Makiri v Police [2019] NZHC 1811 (30 July 2019)

Last Updated: 2 August 2019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-381 [2019] NZHC 1811

BETWEEN	GLENN MAKIRI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 March 2019, supplementary submissions 3 and 8 April 2019
Appearances:	T D Clee for the appellant R M Gibbs for the respondent
Judgment:	30 July 2019

JUDGMENT OF PALMER J

This judgment was delivered by me on 30 July 2019 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

..............................

Registrar/Deputy Registrar

Counsel/Solicitors:

T D Clee, Barrister, Auckland Crown Solicitor, Manukau

MAKIRI v NEW ZEALAND POLICE [2019] NZHC 1811 [30 July 2019]

Summary

[1] Mr Glenn Makiri pleaded guilty to injuring with intent to injure and contravening a protection order, on the basis of a sentence indication. He appeals the resulting sentence by the District Court of six months’ community detention but not the sentence of 18 months’ intensive supervision. He says the sentence is not consistent with the sentence indication but he does not wish to alter his plea. Rather, he requests the High Court conduct a re-sentencing. I do not consider the District Court erred in imposing its sentence. I would not impose a different sentence. I dismiss the appeal.

What happened?

[2] On 21 March 2018, Mr Makiri had an argument with his partner at her home in Auckland. Mr Makiri pushed her in the head four or five times, moving her from the hallway to the kitchen. He grabbed her by the hair and dragged her to the lounge. He kept pulling her hair, holding her back from running away. He pulled her back when she ran to the door. When she ran down the hallway, he squeezed her neck for 10 seconds, preventing her from breathing. He head-butted her, splitting her forehead open. When she said she would call the Police he said he would say she hit him first and struck himself in the head with a candle-glass. Mr Makiri whipped the victim with a wet towel three or four times, bruising her face. She received a large cut to her forehead and bruising to her face and throat. In her victim impact statement, she said she has a large scar down the middle of her face.

[3] Mr Makiri was charged with injuring with intent to injure and contravening a protection order. Those offences are punishable by maximum penalties of five years’ and three years’ imprisonment respectively. On 14 September 2018, in the Manakau District Court, Judge Blackie gave Mr Makiri a sentence indication, which he accepted that day.¹ He pleaded guilty to the charges. Corrections’ pre-sentence report stated Mr Makiri did not take full responsibility for his actions and disputed the summary of facts, on the basis of which he pleaded guilty. It assessed his risk of harm as medium

¹ Police v Makiri DC Manukau, CRI-2018-092-3528, 14 September 2018.

and risk of re-offending as high due to his history and lack of remorse. On 23 November 2018, Judge Blackie sentenced Mr Makiri. Mr Makiri appeals the sentence.

The District Court sentence indication and sentence

[4] In the sentence indication, at the end of a long day, Judge Blackie considered the starting point put forward by the Police, of 18 to 22 months’ imprisonment, was “pretty close to the mark”.² He understood Mr Makiri’s counsel, Mr Clee, to be suggesting a starting point in the vicinity of 20 months’ imprisonment. With a discount for a guilty plea of 25 per cent, the Judge considered “the ultimate sentence for a starting point would be in the vicinity of 15 to 16 months’ imprisonment”.³ Judge Blackie mentioned Mr Clee’s reference to anger management and Mr Makiri being on electronically-monitored (EM) bail but did not indicate a specific discount for them and said he was only giving an indication, not setting the ultimate sentence.⁴ Finally, Judge Blackie stated:⁵

The indication is that there is a starting point of between 15 and 16 months’ imprisonment which taken by itself would mean that you would fall within the area that a community-based sentence could ultimately be imposed. The nature of that sentence, the length of that sentence and the details of that sentence I am not prepared to speculate today. One would need full particulars as one would expect from a pre-sentence report, particulars of the time spent on electronically monitored bail and the outcome of the course or programme that you have been attending. That would have to be subject to a separate sentencing date.

[5] I consider it is tolerably clear that Judge Blackie identified a starting point of 20 to 22 months and an end point, after a guilty plea discount but without other discounts, of 15 to 16 months’ imprisonment; though he mischaracterised that as a starting point. It also seems, from what Mr Clee has said, that Mr Makiri understood the indication to be a starting point of 15 to 16 months.

[6] A transcript of Judge Blackie’s sentencing remarks on 23 November 2018 is not available, due to a malfunction in the recording equipment. Mr Clee’s recollection is that:

² At [7].

³ At [8].

⁴ At [9].

⁵ At [10].

(a) Mr Clee confirmed Mr Makiri had completed one month in custody and seven months (less one day) on electronically-monitored bail with a 24- hour curfew.

