Ihaia v R [2021] NZHC 1785 (15 July 2021)

Last Updated: 9 August 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000064 [2021] NZHC 1785

BETWEEN	TYLER RAHARA HEREMAIA IHAIA Appellant
AND	THE QUEEN Respondent

Hearing:	13 July 2021
Appearances:	T J Darby for Appellant Z Johnston for Respondent
Judgment:	15 July 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 15 July 2021 at 12:15 pm

Registrar/Deputy Registrar

Solicitors: Crown Law, Wellington Counsel: T Darby, Auckland

IHAIA v R [2021] NZHC 1785 [15 July 2021]

• [1] Tyler Rahara Heremaia Ihaia was sentenced to three years’ imprisonment by Judge R J Collins in the District Court on 8 December 2020,¹ after pleading guilty to one charge of wounding with intent to cause grievous bodily harm,² and two charges of assault with weapon.³

• [2] Mr Ihaia now appeals against sentence on the grounds that the Judge erred in setting the starting point, discounting the starting point, failing to consider Mr Ihaia’s lack of prior convictions, and failing to impose a sentence of home detention.

Factual background

• [3] The following facts are drawn from the Caption Summary.

• [4] On Sunday 3 November 2019, at around 3 am, Tyler Ihaia was involved in a street altercation with a group of unknown persons in central Auckland.

• [5] Mr Ihaia broke away from the altercation and got into his vehicle, which was parked nearby. He was the sole occupant of the vehicle and seated in the driver’s seat.

• [6] Mr Ihaia drove his vehicle towards the group of persons connected with the altercation, who were standing on the road. He intentionally accelerated towards this group, before swerving right into another smaller group of people, who were unrelated to the altercation.

• [7] Mr Ihaia’s vehicle struck the three victims, and then crashed into a concrete block.

• [8] Victim A was catapulted into the air and landed on the road. He sustained a fractured knee, broken teeth and multiple scratches and bruises. He is receiving ongoing treatment for his injuries.

¹ R v Ihaia [2020] NZDC 25901.

² Crimes Act 1961, s 188(1): maximum penalty of 14 years’ imprisonment.

³ Crimes Act, s 202C: maximum penalty of five years’ imprisonment.

• [9] Victim B was knocked up onto the vehicle’s windscreen and carried on the bonnet until the vehicle crashed, when he was flung onto the ground. He sustained cuts to his face and head, and a sore left leg.

• [10] Victim C was also knocked onto the vehicle’s bonnet and then flung onto the ground. She sustained heavy bruising to most of her body, a sore shoulder and left thigh.

• [11] Mr Ihaia’s vehicle was seriously damaged by the collision with the concrete block. The windscreen was smashed when victims B and C were thrown against it.

• [12] After the crash, Mr Ihaia exited his vehicle and was apprehended by bystanders, who called the Police.

• [13] Mr Ihaia returned a breath alcohol test of 107mg of alcohol per litre. He was under 20 years of age and therefore not permitted to drink any alcohol before driving.

• [14] The incident was captured on CCTV.

• [15] In explanation, Mr Ihaia stated that he was distracted while driving, swerved to avoid the larger group of persons on the road, and hit the accelerator instead of the brake because his foot was obstructed.

Legal principles on appeal

• [16] The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:⁴

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

⁴ Criminal Procedure Act 2011, s 250.

• [17] This Court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.⁵ The error must be adequately significant for the appeal to be allowed. Although the Criminal Procedure Act does not require the sentence to be “manifestly excessive”, this is a helpful concept when considering the seriousness of the error.⁶

Pre-sentence report

• [18] The pre-sentence report from the Department of Corrections recommended a sentence of home detention for Mr Ihaia.

• [19] In his favour, the report-writer identified Mr Ihaia’s lack of previous convictions, expression of remorse and regret, and his willingness to take responsibility for his actions and engage in restorative justice processes with the victims.

• [20] His offending was attributed to poor decision-making skills, over confidence and lack of experience as a driver, youth and alcohol.

• [21] He was assessed as having a very low risk of re-offending, a low risk of future harm to others, and no risk of self-harm. He presented as polite and forthcoming. He grew up in a stable home and has strong family support. He completed school and then an apprenticeship and has a good work history. He has no gang connections and his friends and family provide pro-social support. He only drinks socially but admits to drinking excessively with friends and might benefit from a Drink Driving rehabilitative programme.

• [22] Mr Ihaia was therefore assessed as suitable for a community-based sentence and was presented with the agreement form, which he signed. His mother’s address in Pokeno has been assessed as technically suitable for home detention and his mother has signed the consent form as the occupant.

⁵ Tutakangahau v R [2014] NZCA 279 at [30].

⁶ At [35].

District Court decision

• [23] At the outset of the sentencing, the Judge first explained the charges to Mr Ihaia and reviewed the facts of the offending. The Judge noted the strength of the evidence, including CCTV footage. He referred to victim C’s victim impact statement and noted that it was very fortunate that none of the victims were more seriously injured or even killed. He disregarded Mr Ihaia’s explanation for the offending as implausible and symptomatic of his youth.

• [24] The Judge then noted the Mr Ihaia had no previous convictions and was only 19 years old at the time of the offending.

• [25] The Crown submissions recommended a starting point of four years’ imprisonment, which the Judge declined to adopt. He commented that the Crown’s recommendation was “compassionate” and potentially incorporated a discount for youth.⁷

• [26] With reference to the tariff case R v Taueki,⁸ the Judge set a starting point of five years’ imprisonment for the lead charge of wounding with intent to cause grievous bodily harm. Having identified aggravating factors as the use of a motor vehicle to drive deliberately at the victims, the higher level of violence this occasioned and the number of victims, the Judge found that the offending fell in the bottom of Band 2 or at the very top of Band 1. The Judge’s comments as to starting point are as follows:⁹

... in my view I cannot see how on a principled basis a starting point of less than five years can be adopted. And I say that because of the use of the vehicle, the way it was used and the fact that there were three victims. Had there been just the one victim a starting point of four years may well have been achievable, but the fact that two other people were also hurt ... in my view demands a five year starting point.

• [27] Following the approach taken by the Supreme Court, the Judge assessed the true worth of Mr Ihaia’s guilty plea, given that the trial would have been brief with an inevitable finding of guilt, given the strength of the evidence, as warranting a discount of 20 per cent.

⁷ At [15].

⁸ R v Taueki [2005] 2 NZLR 371 (CA).

⁹ At [16].

• [28] The Judge then awarded a further 20 per cent discount for Mr Ihaia’s youth.

• [29] The Judge declined to award any further discounts. He found that there was insufficient evidence to establish genuine remorse or desire to make amends to the victims, despite an indication that Mr Ihaia was prepared to attend a restorative justice conference. Likewise, the Judge found no objective evidence that prospects of rehabilitation warranted a further discount. The Judge acknowledged that while alcohol had likely played a part in the offending, the law precluded him from considering this as a mitigating factor.

• [30] After a total discount of 40 per cent, the end sentence on the lead charge was three years’ imprisonment. The Judge imposed sentences of one year’s imprisonment for each of the two charges of assault with weapon, to be served concurrently.

• [31] The Judge concluded that the offending was “simply so serious that there is no other appropriate response on behalf of the community”.¹⁰

Appellant’s submissions

• [32] Mr Ihaia appeals against sentence on the following grounds:

(a) The starting point was too high;

(b) A full 25 per cent guilty plea discount should have been applied;

(c) Discounts for remorse, rehabilitative prospects and previous good character should have been given;

(d) Home detention or community detention should have been imposed, as the least restrictive sentence available.

• [33] As to starting point, counsel for Mr Ihaia submits that:

¹⁰ At [21].

(a) Both Crown and defence counsel recommended a global starting point of four years’ imprisonment in sentencing submissions;

(b) The pre-sentence report writer recommended a sentence of home detention;

(c) The Judge expressed uncertainty as to whether the offending lay at the top of Band 1 or the bottom of Band 2 in the tariff case;

(d) The Judge erred when identifying the use of a vehicle as an aggravating factor. This aspect of the offending was already accounted for as part of the charges brought;

(e) The Judge erred when identifying the number of victims as an aggravating factor. This aspect of the offending was already accounted for by the fact that three charges were laid. There was only one act of (reckless) driving involved. The fact that three people were injured is a matter of chance, rather than culpability;

(f) Mr Ihaia’s actions were in response to a threat of assault against him. In Taueki the Court held that serious provocation may justify a lower starting point;¹¹

(g) Accordingly, a starting point in the range of three years and six months to four years would be appropriate.

• [34] As to guilty plea discount, counsel submits as follows:

(a) Crown and defence counsel agreed at sentencing that a full 25 per cent discount was available;

(b) The guilty pleas were entered at the first opportunity after resolution;

¹¹ R v Taueki, above n 8, at [32].

(c) Two of three original charges were significantly amended at resolution. A defendant cannot be expected to plead guilty to inappropriate or unduly serious charges for the purpose of securing a full plea discount;

(d) The Judge’s reasoning was plainly wrong.

• [35] As to further discounts, counsel submits as follows:

(a) Remorse is a mandatory consideration under s 9(2)(f) of the Sentencing Act;

(b) Evidence of remorse is not required. It is a matter of assessment by the sentencing Judge rather than a matter of determination on the basis of evidence;

(c) The pre-sentence report provided a proper basis for the Judge to find Mr Ihaia was remorseful when it stated: “He expressed considerable remorse and regret for his actions”. The Judge failed to properly acknowledge or deploy the information in this report;

(d) It is axiomatic that a remorseful offender with no previous convictions will have good rehabilitation prospects. The Judge erred when taking a negative view of Mr Ihaia’s rehabilitative prospects.

• [36] As to previous good character, counsel submits that:

(a) Previous good character is a mandatory consideration under s 9(2)(g) of the Act;

(b) While the Judge acknowledged Mr Ihaia’s lack of previous convictions, His Honour failed to award a specific discount for this factor.

• [37] As to the least restrictive sentence, counsel submits that:

(a) The Court is required to impose the least restrictive outcome appropriate in the circumstances;¹²

(b) Had the correct starting point been set and appropriate discounts applied, the end sentence would have been a short-term sentence. A sentence of home detention or community detention would then have been available and appropriate for a young, remorseful, first-time offender;

(c) Mr Ihaia has now served seven months in prison (equivalent to a sentence of 14 months). The punitive purpose of a sentence has been met and the focus should now shift to the offender’s rehabilitative needs.

Respondent’s submissions

• [38] Crown counsel submits that the Judge did not err when imposing Mr Ihaia’s sentence.

• [39] As to the starting point, Crown counsel submits:

(a) The five year starting point was justified;

(b) The Judge was required to accept as proved all facts essential to a guilty plea;¹³ as Mr Ihaia pleaded guilty to the charge of wounding with intent to cause grievous bodily harm, the sentence must reflect intentional, not reckless, harm;

(c) A starting point at the bottom of Taueki Band 2 was appropriate. Two aggravating factors were properly identified as the use of a vehicle as a weapon and the number of victims;

¹² Sentencing Act 2002, s 8(g).

¹³ Sentencing Act, s 24(1)(b).

(d) The Court of Appeal has specifically endorsed a five year starting point for impulsive street attacks using a weapon but not inflicting lasting injuries;¹⁴

(e) Case law involving similar offending indicates a starting point of five to six years’ imprisonment is appropriate.¹⁵

• [40] As to the guilty plea discount, Crown counsel submits:

(a) Mr Ihaia was charged in November 2019 and entered guilty pleas in July 2020 following amendment of two charges in relation to victims B and C. The most serious charge was not amended. Therefore, this conduct does not indicate an early acceptance of responsibility;

(b) The guilty plea discount is a matter for evaluative judgment. The scale and complexity of the trial, the timing of the plea, reasons for any delay, the likelihood of conviction, and the offender’s acceptance of responsibility are all factors which may affect the discount;¹⁶

(c) The strength of the Crown’s case aids the Court’s assessment of the genuineness of the offender’s acceptance of responsibility. Mr Ihaia does not accept full responsibility for his actions.

• [41] As to the availability of further discounts for remorse, rehabilitative prospects and lack of previous convictions, Crown counsel submits:

(a) Remorse is a matter for the sentencing judge to assess; the Judge was not required to accept the pre-sentence report-writer’s views as to remorse expressed. Mr Ihaia told the report-writer that his actions were not intentional – contrary to pleading guilty to wounding with intent to cause grievous bodily harm;

¹⁴ R v Taueki, above n 8, at [37](a).

¹⁵ Denney v R [2017] NZCA 80; R v Goyen CA285/05, 1 May 2006; R v Barlow [2019] NZHC 650;

R v Heremaia [2012] NZHC 3361.

¹⁶ Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [23].

(b) The offender bears the onus of proving their remorse at sentencing. Mr Ihaia failed to demonstrate to the Judge that his remorse was genuine.

(c) Other than an indication that Mr Ihaia was scheduled to attend rehabilitative programmes, nothing further was provided on this topic at sentencing;

(d) The Judge may have regarded the 20 per cent discount for youth as encompassing recognition of Mr Ihaia’s previous good character. Youth discounts in the range of 11 to 15 per cent are typical where the offender has previous convictions.

• [42] Finally, the Judge was not required to consider whether a non-imprisonment sentence was appropriate, given that the end sentence was well above a short-term sentence.

• [43] In conclusion, Crown counsel submits that the role of an appellate Court is not to conduct a detailed analysis of each step in the Judge’s process, but rather to ask whether the end sentence can be characterised as manifestly excessive.

Discussion

Starting point

• [44] The relevant tariff case for offences causing grievous bodily harm (GBH), R v Taueki, sets out three sentencing bands. The two lower bands are relevantly explained as follows:¹⁷

Band one (three to six years) was appropriate for violence at the lower end of the spectrum, which did not involve extreme violence or violence which was life threatening. Where none of the aggravating features was present, a starting point at the bottom end of band one was appropriate. The presence of one or more factors required a higher starting point. Band two (five to ten years) was appropriate for grievous bodily harm offending which featured two or three aggravating factors.

¹⁷ R v Taueki, above n 8, at [headnote].

• [45] Setting the starting point with reference to the Taueki sentencing bands requires both an overall assessment of which band the offending properly falls into, and identification of any aggravating factors which may locate the offending at a particular position within a band, or warrant categorisation in a higher band. As the sentencing bands overlap, the top of Band one will warrant a similar sentence to the bottom of Band two.

• [46] The offending in this case might be usefully assessed with reference to the

Taueki street attack examples. Band one offending is described as follows:¹⁸

Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated. On the other hand, where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim.

• [47] Band two offending includes a “concerted street fight”, as described below:¹⁹

For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required.

• [48] Mr Ihaia’s offending presents an unusual combination of these features. He acted alone, and his actions were impulsive. However, the vehicle was used as a weapon, and the harm to victim A was serious and will likely have lasting effects. The offending therefore has elements of offending associated with both Band one and Band two.

• [49] I do not consider that premeditation was present. The victims were unknown to Mr Ihaia. They had done nothing to anger him and he had nothing to gain by injuring them. Further, there is a break in time and continuity between the earlier street altercation and the assault with a vehicle. In my view, the offending presents as a

¹⁸ At [37](a).

¹⁹ At [39](a).

misplaced, ill-conceived display of temper or aggression, rather than an escalation of the earlier altercation through the use of a weapon. In other words, it is unclear on the facts whether the offending with the vehicle forms part of the earlier altercation or is a separate event. For this reason, I reject defence counsel’s submission that the victims’ conduct was in any way provocative and should be recognised as a mitigating factor. Whatever had occurred between Mr Ihaia and the group of persons involved in the altercation, the actual victims had done nothing to trigger Mr Ihaia’s actions against them; there was no “threat of assault” as defence counsel suggests, and no “serious provocation” as required by Taueki.²⁰

• [50] The aggravating factors identified in Taueki are as follows:

(a) Extreme violence;

(b) Premeditation;

(c) Serious injury;

(d) Use of weapons;

(e) Attacking the head;

(f) Facilitation of crime;

(g) Perverting the course of justice;

(h) Multiple attackers;

(i) Vulnerability of victim;

(j) Home invasion;

(k) Gang warfare;

(l) Public official victim;

(m) Vigilante action; and

(n) Hate crime.

