IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE	
CRI-2020-443-20
[2020] NZHC 2555	

ETHAN PAUL TITO-FURZE	

v	

NEW ZEALAND POLICE	

Hearing:	25 September 2020 via AVL	
Appearances:	J C Hannam for Appellant
J E Bourke and L A Blencowe for Respondent	
Judgment:	30 September 2020	

JUDGMENT OF CLARK J

[1]	Mr Tito-Furze was sentenced in the District Court on the following charges:1

(a)	two charges of driving recklessly causing injury,2

(b)	two charges of operating a motor vehicle recklessly,3

(c)	one charge of failure to remain stopped for an enforcement officer,4

(d)	one charge of failing to stop for red/blue flashing lights,5

1	New Zealand Police v Tito-Furze [2020] NZDC 15437 [Sentencing Notes].
2	Land Transport Act 1998, s 36(1)(a), maximum penalty five years’ imprisonment or $20,000 fine.
3	Section 35(1)(a), maximum penalty three months’ imprisonment or $4,500 fine.
4	Section 52A(1)(b), maximum penalty $10,000 fine.
5	Section 52A(1)(a)(ii), maximum penalty $10,000 fine.

TITO-FURZE v NEW ZEALAND POLICE [2020] NZHC 2555 [30 September 2020]

(e)	one charge of obstructing a medical officer of health,6

(f)	one charge of breaching prison release conditions.7

[2]	Mr Tito-Furze appeals his sentence of two years, two months’ imprisonment.

Facts

[3]	Mr Tito-Furze is 39 years of age. He has numerous convictions but has not had driving convictions since 2015 when he was convicted of driving while suspended.

[4]	At the time of the offending, New Zealand was in a state of national emergency due to the COVID-19 pandemic. Alert level four was in place nationwide. Travel and movement were limited substantially. Mr Tito-Furze had been warned by Police for breaches of the Ministry of Health guidelines. On 17 April 2020 he was arrested but released from custody on a pre-charge warning for breaching the guidelines.

[5]	On the evening of Saturday 25 April, Mr Tito-Furze was stopped for speeding. When asked why he was out during alert level four he said he was getting stamps and envelopes so he could send a letter to his partner in prison. The officer said he was going to issue a non-operation order in relation to the vehicle and asked Mr Tito-Furze to turn off the ignition. He became argumentative and refused to comply. The officer reached into the driver’s window and grabbed hold of the keys at which point there was a brief struggle over the keys. When Mr Tito-Furze noticed the arrival of another police unit he reversed a short distance while the officer was still holding onto the keys and then drove forward. The officer broke free and moved out of the car’s path to avoid harm.

[6]	Mr Tito-Furze then travelled east on the state highway before performing a U- turn and accelerating at speed on the wrong side of the road. A patrol car activated flashing lights and followed Mr Tito-Furze in an effort to stop him. He refused to stop and continued to travel at high speed into the path of several oncoming cars. The

6	Health Act 1956, s 72, maximum penalty six months’ imprisonment or $4,000 fine.
7	Sentencing Act 2002, s 96(1), maximum penalty one year’s imprisonment or $2,000 fine.

pursuit was abandoned due to the extreme risk to the public and other motorists.    Mr Tito-Furze drove for approximately 2.5 kilometres on the wrong side of the road travelling through five intersections and putting other road users at extreme risk.

[7]	The next incident was a few weeks later on Friday 1 May 2020. Mr Tito-Furze was driving a car on Pembroke Street, New Plymouth. A passenger was in the front passenger seat. A marked patrol car travelling behind Mr Tito-Furze activated flashing lights and siren, signalling for him to stop. Mr Tito-Furze accelerated away. He turned into several streets continuing to accelerate as he fled from Police. He sped through an intersection and continued at excess speed through a residential area, overtaking and driving on the wrong side of the road. He narrowly avoided crashing into oncoming traffic. He swerved onto the wrong side of the road through a roundabout, navigated a blind corner on the wrong side of the road and drove over a blind hill on the wrong side of the road.

[8]	Mr Tito-Furze continued at speeds in excess of 100 km/h along roads with  50 km/h speed limits, weaving between cars and forcing other users off the road. As he approached an intersection controlled by lights, with a line of cars stopped in both lanes, Mr Tito-Furze forced his car between the two lines of stationary cars knocking off the wing-mirror of one. He drove through the red lights at high speed. As he approached another intersection controlled by lights which were red he travelled into the intersection without slowing down.

[9]	The three victims were travelling through the intersection. Mr Tito-Furze smashed into their car with a force that caused it to spin 180 degrees. It struck the traffic lights, bounced back and continued to spin. The force of the impact caused an 11-year old to be ejected. Mr Tito-Furze fled on foot and was located and arrested a short distance from the scene.

