Solicitor General v SC [2017] NZHC 2252 (18 September 2017)

Last Updated: 26 October 2017

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CRI-2017-419-000045 [2017] NZHC 2252

BETWEEN	SOLICITOR GENERAL OF NEW ZEALAND Appellant
AND	SC Respondent

Hearing:	11 August 2017
Counsel:	I Murray for Appellant G Boot for Respondent
Judgment:	18 September 2017

_{JUDGMENT OF WHATA J}

This judgment was delivered by me on 18 September 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Crown Law, Wellington

Gavin Boot Law

SOLICITOR GENERAL OF NEW ZEALAND v SC [2017] NZHC 2252 [18 September 2017]

Introduction

[1] The Solicitor-General appeals against the sentence imposed on SC in the Hamilton District Court on 29 May 2017.¹ Judge Burnett sentenced him to seven months’ home detention, 150 hours community work and six months’ release conditions on multiple charges of violence involving his partner and her children.

[2] The Solicitor-General contends the sentence is manifestly inadequate given the nature and level of violence meted out by SC.

Background

[3] The charges arise from offending between April 2013 and September 2015, when SC and N were in a relationship. They lived together with N’s three children from a previous relationship, E (11), L (9) and T (14). It is a time marred by SC’s violence toward N and her children.

[4] The Crown provided a table summarising the charges (and related offending)

to which SC pleaded guilty. It is not disputed.

[5] In summary, he pleaded guilty to the following charges: (a) two charges of assault with a weapon;²

(b) three representative charges of assaulting a child;³

(c) two charges of injuring with reckless disregard;⁴

(d) one charge of male assaults female;⁵ and

_{(e) two charges of assault with intent to injure.}⁶

¹ _{R v SC [2017] NZDC 11223.}

² _{Crimes Act 1961, s 202C. The maximum penalty is five years’ imprisonment.}

³ _{Section 194(a). The maximum penalty is two years’ imprisonment.}

⁴ _{Section 189(2). The maximum penalty is five years’ imprisonment.}

⁵ Section 194(b). The maximum penalty is two years’ imprisonment.

[6] The assault with a weapon charges both relate to offending against E. On the first occasion, SC became angry at E because of his behaviour at school. He instructed him to pull down his pants and face a wall. He then used an electric cord to whip him three times, which resulted in bruising. The second charge arises from an occasion in which SC punished E by hitting him on the bottom and back region using a wooden pool cue.

[7] The three assault on a child charges are representative, relating to offending against L, T and E. SC would smack L on the back of her hand as a form of punishment. On three separate occasions, he slapped T on the face with an open hand. On three or four occasions, he slapped E to the right side of his face and once punched him on the left side of his face. These left him with red marks and bruising around his cheek and eye.

[8] The injuring with reckless disregard charges relate to attacks on E and N. On

20 April 2015, SC discovered E had ripped his pants, and pushed him in the chest, causing him to hit his head on the corner of the pantry. SC then punched E. This resulted in a two centimetre gash on the side of E’s head which required medical attention. Later, on 22 August 2015, SC pushed N, causing her to fall and break her ankle in three places. This injury required surgery. SC’s male assaults female charge also relates to offending against N. It is a representative charge, arising out of verbal altercations which would sometimes turn physical, with SC grabbing N by the arm, jaw or neck. He also punched her, pushed her over, shook her or pulled her clothing and jewellery.

[9] Finally, the assault with intent to injure charges relate to offending against T and E. After T got in trouble at school, SC became angry and slapped her on the face. Driving her home from school, he slapped her a further three or four times, causing her lip to bleed. On another occasion, SC was angry and sent the children to bed without dinner. E got out of bed and went to the kitchen. SC grabbed E around the

_{neck and forced his head into the kitchen bench.}

⁶ Section 193. The maximum penalty is three years’ imprisonment.

The probation officer’s advice

[10] The probation officer’s report (PAC report) assesses SC’s risk of harm as high, given his violent offending was over a prolonged period of time. But the report also notes SC was able to verbalise his remorse well and acknowledged the seriousness of his actions. The report then records SC has been on bail for 18 months and completed a 22 week family violence course. SC confirmed to the report writer he was willing to attend further counselling to address his offending.

[11] The PAC report observes SC shows a medium level of motivation to continue treatment, but that this appears to be driven by his desire to avoid imprisonment rather than accepting responsibility for his actions.

[12] In terms of electronic monitoring, the PAC report notes Police have no concerns with SC serving an electronically monitored sentence. This is despite SC breaching his bail by associating with the victims over the bail period.

Victim impact statement

[13] N gave a lengthy victim impact statement. In it she refers to her injuries, including a broken ankle and bruising to her groin, a bump on her forehead, and burn marks on her arm pit, arm, back and the side of her neck. She says she was hospitalised for about five days because of the broken ankle and had to have surgery.

[14] It is evident from her statement that she attributes some of the blame for the offending to herself, referring to her mental health issues and the stress it brought on her and SC. She says she has since had treatment, and would like to continue her relationship with SC for her own sake and that of the children. She refers to the harm done to her children, but says they have recovered well and that there are no long-lasting effects on them.

The District Court sentencing

[15] Judge M L S F Burnett described the effect of various assaults and acts of violence committed by SC as follows:

[6] These were disastrous consequences, not just for her, but terribly damaging for the children who were displaced and who must suffer emotional harm as a result of this ongoing unpredictable outbursts from you, being constantly fearful as to what mood you might be in, how that mood will play out in respect of their safety and their mother’s safety and in respect of physical punishment to them. We all know as a matter both of common sense and of proven science that children who are subject to that level of fear and uncertainty are damaged children. Damaged children grow up to be damaged adults. It worries me that in the victim impact statement that your partner, who wants to continue a relationship with you, does not seem to give proper recognition to the emotional harm that the children have yet to deal with. That worries me.

[16] The Judge considered the PAC report unflattering. She also observed that despite numerous discussions, SC did not attend a restorative justice process, but acknowledged this was due to his strict bail conditions.

[17] The Judge accepted the Crown’s itemisation of aggravating features and referred to a range of authorities cited by the Crown. She recorded the Crown’s submission that a starting point of more than two and a half years was appropriate.

[18] The Judge, however, found otherwise. She concluded, adopting Mr Boot’s submission, a lower starting point of two years for the offending against the children was appropriate, commenting she had been significantly influenced by the steps SC has undertaken since the offending. She observed:⁷

... [SC] appears in Court as a person who has moved forward with appreciation of the utter wrongfulness of his conduct at the time and seems now to present with some sort of genuine understanding of what is required in a relationship where there are children and of course taking into account the adult as well. I have had regard to extensive victim impact statements which sets out the medical conditions of the victim, and how now that she is under medical supervision the dynamics within the relationship would be very different, than had been at the time. The victim is in Court today and so I am careful not to articulate the medical condition. It is included in the written material.

[19] The Judge uplifted the starting point by six months to reflect the violence against N, then allowed a 10 per cent discount for guilty plea, reducing the sentence to 27 months’ imprisonment. She then applied a further discount for time spent on

_{restrictive bail conditions. This discount was not particularised, but was sufficient}

⁷ R v SC, above n 1, at [11].

for the Judge to conclude an end sentence of home detention was appropriate. She observed:⁸

... As you point out your life has changed in terms of you have lost your employment and the house that you had. Those things have changed irrevocably for you so I do accept all of that and apart from one breach you have been on lengthy bail. ... I am anxious that you be allowed to take up employment, and so if that can be accommodated on home detention, I want that to be allowed.

[20] Judge Burnett then imposed an end sentence of seven months’ home detention with six months’ release conditions and 150 hours of community work.

Jurisdiction

[21] This is an appeal pursuant to s 246 of the Criminal Procedure Act 2011. The Solicitor-General must establish there was an error in the sentence imposed and that a different sentence should be imposed.⁹ Typically, to conclude a different sentence should be imposed, it must be shown that the sentence imposed was manifestly inadequate.¹⁰ An appellate court will generally only increase a sentence in clear cases.¹¹

Grounds for appeal

[22] The Crown contends the Judge erred by: (a) adopting too low a starting point;

(b) giving an excessive and unspecified discount for time spent on bail;

and

(c) commuting imprisonment to home detention when a term of imprisonment was appropriate.

⁸ _{At [12].}

⁹ _{Criminal Procedure Act 2011, s 250.}

¹⁰ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33], [35].}

¹¹ R v Beaman CA177/82, 16 December 1982.

Did the Judge err in fixing a starting point?

[23] Mr Murray submits a starting point of two years was too low, and resulted in a manifestly inadequate end sentence. He emphasises:

(a) This is serious offending, with the most serious charges, injuring with reckless disregard and assault with a weapon, attracting a maximum penalty of five years’ imprisonment. This type of offending, involving violence against children, should be taken seriously.¹²

(b) There is no tariff case, but guidance is afforded by Nuku v R¹³ (the tariff case for offending involving intentional injuring) and R v Taueki¹⁴ (the tariff case for serious violent offending).

(c) In comparable cases involving multiple acts of family violence, starting points of three years and three months’ imprisonment,¹⁵ two years and eight months’ imprisonment,¹⁶ and two years and four months’ imprisonment¹⁷ were adopted and end sentences of imprisonment imposed.

[24] Mr Boot did not review the case law cited by the Crown, noting the Judge took each case cited to her into account in fixing a starting point. He submits, in any event, the starting point was not too low (underlining the six month uplift the Judge applied for the offending against N).

Assessment

[25] The offending involved multiple acts of physical violence to vulnerable persons spanning a three year period, including assaults with weapons and injuring with reckless disregard. The injuries caused by the offending ranged from bruising

_{and cuts to the head of a child to a broken ankle which required surgery. The}

¹² _{R v Bishop [2008] NZCA 97 at [13].}

¹³ _{Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.}

¹⁴ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

¹⁵ _{R v Haggar [2014] NZHC 3082.}

¹⁶ _{C (CA155/2014) v R [2015] NZCA 33.}

¹⁷ SM v Police [2016] NZHC 960.

emotional harm caused by the offending must have been, as Judge Burnett noted, significant.

[26] An end sentence of home detention for the present scale of the offending against children is exceptional, indeed rare. I could find only one. In S (CA801/10) v R, the Court of Appeal imposed a sentence of nine months’ home detention for offending involving slapping and kicking five child victims, as well as hitting one with a belt on her nose.¹⁸ A starting point of 18 months’ imprisonment was adopted. But the severity of the abuse and injuries was markedly less than the offending in the present case, so it is not a useful comparator.¹⁹

[27] The Crown cited three cases, R v Haggar, C (CA155/2014) v R and SM v

Police, which I accept are more closely analogous.

[28] In R v Haggar, Mr Haggar abused two children and one adult victim over seven years. The physical violence included slapping and hitting the children in the face and head with a spatula, punches to their stomachs and face, throwing them against a wall, kicks, and pouring hot tea on them. From these attacks, they suffered bruising, black eyes, a burst ear drum, a tail bone injury and fluid in an elbow. There was also sexual abuse of a minor nature against an older child on one occasion, which attracted a three month uplift. A starting point of three years and three months was adopted, and an end sentence of two years and four months’ imprisonment was eventually imposed.

[29] In C (CA155/2014) v R, the offending involved hitting two child victims with a hose on a number of occasions. One some occasions, the offender tied them to the bed while he did it, punching them repeatedly. On another occasion, he held the head of one of the victims under water. These acts resulted in swelling, bruising, and two swollen eyes. It also involved one charge more serious than any of the charges levelled at SC, injuring with intent to injure. A starting point of two years and eight

_{months was affirmed by the Court of Appeal.}

¹⁸ _{S (CA801/10) v R [2011] NZCA 178.}

¹⁹ Similarly there are numerous cases involving isolated incidents of assault which have attracted home detention. Wylie J set these out in detail in Silao v Police [2014] NZHC 3303 at [27]. They include J v Police HC Christchurch CRI-2008-409-187, 18 December 2008; Hendry v Police [2012] NZHC 3581; I v Police [2013] NZHC 2925; and Tere v Police [2012] NZHC 174.

[30] SM v Police involved four charges of assault with a weapon and two charges of assault on a child, arising out of offending over a 19 month period. The defendant was the mother of the four year old victim. She would assault him when he misbehaved. She used a broomstick and a metal golf club to strike the victim about his legs, arms, and hands causing lumps and bruising. He was unable to stand up afterwards. A cumulative starting point of 28 months was adopted.

[31] While these cases have additional and more seriously aggravating features, the starting points adopted are markedly higher than the two year starting point adopted in this case. Furthermore, a broader canvas of sentences for offending of a similar scale involving multiple child victims and/or incidents of child abuse reveals sentences of imprisonment ranging from 12 months²⁰ to three years and three

months,²¹ with starting points ranging from 12 months to 95 months (or seven years

and eight months).

[32] Against this background, I am satisfied a closer look at the starting point is necessary.²²

[33] There is no tariff case for the lead offences in this case – assault with a weapon and injuring with reckless disregard. However the frame provided by Nuku and Taueki is helpful.²³ I am not in a position to prescribe bands for the lead offending in this case based on the argument before me. But I am satisfied the aggravating features identified in those cases provide assistance in determining the relative seriousness of the present offending.

[34] With that guidance in mind, in my view, the following aggravating features of the offending are present:

(a) Serious injury – N’s broken ankle required hospitalisation and surgery.

_{While this is not a case of intentional injury, reckless disregard}

²⁰ _{Tuhua v R [2014] NZCA 558.}

²¹ _{Stretch v Police [2016] NZHC 1713.}

²² For completeness, I have considered a range of cases involving similar charges. As well as those explicitly referred to, see Anderson v R [2016] NZHC 2386, Silao v Police, above n 19, R v Matafeo [1996] NZCA 170; (1996) 14 CRNZ 276 (CA), and White v Police HC Napier CRI-2008-441-34, 12

_{December 2008.}

²³ R v Taueki, above n 14, at [31], and Nuku v R, above n 13, at [41].

connotes that SC was aware of the potential consequences of his actions and carried on anyway. SC says the ankle injury resulted out of a simple push. I accept that this violence is at the lower end, but, as eventuated, violent pushes can cause serious and foreseeable harm, including broken bones.

(b) Use of a weapon – while this is an inherent element of assault with a weapon charges, the use of a weapon is an aggravating feature, especially in respect of violence against children. Here the weapons included an electric cord and a wooden pool cue, both of which can cause serious harm.

(c) Vulnerability/family violence – this is a serious aggravating feature, given the age of three of the four victims and the inherent breach of trust involved in any attack on children. This engages s 9A of the Sentencing Act 2002, in particular the requirement to take into account the following aggravating factors:

(i) the defencelessness of the victims; and

(ii) the magnitude of the breach of trust.

(d) Attacking the head – the representative assaults included slaps and punches to the head of the children. The absence of serious injury in these instances however mitigates the seriousness of this factor.

(e) Number of victims and the time span of offending – there were four victims in total, and the offending spanned approximately two and a half years. While these factors are partly reflected by the number of charges, they remain aggravating factors to be weighed.

[35] Overall, having regard to these aggravating factors, I assess the offending as moderately serious. Given this, I consider the combined starting point of two years and six months’ imprisonment was too low. Having regard to the totality of the

offending, I consider a starting point of three years was justified. This not only brings it into line with other sentences for comparable offending, it better reflects the number and type of aggravating features that are present.

[36] Alternatively, were I to approach the assessment on a cumulative basis, the following individual starting points would not be out of range:²⁴

(a) eight months for the two separate assault with a weapon charges for offending against E;

(b) four months for the two separate assault with intent to injure charges for offending against E and T;

(c) five months for the three assault on a child charges;

(d) six months for the injuring with reckless disregard charge involving offending against E; and

(e) one year for the two charges involving offending against N.

[37] This results in an initial starting point of 35 months’ imprisonment. This reinforces the conclusion that a starting point of two years and six months for the offending was inadequate.

[38] Having reached this conclusion, it is necessary to re-evaluate the sentence as a whole. As part of this re-evaluation, I consider the discount given for time spent on bail and whether the sentence should have been commuted to one of home detention.

Mitigating factors

[39] I have fixed a global starting point of three years. I turn then to address mitigating factors.

²⁴ As Edwards J noted in Stretch v Police, above n 21, it is available to a sentencing judge to take a cumulative approach to sentencing in cases involving acts of family violence, occurring at different times, against different family members. See also R v P [2008] NZCA 476 at [31] and S (CA801/10) v R, above n 18, at [45], in which the Court of Appeal approached starting point on a cumulative basis before turning to consider the totality of the offending.

Further background

[40] Having reached the view that the Judge erred in relation to starting point, I confirmed to counsel that I required an updated PAC report and a report for the purpose of s 27 of the Sentencing Act.

[41] The updated PAC report remains less than glowing about SC. It notes he still refuses to fully accept responsibility for his offending and continues to be assessed as posing a medium risk of reoffending and high risk of harm. It does observe, however, that he has been compliant while under home detention, completed a family violence course in 2016, is currently attending a “Man-Up” programme, and is waitlisted to participate in the next available tikanga Māori programme.

[42] A s 27 report was provided by SC’s mother. She identifies SC’s whakapapa and confirms she sent him to a kura kaupapa to give him a better understanding of te ao Māori. As a result, she records that “this part of his life was the best thing I could ever do for him because he learnt”. She also notes that as a child, SC suffered cruelty and physical abuse at the hands of his father. She considers this affected his parenting skills, but she now believes he has learned an important lesson and that he is on a journey to make things right, having “tak[en] ownership” of his actions.

Argument

[43] Mr Murray submits the discount for guilty plea (10 per cent) was appropriate, but the discount for time spent on bail was plainly too high. While the Judge did not specify the length of the discount, it appears to have been three months, or just over

10 per cent.²⁵ Assuming this generous 10 per cent discount, the combined discount

would only reach 20 per cent, or seven months.

[44] Mr Boot agrees the Judge gave a generous discount for time spent on bail, but submits this was available given SC spent 18 months under restrictive bail conditions. He also submits a larger discount for guilty plea was available, because it

_{immediately followed an amended charge list which significantly changed the}

²⁵ This is on the basis it brought the sentence from two years and three months to two years’ imprisonment, at which point she could consider whether to commute the sentence to one of home detention.

character of the alleged offending. Furthermore he says a substantial discount should have been afforded for remorse. Consequently, he submits a combined discount in the order of one third was available to the Judge.

[45] I consider there are four mitigating factors to be considered: (a) time spent on bail;

(b) remorse;

(c) capacity for rehabilitation, taking into account relevant cultural factors; and

(d) guilty plea.

Time spent on bail

[46] Where a defendant has spent a lengthy amount of time subject to a restrictive bail regime, they may be afforded a reduction in sentence.²⁶ An evaluative assessment of all circumstances is required before any discount is fixed.²⁷

[47] In Schuster v R, the Court of Appeal considered “in the absence of countervailing considerations, some discount should normally be provided for a substantial time spent on EM bail”.²⁸ The discount provided in that case, for eight months on EM bail, was three months. In Corbett v Police, a two month discount applied for two months spent under 24 hour curfew was accepted on appeal.²⁹ These equate to discounts of nine per cent and eleven per cent respectively.

[48] Here, SC spent a substantial amount of time on bail; 18 months. While the conditions he was subject to during that time were less restrictive, he was isolated

_{from his usual community. He was subject to a 12 hour curfew between 7.00 pm and}

²⁶ See for example Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613 at [137], Bennett v R

_{[2012] NZCA 173 at [25], and Schuster v R [2011] NZCA 343 at [10].}

27. R v Tamou [2008] NZCA 88 at [19]. The factors in s 9(3A) of the Sentencing Act 2002, relating to time spent on electronically monitored bail, may assist.

