Walker-Dahlberg v R [2020] NZCA 661 (18 December 2020)

Last Updated: 23 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA413/2020 [2020] NZCA 661

	BETWEEN	TIANA MAREE WALKER-DAHLBERG Appellant
	AND	THE QUEEN Respondent

Hearing:	4 November 2020
Court:	Clifford, Woolford and Mander JJ
Counsel:	N Levy QC for Appellant K S Grau for Respondent
Judgment:	18 December 2020 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of three years’ imprisonment is quashed and replaced with a sentence of two years and four months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

• [1] Tiana Maree Walker-Dahlberg pleaded guilty as a party to a charge of aggravated burglary. On 3 July 2020, she was sentenced to three years’ imprisonment.^[1] She now appeals against sentence as being manifestly excessive.

Factual background

• [2] The principal offender was the appellant’s partner, Rex Ji Terangi Daley. Mr Daley is a member of the Nomads gang. On 2 December 2018, Mr Daley and the appellant were driven on two occasions by a third person, Aaron Takamore, another Nomads gang member, to an address in Masterton. They went there for the express purpose of confronting and threatening D-Jae Rhodes, a relative of the appellant’s former partner. The appellant’s former partner is a member of the Black Power gang. There had been some sort of altercation between the appellant and Mr Rhodes earlier that day.
• [3] Mr Daley was about six months out of a 13 year prison sentence and in the grip of a methamphetamine addiction and escalating mental illness.
• [4] At approximately 7.30 pm, Mr Daley, the appellant and Mr Takamore, together with associates in two other cars, arrived at Mr Rhodes’ address. All three vehicles tooted their horns. Mr Rhodes walked outside and saw Mr Daley, the appellant and Mr Takamore along with their associates parked on the street, in front of the address. Mr Rhodes then challenged Mr Daley to a fight on the front lawn. Mr Rhodes saw that Mr Daley was holding something, which he assumed was a bat. He saw Mr Daley tapping it against the front windscreen of the car in which he was seated. Mr Daley was however armed not with a bat, but with a sawn-off shotgun and a number of rounds of ammunition. Mr Daley yelled out to Mr Rhodes “I’m going to kill you motherfucker”, before the three cars drove away.
• [5] At about 9.00 pm, Mr Rhodes and other family members were standing outside, at the front of the address. They believed that Mr Daley, the appellant and Mr Takamore could return to the address for the purpose of a further altercation. They were looking out for the three cars. At that time, it was getting dark. Mr Rhodes saw a car appear on the street, park some distance away from the address and turn its lights off. Mr Daley, the appellant and Mr Takamore were in the car. They covered their faces with bandanas. Mr Daley got out of the car with the shotgun and began to walk towards Mr Rhodes and his family members. As Mr Daley got closer to the address, Mr Rhodes could see he was carrying something in his left hand. Again, assuming it was a bat, Mr Rhodes walked out on to the street and challenged Mr Daley to a fight. Mr Daley continued to walk towards Mr Rhodes and as he got within a few metres he raised the shotgun and closed the barrel, loading the shotgun into an active state.
• [6] Mr Rhodes recognised the distinctive sound of a shotgun being activated. He immediately ran back inside the yard of the address and tried to hide behind vehicles that were parked in the driveway. Mr Daley entered the enclosed yard. He stalked Mr Rhodes and then tried to point the shotgun directly at him while yelling, “I’m going to kill you motherfucker”. In the process, Mr Daley also pointed the shotgun at other family members, who all feared for their immediate safety. Mr Rhodes continued to evade Mr Daley by placing objects between himself and Mr Daley.
• [7] Meanwhile, Mr Takamore drove the car, in which he and the appellant were seated, closer to the address. He parked on the opposite side of the road to the address. The appellant got out of the car and began to yell abuse at Mr Rhodes and his family members. Mr Rhodes’ partner, Jamie Nepia, and two other women at the address heard her abuse and ran towards the appellant, who retreated and got back into the front passenger seat of the car, locking the door as she did so. Ms Nepia and the two other women began to bang on the window of the car. Mr Daley saw what was happening and ran back to the car while still carrying the loaded shotgun. When he got to the car, he used the butt of the shotgun to hit out at one of the women. Ms Nepia tried to defend the other woman from being hit further and while doing so, Mr Daley turned and pointed the shotgun at her. While standing in close proximity to Ms Nepia, he fired the shotgun once at her, causing a round of ammunition to penetrate her left thigh. Ms Nepia immediately dropped to the ground and began to bleed profusely from her wound.
• [8] Mr Takamore immediately reacted and drove the car a few metres away before realising he had left Mr Daley behind. He stopped the car and then reversed it in the direction of Mr Daley. While doing so, he struck Ms Nepia and another associate who was attending to her while she lay on the roadside, causing minor injuries to both. Mr Daley got back into the rear of the car and the three offenders — Mr Daley, the appellant and Mr Takamore — fled the scene. As they drove from the scene, Mr Daley pointed the shotgun out of the rear passenger window and fired another round in the direction of where people were standing at the front of the address. The pellets struck a bedroom window of the house, causing it to shatter as well as lodging in the external weatherboards. A family member was present in the bedroom when its window was shattered. The persons at the address feared for their safety and took cover to ensure they did not get hit by any further shots.
• [9] Ms Nepia sustained a life-threatening wound to her left thigh. She was hospitalised for several months. Her left leg was amputated from above the knee. She continues to require medical treatment. The impact on her has been devastating.

Charges

• [10] Mr Daley, Ms Walker-Dahlberg and Mr Takamore all faced several charges as a result of the incident, including causing grievous bodily harm with intent to cause grievous bodily harm, aggravated burglary, burglary and discharging a firearm with intent to do grievous bodily harm.^[2] All sought sentence indications on the basis they would plead guilty to burglary or aggravated burglary charges — and an additional violence and firearms charge in the case of Mr Daley — with the Crown withdrawing the others. Mr Takamore was dealt with first.
• [11] Mr Takamore sought a sentence indication in respect of a charge of being a party to aggravated burglary.^[3] In a sentence indication on 14 March 2019, Thomas J adopted a notional starting point of five years’ imprisonment as regards Mr Daley’s aggravated burglary offending, which she discounted in Mr Takamore’s case by one year to recognise his lesser participation, with a further discount of 25 per cent for a guilty plea.^[4] The end sentence indicated by Thomas J was therefore one of three years’ imprisonment. The indication, however, made no allowance for any relevant factors which might be identified in the pre‑sentence report or other material made available on sentencing. Mr Takamore accepted that indication and pleaded guilty to the charge of aggravated burglary on 21 March 2019. The other charges were withdrawn. On 13 September 2019, Thomas J sentenced Mr Takamore to 12 months’ home detention.^[5] Apart from the indicated guilty plea discount of 25 per cent, Thomas J granted Mr Takamore a further discount of 25 per cent for remorse and his life of hardship and disadvantage as set out in a cultural report. That brought the end sentence down to two years’ imprisonment, which was then commuted to home detention.
• [12] Ms Walker-Dahlberg’s sentence indication was given by Simon France J on 2 May 2019 in respect of two charges: one of aggravated burglary and one of burglary.^[6] The Judge indicated a starting point of four years and six months on the aggravated burglary charge,^[7] uplifted by six months for the simple burglary charge. A discount of 25 per cent was indicated for a guilty plea, with the possibility of additional discounts for personal mitigating factors left open. Ms Walker‑Dahlberg declined that indication.
• [13] Mr Daley’s sentence indication was given by Ellis J on 13 December 2019 on the basis he would plead guilty to one charge of aggravated burglary, one of causing grievous bodily harm with intent to cause grievous bodily harm^[8] and one charge of discharging a firearm with reckless disregard for the safety of others.^[9] Taking the grievous bodily harm charge as the lead offence, and allowing for an uplift to reflect the other two charges and Mr Daley’s prior convictions, the Judge indicated a starting point of 13 years’ imprisonment, with a discount of 3 years for a guilty plea. A 50 per cent minimum period of imprisonment (MPI) would be imposed.
• [14] Mr Daley accepted that sentence indication and pleaded guilty on 19 December 2019. On the same day Ms Walker‑Dahlberg — without having received a further indication — pleaded guilty to just one charge of aggravated burglary. All other charges were withdrawn by the Crown.
• [15] Mr Daley and Ms Walker‑Dahlberg were both sentenced on 3 July 2020 by Ellis J.^[10] Turning first to Mr Daley, the Judge was in receipt of a psychiatric report which she considered was of some significance. The matters canvassed in the report, including Mr Daley’s disturbing and traumatic childhood, prompted the Judge to allow a further 15 per cent discount for remorse and personal factors, leading to a final sentence of eight and a half years’ imprisonment on the lead charge of causing grievous bodily harm with intent. Lesser concurrent sentences were imposed on the other charges, including — consistent with Thomas J’s original starting point — five years on the charge of aggravated burglary. No MPI was ordered.
• [16] The Judge summarised the appellant’s position as follows:^[11]

