Paraha v R [2022] NZCA 646 (21 December 2022)

Last Updated: 16 January 2023

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

CA258/2022 [2022] NZCA 646

	BETWEEN	JOSHUA SIMON PARAHA Appellant
	AND	THE KING Respondent

Hearing:	15 August 2022
Court:	Katz, Wylie and Palmer JJ
Counsel:	D A Kemp for Appellant M W Nathan for Respondent
Judgment:	21 December 2022 at 9:00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

• [1] Joshua Paraha was convicted of aggravated burglary^[1] following a jury trial before Judge Gibson in the Auckland District Court.
• [2] Judge Gibson sentenced Mr Paraha to six years and nine months’ imprisonment on 11 May 2022 (the May Sentence).^[2] Mr Paraha appeals that sentence on the basis that it is manifestly excessive.^[3]
• [3] Mr Paraha’s specific concern with the May Sentence is that the Judge provided no discount to reflect his personal circumstances and rehabilitative efforts. More broadly, however, the issue raised by this appeal is whether Judge Gibson should have adjusted the May Sentence for totality to reflect that, two months earlier, Judge Fitzgerald had sentenced Mr Paraha in respect of nine other offences that Mr Paraha had committed around the time of, or in the months preceding, the aggravated burglary (the March Sentence).^[4]
• [4] The Crown opposes Mr Paraha’s appeal. It says that Mr Paraha’s total effective end sentence was well within range and not manifestly excessive.

Background

• [5] On 26 June 2020, Mr Paraha was sentenced to 12 months’ intensive supervision for 15 charges of lower-gravity dishonesty, violence, driving and drug-related offending occurring during the period between 28 June 2017 and 29 June 2019.
• [6] While on intensive supervision for that offending, Mr Paraha committed 10 further offences: nine offences which Mr Paraha pleaded guilty to, and which were dealt with by Judge Fitzgerald in the March Sentence; and the aggravated burglary which went to a jury trial, and which was dealt with by Judge Gibson in the May Sentence.
• [7] We will first summarise the March Sentence, and the offending it relates to, before turning to consider the May Sentence.

The March Sentence

• [8] On 3 March 2022, Judge Fitzgerald sentenced Mr Paraha in respect of the nine charges he had pleaded guilty to. The Judge described the relevant offending in his sentencing notes as follows:

[1] ... firstly, in 2020 unlawfully getting into a motor vehicle and theft on 17 October 2020 ... The facts in brief regarding those charges are that the victim had his Toyota HiAce van stolen from an address in Mount Albert on Sunday 20 September 2020. On 17 October 2020 at about 11.05 pm you were located by the police in that van. The police then found six blue oil drums in the back of the Toyota HiAce van which had been stolen from a place called Abilities Group, the value of those items $480.

[2] Next, breaching intensive supervision on 27 November 2020 by testing positive for use of an illicit drug which was in breach of a condition not to possess such things. Then unlawful taking of a Royal Enfield motorcycle between 22 and 24 December 2020. The facts regarding that ... are that the victim had parked his Royal Enfield road bike in the carpark at Sky City at about 11 am on 22 December. You took that bike from the carpark at about 1.43 am on 24 December.

[3] The following offences in 2021, intentionally damaging a barrier arm at Sky City and then failing to stop for the lights and siren of a police car on 4 February. At about 1 am on that date you had been at the casino and you were leaving in a Nissan car. As you approached the barrier arm you drove through it causing extensive damage before driving away. Police observed you doing that and activated their lights and siren but you did not stop and drove dangerously at high speed on Hobson Street.

[4] Then unlawful possession of a pistol and unlawful possession of ammunition on 14 February 2021. On that date you were stopped driving a Nissan car, the police searched the vehicle and located a 9 millimetre pistol and two rounds of ammunition inside the magazine. The pistol and ammunition were found inside an orange shoulder bag. Then there is another charge of unlawful possession of ammunition on 18 May 2021.

