The application for leave to appeal is granted.
The appeal in respect of Mr Fanguna is allowed in part by the addition of a sentence of 200 hours community work.

____________________________________________________________________
REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The Solicitor-General originally sought leave to appeal against sentences imposed on the respondent, Nikola Fanguna, and six others after they pleaded guilty to a series of violence and property offences committed in February 2007.
[2] The respondents were all sentenced to varying terms of home detention by Judge Epati in the District Court on 16 February 2009. In addition, each respondent was ordered to pay reparation of $608.
[3] When the application was filed, the Solicitor-General contended that sentences of imprisonment rather than home detention should have been imposed in each case. However, the effluxion of time since the filing of the application has caused the Solicitor-General to accept that the application should now proceed only in respect of the respondent Mr Fanguna.
[4] In the case of two of the respondents (Messrs Afu and Va’a) sentences of four months home detention were imposed. Their sentences have now been completed with the consequence that, in terms of s 383(3) Crimes Act 1961, the application for leave to appeal has lapsed and is deemed to be dismissed for non-prosecution.
[5] In respect of the respondents Messrs Fungavaka, Tapaevalu, Taufa and Vuna, sentences of home detention ranging between six and nine months were imposed. The Solicitor-General elected not to proceed with his application in relation to those four respondents. He recognised that their sentences were partially served; the Crown at sentencing had accepted that sentences of home detention were available; and the Crown had taken a neutral stance as to whether home detention should be imposed. The application for leave to appeal in respect of these four respondents was dismissed accordingly.
[6] The matter therefore proceeded before us solely in relation to the respondent Mr Fanguna who was sentenced to 12 months home detention. The Solicitor-General contended that the starting point adopted by the Judge for his sentence was too low, the reductions allowed for mitigating factors were too great and that a sentence of home detention was not reasonably available. The Solicitor-General submitted that a sentence of imprisonment would have been appropriate and that this Court should now impose such a sentence in substitution for home detention. Alternatively, this Court should add a sentence of community work to the home detention imposed.

The circumstances of the offending

[7] Mr Fanguna and the other respondents are or were members of a South Auckland youth gang. Mr Fanguna was 17 years of age at the time of the offending. He and the other respondents (along with others with whom we are not presently concerned) were involved in two separate incidents which resulted in injuries to four victims.
[8] The first incident (which we will describe as the Wakelin Road incident) occurred on 2 February 2007. About 10 members of the gang went to a residential address in the early hours of the morning. The purpose of the visit was to challenge one of the occupants at the address to a fight. Some members of the group were armed with bats and bars. They called for the occupant to come out of the house but when there was no response some of the group began using the weapons they possessed to smash the windows of two motor cars parked on the property and some windows in the dwelling-house.
[9] The father of the occupant they were seeking then came out of the house. As he did so, Mr Fanguna threw a full beer bottle at him, striking him on the side of the head. This caused him to fall to the ground, striking the back of his head on the concrete driveway and rendering him unconscious. The victim sustained a fractured skull and required a period in hospital for some four or five days and surgery for the fracture. The victim impact statement revealed that the victim was 61 years of age, that he had been seriously affected by the attack on him and was unable to work for at least six months. He continues to have fears for his safety.
[10] Two days later, on 4 February 2007 a group of about 10 to 15 members of the gang again congregated in the early hours of the morning and decided to go to another residential property to challenge one of the occupants to a fight. We will call this the Vine Street incident. When the occupant did not emerge the group drove away and encountered three young men outside some shops. Members of the group were armed with weapons consisting of bats, wooden and metal bars and poles as well as glass bottles. According to the summary of facts to which all respondents agreed, the group, as a pack, viciously attacked the three victims. It is accepted that this attack was unprovoked. Mr Fanguna was not himself carrying a weapon and did not use a weapon on the victims. However, he admitted holding one of the victims and punching him about four times in the head.
[11] The first victim of the Vine Street incident was initially struck about the head by one of the group as he tried to run away. This caused him to fall. As he attempted to stand up he was again struck about the head. The second victim was initially struck in the face with a metal pipe. He also fell to the ground where the attack on him continued about the head and body. The third victim was also struck initially with a weapon on the back of his neck which caused him to fall down. He was then further attacked around his head and body with the weapons carried by the group.
[12] The first victim of the Vine Street incident suffered a laceration to the back of his head requiring six stitches as well as numerous bruises and grazes. He also suffered a small bleed to his brain. The second victim also had a laceration to the back of his scalp requiring stitches and a laceration to the groin. His hand was fractured and required surgery. The third victim also had a fractured hand which required surgery as well as numerous bruises and grazes to the body. Fortunately it appears that none of the three victims to the second assault has suffered any permanent injury.
[13] All respondents pleaded guilty to an amended indictment presented at the commencement of their trial on 18 August 2008. Mr Fanguna pleaded guilty to four charges:

(a) Causing grievous bodily harm to the victim of the Wakelin Road incident with reckless disregard for his safety (s 188(2) Crimes Act).