As I said earlier you are being sentenced on one count of aggravated burglary for which the maximum penalty is 14 years’ imprisonment. The burglary here was Mr Daley entering into an enclosed yard with the intention of threatening or committing violence. What makes it aggravated is the fact that he had a loaded sawn-off shotgun with him. You are liable as a party because you helped or encouraged Mr Daley to do that.

• [17] As to the starting point, the Judge identified five factors which added to the seriousness of the charge:^[12]

(a) First, there was a degree of planning and preparation because of the build-up of tensions earlier that day. The Judge considered that the appellant had played a central role in the build-up of tensions; indeed, it was she who told Mr Daley about them, spurring him to action.

(b) Secondly, there was the fact that there were three offenders, even though it was only Mr Daley who actually entered the enclosed yard.

(c) Thirdly, each of the three offenders attempted to disguise their appearance through the use of bandanas.

(d) Fourthly, the aggravated burglary involved both verbal threats of violence and physical threats of violence, when Mr Daley raised and activated the shotgun within a few metres of Mr Rhodes and pointed it at other family members.

(e) Fifthly, the burglary happened at night, although the Judge did acknowledge that at 9.00 pm in December, it may well not have been completely dark.

• [18] The Judge applied the starting point of five years considered appropriate by Thomas J for the principal offender, Mr Daley, when sentencing Mr Takamore on the same aggravated burglary charge. However, the Judge was of the view that the appellant should not receive the same one year reduction as Mr Takamore because she considered her involvement in the offending was greater than his. The Judge therefore agreed with Simon France J that a starting point of four and a half years’ imprisonment was appropriate for the aggravated burglary offending.^[13] The Judge thought that a discount of 20 per cent was also appropriate for the guilty plea. In the end, the Judge deducted 18 months from the starting point of four and a half years’ imprisonment for a combination of the appellant’s guilty plea, remorse and time spent on restrictive bail.^[14] This amounted to a total discount of 33 per cent. The end sentence imposed upon the appellant was therefore three years’ imprisonment, which was not able to be commuted to a sentence of home detention, being a sentence of more than two years’ imprisonment.

