ALLEN v R [2022] NZCA 630

ALLEN v R [2022] NZCA 630 [15 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA715/2021[2022] NZCA 630BETWEEN WIREMU TAMAHANA ALLENAppellantAND THE KINGRespondentHearing: 23 June 2022Court: Cooper P, French and Collins JJCounsel: C J Nicholls for AppellantP D Marshall and R E King for RespondentJudgment: 15 December 2022 at 10.00 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)[1] On 20 March 2020, Wiremu Allen pleaded guilty to a charge of being party towounding with reckless disregard for the safety of others.1 On 23 July 2020, he wassentenced by Clark J to the maximum penalty of seven years' imprisonment pursuantto s 86D of the Sentencing Act 2002 because the offence was his "third strike".21 Crimes Act 1961, ss 66 and 188(2).2 R v Allen [2020] NZHC 1796 [Sentencing judgment].However, the Judge declined to order that he serve the seven-year sentence withoutparole, holding that would be manifestly unjust.3[2] At sentencing, the Judge noted that were it not for the three strikes regimeshe would have allowed a 25 per cent discount in recognition of Mr Allen's earlyguilty plea.4 There would also have been a discount of 20 per cent in recognition ofcultural factors and Mr Allen's potential for rehabilitation.5 The result would havebeen an end sentence of two years and one month's imprisonment.6[3] In Fitzgerald v R, the Supreme Court held that the maximum penalty shouldnot be imposed on a third strike offender if that sentence would breach s 9 of theNew Zealand Bill of Rights Act 1990, which affirms "the right not to be subjected totorture or to cruel, degrading, or disproportionately severe treatment or punishment".7[4] The short question presented by this appeal is whether the seven-year sentencewas disproportionately severe compared with the sentence of two years and one monthwhich would have otherwise been imposed.[5] Before confronting that issue, we give a brief summary of the offending andthe circumstances relating to Mr Allen that are relevant for present purposes.The offending[6] At 12.50 am on 15 June 2019, Mr Allen and a co-offender, Mr Karaitiana,broke into a flat occupied by the victim, Mr Amituanai, by forcing open a lockedexterior kitchen door. They were both armed with pistols. Mr Amituanai was asleepin a room next to the kitchen. Mr Allen and Mr Karaitiana confronted him, telling himthat he owed them money.[7] Mr Amituanai sat up in bed where upon Mr Allen punched him on the side ofhis face. As Mr Amituanai tried to stand up, Mr Karaitiana grabbed him by the front3 At [51]. See generally Sentencing Act 2002, s 86D(3).4 At [36].5 At [37].6 At [37].7 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.of his t-shirt. The pistol held by Mr Karaitiana was then discharged, woundingMr Amituanai in the left knee. The Crown accepted at sentencing that the dischargeof the pistol was accidental.[8] Mr Allen began to rummage through Mr Amituanai's drawers whileMr Karaitiana kept Mr Amituanai in the lounge. Mr Amituanai managed to escape,running outside to a neighbouring address from where he telephoned the police.Mr Allen and Mr Karaitiana left with Mr Amituanai's wallet containing $460 cash,and a phone valued at approximately $200.[9] Mr Amituanai required surgery to remove the bullet lodged in his knee.His walking continues to be impacted. He was unable to start a new job and hasongoing concerns about the safety of his children.Guilty plea[10] Mr Allen was charged with aggravated burglary. A charge of aggravatedrobbery was subsequently added. On 13 March 2020, Mr Allen sought a sentenceindication in respect of one charge of wounding with reckless disregard, on the basisthat if the sentence indication were accepted, the Crown would seek leave to amendthe aggravated burglary charge to one of wounding with reckless disregard, andwithdraw the aggravated robbery charge.8 The Judge confirmed that the maximumterm of imprisonment for wounding with reckless disregard, seven years, would haveto be imposed.9 On the material before her, she concluded it would not be manifestlyunjust to impose a non-parole order, but noted that the sentence indication was givenwithout a pre-sentence report or a report provided under s 27 of the Sentencing Act.10[11] Mr Allen accepted the sentence indication on 20 March 2020. He pleadedguilty to wounding with reckless disregard, which was substituted for the offence ofaggravated burglary. The Crown withdrew the aggravated robbery charge.8 R v Allen HC Wellington CRI-2019-096-2216, 13 March 2020 [Sentence indication].9 At [8].10 At [30] and [38].Sentencing[12] The Judge adopted a starting point of three and a half years' imprisonment.11Mr Nicholls had argued for Mr Allen that a starting point of three years wasappropriate, based on the starting point adopted in R v Davis.12 The Judge howeverthought that Mr Allen's offending was more serious due to the presence of hisco-offender, the level of premeditation involved in bringing weapons to the address,and the fact that property was stolen.13 She then applied an uplift of 10 per cent to takeaccount of Mr Allen's extensive criminal history.14 That resulted in a sentence ofthree years and 10 months before Mr Allen's personal circumstances wereconsidered.15[13] The Judge then considered Mr Allen's s 27 report. This, she found, provided"an ample basis to infer a causative connection" between the offending and what shedescribed as "the immense social disadvantages that [had] characterised [Mr Allen's]life".16 She mentioned the following:17(a) From a young age you were exposed to family violence and gangs,with your stepfather a member of Black Power Taranaki. Due to theprevalence of violence in your home environment you were upliftedfrom your family and made a state ward at the age of four. While instate care you were placed into a Wellington church community wherethe abuse to which your counsel has referred took place. For much ofyour adolescence you were transient, moving from school to schoolin Auckland, Whanganui, Fielding and Wellington. This experienceleft you dislocated and unable to build social or familial bonds.(b) The way you dealt with your traumatic upbringing wasto self-medicate. You began abusing drugs and alcohol at a veryyoung age. As the report notes, use of alcohol and drugs carries anincreased risk of mental health issues. In your case a psychiatricreport in 2014 recorded you as being "homeless, unemployed, unwelland suicidal." The risk assessment carried out at the time detailed adistressing family background with early integration into the MongrelMob. You learned while in prison in 2006 that your 16 year old sisterhad taken her own life. You made up your mind at that point to carveout a life for yourself.11 Sentencing judgment, above n 2, at [19].12 R v Davis [2015] NZHC 2289.13 Sentencing judgment, above n 2, at [19].14 At [20].15 At [20]–[21].16 At [25].17 At [25] (footnotes omitted).(c) The report says that you, like so many young urbanisedMāori, tried to find kinship and support in the "tribe of Nga Mokai"— the Mongrel Mob and then the King Cobras. After the death ofyour sister, you became disillusioned with the lack of support inthe Mob and attempted to leave, but other gang members did notaccept this and you were shot in retaliation. You cut ties with the Moband for a period attempted to turn your life around and took upemployment as a concrete layer but could not adapt to the newlifestyle and soon you were pulled back into gang ties by your uncle,an officer in the King Cobras.[14] The Judge had no doubt that Mr Allen's unstable and abusive background andhis early exposure to violence had led him to live "at the very margins of society".18She accepted that the events and deprivations recounted in the s 27 report wereintimately connected with the offending.19 After making comparisons to analogouscases, she decided that a discount of 15 per cent to take account of these factors wouldbe appropriate.20 She thought the discount was also warranted by the "apparent failure[of] the state" to protect Mr Allen when he was taken at a young age into its care.21[15] The Judge also had before her a report prepared by a registered drug andalcohol practitioner, Ms Casey. The Judge noted the report said that Mr Allen hadbegun consuming alcohol and using cannabis when he was aged 11 and 12.22Methamphetamine use followed in his teenage years. The report further stated thatMr Allen was at risk of returning to substance abuse following release if he did notreceive treatment and adequate support. Previously, as a result of attendance at theSalvation Army Bridge programme, his issues with alcohol and drug abuse had abated.However, soon after release from prison, there was an incident in which Mr Allen wasshot in the chest, which was when he turned back to alcohol as a coping mechanismfor post-traumatic stress. Referring to this Court's decision in Zhang v R, the Judgerecorded her view that there was insufficient evidence before her to demonstrate thataddiction was causative of the offending.23 By itself addiction would not justify aseparate discount. But it was