consequences;and the offender failed to exhibit the co-operation upon which the law ultimatelydepends. Some emphasise conduct after the previous sentence (the failure to reform),others the decision to reoffend after having been given a formal warning.24[28] New Zealand courts have adopted a recidivist premium approach when fixinguplifts under the Sentencing Act. Progressive loss of mitigation would call for astructured approach in which each relevant offence attracts a specified loss ofdiscount.25 In practice the premium is treated as a matter of sentencing discretion andthe court focuses on the offender rather than the offence. The usual justificationsoffered are retributive (past convictions evidence failure of past deterrence) orutilitarian (community protection is engaged because past offending is predictive offuture offending) in nature. A premium has sometimes been justified for bad characteras well,26 but the better view is that an offender's character is relevant under the22 For a general discussion of the subject see Julian V Roberts and Andrew von Hirsch (ed) PreviousConvictions at Sentencing: Theoretical and Applied Perspectives (Hart Publishing, Oxford, 2014);and Andrew Ashworth Sentencing and Criminal Justice (6th ed, Cambridge University Press,Cambridge, 2015) at 207–216.23 It is well articulated in the judgment of Deane J in Veen v The Queen [No 2] (1988) 164 CLR 465at 491. See also Ashworth, above n 23, at 211–214.24 Compare, for example, Youngjae Lee "Repeat Offenders and the Question of Desert" in Robertsand von Hirsch, above n 23; and Christopher Bennett "'More to Apologise For': Can a Basis forthe Recidivist Premium Be Found within a Communicative Theory of Punishment?" in Robertsand von Hirsch, above n 23.25 The Swedish model has been characterised as progressive loss of mitigation for more seriousoffences: Andrew von Hirsch "Proportionality and Progressive Loss of Mitigation: FurtherReflections" in Roberts and von Hirsch, above n 23, at 14.26 Casey, above n 22, at 597; Ward, above n 21, at 590–591; and Beckham v R [2012] NZCA 290at [84].Sentencing Act 2002 only to the extent that it contributed to the offending or evidencesa risk of reoffending.27[29] The three-strikes regime combines both approaches.28 It follows a sharplyprogressive loss of mitigation approach by prescribing that on the third strike theoffender receives the maximum sentence for the offence regardless of personalcircumstances. It follows a recidivist premium approach by denying parole for thesecond strike. Parliamentary debates and official reports identify a two-foldjustification for denying parole: the offender exhibited disregard for the law byreoffending after notice of the consequences, and public safety requires that theoffender be incapacitated for longer.29 These considerations justified what theproponents recognised as a deliberately disproportionate sentence.30[30] However, the legislation leaves the length and makeup of the second-strikesentence to the sentencing judge and it does not indicate that the offence should earna longer sentence than it would otherwise do. Accordingly, the usual sentencingpurposes and principles apply.31 They emphasise the circumstances of the particularoffending and the particular offender. Notably:(a) the sentence should reflect the gravity of the offending in the particularcase;32(b) it should also reflect the impact on the victim;3327 Paerau, above n 6, at [44]. Sentencing Act, ss 8(a), 8(h), 8(i), 9(1)(e), 9(1)(h), 9(2)(b), 9(2)(e),9(2)(f) and 9(2)(g).28 A Ministry of Justice briefing paper tabled with the Law and Order Select Committee on 23 April2008 explains why this is so. It describes the first and second strikes as part of the National Party'spolicy of denying recidivists the privilege of parole and the third strike as part of the Act Party'sthree-strikes policy. See Ministry of Justice "Sentencing and Parole Reform Bill — InitialBriefing" (April 2009) at [2].29 Cabinet Business Committee "No parole for worst repeat violent offenders and worst murdercases" (5 December 2008) at [9].30 (18 May 2010) 663 NZPD 10940.31 Barnes, above n 5, at [59]–[64]; and Paerau, above n 5, at [21]–[25].32 Sentencing Act, s 8(a).33 Section 8(f).(c) the most serious offending should receive the maximum sentence,unless circumstances of the offender make that inappropriate;34 and(d) the outcome must be the least restrictive that is appropriate in thecircumstances.35The Sentencing Act's sentencing principles also specify that similar offenders whocommit similar offences should be treated consistently.36[31] Were it not for the second strike the offender would serve a minimum one-thirdof the sentence, or up to two-thirds if the court so ordered. The statutory criterion foran order extending the non-parole period at sentencing appears in s 86. It is that thestatutory minimum is insufficient for accountability, denunciation, specific or generaldeterrence, or community protection.37 These considerations are listed among thegeneral purposes of sentencing in s 7 of the Sentencing Act, and they correspondgenerally to the reasons given in the legislative record for excluding parole altogetherat the second strike.[32] Put another way, an uplift for previous convictions, an order for an increasedminimum period, and statutory ineligibility for parole on a second strike all serve thesentencing goals of accountability, denunciation, deterrence or community protection.[33] It is well established that as a matter of methodology the court sets thedeterminate sentence first and then follows with the minimum period, and this doesnot in itself result in double-counting of aggravating factors or result in the sentencebeing manifestly excessive.38 Put another way, it is sentencing orthodoxy to count thesame considerations at more than one point when constructing a sentence. However,the sentence may be disproportionately severe or manifestly excessive if, viewedoverall, it attaches too much weight to them. That risk can be avoided in practice34 Section 8(c).35 Section 8(g).36 Section 8(e).37 Section 86(2).38 Taueki, above n 19, at [56]; and R v Brown [2002] 3 NZLR 670 (CA) at [36]. See also R v Walsh(2005) 21 CRNZ 946 (CA) at [25]–[27].because all relevant sentencing principles inform both the sentence and any increasein the minimum period.39[34] Section 86C also increases the minimum period in pursuit of the abovesentencing purposes, and to that extent it bears superficial similarities to an order unders 86. However, it works in a very different way. It takes the decision out of the court'shands and excludes parole without reference to the circumstances of the offence or theoffender, or the principle of like treatment.40 It must follow that inadmissibility toparole may sometimes result in an effective sentence that is harsher than it would havebeen had those considerations been taken into account. Indeed, it is possible that theeffective sentence may be much harsher, because the circumstances of the offence andthe offender are centrally important in sentencing.