Appellant’s submissions

• [19] Counsel submits that the maximum penalty and normal sentencing levels for aggravated burglary are of limited significance in this case.
• [20] Burglary is entering a building (which by extended definition includes an enclosed yard) with intent to commit an imprisonable offence.^[15] Aggravated burglary is having or using a weapon while committing burglary.^[16] Counsel submits that the criminal culpability intended to be captured by the offence of burglary is intrusion into private and conceptually safe space. Counsel submits that, in this case, the whole interface between the two groups was public and intended to be so. Earlier, Mr Rhodes had invited Mr Daley to fight on the property.
• [21] Counsel submits that the appellant’s culpable criminal conduct was in abetting (by supporting) Mr Daley in confronting Mr Rhodes and his family members with a weapon. She knew that Mr Daley had a weapon. She travelled with him to confront Mr Rhodes. It was, however, implicit in the withdrawal of the more serious charge of being a party to causing grievous bodily harm with intent to cause grievous bodily harm, that the appellant did not intend that anyone be shot or know that to be a probable consequence of the prosecution of the common purpose. By her guilty plea to aggravated burglary, counsel submits the appellant simply admitted knowledge that Mr Daley might enter the enclosed yard with intent to threaten Mr Rhodes with a weapon. The burglary element of the offending was incidental and unimportant to the appellant’s culpability. From her perspective, and that of Mr Rhodes, Mr Daley’s threatening behaviour with a weapon was as criminal and culpable before he stepped into the yard as it was after. However, the effect of him stepping into the yard was to alter the charge to which she was a party from assault with a weapon,^[17] or threatening to kill,^[18] to aggravated burglary.^[19]
• [22] Counsel accepts that the discount for the appellant’s guilty plea, remorse and time spent on restrictive bail is obviously appropriate, but a discount for her personal circumstances was also required to reflect her vulnerability and the significant ongoing effects of the incident on her, including post-traumatic stress disorder (PTSD). In this regard, counsel pointed to a cultural report written by a friend of the appellant.
• [23] Counsel also submits that she received a much more significant sentence than Mr Takamore. From the appellant’s perspective, the end result of the sentencing exercise is that a person, such as Mr Takamore, more involved in the offending, better able to exercise his own will in deciding whether to be a part of it, and with a relevant criminal history for violent offending and burglary, received a significantly more lenient sentence than her. Counsel submits that this obvious disparity in the outcome is relevant to a consideration of the overall sentence imposed on the appellant.

Discussion

Starting point

• [24] Although there is no tariff case for aggravated burglary, the Judge noted that the principles in the tariff case for aggravated robbery, R v Mako,^[20] could apply equally to aggravated burglary.^[21] The Judge therefore referred to factors mentioned in Mako as adding to the seriousness of the present case. She listed five factors, which we set out at [17] above.
• [25] First, as to planning and premeditation, the Court of Appeal in Mako stated:^[22]

[36] The degree of planning and preparation will reflect criminality. Detailed activity over a sustained period indicating care and sophistication in organisation are hallmarks of serious criminals, particularly criminal organisations. Such conduct is plainly to be regarded more seriously than less premeditated or spontaneous exploits.

• [26] We are of the view that, in the circumstances of this case, there was no detailed activity over a sustained period indicating care and sophistication in organisation. The events in question did not reflect any real planning or preparation apart from the fact that Mr Daley armed himself with a shotgun and ammunition before they went looking for Mr Rhodes.
• [27] Secondly, as to the number of participants, the Court in Mako also stated:

[37] The number of participants and their deployment similarly may reflect more sophisticated or organised activity and may increase the degree of intimidation and fear engendered among victims.

• [28] In the present case there were three participants, but we are of the view that the actions of the appellant and Mr Takamore did not increase the degree of intimidation and fear to any great degree. Although the appellant got out of the car and yelled abuse, she was not armed and was not a principal offender. Mr Takamore did not get out of the car.
• [29] Thirdly, in Mako, the Court of Appeal also stated that disguises and other means of concealing identity and facilitating flight generally suggest premeditation and planning.^[23] In the present case, Mr Daley, the appellant and Mr Takamore were known to Mr Rhodes and the fact that they may have covered their faces with bandanas cannot be seen to be a disguise or a means of concealing identity and facilitating flight. The bandanas were obviously used to signify their gang affiliation and an attempt to intimidate Mr Rhodes.
• [30] Fourthly, the Court in Mako also referred to weapons used as follows:

[39] The number and types of weapons and how they are brandished will bear upon the level of culpability. It is not to be assumed necessarily that the more potentially lethal the weapon the more serious the offence, although there will be greater danger of harm to a greater number of people where a loaded firearm is presented. ...

• [31] In the present case, we agree the use of a loaded sawn-off shotgun was a serious aggravating factor.
• [32] Fifthly, the Judge herself acknowledged that at 9.00 pm in December it may well not have been completely dark. This factor is, in our view, not significantly aggravating as the three offenders had been present at the address an hour and a half earlier, and Mr Rhodes and his family members were expecting them to return.
• [33] Notwithstanding the Judge’s adoption of factors set out in Mako, which — as Ms Levy QC submitted — may not have been entirely apposite in this case given the unique circumstances, we are of the view that the starting point of five years’ imprisonment was nevertheless available to the Judge for the principal offender. The Crown criticises the submission of counsel for the appellant that her sentence should be assessed by reference to charges that she did not face (of assault with a weapon or threatening to kill). There is, however, no tariff for threatening to kill, but it does carry a maximum sentence of seven years’ imprisonment. Section 8(d) of the Sentencing Act 2002 provides that a court must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
• [34] If Mr Daley had been charged with threatening to kill rather than aggravated burglary, it had to be “near the most serious of cases” in terms of s 8(d), in respect of which a court must impose a penalty near to the maximum sentence of seven years’ imprisonment. To be chased around your own address by a methamphetamine-addicted and mentally unwell patched gang member pointing a loaded sawn-off shotgun at you while shouting he was going to kill you would have been absolutely terrifying. The threat posed was also very real indeed as confirmed by Mr Daley shooting Ms Nepia a few minutes later.
• [35] Mr Daley’s irrationality and unpredictably was such that the Crown accepted that he went beyond any common purpose in shooting Ms Nepia. The Crown explains that is why it withdrew charges against the appellant and Mr Takamore of being parties to the shooting of Ms Nepia. It was, however, anticipated by the appellant and Mr Takamore that Mr Daley would present the loaded shotgun at Mr Rhodes and threaten him.
• [36] What then of any reduction for the appellant to reflect her lesser culpability? The notional starting point of five years was, in the case of Mr Takamore, reduced by one year to reflect the fact that, although he drove Mr Daley to and from the scene knowing that he would present the loaded sawn-off shotgun at Mr Rhodes and threaten him, he did not get out of the car to take part in the confrontation or back Mr Daley up.
• [37] In Mr Takamore’s case, counsel for the Crown had submitted that the starting point of five years’ imprisonment should be reduced by two years to recognise that he was caught up in a heated family dispute, which escalated quickly and violently.^[24] The Judge did not, however, accept that a discount of two years was appropriate. She cited the Court of Appeal’s comments in Mako that a getaway driver should not be treated as less culpable than those confronting the victims of an aggravated robbery unless they were truly less than full participants.^[25] The Judge nonetheless discounted the starting point of five years by one year to arrive at a starting point of four years’ imprisonment in the case of Mr Takamore.^[26]
• [38] We are, however, of the view that the analogy of a getaway driver in an aggravated robbery is, again, not entirely apposite. Flight from the scene was not an integral part of the planning and premeditation. It was a spontaneous reaction to the shooting. As such, it was open to the sentencing Judge to discount the starting point for Mr Takamore by two years as submitted by the Crown.
• [39] Counsel for the appellant submits that she is less culpable than Mr Takamore rather than more culpable. She did, however, encourage Mr Daley to confront and threaten Mr Rhodes. She also got out of the car when it was parked across the road and yelled abuse at Mr Rhodes and his family. Unlike Mr Takamore, her encouragement was public and led Ms Nepia and two other women to come across the road to confront her. This then led almost immediately to the shooting of Ms Nepia.
• [40] Both Simon France J (in the sentence indication dated 2 May 2019) and Ellis J (in sentencing the appellant on 3 July 2020) considered that her role was somewhat greater than Mr Takamore. We cannot say that assessment is wrong. One cannot divorce the shooting of Ms Nepia from the actions of the appellant. Ms Nepia was at the car confronting the appellant because of what the appellant had done in abusing Mr Rhodes and his family members (which amounted in law to active encouragement of Mr Daley to commit the offence of aggravated burglary).
• [41] We are, therefore, of the view that the appellant’s culpability is appropriately placed between her partner, as principal offender, and Mr Takamore, as the driver of the car. However, because of the Judge’s adoption of factors set out in Mako, which may not have been entirely apposite and the Crown’s submission that a discount of two years on the starting point for Mr Takamore was appropriate, we think a discount of one year and six months should be accorded to the appellant rather than six months as granted by the Judge, which results in a starting point of three years and six months’ imprisonment rather than four years and six months’ imprisonment. This reflects the much greater culpability of her partner, Mr Daley.

