Reweti v R [2018] NZHC 809 (26 April 2018)

Last Updated: 7 May 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI 2018-443-3 CRI 2018-443-4 [2018] NZHC 809

BETWEEN	FELON REWETI Appellant
AND	THE QUEEN Respondent

Hearing:	24 April 2018 (via AVL)
Counsel:	J Woodcock for Appellant S Graham for Respondent
Judgment:	26 April 2018

JUDGMENT OF SIMON FRANCE J

[1] Mr Reweti appeals a sentence of two years nine months’ imprisonment.¹ Counsel on his behalf contended at sentencing, and again on appeal, that a non-custodial sentence such as home detention was the desirable outcome. That was the recommendation of the pre-sentence report, but obviously the length of the term of imprisonment precluded that option.

[2] Mr Reweti fits within a group concerning whom there is considerable present concern. He is a young Māori man, presently aged 18 years, already sentenced to prison. He came to the sentencing with some previous offences (which had been met with supervision) and alcohol issues which were instrumental in the most serious of the present offences – the aggravated robbery of a service station.² He is one of a

¹ R v Reweti [2018] NZDC 2874.

² Crimes Act 1961, s 235(b) and (c). Maximum penalty 14 years’ imprisonment.

REWETI v R [2018] NZHC 809 [26 April 2018]

family of 13 who all live at home, and his mother is supportive of him. As noted, the home and the environment were assessed as suitable for a home detention sentence.

[3] In my view, there is little doubt that a non-custodial sentence would be the best outcome for Mr Reweti and for society. An impediment, however, is s 15A(1)(b) of the Sentencing Act 2002 which limits the standalone sentence of home detention to situations where the person would otherwise receive a sentence of two years’ imprisonment or less.³ Unless that is a tenable outcome for Mr Reweti, the sentence is unavailable.

[4] Mr Reweti has done much to make himself a viable home detention candidate. It is far from being a case of simply relying on him being a youthful Māori man, far too many of whom are in prison. First, he is remorseful, and genuinely so. He provided a letter to the Court which contained, in my view, genuine rather than learned sentiments, and which pointed to developing insights. That cannot be overstated, but that is primarily because Mr Reweti is 18 years of age and one cannot expect the maturity of an adult.

[5] Mr Reweti has an interest in cars and attended prior to sentencing an automotive training course. He enjoyed it and did well, and the course seems to have opened his eyes to a different way of going through life than the path on which he was headed. It is instructive to cite from a letter of support provided by the school Manager of the training institute:

He has displayed the ability, skills and attitude to complete his course. This course has given him the skills to build a great future where his attendance is excellent.

His attitude, enthusiasm for learning automotive has changed his mind set immensely building up his self-confidence and belief in his abilities. He has been courteous helpful and responds well to his tutors and management. This has led to him looking forward to attending every day and other students looking up to him. He is leading by example.

[6] Mr Reweti offered prior to sentencing reparation for the aggravated robbery offending. That total was $534.70, and included reparation for “Flake Bars” (19 of

3. A “short-term” sentence is defined as a sentence of two years’ or less imprisonment: Sentencing Act 2002, s 4(1); and Parole Act 2002, s 4(1).

them) and “Choc Bar” ice-blocks (four of them) taken by his co-defendant. Identifying these factors in no way minimises the seriousness of aggravated robbery and particularly the damage it can do to confidence and feelings of safety of the immediate victims – here, the service station attendant. However, the items stolen also says something about the robbers, and their age and immaturity.

[7] Mr Reweti wished to meet with the service station attendant to apologise in person, but the victim preferred not to follow that course. I apprehend Mr Reweti’s offer to be a genuine one. Mr Reweti’s mother wrote a letter to the Court, setting out a little about the family history and noting her view about the recent changes in her son. His “drive in life” has gone from 10 per cent to 100 per cent and his mother has been overwhelmed by his commitment and passion to finish the automotive course. His mother writes of her shame and embarrassment at her son’s actions, and her delight at the positive change she sees.

[8] Mr Reweti acknowledges his alcohol use, and says with his interest in other matters such as the automotive course, his interest in alcohol has diminished. On his behalf, his mother has referred him to Raukawa Whanau Ora Ltd for participation in their alcohol and other drug service. If home detention is possible, that will be an important component.

[9] Against that background I turn to the sentencing and the appeal.

[10] The primary offence was aggravated robbery. For reasons that are not entirely clear, and in an intoxicated state, a decision was made by four young people to steal from a service station. There were three young men, together with Mr Reweti’s girlfriend in the car. They had been drinking during the day and in the early hours of the morning decided to return to Wellington from the Taranaki town where they had been.

[11] The robbery happened early in the trip at Hawera. Mr Reweti and another went into the service station, the other carrying a crescent spanner. Mr Reweti demanded the money from the tills, while his companion stole the bars from the shelves.
Mr Reweti demanded the victim’s phone, but received not a mobile phone but the service station’s cordless telephone.

[12] In the course of the robbery, a member of the public walked in and was dialling “111”. The robbers demanded her phone; she refused, a refusal that seems to have been accepted. Mr Reweti demanded of the service station attendant some cigarettes, and received a single packet. He then threw the cordless phone back and they left.

[13] The Judge took a starting point of four years’ imprisonment. This was somewhat of an agreed figure as the circumstances largely reflect one of the well-known examples given in the tariff case of R v Mako.⁴

[14] There was then other offending to consider – an assault with intent to injure⁵ (a punch from the side), and three offences related to car conversion, being the theft of a car used for the group’s own purposes before being left in a central Wellington street.⁶ Mr Reweti had just turned 17 at the time of the assault. He had just turned 18 at the time of the other offences. The District Court added ten months’ for these other two incidents but for totality purposes reduced it to seven months’, meaning an adjusted starting point of four years and seven months’ imprisonment.

[15] Ms Woodcock challenges the addition of the seven months, submitting concurrent sentences could and should have been imposed. The Crown submits cumulative terms are orthodox given the unrelated nature. Both are correct in that while cumulative sentences, or uplifts, would be the normal approach, I do not consider they were needed here.

[16] It is common ground that of its type, this was an aggravated robbery at the lower end. I have already observed that this does not minimise the seriousness, or the impact on victims. But within that framework, this was at the lower end. There was no actual violence, or express threat of any. The items stolen speak for themselves, as

⁴ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [56].

⁵ Crimes Act 1961, s 193.

6. Crimes Act 1961, s 226(1) (car conversion); Summary Offences Act 1981, s 11(1)(a) (wilful damage); and Land Transport Act 1998, s 52(1)(c) (failure to comply with prohibition).

do other aspects. The member of the public, for example, felt well able to simply refuse to hand over her phone, and that was seemingly accepted without opposition.

[17] The relevance of this is that the four year starting point contains considerable capacity to absorb culpability for other offending, and in my view uplifts were not needed. Alternatively, the totality adjustment should in the circumstances have off set the uplifts.

[18] Turning then to mitigation, the Judge allocated 20 per cent for the positive features I have identified, including youth. Matters mentioned by the Judge were Mr Reweti’s youth, poor health and the fact the offending was impulsive behaviour. There was no express reference to remorse, or the various matters indicating Mr Reweti’s efforts to change the path he was on, or his compliance with restrictive bail conditions. I consider the last of these can be set to one side. Although true once he had been arrested for the aggravated robbery, he was on bail at that time, and at best the matters offset.

[19] I have not previously mentioned health. Mr Rewiti has a number of issues, stemming from a history of rheumatic fever. They are controlled by monthly injections. However, Mr Reweti also suffers significant asthma issues.

[20] Overall, I consider the discount for all the factors insufficient. It is important to emphasise the discount here is not just for youth, and the well-known contribution immaturity will have made to this offending. Equally as important, in my view, are the positive strides Mr Reweti is making to get off the well-trodden and destructive path he was on at such a young age. It was an occasion for encouragement reflected in a figure at the top of the available range, which I would put in this case at 30 per cent.

[21] A discount of 30 per cent, together with the agreed guilty plea discount of 25 per cent, produces a figure around 22 to 25 months. The exact outcome turns on whether one rounds fractions up or down, and also more significantly on when the guilty plea discount is applied.
[22] To explain the latter, the traditional approach is to make all the other adjustments, and then apply the guilty plea discount at the end. The source of that methodology is Hessell v R in the Court of Appeal.⁷ While it provides consistency, it can have unintended effects in a particular case. To take a simple example here, if the appropriate discount for youth were 25 per cent, then one might think a reduction from four years’ of 25 per cent for youth and other factors, and 25 per cent for the guilty plea, would produce a sentence of two years’ imprisonment. However, applying the Hessell methodology, the analysis is four years down to three’ and then the guilty plea discount attaches to that reduced figure, leaving a sentence of two years and three months.

[23] The Sentencing Act does not suggest a reduced impact for the guilty plea credit as opposed to other matters of mitigation. The Supreme Court in Hessell noted the Court of Appeal approach, and recognised its value in terms of consistency and transparency⁸ but did not endorse it as mandatory.⁹ Rather, what matters is a:¹⁰

call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[24] Consistent with that, I observe here that if the only matter standing in the way of the availability of home detention is whether the guilty plea discount is applied at the same time as other discounts or afterwards, then the evaluation must be to apply it at the same time to enable “the right sentence” to be imposed. In the present case, 55 per cent (being 30 per cent plus 25 per cent) applied at the same time leaves a sentence of 22 months. Applied sequentially the sentence is 25 months. Accordingly, I intend in the present case to apply the discounts as a global figure.

[25] I am satisfied in terms of s 15A of the Sentencing Act that the sentence otherwise to be imposed is a short-term sentence of imprisonment. For the reasons given, home detention is the correct sentence here. Credit is to be given for time spent

⁷ R v Hessell [2009] NZCA 450, [2010] 1 NZLR 298 at [21].

8. I observe that if the “rule” were to take the guilty plea discount off the adjusted starting point like every other mitigating factor, transparency and consistency would be equally achieved.

⁹ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72]–[77].

¹⁰ At [77].

in prison, and I fix a length that I consider will be manageable, and also allow the necessary interventions.

[26] The sentence of two years and seven months’ imprisonment is quashed. In its place, I impose a sentence of ten months’ home detention:

(a) the conditions are those set out on page 5 of the Provision of Advice to Courts report, there being 10 conditions which are imposed unchanged; and

(b) the post detention conditions are those set out on page 6 of the same report. They are again unchanged.

[27] The sentence of home detention is to take effect as soon as arrangements can be made. I request priority be accorded to the commencement of the home detention sentence.






Simon France J