R v Cuthbert [2019] NZDC 16558 (23 August 2019)

Last Updated: 22 October 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2018-090-001694

[2019] NZDC 16558

THE QUEEN

v

ROCKLIN STUWART CUTHBERT

Hearing:	23 August 2019
Appearances:	A Wiltshire for the Crown A Bloem for the Defendant
Judgment:	23 August 2019

NOTES OF JUDGE H M TAUMAUNU ON SENTENCING

[1] Today, Rocklin Cuthbert, you appear for sentence in respect of three charges of burglary. The summary of facts is agreed for the purpose of sentencing and these three charges of burglary relate to the period between 21 December 2017 and 14 March 2018 when you committed burglaries at three different Bunnings Warehouse stores. The total amount of cash stolen across those three stores was $185,782.90. You were assisted by an unknown individual during the first of those two burglaries.

[2] In each case, you forced entry to the Bunnings store in the early hours of the morning and targeted the cash machine within the store. Yourself and your other co-offender wore hoodies, gloves and balaclavas to help obscure your identities. You arrived at the stores with tools. In each case, you successfully avoided setting off the store’s alarm until a number of minutes after your entry and each robbery was captured on Bunnings’ CCTV.

R v ROCKLIN STUWART CUTHBERT [2019] NZDC 16558 [23 August 2019]

[3] The summary of facts sets out the circumstances in respect of each burglary and because of the seriousness of the offending it is necessary to go into detail about the offending.

[4] On Thursday 21 December 2017 at approximately 4.12 am, you and an unknown associate broke into the Bunnings Warehouse store on [location 1]. You accessed the exterior of the store after cutting through two wire fences. You then used a length of PVC pipe to disable the store’s exterior lighting and cameras before cutting a hole in the corrugated ironclad store wall near the front of the building and gaining entry to the store’s interior. Once inside, you crawled through the store without activating the security alarm sensors and appeared to have knowledge of its layout. You were inside the store for around four minutes before activating the alarm. You and your associate had with you a number of tools, including a crowbar and a concrete cutter. You used the concrete cutter to cut the cash machine open before your associate forced the money out with the crowbar. You took $3387.90 in coins from the machine before a security guard arrived at the property around 27 minutes after the break-in. You then left the premises before the security guard discovered the hole cut in the store’s wall.

[5] On Wednesday 3 January 2018 at approximately 4.16 am, you and an unknown associate broke into the Bunnings Warehouse on [location 2]. You accessed the store’s interior by smashing a window on the side of the building. Once inside, you crawled and then walked along the front wall, successfully avoiding the detection of the store’s alarm sensors until you reached the cash machine approximately eight minutes later. You brought tools with you, including a large petrol-powered concrete cutter and a crowbar which you used to break into the cash machine and take $182,395. After being in the store for around 17 minutes, you and your associate left the store and security arrived around 25 minutes later.

[6] At around 3.20 pm on 13 March 2018, you visited the Bunnings Warehouse in [location 3]. You did not purchase anything although you went to the information desk and talked with a staff member while looking for the store’s cash machine. You left the store shortly after discovering that it did not have one. Around an hour later, you visited the Bunnings Warehouse in [location 4] and left shortly after discovering that

it also did not have a cash machine. Approximately an hour later, you visited the Bunnings Warehouse in [location 5]. You went to the service desk and purchased a 98 cent bucket. While you were there, you viewed the cash machine behind the service desk and left shortly after. At about 5.31 pm, you visited the Bunnings Warehouse in [location 6], and went to the service desk where the cash machine was located. While there, you viewed the cash machine and used your cellphone to capture an image of it. You then walked around the store, including down selected aisles where there were no alarm sensors before leaving the store.

[7] On 14 March 2018 at approximately 3.43 am, you broke into the [location 6] Bunnings Warehouse in Hamilton. No associate accompanied you during that burglary. You gained access by sticking pallets against the rear wall of the store as a makeshift ladder which allowed you to reach and cut a hole through the corrugated iron wall cladding. Once inside, you avoided setting off the store’s alarms by crawling along the back wall then up an aisle where there was no alarm sensor. Upon reaching the cash machine at the front of the store, you took some time to move a piece of machinery that blocked your access to the cash machine. In the process, you temporarily pulled down your balaclava which exposed your face. You had tools with you including a large petrol-powered concrete cutter and crowbar. You only activated the store’s alarm while attempting to cut the cash machine open with the concrete cutter.

[8] Police and security arrived at the front of the address soon afterwards, interrupting your attempt to break into the cash machine. You exited the rear of the store empty-handed just after 4.00 am and evaded police and security although you left behind outside the rear of the store your bag of tools which included two concrete cutters. Just after 7.00 am that day, you returned to the address and drove around to the staff-only area towards the rear of the store to recover your bag of tools. A store employee asked you what you were doing and you replied that you were looking for the trade entry. The employee re-directed you back around to the store although you left the address. You were arrested some days later and declined to comment. At the time of your offending you were a 42 year old male and according to the summary you had criminal convictions in Australia although you have none in New Zealand.

Reparation according to the summary is sought for the total of $185,782.90 which was stolen together with the related cost of repairs to the Bunnings Warehouse stores.

[9] A victim impact statement has been handed up today. What it explains to the Court is the impact that your offending has had on the Bunnings Warehouse stores that were involved as well as on the staff. Today, a representative of the Bunnings Warehouse is present in Court and the statement has been prepared by one of the loss prevention advisors for Bunnings Limited who has worked for the company for over 13 years. It is noted that the burglaries that have been suffered by the Bunnings Warehouse have had a significant impact on the staff and also the parent company in a financial sense. Their staff have been with the company for many years and see each other as a family and treat the place of work with respect as if it was their second home.

[10] What started in Auckland and quickly spread to neighbouring stores led to a huge security undertaking. The front of house security staff remained on high alert for months after the burglaries. It came as a relief when the police phoned with the news that you had been arrested and extra staff were able to be stood down and they were employed up to that point to guard the front doors with CCTV images of the offender, waiting for you to return. There has been a heavy investment in education of the staff to identify suspicious behaviours and follow strict procedure around cash handling. This has had an effect on those who work with the customers and at the end of the day the business sells homewares, DIY materials and tools to everyday Kiwis and has had to effectively guard the stores as if they were a bank vault.

[11] Many of the staff have been affected on the basis that they feel they did not do enough to prevent the burglaries and it was unfortunate that those feelings came flooding back to the staff members when they received news that you had cut off your ankle bracelet and gone on the run. The stores were again then placed on high alert with images sent around New Zealand with the risk of you returning to commit further burglaries considered high. The loss prevention officer notes that he is thankful that no one interrupted you inside the buildings during the burglaries and obviously the risk of any of the staff members being injured was avoided. Although insurance has

covered the financial cost to the business, the impact of the offending has still remained in terms of the impact on the staff.

[12] Written submissions have been filed in advance of sentencing today, Mr Cuthbert, and those submissions have been spoken to orally by both counsel.

[13] As far as the Crown position is concerned, a starting point of five to five years six months’ imprisonment is submitted as an appropriate starting point with a nine- month uplift to take account of your previous convictions in Australia and a 15 percent guilty plea discount has been argued by the Crown as appropriate with a final sentence of somewhere between four years 11 months’ imprisonment to five years four months.

[14] Defence submissions have been filed and spoken to by Mrs Bloem on your behalf today. A four and a half year imprisonment starting point has been advocated for with a six-month uplift to recognise relevant previous convictions and a 25 percent discount has been sought for credit for your cultural background factors, 15 percent has been sought for remorse and rehabilitation with a further 20 percent for your guilty pleas which would result in a two year six month sentence. That is the calculations that have been advanced on your behalf by Mrs Bloem.

[15] As you can understand, there is quite a significant difference between the sentence that the Crown suggest is appropriate and the end sentence that is suggested on your behalf by Mrs Bloem.

[16] It is necessary for me to take into account the aggravating factors that are related to your offending when setting the starting point. They are these:

• (a) First of all, you have targeted commercial premises and in doing so you have known that there were large amounts of cash stored in the premises that you targeted and so the nature of the premises, being commercial premises storing large amounts of cash, is in fact an aggravating feature relate to this burglary sentencing.

• (b) As far as the extent of loss is concerned, the extent of loss was substantial and it resulted in not just the cash that was taken but also the damage that was caused to the stores involved which meant that when the cash and the damage is put together the total loss was significantly over $300,000.
  
  • (c) The offending was premeditated. It was extensively planned. There was a real attempt on your part to avoid detection by the use of gloves, hoodies, balaclavas and also the fact that all of these burglaries were committed in the early hours of the morning was another attempt to avoid detection. You were counting on the fact, essentially, that a response to the alarm would be less hasty than one that might have been expected during the middle of the day and obviously people were not around at the time that you committed the burglaries. As far as the premeditation is concerned, it is obvious that you brought tools with you to be able to affect the taking of the cash. You used angle grinders and concrete cutters to gain entry and you also were involved in reconnaissance by scoping out the stores prior to the burglaries to confirm the presence of the cash machine in the store, to understand the security layout of the store which allowed you to gain entry and not trigger the alarms until you had actually cut the cash machines open. That was really designed to allow you some time to get away, to actually effect your purpose and then achieve an escape without getting caught.
    

[17] As far as mitigating factors related to the offending are concerned, I consider that there are none. However, I do have to turn my mind to the s 27 cultural factors and will do so further on in these sentencing remarks.

[18] As far as the starting point is concerned, a number of cases have been referred to by the parties in the written submissions and the starting point is this: there is no tariff set for burglary and that is outlined by the Court of Appeal in the Arahanga v R

decision.1 That is on the basis that the range of circumstances is so varied when it comes to a charge of burglary that the Court of Appeal consider it would be inappropriate to set a tariff. Guidance was given by the Court of Appeal in the case of R v Columbus2 and the circumstances of the offending and not the offender should predominate in setting the starting point. Reference was then made to the R v Taueki3 methodology of sentencing as being the appropriate way of approaching the sentencing starting point.

[19] In terms of Connell v P,4 a five-year starting point was adopted for similar offending where $300,000 was taken and where seven charges of burglary of commercial premises was involved. That was a High Court sentencing with a five-year starting point. McCallion v P5 is another case that has been cited where a seven-year starting point for 17 charges of burglary with an additional five-year starting point for a further nine charges of burglary was adopted in the High Court. That case involved a total of $570,000 worth of property taken and then a further

$100,000 taken. The case of R v Tikitiki6 is another High Court decision where five years and six months was adopted as the starting point. That case involved 17 charges of burglary where that offender had 10 previous convictions for burglary and just under

$80,000 worth of property was taken. This range of starting points really goes back to the case of Arahanga where the Court of Appeal made it clear that because there is such a varied range of circumstances no tariff is set for burglary. It does depend on the particular circumstances of the case.

[20] In my assessment, a starting point sentence of five years’ imprisonment which is calculated on a totality basis pursuant to s 85 Sentencing Act 2002 that takes into account all three of the burglary charges adequately reflects your culpability. When taking into account the nature and scope of your offending the purposes and principles of sentencing that apply in your case, mainly in this circumstance to hold you accountable and responsible for offending and to send the correct message of

1 Arahanga v R [2012] NZCA 480.

2 R v Columbus [2008] NZCA 192.

3 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

4 Connell v P HC Auckland CRI-2011-404-249, 20 February 2012 at [12].

5 McCallion v P HC Rotorua CRI-2006-463-10, 7 March 2006 at [14].

6 R v Tikitiki HC Auckland CRI-2007-004-014044, 28 October 2008 at [19].

deterrence and denunciation, taking into account those aggravating factors that I have outlined and having regard to those comparator judgments, I am satisfied five years’ imprisonment is an appropriate starting point.

[21] I now turn to consider the personal aggravating factors that are involved in your case. You do have 16 previous convictions in Australia for breaking and entering and burglary-type offending. You committed the present offending whilst you were a returning prisoner and subject to standard release conditions and during the course of the remand period pending sentence you absconded while on bail by cutting off your e-bracelet and you were not located until six months after you absconded. It seems to me in those circumstances an uplift of nine months’ imprisonment is justified.

[22] I turn to consider the personal mitigating factors that have been submitted on your behalf. A s 27 cultural report has been prepared by Ms Louise Henare. In order to properly assess the discount that is appropriate to be deducted from the starting point for s 27 factors, it is necessary to address this issue in some detail. Section 16 Criminal Justice Act 1985 was repealed and replaced by s 27 Sentencing Act 2002. The ambit of s 27 and its predecessor s 16 has been broadly drafted. Although the terms of s 27 may apply specifically to Māori offenders, the section has general application to all offenders. Section 27 enables sentencing courts to hear from persons who may speak about the personal, family, whānau, community and cultural background information relevant to an offender and the way in which that background may have related to the commission of the offence. When imposing a sentence with a partly or wholly rehabilitative purpose, it is appropriate for a Court to consider s 27 together with the statutory principles in s 8 of the Act and in particular a Court must under s 8(i) Sentencing Act take into account an offender’s personal, family, whānau, community and cultural background. A speaker who addresses the Court pursuant to s 27 may propose amongst other things processes to resolve issues relating to the offending, community-based support that may be available to help prevent further offending and how that support may be relevant to possible sentences.

[23] In 1999, Gendall J said in the Nishikata case7 which dealt with three offenders who were of Japanese ethnicity that the sentencing principles apply to all purposes regardless of their ethnic or racial group yet the Court must take into account and apply mitigating factors which are directly relevant to the individual offender. His Honour then observed that equality before the law is fundamental to the administration of justice but in line with s 16 Criminal Justice Act 1985 as it then was and decided authorities, the penalty must reflect matters of mitigation arising from an offender’s background and which recognises the structure and operation of the society within which we live and in particular the degree to which the cultural or ethnic heritage predominates and any problems of a cross-cultural nature.

[24] In 2012, Judge O’Driscoll wrote extrajudicially about s 27 and noted that s 27 does not seek to reduce sentences for Māori or for those from other cultures. The section attempts to provide a Court with relevant and appropriate material to impose a more relevant, meaningful and appropriate sentence.

[25] In 2013, the Court of Appeal observed in Mika v R8 that if Parliament intended an offender to receive a sentencing discount solely on account of his or her ethnicity then such an intention would have been made clear either in the Sentencing Act or a subsequent statutory instrument. Furthermore, a judicial evaluation of an offender’s culpability is an essential element of the sentencing process that does not require proof that ethnicity was causally linked to the particular offending. Nevertheless, the Court noted that s 27 is available to an offender to call persons to speak on the offender’s heritage and cultural background.

[26] In 2014 the Court of Appeal noted in RS v R9 that s 27(1)(b) and (d) recognise respectively that cultural factors may mitigate culpability in very specific circumstances or may be relevant to the appropriate type of rehabilitative sentence that a particular ethnicity or cultural background can never be a ground in itself for a discount on sentence.

7 Nishikata v Police (Wellington HC, AP126-8/99, 22 July 1999 Gendell J) at 7.

8 Mika v R [2013] NZCA 648 at [9]- [10].

9 RS v R [2014] NZCA 484 at [18].

[27] In 2014 in the case of Rakuraku,10 the High Court sat as a first instance sentencing Court. The Court heard from a s 27 speaker who was the defendant’s sister and she addressed the Court in detail on the historical factors that were relevant to the defendant in that case. After hearing from the s 27 speaker, Williams J referred in his sentencing decision to cultural and background factors that were relevant to Mr Rakuraku. They included a childhood of poverty, violence and racism, the story of trauma and loss in the history of the Tuhoe tribe, anger and aggression that is partly a factor of the defendant’s personality and also partly a response to the drivers that were discussed by Williams J in that decision that were not the making of the defendant. Williams J said to Mr Rakuraku, “You sought security in the brutalised and traumatised company of those who share your experience and history,” and in that case it was the Mongrel Mob. He then said that:

... To deny that as a contributing factor would be to deny that race and history have any part to play in Māori criminality generally today and therefore in your own criminality. The sentence I impose must take proper account of this factor if it is to be a punishment that fits both the offences and the offender

... The impact of (Mr Rakuraku’s mitigating personal and background factors) ought nonetheless to be discernible.

[28] So in that case the minimum period of imprisonment was reduced by 12 months. By way of contrast at first instance in the Mika case, the sentencing Court did not have the benefit of hearing from a s 27 speaker about the defendant’s cultural background.

[29] In 2015, the Court of Appeal in R v Fane11 noted that for serious offending the purposes of sentencing such as denunciation, deterrence and accountability will be emphasised.

[30] In 2017, the Court of Appeal in Keil v R12 addressed the relevance of the tikanga of muru (ritual compensation) in the context of sentencing for a serious assault and said this:

The seriousness of Mr Paul’s offending necessarily subordinated the purposes of personal rehabilitation and reintegration to the wider societal purposes set out under s 7. The requirements of accountability, denunciation and

10 R v Rakuraku [2014] NZHC 3270, Williams J.

11 R v Fane [2015] NZCA 561 (CA) at [45]- [46].

12 Keil v R [2017] NZCA 563 (CA).

deterrence had to predominate in an end sentence which struck a balance between competing goals. Our sentencing regime cannot be seen to condone a particular group’s use of violence, violent force to exact physical retribution. Similarly, cultural norms cannot excuse that conduct for some groups but not for others. While those norms may help to explain, they can never justify offending of such severity as occurred here.

[31] In 2018, the High Court in R v Heta13 dealt with a Crown appeal on sentence. The sentence under appeal had been imposed in the District Court at first instance. A significant discount had been accorded to Mr Heta to recognise s 27 factors that had been placed before the District Court by a s 27 speaker. Whata J took the opportunity to comprehensively review the relevant authorities that had previously touched on s 27. Whata J also critically analysed the link between the systemic deprivation experienced by Mr Heta and the offending committed by him.

[32] Most recently in the case of R v Hone14 Venning J declined a defence application to adjourn sentencing to obtain a s 27 report and noted that the provisions of s 27 Sentencing Act are clear. An offender may request the Court to hear any person called by them to speak on matters referred to under s 27(1). Under s 27(5), the Court may also suggest it would be assisted to hear from a person called by the defendant on any of the matters specified in subs (1) but s 27 does not provide a mechanism for Judges to direct the preparation of cultural reports. Venning J then went on to outline the way that cultural and family information is required to be provided by reference to s 26 of the Act.

[33] In the present case, Mrs Bloem has commissioned a cultural background report prepared by Ms Louise Henare which purports to have been compiled by her for pre-sentence submission pursuant to s 27 Sentencing Act 2002, and according to Ms Henare it aims to provide cultural context in relation to Rocklin Cuthbert. In my assessment, there is no difficulty in treating the report that has been presented as a request by Mr Cuthbert for the Court to hear from Ms Henare pursuant to s 27. There has been no suggestion that the Crown seeks to cross-examine Ms Henare on the contents of her report. It seems to me unnecessary in these circumstances to require

13 R v Heta [2018] NZHC 2453, Whata J.

14 R v Hone [2018] NZHC 2605, Venning J.

her to appear in person to read the report aloud. I consider that the report can now be taken as read as a report pursuant to s 27.

[34] I now intend to deal with the contents of the report. Mr Cuthbert is noted as being of 42 years of age, born in Whakatane with parents of Scottish and Māori descent. Mr Cuthbert’s knowledge in that regard is limited. Mr Cuthbert has four sisters and three brothers and is the eldest son of the family. Mr Cuthbert, according to the report that Ms Henare has provided the Court, you were initially raised in Whakatane. You were raised in an environment where your father was violent towards yourself, towards your mother and towards your brothers. He was a member of the Black Power gang and you have mentioned that your experience of family life when you were young was essentially a Once Were Warriors-type daily occurrence of violence. You had a close bond to your mother and you appreciated the efforts she made, but in your words, poverty prevailed during your childhood.

[35] You moved to Australia with your family in 1988. You spent most of your life there. You experienced racism at school and you were introduced to offending by your father at an early age, between the age of 10 to 15 years. Your father told you essentially that because you were going to be doing it anyway he would teach you how to commit burglaries and not get caught.

[36] You met your long-term partner who I acknowledge her presence in Court today when you were 15 years of age. You have raised a family in Australia. You have four children as well as your partner who currently reside in Australia. You recently served a lengthy sentence of imprisonment in Australia and it was the expectation of the family that when you had finished that sentence of imprisonment you would simply return to family life in Australia and effectively the lives of your family were put on hold until you completed that sentence.

[37] At the end of the sentence however, instead of being returned to your family in Australia you were sent to a detention centre and then deported back to New Zealand and your status was that of a returning prisoner. That was a devastating shock for you and for your family. When you arrived in New Zealand you were initially doing well.

Although you were isolated and alone you were supported and you had a house and a job and you had steady income.

[38] That was affected by the arrival of another family member who was also deported back to New Zealand and because you saw that they had nowhere to stay, that person had a child as well, you decided to allow them to stay at your house. That was in breach of your tenancy agreement. That then led to you losing your house and it eventually led to you losing your job because you were homeless and living out of your car and you were regularly turning up to work late.

[39] You then reached a very low point in your life. You started using drugs again and at one stage you mentioned to Ms Henare going to the local KFC and not being able to afford the cheapest meal on the menu. You then turned to the way of earning money that you knew from your past and that was burglary. On your return to New Zealand, although you were alone and isolated, you did manage to re-establish a relationship with one of your first cousins who lives with her whānau in Christchurch. She has offered you support and a place to live upon your release from prison although I note the submission I have heard today that it is the intention of your partner to also move back to New Zealand upon your release. Your first cousin has made enquiries with local community providers in Christchurch to see what assistance could be provided to you if you were to move to Christchurch to live with her upon your release. What is clear is there are certainly providers who can support you with a kaupapa Māori-based model or framework of support but also there are family members in Christchurch who are able to offer you employment which is another factor that has been made clear in the report.

[40] It seems to me that after reading the report and considering it carefully you have experienced a background of systemic deprivation through a combination of poverty, exposure to family violence as you were growing up, exposure to gang culture through your father’s connections and the associated mentality that went with that gang culture. You have also experienced and been exposed to pro-criminal role modelling particularly by your father in your formative years and in your early upbringing. These factors undoubtedly contributed to your offending in Australia, to

your eventual deportation from Australia and to your most recent offending in New Zealand.

[41] As Whata J pointed out in the case of R v Heta, recognition of deprivation and personal trauma does not involve condoning the offending. Rather, it helps to explain it. Section 27 mandates and enables Māori and other offenders to bring to the Court’s attention information about, among other things, the presence of systemic deprivation and how this may relate, if at all, to the offending, moral culpability and rehabilitation.

[42] In accordance with and consistent with the approach that was adopted by Williams J in the case of Rakuraku, it seems to me that the sentence I impose today must take proper account of those background factors if it is to be a punishment that fits both the offences and the offender. The impact of your mitigating personal and background factors ought to be discernible. Accordingly, the appropriate discount is nine months to recognise the cultural background factors that I have identified.

[43] I also consider that there should be an additional 10 percent discount for remorse and rehabilitation prospects given the opportunities that await you in Christchurch and the support that you have been offered not just by your first cousin but also by the return of your partner to New Zealand upon your release from prison.

[44] I also consider that you are entitled to a 20 percent discount for guilty pleas.

[45] Accordingly, you are now sentenced on each of the charges of burglary on a concurrent basis. Factoring in all of those discounts that I have now outlined, the end sentence is three years and eight months’ imprisonment.

ADDENDUM:

[46] Earlier today I sentenced Rocklin Cuthbert and gave reasons. Because it is still the same day, the same sitting day that is, I consider myself not functus officio and still in a position where I am able to correct an error that was made in giving reasons for the sentence today.

[47] When I gave the reasons this morning I outlined the discounts that were applicable and described them in percentages. However, what has occurred to me is that when I was calculating the percentages some of those percentages were rounded up and some of them were rounded down and they were not actually exact percentages. On that basis what I have decided to do is simply amend the record of the reasons to reflect the actual months that were involved in those discounts as opposed to referring to them by way of percentage.

[48] I am very grateful to Mrs Bloem for returning to Court this afternoon to stand in for Mr Cuthbert. Because I am not intending to change the actual outcome, I have decided it is appropriate to just do this in the absence of Mr Cuthbert but with Mrs Bloem present and also with the Crown represented as well.

[49] Just to clarify the discounts involved, there was a nine-month discount to recognise the cultural background factors that I identified and there was also a six-month discount which was provided for remorse and rehabilitation prospects given the opportunities that awaited Mr Cuthbert in Christchurch upon his release from prison and also the offer that had been made by his partner to return to New Zealand to support him upon release. That calculation of six months brought the provisional term to 54 months of imprisonment and then with the guilty plea discount that discount was a further 10 months which resulted in a 44-month term of imprisonment which resulted in the actual sentence of three years eight months being imposed.

[50] In summary, it was a five-year imprisonment starting point with a nine-month uplift to recognise relevant previous convictions with a nine-month discount to recognise cultural circumstances and a further six-month discount to recognise remorse and rehabilitation with a further 10-month discount for guilty pleas which brought the end sentence to one of 44 months or in other words three years eight months. Those are the calculations, and the references to percentages have been avoided because they were not exact percentage discounts.

H M Taumaunu District Court Judge