relevant in the sense that substance abuse engaged thesentencing purpose of assisting an offender's rehabilitation and reintegration.2418 At [26].19 At [29].20 At [30].21 At [30].22 At [31].23 At [33]–[34], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.24 Zhang v R, above n 23, at [146]. See also Sentencing Act, s 7(1)(h).The Judge concluded that a discount of 20 per cent would properly recognise the"complex factors and systemic deprivation", as well as Mr Allen's rehabilitationpotential.25[16] In the result, taking account of these discounts from the uplifted starting pointof three years and 10 months, the Judge found that an end sentence of two years andone month would be appropriate, but for the effect of the three strikes regime.26[17] The Judge then turned to consider whether it would be manifestly unjustto order Mr Allen to serve the seven-year sentence without parole. She decided itwould be manifestly unjust.27 She gave her reasons as follows:[47] Your whānau life was chaotic from the start and led to you beinguplifted into state care when only four years of age. Predictably, the sense ofabandonment when you were sent to Auckland would have been acute.You felt as though your family had given up on you. From early childhoodyou wished you hadn't been born.[48] You were exposed to abuse while in state care and you learned froma young age to regard violence as normal behaviour. You were primed in lifeto do the bidding of your gang superiors.[49] Two main themes seem to have characterised your life experience tothis point:(a) what the s 27 cultural report writers describe as "the multipleeviscerating emotional, physical, mental, sexual, andpsychological lacerations visited upon [your] spirit as a childand as a teenager"; and(b) intense exposure to gang life. Unsurprisingly yourabandonment and dislocation from your biological whānauand your transience meant you have not built social bonds.You have become institutionalised and your underlyingaddictions have not been treated.[50] The re-entry into the community and re-unification with your directwhānau can be contemplated if you undertake the comprehensive residentialtreatment programme that has been recommended for you to unwind youraddictions and identify and treat your many psychological and emotionalinjuries.[51] As you yourself have observed, rehabilitation — or the rehabilitationyou have experienced — has involved sitting in a room dormant for yearsbefore doing a few programmes. Dr Grigor, who completed the psychiatric25 Sentencing judgment, above n 2, at [35].26 At [37].27 At [46].assessment in 2014 was impressed with your insight and intellect. Althoughyou met the criteria for antisocial personality disorder at the time, Dr Grigorbelieved your prognosis was positive. The Department of Corrections reportassesses you as having a high likelihood of reoffending and posing a high riskof harm to others but it also states that you need to undertake rehabilitationand the possibility of being granted parole would encourage and incentiviseyou to do that. Your rehabilitative potential is real. It is in the broadercommunity interest that you should succeed. For these reasons I declineto order that you serve the sentence without parole.[18] In the result, the Judge sentenced Mr Allen to seven years' imprisonment,and declined to order that he serve the sentence without parole.28[19] Mr Allen has been in custody since his arrest on 20 August 2019. Had he notbeen subject to the three strikes regime, the sentence of two years and one month'simprisonment would have been imposed and he would have been eligible to apply forparole after eight months and 10 days in custody, that is, on 1 May 2020.29The appealApplication to adduce fresh evidence[20] Mr Allen attached to his written submissions a Parole Board decision andaccompanying psychological report. Implicitly he seeks to rely on these for thepurpose of the appeal and it is appropriate that we receive the further documents.They provide relevant contextual information on Mr Allen's first parole hearing andsome of the rehabilitative steps he has taken while in prison.30 We grant the applicationto adduce this fresh evidence.31Submissions[21] First, Mr Nicholls relies on Fitzgerald to submit that the seven-year sentenceimposed on Mr Allen amounts to disproportionately severe punishment. He notes thatthe term is four years and 11 months (3.36 times) longer than the sentence that the28 At [53].29 Section 90 of the Parole Act 2002 provides that the time an offender serves in pre-sentencedetention is to