Diaz v R [2021] NZCA 426 (1 September 2021)

Last Updated: 10 September 2021

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

CA139/2021 [2021] NZCA 426

	BETWEEN	ANTONIO PEDRO DIAZ Appellant
	AND	THE QUEEN Respondent

Hearing:	27 July 2021
Court:	Goddard, Thomas and Wylie JJ
Counsel:	D A Kemp and E P Priest for Appellant D B Stevens and H A M Watts for Respondent
Judgment:	1 September 2021 at 10.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of three years’ imprisonment imposed by the District Court is set aside.

100. A sentence of 5 months and 15 days’ home detention is substituted on the charge of causing grievous bodily harm with intent.

4. The sentence of home detention is to be served at 30 Tamworth Close, Manurewa, Auckland. The sentence is subject to the standard conditions set out in s 80C(2) of the Sentencing Act 2002 and the following special conditions imposed under s 80D:

(a) Mr Diaz must travel directly from prison to the home detention address and must remain at that address to be met by a Field Officer.

(b) Mr Diaz must not consume or possess alcohol or illicit drugs for the duration of the sentence.

(c) Mr Diaz must undertake and complete appropriate treatment/counselling to the satisfaction of the Probation Officer and treatment provider. The details of the treatment or counselling are to be determined by the Probation Officer.

(d) Mr Diaz must undertake and complete an appropriate departmental, cultural, or other programme, to the satisfaction of the Probation Officer and programme facilitator, if a suitable programme is available. The details of the programme and suitability are to be determined by the Probation Officer.

(e) Mr Diaz must not contact or associate with the victim or co‑offenders, either directly or indirectly, without the prior written approval of a Probation Officer.

5. On the charge of injuring with intent to injure, Mr Diaz is convicted and discharged.

____________________________________________________________________

REASONS

REASONS OF THOMAS AND WYLIE JJ

(Given by Wylie J)


Table of Contents

Para No

Introduction

• [1] On 25 February 2021, the appellant, Antonio Diaz, was sentenced to three years’ imprisonment by Judge Wharepouri in the District Court at Manukau on the following charges:^[1]

(a) causing grievous bodily harm with intent to cause grievous bodily harm;^[2] and

(b) injuring with intent to injure.^[3]

• [2] Mr Diaz was found guilty of causing grievous bodily harm with intent at trial together with two co-defendants — his uncle, Juan Diaz, and his brother, Peter Diaz. The charge of injuring with intent arose out of an unrelated domestic incident. Mr Diaz entered a guilty plea to this charge.
• [3] Mr Diaz appeals his sentence. He says that there has been an error in the sentence imposed because the starting point adopted by the Judge was too high and the Judge did not allow sufficient discount for his personal circumstances. He argues that the end sentence should have been a short term of imprisonment and that the Judge should have commuted that sentence to a sentence of home detention.

Factual background

Causing grievous bodily harm with intent

• [4] The Judge presided over the trial in relation to the charge of causing grievous bodily harm with intent. He had the benefit of hearing the evidence and he sentenced Mr Diaz and his co-defendants by reference to the facts as he found them based on the evidence that was presented at trial.^[4] There is no inconsistency between the Judge’s summary of the relevant facts and the jury’s verdict, and accordingly we adopt the Judge’s analysis. He said as follows:

[5] On 24 November 2018 the complainant, Mr Henry, was at [an address in] Manurewa, visiting his friend Peter Diaz Senior. Peter Diaz Senior is the brother of the defendant Juan Diaz, and the father of the two other defendants, Antonio and Peter Diaz. Peter Diaz Senior had earlier in time received a traumatic head injury from a car accident, leaving him with a number of cognitive deficits. This fact made him, in the eyes of his family, someone who could be easily manipulated and exploited by others. Family members were therefore protective of him for this reason, and the complainant was one person who Peter Diaz Senior’s family did not approve generally. Thus, while Peter Diaz Senior may have been comfortable with Mr Henry visiting, others at the address did not welcome his presence.

[6] Over the course of the day Mr Henry began to exhibit strange behaviour which unsettled people at the house, and he was eventually encouraged to leave. However, Mr Henry refused to comply either because he failed to appreciate he was being asked to go, or if he did, he believed that Peter Diaz Senior would nonetheless allow him to stay on at the house, or that he could eventually smooth things over with people from the Diaz household.

[7] ... Peter Diaz, then spoke on the phone to members of [his] family about Mr Henry’s unwanted presence, the effect that this was having on people at the address including [his] father, and Mr Henry’s refusal to leave. Responding to this call, several people between two carloads arrived at the ... address and began remonstrating with Mr Henry, who was at that time having a cigarette outside the property on the street. Two of these people were ... Juan and Antonio Diaz.

[8] On leaving the car driven by [his] uncle, ... Antonio Diaz then aggressively walked towards Mr Henry yelling obscenities, forcing him down the street towards [F Street]. Several others followed behind [him]. As [he] went Mr Henry also was yelling obscenities and a number of threats. As Mr Henry rounded the bottom of [M] Place onto [F] Street, he moved forward and punched ... Antonio Diaz, to the face. This then led to the two of [them] fighting, trading punches and several other[s] joining in to lend their efforts to the fight against Mr Henry. One of those who joined in was ... Juan Diaz. By this time, [Juan Diaz] had driven [his] vehicle from outside Peter Diaz Senior’s home down [M] Place, onto [F] Street and tried a number of times to manoeuvre [his] car so as to deliberately strike Mr Henry. This involved driving around in circles, sometimes onto the curb and across several berms, stopping, accelerating and lurching forwards or backwards several times.

[9] At one point Mr Henry found himself beside the open driver’s window where he reached inside and grabbed ... Juan Diaz trying to pull [him] out of the driver’s seat of the vehicle. Unsuccessful and giving up on this realising that he was outnumbered, with other supporters joining in on the attack from the [M] Place household, Mr Henry released his grip and ran further down the street towards [H] Drive. At this stage, ... he was for all intents and purposes, running away. However, he only made it as far as a large tree on the corner of [F] Street and [H] Drive when he found himself surrounded by his pursuers, some armed with branches who took turns to beat him. The car driven by ... Juan Diaz, then came around the corner and drove directly into Mr Henry. Mr Henry was propelled onto the bonnet of the car and then off to the side where he ultimately ended up on the ground.

[10] Once on the ground others resumed their attack. Mr Henry described those who attacked him, taking turns, rushing in and out, punching and kicking him. This scene only came to an end when neighbours and members of the public intervened. [Juan, Peter and Antonio Diaz] then left together with others involved in the attack. A short time later, the police and ambulance officers arrived.

[11] As a result of the group attack Mr Henry suffered broken ribs and a collapsed lung. He was taken to hospital, given pain relief and received treatment over three nights before being discharged. At trial, expert evidence was given by Dr Clark, a general surgeon at Middlemore Hospital. His evidence was that Mr Henry had suffered three broken ribs and a collapsed left lung. His evidence was that if untreated for too long a collapsed lung can seriously impair the amount of oxygen which enters a person’s bloodstream. For this reason, it is considered to be a serious injury. In terms of the most likely mechanism, Dr Clark’s opinion was that Mr Henry’s overall injuries were a result of localised blunt force trauma to his left side. While being struck by a vehicle could not be ruled out altogether, Dr Clark’s evidence was that it was more likely than not, that a directed amount of energy to one specific place was the cause of the rib fractures and in turn the pneumothorax. This is because injuries caused by being hit with a car are generally more diffused. It follows that based on Dr [Clark]’s evidence which was in no doubt accepted by the jury, ... they concluded being struck with a piece of wood or branch to the left side was the most likely cause of Mr Henry’s broken ribs and the corresponding pneumothorax.

[12] There was extensive evidence at trial about the use of a tree branch or branches. These were picked up from the ground near to the large tree on the corner. Mr Henry’s recollection was that one person who he could not identify from his assailants, hit him once with a tree branch to the left side of his chest. However, a number of independent eyewitnesses gave accounts which supported the view that Mr Henry was in fact hit several times with a branch or branches, and that these items were passed between the men who were all involved in the attack on the corner of [F] Street and [H] Drive.

[13] It is important to note that the case against ... Juan and Antonio Diaz, was that [they] were either principals or parties. But as for ... Peter Diaz ... the Crown proceeded on the basis that [he was] a party only. ... In terms of ... individual involvement, the evidence established that ... Juan Diaz, deliberately drove into Mr Henry when he was standing on the corner of [F] and [H]. On hitting Mr Henry with [the] car, he ended up on the ground. As he lay prone on the ground [Juan Diaz] then got out of the car and joined in with the group attack by punching and kicking the complainant. [He] also used a branch to hit Mr Henry at least once and most probably twice based on [his] own interview given to Police. One of the witnesses who gave evidence at trial described seeing [Juan Diaz] raise the branch above [his] head twice and swinging it down and hitting Mr Henry on the ribs. I reject [Juan Diaz’s] claim that [he] only hit the complainant with the branch to his legs, ...

[14] In my view based on the evidence, ... Antonio Diaz, [was] also part of the group that took turns on the corner of [H] Drive to punch and kick Mr Henry, both before and after he was struck by the car. [He was] in the words of one of the witnesses, “one of the main guys involved”. [He was] also the first pursuer that caught up with the complainant on the corner of [F] Street and [H] Drive. The evidence at trial was that [he] used a tree branch to hit Mr Henry several times to his body. Each time the strikes becoming harder and more forceful. The last strike was the hardest. It was a blow delivered to the left side of Mr Henry’s chest as he lay on the ground in the foetal position.

[15] Based on the witness descriptions, any of the blows delivered by ... Juan Diaz and Antonio Diaz, using the tree branch is likely to have caused the grievous bodily harm here. What is crucial is that ... both participated in concert during the continuing attack on Mr Henry in a manner which in my view, makes [them] equally culpable and jointly responsible for the harm that was done.

[16] As for ... Peter Diaz, it was also clear from the evidence that [he was] part of the group that assaulted Mr Henry in the later stages of the attack. But that the evidence only established [he] threw a single punch when Mr Henry was on the ground. ... [His] deliberate participation by joining in on the attack, adding the strength of [his] assault to the group effort, ... certainly assisted, helped and encouraged the principals that were responsible for inflicting the serious injuries to Mr Henry.

[17] There is one limited mitigating feature to the offending. It concerns the claim of self-defence or defence of another, which was the feature of the defence run by ... Juan and Antonio Diaz. The defence case was that Mr Henry had threatened those at the house with a knife, ... Mr Henry denied ever having a knife. But he accepted that he did have a pen in his hand which he pulled out of his pocket and waved around in an effort to defend himself. It follows that I am prepared to accept that [Juan and Antonio Diaz] may well have believed that the complainant had a knife, at least in the early stages of the narrative. [This] is reinforced by the fact there was evidence at trial of a pen being located by Police ... It is also clear from the jury’s verdicts that they must have determined that even if this was a genuinely held belief ... that Mr Henry had a knife, or what [they] considered to be a knife, the level of force which [Juan and Antonio Diaz] deployed by the time the attack had progressed to the corner of [F] Street and [H] Drive was excessive. Even if [they] both thought Mr Henry had a knife at the start of these events, this impression would have largely evaporated by the time Mr Henry was struck to the ground by the car and was then set upon by [the] group on the corner of [H] Drive. This means that while this mitigating feature operates, it was much less operative at the crucial time that Mr Henry’s serious injuries were inflicted.

Injuring with intent

• [5] On 6 January 2019, Mr Diaz and his then partner were drinking at an address in Randwick Park. They left the address and began arguing while they were being driven home by a friend. When the car came to a stop, they both got out. The argument continued. Mr Diaz then punched the victim on her nose, causing her to fall backwards. When she tried to stand up, he kicked her in the face. She was knocked unconscious. As a result of the incident, the victim suffered a sore nose, concussion and a sprained ankle. In explanation, Mr Diaz claimed that the victim had jumped out of the car.

The sentencing decision

• [6] The Judge sentenced Mr Diaz and his co-defendants together.^[5] He identified the purposes of sentencing in this case as the need to hold them accountable for their offending, to promote in them a sense of responsibility for and acknowledgement of their offending, and to denounce the conduct in which they were involved. He was also mindful of the need to deter others from engaging in similar offending, the need to take into account the seriousness of this type of offending and the general desirability of ensuring consistency of appropriate sentencing levels.^[6]
• [7] The Judge recorded that Mr Diaz’s counsel had proposed a starting point of five years’ imprisonment and submitted that home detention should be considered after personal mitigating circumstances were taken into account. The Crown however had submitted that the starting point should be in the region of eight and a half years’ imprisonment.
• [8] The Judge identified R v Taueki as the guideline judgment for offending of this nature.^[7] He referred to the example of a “concerted street attack” discussed in Taueki in relation to band two offending.^[8] The Judge placed Mr Diaz’s offending near the middle of that band,^[9] listing the following aspects as aggravating factors:^[10]

(a) the extent of the violence, noting that it was inflicted over a prolonged period;

(b) the multiple offenders;

(c) the use of the large tree branch and the vehicle as weapons;

(d) the seriousness of the victim’s injuries; and

(e) the vulnerability of the victim, at least from the time he was knocked to the ground by the car, and the targeting of the victim’s torso (being a vulnerable part of his body).

• [9] The Judge referred to various cases cited by counsel and recorded that he found a decision of this Court — Singh v R — to be the most useful.^[11] In that case, the Court considered that a starting point of nine years’ imprisonment was appropriate for an offender being sentenced for wounding with intent to cause grievous bodily harm and with common assault.^[12] The offender was a member of a group of six involved in the offending.
• [10] The Judge considered that the assault in Singh involved aggravating factors not present in Mr Diaz’s case and he recorded that he would have adopted a starting point of seven years’ imprisonment. However, he adjusted this to six years’ imprisonment to recognise the mitigating feature of self-defence.^[13] The Judge recorded that Mr Diaz was also being sentenced on the charge of injuring with intent and outlined the facts relevant to this offending. He observed that, for a first-time offender, this charge could have attracted a starting point of 12 to 18 months’ imprisonment. He nevertheless made an adjustment to reflect totality considerations, Mr Diaz’s early guilty plea and his “extensive efforts” to rehabilitate.^[14] Accordingly, the Judge uplifted his starting point on the grievous bodily harm charge by six months only to take into account this second charge. This brought the global starting point to six years and six months’ imprisonment.^[15]
• [11] The Judge noted that Mr Diaz was 17 years old at the time of the offending. He referred to the pre-sentence report, which recorded that he had a partner at the time and two young children. He also noted that Mr Diaz told the report writer that, at the time of the offending, he was “young, dumb and trying to protect [his] family” and that his family consider him to be “a fighter”.^[16] The Judge observed that Mr Diaz had expressed remorse and concern for the victim and said that what happened should not have happened but should instead have been resolved in a better way. The Judge summarised a psychological assessment provided to the Court which recorded that youth, impulsivity and family loyalty had motivated Mr Diaz’s offending. The Judge noted that the report suggested that imprisonment would expose Mr Diaz to negative influences which could set back the progress he had made since the offending on his partner. The Judge accepted that this was a valid concern.^[17] He gave a discount of seven months for Mr Diaz’s previous good character. He accepted that Mr Diaz’s offending was driven by youth and impulsivity and reduced his starting point sentence by 14 months for this factor. He then gave a further discount of seven months for Mr Diaz’s extensive rehabilitative efforts. Finally, he reduced the sentence by a further nine months to recognise the hardship that Mr Diaz’s partner and family would face whilst the sentence was being served. This resulted in an end sentence of three years’ imprisonment. The Judge considered that this was the least restrictive sentence he could impose which served the purposes of denunciation and deterrence.^[18]

The appeal

• [12] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.^[19] In any other case, the appeal must be dismissed.
• [13] This Court does not start afresh, nor simply substitute its own opinion for that of the sentencing Judge. Rather, Mr Diaz must show that there was a material error made by the sentencing Judge.^[20] This Court will not intervene where the sentence imposed was within a range that can be properly justified by accepted sentencing principles.^[21]

Submissions

• [14] Mr Kemp, for Mr Diaz, submitted that the starting point adopted by the Judge was too high because of the way in which the Judge dealt with the aggravating features of the offending. He argued that there were only three aggravating features — namely the multiple offenders, the use of weapons and the injuries inflicted. He contended that the offending fell into band one discussed in Taueki and that a starting point of three to four years’ imprisonment was appropriate, taking into account the mitigating feature of (albeit excessive) self-defence. Mr Kemp further submitted that greater discounts should have been allowed, in particular for youth, and that a short term of imprisonment should be reached. He then put it to us that such sentence should be commuted to a sentence of home detention in line with the recommendations made in the various reports made available to the Court. Specifically, he argued that a 25 to 30 per cent discount was available for youth, a reduction of up to 15 per cent was available for Mr Diaz’s rehabilitative efforts, and a 15 per cent discount was available for remorse, efforts to make amends and previous good character. It is submitted that the Court should impose six months’ home detention, allowing for these various discounts and taking into consideration the six months Mr Diaz has already spent in custody.
• [15] For the Crown, Mr Stevens submitted that the Judge made no error and that the sentence was not manifestly excessive. He argued that the Judge correctly identified and evaluated the aggravating features of the offending and that the ultimate starting point was well within range, even lenient. He further submitted that the discounts the Judge gave for youth and efforts at rehabilitation were consistent with applicable authorities and that the reductions for remorse and previous good character were generous.

Implications of amendments to Sentencing Act 2002 in relation to 17-year-old offenders

• [16] After the hearing we drew counsel’s attention to amendments made to ss 15B and 18 of the Sentencing Act 2002 with effect from 1 July 2019: after the offending in this case, but before Mr Diaz was sentenced.
• [17] Those provisions, as amended, now read:

15B Limitation on sentence of home detention for person under 18 years

(1) No court may impose a sentence of home detention on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time of the commission of the offence, the offender was under the age of 18 years.

...

18 Limitation on imprisonment of person under 18 years

(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time of the commission of the offence, the offender was under the age of 18 years.

• [18] We sought further submissions from counsel on the following issues:

(a) Did ss 15B and 18 as amended apply to the sentencing of Mr Diaz?

(b) If ss 15B and 18 as amended applied, Mr Diaz could not be sentenced to a term of imprisonment on the injuring charge. In those circumstances was it open to the District Court to uplift a term of imprisonment for the grievous bodily harm charge by reference to the injuring charge?

(c) What sentence should have been imposed on Mr Diaz, in light of these amendments?

• [19] Mr Kemp submitted that ss 15B and 18 as amended applied to the sentencing of Mr Diaz. They were in force at the time of his sentencing. Section 6(1) of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990 (NZBORA) enshrine a defendant’s rights to the benefit of the lesser penalty in circumstances where an offence’s penalty has been varied between the commission of an offence and sentencing. It follows, he submitted, that a sentence of imprisonment or home detention cannot be uplifted by reference to a charge which could not, standing alone, result in such a sentence: that would be inconsistent with the purpose of ss 15B and 18. A sentence of home detention should be imposed for the grievous bodily harm offence. A sentence of community work would be appropriate in respect of the injuring offence.
• [20] Mr Stevens accepted that ss 15B and 18 as amended applied to the sentencing of Mr Diaz and precluded a sentence of imprisonment in respect of the injuring charge. Mr Stevens also very responsibly drew our attention to two High Court decisions in which it had been held that s 18 precluded an uplift of a term of imprisonment by reference to a charge that, by virtue of s 18, could not result in a sentence of imprisonment.^[22]
• [21] However Mr Stevens submitted that this approach leads to unsatisfactory results. If a young offender commits a serious offence for which they can be sentenced to imprisonment, and such a sentence is imposed, the only sentence available in respect of other less serious offending for which they are sentenced at the same time would be a sentence of reparation.^[23] The offender is likely to receive the same sentence despite the additional offending, in many cases: there will thus be no sanction at all for the lesser offending, however extensive.^[24] And whether any sanction can be imposed for lesser offending that is not connected with the serious offending may turn on whether the sentencing takes place separately, or at the same time. If the offender is sentenced to home detention on the more serious charge, by contrast, a sentence of community work would be available for the less serious offending.
• [22] Mr Stevens submitted that an alternative approach is available which avoids these difficulties. The court can impose a sentence on the lead charge which reflects the totality of the offending, including both the serious offence for which imprisonment is an available option, and any lesser offending. He submitted that this approach would best meet sentencing purposes and principles, without infringing ss 15B and 18 of the Sentencing Act.

Analysis

• [23] We consider each of the points advanced for Mr Diaz.

Starting point

• [24] As the Judge observed, the decision of this Court in Taueki is the guideline judgment when sentencing for serious violent offending under s 188(1) of the Crimes Act 1961. The Court there identified three sentencing bands for such offending:^[25]

(a) Band one, attracting a starting point of between three and six years’ imprisonment. This band is appropriate for violence at the lower end of the spectrum where the offending does not involve extreme violence or violence which is life threatening.

(b) Band two, attracting a starting point of between five and 10 years’ imprisonment. This band is appropriate for grievous bodily harm offending which features two or three aggravating features.

(c) Band three, attracting a starting point of nine to 14 years’ imprisonment. This band encompasses serious offending where there are three or more aggravating factors which, in combination, are particularly grave.

• [25] The Court observed that any grievous bodily harm offending involves very serious offending and that all such offending involves a high degree of criminality, requiring the imposition of a term of imprisonment. Only in exceptional cases would a starting point of less than three years’ imprisonment be appropriate.^[26] It observed that the appropriate starting point in any given case involves an assessment of a number of features which add to or reduce the seriousness of the conduct and criminality involved.^[27] It commented that a sentencing Judge needs to not only identify such features but also to evaluate the seriousness of each. It also emphasised that the suggested bands and starting points should be used flexibly and that the features of the offending in each case must be assessed carefully in order to establish a starting point which properly reflects the culpability inherent in the offending.^[28]
• [26] The Judge adopted Taueki and identified five factors which he considered added to the seriousness of Mr Diaz’s offending. We consider each in turn:

(a) The extent of the violence involved in Mr Diaz’s offending. Mr Diaz was the initial aggressor although Mr Henry threw the first punch. He pursued Mr Henry along with others. He was the first person to catch up with Mr Henry. He was part of the group which punched and kicked Mr Henry when he had been knocked to the ground. He used a tree branch to repeatedly hit Mr Henry on his body. He delivered a particularly hard blow to Mr Henry’s left side as he was lying in a foetal position. The violence was prolonged. The attack was described by witnesses as “an unrelenting frenzied attack”;^[29] it only came to an end after passers-by intervened. The extent of the violence was clearly an aggravating factor.

(b) There were multiple attackers, ganging up together and taking turns to inflict violence on a single victim. Again, this was an aggravating factor.

(c) The tree branches and the car were used as weapons. We acknowledge that the tree branches were not brought to the scene with the intent of using them as weapons. Rather, they were picked up in the general area where the victim was ultimately knocked to the ground by Peter Diaz using the motor vehicle. They were passed around between the attackers who took turns to hit Mr Henry with them. We accept that there was no danger to the public from the use of the tree branches and the vehicle as weapons. The use of the tree branches and the car were aggravating features, but we do not consider that they were particularly serious features in the circumstances of this case.

(d) The victim, Mr Henry, suffered serious injury. He required hospitalisation. We acknowledge that the fact of injury is inherent in the charge laid — causing grievous bodily harm with intent to cause grievous bodily harm — but as noted in Taueki, it is the intentional inflicting of the serious injury which is significant. An offender who acts with intent to cause grievous bodily harm, and does in fact cause such harm, cannot escape responsibility for the consequences of his or her actions.^[30]

(e) Mr Henry was particularly vulnerable after he was knocked to the ground by Peter Diaz using the car. Given the number of attackers, he was unable to defend himself thereafter. He curled into a foetal position as his multiple attackers laid blow after blow on him.

• [27] There was perhaps an additional aggravating feature. There was a degree of premeditation to Mr Diaz’s offending. He responded to his brother’s invitation to come to the fray, along with his uncle and a number of other persons. It was not spur of the moment offending. We do not consider that this was a particularly serious aggravating feature, but it cannot be ignored.
• [28] There were arguably some mitigating features to the offending:

(a) There was an element of provocation. It seems from the Judge’s summary of what occurred that Mr Henry and Mr Diaz initially engaged in a verbal altercation and that Mr Henry threw the first punch. This feature could serve to reduce the starting point sentence, but only if there was serious provocation, it was an operative cause of the violence inflicted and it remained an operative cause throughout the commission of the offence.^[31] Here, we are not so satisfied.

(b) There was no attack to Mr Henry’s head. Although the lack of an attack to the head is not expressly identified as a mitigating feature in Taueki, we note that this is relatively unusual in offending of this kind.

(c) There is the issue of self-defence. The Judge was prepared to accept that, at least initially, Mr Diaz thought that the victim may have a knife. It is clear that Mr Diaz went too far in his response, but we accept the Judge’s view that Mr Diaz’s attack may have commenced in an effort to defend himself.^[32]

• [29] On our analysis, Mr Diaz’s offending involved more than two or three of the aggravating features identified in Taueki. Nevertheless, like the Judge, we would apply the suggested bands flexibly.^[33] Considered in the round, we agree with the Judge that the offending fell within band two. It is noteworthy that the Court in Taueki recorded that band two is appropriate for a concerted street attack where the victim is set upon by a group of attackers using weapons found at the scene. The Court indicated that a starting point at the lower end of band two is appropriate for such offending.^[34]
• [30] As already noted, band two offending will normally attract a starting point of five to 10 years’ imprisonment. Here, the Judge adopted a starting point for the principal offending of six years’ imprisonment, after taking into account the (excessive) self-defence. This starting point was well within the available range. It was supported by the cases cited to the Judge by counsel.^[35] It was also broadly consistent with or even slightly lower than the starting point sentences adopted by this Court in other cases involving a street attack or similar.^[36]
• [31] We acknowledge that the ultimate question is not whether an applicable guideline judgment should be followed, but whether the sentence is a just one in all the circumstances.^[37] There is however no principled basis in the present case to suggest that Mr Diaz’s principal offending should attract a starting point below the recommended guidelines for band two offending. We do not consider that the Judge erred in this regard.

The uplift for the injuring charge

• [32] However we consider that the uplift for the injuring with intent to injure charge was precluded by s 18 of the Sentencing Act. The amendment to this provision was not drawn to the Judge’s attention at sentencing. The amended provision applied to the sentencing of Mr Diaz on its face. He was entitled to be sentenced by reference to the amended provision, by virtue of s 6 of the Sentencing Act and s 25(g) of NZBORA. It would be inconsistent with the policy underpinning s 18 for the Court to uplift a sentence of imprisonment by reference to a charge which, pursuant to s 18, could not itself result in a sentence of imprisonment. Such an uplift would result in the young person spending (additional) time in prison as a result of the less serious charge: the very thing that s 18 is intended to preclude.
• [33] The alternative approach contended for by Mr Stevens — imposing a sentence of imprisonment by reference to the totality of the offending, including both the more serious and less serious charges — is open to precisely the same objection. Indeed we struggle to see how an appropriate sentence for the totality of the offending could be arrived at, applying orthodox sentencing methodology, without assessing the appropriate sentence for the lead offence and identifying an appropriate uplift in respect of the lesser offending. So we rather doubt that this approach differs in any material way from what the Judge did.
• [34] It follows that in determining the length of any sentence of imprisonment that might be imposed on Mr Diaz, the injuring charge must be disregarded. We return to the appropriate sentence in respect of that charge below.

Discounts for personal circumstances

• [35] Mr Diaz was previously of good character. He had no prior convictions. The Judge allowed him a discount of seven months (or nine per cent) for this factor. There was no error here, although we would round the discount to 10 per cent of the starting point sentence.
• [36] Mr Diaz had only very recently turned 17 years old at the time of the principal offending.^[38] There was a psychological assessment before the Court prepared by Dr Ingalise Jensen, a clinical psychologist, as well as a risk assessment report. She expressed the view that Mr Diaz lacked the maturity, impulse control and foresight to consider the consequences of his actions in the midst of what was a volatile situation.
• [37] We accept that youth was the major driver of Mr Diaz’s offending. Youth discounts can be and often are provided to young offenders to recognise the age-related neurological differences between young people and adults. Such discounts acknowledge that an offence may be an act of immaturity or youthful indiscretion, young people can be more vulnerable or susceptible to negative influences and outside pressures, and young people may fail to appreciate the full gravity of the offending. Youth discounts also recognise that imprisonment is likely to be disproportionately severe on young people and that young people have a greater capacity for rehabilitation.^[39]
• [38] The Judge took Mr Diaz’s youth into account. He allowed a discount of 14 months (or 18 per cent) for this factor. Mr Diaz asserts that a discount of 25 to 30 per cent should have been allowed.
• [39] There is no fixed discount for youth. Sometimes a youth discount can have a radical effect on a sentence, even where the offending is serious. In other situations, the discount can be minimal or even non-existent. A realistic assessment, balancing all factors, is required in each case.^[40]
• [40] Mr Stevens submitted that the reduction of 18 per cent allowed by the Judge was consistent with reductions allowed in other cases and appropriate given the gravity of the offending.^[41] We disagree. Having read Dr Jensen’s report, we are persuaded that Mr Diaz lacked maturity, impulse control and foresight. He was caught in a volatile situation, surrounded by family members and others. He was trying to protect his impaired father from a person he perceived to be a threat. He was susceptible to the outside pressures created by the situation in which he found himself. He was known as “a fighter” by his family. It is likely that he was spurred on by those around him, perhaps subconsciously. We would have allowed a discount of 30 per cent to recognise Mr Diaz’s various youth-related matters. In our view, the Judge made a material error by failing to provide sufficient discount for this factor.
• [41] In both the pre-sentence report and in Dr Jensen’s psychological report, it was noted that Mr Diaz had expressed remorse for the principal offending. He explained to Dr Jensen that he regretted letting his poor decision-making influence his decision to become involved in the violence that occurred. As against this, Mr Diaz did choose to defend the principal charge. His remorse in relation to the injuring with intent to injure offending is more obvious. He attended a successful restorative justice conference and he filed an affidavit in relation to that offending confirming his remorse.
• [42] Insofar as we can glean, the remorse was genuine. The Judge did not make any specific allowance for remorse. We consider that he should have and that he erred in not doing so. We would allow a 7.5 per cent discount for remorse in respect of the principal offending.
• [43] We also accept that Mr Diaz has made extensive rehabilitative endeavours. He has engaged in several programmes, including a four-week anger management and family violence course with Te Whare Ruruhau O Meri Trust, a four-session course with Community Alcohol and Drug Services, 17 sessions with the Friendship House Living Without Violence Programme, a parenting course with Pro-care New Zealand and an eight-week Stopping Violence Programme. We accept that Mr Diaz’s completion of these courses reflects real endeavours made by him to take responsibility for his behaviour and for the harm it has caused. Dr Jensen recorded that Mr Diaz has translated the insights he now has into his offending into practice by taking tangible steps to rehabilitate.
• [44] The Judge allowed Mr Diaz a discount of seven months’ imprisonment (nine per cent) for his rehabilitative efforts. In our view, that discount should have been higher. Attending over 17 sessions of a Living Without Violence Programme is very unusual, particularly for a young person. So are the number of courses which Mr Diaz has attended. All reports and Mr Diaz’s affidavit suggest that he has made progress in finding a positive way forward, including by resolving to stay away from alcohol. There is an additional factor in this case. Dr Jensen records that while Mr Diaz has made good rehabilitative progress, there is a risk that this progress would be set back if he were to serve a sentence of imprisonment. While “the tail should not wag the dog”, in the unusual circumstances of this case this concern cannot be ignored. We would allow Mr Diaz a discount of 20 per cent for his significant rehabilitative efforts.
• [45] While we are prepared to increase the discounts for the various personal factors, we note that the Judge also allowed Mr Diaz a nine months’ discount (or 11.5 per cent) for the hardship he considered that Mr Diaz’s partner and two young children would face if he was sentenced to a term of imprisonment. That is an uncommon discount although it has been accepted both by this Court and by the Supreme Court that a discount can be given to recognise a defendant’s family situation.^[42] It appears however that a discount for this factor is not available in Mr Diaz’s case. In the victim impact statement filed by Mr Diaz’s partner, she stated that she and Mr Diaz have broken up and that she does not want anything more to do with him. We would not allow a discount for this factor and consider that the Judge erred in this regard as well.

End sentence for grievous bodily harm charge

• [46] The discounts allowed by the Judge totalled 37 months — or 47 per cent — from the starting point sentence. This should have resulted in an end sentence of three years and five months’ imprisonment, based on the Judge’s starting point. The Judge however erred on the side of leniency; he reduced his sentence by 42 months (or 53 per cent) to arrive at an end sentence of three years’ imprisonment.
• [47] Notwithstanding this leniency, in our view, the sentence imposed by the Judge was wrong in two respects: the uplift for the injuring charge, and the insufficient discounts allowed. As a result, the sentence of three years imposed was manifestly excessive.
• [48] For the reasons we have set out, we consider that the starting point sentence of six years for the grievous bodily harm charge — or 72 months — should be reduced by 67.5 per cent to allow for the various discounts we consider are appropriate. This reduces the sentence by 49 months (with rounding) and results in an end sentence of 23 months’ imprisonment. This is a short term of imprisonment,^[43] and home detention is available to the Court.^[44]

Home detention

• [49] Imposing a sentence of home detention is consistent with the statutory imperative of imposing the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences set out in the Sentencing Act.^[45] We accept that a community-based sentence is appropriate in the unusual circumstances of this case and that such a sentence sufficiently deters and denounces Mr Diaz’s conduct.
• [50] Mr Diaz has already spent six months in custody. An offender who is sentenced to a short term of imprisonment becomes eligible for parole after he or she has served one half of the sentence imposed.^[46] We therefore allow Mr Diaz a credit of 12 months for the time he has already spent in custody. This would take the sentence to one of 11 months’ imprisonment. Applying the same rationale, an end sentence of 11 months’ imprisonment commutes to a sentence of 5 months and 15 days’ home detention and this is the sentence we would impose.

Sentence for injuring charge

• [51] One of us (Thomas J) considers that no further sanction should be imposed in respect of the injuring charge having regard to Mr Diaz’s age, his clear remorse in respect of this charge, his attendance at the restorative justice conference and the outcome of that conference, and the multiple courses he has attended. A further sentence of community work is not appropriate, in these circumstances. He should be convicted and discharged.
• [52] One of us (Wylie J) considers that a sentence of 200 hours’ community work would be appropriate as a response to this family violence charge. He considers that it was serious offending, that it was not related to the grievous bodily harm offending and that it should attract a separate sentence in its own right. He notes that family violence is endemic in this country and takes the view that deterrence requires a separate sentence to condemn what occurred.
• [53] In his separate reasons, Goddard J concludes that Mr Diaz should be convicted and discharged in respect of the injuring charge. That is therefore the majority conclusion, and the result on appeal in relation to this charge.

REASONS OF GODDARD J


Table of Contents

Para No

A different route to the same result?

• [54] I agree with the result reached by Thomas and Wylie JJ in relation to the grievous bodily harm charge: a sentence of 5 months and 15 days’ home detention. The analysis set out in their reasons (the joint reasons) in relation to that charge is consistent with mainstream sentencing methodology and reflects the structure of the argument presented to us.
• [55] I also agree with Thomas J that on the injuring with intent to injure charge, Mr Diaz should be convicted and discharged.
• [56] However I am writing separately because I consider that on the grievous bodily harm charge, there may be a more direct route to the same result.

The implications of s 18 of the Sentencing Act

• [57] Section 18(1) of the Sentencing Act restricts the circumstances in which a sentence of imprisonment may be imposed on a young person under 18. As explained in the joint reasons, s 18, as amended on 1 July 2019, applied to the sentencing of Mr Diaz in February 2021.
• [58] Section 15B imposes corresponding restrictions on the imposition of a sentence of home detention on an offender who was under 18 at the time of the offending.
• [59] Imprisonment was an available option in respect of the grievous bodily harm charge: a category 3 offence with a maximum sentence of 14 years. Imprisonment was not an available sentence in respect of the injuring with intent to injure charge, which carried a maximum penalty of five years’ imprisonment. It was inconsistent with s 18 for the overall sentence of imprisonment imposed on Mr Diaz by the District Court to be increased by an uplift for an offence for which he could not be sentenced to imprisonment. A young person’s effective term of imprisonment for one offence cannot be extended because they committed another offence for which they could not lawfully be sentenced to a period of imprisonment.
• [60] The fact that imprisonment was an available sentence in respect of the grievous bodily harm charge does not mean it was the appropriate sentence. The clear policy underpinning s 18 is that a sentence of imprisonment should not generally be imposed on a young person under 18, other than in the most serious cases. That policy reflects the diminished culpability of young offenders, their greater potential for rehabilitation, and the disproportionate hardship of imprisonment on young persons.^[47] It also reflects New Zealand’s obligations under the United Nations Convention on the Rights of the Child, which provides that imprisonment of a person under 18 “shall be used only as a measure of last resort and for the shortest appropriate period of time”.^[48]
• [61] These policy considerations and international obligations remain relevant where a young person commits a category 3 offence carrying a maximum penalty of 14 years’ imprisonment or more, but their offending is not at the upper end of the range of cases encompassed by that offence. It seems arguable that in such cases the court should begin by asking whether a sentence of home detention or imprisonment is the least restrictive outcome that is appropriate in the circumstances, or whether some less restrictive option is appropriate. If no less restrictive option is appropriate, so the choice is between home detention and imprisonment, the court would then ask whether a compelling justification has been made out for imposing a sentence of imprisonment rather than a sentence of home detention. That would require identification of relevant sentencing objectives, and some rational basis (such as empirical studies or expert evidence) for concluding that those objectives would be better advanced by imprisonment than home detention.
• [62] If this approach were adopted, the guideline tariff for terms of imprisonment would become relevant only if the court concluded that imprisonment had been shown to be the least restrictive available outcome. Conversely, if one takes the guideline tariff as a starting point for the sentencing analysis, it is possible to arrive at a sentence of imprisonment — as the Judge did in this case — without ever directly confronting the question of whether imprisonment can be justified. It is at least arguable that there is a conceptual difficulty in taking as one’s starting point the “last resort” of imprisonment, then assessing discounts to determine whether departure from that last resort can be justified. And a rigid application of that approach could lead to an unsatisfactory result. In a borderline case, a sentencing judge applying the usual methodology who considers that home detention is appropriate may of course be tempted to reverse engineer the available discounts to arrive at their preferred result: that is understandable, but seems less direct and less transparent than engaging directly with the question of whether the last resort of imprisonment can be justified.
• [63] The approach outlined above would reflect the mandatory requirement in s 8(g) of the Sentencing Act: a court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A. When sentencing an offender under 18, the relevant “circumstances” include the policy considerations and international obligations that underpin s 18. Section 8(g) ensures that in making sentencing decisions a judge acts consistently with the requirement in NZBORA that the State should only impose a limit on rights protected by NZBORA where that limit is reasonable, prescribed by law, and demonstrably justified in a free and democratic society. Section 8(g), read in light of NZBORA, imposes a burden of justification on a court that imposes a sentence of imprisonment rather than a sentence of home detention or some other less restrictive sentence. ^[49]
• [64] This approach would also be consistent with the approach adopted to sentencing young people in the United Kingdom. The Sentencing Council Guidelines on Sentencing Children and Young People: Definitive Guideline emphasise that a custodial sentence should always be used as a last resort, and that the guidelines for sentencing adults should not be the starting point in the sentencing analysis:^[50]

6.45 Only if the court is satisfied that the offence crosses the custody threshold, and that no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide upon the appropriate length of the sentence.

Applying that approach in the present case

• [65] If this approach were to be adopted in the present case, the main issue would be whether there were compelling reasons to impose a sentence of imprisonment, rather than home detention. It was not argued before us that a less restrictive outcome than home detention would be appropriate in relation to the grievous bodily harm charge, having regard to the seriousness of the offending.
• [66] It is worth pausing to reflect on the respects in which a sentence of home detention is less restrictive than imprisonment. The loss of freedom of movement is similar.^[51] But imprisonment of an offender also significantly curtails other rights protected by NZBORA: most notably, freedom of association.^[52] That right is curtailed for the offender and for their family. In prison, Mr Diaz loses the ability to spend time with his grandparents, who have cared for him since he was young and who have been
  
  a significant pro-social influence. He loses the ability to spend time with his children. His children are deprived of the ability to spend time with him. Instead, he is forced to associate with a community of older men who have been convicted of serious offences justifying imprisonment. The influence of gangs in New Zealand prisons is well-documented. In prison, Mr Diaz is deprived of the ability to make the pro-social choice of not associating with gang members and serious offenders. The influences to which he will be exposed in prison are overwhelmingly negative, at a time when he is young and impressionable. He is also deprived of the ability to work and his educational opportunities are severely curtailed. There is a real risk of worse life outcomes for him and for his family.
• [67] The material before the Court does not establish that the objectives of the Sentencing Act would be materially advanced by imprisoning Mr Diaz, rather than imposing a sentence of home detention. His conduct is denounced, and he is held accountable for what he has done, by the entry of a conviction and by the loss of liberty for up to 12 months. There is no reason to think that imprisonment is required to deter him from further offending, or to protect the community. Nor is there any reason to think that such a sentence will contribute to deterrence of other similarly situated young people: youth, impulsivity and lack of foresight are not fertile ground for effective general deterrence.^[53] Dr Jensen’s expert opinion confirms that prison is more likely to undermine Mr Diaz’s rehabilitation than it is to contribute to that outcome. In this important respect, the purposes of the Sentencing Act are better advanced by home detention than by imprisonment.
• [68] As noted above, the argument before us proceeded on the basis that the only available sentencing options that reflected the gravity of the offending against Mr Henry were home detention or imprisonment. In those circumstances, if home detention was not available for some practical reason — for example, because no suitable address at which to serve the sentence could be found — imprisonment would be the only available sentencing option. But any sentence of imprisonment imposed on Mr Diaz for this offence would be a short sentence of less than two years: a longer term of imprisonment could not be justified, for essentially the same reasons set out above. So the requirement in s 15A of the Sentencing Act — that a sentence of home detention may be imposed only if the court would otherwise impose a short-term sentence of imprisonment — is satisfied here.^[54]
• [69] This approach would lead directly to a conclusion that the appropriate sentence to be imposed on Mr Diaz is home detention. The result ultimately arrived at in the joint reasons — 5 months and 15 days’ home detention, after making an allowance for time Mr Diaz has already spent in prison — appropriately reflects the gravity of the offending and the relevant mitigating factors in this case.
• [70] The approach outlined above would, if adopted, amount to a modification of the usual sentencing methodology in cases involving young persons under 18. The desirability of any such modification would need to be considered by the Permanent Court, with the benefit of full argument. But I am fortified in my agreement with the result reached in the joint reasons by the fact that this alternative (and arguably simpler, more direct and more rights-consistent) path would lead to the same result.

Home detention criteria and conditions

• [71] The proposed home detention address is the home of Mr Diaz’s grandparents at 30 Tamworth Close, Manurewa, Auckland. We sought a current pre‑sentence report addressing the matters specified in s 26A of the Sentencing Act, updating the original report prepared in November 2020 and addressing the suitability of that address for home detention. The report confirms the suitability of the proposed address. We are satisfied that the conditions set out in s 80A(2)(a) are met. We impose the standard conditions set out in s 80C(2) of the Sentencing Act, and special conditions under s 80D as recommended in the pre-sentence report.

Result

• [72] The appeal is allowed.
• [73] The sentence of three years’ imprisonment imposed by the District Court is set aside.
• [74] A sentence of 5 months and 15 days’ home detention is substituted on the charge of causing grievous bodily harm with intent.
• [75] The sentence of home detention is to be served at 30 Tamworth Close, Manurewa, Auckland. The sentence is subject to the standard conditions set out in s 80C(2) of the Sentencing Act and the following special conditions imposed under s 80D:

(a) Mr Diaz must travel directly from prison to the home detention address and must remain at that address to be met by a Field Officer.

(b) Mr Diaz must not consume or possess alcohol or illicit drugs for the duration of the sentence.

(c) Mr Diaz must undertake and complete appropriate treatment/counselling to the satisfaction of the Probation Officer and treatment provider. The details of the treatment or counselling are to be determined by the Probation Officer.

(d) Mr Diaz must undertake and complete an appropriate departmental, cultural, or other programme, to the satisfaction of the Probation Officer and programme facilitator, if a suitable programme is available. The details of the programme and suitability are to be determined by the Probation Officer.

(e) Mr Diaz must not contact or associate with the victims or co-offenders, either directly or indirectly, without the prior written approval of a Probation Officer.

• [76] On the charge of injuring with intent to injure, Mr Diaz is convicted and discharged.

Solicitors:
Crown Solicitor, Manukau for Respondent

---

^[1] R v Diaz [2021] NZDC 3593 [Sentencing decision].

^[2] Crimes Act 1961, ss 66 and 188(1) — maximum penalty 14 years’ imprisonment.

^[3] Section 189(2) — maximum penalty five years’ imprisonment.

^[4] Sentencing decision, above n 1, at [4].

^[5] Sentencing decision, above n 1.

^[6] At [3].

^[7] At [20], referring to R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

^[8] At [21], referring to R v Taueki, above n 7, at [39(a)].

^[9] At [29].

^[10] At [22]–[27].

^[11] At [30], referring to Singh v R [2018] NZCA 388.

^[12] Singh v R, above n 11, at [31].

^[13] Sentencing decision, above n 1, at [30]–[31].

^[14] At [38].

^[15] At [38].

^[16] At [36].

^[17] At [40].

^[18] At [39].

^[19] Criminal Procedure Act 2011, s 250(2).

^[20] R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [139]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[36].

^[21] Tutakangahau v R, above n 20, at [36].

^[22] Police v Moala [2008] DCR 70 (HC) at [53]; and Fonua v Police HC Auckland
CRI-2009-404-341, 22 February 2010 at [24]–[25].

^[23] Sentencing Act 2002, s 19.

^[24] See for example R v MHTRC [2015] NZDC 3753 at [16]–[17].

^[25] R v Taueki, above n 7, at [34]–[41].

^[26] At [27].

^[27] At [31].

^[28] At [42].

^[29] Sentencing decision, above n 1, at [22].

^[30] R v Taueki, above n 7, at [31(c)].

^[31] At [32(a)].

^[32] At [32(b)].

^[33] Noting that this Court recommended a flexible approach to applying the bands in Taueki: at [42].

^[34] At [39(a)].

^[35] Singh v R, above n 11; Wiseman v R [2018] NZHC 1684; and Joseph v R [2013] NZCA 290.

^[36] See for example Gatoloai v R [2007] NZCA 319 — starting point of five years’ imprisonment — multiple attackers, vulnerability and attack to the head; Hita v R CA505/05, 29 November 2006 — starting point of seven years and six months’ imprisonment — at least five attackers involved, use of a weapon, attack to the head and some premeditation; Elisaia v R [2015] NZCA 516 — starting point of nine years’ imprisonment — multiple attackers, not impulse offending and hallmarks of a concerted street attack; Connelly v R [2008] NZCA 550 — starting point of nine years’ imprisonment — two attackers, no weapons but attack to the head, no premeditation and attack unprovoked; and Tuhiwai v R [2012] NZCA 209 — starting point of nine years’ imprisonment (“top end of band two”) — concerted street attack, serious injuries, degree of premeditation and no weapons.

^[37] Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [49].

^[38] Had the offending occurred after 1 July 2019, Mr Diaz would have been dealt with as a young person under the Oranga Tamariki Act 1989: on 1 July 2019 the s 2 definition of “young person” changed from someone over the age of 14 to under the age of 17, to someone over the age of 14 but under the age of 18. Most 17 year olds now fall within the jurisdiction of the Youth Court but there is a general exception for sch 1A offences. Causing grievous bodily harm with intent to cause grievous bodily harm is a sch 1A offence. Young persons accused of this offence fall outside the jurisdiction of the Youth Court. They will have their first appearance in the Youth Court and will then be transferred to the District Court or the High Court, depending on whether the sch 1A offence with which they are charged is a category 3 or category 4 offence. Mr Diaz would have been transferred to the District Court under s 275 of the Oranga Tamariki Act. The injuring with intent to injure charge is not a sch 1A offence. Section 276A provides that the Youth Court can determine whether the non-sch 1A charge is related to the sch 1A charge. It is likely that Mr Diaz’s non-sch 1A charge would have been found to be unrelated to his sch 1A charge. The injuring with intent to injure charge could have then been dealt with in the Youth Court but not the causing grievous bodily harm with intent to cause grievous bodily harm charge. There was no bar to Mr Diaz being sentenced to a term of imprisonment for the principal offending, notwithstanding that he was under the age of 18 years at the time that the offence was committed: Sentencing Act, s 18.

^[39] See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].

^[40] Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].

^[41] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA); Millar v R [2019] NZCA 570 at [30] — discount of 15 per cent for 19-year-old offender; R v Molia [2013] NZCA 512 at [19] — discount of 15 per cent for 18-year-old offender with eight previous convictions; Hemopo v R [2016] NZCA 242 at [8] and [19]–[20] — discount of 11 per cent for youth for 19-year-old offender with previous convictions; and Arahanga v R [2014] NZCA 379 at [30] — “very slight discount” for 17-year‑old convicted of wounding with intent to cause grievous bodily harm, aggravated robbery, burglary and two counts of aggravated assault.

^[42] Campbell v R [2020] NZCA 356 at [41]–[45]; R v Harlen [2001] NZCA 130; (2001) 18 CRNZ 582 (CA) at [21]–[22]; and Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [13].

^[43] Parole Act 2002, s 4(1), definition of “short-term sentence”.

^[44] Sentencing Act, s 15A(1)(b).

^[45] Sections 8(g) and 10A.

^[46] Parole Act, s 20(1) and 86(1).

^[47] The joint reasons at [37] refer to the (now well-recognised) age-related neurological differences between young people and adults. These have significant implications for the assessment of culpability, and for the prospect of rehabilitation with appropriate support. And as the joint reasons record, imprisonment is likely to be disproportionately severe for young people.

^[48] United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 37(b)

^[49] At the risk of stating the obvious, NZBORA applies to the judicial branch of government.: see NZBORA, s 3; Simpson v Attorney-General [1994] 3 NZLR 667 (CA) at 676; and Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A commentary (2nd ed, LexisNexis, Wellington, 2015) at [5.6].

^[50] Sentencing Council Sentencing Children and Young People: Definitive Guideline (June 2017).

^[51] Although less severe, as in many New Zealand prisons prisoners spend significant periods locked up in cells, with their movement restricted to a single room.

^[52] Other limits on the exercise of rights and freedoms protected by NZBORA and the common law in prisons relate to matters such as access to information and freedom of communication, clothing and other forms of personal expression in relation to appearance, meal times and dietary options, and access to personal possessions.

^[53] And in particular, incremental deterrence based on the difference between a sentence of home detention and a sentence of imprisonment: see R v Vhavha [2009] NZCA 588 at [40] per William Young P.

^[54] The two-step process contemplated by s 15A involves some artificiality, and is difficult to reconcile with conventional ideas about the hierarchy of sentences, as William Young P noted in Vhavha, above n 53, at [31].