SULUSI v NEW ZEALAND POLICE [2020] NZHC 3314

SULUSI v NEW ZEALAND POLICE [2020] NZHC 3314 [15 December 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-25[2020] NZHC 3314BETWEEN VIENNA SULUSIAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2020 (partly by AVL)Counsel: R D Stone for AppellantJ Mara for RespondentJudgment: 15 December 2020JUDGMENT OF ELLIS J[1] On 3 November 2020, Ms Sulusi was sentenced to three years' imprisonmentfor aggravated burglary.1 Ms Sulusi appeals that sentence.Facts[2] At around 11.30 am on 2 March 2019, Ms Sulusi, with her half-sisterMs Nahora and two associates (one wearing a Mongrel Mob patch), went to the homeof the victim (N) in Havelock North to recover $7,000 that N was holding forMs Nahora. N had previously told Ms Nahora that the money had been stolen fromher in a burglary.[3] The four entered the home; Ms Nahora was carrying a gun wrapped in ablanket.2 Ms Sulusi was unaware that Ms Nahora had a firearm until they arrived at1 R v Sulusi [2020] NZDC 22595.2 The gun was apparently loaded.the address. Ms Nahora threatened N and another occupant with the gun. They lootedthe complainant's handbag. Ms Sulusi took N's car keys, and the group left, takingN's car.[4] Ms Sulusi was later charged with aggravated burglary. She also faced otherminor charges of theft and breaching bail.District Court sentencing[5] While the Judge noted that Ms Sulusi's role was lesser than that of her sister,she said the offending itself had several aggravating features: the weapon, the gangpatch, the group of four, the home invasion when the victim was asleep, and theproperty stolen. She agreed with the starting point previously indicated byJudge Adeane of five years' imprisonment.3[6] The Judge noted that Ms Sulusi was under the influence of methamphetamineat the time of the offending, and that Ms Sulusi was regretful about her involvement.The Judge acknowledged the s 27 report, noting that Ms Sulusi's troubled childhoodhad made life hard for her.[7] The Judge gave Ms Sulusi a 20 per cent discount for her guilty plea. She thennoted several other factors for which she collectively gave a further 20 per centdiscount:(a) Ms Sulusi's co-operation with police, which was over and above whatwould ordinarily be expected;(b) her good rehabilitative prospects; and(c) the contents of the s 27 cultural report, which revealed a troubledupbringing that, while not being directly causative, might be seen asreflected in Ms Sulusi's adult lifestyle.3 Ms Sulusi did not accept Judge Adeane's sentence indication, although her counsel did not takeissue with his five-year starting point at sentencing.[8] The combined 40 per cent discount resulted in an end sentence of three years'imprisonment. Ms Sulusi was convicted and discharged on the theft and bail breachcharges.Grounds of appeal[9] Ms Sulusi takes no issue with the five-year starting point. Rather, she appealsher sentence on the basis that the Judge ought to have given greater, discretediscounts—enough to bring her sentence down to home detention range. Homedetention was the sentence suggested by the pre-sentence (PAC) report writer andwould enable her to participate in Te Waireka. Te Waireka is a therapeutic communityprogramme for Māori women offenders serving a sentence of home detention, or whoare subject to release or parole conditions.Approach on appeal[10] Ms Sulusi's appeal is governed by s 250 of the Criminal Procedure Act 2011.An appeal against sentence is an appeal against a discretion. It must only be allowedif the Court is satisfied both that there has been an error in the sentence and that adifferent sentence should be imposed.4 The focus is on the final sentence and whetherit was in the available range, rather than the exact process by which it was reached.5Discussion[11] I consider that the appeal should be allowed and that a sentence of homedetention is the least restrictive outcome here. Home detention properly becomes anoption because, in my view:(a) the starting point adopted in the District Court was too high; and(b) the global 20 per cent discount for personal mitigating factors (notcounting guilty plea) does not adequately recognise:(i) Ms Sulusi's rehabilitative prospects;4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Ripia v R [2011] NZCA 101 at [15].(ii) her childhood trauma; and(iii) the importance of her maintaining as much contact as possiblewith her four young children.Starting point[12] Notwithstanding Mr Stone's acceptance of a five-year starting point, I thinkthe following review of comparable cases (home invasions involving more than oneoffender and the presence of a weapon) demonstrates that something in the order offour years would have been appropriate. All these cases were decided after, andreferred to, the Mako guideline judgment.6[13] McCormack-Cameron v R.7 Mr McCormack-Cameron was playing very loudmusic in his parked car outside a residential address. The residents asked him to moveon, and an altercation ensued. Mr McCormack-Cameron left but then, after recruitingfriends from a party, returned. A co-offender had an imitation pistol and threatened toshoot the residents. Mr McCormack-Cameron ran up to the house carrying a tyre ironand began to smash windows. He and a co-offender burst into the house. The pistolwas put to the head of a man in the house, who was told he was going to die.Mr McCormack-Cameron also threatened people with the tyre iron. The starting pointfor Mr McCormack-Cameron on appeal was three years' imprisonment.[14] R v Gibbons.8 Mr Gibbons and an associate went to the victim's home. Thevictim knew Mr Gibbons and offered him a coffee, but Mr Gibbons responded byproducing a sawn-off rifle and pointing it in his face. He detained the victim and hisflatmate while his associate searched the address. The flatmate managed to escape.As Mr Gibbons and his associate were leaving the address another man approachedtheir vehicle. He was then made to walk to the top of the driveway with the sawn-off6 R v Mako [2000] 2 NZLR 170, which is the guideline judgment for aggravated robbery sentencingbut is also applied by analogy to aggravated burglary.7 McCormack-Cameron v R HC Invercargill CRI-2007-425-42, 5 February 2008. Mr McCormack-Cameron was sentenced for a number of offences, but aggravated burglary was the lead charge.8 R v Gibbons HC Auckland CRI-2009-090-9224, 27 July 2010. Mr Gibbons was sentenced foraggravated burglary, kidnapping, and offering to supply a Class A drug (methamphetamine).rifle pointed at him. The starting point for Mr Gibbons for the burglary charge wasfour and a half years' imprisonment.9[15] Holmes v R.10 The victim was known to Mr Holmes and one of his co-offenders. Three offenders travelled to the victim's home, where two of them burst in,demanded money, and threatened the victim. Mr Holmes drew the curtains at hisassociate's request, who began to strike the victim on the head, body and legs with theblunt end of a small tomahawk axe. Mr Holmes stood nearby to prevent escape orresistance. The Court of Appeal remarked that a starting point of three and a halfyears' imprisonment would have been appropriate.11[16] Kahotea v Police.12 Armed with a pistol and a machete, Mr Kahotea and twoassociates entered the victims' house through the open front door. They stole atelevision, digital camera, cell phone, and cannabis plants. Two of the occupants wereheld at gunpoint, but nobody was hurt. On appeal the Judge noted that an appropriatestarting point would have been around three and a half years' imprisonment, but shedismissed the appeal because the end sentence was nevertheless not manifestlyexcessive.[17] Warren v Police.13 Mr Warren went to the victim's home with five associates.Mr Warren believed that the victim had stolen his cannabis. Two women in the groupknocked on the door and were let in by the victim. After talking to him, the two womenleft, leaving the door to the victim's bedroom open. Almost immediately, Mr Warrenentered the room with his brother. He then started shouting abuse and threats. Thevictim was beaten up, including being hit with a drawer by Mr Warren. The startingpoint of two years' imprisonment was upheld on appeal.9 The starting point was uplifted to five years for the associated kidnapping charge, but that elementis not present here.10 Holmes v R [2010] NZCA 47.11 Mr Holmes was sentenced for aggravated burglary (as a party) and injuring with intent to causegrievous bodily harm. The higher starting point was not disturbed by the Court because of thegenerous first instance discounts.12 Kahotea v Police HC Tauranga, CRI-2011-470-18, 15 August 2011. Mr Kahotea was chargedwith aggravated burglary and possessing an explosive.13 Warren v Police HC Greymouth CRI 2011-418-7, 17 November 2011. Mr Warren was chargedwith aggravated burglary and assault.[18] McNeice v R.14 Mr McNeice and his partner went to the victim's address to tryand retrieve belongings she had left there. Mr McNeice was carrying a meat cleaver.The victim went outside to talk to Mr McNeice. Mr McNeice grabbed him by thethroat, pushed him against the wall of the house, and threatened him. Mr McNeicethen went into the victim's house and removed a television and a laptop computer.The Court of Appeal allowed the appeal, substituting a starting point of two and a halfyears' imprisonment.[19] Deo v R.15 Mr Deo and others were asked to leave a party. Around 1.40 am,they returned with one or two more associates. Mr Deo was the driver and waited inthe van. The co-offenders that approached the house were wearing hoodies and hadbandannas over the lower part of their faces. They broke several large ranch sliderdoors to get into the house. One of the intruders had a large knife and threatened tostab a victim who confronted them; another attacked him with a large metal bar or pipeaimed at his head. He managed to deflect the bar with his arm, suffering a large gash.The intruders took a number of items from the house including a guitar, laptopcomputers, iPods, iPod speakers, and a camera. The Court did not consider thatMr Deo's starting point of four and a half years' imprisonment was too high.[20] Eldershaw v R.16 Mr Eldershaw, after a prior altercation, returned to thevictim's address with a friend and two baseball bats. He struck the victim's head witha baseball bat. A starting point of two years and eight months' imprisonment wasupheld.[21] Kiri v Police.17 Following a fight with the occupants, Mr Kiri and twoassociates returned to the house, armed with a steel pole and a hammer. They stoodoutside the house and demanded that the two others involved in the fight come outside.They kicked down the front door and searched the house for the two people for whomthey were looking. They then fled. A starting point of three years' imprisonment wasagreed on appeal.14 McNeice v R [2012] NZCA 566. Mr McNeice was charged with aggravated burglary.15 Deo v R [2012] NZCA 484. Mr Deo was charged with aggravated burglary.16 Eldershaw v R [2013] NZCA 374. Mr Eldershaw was charged with aggravated burglary, assaultwith a weapon, and common assault.17 Kiri v Police [2012] NZHC 2099. Mr Kiri was charged with one charge of aggravated burglary,one of receiving, one of theft, and four of failing to appear to answer bail.[22] Rangi v R.18 Mr Rangi and his co-offenders entered the victims' house in theevening. A co-offender carried a knife; Mr Rangi carried an imitation gun. Theythreatened the victims, one of whom was punched about the head. They took a laptop,cameras, cell phones, and a vehicle. The Court did not disturb the starting point ofthree and a half years' imprisonment.Childhood trauma[23] Secondly, there is the matter of Ms Sulusi's childhood. It is not, I think,disputed that she was sexually abused from the age of four by her grandmother'spartner, who was subsequently convicted for sexually offending against her and others.Ms Sulusi's mother has advised that she (her daughter) was required to undergo apolice interview about the offending when she was six. She was (reportedly) deniedACC assistance because she was said to have been too young to have been traumatisedby what happened. Whether or not that is completely accurate, it seems she hasreceived no counselling for what happened and has since been retraumatised by hergrandmother resuming a relationship with her abuser upon his release from prison.[24] While the District Court Judge recognised that this may have played a part inwhere Ms Sulusi finds herself today, I consider that it requires greater emphasis thanthat. And I do not agree with the Crown that it is necessary for Ms Sulusi to call furtherevidence establishing a causal nexus between her childhood trauma and her presentaddiction and her offending.Rehabilitative prospects[25] As the Judge acknowledged, Ms Sulusi's rehabilitative prospects are assessedas good. She has only a limited criminal history and is assessed as presenting a lowrisk of reoffending if she can address her drug use, which—at least in part—drove heroffending. She is not only remorseful but committed to rehabilitating for the sake ofher children. And, importantly, she has the opportunity to address her addiction, ifgranted home detention. More particularly, there is still a place available for her atTe Waireka, in Otene (Central Hawkes Bay). Participation in the programme (which—18 Rangi v R [2014] NZCA 524. Mr Rangi was charged with aggravated burglary.as noted earlier—was recommended by the PAC report writer) will give her theopportunity to address her addiction and to begin addressing the abuse she suffered asa child. The programme also has a reintegrative aspect, which will be critical toMs Sulusi's long-term rehabilitation.Dependent children[26] Lastly (and relatedly), there is the question of the children. There are four. InJanuary this year they were aged seven, six, four, and three. Before Ms Sulusi'soffending, they had already unofficially been removed19 from the care of Ms Sulusiand her partner by her partner's aunt, Ms Barbara Smith. This was (as I understand it)due to the couple's increased methamphetamine use.20[27] But Ms Smith has written a letter of support for Ms Sulusi. She says that:(a) she had seen a significant change in Ms Sulusi's attitude before herincarceration;(b) Ms Sulusi had been doing hard labouring work in the orchards tosupport the children; and(c) she supports Ms Sulusi's desire to get the children back.[28] The signal point is that Ms Sulusi is presently incarcerated in AucklandWomen's prison. Her children are in Hawke's Bay and cannot visit her, although areable to contact her remotely. While the proposed sentence of home detention wouldnot see her living with them again (at least at the outset), I am advised that Te Wairekais within driving distance of Ms Smith's home and that weekend visits may bepossible. It seems to me that there is very great advantage in the possibility ofMs Sulusi being able to maintain some contact with them in terms both of hercontinued motivation to rehabilitate and the children's well-being. I discussed boththe role potentially played by the Bangkok Rules and the overseas authorities dealing19 I am not certain if there is now a formal guardianship order in place.20 It does not seem to be in dispute that Ms Sulusi's drug use was very much being driven by herpartner, although it worsened after the children were removed and after he was, himself,incarcerated.with issues around imprisoning women with dependent children in Theodore vPolice.21Conclusion[29] As I have said, I consider that Ms Sulusi's appeal should be allowed. Thestarting point should be reduced to four years, and there should be a 30 per centdiscount for the personal mitigating factors just mentioned. When taken with the20 per cent discount for guilty plea, that gives an end sentence of two years'imprisonment.[30] Once that point is reached, it is clear to me that a sentence of home detentionwould best serve Ms Sulusi's rehabilitative needs. After taking some account of thetime that Ms Sulusi has already served, I think the appropriate substituted end sentencewould be one of eight months' home detention.[31] So the appeal is allowed. The sentence of three years' imprisonment isquashed, and a sentence of eight months' home detention is substituted. Her homedetention address will be at Te Waireka, 58 White Road, Otene. The special conditionsand post-detention conditions set out in the PAC report dated 27 October 2020 willapply.[32] Ms Sulusi's release and travel to Hawke's Bay will need to be co-ordinatedwith Te Waireka, which, as I understand it, is able to take Ms Sulusi on a Monday,Wednesday or Friday.____________________Rebecca Ellis JSolicitors:Souness Stone Law Partnership, Hastings for AppellantCrown Law Office, Wellington for Respondent21 Theodore v Police [2018] NZHC 2364.