(b) Wounding two of the victims to the Vine Street incident with intent to injure them (s 188(2) Crimes Act).
(c) Injuring the third victim in the Vine Street incident with intent to injure him (s 189(2) Crimes Act).
[14] The three charges under s 188(2) attract a maximum sentence of seven years imprisonment and the charge under s 189(2) carries a maximum penalty of five years imprisonment.

The Judge’s approach to sentencing

[15] The sentencing was delayed by some six months after the pleas of guilty. It is not entirely clear how this delay arose. In part it was because the sentencing Judge directed that reports for home detention purposes were to be prepared for each of the respondents. The Judge’s approach to sentencing was unconventional. We were told that part way through the sentencing hearing, the Judge directed the Crown to produce a summary of the admissions which each of the respondents had made to the police about their involvement in the incidents. This summary was promptly provided as part of a revised summary of facts. This led to the Judge determining the sentences for each respondent principally by reference to his assessment of the nature and extent of their involvement in the Vine Street incident involving the three victims. We will return to this when dealing with the Solicitor-General’s submissions.
[16] The Crown proposed at sentencing a starting point of five to six years imprisonment with a final sentence, after allowing for mitigating factors, of three to four years imprisonment. On Mr Fanguna’s behalf, counsel submitted at sentencing that an end sentence within two years was appropriate so that home detention could be considered as an alternative to imprisonment.
[17] The Judge took the view that substantial weight should be given to a restorative justice meeting which had taken place between Mr Fanguna and the victim of the first incident. The Judge said:

[5] By and large, I have had a look at the general submissions, by far the only matter which I think should be taken seriously by me is the report on restorative justice meeting which Nikola Fanguna had with the victims, especially [the victim of the Wakelin Road incident]. It is reported therein that [the victim of the Wakelin Road incident], in the true Pacific Island way and as a Samoan had readily agreed to forgive Mr Fanguna for what he has done to him. He has accepted the restorative justice aspect and the heartfelt apology that Nikola has indicated to him. Indeed, he has also made general comments that he wishes him luck and wishes him all the best. His only wish with regard to himself is some compensation with regard to the damage that has been caused to his property.

[6] I think Nikola, had it not been for that, I would have agreed with the Crown that an imprisonment sentence of between two and a half to three years would have been the final sentence. There are other matters, but as I have indicated, this Court and the law will take into account any restorative justice initiative which hopefully would have given you the opportunity to re-think your life. I am also hoping, given the words of your apology accepted by [the victim of the Wakelin Road incident] that you will take that into account in terms of your future, either with the gangs or personally.

[7] I am satisfied that given the correct credits of the combination of a reasonably early guilty plea and the restorative justice in which I have read the words used by [the victim of the Wakelin Road incident] in accepting the restorative justice and your apology, that that is sufficient to bring the final sentence in my judgment to two years or less. That attracts the matter of home detention and I refer to the report on your behalf and the report also has indicated that the appendix has stated that you are suitable with regard to the home detention sentence. I intend therefore to adopt the recommendation of the report.

[18] It is accepted that the Judge appears to have wrongly assumed that Mr Fanguna had undertaken a restorative justice process with all the victims whereas no such process had been undertaken in respect of the three victims of the Vine Street incident. The Judge also appears to have wrongly assumed that the probation officer had recommended home detention. She had not: she had recommended imprisonment. A home detention report was prepared for Mr Fanguna only after the Judge had asked for such reports: see above at [15].
[19] The Judge then imposed the sentence of 12 months home detention for all four charges, the sentences to be served concurrently. Special conditions applying to the home detention sentence included a requirement that Mr Fanguna undertake an alcohol and drug programme, psychological counselling if directed by the probation officer and that he abstain from using alcohol or drugs.