be taken into account when calculating his or her parole eligibility date.30 At this hearing Mr Allen did not seek parole as he was undertaking a rehabilitation programmefor violent offenders that was due to finish in June 2022: Re Allen Parole Board Decision,15 December 2021 at [9]. Mr Allen commenced treatment under this programme inNovember 2021.31 Court of Appeal (Criminal) Rules 2001, r 12B.Judge said she would have imposed of two years and one month but for s 86D(2) ofthe Sentencing Act. He draws a comparison with Mitai-Ngatai v R, in which this Courtheld that a sentence of seven years' imprisonment, which was 3.5 times longer thanwhat would have been imposed but for the three strikes regime, breached s 9 of theBill of Rights.32 The Court allowed the appeal, quashed the seven-year sentence andsubstituted a sentence of two years' imprisonment.33[22] Second, while acknowledging that the offending was serious and of a type thatthe three strikes regime was intended to target, Mr Nicholls raises two issues with theregime more broadly, namely that it does not account for either whether an offenderpleads guilty, or whether there are mitigating factors personal to the offender thatjustify a reduction in sentence. Mr Nicholls says that both these factors were criticalin Mr Allen's case.[23] The Crown rejects the claim that the seven-year sentence breaches s 9 of theBill of Rights. Mr Marshall acknowledges the necessary inquiry involves acomparison of the sentence that would have been imposed but for the three strikesregime and the sentence mandated by that regime. But he submits that for a sentenceto breach s 9 something more is required than one that is severe, excessive ordisproportionate. While the sentence here exceeds that which would have otherwisebeen imposed, this level of disproportionality does not infringe s 9.[24] Mr Marshall submits that the imposition of the maximum seven-year penaltyfor offending involving being a party to the shooting of a person during an armedhome invasion by two co-offenders to enforce a drug debt would not "shock theconscience of properly informed New Zealanders who were aware of all the relevantcircumstances".34 The sentence accordingly does not infringe s 9.[25] Mr Marshall also argues that the Judge's "but for" sentence of two years andone month was at the lowest end of the available range, if not below it.32 Mitai-Ngatai v R [2021] NZCA 695.33 At [32].34 Citing Fitzgerald v R, above n 7, at [79]–[81] per Winkelmann CJ, [239] per Glazebrook J and[167] per O'Regan and Arnold JJ. The quote is from Fitzgerald v R [2020] NZCA 292, (2020)29 CRNZ 350 at [43] per Clifford and Goddard JJ.An end sentence in excess of three years would have been available, and the s 9assessment should be informed by the appropriate sentencing range. A starting pointof four to four and a half years' imprisonment would have been justified.35[26] In terms of discounts, Mr Marshall does not contest the 10-per-cent uplift forMr Allen's extensive criminal history, or the 20-per-cent discount for matters referredto in the s 27 report and Mr Allen's prospects of rehabilitation. However, Mr Marshallsubmits that the Judge was overly generous in giving Mr Allen a 25 per cent discountfor his guilty plea. Mr Marshall says that a 15 per cent discount would have been moreappropriate, given Mr Allen pleaded guilty to a reduced charge that carried half themaximum penalty of the charges originally laid.[27] On this basis, Mr Marshall submits that the appropriate end sentence shouldhave been between three years, and three years and five months' imprisonment.That would mean the seven-year sentence imposed was 2 to 2.3 times longer than thesentence Mr Allen would have otherwise received. While this disparity is significant,it is of a lesser magnitude than in Mitai-Ngatai, which involved a disparity of3.5 times, a difference this Court considered was very close to not infringing s 9.36[28] Mr Marshall further submits that an end sentence of three years to three yearsand five months would mean that the seven-year sentence would have the effect ofdeferring Mr Allen's parole eligibility by around 16 months, which falls well short ofthe six years that was decisive in Matara v R,37 and the four years and three months inCrowley-Lewis v R.38 The disparity cannot therefore be considered "shocking".