Tipene v R [2021] NZCA 565 (27 October 2021)

Last Updated: 2 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA393/2020 [2021] NZCA 565

	BETWEEN	ADAM TIPENE Appellant
	AND	THE QUEEN Respondent

Hearing:	27 September 2021
Court:	Goddard, Woolford and Mander JJ
Counsel:	H G de Groot and J A H Randerson Reid for Appellant M H Cooke for Respondent
Judgment:	27 October 2021 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentences imposed in the District Court for the aggravated burglary, the aggravated assault using a motor vehicle, and the injuring a police dog charges are quashed and substituted with cumulative sentences of three years and nine months’ imprisonment, nine months’ imprisonment and six months’ imprisonment, respectively. That results in an overall effective sentence of five years’ imprisonment.

100. The minimum period of imprisonment is quashed.

4. All other sentences imposed in the District Court remain unchanged, including the cumulative periods of disqualification from driving in respect of the dangerous driving and failing to stop charges.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

• [1] During the course of his trial in the Whangārei District Court, Mr Tipene pleaded guilty to a range of charges relating to his aggravated burglary of a Northland address. He was sentenced by Judge McDonald to five years and three months’ imprisonment and ordered to serve at least 60 per cent of that term.^[1] He appeals his sentence on the basis the starting point for the aggravated burglary charge was excessive, and no allowance was afforded for mitigating factors detailed in a report prepared pursuant to s 27 of the Sentencing Act 2002. He also argues it was not necessary to impose a minimum period of imprisonment (MPI).

Background

• [2] In the early hours of 22 December 2018, police received a report that a stolen vehicle was being driven dangerously. After a patrol car located this vehicle and pulled up behind it, Mr Tipene got into the vehicle and sped away. He reached speeds estimated between 120 and 140 kph and drove on the wrong side of the road. At times he would stop around blind corners and reverse towards the following patrol car, forcing the police to take evasive action to avoid being rammed. He threw items from his car, including glass bottles, in an attempt to stop the police pursuing him.
• [3] Mr Tipene drove up a narrow, winding country road and lost control of his vehicle. He crashed into a fence and then took off on foot. He made his way to a residential address surrounded by bush at the end of a long driveway. After unsuccessfully attempting to start a motorcycle, he entered the house through an unlocked door. The two occupants, who were asleep upstairs, were woken by the sound of Mr Tipene in the house. When they confronted him and asked him what he was doing, he became aggressive and demanded $50,000 from them.
• [4] The male occupant convinced Mr Tipene to go downstairs, and the female occupant was able to call the police after hiding in a wardrobe. Once downstairs, Mr Tipene demanded the keys to a utility vehicle parked outside. He then obtained a knife from the kitchen and threatened to stab the male occupant if he did not hand over the keys. The occupant provided Mr Tipene with the keys to his vehicle but Mr Tipene continued to demand $50,000 and, armed with the knife, followed the male occupant back upstairs.
• [5] At this point, a police dog handler arrived at the address. He announced his presence and directed Mr Tipene to surrender himself. Mr Tipene climbed through a window onto the roof of the house. The constable moved around the sloped section to a position adjacent to where Mr Tipene was on the roof. He instructed him to lie down or he would release his dog. When Mr Tipene refused, the constable lifted his dog onto the roof, whereupon Mr Tipene stabbed the animal twice in the head. He then ran across the roof and jumped onto a retaining wall, at which point the officer was able to tackle him. Mr Tipene continued to resist. He struggled with the constable and had to be pepper-sprayed before finally being subdued when the male occupant and an off-duty officer arrived to assist.
• [6] The home invasion had a severe psychological impact on the female occupant. The 111 call she made, which was recorded and played at the trial, was described by the Judge as chilling. The police dog suffered several skull fractures and underwent emergency surgery but has since recovered to return to full duties.

