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Court of Appeal of New Zealand |
Last Updated: 14 August 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
30 July 2014 |
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Court: |
Harrison, Goddard and Andrews JJ |
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Counsel: |
T Sutcliffe for Appellant
K A L Bicknell for Crown |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Introduction
[1] This is an appeal against an effective sentence of eight years’ imprisonment imposed on charges of wounding with intent to cause grievous bodily harm, aggravated robbery, burglary and two counts of aggravated assault. The appeal is brought on the ground that the sentence is manifestly excessive.
[2] The appellant, Wiremu Arahanga pleaded guilty on the morning of trial to the most serious of the charges, that of wounding with intent to cause grievous bodily harm and to the associated charge of aggravated robbery. Some seven weeks earlier he had pleaded guilty to burglary and two charges of aggravated assault. All charges arose from three separate incidents of offending committed jointly with his older half-brother, Mr Ropitini, during the early hours of 1 January 2013.
[3] The basis upon which it is said the sentence imposed on Mr Arahanga was manifestly excessive is:
Factual background
[4] At the time of the offending Mr Arahanga was aged 17 years and Mr Ropitini 25 years. The first incident occurred at their aunt’s house. Both men punched a man who was present and Mr Ropitini also grabbed the man’s partner around her neck when she tried to intervene.
[5] The two were asked to leave and began walking home. On the way, they got into an argument with the second victim, who they did not know, at his front gate. He told them to leave and went to a garage on his property. Messrs Arahanga and Ropitini followed him into the garage and struck him on the head from behind, causing him to fall to his knees. While the victim was on the ground, the two men kicked him in the face and struck him about the head and upper body with an empty beer bottle, which broke during the attack. In an attempt to protect his head during the attack the victim raised his right arm and sustained a deep laceration down his arm from the shoulder to the elbow. He also suffered a deep laceration to the back of his head. He was left lying on the ground bleeding and in a semi-conscious state. He was hospitalised for two days and the laceration to his arm required surgery. His Samsung Galaxy 3 cellphone was stolen during the assault and later found in Mr Arahanga’s possession.
[6] The third incident occurred at another address, which the two men entered by walking into the enclosed yard. They went to a garage at the rear of the property and removed from it two laptop computers, an electronic tablet and a quantity of alcohol. A 23 year old female living at the address was alerted to the presence of the offenders by the noise and went to the garage. As she opened the door, she was punched in the face by one of the men, who then brushed past her. She grabbed hold of the second man who also punched her. Her first assailant returned and kicked and punched her while she was struggling with the second man. Her mother came to her assistance and was also punched in the face by one of the men. Both men left the address chased by the younger victim at whom they threw cans of alcohol before running away.
[7] The 23 year old victim suffered bruising to her face, arm, buttocks and legs. Her mother suffered soreness around an eye.
Sentencing
[8] Messrs Arahanga and Ropitini were sentenced together, following the latter being found guilty at trial.[2]
[9] In sentencing Mr Arahanga, Judge McGuire took into account a number of statements in the pre-sentence report: first, that his propensity for violence, substance abuse and gang membership were features of his offending; second, that although it had been earlier suggested his violence may be related to alcohol abuse, Mr Arahanga’s behaviour whilst in prison also suggested a propensity for violence when sober. The report writer further noted that Mr Arahanga maintained his antisocial attitude while in prison and his commitment to the gang kaupapa, and demonstrated a total lack of interest in any rehabilitative programmes.
[10] A letter of remorse written by Mr Arahanga was acknowledged by the Judge but dismissed as carrying little weight, based on the “obvious indifference” Mr Arahanga displayed in Court during sentencing.[3]
[11] The charge of wounding with intent to cause grievous bodily harm was taken as the lead charge for sentencing purposes. Counsel accepted that the offending fell within band two of R v Taueki. Judge McGuire was satisfied the offending came within that band and “arguably towards the upper end”.[4] He adopted a starting point of eight years and six months, taking into account the aggravating features of use of a weapon, unlawful entry, extent of harm, vulnerability and facilitation of the crime.
[12] The Judge then turned to consider factors personal to Mr Arahanga and found his age and his less serious criminal history provided grounds for distinguishing between him and Mr Ropitini. A “slight discount” was applied to reduce the sentence by six months to reflect Mr Arahanga’s youth and late guilty pleas,[5] the Judge finding the principles of denunciation and deterrence to be the “dominant dictates” in the circumstances.[6] Concurrent sentences were imposed for the other charges. The Judge declined to impose a minimum period of imprisonment because of Mr Arahanga’s age. By way of comparison, Mr Ropitini received an increased sentence of six months’ imprisonment to reflect his history of serious violence, together with a minimum period of imprisonment of 50 per cent because of a need to protect the community.
Decision
[13] There is only one issue of concern in the appeal: that is, whether the bundled together discount for the plea of guilty, plus the youth factor, sufficiently recognised both of those mitigating factors.
[14] Before dealing with that issue we record our endorsement of both the starting point of eight and a half years adopted by the Judge as correct in principle and as appropriately reflecting the seriousness of the offending; and the Judge’s treatment of the relative culpability of the two offenders.
[15] The same starting point was applicable to both offenders. The complaint that there should have been different starting points for Messrs Arahanga and Ropitini, because of the former’s relative youthfulness and his lesser criminal history, overlooks that the starting point must reflect all of the features of the offending absent any personal factors relevant to a particular offender. Personal factors are to be taken into account by way of sentencing discounts or uplifts once an appropriate starting point has been identified using ranges applicable to adult offenders.[7] However, Mr Arahanga’s age and lesser criminal history may be relevant to an assessment of culpability if they support the conclusion that he in fact played a lesser role in the offending relative to his older co-offender.