Personal factors

• [42] The Judge had before her a cultural report by a friend of the appellant and a report prepared by a clinical psychologist. The friend reported the appellant grew up in the Pākehā world and was in her late teens before she came to recognise her Māori heritage. She has always had a strained and turbulent relationship with her mother, but has very close bond with her father.
• [43] The appellant “began to go off the rails” at age 15. She became rebellious and left school. She met her oldest children’s father, who was abusive both physically and mentally. She signed custody rights to her two oldest children over to her parents to keep them safe from their father. After years of abuse, she finally left him. The appellant began self-medicating with alcohol, which led down the path to the use of methamphetamine.
• [44] The report writer opines that the appellant’s fear of rejection caused her to stay in abusive relationships longer than needed. Although not raised in a violent or gang world, she became lost in such a world, where a woman’s opinion holds no value or strength.
• [45] The appellant is, however, actively trying to right her mistakes and get out the situation “she was simply collateral damage in”. She now has sole custody of her youngest, third son and is looking forward to the day she can be reunited with him.
• [46] The Judge also had before her a psychological report which described symptoms of PTSD relating to the shooting of Ms Nepia and also traumatic events when she was a teenager.
• [47] After recounting all the reports and other material available, the Judge said:^[27]

[37] I have to say, Ms Walker-Dahlberg, the question of what we call personal mitigating factors is a difficult one in your case. Unlike Mr [Daley], for example—where it is not difficult to see how his childhood, his more recent past and his mental health issues have led him to where he is today—quite how you have ended up here is much less clear to me. I acknowledge that you have suffered some traumatic life events which have diminished your coping ability and which you need help to address and resolve without turning to drugs and alcohol. I also acknowledge, again, that you still have real potential to make something of your life and that you wish to do so. But there is very little in the way of your personal circumstances that could justify a significant reduction in sentence today. I am, though, prepared to accept that you have recently exhibited signs of remorse, even though, I have to say, they have been a long time coming.

• [48] Like the Judge, we are of the view that Ms Walker-Dahlberg’s psychological and cultural reports provide relatively limited assistance in understanding how she ended up in her present position. In contrast with the reports the Judge had before her concerning Mr Daley — whose psychiatric report disclosed a childhood marred by appalling violence and serious mental illness in adulthood — the factors discussed in Ms Walker-Dahlberg’s reports recorded a more benign upbringing up till the point when, as Ms Walker‑Dahlberg’s friend described it, she went off the rails.
• [49] However, Ms Walker‑Dahlberg herself demonstrated an understanding of what had happened. As she put it in her letter of remorse tendered to the Court, she took responsibility for her own choices and actions. She stated:

I have now come to realise that it is my own choices in life that have led me to where I now stand. The choice I made in my then partner, my associations, the company I kept, as well as the lifestyle my then relationship had me in were the worst choices I have ever made. Choices that have cost me dearly, choices I wholeheartedly regret. I now have to live with them, along with their consequences. However, I only have myself to blame. I stand here today, and I take full responsibility, for these choices. This is a lesson learnt, one that will never have to be learnt ever again.

• [50] Her psychologist’s report contains the following comments:

Ms Walker‑Dahlberg said she was born and raised in Masterton with her brother. She described a benign childhood and she said she was not aware of any problems in her early years and she achieved normal milestones throughout infancy and early childhood. She denied there was any serious conflict between her parents and described generally appropriate discipline and boundaries in a supportive home. She said her parents instilled positive values such as loyalty, respect and good manners.

However, Ms Walker‑Dahlberg speculated that her stable upbringing meant that she was sheltered from the negative aspects of gang life and sought excitement in her early teen years leading to a self-destructive pattern of engagement with gang members who promoted substance abuse, disengagement from her family and anti-social behaviour including violence.

