TAFERE v NZ POLICE [2020] NZHC 3303

TAFERE v NZ POLICE [2020] NZHC 3303 [14 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000419[2020] NZHC 3303BETWEEN TEWODROS TAFEREAppellantAND NEW ZEALAND POLICERespondentHearing: 14 December 2020Appearances: L O Smith for the AppellantJ M Phillips for the RespondentJudgment: 14 December 2020JUDGMENT OF WOOLFORD JSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: Mrs L O Smith, Barrister, Auckland[1] On 22 May 2020, Tewodros Tafere was sentenced by Judge P J Sinclair to30 months' imprisonment on two charges of burglary, three charges of receiving andone charge each of being unlawfully in an enclosed yard, using a document andpossession of a glass pipe.1 He had been in custody for 10 and a half months at thetime of his sentence. By my calculations, he was then immediately eligible for parole.He now appeals against sentence as being manifestly excessive.[2] On 6 November 2020, after serving another five and a half months of hissentence, Mr Tafere was granted electronically monitored bail by Judge Sinclair to theGrace Foundation, a residential rehabilitative facility, pending his appeal to this Court.The law[3] On an appeal against sentence, the Court must allow the appeal if satisfied:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.Otherwise the Court must dismiss the appeal.2Fresh evidence[4] Because he had already been in custody for 10 and a half months and wantedto be sentenced that day, Mr Tafere waived his right to a pre-sentence report. A pre-sentence report would have outlined personal factors which may have provided thebasis for a discount in addition to that for his pleas of guilty.[5] Counsel has therefore now obtained a report dated 20 November 2020 unders 27 of the Sentencing Act 2002, which outlines Mr Tafere's background and suggestsa link between his struggles as a child refugee from Ethiopia who did not know1 Police v Tafere [2020] NZDC 9148.2 Criminal Procedure Act 2011, s 250(2) and (3).whether his parents were alive or dead and his subsequent problems with addictionand offending to feed his methamphetamine habit.[6] Mr Tafere now makes application for leave to file the report as fresh evidenceon appeal. The Court of Appeal has recently found that it was in the interests of justiceand not prejudicial to the Crown to admit s 27 reports on appeal where the informationwas "highly relevant to the appeals."3[7] In this case, the Crown is neutral on the admission of the report, given the detailon Mr Tafere's background and circumstances it provides. It is therefore admitted onappeal as fresh evidence.Discussion[8] It is apparent that the Judge did make an error in the sentencing imposed onconviction. The Judge concluded:4Because a pre-sentence report has not been prepared, as you wish to advancesentence today, and given your particular circumstances and your drugaddiction, what I'm minded to do is grant you leave to apply for homedetention to serve the rest of your sentence, particularly and if possible at afacility that addresses drug addiction and alcohol addiction.[9] This was an error. A sentence of imprisonment can only be converted to oneof home detention if the sentence is 24 months or less. Here, the sentence imposedwas 30 months' imprisonment so the Judge was not able to grant leave to Mr Tafere"to apply for home detention to serve the rest of [his] sentence." It is clear, however,that the Judge was focused on a more rehabilitative approach because she looked tothe sentence of home detention to be served "at a facility that addresses drug addictionand alcohol addiction".[10] The Judge's intention is also reflected in the fact that she granted Mr Taferebail to a residential rehabilitative facility pending appeal, which is unusual because ofthe more stringent rules set out in s 14 of the Bail Act 2000. Section 14 provides:3 Poi v R [2020] NZCA 312 at [30].4 Police v Tafere, above n 1, at [21].14 Exercise of discretion when considering bail pending appeal(1) This section applies if an appellant—(a) is appealing his or her conviction or sentence, or both; and(b) is—(i) in custody; or(ii) in a home detention residence subject to a sentenceof home detention.(1A) The court must not grant bail to the appellant unless it is satisfied onthe balance of probabilities that it would be in the interests of justicein the particular case to do so.(2) The onus is on the appellant to show cause why bail should begranted.(3) When considering the interests of justice under subsection (1A) thecourt may, instead of the considerations in section 8, take intoaccount the following considerations:(a) the apparent strength of the grounds of appeal:(b) the length of the sentence that has been imposed on theappellant:(c) the likely length of time that will pass before the appeal isheard:(d) the personal circumstances of the appellant and theappellant's immediate family:(e) any other consideration that the court considers relevant.[11] The place of s 27 reports on sentencing is explained by the Court of Appeal inCarr v R.5[56] We refer first to the statutory context. Reports are now increasinglyprovided under s 27 of the Sentencing Act which contemplate sentencingcourts considering, amongst other things, information about the "personal,family, whanau, community, and cultural background of the offender" and"the way in which that background may have related to the commission of theoffence". Some of this language reflects s 8(i) of the Sentencing Act, whichprescribes as one of the principles of sentencing that the court must take intoaccount "the offender's personal, family, whanau, community, and culturalbackground in imposing a sentence or other means of dealing with theoffender with a partly or wholly rehabilitative purpose". This in turn has anobvious connection with s 8(g), requiring the sentencing court to "impose theleast restrictive outcome that is appropriate in the circumstances".5 Carr v R [2020] NZCA 357.[60] It is significant that this reasoning was endorsed by the Full Court inZhang. We consider this means that where a cultural report provided unders 27 of the Sentencing Act contains a credible account of social and culturaldislocation, poverty, alcohol and drug abuse including by whānau members,unemployment, educational underachievement and violence as features of theoffender's upbringing such matters ought to be taken into account insentencing. [12] In the present case, the s 27 report refers to the way in which Mr Tafere'sbackground may have been related to the offending as follows:Mr Tafere is a young man who fled to NZ under refugee status to escape a wartorn and politically unstable country at home. He had no parents, he did notknow who his father and mother were, and he does not know to this day,whether or not they are still alive. He was raised by his grandmother alonethroughout his entire life. He was only 10 years old when they fled to NewZealand. The displacement caused by political instability in his home country,destroyed what could have been a strong family foundation for him.Unfortunately, he only had his grandmother and had only just started arelationship with his uncles in NZ upon their arrival. Unfortunately, this wasnot strong enough to replace the family foundation that his grandmotherrepresented in his life. When situations and issues presented later in his lifeas a young adolescent and she was no longer around to be the anchor that shehas always been in his life. This triggered depression which resurfaced oldhistorical trauma and led to deeply rooted depression.[13] I am of the view that it is appropriate on an appeal to have regard to the s 27report in calculating a sentence which should have been imposed in terms of s 250(2)of the Criminal Procedure Act 2011. It is evident that, at the time of the offending,Mr Tafere was suffering from depression and a severe addiction. The offences wereall committed to obtain money to feed his methamphetamine habit. In thosecircumstances, a discount of 15 per cent should be granted to appropriately recognisehis lesser moral culpability because of what drove him to depression and addiction.[14] I therefore quash the sentence of 30 months' imprisonment imposed on the twoburglary charges and the concurrent sentences of one year's imprisonment imposed onthe three receiving charges and the using a document charge.[15] The Judge adopted a starting point of 39 months' imprisonment for the twoburglary charges which she reduced by nine months, or 23 per cent, for Mr Tafere'spleas of guilty to reach an end point of 30 months' imprisonment. If a further 15 percent is added to the initial 23 per cent, that reduces the starting point of 39 months'imprisonment by 15 months, or 38 per cent, to reach an end point of 24 months'imprisonment.[16] What then is the appropriate sentence if the sentence of 24 months'imprisonment is converted to home detention, which was the Judge's originalintention? The sentence of 24 months' imprisonment would normally be converted toone of 12 months' home detention because of the statutory release from prison afterserving one-half of a short term of imprisonment. A sentence of home detention hasto be served in full.[17] Giving Mr Tafere credit for the 16 months' imprisonment he has already servedleads to a sentence of four months home detention. However, Mr Tafere was onrestrictive bail between February 2019 and June 2019. Furthermore, he has been onelectronically monitored bail to the residential rehabilitative programme since lastmonth so I am of the view that a month should be taken off the sentence of fourmonths' home detention to arrive at an end sentence of three months' home detention.[18] Mr Tafere is therefore sentenced to concurrent terms of three months' homedetention on the two charges of burglary, the three charges of receiving and one chargeof using a document. The conviction and discharge on the charges of being unlawfullyin an enclosed yard and possession of a glass pipe remain.[19] The three-month sentence of home detention is to be served at the premises ofthe Grace Foundation, 25 Moa Street, Otahuhu. The standard conditions set out ins 80C of the Sentencing Act 2002 are to apply. In addition, Mr Tafere is to attend andengage in any Grace Foundation programmes and activities at the direction of and tothe satisfaction of both the provider and the Probation Office.________________________________Woolford J