[29] Finally, Mr Marshall argues there is no evidence that Mr Allen's seven-yearsentence will have a disproportionately severe effect on him due to significant mentalhealth concerns, as was the case in Fitzgerald.3935 Relying on R v Hapi CA304/03, 18 May 2004; R v Davis, above n 12; Kulimoeanga v R[2016] NZCA 129; and Harawira v R [2014] NZCA 8.36 Mitai-Ngatai v R, above n 32, at [28]–[30].37 Matara v R [2021] NZCA 692, (2021) 12 HRNZ 944 at [5(b)], [66], [70] and [74].38 Crowley-Lewis v R [2022] NZCA 235 at [33]–[34].39 Fitzgerald v R, above n 7.Discussion[30] Since Fitzgerald, this Court has had to consider appeals alleging sentencesimposed under the three strikes regime have breached the s 9 right not to be subject tocruel or disproportionately severe punishment in six cases. They have been:(a) Phillips v R, in which a seven-year term of imprisonment for alow-level indecent assault was held to breach s 9.40 This Courtconsidered Mr Phillips' offending was more serious thanMr Fitzgerald's, but still at the lower end of the spectrum ofindecent assaults.41 The seven-year sentence was 5.6 times longer thanthe sentence of 15 months' imprisonment that would have beenimposed but for the three strikes regime;42(b) Mitai-Ngati, which we have already discussed;43(c) Matara, which involved an appeal against a second-strike sentence.44Mr Matara had been ordered to serve his 10-year-and-two-monthsentence for attempted murder without parole. But for the mandatorynon-parole order, the Judge would have imposed a minimum period ofimprisonment of 40 per cent, meaning Mr Matara would have hadto serve a sentence that was 2.5 times longer, amounting to a differenceof six years and one month. This Court considered that difference was"grossly disproportionate to the circumstances, especially havingregard to Mr Matara's mental illness and psychosis at the time ofoffending";45(d) Crowley-Lewis, in which this Court refused to make a non-parole orderin respect of Mr Crowley-Lewis's second-strike offence for rape,40 Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661.41 At [31] and [39].42 At [36].43 Mitai-Ngati v R, above n 32. See [21] and [27] above.44 Matara v R, above n 37.45 At [74].relying principally on the limited seriousness of his first-strikeoffending;46(e) Sheers v R, in which this Court quashed a 14-year sentence for anaggravated robbery and substituted a sentence of three years'imprisonment.47 The 14-year sentence was held to have breached s 9as it was 11 years longer than the but for sentence,48 and would bedisproportionately severe having regard to Mr Sheers' foetal alcoholspectrum disorder;49 and(f) Love v R, in which a 10-year sentence for a robbery was quashed andreplaced with one of 18 months' imprisonment.50 This Court held thedisparity was so great as to cause "shock" to the national conscience.51[31] Two of the above cases, Sheers and Love, were decided since the hearing ofthis appeal. At the hearing, Mr Nicholls placed most emphasis on Mitai-Ngatai, whichhe submitted involved a very similar mathematical disparity between the sentenceimposed and that which would have been imposed but for the three strikes regime.He submitted that since this Court allowed the appeal there, it should similarly allowthe appeal here.[32] However, contrary to those submissions, there are aspects of the present appealwhich distinguish it from Mitai-Ngatai. First, there is the question of what sentencewould properly have been imposed on Mr Allen but for the three strikes regime.We consider there is merit in Mr Marshall's argument that the Judge's starting pointof three and a half years' imprisonment was on the lower side of the available rangeand that a starting point of four years would have been justified. Likewise we considerthere is merit in the submission that the 25 per cent discount afforded to Mr Allen forhis guilty plea was generous, coming as it did after a sentence indication on asubstantially reduced charge. The context was an arrangement reached with46 Crowley-Lewis v R, above n 38, at [33].47 Sheers v R [2022] NZCA 618.48 At [20], [23] and [28].49 At [25]–[28].50 Love v R [2022] NZCA 614.51 At [18].the Crown that it would not proceed on charges carrying a maximum penalty of14 years' imprisonment but allege instead a single charge carrying a maximum penaltyof seven years' imprisonment, naturally attracting a lower starting point.[33] It is relevant to observe that a starting point of five and a half years'imprisonment was adopted for Mr Allen's co-offender, who faced charges ofaggravated burglary and wounding with reckless disregard.52 Both Mr Allen andMr Karaitiana were sentenced on a materially identical summary of facts. In thesecircumstances the full guilty plea discount of 25 per cent is likely to have containedan element of "double benefit" for Mr Allen. The observations of the Supreme Courtin Hessell v R are apposite here:53[62] Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give the samepercentage credit invariably for an early guilty plea in sentencing withoutregard to the circumstances can amount to giving a double benefit.For example, if the Crown agrees to accept a plea to manslaughter and dropsa charge of murder in relation to offending, the acceptance of the plea can bea concession in itself. If the full credit for an early plea is then also given,the sentence may not properly reflect the offending. [34] We therefore accept the Crown's proposition that a discount for the guilty pleaof 15 per cent would have been more appropriate than the 25 per cent postulated bythe Judge. That means an end sentence of three years imprisonment54 would havebeen more appropriate than the two-year-and-one-month sentence identified bythe Judge.[35] Second, although Mr Mitai-Ngatai's appeal was allowed, the Court noted thatthe seriousness of his offending and his previous conviction history was such that hiscase came "close" to being one that did not offend s 9 of the Bill of Rights.55Further, the Court considered his offending was "very close" to the kind the authorsof the three strikes regime might have contemplated in the first place.56 The Courtalso emphasised that the appeal was allowed "because of the generous attitude taken52 R v Karaitiana [2020] NZHC 91 at [17].53 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.54 This takes into account the 10 per cent uplift for Mr Allen's criminal history, and the 20 per centdiscount for the factors identified in his s 27 report.55 Mitai-Ngati v R, above n 32, at [30].56 At [29]by the Crown and because of the amount of time Mr Mitai-Ngatai ha[d] [then] spentin prison for th[e] offence".57[36] In terms of parole eligibility, the more appropriate "but for" sentence ofthree years imprisonment would mean Mr Allen would become eligible for parole afterhaving served one year, compared to the two years and four months he would haveto serve based on his seven-year sentence. This difference, of one year andfour months, or 2.3 times, falls far short of the 7 times multiplicative difference inMitai-Ngatai,58 and short of the 2.5 times difference in Matara.59[37] Mr Nicholls properly accepts in this case that a sentence of imprisonment wasinevitable. In terms of the nature of the offending, as the Crown submits, this was avery serious case involving Mr Allen being party to the shooting of a person during anarmed home invasion by two co-offenders to enforce a drug debt. Mr Allen's previousstrike offences, for injuring with intent and robbery, also involved serious offendingthat resulted in terms of imprisonment. This latest offence appears to be the mostserious, so it cannot be said that he is an "inadvertent and unforeseen casualty of thethree strikes regime".60 There is a marked contrast between the offending here andthat in Phillips, where the Court considered that, as in Fitzgerald, the offending wasnot of the kind contemplated by the three strikes legislation, and was at the low end ofthe spectrum of indecent assaults.61[38] For completeness, we note this is also not a case like Fitzgerald or Matara,in which the offenders were found to have been suffering from significant mentalillness at the time of their offending and/or at the time they received their previousstrike warnings.62 It cannot be said here that the imposition of the maximum penaltywould infringe s 9 by preventing Mr Allen from getting the help he needs. There is noevidence that Mr Allen suffers from ongoing mental health issues or that he did notunderstand the consequences of his previous strike warnings. To the contrary, he is57 At [31].58 At [28].59 Matara v R, above n 37, at [74].60 Phillips v R, above n 40, at [39].61 At [39].62 See Fitzgerald v R, above n 7, at [141] per Winkelmann CJ, [324] per William Young J and [167]per O'Regan and Arnold JJ; and Matara v R, above n 37, at [67] and [74].receiving rehabilitative treatment while in prison, and did not seek parole at thefirst opportunity precisely so he could complete the rehabilitative programme.[39] For all these reasons we conclude that the imposition of the seven-yearmaximum sentence on Mr Allen for his offending was not contrary to the rightaffirmed by s 9 of the Bill of Rights. The appeal should be dismissed.Result[40] The application to adduce fresh evidence is granted.[41] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent