Koti v R [2018] NZHC 547 (27 March 2018)

Last Updated: 16 April 2018

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-5 [2018] NZHC 547

BETWEEN	JACK KOTI Appellant
AND	THE QUEEN Respondent

Hearing:	20 March 2018
Counsel:	N H Wright for Appellant C R Stuart for Crown
Judgment:	27 March 2018

JUDGMENT OF THOMAS J

Introduction

[1] Jack Koti is 22 years old and was sentenced on 16 January 2018 in the Gisborne District Court to four years one month’s imprisonment following guilty pleas to 24 various charges.¹ Mr Koti now appeals that sentence on the ground it was manifestly excessive.

Factual background

[2] Mr Koti faced charges and was sentenced as follows.

¹ R v Koti [2018] NZDC 622.

KOTI v R [2018] NZHC 547 [27 March 2018]

[3] Arising from conduct during April 2017:

(a) Unlawfully getting into a motor vehicle when the keys were left in the ignition.² The vehicle was later found crashed, although there is no information as to what damage might have been caused. Sentence: six months’ imprisonment, concurrent.

(b) Assaulting a police officer by spitting.³ Sentence: one month’s imprisonment, concurrent.

(c) Burglary of items valued at $9,659 from a residential address, including gaming consoles, a laptop, tablets, passports, food, alcohol and clothing.⁴ Entry was gained through an open window. Sentence: two years’ imprisonment, concurrent.

(d) Theft greater than $1000 of a Noel Leeming display cell phone.⁵ Sentence: six months’ imprisonment, concurrent.

(e) Two charges of theft less than $500 of an unattended handbag in a shop and shoplifting a sweater.⁶ Sentence: one month’s imprisonment on each, concurrent.

(f) Escaping custody when Mr Koti’s girlfriend (and co-offender) opened a police vehicle door for him to escape.⁷ Sentence: 10 months’ imprisonment, concurrent.

[4] Arising from conduct during May 2017:

(a) Arson (jointly charged).⁸ While in police custody, Mr Koti managed to get a line or cord to the next cell, which was then lit by another inmate.

² Crimes Act 1961, s 226(2), maximum penalty two years’ imprisonment.

³ Summary Offences Act 1981, s 10, maximum penalty six months’ imprisonment, fine $4,000.

⁴ Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment.

⁵ Sections 219 and 223(b), maximum penalty seven years’ imprisonment.

⁶ Sections 219 and 223(d) maximum penalty three months’ imprisonment.

⁷ Section 120(c) maximum penalty five years’ imprisonment.

⁸ Section 267(1)(a) maximum penalty 14 years’ imprisonment.

Mr Koti’s cellmate brought the line back to their cell and Mr Koti used it to set fire to a towel, magazines and toilet paper. This caused a small fire which was stomped out and fully extinguished with a jug of water. Mr Koti and his cellmate had to use a towel to prevent smoke inhalation. They were removed to holding cells, as were adjacent cellmates, one of whom had asthma and was removed to hospital for observation. Minor damage to the cell wall was sustained and a towel destroyed. Sentence: four years one month’s imprisonment.

[5] Arising from conduct on 2 August 2017:

(a) Unlawfully getting into vehicle by using keys to the vehicle located by Mr Koti.⁹ Sentence: one year and two months’ imprisonment, concurrent.

(b) (Jointly charged) theft of a bag containing credit cards from the vehicle.¹⁰ Sentence: six months’ imprisonment, concurrent.

(c) (Jointly charged) seven charges of using a document by using bank cards taken from the vehicle to purchase items costing approximately
$230.¹¹ Sentence: six months’ imprisonment on each, concurrent.

[6] Arising from conduct between July–August 2017:

(a) Wilful damage by breaking an EM bracelet worn by Mr Koti when on electronically monitored bail.¹² Sentence: one month’s imprisonment, concurrent.

⁹ Section 226(2), maximum penalty two years’ imprisonment.

¹⁰ Sections 219 and 223(d) maximum penalty three months’ imprisonment.

¹¹ Section 228(b), maximum penalty seven years’ imprisonment.

¹² Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment, fine

$2,000.

(b) Resisting police by hitting away the arm of a police constable who was attempting to handcuff Mr Koti on his arrest for breaching bail.¹³ Sentence: one month’s imprisonment, concurrent.

(c) Escape from custody by running away from the police after his arrest.¹⁴ Sentence: four months’ imprisonment, concurrent.

(d) (Jointly charged) theft less than $500 by shoplifting makeup.¹⁵ Sentence one month’s imprisonment, concurrent.

[7] Other charges include:

(a) Breach of release conditions by failing to report to his probation officer.¹⁶ Sentence: two months’ imprisonment, concurrent.

(b) Breach of community work (no facts are available but the breach was described by the sentencing Judge as “minor”).¹⁷ Sentence: one month’s imprisonment.

(c) Failing to answer police bail.¹⁸ Sentence: one month’s imprisonment.

Pre-sentence report

[8] The pre-sentence report opened by acknowledging Mr Koti’s criminal history, which has slowly increased in frequency but not seriousness, and his young age. It assessed him as having a high risk of further offending and a moderate risk of harm. It acknowledged he had expressed remorse and that stable housing and employment with community based support would help him succeed in the future.

¹³ Section 23(a), maximum penalty three months’ imprisonment, fine $2,000.

¹⁴ Crimes Act 1961, s 120(1)(c), maximum penalty five years’ imprisonment.

¹⁵ Sections 219 and 223(d) maximum penalty three months’ imprisonment.

¹⁶ Sentencing Act 2002, s 96(1), maximum penalty one year imprisonment, $2,000 fine.

¹⁷ Section 71(1), maximum penalty three months’ imprisonment, $1,000 fine.

¹⁸ Bail Act 2000, s 24, maximum penalty three months’ imprisonment, $1,000 fine.

[9] The report noted Mr Koti had been exposed to family violence, substance abuse and lack of supervision as a child. His family has links to the Mongrel Mob. Mr Koti was himself concerned that he would follow a similarly violent path. He spoke of needing to protect his siblings, then and now. The report writer considered this revealed a strong compassionate and caring side to Mr Koti’s personality. He wants to find employment and his own place to live.

[10] The report noted Mr Koti’s partner was his co-offender, which heightened concerns for re-offending, but suggested this could be managed by Probation Officers and possibly relationship counselling. It also noted Mr Koti’s employment in horticulture and that he wanted to pursue a building trade.

[11] Mr Koti reported no issues with alcohol but had ongoing problems with cannabis and occasional methamphetamine use. He stated this is no longer an issue. He also reported no mental health problems, apart from his early life being particularly stressful. The report writer suggested his early responsibilities to his siblings means Mr Koti has not been able to learn strategies for coping with problems such as little income, no job and a lack of support. He has compassion but this conflicts with his criminal history, highlighting his inability to manage stressful situations.

[12] Imprisonment was recommended.

Criminal history

[13] Mr Koti’s four-page criminal history begins with an entry when he was 17 years old. He was imprisoned for burglary. He was subsequently imprisoned for burglary three times, most recently in 2016. Mr Koti received a sentence of home detention for violent offending in 2014 and breached that sentence, resulting in a short period of imprisonment. He has also been imprisoned for other violent offending. Shoplifting and minor thefts also appear on his criminal history.

[14] Mr Koti’s criminal history perhaps confirms the information in the pre-sentence report about the lack of support in his life, seeing him imprisoned at 17 years old.

District Court decision

[15] The District Court Judge considered the arson the most serious of the offending. He agreed with both counsel that the starting point for the arson was appropriately set at three years’ imprisonment.

[16] He then addressed the other offending in groups, applying discrete starting points to each of them as follows:

(a) April 2017: the Judge considered the burglary the most serious of these offences for which a two year starting point was warranted, increased by 10 months for the remaining offences from April;

(b) 2 August 2017: the Judge considered this tranche of offending attracted a starting point of 14 months’ imprisonment;

(c) July–August 2017: the Judge considered four months’ imprisonment appropriate;

(d) other charges: the Judge considered two months’ imprisonment would be warranted.

[17] The Judge then said adding those together would result in a lengthy term of imprisonment and the totality principle meant it needed to be reduced. He rejected Ms Wright’s submission, for Mr Koti, of an overall four year starting point, saying that was wholly inadequate. He instead took a three year starting point for the arson, added together the rest of the discrete sentences to account for the other charges (totalling seven and a half years’ or 90 months’ imprisonment), and reduced that total to six years (or 72 months) for totality. He then added three months for offending on bail, bringing the total to 75 months, or six years three months’ imprisonment.

[18] The Judge then applied mitigating factors as follows:

• (a) less eight and a half months (or 11 per cent) for youth, noting Mr Koti’s crimes involved aspects of impulsiveness and, as a young man, he had greater prospects of rehabilitation;

(b) less half a month for six weeks on EM bail; and

(c) less the full 25 per cent discount for guilty pleas, noting Mr Koti was not necessarily entitled to the full discount as he had not pleaded guilty on all charges at the earliest opportunity.

[19] The final sentence was four years and one month’s imprisonment.

Submissions

[20] Ms Wright submits the Judge erred in that the sentence was manifestly excessive, essentially because the starting point for the entirety of the offending was too high.

[21] Ms Wright compares the starting point to that in Duncan v Police,¹⁹ which she says is broadly similar in terms of the charges. The arson damage in Duncan was much more severe and the “spree” of other offending occurred over a longer period. While admitting the starting point ought to be slightly higher to reflect the additional charges Mr Koti faced, she submits the three year starting point in Duncan cannot be reconciled with the six year starting point for Mr Koti.

[22] She also references Stone v R,²⁰ where there was a significantly more grave and sophisticated arson which resulted in property damage of $150,000, along with burglary, deception and possession charges. The overall starting point in that case was four years and one month’s imprisonment.

[23] Mr Stuart for the Crown submits there was no error in the Judge’s methodology. The Judge’s sentences for each charge were in range, he satisfactorily

¹⁹ Duncan v Police HC Palmerston North AP31/99, 30 August 1999.

²⁰ Stone v R [2016] NZHC 1289.

reduced for totality and the end result is not manifestly excessive. Mr Stuart suggests Mr Koti benefitted from substantial reductions for youth and his guilty plea,

Law

[24] The appeal proceeds on the basis of s 250 of the Criminal Procedure Act 2011, where the appellate court must allow an appeal if it first finds an error in the sentence and is then satisfied a different sentence ought to be imposed. The Court of Appeal in Tutakangahau v R confirmed that, despite s 250 making no express reference to “manifestly excessive”, the test may still be applied to sentence appeals.²¹ Such a claim is:²²

... simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

Analysis

[25] The Judge was faced with the unenviable task of sentencing on 24 charges which, at first glance, would have appeared to involve serious and disparate offending. When the actual facts of the offending are analysed, it discloses lower level and opportunistic offending, nevertheless cumulatively relatively serious.

[26] The Judge took the arson (which was being prosecuted by the Crown) as the most serious offence and it appears both counsel agreed a three year starting point was appropriate. This was in light of other cases, two of which were from Gisborne, this case being the third arson of a cell at the Gisborne Police Station. I accept, of course, that arson in a police station is an aggravating factor.

[27] In Mouat v Police, a starting point of three years’ imprisonment was taken for an arson in police cells.²³ In that case, Mr Mouat, who shared his police cell with two others, started a fire early in the morning when the others were asleep. The flammable

²¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

²² At [32].

²³ Mouat v Police HC Gisborne CRI-2006-416-20, 11 December 2006.

items in the cell were the ceiling, blankets, and mattresses. Mr Mouat lit some paper and then some blankets. The fire went for some five to ten minutes until the alarm was activated. Baragwanath J considered it could have resulted in serious tragedy had the fire taken hold. He noted the following as relevant:

[8] I respectfully endorse the learned Judge’s expression of concern about arson within a prison. It causes obvious difficulties for the authorities who cannot simply unlock the cell doors and permit others who may be violent offenders simply to escape onto the street. Even more important is that the state which takes suspects into custody removes their liberty on an implied and essential undertaking that their safety will be assured. It is not difficult to imagine the consternation of the two fellow inmates awakened to an appreciation of the danger of fire and of the smoke which with its polythene component is likely to have contained a chemical component. Other prisoners also as well as the officers in charge will have been apprehensive.

[9] It is however necessary as always to maintain a sense of proportion. The cases cited in argument included R v Gilchrist CA429/90 15 April 1991; R v Z CA138/00 27 June 2000; R v Skeens CA341/01 26 February 2002 and R v Rameka CA426/04 16 June 2005.

[10] Starting points of seven years have been regarded as appropriate in cases where the offender’s intention is serious damage to property; where there is an intentional risk to life a higher starting point is likely to be appropriate. The distinguishing feature of the present case is that the Crown is not able to exclude and must therefore accept for sentencing purposes that neither personal injury nor property damage beyond the two police department blankets were intended by the appellant to be put at risk. He has been reticent about his motive but it does appear that it was intended to activate the alarm. The evidence is somewhat obscure and it is unclear why his standing at the door and shouting through the grill would not have sufficed. But I am prepared to approach the matter on the footing that such was the appellant’s intent. Lack of malevolent intent was of course no excuse for dangerously reckless conduct. The risk of poison[ing] fellow inmates or of his setting alight the ceiling and thus creating a conflagration requires a firm deterrent sentence.

[28] Mr Mouat deliberately waited until a time when cellmates would be asleep. In the present case, not only was Mr Koti’s cellmate awake but he was party to the offending, as were others in nearby cells. I consider that factor reduces the likelihood others would be harmed before help could arrive. The arson caused little damage and was quickly contained. No one suffered serious, or even minor, injury, thus reducing the seriousness of the offence and justifying a reduction in the starting point.

[29] In my assessment, a starting point of two years and six months’ imprisonment for the arson would have been at the more severe end of the scale.
[30] Although the arson charge carries a weightier maximum sentence, in many ways the burglary could be considered the most serious offence. That involved breaking into a person’s home and stealing almost $10,000 worth of electronic goods and other items, including passports, food and clothing. The victim is a solo parent who struggles to make ends meet.

[31] The Court of Appeal in Arahanga v R deliberately did not set a tariff for burglary, given the varied range of circumstances in which it may be committed.²⁴ It did, however, provide the following guidance:

[78] ... Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[79] There were a number of aggravating features that accentuated the gravity of the burglaries in the present case and that brought the offending within the more serious end of the scale: there were two dwelling house burglaries; the burglaries occurred in the early hours of the morning; there were two burglars, so there was a heightened risk of violence; one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; and, as the Crown points out, the burglaries involved the taking of high value items from the houses.

[32] The Judge took a starting point of two years’ imprisonment for the burglary. The burglary was somewhat opportunistic, Mr Koti gaining access by climbing through an open window. He entered the property when the victim was out, during daylight hours. The value of the items and the impact on the victim were, however, significant. A starting point of 20 months’ imprisonment would, again, have been at the more severe end of the scale.

[33] The remainder of the April offending (given the burglary was separately assessed), would properly attract a starting point of six months’ imprisonment rather than the ten taken by the Judge. They involved three relatively minor thefts, opportunistically taking a vehicle, escaping custody (through the police car door) and spitting on an officer.

²⁴ Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

[34] The starting points of 14, four and two months’ imprisonment for the August, July/August and other offending respectively cannot be faulted.

[35] The result is, in contrast to the Judge’s global starting point of 90 months, a starting point of 76 months, a difference of 14 months.

[36] The next question was an adjustment of the starting point to allow for totality. A sentence of imprisonment must not be wholly out of proportion to the gravity of the overall offending.²⁵

[37] I have considered other cases where arson was treated as the primary offence and which provide guidance as to the appropriate overall starting point in this case. In Ure v R,²⁶ Mr Ure pleaded guilty to one charge each of arson, burglary and driving with excess breath alcohol and was sentenced to three years eight months’ imprisonment. He had burgled and burnt down his ex-partner’s house, destroying its contents, causing $380,000 worth of smoke and heat damage, and killing the family cat. He had done so believing he was acting in the interests of his children’s safety. On appeal, he argued the starting point of five and half years for arson was excessive. Williams J agreed, considering the lack of malice compared to other cases indicated less severe offending, and imposed a starting point of four and a half years.

[38] In McWatters v R,²⁷ Mr McWatters pleaded guilty to arson, burglary and two charges of receiving. He, along with several co-offenders, drove to the house of an acquaintance with petrol, a baseball bat and a knife. Knowing the victim and his family were home, they placed Molotov cocktails against the house, poured a trail of petrol and lit it. The corner of the house was set alight and became engulfed in flames, causing moderate damage. The burglary related to the same victim, when earlier that day Mr McWatters took electronic equipment and power tools to a value of $900. The receiving charge related to items taken from other addresses in Whangarei. The sentencing Judge adopted a four year starting point on a totality basis, which was upheld on appeal.

²⁵ Sentencing Act 2002, s 85(2).

²⁶ Ure v R [2014] NZHC 948.

²⁷ McWatters v R HC Whangarei 2003-488-2, 6 June 2003.

[39] The case of R v Thomas concerned prison riots causing millions of dollars’ worth of damage to Spring Hill Corrections Facility.²⁸ Mr Thomas was not the main protagonist but did assist in starting and fuelling fires. A starting point of six years was adopted for arson with a 12 month uplift for the representative charge of riotous damage.

[40] While the sentence must acknowledge the cumulation of conduct in the present case, Mr Koti’s offending overall does not reach a similar level of seriousness to warrant a six year starting point as taken in Thomas. The other cases are clearly more serious than in the present case but lower overall starting points were adopted.

[41] Other analogous cases involving disparate offending include Sell v Police,²⁹ where Mr Sell pleaded guilty to 12 burglaries over a period of a month, possession of LSD, plus (with a co-offender) the complete destruction of a car by arson. Values of the burgled items were not ascribed in the judgment but they included electronic equipment, cash, jewellery and, in one instance, rifles. Mr Sell had two driving convictions, one for assault and one for possession of a weapon. Pankhurst J held the starting point of four years excessive and substituted a starting point of three and a half years for all the offending. In R v Manson,³⁰ Mr Manson pleaded guilty to two charges of driving with excess breath alcohol, refusing to accompany a police officer and driving whilst disqualified. While on bail for those charges, over nine months he burgled a residential address, attempted to burgle a bottle store, and broke into several police vehicles with the intention of stealing them but instead taking stab-proof vests and smashing windscreens. After a trial, he was also found guilty of arson of one of the police vehicles. The result was an effective starting point for all the offending of four and a half years’ imprisonment, upheld on appeal.

[42] Mr Stuart emphasises the totality adjustment in this case was 20 per cent. He then points out the overall adjustment, including mitigating factors, was some 46 per cent from the initial six years and three months’ imprisonment. However, the correct approach is to look at the totality of the offending and the totality of the seriousness

²⁸ R v Thomas [2015] NZHC 1783.

²⁹ Sell v Police HC Invercargill CRI-2008-425-32, 16 December 2008.

³⁰ R v Manson [2009] NZCA 158.

and culpability of all the offending in the round. Mitigating factors are considered after the totality exercise. Tutakangahau makes clear that an error in setting the starting point can lead to a manifestly excessive sentence.³¹ If there is such an error, it will mean an offender with mitigating factors will receive a harsher sentence than is otherwise warranted. In other words, where an offender is entitled to the benefit of mitigating factors, that benefit should not be eroded by a starting point set too high.

[43] The Judge reduced the overall starting point from 90 months (seven and a half years) to six years’ imprisonment. When standing back and considering the overall gravity of the offending, a starting point of six years is excessive and plainly wrong. In my assessment, the correct global starting point is 54 months (four and a half years).

[44] The Judge added three months for offending on bail, a relatively significant amount considering the circumstances. However, the Judge did not uplift for Mr Koti’s criminal history. Therefore, I adopt the same figure of three months for both of those factors.

[45] The Judge appropriately allowed a discount of 11 per cent to reflect Mr Koti’s youth and prospects of rehabilitation. There was probably a mathematical error in allowing half a month for six weeks spent on EM bail. Six weeks on EM bail equates to a 12 week sentence of imprisonment. Time spent on EM bail is a mandatory consideration in sentencing.³² Although Mr Koti breached his EM bail by cutting off his bracelet, that was reflected in a charge, and he should not be twice punished for this. In my assessment, an appropriate reduction for time spent on EM bail would be two months.

[46] The 25 per cent discount for guilty pleas in the circumstances was warranted.

[47] This approach results in an end sentence of 37 months’ (three years one month’s) imprisonment.

³¹ Tutakangahau, above n 21.

³² Sentencing Act 2002, ss 9(2)(h) and 9(3A).

[48] The difference between the sentence imposed of four years one month and three years one month confirms the sentence imposed was manifestly excessive and must be set aside.

Result

[49] For the reasons given, the appeal is allowed. The sentence of four years one month’s imprisonment is quashed and substituted with a sentence of 37 months’ imprisonment, that is, three years and one month. That sentence will be imposed on the charge of arson.

[50] The discrete concurrent sentences of 24 months for the April 2017 burglary and 10 months for the April 2017 escaping police custody are quashed and substituted with concurrent sentences of 15 months’ and four months’ imprisonment respectively. The discrete concurrent sentences imposed on all other charges do not require amendment.

Thomas J

Solicitors:

Crown Solicitor’s Office, Gisborne