IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA323/2024
 [2024] NZCA 612

	
BETWEEN	
DANIEL ATUIA NATUA 
Appellant	
	
AND	
THE KING
Respondent	

Hearing:	
7 November 2024	

Court:	
Ellis, Peters and Muir JJ	

Counsel:	
S D Withers and R J Mogey for Appellant
S S McMullan for Respondent	

Judgment:
	
22 November 2024 at 11.00 am	

JUDGMENT OF THE COURT

A	The appeal is allowed.  
B	The sentence of six years and six months’ imprisonment is quashed and a sentence of five years and six months’ imprisonment is substituted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)
[1]	Mr Natua appeals against a sentence of six years and six months’ imprisonment imposed by Judge Jelaš following his conviction on eight charges of drug, firearm, and dishonesty offending.
The offending
[2]	Judge Jelaš summarised the events giving rise to the first of two tranches of offending as follows:
[2] 	The background circumstances of the offending is set out in the agreed summary.  On 19 May 2022 you, with another person unknown, went to a home in Sandringham.  You entered the home without the consent of the owners, with the unknown male, at 10.20 pm.  The residential property was occupied by three persons.  One was in the kitchen at the time of your entry.  You and your associate immediately began to threaten the occupant in the kitchen.  You told him that you were gangsters.  You told him not to call the police and that “they would come back”.  You and your associate began to punch the victim on the left side of his head, knocking him to the ground.  Once on the ground you and the unknown associate punched the victim further, four or five times before kneeing him in the nose.
[3] 	You and your associate then demanded the keys for a motor vehicle from him.  This vehicle was parked outside the address.  That vehicle was owned by one of the other occupants of the address.  You forced the victim to wake up that second occupant of the address and get the car keys from him.  The first victim did so.  The car keys were handed over to you and your associate and you both left the address.
[4] 	However, a short time later you and your associate again returned to the address.  This time you demanded from the first victim the keys to another vehicle, also parked at the address.  The first victim informed you both that this belonged to the third occupant in the address, and he pointed you to that occupant’s bedroom. You found the door to be locked.  You and your associate kicked the door open.  The force of the kick broke the frame around the lock.  You both entered and demanded from the third victim his car keys which he handed over without any resistance.  You then took the set of keys to the second vehicle, leaving the set of keys for the first vehicle behind.  The vehicle was then taken and it was located a few days later in a different part of Auckland with its number plate and registration label removed.
[3]	The second series of charges was the result of a search of Mr Natua’s home on 13 July 2022 by police.  They found three firearms, of which two were prohibited.  Two had prohibited magazines attached to them and  two  were loaded with multiple rounds of ammunition.  Police also found a metal box containing ammunition.  Quantities of cannabis and cocaine, together with other indicia of supply, were also found.  A stolen vehicle was parked outside Mr Natua’s address.
[4]	Prior to this offending, Mr Natua had had only three minor brushes with the law. 
The charges
[5]	As a result of these events, Mr Natua faced a number of charges which were scheduled to proceed to trial in two separate tranches.  Shortly before the first of these trials was to begin, the charge list was amended so that Mr Natua then faced:
(a)	one charge of aggravated robbery;
(b)	one representative charge of possession of ammunition; 
(c)	one representative charge of possession of prohibited firearms; 
(d)	one representative charge of possession of a prohibited magazine;
(e)	one charge of possession of a firearm;
(f)	one charge of possessing cocaine for supply;
(g)	one charge of possession of cannabis for supply; and
(h)	one charge of receiving a motor vehicle.
[6]	Mr Natua entered guilty pleas to all charges on the morning of the first trial.  
The sentencing
[7]	In the course of her sentencing remarks, the Judge:
(a)	noted the advice received from the principal victim of the aggravated robbery was that he had recovered from the assault;
(b)	noted, but put to one side, Mr Natua’s explanation for the aggravated robbery, which was that the victim had been sending harassing text messages to Mr Natua’s wife, with whom he (the victim) worked;
(c)	noted as more relevant the personal difficulties which Mr Natua was facing at the time of the offending; and 
(d)	thanked Mr Natua for a letter of remorse he had written.
[8]	The Judge adopted the seven-year starting point for the aggravated robbery charge proposed by the Crown, noting:
In identifying and setting the starting point I have taken into account that you entered the property late at night without permission, with another.  You immediately targeted one of the residents at the property.  The explanation you have provided to the Court for this offence is consistent with this being a premeditated and planned event.  It was not completely spontaneous, although I accept the planning is very low level and unsophisticated.  There was severe violence inflicted by you and your associate upon the victim who sustained serious injuries, albeit he has now fully recovered.  There was some damage done to the home and overall three persons were affected by your actions.  Finally, there was property stolen from the address being the vehicle.
[9]	After considering totality, the Judge uplifted that starting point by three years for the firearms and drug offending, which she regarded as serious.  
[10]	In terms of mitigating personal factors, the Judge referred to a report prepared under s 27 of the Sentencing Act 2002, noting that the Crown accepted both its contents and that there should be some reduction for Mr Natua’s personal background factors.  In forming the view that a 10 per cent discount was appropriate, the Judge recorded:
[21]	…  It is clear from the report that you were raised in a household where violence was inflicted and witnessed by you.  There is reference to your mother being the victim of your father’s violence, along with your siblings.  This was essentially a household living in fear of your father’s anger and violence.  In addition to being exposed to and witnessing physical abuse, there was other abuse you suffered in the hands of wider family members.  If you have not already I would encourage you in time to make a sensitive claim. 