• [9] As noted above, all of these offences were committed while Mr Paraha was serving a sentence of intensive supervision. In addition, the seven offences following the initial two charges were committed while Mr Paraha was on bail.
• [10] Judge Fitzgerald adopted a 10-month starting point for the unlawful taking of a motor vehicle charge, which carries a maximum of seven years’ imprisonment.^[5] That starting point was then uplifted by three months for the balance of the offending, excluding three offences which were punishable only by a fine. There was an additional one-month uplift for offending carried out while Mr Paraha was on bail. No uplift was applied in respect of Mr Paraha’s previous convictions.^[6]
• [11] The Judge gave Mr Paraha a 25 per cent discount for his (relatively) early guilty pleas.^[7] The Judge also gave a further 25 per cent discount to reflect that:

  (a) Mr Paraha had attended a restorative justice meeting with the owners of the oil drums;^[8]

  (b) Mr Paraha had been subject to EM bail for “a number of months” (although the Judge noted that there had been compliance issues);^[9]

  (c) Mr Paraha had a disadvantaged background, as set out in in a report prepared pursuant to s 27 of the Sentencing Act 2002 (the s 27 Report). The Judge noted that the disadvantage that Mr Paraha had suffered had its origins in colonisation and the intergenerational difficulties that flow from that. The Judge further observed that it was “also likely that other negative impacts such as [Mr Paraha’s] drug addictions had their sources in such issues and experiences”.^[10]

  (d) Mr Paraha had undertaken voluntary work at a childcare centre over three weekends. The Judge referred to the quality of the work “in terms of the improvements to the childcare centre” and noted that the manager of the centre had been “particularly impressed” by “the attitude [Mr Paraha] brought to it”.^[11] (We note that the manager of the childcare centre who wrote the reference letter appears to be Mr Paraha’s mother. To the best of our knowledge, this was not drawn to the attention of the Judge).^[12]

• [12] The result was an effective end sentence of seven months’ imprisonment.^[13]

The May Sentence

• [13] Following a jury trial, Mr Paraha was found guilty of the aggravated burglary charge. When sentencing him, Judge Gibson summarised the facts of the aggravated burglary as follows:^[14]

[3] The facts of the matter are that the burglary was carried out during the day when the residence you targeted with two others was inhabited by two persons who lived there. With the offending occurring at that time it raised the risk of confrontation with the occupants and in fact that happened. You kicked in the door; you took from what I could see from the CCTV coverage the main role in kicking in the door. Beside you was another person who was armed with a rifle. You were bigger than him and so no doubt your strength was needed to gain access to the property. You targeted the property because you believed, wrongly, that there was a cannabis stash there. All I can conclude is that either the intelligence you received was wrong or you [mistakenly] targeted the wrong address but you and the co-offender who has not been detected and who was armed with a rifle as I said kicked in the door and then confronted the male occupant of the house who had moved to the hallway once he realised there was that activity occasioned by you. The third offender who has already been sentenced was left outside the garage door which was on the lower part of the household and he gained admission once the door was able to be opened after you had got into the house.

[4] The occupants were clearly intimidated, understandably so, but I accept there was no physical violence inflicted on them and you seem to have been able to calm the situation down so that the gunman in particular did not use his weapon to inflict physical violence on the occupants. You searched through the house for the cannabis and you corralled the two occupants downstairs to the garage area where the garage was opened to admit your other co-offender. The search was fruitless and it was you who returned to the property, after the other two had gone up the drive to get into the car, and took two guitars with you. Those guitars have not been recovered and have a value of approximately $2,000.

• [14] The Judge also noted that during the burglary the rifle was pointed at the occupants in an effort to subdue them and have them comply with the search of their home.^[15]
• [15] The Judge then considered the appropriate starting point. Noting that R v Mako was the applicable guideline judgment,^[16] the Judge identified four aggravating features of the offending: premeditation; the involvement of multiple offenders; the fact there had been a home invasion “in broad daylight”; and the fact a firearm had been used in the offending to subdue the occupants and force them to comply with the search.^[17] The Judge acknowledged that Mr Paraha had taken some steps to de‑escalate the situation.^[18]
• [16] Although the Judge referred to the guideline judgment of R v Mako,^[19] he focused on two comparator cases: R v Stade^[20] and R v Hay.^[21] Given the absence of actual violence, he relied primarily on R v Hay, where starting points of seven years and nine months’ imprisonment and eight years and six months’ imprisonment were respectively imposed on two co-offenders.^[22]
• [17] Taking into account these matters, Judge Gibson adopted a starting point of six years and six months’ imprisonment.^[23] He then uplifted that sentence by three months, to reflect that the offending had occurred while Mr Paraha was on bail.^[24]
• [18] No discount was given to recognise Mr Paraha’s personal background, as set out in the s 27 Report or Mr Paraha’s rehabilitative efforts.^[25] The end sentence was accordingly six years and nine months’ imprisonment.^[26]

Principles on appeal

• [19] Section 85 of the Sentencing Act requires a court to consider the totality of offending when determining an appropriate sentence. As the authors of Adams on Criminal Law elaborate, when sentencing multiple offences, the principle of totality requires that:^[27]

... the sentencing judge must not only consider each offence individually, but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct[.]

• [20] Where successive sentencing hearings occur, courts must ensure the overall effective sentence imposed on a defendant reflects the offending’s gravity in totality — particularly where the offending for sentencing is related, or in the case of unrelated events, proximate.^[28] As this Court has previously stated:^[29]

Where separate sentences have been imposed for different offences, on appeal the proper approach to review is to assess what would have been the appropriate sentence had one Judge sentenced the offender on the same occasion for all the offences involved ...

• [21] Here, the offending relates to different incidents and events, but occurred within the same broad time period. Mr Kemp, counsel for Mr Paraha, frankly acknowledged that there are several features of this case which count against a totality approach being taken across all of the offending. The Crown, however, was prepared to accept that a totality approach to sentencing Mr Paraha is appropriate, and we proceed on that basis.
• [22] The total effective sentence imposed on Mr Paraha in respect of all the offending (namely, the cumulative total of the March Sentence and the May Sentence) is seven years, four months’ imprisonment. Applying the principles set out above, this Court should only intervene if that total sentence is “wholly out of proportion to the gravity of the whole of the offending”.^[30] To determine whether intervention is required, we consider below what the appropriate sentence would have been if one Judge had sentenced Mr Paraha on the same occasion for all the offending.

What would have been the appropriate sentence if one Judge had sentenced Mr Paraha on the same occasion for all the offending?

The starting point

• [23] The lead offence is the charge of aggravated burglary, which carries a maximum sentence of 14 years’ imprisonment. Mr Paraha takes no issue with the starting point of six years and six months’ imprisonment adopted by Judge Gibson in respect of that offence. We accept the Crown submission, however, that Judge Gibson’s starting point was a generous one.
• [24] R v Mako is the guideline judgment for aggravated robbery. As noted above, it applies also (by analogy) to aggravated burglary. It suggests a starting point of between seven and 10 years’ imprisonment for offending of this type:^[31]

Forced entry to a 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 home is entered the starting point would be increased under the home invasion provisions to around 10 years.

• [25] The “home invasion provisions” referred to in R v Mako have since been repealed, and the reference to a 10-year starting point must be read in that context. Nevertheless, unlawful entry into a private home remains an aggravating factor for sentencing purposes.^[32]
• [26] The Court further observed in Mako that:

[39] The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the more potentially lethal the weapon the more serious the offence, although there will be greater danger of harm to a greater number of people where a loaded firearm is presented. The danger of knives in the hands of nervous or aggressive offenders when confronted by the unexpected is all too familiar. Similarly the insidiousness of threats by horrible weapons such as syringes or harmful substances must not be minimised. The actual or potential danger should be evaluated, not merely assumed from the nature of the target premises. Generally the use of unloaded firearms (though no comfort to victims) gives rise to less danger – but it can be noted that in the case under appeal an unloaded weapon still led to shots having to be fired by the police in a residential area. It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.

• [27] Although the aggravated burglary here did not involve actual violence, it did feature a number of other aggravating factors, including that:

  (a) The burglary was a “home invasion” that involved kicking in the door to gain entry to a private residence when the occupants were at home.

  (b) Three offenders were involved, two of whom entered the property. The Court noted in Mako that “[t]he number of participants and their deployment ... may reflect more sophisticated or organised activity and may increase the degree of intimidation and fear engendered among victims.”^[33] Those observations are apt here. The involvement of multiple burglars is also an aggravating feature due to a heightened risk of violence.^[34]

  (c) Mr Paraha’s associate was brandishing a firearm, which he pointed at the victims twice during the burglary. Such behaviour carries with it a real risk of violence, including the risk of confrontation and (as noted in Mako) the risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.^[35]

  (d) The offending was highly traumatic for the victims, one of whom referred to being “in fear of [his] life” and the other of whom feared that she “might get a bullet in [her] back”.

  (e) The offending was organised and premeditated — the offenders’ aim was to steal cannabis that they (wrongly) believed was on the premises.

• [28] In Mr Paraha’s favour, we accept Judge Gibson’s findings that Mr Paraha took steps to de-escalate the confrontation with the homeowner that occurred when the offenders entered the property. However, after Mr Paraha’s associates had left the property and returned to their vehicle, it was Mr Paraha alone who returned to steal $2,000 worth of property before leaving with his associates. Such a return to the property after the victims believed the offenders had left would no doubt have added further to their trauma, as well as risking further confrontation and violence.
• [29] Taking all of these matters into account, it is our view that the Judge’s starting point of six years and six months’ imprisonment was generous. A starting point of between seven years’ and seven years and six months’ imprisonment would have been more consistent with the guidance given in Mako and cases such as R v Hay.

Uplift for Mr Paraha’s other offending

• [30] Mr Paraha’s other offending, which was sentenced by Judge Fitzgerald in the March Sentence, is summarised at [8] above. In our view an uplift of at least 10 months is appropriate to reflect the six offences that were punishable by imprisonment (three of the offences were punishable only by a fine). As noted above, two of the offences carried maximum penalties of seven years’ imprisonment. Given that it is not appropriate to apply a guilty plea discount to the aggravated robbery offending, in setting the appropriate uplift for Mr Paraha’s other offending we have had regard to Mr Paraha’s guilty pleas for the six imprisonable offences (he was convicted and discharged on the other three charges). The appropriate discount for personal circumstances, however, is addressed globally below.

Uplift for personal aggravating factors

• [31] All of the offending covered by the March Sentence and the May Sentence took place when Mr Paraha was subject to an order of intensive supervision. Eight of the offences were also committed while Mr Paraha was on bail. Notably, on five separate occasions during a relatively short time span, Mr Paraha went on to commit further offending after being arrested, charged, and released on bail. Further, Mr Paraha’s offending and bail breach on 18 May 2021 occurred less than two months after a “final, final” warning from the District Court, which itself followed a “final” warning approximately two weeks prior.
• [32] Mr Paraha’s continued offending on bail, while he was also subject to an intensive supervision order, was egregious and showed a total disregard for court orders. In our view a six-month uplift is appropriate to reflect such conduct.

Discount for Mr Paraha’s personal circumstances and pre-sentence rehabilitative efforts

• [33] Judge Gibson and Judge Fitzgerald were, obviously, sentencing for different offending and had different pre-sentence reports before them at the time of sentencing. They were both provided, however, with the s 27 Report.
• [34] Judge Fitzgerald was of the view that the contents of that report, together with the various other matters outlined at [11] above, justified a 25 per ce[36] discount.³⁶ Judge Gibson, on the other hand, was of the view that a discount for personal circumstances was not warranted. He stated that:

[6] ... You have not been in work since 2010 and effectively you have been acting as a habitual criminal and I assume supporting yourself in part by the proceeds of property offences and the like.

[7] As for your personal circumstances your mother was Samoan, your father was ... Māori or part-Māori and you identify as ... Māori but you do not attach very much significance to your Māori culture. You were effectively brought up by your mother. You have no complaint in the reports about your childhood, you have at least two brothers, for one of whom you made the point that he has not had any criminal offences or convictions other than a driving conviction, driving with excess blood alcohol, and both in contrast to you are in regular employment. You drifted into a youth gang but you left when you were 16 and you are a user of methamphetamine.