[35] This possibility could not affect the sentence calculation if the court wererequired to put parole considerations aside when sentencing. The court would berequired to wash its hands of any resultant injustice. But as this Court explained inBarnes, the legislation does not so provide.41 As a matter of sentencing practice courtsusually set the term of a sentence without reference to parole, but this is not aninflexible rule. In pursuit of Sentencing Act objectives a court may depart from it forgood reason.42[36] We conclude that when considering an uplift for previous convictions, or foroffending while on bail or subject to sentence, the court should decide whether, havingregard to the loss of parole under s 86C, an uplift is needed to achieve the sentencingpurposes of denunciation, accountability, deterrence and community protection.[37] It remains the case that, as held in Barnes, it will be an exceptional case inwhich the loss of parole is otherwise taken into account when constructing a second-strike sentence.43 As the Court explained there, the question whether the case isexceptional is answered by reference to the policy of s 86C and the register of39 R v Nguyen [2009] NZCA 239 at [32]–[34]; and R v Gordon [2009] NZCA 145 at [46].40 Sentencing Act, s 86C(4).41 Barnes, above n 5.42 At [77]–[79].43 At [79].sentencing purposes and principles. A survey of the legislative history and othersentencing considerations led a Full Court of this Court to make the same point inR v Harrison; R v Turner.44 As the Court explained there, such cases need not berare.45 To say that cases must be adjudged exceptional against all the statutory criteriais not to predict that such cases will be few in number. It is to say that because theymust respect the policy of s 86C judges need good reason to adjust a second-strikesentence for loss of parole.[38] We emphasise that we are speaking here only of discrete sentences forsecond-strike offences. As the Court explained in Paerau, normal sentencingprinciples, including s 8(g), govern non-strike offending that is being sentenced at thesame time as a second-strike offence and judges should structure the effective sentenceaccordingly.46This case[39] The end sentence of five years and three months imprisonment (forconvenience, 63 months) was reached by adding an uplift of nine months to the startingpoint of four years and six months (54 months). The uplift of approximately 17 percent appears to have been calculated primarily by reference to Mr Wipa's criminalhistory in Australia and New Zealand, but it included a small allowance for the factthat Mr Wipa was subject to release conditions.47[40] Applying the above methodology, the starting point was appropriate. It wasset by reference to R v Mako, in which this Court established guidelines for aggravatedrobbery that were intended to achieve deterrence and community protection.48 Theappropriate starting point for the aggravated robbery of a small shop was set at four to44 R v Harrison; R v Turner [2016] NZCA 381, [2016] 3 NZLR 602 at [67]–[71], [78], [83], [91],[96], [107], [108(d)], and [110]–[111]. The case concerned a statutory exception for manifestinjustice in murder sentencing, so the jurisdiction to impose a different sentence was not in issue,in contrast to Barnes. Rather, the question was when may a court do so. That is the question weare addressing here.45 At [108(b)]. The Court used the phrase "rare or exceptional", meaning that such cases need notbe uncommon.46 Paerau, above n 5, at [31] and [42].47 We have quoted the Judge's sentencing remarks at [20] above.48 R v Mako, above n 19.six years.49 The loss of parole notwithstanding, there is nothing sufficientlyexceptional about this case to warrant a lesser starting point. There were no mitigatingfactors.[41] That leaves only the uplift of nine months. But for the uplift, Mr Wipa wouldserve 54 months under s 86C, rather than the 63 months actually imposed. As we havejust explained, when considering it the Judge ought to have considered whether aminimum non-parole period of 54 months sufficiently served the purposes ofdenunciation, accountability, deterrence or community protection. By way of context,we have noted that had he been making an order under s 86 he would have increasedthe minimum non-parole period to two-thirds of the end sentence, or 36 months, whichwas plainly justified. Section 86C added an additional 18 months.[42] In our view a small uplift was indeed justified notwithstanding s 86C, torecognise that Mr Wipa was still subject to a sentence. That is a serious aggravatingfactor which points to a substantial reoffending risk and a corresponding need forcommunity protection. We do not consider that an uplift was otherwise needed, havingregard to the loss of parole. We would fix the uplift at three months.[43] It is debateable whether the difference of six months is sufficient to justifyinterfering with the sentence. The appellate question is whether the end sentence wasmanifestly excessive, not whether it was structured incorrectly. When answering it anappellate court must recognise the legislative policy behind the three strikes regime.In this case, however, we are examining and illustrating a methodology for assessinguplifts on a second-strike sentence, and it would be unfair to Mr Wipa to fail to givehim the benefit of our calculation.Result[44] The appeal is allowed.[45] The appellant is sentenced to four years and nine months imprisonment.49 At 56.[46] We indicate that, but for s 86C of the Sentencing Act, we would have confirmedthe minimum period of imprisonment of two-thirds of the appellant's sentence.Solicitors:Crown Law Office, Wellington for Respondent