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Aramoana v R [2021] NZCA 558 (22 October 2021)

Last Updated: 28 October 2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA143/2019
[2021] NZCA 558

	BETWEEN	ERU NANABOY ARAMOANA Appellant
	AND	THE QUEEN Respondent

Hearing:	28 September 2021
Court:	Cooper, Venning and Palmer JJ
Counsel:	K H Maxwell for Appellant R D Butler and A C Cameron for Respondent
Judgment:	22 October 2021 at 10.30 am

JUDGMENT OF THE COURT

The appeal is allowed.
The sentence of five years and six months’ imprisonment is quashed.

A sentence of four years and 11 months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

Offending and sentence

[1] On 9 November 2017, Mr Eru Aramoana now aged 41, went to an address in South Auckland with a co-offender, intending to purchase methamphetamine. Led by the co-offender, they beat the victim severely, leaving him with blurry vision, a fractured shoulder, migraines, memory loss and trauma from his head being kicked and punched numerous times. They robbed him of $300 cash, a cellphone, a USB device, a travel bag and keys. Mr Aramoana denied participating in any violence. Nevertheless, after a trial by jury, on 16 November 2018 he was convicted of aggravated robbery.
[2] The Department of Corrections provided a pre-sentence report about Mr Aramoana. It reported Mr Aramoana saying that what he did was normal behaviour in South Auckland, reflecting the way he was raised and his association with gang life. Mr Aramoana said he was under the influence of drugs at the time of the offending. He stated his willingness to attend any programmes available to address his drug and alcohol abuse. The report said Mr Aramoana had previously expressed his wish to change his life and that he has a supportive partner and children. However, it also observed that he seems ill-equipped to implement a structured lifestyle which would support that. It assessed his risk of harm and of reoffending as high. Mr Aramoana has an extensive criminal history.
[3] On 17 January 2019, Judge McGuire sentenced Mr Aramoana.^[1] Mr Aramoana addressed the Judge about his past. After traversing the offending, the Judge outlined Mr Aramoana’s personal circumstances including institutionalisation by social welfare as a youth and having children of his own, and the information in the pre-sentence report by Corrections. The Judge told him not to blame his upbringing for his own actions and to take responsibility for his life. The Judge adopted a starting point of six years’ imprisonment for the offending.^[2] He accepted that Mr Aramoana’s need to access drugs drove his previous burglary convictions and did not take into account a conviction for aggravated assault and burglary which was committed after the index offending. For Mr Aramoana’s prior offending, the Judge uplifted the sentence by six months. He made an allowance for initial steps taken by Mr Aramoana on remand to address his drug issue and a five per cent discount for allowing agreed facts to be presented to the jury. That resulted in a discount of one year overall and an end sentence of five years and six months’ imprisonment.^[3]
[4] Mr Aramoana appeals the sentence. This Court granted an extension of time for that purpose.^[4] Because of previous procedural complexities, and with the consent of the Crown, the Court also granted leave for a report under s 27 of the Sentencing Act 2002 (the Act) to be adduced as evidence in this appeal.

Submissions

[5] Ms Maxwell, for Mr Aramoana, submits that not all of the matters in the s 27 report were canvassed in the submissions for Mr Aramoana at the sentencing. She submits the Judge focussed exclusively on steps taken by Mr Aramoana since the offending rather than recognising his background as potentially relevant or giving it sufficient weight. She submits there should be an additional discount of 10 to 15 per cent.
[6] Mr Butler, for the Crown, acknowledges that the Judge did not give express credit for the factors in the s 27 report, which he describes as commendably detailed and thorough. But he submits the material factors in the report were self-evident, the Judge summarised Mr Aramoana’s personal circumstances and addressed Mr Aramoana directly in te reo Māori, and Mr Aramoana addressed the Judge directly about his early institutionalisation. Mr Butler submits that the starting point could have been higher, could have been uplifted further and a relatively full discount for rehabilitative steps was allowed. He submits that to allow a further discount on top of the 15 per cent allowed by the Judge would involve double-counting. He submits Mr Aramoana’s failure to express remorse for, or accept his role in the offending undermines any further credit. He submits the overall sentence is within the acceptable range.