• [35] On the issue of whether Mr Paraha’s background warranted a reduction in the sentence, the Judge said that:

[18] The only discount sought is one for cultural reasons under s 27 of the Sentencing Act 2002. There needs to be social, cultural or economic deprivation that has a demonstrated nexus with the offending before a discount can be given. That was set out in Zhang v R.^[37] As I have already made the point ... you make no complaint about the way you were brought up. Your brother who presumably had the same upbringing as you and the same background as you has been a law-abiding citizen save for a relatively minor conviction for driving with excess breath or blood alcohol. Both your brothers are in employment. Effectively you criminalised yourself, possibly through drugs, and in my view there is no nexus established to the offending as a result of social, cultural or economic deprivation and neither is there in my view any satisfactory evidence of systemic deprivation. Accordingly I refuse the discount for cultural reasons.

• [36] It seems likely that the difference in approach between Judge Fitzgerald and Judge Gibson was attributable, at least in part, to the fact that Judge Gibson also had before him a pre-sentence report in which Mr Paraha stated that his childhood was “good”. Mr Paraha also told the pre-sentence report writer that his father had left the family when Mr Paraha was young. We assume this information to be correct, as Mr Kemp did not take any issue with this statement, which was expressly referred to in his submissions.
• [37] There are some apparent inconsistencies between the information in the pre‑sentence report before Judge Gibson and the s 27 Report. Most notably, Mr Paraha’s statement to the pre-sentence report writer that his childhood was “good” is at odds with the s 27 Report which paints a much bleaker picture of Mr Paraha’s childhood. Further, the s 27 Report makes no mention of Mr Paraha’s father having left the family when Mr Paraha was young. On the contrary, the s 27 Report implies that Mr Paraha’s father was a violent and emotionally abusive presence in the family home throughout Mr Paraha’s childhood and youth.
• [38] Nevertheless, the s 27 Report does contain helpful background information that is relevant to the sentencing exercise. Based on our review of that report, considered together with the pre‑sentence report provided to Judge Gibson, the key aspects of Mr Paraha’s personal background which are relevant for present purposes appear to be as follows.
• [39] Mr Paraha is 33 years old. His father is Māori and his mother is of Samoan heritage. Mr Paraha’s father left the family when Mr Paraha was young. Mr Paraha witnessed domestic violence (presumably largely prior to his father’s departure). He also suffered physical, verbal and emotional abuse at the hands of his father (particularly when his father was drunk). Again, we infer that this primarily took place prior to Mr Paraha’s father leaving the family home.
• [40] After Mr Paraha’s father’s departure, Mr Paraha and his brother were raised by their mother as a single parent. It is not clear what level of ongoing contact Mr Paraha had with his father. The only issue raised by Mr Paraha in relation to his mother’s care appears to be that she worked a lot, which she acknowledged. Otherwise, Mr Paraha told the pre-sentence report writer, his childhood was “good”. The household was a Christian one and Mr Paraha regularly attended church with his mother and siblings.
• [41] At school, however, Mr Paraha was regularly subjected to childhood bullying. He associated with an anti-social peer group and started drinking alcohol and smoking cannabis from a young age. Mr Paraha reports that he was excluded from high school in year nine due to behavioural issues, following which his mother sent him to a private Christian school. He did not remain long at that school, however, due to their strict rules and the use of corporal punishment (caning).
• [42] During his primary and intermediate school years Mr Paraha proudly identified as Samoan and spent a lot of time with his maternal grandmother, who still lived according to traditional Samoan values and who never learned to speak English. In his early high school years Mr Paraha became more interested in his Māori heritage, but this was not supported or encouraged by his father. As a result, Mr Paraha was caught between two cultures and felt during his teenage years that he did not fit into either of them.
• [43] Mr Paraha’s mother, who was concerned about the types of friends her son was making, decided to send him to live with his older sister in Australia “for a fresh start”. Mr Paraha attended the local high school there but the s 27 Report records that he “spent a lot of time wagging and partying”. He says that he made friends with “the wrong kind of people”. He also started to experiment with heroin and methamphetamine, before returning to New Zealand a short time later. As the s 27 Report writer notes:

Mr Paraha’s disruptive behaviours at school, issues with authority, non‑compliance and his use of cannabis from an early age negatively impacted his education pathway.