The Solicitor-General’s submissions

[20] Mr Chisnall submitted on behalf of the Solicitor-General that the Judge had not adopted a transparent and methodological approach to sentencing. In particular:

(a) He did not specify a starting point.

(b) He did not specify any aggravating or mitigating factors relating to the offending;

(d) He did not articulate how he arrived at the final sentence and, in particular, the extent of the discount allowed for the guilty plea, the restorative justice process undertaken and any other mitigating factors (which in this case included Mr Fanguna’s youth and his previous good character since he was treated as a first offender).

[21] We can only agree with the Solicitor-General’s criticism of the Judge’s approach to sentencing. It is vital that sentencing is approached in the systematic way mandated by this Court in R v Taueki [2005] 3 NZLR 372. It is important to do so for at least three reasons. First, the offender and the community are entitled to know the reasoning process by which the Judge arrives at a sentence. Secondly, the systematic approach required is designed to ensure that similar starting points and discounts for factors such as a guilty plea are adopted in similar cases in order to promote consistency in sentencing. Thirdly, the failure to articulate starting points and departures therefrom makes it very difficult for the appellate court to identify the weight the Judge regarded as appropriate for the various factors including the discount for a guilty plea and any other mitigating factors. In such cases, the Court is obliged to form its own assessment without the assistance of the view of the sentencing Judge.
[22] The sentencing in this case was further confused by the apparent discrepancy between the Crown submission that a final sentence should be three to four years imprisonment and the Judge’s statement that he “agreed with the Crown that an imprisonment sentence of between two and a half to three years would have been the final sentence” but for the restorative justice conference.
[23] Instead of adopting the Taueki approach to sentencing, the Judge simply mentioned a range of relevant factors, identified the end point if a term of imprisonment were imposed, and then opted for home detention.

Starting point

[24] In his written submissions, Mr Chisnall was inclined to accept that the Crown’s starting point as submitted at sentencing (five to six years imprisonment) was appropriate but in his oral submissions he submitted that the starting point should have been a little higher, at six to seven years imprisonment. He identified the aggravating factors as the use of gratuitous and unprovoked violence; the group nature of the incidents (especially the second); the bringing of weapons to the scene and the use of them by members of the group; the gang context; and kicking and punching the head of the victims of the second incident. He accepted that the victims of the second incident had not sustained any permanent ill-effects but pointed to the seriousness of the consequences for the victim of the Wakelin Road incident.
[25] We agree with Mr Chisnall that, at least in the present context, fine distinctions between the roles played by each member of a group attack, such as that involved in the Vine Street incident, are largely immaterial. Mr Fanguna must be associated in terms of culpability with the acts of all members of the group involved in the Vine Street incident even if he did not himself use a weapon. In respect of the Vine Street incident, Mr Fanguna was solely responsible for the attack on the victim by the throwing of the bottle.
[26] Both counsel referred us to the guidelines in the tariff case of Taueki and to other cases decided under s 188(1) Crimes Act. Counsel recognised that the present case involved offences carrying lesser penalties and submitted that some adaptation of the Taueki guidelines was necessary in order to recognise the maximum penalty of seven years under s 188(2) compared with the 14 year maximum under s 188(1).
[27] Adaptation of the Taueki sentencing bands is not appropriate in cases under s 188(2) or in others which involve less serious forms of violence. Mr Chisnall referred us in this regard to the recent decision of this Court in R v Brown [2009] NZCA 288. This Court discussed the difficulties inherent in adapting the Taueki case to other, less serious, forms of violence at [14] to [16], concluding at [17]:

For these reasons, we do not consider it appropriate to assess the starting point in this case by an adaptation, by analogy, of adjusted Taueki bands. It is better, in considering the starting point for the offending, to have regard to decisions of this Court in cases which involve violence which is, broadly speaking, of a similar level of seriousness to that in this case.

[28] The Court in Brown was dealing with a charge of wounding with reckless disregard under s 188(2) in relation to an assault on a 14 month old child who was punched at least twice in the head by the appellant. The sentencing Judge had adopted a starting point of five years. This Court reduced that starting point to three and a half years.
[29] There are several other recent cases under s 188(2) where similar starting points have been adopted: R v Scott [2007] NZCA 589 (two to two and a half years); R v Morrison [2007] NZCA 78 (three years six months) and R v Simmonds CA266/02 30 October 2002 (four years).
[30] In due course, the permanent court may provide guidance in a tariff judgment for cases of violence under s 188(2) and for other violent offences less serious than those under s 188(2). However, for present purposes, we consider that an appropriate starting point for the offending in the Vine Street incident was three years imprisonment with an uplift of 18 months for Mr Fanguna’s involvement in the Wakelin Road incident. This would result in a starting point of four and a half years. There are no aggravating or mitigating factors relating to the offending which would suggest any adjustment is required to the starting point.