(b) Judge Blackie mentioned a starting point of 20 to 22 months’ imprisonment.

(c) Mr Clee made oral submissions, on the basis of an end point in the region of 15 to 16 months, that Mr Makiri had served sufficient time on remand and EM bail and counsel had no objection to a community- based rehabilitative sentence. However, he submitted there should be no more electronic monitoring.

(d) The Police prosecutor stated she had no objections to the submissions.

[7] The sentence imposed by Judge Blackie on 23 November 2018 was six months’ community detention and 18 months’ intensive supervision. Mr Makiri appeals the community detention element of the sentence.

Law of sentence appeals and community detention

[8] Section 244 of the Criminal Procedure Act 2011 (the Act) allows Mr Makiri to appeal. Section 245 states that right is not affected by the fact he has received a sentence indication. Under s 250, I must allow the appeal “if satisfied that, for any reason, there is an error in the sentence imposed on conviction” and “a different sentence should be imposed”. Otherwise, I must dismiss the appeal. My focus is on whether the end sentence is within the available range.

[9] Section 69C of the Sentencing Act 2002 provides guidance on the use of the sentence of community detention. It empowers a court to impose that sentence if the court is satisfied the sentence “would reduce the likelihood of further offending by restricting the offender’s movements during specific periods, including, but not limited to, offending of a particular type or at a particular time” or would achieve certain other specified purposes, and that an electronically monitored curfew is
appropriate, “taking into account the nature and seriousness of the offence and the circumstances and the background of the offender”.

Submissions

[10] Mr Clee, for Mr Makiri, submits the imposition of any electronic monitoring, let alone for six months, is manifestly excessive and should be quashed, because:

(a) Mr Makiri had been in detention for the equivalent of a 16-month sentence of imprisonment which was equivalent to where the sentence indication ended up. After discounts, the end sentence would be well below the time spent in custody and on EM bail.

(b) There is no reduction in likelihood of further offending through a night- time curfew for the purposes of s 69C(1)(a)(i).

(c) Even if community detention would achieve one of the other specified purposes, it is not appropriate under s 69C(1)(b) because the nature and seriousness of the offence has already been addressed by a more restrictive outcome.

(d) Any difference between the sentence indication and time spent in custody and EM bail may be addressed by a short period of community work.

[11] Ms Gibbs, for the Police, submits:

(a) the starting point adopted of 20 to 22 months’ imprisonment was generous and at the lower end of the available range given the aggravating features of the offending and comparable cases;

(b) it would have been open to the Judge to impose an uplift for Mr Makiri’s previous relevant convictions for violence and seven months on EM bail should not be treated as equivalent to a sentence of seven months’ home detention in calculating the end sentence;
(c) there was no error in imposing community detention, which was available to the Judge; and

(d) the overall sentence could be considered lenient taking into account his previous convictions and the aggravating features of the offending

[12] After the hearing, in a minute dated 26 March 2019, I gave the parties leave to make further written submissions on the implications of the judgment of Taylor v R.⁶ There, the Court of Appeal stated that, where an appellant contends a judge has not followed a sentencing indication, the focus on appeal is whether the sentence indication created an expectation the appellant relied upon, not on the merits of the sentence actually imposed. I suggested further submissions on whether Mr Makiri wished to change his plea or be sentenced afresh on appeal may assist.⁷

[13] At the hearing, Mr Clee submitted “about a third” of the appeal was based on the Judge not meeting the expectation created by the indication. In his subsequent written submissions he stated Mr Makiri did not seek to vacate his plea. Rather, he requested the High Court to re-sentence him. That was because he recognised that here, unlike in Taylor, if the sentence indication were followed, there was a risk of a cross-appeal that the sentence would be manifestly inadequate, which would prolong the matter. Accordingly, Mr Clee submits:

As such Counsel is directing attention away from the ‘expectation’ being the starting point or end point being 15-16 and focussing a majority of the Appeal on the result. That irrespective of which starting point or end point was adopted it was manifestly excessive to impose any EM sentence.

...

Counsel’s Appeal is essentially that when substituting time on EM bail to the equivalent of Home Detention, and all the criteria in the Act have been met to a perfect standard (no breaches, full time detention except programs) that the logical starting point is one of direct substitution.

Even if it was not, and an arbitrary figure was established, in this case any reasonable figure would result in such a small amount of time ‘required’ on an EM sentence as to be nugatory. On that basis an alternative punitive sentence such as Community Work could be imposed to fill the gap.

⁶ Taylor v R [2013] NZCA 55.

⁷ Citing R v Gataloai [2007] NZCA 319 at [19]- [20] and Kumar v Police [2012] NZHC 89.

[14] In response, Ms Gibbs submits:

(a) The expectation generated by the sentence indication process must have been met by the end sentence imposed. That is because Judge Blackie specified a community-based sentence but did not speculate within that category.

(b) Where an appellant does not seek to vacate his guilty pleas, on appeal the Court must be persuaded the sentence is wrong and a different sentence should be imposed, according to Appulhamilage v Police, Nuku v R and Scoles-Young v Police and consistent with ss 250 and 252 of the Act.⁸

(c) Her previous submissions on whether the sentence was manifestly excessive are maintained.

Should the sentence be overturned?

[15] I accept, where appellants do not seek to vacate their guilty pleas in light of a sentence indication going awry, the Court must be persuaded the sentence is wrong and a different sentence should be imposed for an appeal to be successful. That is also the standard of appeal in the absence of a problem with a sentence indication.

[16] In Nuku v R the Court of Appeal’s guidance for injuring with intent to injure suggested a sentence of less than imprisonment can be appropriate “where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge” (in band one).⁹ Where three or fewer aggravating factors are present, a starting point of up to three years’ imprisonment will be appropriate (band two). A starting point of two years, up to the maximum of five years will apply where three or more of the aggravating factors are present and the combination of those features is particularly serious.

8. Appuhamilage v Police [2015] NZHC 2355 at [31]–[32]; Nuku v R [2016] NZHC 2255 at [19]– [20]; Scoles-Young v Police [2016] NZHC 1120 at [22].

⁹ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

[17] Here, there were several aggravating features of the offending: it occurred in the victim’s home; the victim was vulnerable, her head was attacked; and strangulation was part of the offending. Goodman v R, cited by Ms Gibbs, suggests a starting point of 20 to 22 months, while available to the Judge, was generous.¹⁰ I would adopt the 22-month starting point at the lowest.

[18] I consider a number of uplifts and discounts would have been appropriate:

(a) An uplift of around three months for the breach of a protection order was available. I do not accept Mr Clee’s submission that an uplift cannot be considered because of the sentence indication. I am comparing the sentence imposed with the sentence I would impose, which would include an uplift for the additional offence of breach of a protection order.

(b) Mr Clee acknowledges Mr Makiri’s criminal history is “atrocious”. Most relevantly, Mr Makiri has two previous convictions for assault with a blunt instrument in 2015 and one of injuring with intent to injure in a family violence context in 2011. I agree an uplift for these previous convictions, of three months’ imprisonment, would have been available to the Judge.

(c) A discount would also have been available, of around three months, reflecting Mr Makiri’s engagement with a living without violence programme.

(d) A judge’s discretionary discount in sentence for time served on EM bail requires consideration of the relative restrictiveness of the conditions, under ss 9(2)(h) and 9(3A) of the Sentencing Act 2002. But, on the basis of the Court of Appeal’s decision in Parata v R, EM bail is not equivalent to pre-trial remand in custody for the same amount of time but a modest discount may be appropriate.¹¹ I would discount the

¹⁰ Goodman v R [2016] NZCA 64.

¹¹ Parata v R [2017] NZCA 48 at [10]- [11].

sentence by three months for Mr Makiri having spent seven months on EM bail.

[19] Taking those uplifts and discounts into account would result in a 22-month sentence of imprisonment. After a 25 per cent discount for a guilty plea, my sentencing calculations would therefore result in a sentence imprisonment of around 16 months’ imprisonment, rounded down. A month of custodial remand would be taken into account by Corrections as a month of pre-sentence detention, under ss 89, 90 and 91(2)(a) and 92 of the Parole Act 2002 and s 82 of the Sentencing Act 2002.¹² So Mr Makiri would still have faced serving 15 more months’ imprisonment.

[20] It follows that I do not accept Mr Clee’s submission that, after discounts, the end sentence would be well below the time spent in custody and on EM bail or nugatory, or that the nature and seriousness of the offence has already been addressed by a more restrictive outcome.

[21] While imprisonment was available, I do not consider it was an error for Judge Blackie to exercise his discretion to impose a sentence of six months’ community detention and 18 months’ intensive supervision, instead of the imprisonment sentence that, otherwise, he or I would have imposed. In his sentence indication, the Judge explicitly did not speculate on the nature of the community-based sentence that would be imposed. But it was open for him to consider community detention would hold Mr Makiri accountable for the harm done to the victim and the community and promote in him a sense of responsibility for, or acknowledgement of that harm, as well as denouncing his conduct. This was serious family violence offending after previous convictions for serious family violence offending. It was open to the Judge to consider a curfew would reduce the likelihood of further offending.

[22] I do not consider Judge Blackie erred in imposing the sentence here. I would not impose a different sentence. Accordingly, I dismiss the appeal.


Palmer J

¹² Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.