The legal effect of an offender’s personal background

[7] Section 8 of the Act requires a court to take into account a number of principles. These include the requirements, in s 8(g), to impose “the least restrictive outcome that is appropriate in the circumstances” and, in s 8(i), to take into account “the offender’s personal, family, whanau, community, and cultural background in imposing a sentence”. Section 27(1) of the Act provides that, at sentencing, an offender may request the court to hear any persons they call to speak. Under s 27(2), the court is required to hear the person called unless it is satisfied some special reason makes that unnecessary or inappropriate. They may speak about:^[5]

(a) the offender’s family, whānau, community and cultural background;

(b) how that background may have related to the commission of the offence;

(c) any processes that are available or have been tried by the offender’s family, whānau or community to resolve issues relating to the offence;

(d) how support may be available to help prevent the offender’s further offending; and

(e) how that support may be relevant to possible sentences.

[8] After a slow start, the case law regarding s 27 is now becoming established. In 2018 in Solicitor-General v Heta, Whata J in the High Court observed that s 27 “mandates consideration of the full social and cultural matrix of the offender and the offending”.^[6] Further, inclusion of all material background factors, including evidence of systemic Māori deprivation, “may inform, among other things, the actual and relative moral culpability of the offender and the capacity for rehabilitation”.^[7] In a guideline judgment on sentencing for methamphetamine offending, Zhang v R, a Full Court of this Court endorsed the reasoning in Heta and made four points relevant here:^[8]

[159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.

[160] Secondly, distinct rehabilitative and reintegration considerations applicable to Māori that make use of the power in s 25 of the Sentencing Act to adjourn sentencing to enable rehabilitative programmes to be undertaken are particularly relevant. We will revert to this subject shortly.

[161] Thirdly, these are matters where the right to address the court on personal, family, whānau, community and cultural background and support under s 27 of the Sentencing Act is clearly relevant.

[162] Fourthly, social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender.

[9] The assessment of the nature of the linkage between personal background and offending is a fact specific exercise.^[9] As this Court said recently in Waikato-Tuhega v R, it is not a mechanical exercise but an overall assessment, assisted by the evidence available of how personal circumstances might have contributed to culpability or offending.^[10] As this Court said in Carr v R, the Court is not required to be satisfied the matters in a s 27 report are the “proximate cause of the offending”.^[11] A 15 per discount was considered appropriate in that case.^[12] The Court considered the report there:^[13]

... gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, of the kind envisaged in Zhang.

[10] In Davidson v R, this Court considered that “in cases of serious violence cultural factors will have a lesser effect on sentencing because the considerations of denunciation and community protection will prevail”.^[14] But that is a relative statement. It does not mean no discount or only a small discount must apply in cases of serious offending, or even where there is no significant evidence of willingness to rehabilitate, as this Court recently pointed in out in Waikato-Tuhega v R.^[15] There a discount of 15 per cent was given on appeal for the personal circumstances of an offender who had been convicted of two offences of aggravating robbery, two offences of theft, unlawfully using or taking a vehicle, possession of an offensive weapon and burglary.^[16] In Lee v R, this Court agreed that methamphetamine and jealousy were primary drivers of the offending and that the offender, firmly entrenched in a gang environment, had low prospects of rehabilitation and a high risk of reoffending.^[17] Accordingly, it did not consider a greater discount than five per cent was warranted.

Should a different sentence be imposed?

[11] The s 27 report here paints a vivid picture of Mr Aramoana’s upbringing. His mother was 15 when he was born and his father, a member of the Stormtroopers gang, was 19. He was initially brought up by his grandparents amid alcohol and violence in Otara as the eldest of eight siblings. At this time, he was disconnected from his iwi of Waikato Tainui, Ngāti Porou and Ngāti Pāoa. The report quotes Mr Aramoana saying the movie Once Were Warriors “was softer than my childhood”. It outlines his whānau dysfunction and limited education including at five secondary schools, leaving after what is now year 10. He was placed in boys’ homes and youth justice facilities at Weymouth, Epuni, Kingsley and Dey Street from the age of 13. It outlines his early entry into the criminal justice system at the age of 16, and youth gang affiliation. It describes his early uptake of drugs and alcohol, using cannabis at 15 years old and methamphetamine in Rimutaka Prison at 20 years old, his addiction to methamphetamine for about 10 to 15 years, and his habituation to prison. His whānau suffers from inter-generational criminality. Mr Aramoana’s incarceration in state facilities as a boy and as an adult have exacerbated that. The report quotes Mr Aramaoana’s recollection of a letter he wrote to a Judge in one of his appearances:

I am a product of my environment, born into a hereditary life of drugs, crime, alcohol and violence. The life I was about to embark on was a continuation of the cycle I was living in, of crime. I had no help. For me going to Weymouth and boy’s homes, they never had anything in place to try and help us to stop us from doing crime, no programmes. All the staff did was to ensure we were still there, got fed, and in our beds at night. There was nothing to help us to stop doing what we were doing. When you get a person just getting into trouble, I think the thing with me is I started too early and got myself too involved in it. There was no help for me. The staff at Weymouth weren’t there to help me stop doing this. They were just there to make sure they lock me up. So the people I was learning off was the people I was there with, other little crims, feeding off each other and what each other’s got. When you’re in that cycle, you’re just going to keep getting fed off other people around you. You’re just as good as the other people you’re around eh. When I got to jail, I wasn’t scared to go to jail. I felt that I was yeah I’m going by all my boys who were already in jail. I was excited to go there. I wasn’t like f**k I don’t want to go to jail. I was like yeah, I’ll go to jail.

[12] Now, at 41 and as a father and grandfather, there is evidence Mr Aramoana is seeking to turn his life around. He is reconnecting with his cultural heritage. He has successfully completed Corrections’ Special Treatment Unit Rehabilitation Programme (STURP) – Violent Offending. The report quotes Mr Aramoana about his willingness to change:

F**k I’m more than ready. Just doing little things for me is a new step to making changes. In the past, I wouldn’t even care about doing reports. I would just take it on the chin and I don’t give a f**k about that sort of thing. Right now I want to go and do STURP. I want to be prepared when I get out of jail. I don’t want to get out and not be prepared this time. In the past, yip, I want to get out, go see the boys, have this, do that. This time I want a long term plan. I want a job and accommodation when I get out, a place I can go to set myself up. I want to be prepared knowing that when I leave jail, I did everything I needed to when I was in here. Even if I do this report and my appeal doesn’t work, it doesn’t matter. I’m still going to keep doing what I’m doing now.

[13] Mr Aramoana addressed the Judge and clearly touched on some of the factors in the s 27 report. But, on the basis of the Judge’s sentencing remarks, we have no doubt that the report is an appreciably more comprehensive and detailed account of Mr Aramoana’s personal circumstances than was available to the Judge. And, while the Judge mentioned aspects of those circumstances in his judgment, it is not at all clear that any of them were related to the discounts he gave. Rather, the Judge’s message to Mr Aramoana was to take responsibility and stop blaming others. Implicitly, the Judge discounted Mr Aramoana’s sentence by five per cent for his cooperation in the trial and 10 per cent for his steps towards drug rehabilitation.
[14] We consider that the s 27 report here demonstrates that Mr Aramoana’s background and personal circumstances have likely impaired his choices and diminished his moral culpability, compared with someone who had not suffered those circumstances. The exacerbating effect of state facilities is particularly poignant. There is a sufficient linkage from his background, leading almost inevitably to addiction to methamphetamine, to the heart of this offending. We are conscious that his offending was serious and involved violence, which invokes considerations of denunciation and community protection. However, it seems that Mr Aramoana’s prospects of rehabilitation are now brighter, including an escape from the drugs which have bedevilled his life. Compared with other cases, we consider Mr Aramoana’s diminished moral culpability based on his background and personal circumstances, aside from his rehabilitation steps, justifies a discount to his sentence of around 10 per cent.
[15] The real question here is whether such a discount changes the overall sentence. Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. Otherwise it must dismiss the appeal. Our focus is on whether the appeal was within the available range.^[18]
[16] We do not consider there was an error in the starting point or uplift adopted by the Judge. And he made justified allowances in the sentence for Mr Aramoana’s cooperation during the trial and for his rehabilitative steps. But the Judge’s sentencing remarks clearly indicate that there was information before him that would have justified some discount on the basis of Mr Aramoana’s background and personal circumstances. We consider the Judge erred in not making any allowance at all for that factor, as both parties agreed he did not. We now have more comprehensive information about the nature and effect of Mr Aramoana’s background. We apply the additional discount that justifies, of around 10 per cent, or six months, accordingly.

Result