Personal factors relating to the respondent

[31] There being no aggravating factors relating to Mr Fanguna personally, we consider the appropriate reduction in the starting point for personal mitigating factors. Mr Chisnall accepted that a reduction of 30 per cent to take into account Mr Fanguna’s youth, previous good character and successful participation in the restorative justice conference involving the victim of the Wakelin Road incident was appropriate. The restorative justice conference was a factor which weighed heavily with the Judge. The conference was initiated by Mr Fanguna whose apology to the victim was accepted “in the true Pacific Island way”. Both Mr Fanguna and the victim were Samoan. The victim did not wish to see Mr Fanguna go to prison and noted that he had disassociated himself from the gang of which he had been part. It was recommended by the convenor of the conference that Mr Fanguna attend a drug and alcohol programme as well as an anger management course given his acknowledgement that alcohol had played a part in his offending. As noted, the programmes recommended were included as special conditions of the home detention sentence imposed on the respondent.
[32] The Court is obliged to take into account the outcome of any restorative justice process in terms of ss 8(j), 9(2)(f) and 10 Sentencing Act 2002. Here, where the apology was accepted by the victim as expiating or mitigating the wrong, the Court was obliged to give some weight to that factor under s 10(2). As noted by the author of Hall’s Sentencing (looseleaf ed) at [SA10.2], s 10 “was intended to accommodate the customary practices of different ethnic groups, in particular to afford an opportunity for an offender and family to make atonement in a culturally appropriate way for the offence committed”.
[33] This Court has recognised customary reconciliation practices in cases such as R v Maposua CA131/04 3 September 2004, R v Fanolua CA239/00 25 October 2000 and R v Buttar [2008] NZCA 28. However, as this Court said in Buttar:

[27] While recognising the benefits associated with the restorative justice process, the Sentencing Act requires a firm response from the Court to incidents of serious violence, particularly those involving the use of weapons. In such circumstances, as the Judge recognised, the Court cannot lose sight of the significance of the statutory purposes of denunciation and deterrence.

[34] A reduction of 30 per cent from the starting point of four and a half years would reduce the sentence to three years two months. However, allowance must then be made for the guilty plea. Mr Chisnall acknowledged that, although the pleas of guilty came only on the day of the trial (which would ordinarily attract a discount of around 10 per cent), Mr Fanguna had indicated through counsel around the time of depositions that a guilty plea would be considered if the Crown were willing to reduce the seriousness of the charges.
[35] For various reasons we need not set out (but for which Mr Fanguna was not responsible), discussions did not proceed further until the week before the trial. On the morning the trial was due to commence, Mr Fanguna (and the co-accused) advised the Crown they would plead guilty to an amended indictment which reduced the severity of the charges. The Crown then filed the amended indictment as discussed the previous week and guilty pleas were entered.
[36] In those circumstances, the Crown, correctly in our view, acknowledged that a discount of 20 per cent for the guilty pleas was appropriate. This would amount to a further reduction of around seven months to arrive at a final sentence of two years seven months.
[37] Mr Brosnahan submitted that other factors such as the delay in the sentencing could be given some weight but we are not persuaded that any allowance should be made in that respect. Nor should any allowance be made for the remand on restrictive bail terms in the six month period while the respondent was awaiting sentence.
[38] We conclude that a final sentence in the range of two to three years imprisonment would have been appropriate for this offender, recognising the aggravating factors identified by the Crown. Despite his youth, this was serious offending in a gang context, it involved the use of weapons by members of the group and resulted in significant injury to four victims, one of them suffering serious injury.