The sentencing decision

• [7] After identifying the lead offence to be the aggravated burglary charge, Judge McDonald took a starting point of four and a half years’ imprisonment.^[2] In making adjustments from that starting point, the Judge took into account the principle of totality and the need to impose the least restrictive outcome. However, the arithmetic he applied to arrive at an end sentence of five years and three months’ imprisonment is difficult to follow.^[3] The various figures referred to by the Judge as representing either uplifts for Mr Tipene’s other offending or a discount for totality cannot be reconciled with the various adjusted starting points referred to in the sentencing decision. It is essential that the reasoning process that leads to the sentence ultimately imposed is logical and capable of being followed by the defendant, the victims, and the public. In this case, it is not possible to understand how the decisions made by the Judge about the various steps in the sentencing analysis resulted in the overall effective sentence that was imposed. It is therefore necessary for us to undertake the sentence analysis afresh.

Starting point for aggravated burglary

The argument

• [8] On behalf of Mr Tipene, Mr de Groot contended that a starting point of no more than three years’ imprisonment was appropriate for the aggravated burglary charge.^[4] He submitted Mr Tipene’s conduct was characterised by a lack of planning and premeditation and that the aggravated burglary had occurred in the context of a “botched” escape attempt. He submitted this was to be contrasted with cases where offenders have targeted the occupants of addresses and disguised themselves. It was also emphasised that, unlike in a number of serious home invasions, Mr Tipene had not brought a weapon to the property and had only obtained the knife from the kitchen in an improvised attempt to obtain access to another vehicle.
• [9] Mr de Groot submitted that no actual violence had been directed at the occupants and that care was required to ensure there was no doubling up of the penalty for brandishing the knife as an aggravating feature of the burglary when Mr Tipene faced a separate charge of carrying a weapon. While Mr de Groot accepted Mr Tipene’s offending had significantly impacted on the victims, he argued that no property had been taken or damage caused to the dwelling, with entry having been obtained by way of an unlocked door.

Discussion

• [10] It is well-established that the guideline decision for aggravated robbery, R v Mako, expresses principles that are equally applicable to aggravated burglary.^[5] In that case, this Court relevantly stated:^[6]

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

• [11] The home invasion legislation was subsequently repealed, meaning the above passage must be read in light of the fact there was previously a higher maximum penalty for an aggravated robbery or burglary that involved a home invasion. However, the unlawful entry into a dwelling place is a recognised aggravating factor.^[7]
• [12] Recently, in Pearson v R, this Court reviewed a number of sentences for aggravated burglary or aggravated robbery that involved home invasions.^[8] Those cases mainly involved multiple offenders, the use of disguises and weapons, planning and premeditation, and injuries to vulnerable victims. As a result, the starting points of between eight to 11 years’ imprisonment identified in those decisions must be viewed as falling into the upper bracket of the category of cases identified in Mako. However, in another recent decision of this Court, Poi v R, which included a review of sentences for aggravated robbery-type home invasions, it was concluded that a starting point of at least seven years’ imprisonment would be appropriate for such offending. Starting points for offending that involved an element of home invasion generally ranged between six and a half to 10 years.^[9]
• [13] Mr de Groot sought to rely upon a number of decisions of this Court that involved starting points of between two and a half to four and a half years’ imprisonment where weapons had been taken to the scene and premeditated plans to steal property or inflict injury had been executed in order to target particular victims.^[10] However, Ms Cooke, on behalf of the Crown, observed that those cases did not involve a home invasion at night, and the victims were either known to the offenders (from whom compensation for perceived debts was being sought) or did not involve a potentially lethal weapon such as a knife. Ms Cooke pointed to other decisions of this Court which suggested starting points of between six and seven and a half years’ imprisonment were appropriate.^[11]

Decision

• [14] Invariably, the circumstances of each case will differ and different combinations of factors will lead to different starting points across the range available indicated for this type of offending. Whatever distinctions are sought to be made between the present case and other sentencing decisions, we are satisfied the core features of the present offending of a home invasion by night, the brandishing of a knife, and the violence threatened towards the occupants (who had no prior connection with Mr Tipene) in an endeavour to extract money and obtain a getaway vehicle, fall squarely within the category of case that could attract a starting point considerably greater than four and a half years’ imprisonment.
• [15] We do not consider either the absence of a co-offender or the limited premeditation renders the starting point of four and a half years’ imprisonment imposed by the Judge for the aggravated burglary charge excessive. To the contrary, it could, in the circumstances, be considered generous.

Uplift for balance of offending

• [16] In addition to the aggravated burglary charge, Mr Tipene was also for sentence on charges of conversion of a vehicle,^[12] failure to stop,^[13] dangerous driving,^[14] aggravated assault (arising from the attempt to ram the police car),^[15] and unlawful interference with a motorcycle.^[16] These charges all arose from Mr Tipene’s initial attempt to escape before he entered the house. Mr Tipene was also sentenced on charges of wounding a police dog,^[17] and resisting police.^[18] Because of the discrete nature and seriousness of this offending, both sets of charges are required to be marked by separate uplifts.
• [17] Judge McDonald sought to impose such uplifts but it is not clear from his calculations what figures he actually arrived at for the purpose of an adjusted starting point. Having regard to the principle of totality, we consider Mr Tipene’s endangerment of the public and the police from his driving, including his attempt to ram the police vehicle, and his wounding of the police dog justify uplifts of 12 and nine months, respectively.

Discount for factors identified in the s 27 report

• [18] Judge McDonald declined to provide any discount for the personal factors disclosed in the s 27 report. The Judge did not consider there was any link between Mr Tipene’s personal background and his offending on this occasion. As the Crown responsibly acknowledged, that conclusion is not realistically tenable in light of the details set out in the report. These include Mr Tipene’s difficult childhood, which was marked by violence and deprivation, cultural disconnectedness despite strongly identifying as Māori, lack of schooling, early entry into the criminal justice system, and alcohol and drug dependence.
• [19] Mr Tipene grew up in circumstances of poverty, surrounded by a subculture of excessive drinking, following his parents’ separation. The only source of stability was from his grandmother who died when he was 10 years old. He was exposed to and experienced physical violence from his father and, when he ended up living with his mother, he was exposed to further violence, gangs, alcohol and drugs. There was little food in the house and he did not attend school very often. Mr Tipene reported finishing school at around 12 years of age, at which point he began accompanying an uncle who would break into houses to steal food and items of value. Around this age, Mr Tipene began using methamphetamine. He became addicted. He recalls a change in his behaviour, as he became overly aggressive and started bullying others.
• [20] It is notable that as a young man Mr Tipene obtained work in the forestry industry, obtained machinery certificates and maintained employment for some 14 years. However, Mr Tipene remained addicted to drugs and he began getting into more trouble when he started affiliating with gangs. His dependency on methamphetamine resulted in further offending and increasing periods of imprisonment for burglaries which were committed to feed his habit. It cannot be taken into account as a mitigating factor but it is notable that Mr Tipene was under the influence of methamphetamine on the night he offended, such is its obvious deleterious effect on him.^[19]
• [21] We consider it to be an inescapable conclusion that Mr Tipene’s offending is linked to his addiction, which we do not consider can be separated from his cultural alienation and his impoverished and violent upbringing which in turn exposed him to crime and drugs at a very early age. Mr Tipene has demonstrated that, if he can master his addiction, he has the ability to lead a constructive life. He has indicated a willingness to address his alcohol and drug issues, and other rehabilitative needs, including his disconnectedness from te ao Māori. The pre-sentence report records that Mr Tipene has abstained from methamphetamine for over a year. He has attended a drug programme and is described as fully engaged with his probation officer in an effort to “remain pro-social”.
• [22] In Zhang v R, this Court recognised that where systemic deprivation impairs a defendant’s choice it diminishes moral culpability.^[20] In declining to extend any credit for the content of Mr Tipene’s s 27 report, the sentencing Judge referenced a decision of the High Court that emphasised the need for some link or nexus to be made between a person’s upbringing and their offending.^[21] The approach taken in that case was the subject of an appeal to this Court in Carr v R which, while acknowledging that the gravity of the person’s offending may temper the extent of any discount for matters personal to an offender, did not consider it should exclude any allowance at all. Where there is a link of the kind recognised in Zhang, it should be recognised by an appropriate deduction.^[22] Indeed, in a very recent decision, this Court observed Carr should not be interpreted as saying that discounts of more than 15 per cent are not warranted in cases of serious offending.^[23]
• [23] Discounts for systemic deprivation and disadvantaged backgrounds can range widely depending upon the identifiable linkage between the offender’s personal circumstances and their offending, and thus their moral culpability.^[24] Recent decisions of this Court have approved discounts of some 15 per cent as being appropriate in cases of serious offending in the context of a culturally alienated and marginalised upbringing.^[25] In this case, we consider there is a linkage between Mr Tipene’s dependence on methamphetamine, which is rooted in his deprived traumatic childhood and youth, which itself is a product of systemic cultural deprivation, and his offending. We consider it was an error not to recognise that linkage by making an appropriate allowance for that aspect of his personal circumstances when imposing sentence. We consider a 15 per cent deduction would have been appropriate.