• [44] In his late teens Mr Paraha was involved in a car accident in which he was seriously injured and his best friend died. The psychological and physical trauma from the accident increased Mr Paraha’s reliance on methamphetamine. Then, during his late adolescence and throughout his 20s, the s 27 Report records that Mr Paraha “spent a lot of time with his mates in a gang they called NBR – Nothing But Ruthless”. He struggled to work due to the injuries he had sustained in the car accident and became heavily addicted to methamphetamine. Mr Paraha says that he was under the influence of methamphetamine when he committed the aggravated burglary. The s 27 Report identifies methamphetamine as:

The drug that has shaped his early adult life and created a downward spiral based around his addiction, the people he associated with and the crimes that he committed in order to finance this addiction.

• [45] It is clear from the s 27 Report that Mr Paraha displayed challenging behaviours from a young age, gravitated towards anti-social peers, and developed an increasing drug habit from his early teens onwards. The reasons for this are no doubt complex. Some of Mr Paraha’s trajectory clearly relates to personal choices he has made. We do not overlook, however, that Mr Paraha has likely also been impacted by traumatic experiences in his childhood and youth, as outlined above. In addition, Mr Paraha’s childhood experiences likely contributed to his drug use (and eventual addiction). His addiction, in turn, likely contributed to the present offending.
• [46] On the other hand, Mr Paraha has had a level of whānau support that, sadly, many other offenders do not. In particular, he has had the benefit of being raised by a loving, committed and supportive mother who clearly did her best throughout his childhood to keep Mr Paraha on the right track and, wherever possible, remove him from negative influences. This included taking him to church regularly, immersing him in her Samoan culture (through his grandmother), enrolling him in a private Christian school, and sending him to Australia for a “fresh start”.
• [47] Taking all of the background factors we have outlined into account, it is our view that a modest discount is warranted to reflect Mr Paraha’s personal circumstances.
• [48] Turning now to Mr Paraha’s rehabilitative efforts, evidence was provided to Judge Gibson demonstrating that:

  (a) During June 2021 Mr Paraha completed a number of modules of the Te Hokinga Mai-Raki rehabilitation and training programme offered by PARS Inc.

  (b) Mr Paraha completed courses on fatherhood and financial skills in July 2021.

  (c) Mr Paraha returned a negative test result for drugs and alcohol in August 2021, while in Mt Eden Corrections Facility.

  (d) Mr Paraha completed various lessons of Kairology’s Time for Change programme in August 2021.

  (e) Mr Paraha undertook voluntary community work at an early childhood centre.

In our view some credit for these rehabilitative efforts is also appropriate.

• [49] When assessing the degree of Mr Paraha’s genuine commitment to rehabilitation, however, it is necessary to have regard to the broader background context. This includes that all of the offending occurred when Mr Paraha was subject to a sentence of intensive supervision, which is a rehabilitative sentence. Hence, despite being given the opportunity of a sentence with a strong rehabilitative focus in June 2020, Mr Paraha continued to offend, in breach of his court-imposed supervision and bail conditions.
• [50] We further note that the core issue that Mr Paraha must address if he is to break the cycle of offending is his drug addiction. Judge Fitzgerald, when sentencing Mr Paraha on 3 March 2022, noted that all of the people who had attended the restorative justice meeting recommended that Mr Paraha consider a drug rehabilitation programme. Two months later, however, Mr Paraha advised the pre-sentence report writer that while he was open to attending a community alcohol and drug programme to address his substance abuse issues, he would not be interested in attending “another residential rehabilitation programme”. We acknowledge that the reason Mr Paraha gave was that he wanted to find employment, but have some reservations regarding this reason, given that Mr Paraha has not worked since 2010.
• [51] Finally, Mr Paraha is entitled to some credit for attending a restorative justice meeting in relation to one of the 10 charges (the theft of the oil drums).
• [52] Overall, we consider that Judge Gibson erred by declining to apply a discount for Mr Paraha’s personal mitigating factors. It is our view that the various personal mitigating factors we have outlined warrant a combined sentence discount of 15 per cent.

Was the total effective sentence manifestly excessive?

