Kolofale v R [2022] NZCA 74 (24 March 2022)

Last Updated: 30 March 2022

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

CA401/2021 [2022] NZCA 74

	BETWEEN	TEVITA KOLOFALE Appellant
	AND	THE QUEEN Respondent

Hearing:	22 February 2022
Court:	Courtney, Katz and Cull JJ
Counsel:	J A Younger for Appellant C Ure for Respondent
Judgment:	24 March 2022 at 10 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of seven years is set aside and substituted with one of six years six months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] Mr Kolofale pleaded guilty to one charge of wounding with intent to injure, two of aggravated robbery and one of receiving. The charges arose from the following incidents:

  (a) On 10 December 2019 Mr Kolofale attacked JE in the street with a boning knife, stabbing him multiple times in the back and torso (charge 1 — wounding with intent to injure).
  (b) On 9 July 2020, while on bail, Mr Kolofale went to JE’s house and threatened him with a knife in front of his wife, their three children and his 11-year-old sister. He punched JE in the head twice and demanded that he hand over property. He told JE that “I know where you live now. I’ll definitely be back” (charge 2 — aggravated robbery).
  (c) Several days later Mr Kolofale spent the day with an associate, DR. In the evening Mr Kolofale drove DR’s vehicle, with DR as a passenger, to a rural area and demanded that DR get out of the vehicle. Another vehicle arrived with three of Mr Kolofale’s associates. Mr Kolofale punched DR in the face. He and his associates punched and kicked DR an estimated 15 times. DR’s vehicle and cellphone were stolen. A sawn-off shotgun was brandished at him out of the car window as the group drove off (charge 3 — aggravated robbery).
  (d) On 19 July 2020 Mr Kolofale took a vehicle worth about $5,000 (charge 4 — receiving).

• [2] Judge Krebs imposed an end sentence of seven years’ imprisonment.^[1] The Judge took starting points of two years nine months’ imprisonment for charge 1, seven years’ imprisonment for charge 2 and three years six months’ imprisonment for charge 3.^[2] He reduced the combined starting point of 13 years three months’ to one of 12 years’ imprisonment for totality.^[3]
• [3] The Judge declined to grant a specific discount for youth because of Mr Kolofale’s age (25 years) combined with his history of serious offending. He allowed discounts of 20 per cent for the guilty pleas and 20 per cent for Mr Kolofale’s personal factors. These psychological and cultural factors included the effect of ADHD on Mr Kolofale’s behaviour, the clear nexus between Mr Kolofale’s upbringing and cultural factors and the way his health was treated. These factors were then balanced against his offending.
• [4] Mr Kolofale was also given a second-strike warning, with the result being that he must serve that sentence without parole.
• [5] Mr Kolafale appeals the sentence on grounds that it was manifestly excessive as a result of:

  (a) the starting point for charge 3 being too high;
  (b) no discount given for his youth;
  (c) inadequate discount for totality;
  (d) inadequate discount for combined personal, cultural and psychological factors; and
  (e) no discount given for the time spent on Electronic Monitoring bail (EM bail).

• [6] The question on a sentence appeal is whether the end sentence fairly reflected the defendant’s overall culpability for the offending. Mr Kolofale says that the appropriate end sentence would have been five to six years’ imprisonment. The Crown maintains that the end sentence was within range.

The starting point for charge 3

• [7] The Judge selected the starting point of three years six months’ imprisonment for charge 3 by reference to this Court’s decision in Bullen v R, which involved similar, but more serious, offending that attracted a starting point of four and a half years’ imprisonment.^[4] In that case, the defendants drove the complainant to a remote place under the pretext of purchasing cannabis from him when, in fact, they planned to rob him. They brought cable ties with them. When the complainant resisted, he was punched, kicked, then pushed to the ground and tied up. He was left there, injured and tied up. The complainant was vulnerable as a result of his age and a medical condition.
• [8] Ms Younger, for Mr Kolofale, submitted that the offending in Bullen was far more serious than in the present case, given that in that case there was physical restraint, the complainant was more vulnerable because of his medical condition, and had been left restrained. In comparison, Ms Younger noted that although there was a degree of planning and premeditation in this case, no weapons were actually used (the gun was only brandished after the offending had occurred) and although there was violence the injuries sustained were not serious. She acknowledged that the complainant’s car, wallet and phone were taken. The car, valued at approximately $8,000, was badly damaged when it was recovered and cost the complainant about $5,000 to restore to its original state.
• [9] Ms Younger argued that the offending was closer factually to Tecofsky, in which the defendant had lured the complainant to a remote spot, having arranged with co-defendants that they would also arrive at that place.^[5] When they did, the co‑defendants assaulted the complainant and robbed him of his wallet. Whata J recognised three years as an appropriate starting point.
• [10] Ms Younger also submitted that the present case would be better viewed as akin to street robbery in terms of R v Mako and that the upper end starting point was three years which, she argued, was within this Court’s comments at [59] of that case.^[6] In fact, in Mako, this Court expressly contemplated a higher starting point than three years in cases where there was actual violence:

[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.

• [11] The circumstances of charge 3 would, in Mako terms, justify a starting point higher than three years. In our view the offending falls somewhere between Bullen on the one hand and Tecofsky on the other. The level of planning and the aggravating feature of restraining the complainant in Bullen are not present here. Nevertheless, the robbery was premeditated. The complainant was vulnerable. He was set upon and seriously assaulted by a group. The assault was more serious than in Tecofsky and the value of the property taken much higher. We see no error in the starting point taken by the Judge on charge 3.

Discount for age

• [12] The Judge identified Mr Kolofale’s “long history of serious offending despite being 25 years of age” as not justifying a discount for youth.^[7]
• [13] Ms Younger pointed out that Mr Kolofale was 23 years old at the time of the first incident of offending in 2019. Ms Younger submitted that the offending displayed immaturity and a lack of the skill set required to resolve conflict in an adult manner. She emphasised statements made by the High Court and by this Court recognising both the age-related neurological differences between young people and adults, and the capacity of young people for rehabilitation.^[8]
• [14] Unquestionably, age-related neurological differences explain many of the impulsive and unwise decisions that lead young people into the criminal courts. However, it is difficult to accept that this was the cause of Mr Kolofale’s offending. Neither of the aggravated robberies can fairly be described as impulsive acts attributable to immaturity. They were premeditated acts by someone with significant previous criminal experience. As we come to later, we accept that Mr Kolofale has faced many challenges in life and discounts were justifiable for those reasons. But we do not see any error by the Judge in declining to allow a specific discount for age.
• [15] Ms Younger submitted, further, that by refusing a discount for age, the Judge had effectively imposed a higher sentence than was justified solely on the basis of his previous convictions. This submission was based on the fact that Mr Kolofale was subject to a second strike, requiring him to serve his entire sentence without parole. Ms Younger drew on this Court’s comments in Wipa v R in relation to uplifts where the defendant was subject to a second strike:^[9]

[36] We conclude that when considering an uplift for previous convictions, or for offending while on bail or subject to sentence, the court should decide whether, having regard to the loss of parole under s 86C, an uplift is needed to achieve the sentencing purposes of denunciation, accountability, deterrence and community protection.

• [16] These comments cannot properly be applied in the very different context of discount for youth.

Reduction for totality and discount for personal factors.

• [17] We deal with these grounds together because Ms Younger advanced both on the basis that the Judge had failed to properly recognise the matters arising in the reports obtained for sentencing under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (s 38 report) and s 27 of the Sentencing Act 2002 (s 27 report).
• [18] The issue of totality was first considered by the Judge in the context of a sentencing indication. Counsel requested that the totality assessment be left until sentencing on the basis that the overall gravity of the offending could be better assessed after the s 38 and s 27 reports were available. The Judge declined on the basis that totality reflected only the circumstances of the offending rather than factors personal to Mr Kolofale. Although that decision is not in issue here, we note that the totality principle requires the end sentence to reflect the overall criminality of the offending and the offender.^[10]
• [19] As it turned out, the sentencing indication was not accepted. Nevertheless, following Mr Kolofale’s ultimate guilty plea the Judge adopted the same totality adjustment of two years that had been specified in the sentencing indication. The Judge said:

[42] I have already allowed a reduction for totality which is in effect a reduction of two years. Ms Younger urged me to allow greater reduction for totality because of the matters arising from the cultural report and I expect the psychological report. I intend to give a further discount for those factors, but it is not couched in terms of totality. The totality discount relates to the reduction which I allow in recognition of the fact that to sentence for discrete and cumulative sentences would result in a sentence which is too great and is disproportionate to the offending in total.

• [20] Ms Younger argued that the Judge ought to have reassessed the adjustment for totality with the benefit of the s 38 and s 27 reports. She also submitted, separately, that a greater discount should have been allowed for the same factors considered in those reports. As result these two grounds of appeal overlap and are best considered together.
• [21] The s 27 report describes Mr Kolofale’s childhood and early adulthood. He was brought from Tonga to New Zealand as a toddler to live with his maternal grandfather before being joined sometime later by his mother and stepfather. Mr Kolofale described a sense of alienation as a child due to being Tongan, with peers mostly Māori or Pākehā. He was subject to physical punishment at home, at least until it became illegal to hit a child. Because his mother and stepfather found it hard to control him, Mr Kolofale was sent to live with his grandmother. When he was about 10 he was sent back to live in Tonga with his uncle. However, by 14 Mr Kolofale was back in New Zealand and, within a short time, in the care of Oranga Tamariki.
• [22] At some point Mr Kolofale was diagnosed with ADHD. His mother declined medication out of the belief that it was not the right thing to do for a Tongan child. After leaving school Mr Kolofale began using cannabis and then alcohol. He began offending and was ultimately remanded to a youth justice residential facility. When he was 15 he was convicted and imprisoned for rape. Later he was convicted for aggravated robbery. Although medication for his ADHD appeared to be effective while he was in prison, his mother withheld it from him after his release.
• [23] The s 38 report writer referred to an earlier assessment which had concluded that Mr Kolofale was probably impacted negatively by the problems his mother had in bonding with him as an infant and the rejection he may have felt when sent to live with other family members following physical and verbal abuse from his stepfather. His grandparents were inconsistent in terms of appropriate boundaries, being both permissive and punishing. Those early experiences would have made it difficult for Mr Kolofale to manage his emotional life and impacted his ability to empathise with others.
• [24] Ms Younger submitted that the cultural report disclosed a mindset, formed in childhood, that when Mr Kolofale feels bullied or under threat his only recourse is to “strike first and strike hard”. She identified this as a root cause of the offending. The s 27 report writers observed that:

Tevita Kolofale felt marginalised and ostracised from his school age peers. He suffered from racist comments. He developed anxieties and this gave rise to what has been described as hyper-vigilance. Once triggered, this hyper‑vigilance has tended to morph into hyper-arousal and to act pre‑emptively and aggressively. ...

... In summary, we can identify a background of relative poverty, racism and systemic deprivation as providing the backdrop to Tevita Kolofale’s social formation. Tevita was steered towards use of violence as a tool to resolve relational problems, in part by the patriarchal cultural attitudes of his elders, and in part by what he saw and learned on the streets and in jail. He developed hyper-vigilance and his threshold for violent arousal was reduced.

• [25] The Judge reviewed the matters canvased in the s 27 report and allowed a 20 per cent discount, saying that:

[47] ... I am influenced by the effect of ADHD on Mr Kolofale’s behaviour and the fact that there is a clear nexus between his upbringing, cultural factors and the way in which his health was treated on one hand and the offending on the other.^[11]

• [26] We do not see any error in the Judge’s treatment of the factors raised in the cultural report. It is plain that many aspects of Mr Kolofale’s upbringing have contributed to Mr Kolofale’s anti-social attitudes and tendency towards impulsive violence. Further, we consider the Judge rightly viewed the effect of ADHD on Mr Kolofale’s behaviour as a significant feature. However, whilst these aspects explain Mr Kolofale’s “strike first” approach to life, they do not assist particularly in relation to the aggravated robberies. We note Mr Kolofale’s disclosure to the pre‑sentence report writer that both sets of offending arose out of drug deals gone wrong. It follows that we see no error in the 20 per cent discount allowed for these factors.
• [27] However, we note that the Judge did not address the question of rehabilitation. This is a matter which we think ought to have been addressed. The s 38 report considered that Mr Kolofale’s high risk of reoffending could be reduced by rehabilitation. The s 38 report refers to Mr Kolofale being motivated to take steps to reduce his propensity for violence and offending. It specifically notes that the motivation now, compared to previous unsuccessful attempts, is likely to be attributable to his children.
• [28] The pre-sentence report refers to him having requested to be waitlisted for the next alcohol and drug counselling programme. He is currently assessed as having a medium level of motivation to change his relationship with illegal substances. He also acknowledged the need to change his behaviours.
• [29] Mr Kolofale is still a young man and is motivated to change in order to be with his children. He has a good relationship with the children’s mother. While in prison Mr Kolofale has obtained certificates in carpentry and holds a forklift licence. One can expect that with ongoing medication for ADHD a significant change may be possible for Mr Kolofale. All these factors point towards a real possibility of rehabilitation, which is the most desirable outcome for both Mr Kolofale and the community generally. In our view a further discount of six months (about 7 per cent) would have been appropriate.

Time spent on EM bail

• [30] Mr Kolofale was in custody from 10 December 2019 to 30 January 2020, after which he was on EM bail. He was on EM bail for approximately six months before offending again and being returned to custody. Ms Younger submitted that the Judge should have made some allowance to reflect the time on EM bail.
• [31] Given the overall circumstances, particularly Mr Kolofale’s serious offending while on EM bail, we see no justification for a further allowance on this basis.

Result

• [32] We do not consider that the Judge erred in relation to the starting point for charge 3 or his approach to the discount for youth or in relation to the time spent on EM bail. However, we do consider that the issue of rehabilitation was one that, given Mr Kolofale’s age, his treatable ADHD and his motivation for change, should have been more carefully considered. In all the circumstances we consider that a further reduction should be allowed on that account.
• [33] The appeal is therefore allowed. The sentence of seven years is set aside and substituted with one of six years six months.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Kolofale [2021] NZDC 11639 at [50] [Sentencing judgment].

^[2] At [13]–[16]. The receiving charge was dealt with by a one-year concurrent sentence of imprisonment without any uplift.

^[3] At [19].

^[4] Bullen v R [2017] NZCA 615.

^[5] Tecofsky v Police [2013] NZHC 3376.

^[6] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA).

^[7] Sentencing judgment, above n 1, at [49].

^[8] R v Makoare [2020] NZHC 2289 at [25]; and DP v R [2015] NZCA 476, [2016] 2 NZLR 306 at [12], citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

^[9] Wipa v R [2018] NZCA 219.

^[10] R v Barker CA 57/01, 30 July 2001, [2001] BCL 818 at [10]; and R v Dodd [2013] NZCA 270 at [32]–[34].

^[11] Sentencing judgment, above n 1.