[16] In the present case, the Judge was entitled to reach the view, based on all of the evidence at the trial, that Mr Arahanga was equally culpable in the offending alongside the older and more criminally mature gang member Mr Ropitini.[8] The evidence at the trial strongly suggested Mr Arahanga was a full participant in the serious attack on the second victim and that he and Mr Ropitini were correctly charged as joint principal offenders. Which one struck the victim in the head from behind; or which one did the kicking; and which used the beer bottle to assault the victim is not known. Accordingly, the Judge was right to adopt the same starting point in respect of each.
[17] In relation to the starting point adopted by the Judge in this case, Mr Sutcliffe argued that eight years and six months was “at the outer range for this offending” and suggested that a starting point of between seven and eight years would have been appropriate.
[18] In support he referred to the qualifying factors in R v Taueki;[9] and to the decisions of this Court in Robin v R;[10] and Hu v R,[11] suggesting that the subject offending in each of those cases was more serious than in Mr Arahanga’s case.
[19] As this Court has previously stated, the decision in R v Taueki provides useful guidance in the assessment of culpability but the features of the particular offending in each case require careful assessment in order to establish a starting point that properly reflects the culpability inherent in the offending.
[20] In the present case, the Judge identified the use of a weapon, the unlawful entry onto the victim’s property, a cowardly assault from behind, the sustained nature of the assault, and the serious nature of the injuries inflicted as aggravating factors. As the Crown submitted, the Judge could also have taken into account the further aggravating factor of more than one offender being involved and the fact the attacks were directed to the victim’s head.
[21] The combination of those factors clearly justified a starting point towards the upper end of band two in R v Taueki.
[22] Coming then to the only point of substance in the appeal, Mr Sutcliffe’s submission was that the six month reduction (a combined discount of just under six per cent) to reflect both Mr Arahanga’s guilty pleas and his youth was inadequate and arguably he should have received a 10 per cent discount for pleading guilty alone.
[23] Those two factors should have been separately assessed and it is now impossible to discern how the Judge read the situation in relation to each circumstance. Putting that to one side, we do not consider the approach taken by the Judge led to a manifestly excessive sentence.
[24] The weight to be given to a guilty plea as a mitigating factor is very much within the discretion of the sentencing Judge and will vary in accordance with the circumstances. In this case, Mr Arahanga’s guilty pleas to the serious charges were so late they would have had little effect in terms of saving the trouble and expense of a trial, which took place regardless because Mr Ropitini chose to put the Crown to proof. Notwithstanding, Mr Arahanga did plead guilty to four counts some weeks before trial and his belated guilty pleas on the morning of trial would at least have spared the victim the ordeal of giving evidence. In these circumstances we consider a discount of about five per cent to be appropriate.
[25] It is clear that the Judge made some allowance for Mr Arahanga’s youthfulness as a mitigating factor in the combined discount of six per cent.
[26] Mr Sutcliffe helpfully collected the relevant decisions of this Court in which there has been discussion on the relevance of youth in sentencing.[12] Relevant considerations encompass the age-related neurological differences between young people and adults which render young people more vulnerable or susceptible to negative influences and a tendency to greater impulsivity than adults;[13] the effect of imprisonment on young people;[14] and the usually greater capacity of young people for rehabilitation.[15]
[27] Overall, a realistic assessment, balancing all of the factors recently considered in Tukaki v R,[16] following the decision in Churchward v R, is required in determining the appropriate discount, if any, for youth.[17]
[28] In Mr Arahanga’s case he was aged 17 when he committed these offences and 18 at the time of his conviction and sentence.
[29] However, the offending was grave and Mr Arahanga already had several convictions in the District Court for offences committed prior to this offending, as well as convictions in the Youth Court for assaults on police, threatening to kill, male assaults female and burglary. While we accept the principle that a young person may be less culpable because of impulsivity and influence, we are satisfied here that the factors we have identified place Mr Arahanga is in a special category where the requirements of deterrence and public protection must prevail. There is also the fact that Mr Arahanga has previously committed violent offences whilst acting on his own.
[30] In relation to rehabilitative prospects, the Judge was dismissive of Mr Arahanga’s expressions of remorse. The pre-sentence report also noted that Mr Arahanga has not exhibited any motivation to reform. Rather, he has demonstrated a proclivity for serious offending of an adult kind. Taking all of these circumstances into account, we consider that the public interest weighs against anything more than a very slight discount for Mr Arahanga’s age. While the discounts should have been separately articulated, the overall discount of around six per cent – or six months – reflects a greater allowance for the guilty pleas than might otherwise have been made and the end sentence is not manifestly excessive.
Result
[31] The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for
Respondent
[1] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
[2] R v Ropitini DC Rotorua CRI-2013-063-75, 5 December 2013.
[3] At [27].
[4] At [34].
[5] At [35].
[6] At [37].
[7] Overton v R [2011] NZCA 648 at [22].
[8] Sentencing Act 2002, s 24.
[9] R v Taueki, above n 1.
[10] Robin v R [2013] NZCA 330.
[11] Hu v R [2011] NZCA 412.
[12] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446; R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 (CA); R v Chankau [2007] NZCA 587; R v Cuckow CA312/91, 17 December 1991; R v Mahoni (1998) 15 CRNZ 428 (CA).
[13] Churchward v R, above n 12, at [79]–[84]
[14] Pursuant to s 8(h) of the Sentencing Act, which requires the Court to take into account any particular circumstances of the offender which make a sentence which would be otherwise appropriate disproportionately severe. See also Churchward v R, above n 12, at [85]–[87].
[15] Churchward v R, above n 12, at [88]–[90], citing R v Cuckow, above n 12, at 10.
[16] Tukaki v R [2013] NZCA 411.
[17] Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868, at [98].
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