Home detention

[39] Mr Fanguna and the other respondents were transitional offenders under s 57 Sentencing Amendment Act 2007 considered by this Court in R v Hill [2008] 2 NZLR 381. Mr Fanguna would not therefore be bound by the jurisdictional fetter in s 15A Sentencing Act. Nevertheless a sentencing Court must keep in mind the general legislative intention behind the sentence of home detention and Parliament’s restriction of the availability of that sentence to those whose nominal term of imprisonment does not exceed two years: R v Maikuku [2008] NZCA 552.
[40] Mr Chisnall noted that the Judge did not give any reasons for concluding that home detention was appropriate in Mr Fanguna’s case despite the Crown’s opposition to such a sentence. When imposing a sentence of home detention, it is imperative that judges give reasons for doing so, including explicit recognition of the statutory considerations. One can surmise that the Judge must have seen rehabilitative prospects for Mr Fanguna given his youth, his previous good character, his acceptance of responsibility by his guilty pleas and the process of restorative justice successfully undertaken in respect of the victim of the Wakelin Road incident.
[41] However, the Judge was also obliged to take into account the other purposes of sentencing, including denunciation and deterrence (both personal and general). The protection of the community from violent offenders such as Mr Fanguna was also a relevant consideration. The pre-sentence report recommended imprisonment. The probation officer assessed Mr Fanguna’s risk of re-offending as medium, noting that he displayed minimal insight into the harm gangs can cause to communities and “his propensity for violence”. The probation officer also recorded Mr Fanguna’s claims that the victims in the Vine Street incident had initiated the trouble with the implication that what happened to them was their responsibility. This inclination to blame the victims did not suggest remorse or a willingness to accept responsibility for his actions.
[42] In our judgment, this was not a suitable case for a sentence of home detention. The appropriate sentence was closer to three years than two years and, despite the fact that Mr Fanguna had not previously been imprisoned, the nature and gravity of the offending was such that a deterrent sentence was called for.

How should the Solicitor-General’s application be resolved?

[43] We are satisfied that leave to appeal should be granted to the Solicitor-General and it is granted accordingly. The more difficult question is how to dispose of the appeal given our conclusion that home detention was not appropriate and that a sentence in the range of two to three years was justified. Given that this is a Solicitor-General’s appeal, a sentence at the lower end of the range would ordinarily be appropriate. That would suggest a prison sentence of two years. Allowance would have to be made for the period of home detention already served by Mr Fanguna of approximately five months of the total of 12 months.
[44] We have decided not to impose a sentence of imprisonment for two main reasons. First, Mr Fanguna has served nearly half of his sentence of home detention and to impose a custodial sentence on him at this stage would impact upon him more severely than if it had been imposed from the outset. Secondly, while there is a case for differentiating Mr Fanguna from his co-accused on the basis that he was involved in the violence visited upon the victims in both incidents, to make that distinction now could give rise to a perception of injustice when the sentences of home detention received by his co-offenders are to remain undisturbed.
[45] On the other hand, given our conclusions as to what the appropriate sentence should have been if imposed at the outset, some additional penalty is called for. In the circumstances, we impose a sentence of 200 hours community work in addition to the existing sentences of home detention and reparation.

Breach of home detention

[46] During the hearing of the appeal we were told that Mr Fanguna is alleged to have removed his electronic bracelet and absconded from the home detention address for a period of eight days from 30 May 2009 to 8 June 2009 before voluntarily contacting a probation officer. Counsel provided after the hearing a copy of an application by a probation officer under s 80F Sentencing Act for cancellation of the sentence of home detention and substitution of a sentence of imprisonment. Under s 80F(4)(d) the Court has the power to substitute a sentence of imprisonment with respect to the offences for which the sentence of home detention was imposed.
[47] It would not be right to take this alleged breach into account for the purpose of this appeal since it has not yet been proved and is to be before the District Court again on Friday 24 July 2009. But it would be open for the District Court to take into account the views expressed in this judgment if it sees fit when considering the alleged breach.
[48] Mr Fanguna should understand that he has escaped a sentence of imprisonment on this appeal by a very narrow margin and he should not expect further indulgences from the Court if he re-offends.

Reparation

[49] Mr Bosnahan has advised since the hearing that payment of reparation has not commenced. His inquiries show that the order to pay reparation appears not to have been entered into the Collections’ system and his instructions are that Mr Fanguna has not been approached. This should be followed up by Mr Fanguna and the Crown.

Result

[50] The application for leave to appeal is granted. The appeal in relation to Mr Fanguna is allowed in part by the addition of a sentence of 200 hours community work. Mr Fanguna is reminded of his obligation under s 59(2) Sentencing Act to report to a probation officer within 72 hours from the date of this judgment, unless the probation officer responsible for monitoring Mr Fanguna’s home detention sooner contacts him.

Solicitors:
Crown Law Office, Wellington

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