²⁸ _{Schuster v R, above n 26, at [12].}

²⁹ Corbett v Police [2016] NZHC 2012 at [34].

7.00 am every day, and was not to enter Hamilton except for Court attendance or pre-arranged appointment with counsel. He was also restricted from going to schools in Murupara, or having contact with the victims or witnesses. But his conditions were not as strict as those in either Schuster or Corbett, and he breached those conditions on one occasion by associating with the victims.

[49] I acknowledge the breach of bail, but to my mind this does not materially bear on the fact that SC’s liberty has been constrained for 18 months while on bail.

[50] In the circumstances, I consider a discount of eight per cent, or just under three months, for such a lengthy bail period was appropriate.

Remorse

[51] There is conflicting information about SC’s level of remorse. The PAC reports refers to his unwillingness to take responsibility for his offending, but acknowledge his expressions of remorse. Judge Burnett was evidently impressed by his willingness to accept responsibility and desire to move forward. Furthermore, SC has taken several steps, both before and after sentence, to directly address the underlying causes of his offending. His mother also refers to him having taken ownership of his actions. While it is necessary to be careful about such evidence, I consider SC’s remorse, reflected in his commitment to change, deserves some recognition. An acknowledgment, in the form of a five per cent discount, is

appropriate.³⁰

Capacity to rehabilitate

[52] There are several indicators that SC is a strong candidate for rehabilitation. First, his whanau is supportive, particularly his mother. Second, he has made clear steps to address the underlying causes of his behaviour. Third, it appears that some of his behaviour underlying the offending is learned, and is at least in part a reflection of abuse in his childhood. A corollary of this is that such behaviour can be

_{unlearned, with treatment and commitment. Fourth, SC clearly draws strength from}

³⁰ A discount for remorse is available via s 9(2)(f) of the Sentencing Act 2002. Tangible evidence of genuine remorse may justify a discount of between five and eight per cent: see Watene v R [2014] NZCA 381 at [18].

te ao Māori, and is open to tikanga Māori for guidance. This bodes well for his

rehabilitation.

[53] Against this background, and having regard to the requirement to consider SC’s prospects for rehabilitation,³¹ I am satisfied a discount of 10 per cent for rehabilitation purposes is appropriate.

Guilty plea

[54] The extent of discount for guilty plea is a contextual inquiry.³² Here, SC’s guilty pleas were entered shortly before trial, but came after the Crown decided not to proceed with the most serious charges he faced.³³ While a plea delivered late after charges are amended will not attract the same discount as a guilty plea entered at the first opportunity,³⁴ the late amending of charges is a factor to be considered.

[55] In R v Haggar, Andrews J considered a 20 per cent discount for guilty pleas on the eve of trial, and in the face of a strong Crown case, was nevertheless appropriate because the pleas spared young victims from giving evidence and being cross-examined.³⁵ In Oliver v R, the Court of Appeal considered a 10 per cent allowance for a guilty plea entered on the morning of trial was generous, but appropriate.³⁶

[56] I agree with Mr Murray that a 10 per cent discount for guilty plea is appropriate.

³¹ Among other things, this is a function of s 8(i) of the Sentencing Act 2002, which requires that a sentence must take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence with a partly or wholly rehabilitative purpose. See, for example, R v Eruera [2016] NZHC 532 at [20]- [24] and [96]-[97].

³² _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70], [75].}

³³ The Crown charge list of 20 January 2016 included charges of kidnapping, pursuant to s 209 of the Crimes Act 1961, which carries a maximum penalty of 14 years’ imprisonment, and injuring

with intent to injure, pursuant to s 189(1), which carries a maximum penalty of 10 years’

_{imprisonment.}

³⁴ _{Oliver v R [2014] NZCA 285 at [12], citing Hessell v R, above n 32, at [62].}

³⁵ _{R v Haggar, above n 15, at [36].}

³⁶ Oliver v R, above n 34, at [12].

[57] In combination, I consider a discount on a starting point of three years of 12 months, or 33 per cent, is appropriate in the circumstances. This results in a sentence in the order of 24 months’ imprisonment.

Home detention

[58] Having reached the threshold for home detention, I turn to consider whether the Judge erred in commuting a term of imprisonment to one of home detention.

[59] Section 16 of the Sentencing Act provides the criteria a Judge must have regard to in considering the imposition of a sentence of imprisonment:

16 Sentence of imprisonment

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3) This section is subject to any provision in this or any other enactment that—

		(a)	provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
		(b)	requires a court to impose a sentence of imprisonment in relation to a particular offence.
[60]	Given	the	aggravating features of the offending, there are strong

considerations militating against commuting a sentence of imprisonment to one of home detention. As I have said, the present sentence of home detention is, it appears,

the first of its kind for this type, level and scale of offending. Had the matter come to me afresh, I would have been slow to commute the sentence to home detention.

[61] But as Mr Murray for the Solicitor-General submits:

(a) The sentencing Judge’s discretion to take merciful approach, or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence, should not be easily overridden by the appellate court.³⁷

(b) Even if the appellate court determines that a sentence is inadequate or unprincipled, it will still be reluctant to interfere if allowing the appeal would cause injustice to the offender.³⁸

[62] Additionally, a sentence will only be increased to a level which is considered the lowest appropriate for the class of offending,³⁹ and the court will not necessarily increase a non-custodial sentence to a custodial one if there is evidence the appellant is complying faithfully with and gaining benefit from the non-custodial sentence, or some change of circumstances has taken place since sentencing.⁴⁰ In the present case, I am satisfied I should not override Judge Burnett’s discretion to take a merciful approach.

[63] The combination of mitigating factors just mentioned is such that, having reached a threshold of two years or less, it was open to the Judge to commute the sentence to home detention. More specifically, in terms of s 16, it was open to the Judge to place significance on SC’s rehabilitative needs and his capacity to rehabilitate, bearing in mind that home detention is not a makeweight sentence.

[64] Additionally, the evidence SC is complying and clearly benefitting from his sentence of home detention is an important factor.⁴¹ This consideration also bears

³⁷ _{R v Wihapi [1976] 1 NZLR 422 (CA) at 424, R v Hunter [1984] NZCA 71; [1985] 1 NZLR 115 (CA).}

³⁸ _{R v Donaldson [1997] 14 CRNZ 537 (CA) at 550.}

³⁹ _{R v D (CA253/2008) [2008] NZCA 254 at [30], citing R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 (CA) at [31].}

⁴⁰ _{At [31], citing R v Donaldson, above n 38, at 549-550.}

⁴¹ At [31].

against imposing a sentence of imprisonment. As the Court of Appeal commented in

R v Hill:⁴²

... Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.

[65] In my view, however, a sentence of seven months’ home detention was manifestly inadequate. It is difficult to reconcile this period with the kind, scale and degree of violent acts and the number of victims. As noted in S (CA801/10) v R, while it is common practice to halve the period of imprisonment when arriving at an end sentence of home detention, the proper approach is to engage in an evaluative

assessment of all the circumstances.⁴³ Assessed as component parts, the assaults on

the children justified a home detention sentence of eight months, while the violence toward N warranted a four month uplift. Home detention should therefore have been the maximum available, given the type and scale of offending. This is 12 months’ home detention.⁴⁴ I also consider the conditions of release imposed by the Judge should be maintained.

Outcome

[66] The appeal is allowed.

[67] The starting point and sentence of seven months’ home detention, 150 hours of community work and six months’ release conditions was manifestly inadequate. But, a sentence of home detention was available to the Judge.

[68] In the result, the sentence of seven months’ home detention and 150 hours of community work is set aside and a sentence of 12 months’ home detention is imposed together with the six months’ release conditions imposed by the District

_{Court Judge.}

⁴² _{R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].}

⁴³ _{S (CA801/10) v R, above n 18, at [45].}

⁴⁴ Sentencing Act 2002, s 80A(3).