• [53] We have considered what the appropriate sentence would have been if one Judge had sentenced Mr Paraha on the same occasion for all of the offending. On our analysis (as set out above) an appropriate total sentence would be in the range of seven years and one month’s imprisonment and seven years and six months’ imprisonment.
• [54] The total effective sentence of seven years and four months’ imprisonment actually imposed on Mr Paraha (the total of the March Sentence and the May Sentence) is within this range. It necessarily follows that, despite the fact that Judge Gibson erred by declining to apply a discount for personal mitigating factors, the May Sentence is not manifestly excessive.

Result

• [55] The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

---

^[1] Crimes Act 1961, ss 232(1)(a) and 66 (maximum penalty: 14 years’ imprisonment).

^[2] R v Paraha [2022] NZDC 8420 [May sentencing notes].

^[3] Criminal Procedure Act 2011, ss 244(1), 247(1)(d) and 250.

^[4] R v Paraha [2022] NZDC 11898 [March sentencing notes].

^[5] Crimes Act, s 223(b); March sentencing notes, above n 4, at [9].

^[6] March sentencing notes, above n 4, at [10].

^[7] At [11].

^[8] At [11].

^[9] At [11].

^[10] At [12].

^[11] At [12].

^[12] Mr Paraha’s mother’s name, which is relatively unusual, is referred to in the s 27 Report (albeit misspelt) and twice in the submissions of Mr Kemp, counsel for Mr Paraha.

^[13] At [13]–[14].

^[14] May sentencing notes, above n 2.

^[15] At [8(d)].

^[16] At [8], citing R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA). The Judge observed that, although R v Mako concerned aggravated robbery, the bands set out in that case “can equally apply to aggravated burglary”. This Court has acknowledged that R v Mako applies by analogy to sentencing for aggravated burglary: see R v Watson CA224/03, 24 October 2003 at [27]–[28]; and Pearson v R [2020] NZCA 573 at [22]–[23].

^[17] May sentencing notes, above n 2, at [8(a)]–[8(d)].

^[18] At [13].

^[19] At [9], citing R v Mako, above n 16, at [58].

^[20] May sentencing notes, above n 2, at [11]–[13], citing R v Stade [2015] NZHC 2611. That case concerned an aggravated burglary of a residential dwelling in the early evening by three offenders. The principal offender was armed with a .22 calibre rifle; he pointed the rifle at the victims and struck one of the victims in the face with the barrel. The appeal primarily concerned the appropriate sentence for the getaway driver, Mr Stade, however in the course of his reasoning Gendall J noted that the eight-year starting point adopted for the principal offender was “unimpeachable”, likewise the seven-year starting point adopted for an unarmed co-offender who had entered the property and had a physical altercation with one of the victims: at [31].

^[21] May sentencing notes, above n 2, at [12]–[13], citing R v Hay [2015] NZCA 329, [2015] NZAR 1426 involved two offenders breaking into a residential dwelling in the early hours of the morning, when the victims were present with children. One offender had a loaded firearm, the other a crowbar. They exchanged the weapons throughout the offending.

^[22] May sentencing notes, above n 2, at [12].

^[23] At [15]–[16].

^[24] At [17].

^[25] At [18]. The Judge recorded in his notes that the only discount sought was a discount for the factors referred to in the s 27 Report. On appeal, however, Mr Kemp submits that Mr Paraha’s counsel at the time sought a discount for rehabilitative efforts in the May Sentence and that this may have been overlooked at sentencing.

^[26] At [19].

^[27] Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA85.01].

^[28] Skipper v R [2011] NZCA 250 at [34].

^[29] R v Fissenden CA364/95, 21 February 1996 at 2. See also Piao v R [2020] NZCA 607 at [22] and the cases cited therein.

^[30] Haywood v R [2015] NZCA 551 at [11].

^[31] R v Mako, above n 16, at [58].

^[32] Sentencing Act 2002, s 9(1)(b). See also Tiori v R [2011] NZCA 355 at [10]–[16]; and Pearson v R, above n 16, at [23].

^[33] R v Mako, above n 16, at [37].

^[34] Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [79], citing R v Povey [2009] NZCA 362 at [15].

^[35] R v Mako, above n 16, at [39].

^[36] March sentencing notes, above n 4, at [11]–[12].

^[37] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.