[22] 	The finances in your household were extremely stretched and insufficient to meet your family’s needs and so poverty was a constant feature of your household, which included such things as just no food being available.  The pattern of behaviour that was repeatedly demonstrated to you in your upbringing, from which you have learned your responses, is that where there is inter-partner conflict, that violence is often resorted to, to resolve that conflict.
[23] 	Your education was stymied.  You were involved at a fight in your school when you are aged 15.  The dispute was resolved but there was a requirement for you to pay reparation and you left school in order to find work to pay that sum.  I note there is reference to you returning to a secondary school, but you were expelled from that.  So you have no formal education.
[24] 	Drug use and misuse was evident in your youth and has developed over time to become a coping mechanism for you when life’s adversities come your way.  The information I have is that you have not been violent in your own personal relationship with your first wife and your present partner, but your authoritarian parenting style against your oldest child did verge on abuse.  However, when that was pointed out to you, you recognised it for what it was and pulled back.
[25] 	The s 27 report highlights the struggles you had when the relationship with your first wife was breaking down and your mother’s sudden unwellness.  Your resort to drugs, which in turn has fostered your criminal activity.
[11]	For the rehabilitative steps taken by Mr Natua prior to sentencing and the time spent on restrictive bail, the Judge deducted a combined 12 months, or 10 per cent.  We return to both those aspects on more detail later.
[12]	Lastly, the Judge afforded a further five per cent reduction for the impact of Mr Natua’s imprisonment on his children, and a further 10 per cent for his guilty pleas, observing:
I accept that you are entitled to credit for your guilty pleas, but I do not accept that you are entitled to full credit as sought by Mr Withers.  The level of credit for guilty plea needs to be evaluated.  One factor that is taken into account is the proximity between those pleas and your trial dates. You had a trial for the charges relating to items found at your address scheduled for 16 October 2024, a two-day jury trial was scheduled.  For the aggravated burglary a subsequent jury trial was scheduled for 1 November 2024 and trial time of four to five days was scheduled.  I consider that the evidence in respect of the items found in your home to be particularly credible and strong. 
[13]	The Judge concluded: 
[31] 	So from the starting point sentence of 10 years’ imprisonment, 10 per cent credit will be given for your guilty pleas, 10 per cent credit for your personal background factors and five per cent credit for the fact that your children and family will be without you for some time.  That results in a reduction of 30 months.  There will then be a further reduction of 12 months to reflect the time that you have been on electronically monitored bail, subjected to restrictive bail conditions and undertaking rehabilitative steps. That results in an end sentence of six years, six months’ imprisonment.
Mr Natua’s appeal
[14]	Mr Natua appeals this sentence, on the grounds that:
(a)	the starting point for the lead charge of aggravated robbery was manifestly excessive;
(b)	the uplift for the drug offending was excessive;
(c)	a discrete discount for rehabilitative work should have been made rather than being bundled together with the discount for time on electronically monitored bail (EM bail);
(d)	a higher discount for the personal factors outlined in the s 27 report is appropriate; 
(e)	the impacts on Mr Natua and his children of a lengthy term of imprisonment justifies a greater discount; and
(f)	a greater discount for guilty plea is appropriate as there was significant amendment of the charges and the extension of bail period prior to sentencing was to allow the appellant to complete more rehabilitative work at Ngā Kete Wānanga Solutions.
Discussion
[15]	The starting point was undoubtedly within the available range given the aggravating features identified and could not be said to be inconsistent with the sentences imposed on similar facts.  Similarly, the uplift for the other firearm and drug offending was the amount sought by Mr Withers, trial counsel for Mr Natua, and was an appropriate recognition of the seriousness of that offending, bearing in mind totality.
[16]	In our view, however, greater allowance should have been made for Mr Natua’s mitigating personal factors, even though most of them overlap in some way.  As the District Court Judge acknowledged, for example, Mr Natua was granted EM bail to Ngā Kete Wānanga to enable his participation in the Wānanga’s rehabilitative programmes and so, on one analysis, there could be an issue with “double counting” the time spent on EM bail and rehabilitative steps.  Conversely, there appears to be some relationship between the relative lateness of Mr Natua’s guilty pleas and his desire to participate fully in the Wananga programme.
[17]	The key point in Mr Natua’s case is that the level and genuineness of the commitment he has demonstrated to rehabilitation, and to being a good father to his children, together with the very considerable time he has already spent on restrictive EM bail conditions (almost two years in total) warranted greater recognition overall.  We consider that the rehabilitative purpose of sentencing should be given particular weight in Mr Natua’s case and so a sentence should be imposed which squarely acknowledges the rehabilitative steps he has taken thus far and incentivises him to continue down that path.  Although the seriousness of Mr Natua’s offending makes a community-based sentence impossible, we consider the sentence of six years and six months imprisonment was manifestly excessive.  In our view, a sentence reduction of a further 12 months is warranted and would go some way to achieve that important purpose.
Result
[18]	The appeal is allowed.  
[19]	The sentence of six years and six months’ imprisonment is quashed and a sentence of five years and six months’ imprisonment is substituted.

Solicitors: 
Crown Solicitor, Auckland for Respondent