• [51] I provide the list in full because it highlights the type of conduct typically associated with GBH offending. The Judge identified two aggravating factors which

²⁰ R v Taueki, above n 8, at [32](a).

warranted a starting point of five years, at the upper end of Band one or the bottom of Band two; use of a weapon (the vehicle) and multiple victims.

• [52] I note defence counsel’s submission that the reference to, and description of, weapons in Taueki does not necessarily include a motor vehicle. Notwithstanding my comments below on the way in which the vehicle was used, I accept that the harm was directly caused and significantly exacerbated by the involvement of the vehicle. In fact, had Mr Ihaia been walking along the street rather than driving, it is doubtful whether any type of assault involving these particular persons would have occurred at all.

• [53] Further, while I accept that a vehicle was used as a weapon in this case, and that a motor vehicle can be an extremely dangerous and potentially fatal weapon, the way in which Mr Ihaia used his vehicle indicates a momentary lapse of judgment and “single blow” violence, rather than repeated, prolonged, deliberate violence inflicted by a weapon (such as a blunt instrument).

• [54] In this case, Mr Ihaia swerved into the victims and came to an almost immediate halt against a concrete block. There is no indication that he intended to use his vehicle to pursue the victims or reverse over them, or that he intended to pursue the assault once he exited his vehicle. I consider this conduct analogous to “single blow” GBH and manslaughter cases, in which a single, ill-conceived gesture of violence causes an unanticipated degree of grievous bodily harm, or even death. Appellate authorities indicate that starting points for sentencing “single blow” manslaughter range between three and six years’ imprisonment.²¹ Given that the force of the harm results in death, the sentencing range appears low, particularly in comparison with the GBH bands outlined in Taueki. However, the Courts’ approach to sentencing “single blow” assaults which result in death reflects the lower culpability attached to a single, impulsive act of aggression when compared with a premeditated, prolonged attack intended to cause serious physical injuries.

²¹ Blacker v R [2019] NZCA 232; Everett v R [2019] NZCA 68; Palmer v R [2016] NZCA 541;

Murray v R [2013] N CA 177; R v Pene [2010] NZCA 387.

• [55] As for the number of victims, the tariff case does not expressly identify multiple victims as an aggravating factor, although I acknowledge that this factor will increase an offender’s overall culpability. However, I accept defence counsel’s submission that the lead charge of wounding with intent to cause GBH, to which Mr Ihaia pleaded guilty, was laid by the prosecution in relation to victim A only. The lesser charge of assault with a weapon was laid in relation to victims B and C. Therefore, it was preferable as a matter of principle that a starting point on the lead charge should not have been set as if this conduct involved multiple victims. When the Judge identified multiple victims as an aggravating factor he was prompted to adopt a starting point that was too high. In my view, the preferable approach for the Judge to have taken was to set a starting point for the lead offence as involving one victim and consider additional victims and additional charges at the totality stage. This approach means that only one aggravating factor identified by Taueki is engaged by Mr Ihaia’s offending.

• [56] While the above analysis provides sufficient reasons to re-set the starting point, I also note the Court of Appeal’s comments regarding the proper application of tariff cases. With reference to R v Mako,²² the Court in Taueki commented that “the suggested bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that. ... [and to] properly reflect the culpability inherent in the offending”.²³

• [57] Further, the Court noted that in exceptional cases, a sentence of less than three years remained available for GBH offending. To illustrate this point, the Court provides the example of a case “where the sentencing Judge considers the offending, while technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge”.²⁴ I consider that Mr Ihaia’s offending is one such case. Assault is a broad category within the Crimes Act 1961 and encapsulates a wide range of conduct. It is not unusual for a number of different charges to be available to the prosecution for the same offending. In Mr Ihaia’s case,

²² R v Mako [2000] NZLR 170 (CA).

²³ R v Taueki, above n 8, at [42].

²⁴ At [27].

a charge under s 188(2) of wounding with reckless disregard for the safety of others in relation to victim A was clearly available on the facts. As noted by the Court in Taueki, the sentencing process must be sufficiently flexible to accommodate inconsistencies generated by the “exercise of prosecutorial discretion”.²⁵

• [58] An example of more serious conduct charged under s 188(2) is Barlow v R.²⁶ In that case, the victim was standing on the road facing Ms Barlow who was seated in the driver’s seat of her vehicle, and driving slowly towards the victim. The victim backed away, putting her hands on the bonnet of Ms Barlow’s vehicle to keep her balance. Ms Barlow continued to drive forward. As a result, the victim lost her balance and fell over in front of Ms Barlow’s vehicle. Ms Barlow then deliberately drove over the victim with her right front tyre before speeding up and driving over the victim with her back right tyre. Ms Barlow then put her vehicle in reverse and drove back over the victim with both front and back tyres. The victim suffered a punctured lung, broken collar bone, eight broken ribs and a broken pelvis in two places. She was placed in a high dependency unit for five days and remained in hospital for eight weeks.

• [59] On appeal, the Judge adopted a starting point of four years’ imprisonment. A final sentence of two years’ imprisonment was imposed with leave granted to Ms Barlow to apply for home detention.

• [60] On analysis, and with the above comments in mind, I consider that Mr Ihaia’s offending falls squarely into Band one. The only aggravating factor is the use of his vehicle as a weapon. The way in which the vehicle was used is analogous to “single blow” assault, which attracts a lower sentence than the prolonged, repeated infliction of injury in which both harm and culpability are increased with each successive blow. On this view, I find that Mr Ihaia’s offending warrants a starting point in the lower middle of Band one, at four years’ imprisonment. This was the starting point recommended by the Crown at sentencing. While a Judge is not bound to accept such a recommendation, it reflects an assessment of culpability by a prosecutor acting in the public interest.

²⁵ At [27].

²⁶ Barlow v R [2019] NZHC 650.

• [61] Having found that the District Court Judge was prompted to adopt a starting point that was too high when he considered the number of victims as an aggravating factor of the lead charge, given that the harm to victims B and C was covered by separate charges, I now apply an uplift of three months for the two lesser charges, in light of the totality principle.²⁷ I agree with the lower court that the three charges form part of the same offending and should be served concurrently.

Discounts

• [62] As for discounts, I am satisfied in the circumstances that Mr Ihaia pleaded guilty to the amended charges at the earliest opportunity. I accept defence counsel’s oral submission at the hearing that it would be unrealistic to expect a defendant to plead guilty to the lead charge while the charges were still being resolved as between Police and defence counsel. I am therefore of the view that the appellant is entitled to a full guilty plea discount of 25 per cent.

• [63] I consider the youth discount of 20 per cent to be appropriate. On my reading of the Judge’s sentencing notes, I consider that he intended to incorporate Mr Ihaia’s lack of previous convictions into this discount. The Judge groups these two factors together when initially summarising the case and makes it clear that the youth discount has been the result of careful consideration.²⁸

• [64] However, as for remorse, I consider the Judge erred when assessing whether or not the appellant’s remorse was genuine. I accept defence counsel’s submission on appeal, that the pre-sentence report writer had the benefit of spending some time with Mr Ihaia and observing his conduct. Probation Officers have a great deal of first-hand experience dealing with offenders, and I accept that the officer who interviewed Mr Ihaia was well-placed to make an assessment as to the authenticity of his remorse and concern for the victims. I am therefore of the view that Mr Ihaia is also entitled to a discount of five per cent for remorse.

²⁷ Sentencing Act, s 85.

²⁸ At [11] and [18].

• [65] With regard to the appellant’s rehabilitative prospects, it appears the Judge’s assessment was linked to his negative view of Mr Ihaia’s lack of remorse.²⁹ The offender’s personal circumstances, as relevant to their rehabilitative prospects, are a mandatory consideration for a sentencing judge.³⁰ However, the Judge makes no reference to the pre-sentence report, which clearly outlines Mr Ihaia’s good prospects of complete rehabilitation, which are linked to his stable family background, supportive whānau, employment qualifications and work history. The report also identifies his risk of reoffending as “very low”. The Judge referred to, but dismissed as disingenuous, Mr Ihaia’s willingness to participate in restorative justice processes. However, this assessment appears contrary to the observations made by the Probation Officer who wrote the pre-sentence report. Although this process was not pursued, for reasons beyond Mr Ihaia’s control, his willingness to participate speaks to both his remorse and prospects of rehabilitation. I am therefore of the view that Mr Ihaia is also entitled to a discount of five per cent for his rehabilitative prospects.

• [66] This brings the total discounts to 55 per cent. The starting point of four years and three months’ imprisonment is therefore reduced to one year and 11 months’ imprisonment.

Home detention

• [67] The Judge was not required to address the possibility of a sentence of home detention as Mr Ihaia’s end sentence was above that of a short-term sentence, on his approach.

• [68] However, on appeal I have found that a sentence of one year and 11 months’ imprisonment is appropriate for Mr Ihaia’s offending. Under the regime of the Sentencing Act, this qualifies as a short-term sentence,³¹ and makes a community- based sentence available for consideration.³²

²⁹ At [20].

³⁰ Sentencing Act, s 8(i).

³¹ Section 4 and Parole Act 2002, s 4.

³² Section 15A(1)(b).

• [69] The Court is bound to impose the least restrictive sentence appropriate in the circumstances.³³ As for any form of sentence, a Court may only impose a sentence of home detention if it is satisfied that it will achieve the relevant purposes and be consistent with the relevant principles of the Sentencing Act.³⁴

• [70] I am mindful that one of the purposes of sentencing is to assist the offender’s rehabilitation and societal reintegration.³⁵ I am also aware that Mr Ihaia has already served just over eight months in prison, either on remand or as a sentenced prisoner. The purposes of denunciation and deterrence must be balanced against the desirability of keeping offenders in the community as far as practicable.³⁶

• [71] The pre-sentence report recommended a sentence of home detention. Mr Ihaia is assessed as suitable for a community-based sentence, having a very low risk of re- offending, a low risk of future harm to others, and no risk of self-harm. He has strong family support from both his parents, pro-social friends and no gang affiliations or criminal associates. In short, the appellant is an ideal candidate for a community- based sentence.

• [72] His mother’s address has been assessed as suitable for home detention and his mother has signed the consent form as the occupant. This address remains available. At the hearing, defence counsel confirmed that Mr Ihaia’s mother remains willing and able to provide this accommodation for her son if a sentence of home detention were to be imposed on appeal.

• [73] In all the circumstances, I consider that home detention is the least restrictive and most appropriate sentence for the appellant. To reflect that fact that persons serving short-term sentences of imprisonment are automatically released when half the sentence has been served, a home detention sentence is normally about half the equivalent sentence of imprisonment. In the present case, to allow for the eight months Mr Ihaia has already spent in custody, I impose a sentence of four months’ home detention.

³³ Sections 8(g) and 15A(1)(a).

³⁴ Section 16(1).

³⁵ Section 7(h).

³⁶ Section 16(1).

Result

• [74] The appeal against sentence is allowed.

• [75] The sentences of three years’ imprisonment on the charge of wounding with intent to cause grievous bodily harm and one year’s imprisonment on the two charges of assault with a weapon are quashed.

• [76] In their place, I impose a sentence of four months’ home detention on the charge of wounding with intent to cause GBH and concurrent sentences of two months’ home detention on the two charges of assault with a weapon to be served at the home detention address identified in the pre-sentence report dated 8 September 2020.

• [77] Further special conditions are imposed as follows:

(a) To attend an assessment for Drink Driving Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(b) To attend an assessment for an anger management programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of Probation Officer.

(c) To attend an assessment for any other programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(d) Not to possess, consume or use any alcohol or drugs not prescribed to you.

Woolford J