[10]	The front passenger in the victims’ car had to be cut from the wreckage by emergency services. She was admitted to hospital with four broken ribs. The 11-year old victim received grazes and bruising and was admitted to hospital.

[11]	The charge of breaching release conditions follows Mr Tito-Furze’s failure to attend an assessment for a departmental programme as directed by his probation officer on 5 May 2020.

Decision under appeal

[12]	The District Court Judge regarded the facts as “about as bad” as he had ever read and Mr Tito-Furze’s driving as “appallingly reckless”.8 The Judge took into account pre-sentence and s 27 cultural reports. In light of those reports he considered imposing a “purely rehabilitative sentence” but ultimately determined the offending was so serious a sentence of imprisonment was warranted.

[13]	Taking into account several factors that aggravated the offending (attempting to evade Police, serious injuries to the adult and injuries to the child, and the prolonged nature of the reckless driving) the Judge adopted a starting point of 36 months’ imprisonment, uplifted by two months for the 25 April offending and a further month for the breach of COVID-19 restrictions, resulting in a sentence of 39 months’ imprisonment. He then discounted Mr Tito-Furze’s sentence by a global 33 per cent for his guilty plea, his genuine remorse and factors raised in the cultural report.9 The end result was a sentence of two years, two months’ imprisonment and disqualification from driving for six months.

[14]	Although there was a focus in written submissions on the starting point, in oral argument Mr Hannam helpfully focused the appeal on what he said was the key issue namely, whether the Judge gave a sufficient discount for mitigating factors.

[15]	For the respondent Ms Blencowe accepted Mr Tito-Furze was entitled to the full 25 per cent discount for his swift guilty plea.

[16]	The question then is whether the eight per cent reduction in sentence (additional to an entitlement of 25 per cent for guilty pleas) sufficiently recognises Mr Tito-Furze’s genuine remorse and the matters revealed by the cultural report writer.

8	Sentencing Notes, above n 1, at [8] and [14].
9	At [17], where the Judge recognised that deducting 13 months from the 39 months sentence was more than a 30 per cent deduction.

The Judge gave careful consideration to the report and acknowledged the “very effective” submissions made on Mr Tito-Furze’s behalf by his counsel. Ultimately he was not persuaded to a lesser term of imprisonment as the incident was so serious.

Discussion

[17]	Evidence of genuine remorse has been regarded as justifying discounts in the range of five to eight per cent.10 There is no dispute that Mr Tito-Furze was, and remains, genuinely remorseful. Mr Hannam suggested that, as with many addicts,  Mr Tito-Furze’s emotions run deep. He understands the seriousness of what he did and has expressed particular upset about the fact a child was involved. Mr Tito-Furze also wished to engage in post-sentence restorative justice. In fact, a restorative justice conference was arranged for 6 July but 45 minutes before the due time the facilitator of the Taranaki Restorative Justice Trust advised that the victims did not wish to proceed. Of course, they were fully entitled to change their minds. Mr Tito-Furze is not entitled to a discount for demonstrating a willingness to participate in a restorative justice conference that has not proceeded but the law recognises genuine remorse will be reflected in some reduction in sentence. Although the Judge did not attribute a particular percentage figure to the reduction he intended to apply, in Watene v R the Court of Appeal considered Mr Watene’s early guilty pleas and his genuine remorse should have attracted a discount of between 25 and 33 per cent.11

[18]	Being in the order of 33 per cent, the reduction in this case falls within a range considered appropriate for an early guilty plea and genuine remorse. The question then is whether there has been sufficient recognition of the cultural report.

[19]	The Court of Appeal has confirmed that “ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral

10	See for example McArthur v R [2013] NZCA 600 at [13]–[14] and Rowles v R [2016] NZCA 208 at [18].
11	Watene v R [2014] NZCA 381 at [18].

culpability”.12 Those matters are to be considered at sentencing where they are shown to contribute in a causative way to the offending.13

[20]	A cultural report for Mr Tito-Furze was prepared by Ngaruahine Iwi Health Service. Counsel for the respondent correctly submits that discounts for factors identified in cultural reports are not automatic, but as Whata J observed in Solicitor-
General v Heta:14

[50] The evidence of the presence of systemic deprivation (or social disadvantage more generally) on an offender need not be elaborate. The symptoms of systemic Māori deprivation are reasonably self-evident, including (among other things) intergenerational social and cultural dislocation of the whānau, poverty, alcohol and or drug abuse by whānau members and by the offender from an early age, whānau unemployment and educational underachievement, and violence in the home. Evidence from whānau about the offender’s life is enough. But there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending.