Guilty plea discount

• [24] Notwithstanding Mr Tipene having only pleaded guilty on the afternoon of the third day of his trial, he was afforded a five per cent discount. That must be viewed as generous. The Judge would have been entitled to have declined any credit for such a late plea, particularly when regard is had to the fact the female victim of the aggravated burglary was required to give evidence and the distress that caused her. However, for the purposes of the recalculation exercise, we do not intend to depart from the approach taken by the sentencing Court, nor did the Crown urge us to do otherwise.

Overall assessment

• [25] An appeal court must only allow an appeal against sentence if it is satisfied there is an error in the sentence. It is plain that we have found that to be the case. However, it is also necessary for us to be satisfied that a different sentence should be imposed.^[26] Sentencing cannot be an exact science and unless the end sentence finally imposed is outside the range available to the sentencing judge an appeal will not succeed.^[27] It is the end sentence that must be the primary focus rather than the method by which that final sentence is calculated.^[28]
• [26] Upholding the starting point of four and a half years’ imprisonment for the aggravated burglary and applying an uplift of 21 months, being the combined effect of cumulative increases for the attack on the police dog and the offences committed during the course of the dangerous driving (which included the attempt to ram the pursuing police), we arrive at a total starting point of six years and three months’ imprisonment. The combined discount of 20 per cent for the factors personal to Mr Tipene detailed in the s 27 report, and the belated guilty plea, results in a deduction of 15 months and a final sentence of five years’ imprisonment.
• [27] Ordinarily, such an outcome would not warrant disturbing a sentence of five years and three months’ imprisonment, and we do not overlook the Crown’s submission that aspects of the Judge’s approach were generous to Mr Tipene. However, we consider, in the unusual circumstances of this case, which has required us to effectively repeat the sentencing exercise in order to provide a logical and understandable explanation of how the end sentence has been arrived at, we should give effect to that analysis and impose the final sentence that it justifies.

Minimum period of imprisonment

• [28] Judge McDonald considered that because of the nature of the offending an MPI requiring Mr Tipene to serve 60 per cent of his sentence before becoming eligible for parole should be imposed.^[29] The Judge did not articulate the reasons for his conclusion, other than to note that the Crown sought such a non-parole period on the basis the requirements of deterrence, denunciation and protection of the public would not be adequately achieved if Mr Tipene was to become eligible for parole in the normal way.^[30]
• [29] Ms Cooke submitted the Judge did not err in imposing an MPI and accurately observed that the index offending represented a significant escalation in Mr Tipene’s prior offending. However, the Crown also acknowledged Mr Tipene’s rehabilitative prospects, detailed in both the s 27 and pre-sentence reports, and fairly recognised that, notwithstanding the seriousness of the offending, it could be considered that Mr Tipene’s prospects of rehabilitation and absence of similar past offending point away from the imposition of an MPI.
• [30] The seriousness of Mr Tipene’s offending must be recognised but we are not satisfied the imposition of the MPI properly takes into account Mr Tipene’s apparent motivation to address his drug addiction, which he has demonstrated by engaging in one-on-one counselling and group sessions while on electronically-monitored bail, and his attendance at a drug programme. Mr Tipene suffers from addiction and further interventions will obviously be required if he is to sustain progress, but the information available to us indicates he is motivated to address his issues with drugs in an endeavour to stay offence-free.
• [31] Mr Tipene was assessed by the pre-sentence report writer as having a moderate likelihood of committing further offences, although because of his current offending, the assessment of his harm to others was described as being medium to high. We accept that the prospects of success are difficult to predict but, in the absence of any previous convictions for violence, apart from a conviction for assault, for which he was convicted and discharged some 10 years ago, it is not apparent that either deterrence or the protection of the public should prevent the Parole Board from considering Mr Tipene’s eligibility for parole in the normal way. We therefore quash the order imposing an MPI.

Result

• [32] The appeal is allowed.
• [33] The sentences imposed in the District Court for the aggravated burglary, the aggravated assault using a motor vehicle and the injuring of the police dog charges are quashed and substituted with cumulative sentences of three years and nine months’ imprisonment, nine months’ imprisonment and six months’ imprisonment, respectively. That results in an overall effective sentence of five years’ imprisonment.
• [34] The MPI is quashed.
• [35] All other sentences imposed in the District Court remain unchanged, including the cumulative six-month periods of disqualification from driving in respect of the dangerous driving and failing to stop charges.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Tipene [2020] NZDC 11896 [District Court decision].

^[2] At [25].

^[3] At [53].

^[4] Crimes Act 1961, s 232(1)(b) — maximum penalty of 14 years’ imprisonment.

^[5] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA); R v Watson CA224/03, 24 October 2003 at [27]; and R v Drewett [2007] NZCA 48 at [15].

^[6] R v Mako, above n 5.

^[7] Pearson v R [2020] NZCA 573 at [23]; and Sentencing Act 2002, s 9(1)(b).

^[8] At [28].

^[9] Poi v R [2020] NZCA 312 at [16]–[17].

^[10] Norton v R [2012] NZCA 334; Te Hau v R [2013] NZCA 431; McCormack-Cameron v R HC Invercargill CRI-2007-425-42, 5 February 2008; and R v Drewett, above n 5.

^[11] Hay v R [2015] NZCA 329, [2015] NZAR 1426; R v Edwards CA67/00, 18 April 2000; Tereora v R [2015] NZCA 120; and Stratton-Pineaha v R [2020] NZCA 50.

^[12] Crimes Act, s 226(1) — maximum penalty of seven years’ imprisonment.

^[13] Land Transport Act 1998, s 52A(1)(a)(ii) — maximum penalty of six months’ disqualification, and $10,000 fine.

^[14] Section 35(1)(b) — maximum penalty of three months’ imprisonment, or $4,500 fine, and six months’ disqualification.

^[15] Crimes Act, s 192(1)(c) — maximum penalty of three years’ imprisonment.

^[16] Section 226(2) — maximum penalty of two years’ imprisonment.

^[17] Policing Act 2008, s 53 — maximum penalty of two years’ imprisonment and/or $15,000 fine.

^[18] Summary Offences Act 1981, s 23(a) — maximum penalty of three months’ imprisonment, or $2,000 fine.

^[19] Sentencing Act, s 9(3).

^[20] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138] and [159].

^[21] District Court decision, above n 1, at [40], referring to R v Carr [2019] NZHC 2335.

^[22] Carr v R [2020] NZCA 357 at [65]–[66].

^[23] Waikato-Tuhega v R [2021] NZCA 503 at [45].

^[24] Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [62]–[63].

^[25] King v R [2020] NZCA 446 (sexual offending); Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 (possessing methamphetamine for supply); and Carr v R, above n 22 (aggravated robbery).

^[26] Criminal Procedure Act, s 250.

^[27] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

^[28] At [36]; and Ripia v R [2011] NZCA 101 at [15].

^[29] District Court decision, above n 1, at [53].

^[30] At [52].