• [51] In our view, and against that background, the Judge gave appropriate recognition for Ms Walker‑Dahlberg’s personal circumstances in allowing a 13 per cent discount in addition to the discount of 20 per cent for her guilty plea.

Parity

• [52] Although Mr Takamore was originally sentenced to a term of 12 months’ home detention for his role in the aggravated burglary, an application was later made by the Department of Corrections for his re-sentence after he left the home detention address without consent. After being sentenced on 13 September 2019 and serving four months (or a third) of the sentence of home detention, Mr Takamore was remanded in custody on 19 January 2020. After being in custody for two months, the Department’s application was dismissed with the effect that Mr Takamore’s sentence of home detention continued to run.^[28]
• [53] After another seven weeks serving the sentence of home detention, Mr Takamore was removed from the home address at the request of the occupant and remanded in custody on 8 May 2020. After being in custody for another month, the sentencing Court cancelled the sentence of home detention on 12 June 2020 and re‑sentenced Mr Takamore to one year, three months and two weeks’ imprisonment.^[29] In doing so, it recognised that Mr Takamore had completed half his nominal end sentence of two years’ imprisonment (before it was commuted to 12 months’ home detention).
• [54] Parity has to be assessed by a comparison, not of the end sentence, but of the starting points for the offending. In the present case, there was only six months’ difference between the starting point adopted for the appellant and Mr Takamore, which we regard as appropriate given their respective roles in the offending. There is no issue of parity.

Result

• [55] The appeal is allowed.
• [56] The sentence of three years’ imprisonment is quashed and replaced with a sentence of two years and four months’ imprisonment, being a starting point of three years and six months’ imprisonment discounted by 33 per cent for guilty plea, remorse and time spent on restrictive bail.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Walker-Dahlberg [2020] NZHC 1562 [Sentencing notes].

^[2] Several of these replaced charges of attempted murder initially laid by the Police.

^[3] Mr Daley’s entry into the enclosed yard at Mr Rhodes’ address with a loaded sawn-off shotgun with an intent to commit an imprisonable offence therein.

^[4] R v Takamore HC Wellington CRI-2018-035-1361, 14 March 2019 at [40]. The Crown had, at the indication, agreed with the defence Mr Takamore’s starting point should be three years, before any guilty plea or other discount.

^[5] R v Takamore [2019] NZHC 2315.

^[6] R v Walker-Dahlberg HC Wellington CRI-2018-035-13641, 2 May 2019 [Sentence indication]. The burglary charge related to a separate incident in which the appellant allegedly entered a different house while the occupiers were absent and caused damage.

^[7] To reach this figure, the Judge applied Thomas J’s notional starting point of five years and then subtracted six months to reflect Ms Walker-Dahlberg’s role, which he considered was less than Mr Daley’s but greater than Mr Takamore’s.

^[8] The shooting of Ms Nepia.

^[9] The discharge of the shotgun as the offenders left the scene: R v Daley HC Wellington CRI‑2018‑035-1361, 13 December 2019.

^[10] R v Daley [2020] NHZC 1560; and Sentencing notes, above n 1.

^[11] Sentencing notes, above n 1, at [24].

^[12] At [25].

^[13] At [27].

^[14] At [39].

^[15] Crimes Act 1961, s 231.

^[16] Section 232.

^[17] Section 202C. Maximum penalty of five years’ imprisonment.

^[18] Section 306. Maximum penalty of seven years’ imprisonment.

^[19] Section 232. Maximum penalty of 14 years’ imprisonment.

^[20] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

^[21] Sentencing notes, above n 1, at [25] n 1, citing R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15]; and Archbold v R [2015] NZCA 493 at [9].

^[22] R v Mako, above n 20.

^[23] At [38].

^[24] R v Takamore, above n 5, at [21].

^[25] At [25], citing R v Mako, above n 20, at [64].

^[26] At [27].

^[27] Sentencing notes, above n 1.

^[28] R v Takamore [2020] NZHC 574.

^[29] R v Takamore [2020] NZHC 1328.