[21]	That very passage was cited in Zhang v R.15 I am satisfied that this is a “proper case”16 for considering the presence of systemic deprivation in Mr Tito-Furze’s background. The Judge also recognised Mr Tito-Furze’s traumatised background.17 He said:

[12]	… The report confirms that you have very little foundation or understanding or knowledge of Te Reo Māori. You are in its words “Completely separate from your Māori heritage. As a young child you were exposed to very anti-social, abusive and illegal activities which have profoundly impacted on you and conditioned your view of the world.” You have had what is described as extremely traumatic, unresolved experiences. The report notes you have reached the age of maturity where you understand that changing is your responsibility and something you want to do. The report writer believes that if you had been raised with strong concepts of tikanga you would not have ended up offending in the way you have for all of your adult life. It is reported that you experienced continual exposure to alcohol, drugs, crime and violence while in the care of your parents. The report writer, in an entirely appropriate way, observes that a sentence served within the prison sentence would not be the best foundation for making the changes that you need to make and which you apparently want to make.

12	Zhang v R [2019] NZCA 507 at [159], citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].
13	Zhang v R, above n 12, at [159].
14	Solicitor-General v Heta, above n 12.
15	Zhang v R, above n 12, at [159].
16	At [159].
17	Sentencing Notes, above n 1.

[13]	The report contains a detailed biography of your early years in Australia and then back in New Zealand. Your father is the Sergeant at Arms in a gang. Both parents had a strong addiction to meth and they introduced you to the drugs. Almost inevitably you started dealing in drugs which led you to prison. Again almost inevitably that led to you being ripped off and accused of ripping others off. You suffered one particularly serious assault and you believe that has left you with what you describe as mental health issues and anxiety. You have been on prescribed medication for years and you say you cannot function without it. Those were the meds’ that you referred to when you first took off from the police. You have commented that what makes you particularly sad is that until then you were doing well and were making real progress on weaning yourself off drugs. You have been in custody since May.

[22]	Mr Tito-Furze is described as “completely severed” from any of his Māori heritage, and his core beliefs and values have been hugely impacted by the social norms of gangs, alcohol and drugs. His exposure as a young child to antisocial, abusive and illegal activities and behaviours has conditioned his view of the world and given rise to traumatic and unresolved experiences. Sadly, many children suffer deprivation but Mr Tito-Furze was also subjected to the distorted view that his parents, who were strongly addicted to methamphetamine, held in relation to their children’s welfare. By age 15 Mr Tito-Furze and his twin were smoking methamphetamine and cannabis with their parents who thought it better for their children to do it with them than elsewhere. A causative connection between Mr Tito-Furze’s harmful, disconnected and psychologically damaging background and this offending may be inferred.

[23]	I am satisfied that a discount of eight per cent was insufficient to reflect both the genuine remorse and the factors raised in the s 27 report that the Judge regarded as relevant. From the Judge’s end sentence of 39 months’ imprisonment there should be deducted:

(a)	a 25 per cent discount for early guilty pleas; and

(b)	a 15 per cent discount for Mr Tito-Furze’s genuine remorse and the presence of systemic and cultural deprivations that are closely related to his offending.

[24]	In acknowledging the systemic challenges and deprivations that have contributed to Mr Tito-Furze’s offending I do not overlook the impact of the dreadful crash on his victims. Each has provided a victim impact statement. One of the victims was the 18 year-old daughter of another of the victims. She sustained broken ribs and a small puncture in her lung. She continues to relive the crash. It impacts on her especially at intersections where she often has flashbacks. Her mother spoke of the restorative justice conference which she said they could not go through because the thought of facing the offender was too much. As she says, he could have killed all or any one of them that day. She hopes Mr Tito-Furze learns a lesson from what has happened.

[25]	The pre-sentence report writer has suggested a framework that may be useful for Mr Tito-Furze to enable him to succeed on his release from imprisonment. For example, it is suggested that he undertake and complete a suitable programme while in custody, preferably in the drug treatment unit. This may give him the tools to continue his present path of rehabilitation through further alcohol and drug counselling on release. I commend the thoughtful report to those who will have a responsibility for Mr Tito-Furze during his period of imprisonment. Several suggestions are made to help Mr Tito-Furze overcome the challenges that have resulted from the environment in which he has been raised.

Disposition

[26]	The appeal is allowed. The sentence of two years, two months’ imprisonment is quashed and substituted with a sentence of one year, 10 months’ imprisonment. There is no need to address the possibility of home detention.18 Mr Hannam acknowledged there is currently no address at which Mr Tito-Furze could be supported in such a sentence.

[27]	Disqualification for six months remains.

18	Sentencing Act 2002, s 15A.

[28]	Within six months of release, Mr Tito-Furze is to be referred for engagement with a Whānau Ora Service or attend a Māori focus programme (such as Te Ihu Whaka) with the assistance and at the direction of his probation officer.

Karen Clark J

Solicitors:
Hannam & Co Lawyers Ltd, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent