Adams v The King
[2025] NZHC 500
•13 March 2025
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-38/
CRI-2025-441-01 [2025] NZHC 500
BETWEEN MANE HAPETA ADAMS and MANE PAHI
Appellants
AND
THE KING
Respondent
Hearing: 12 March 2025 Counsel:
M J Phelps for Appellant Adams S Jefferson for Appellant Pahi
C R Walker for Respondent
Judgment:
13 March 2025
JUDGMENT OF GRAU J
[Sentence appeals]
Introduction and summary
[1] On 5 February 2023, Mane Adams and Mane Pahi chased a rival gang member along Napier streets after he had threatened Mr Adams’ grandson. Their car hit the victim’s car, with the result that the victim lost control, crashed and was seriously injured. Mr Adams and Mr Pahi were sentenced to 21 months’ imprisonment after pleading guilty to a charge of causing grievous bodily harm with reckless disregard.1
[2] The only issue in the appeals is whether the sentence of imprisonment should have been commuted to home detention. The appellants submit the Judge erred by imposing a custodial sentence. The respondent says no error was made.
1 Police v Adams and Pahi [2024] NZDC 30021. The charge, under the Crimes Act 1961, s 188(2), has a maximum penalty of seven years’ imprisonment.
ADAMS v R [2025] NZHC 500 [13 March 2025]
[3] The very experienced District Court Judge was faced with a difficult sentencing decision where there were good reasons both for and against the imposition of a custodial sentence. Although another Judge might have reached a different outcome, I am unable to find any error in the Judge’s decision. As I will discuss, the Judge considered the countervailing factors but gave precedence to denunciation and deterrence to respond to a public display of gang-related behaviour that was a risk to the public and caused serious injury to the victim.
The offending
[4] Mr Adams is the president of the Hawke’s Bay chapter of the Black Power gang and his nephew, Mr Pahi is a patched member. In the early evening of 5 February 2023, Mr Adams, Mr Pahi and other Black Power members were socialising at a bar in Taradale when Mr Adams’ grandson ran into the bar. The grandson told Mr Adams about what the summary of facts describes as “an abusive exchange” he had with the victim, a Mongrel Mob associate, who had driven past him.
[5] While Mr Adams’ grandson was at the front of the bar talking to Mr Adams, he saw the victim’s car driving north on Gloucester Street and pointed it out. Mr Adams quickly collected Mr Pahi and they rushed out to the car park to Mr Adams’ ute. Mr Adams picked up a baseball bat from the tray and got into the front passenger seat. Mr Pahi then drove them around Taradale in search of the victim’s car. They saw it at an intersection and turned right through a red light to chase it, quickly catching up, with Mr Adams leaning out of the passenger window holding up the baseball bat to threaten the victim. They were speeding (although their actual speed is not known).
[6] The victim tried to accelerate away. Mr Adams and Mr Pahi pulled out into the middle of the road on the right-hand side of the victim’s car and mostly behind it. When they pulled back into their own lane, they struck the back corner of the victim’s car, causing the victim to lose control, veer to the right across the oncoming lane and crash into a fence and tree on the opposite side of the road. At the time, there were other members of the public driving on this road who saw what happened.
[7] The victim was taken to hospital and his partly severed ear was sutured. He was transferred to the Intensive Care Unit in Christchurch, having suffered fractures and dislocations to a number of neck bones. He underwent surgery, including the insertion of rods and screws. On 10 February 2023, he was transferred to the Burwood Spinal Unit. He made good progress with rehabilitation and was discharged home on 21 February 2023. His partner, who had also been in the vehicle, was uninjured. The victim did not want to engage in the prosecution process, and did not make a statement about the incident or provide a victim impact statement.
[8] Mr Adams and Mr Pahi had left the scene after the accident. However later, in March 2023, they both handed themselves into the Police. They were originally charged with causing grievous bodily harm with intent to cause grievous bodily harm but subsequently pleaded guilty to an alternative charge of causing grievous bodily harm with reckless disregard. This charge was on the basis that the driving was reckless and the injuries to the victim were caused recklessly, not intentionally.
Sentencing decision under appeal
[9] After setting out the facts and the basis of the charge of recklessly causing grievous bodily harm, the Judge recorded that she had read the pre-sentence report, the “lengthy” and “informative” cultural report tendered under s 27 of the Sentencing Act, and the many references provided to the Court for both men.2
[10] Next, the Judge noted Mr Adams’ explanation for the offending, which was that he was acting as a grandfather, reacting to his grandson being the recipient of abuse. Her Honour did not accept, however, that Mr Adams was only intending to find out who it was in order to report him to his captain. Instead, as she found, Mr Adams was clearly intending to intimidate, threaten, and likely use violence, with the hallmarks of gang retributive violence.3
[11] The Judge also noted Mr Adams’ significant contribution to his community and that he was well respected. With reference to the s 27 report, her Honour noted
2 Police v Adams, above n 1, at [9].
3 At 10]–[11].
Mr Adams’ difficult and deprived upbringing. She also referred to his ability to remain offence free for periods, but observed that offending did reoccur when Mr Adams was triggered, leading to serious violence. She described him as impulsive and referred to similar offending in 2013.4 She commented on the irony in his situation, as Mr Adams otherwise provided advice and support to Police to diffuse gang tensions and provided leadership.5
[12] Her Honour then turned to the issue of Mr Adams’ remorse, recognising it was difficult to quantify. She noted that the guilty plea was the biggest indicator of remorse, that the PAC report writer had been impressed with Mr Adams, and that the report had recommended what was accepted to be an unrealistic sentence of intensive supervision. Her Honour’s assessment was that, with the benefit of hindsight, Mr Adams was sorry for what happened, but she considered his actions at the time were what needed to be addressed.6
[13] With respect to Mr Pahi, her Honour first referred to his other offending, in September 2022 for which he was also being sentenced. It involved a gang-related incident at a service station where he and others wearing gang clothing drove at speed towards a Mongol Motorcycle Club member. Mr Pahi subsequently pleaded guilty to possession of an offensive weapon (a sledgehammer, which formed a part of the incident) along with disorderly behaviour. There was also a charge of possession of a small amount of cocaine, resulting from a Police search.7
[14] Mr Pahi’s explanation for the principal offending, in his PAC report and cultural report, was that he was in a heightened state, having been told of the threat to Mr Adams’ grandson. He said he did not mean to cause the injuries, and wished the matter had been dealt with differently. He had been raised in a gang environment, and his upbringing was suboptimal. But he had his own business, four children, was in a stable relationship and wanted to distance himself from the gang. Although he had
4 At [12].
5 At [13].
6 At [14].
7 At [15]–[17].
previous violence convictions, he had been out of trouble since 2017–2018 and was now aged 29.8
[15] After referring to the purposes and principles of sentencing and the need to assess aggravating and mitigating factors, both personal and offence-related, her Honour assessed a starting point of around two and a half years, noting that the offending had gang undertones.
[16] The reductions for Mr Adams were 20 per cent for his guilty plea, 10 per cent for his personal matters set out in the s 27 report and another 10 per cent to account for the impact of incarceration on his grandson (if that was the result) and acknowledging his contribution to the community. An uplift of three months was applied to reflect Mr Adams’ previous convictions for violence, leading to an end sentence of 21 months’ imprisonment.9
[17] Mr Pahi received a 20 per cent reduction for his guilty plea, and a further reduction for the issues raised in his cultural report. The Judge acknowledged his personal circumstances, some remorse and the effect of any sentence on his family. With an uplift for his other offending and his previous convictions, her Honour also arrived at an end sentence of 21 months’ imprisonment.10
[18]Turning to the issue of home detention, her Honour said:
[27] So, the issue of home detention does arise and both of you are seeking that. Now, I have considered all the information that has been provided to me in the cultural report and the references and the pre-sentence report and I have also considered the principles and purposes that are relevant to sentencing which I have already talked about but of course the least restrictive outcome, prospects of rehabilitation but also protection of the public, deterrence and denunciation. Having thought about it carefully it is my view in the overall circumstances of this case that there are some factors that do favour home detention but there are other factors of course that do not and that I do also need to consider, those being, particularly in relation to this kind of offending, deterrence and denunciation.
[28] This was a situation where the gang connotation cannot be ignored. It was conduct which put the public at great risk and caused very serious harm to the victim. Such conduct does in my view require a stern response so the
8 At [18]-[20].
9 At [24].
10 At [26].
sentence will be one of imprisonment, there will be no home detention and there will need to be disqualification and I think that will be for a period of 12 months because post that you will be on special conditions.
[19] Accordingly, both men were sentenced to 21 months’ imprisonment with standard and special release conditions to extend six months after sentence expiry. Both were disqualified from driving for 12 months. Mr Pahi was also sentenced to concurrent sentences on his additional charges.
Approach on appeal
[20] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. The court would not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.11
[21] The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002.12 Appellate review, as in other sentence appeals, focuses on the identification of error, if any, in the court below.
Submissions of the parties
[22] For Mr Adams, Mr Phelps submits the Judge did not consider whether deterrence and denunciation could be achieved short of imposing a sentence of imprisonment and did not have regard to the desirability of keeping offenders in the community. Although Mr Adams’ offending was serious, home detention could still achieve the purposes and principles of sentencing while also assisting in his ongoing rehabilitation. The offending, while having gang overtones, was not solely gang motivated, rather the trigger was the confrontation with Mr Adams’ grandson. Deterrence and denunciation were not engaged to a level that required a sentence of imprisonment. Home detention would provide for community protection, which was also better achieved by enabling Mr Adams to stay in the community and undertake
11 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
12 Manikpersadh v R [2011] NZCA 452.
treatment. Mr Adams has treatment options in the community but has no prospect of rehabilitation in prison. Prison is a sentence of last resort which was not required by the circumstances of the offending and the offender.
[23] For Mr Pahi, Mr Jefferson observes that the PAC recommended home detention and submits that the Judge did not acknowledge a sentence of home detention is a real alternative that meets the principles of deterrence and denunciation. Nor did the Judge take into account s 8(h) of the Sentencing Act which requires the Court to take into account any particular circumstances of the offender that make an otherwise appropriate sentence disproportionately severe. Imprisonment would inevitably cause hardship to Mr Pahi’s family, including his children, whose best interests are a primary consideration. In all of the circumstances, home detention was the least restrictive outcome that was appropriate in the circumstances.
[24] For the respondent, Mr Walker submits the Judge gave careful consideration to the competing factors for and against home detention, made a decision that imprisonment was required and did not err in exercising her discretion. In response to the criticism of a lack of reference to s 8(h) of the Sentencing Act, Mr Walker notes that the Judge had already referred to the impact of imprisonment on Mr Pahi’s whānau in the previous paragraph of her decision and she was not required to repeat the matters she had discussed.
[25] The respondent submits that the public interest considerations were decisive. The offending was gang driven; the actions of the appellants were extreme due to the victim being a rival gang member, they put members of the public at great risk on a busy arterial road and caused serious injury. While the harm caused may not have been intended, a confrontation in public was. And there were personal factors also counting against home detention, when both appellants had previous convictions for serious violence.
Discussion
[26] Section 16(2) of the Sentencing Act stipulates that a court must not impose a prison sentence unless it is satisfied that the sentence is being imposed for the
particular listed purposes in s 7 (which include denunciation and deterrence) and those purposes cannot be achieved by a sentence other than imprisonment.
[27]As the Court of Appeal has said in the case of Fairbrother v R:13
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”. Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.
[28] Thus the question to be answered is whether the Judge has made a considered and principled choice between imprisonment and home detention; in other words, was the choice an intelligible one?
[29] This case was, in my view, very close to the “dividing line” described above. On the information available to the Judge there were a number of factors that pointed away from imprisonment. It is evident that both men have good qualities. It is also evident that remaining in the community would likely be more productive in terms of their rehabilitation. But the Judge did consider those factors in what was a difficult exercise in judgment, and she ultimately concluded that denunciation and deterrence required a prison sentence. I agree with the respondent that the three factors the Judge highlighted—a retributive gang incident involving a risk to public safety, and serious harm caused—justify the choice she made.
13 Fairbrother v R [2013] NZCA 340 at [29]–[31] (footnotes omitted).
[30] I also agree with the respondent that this case is largely indistinguishable from last year’s decision in Lay v Police which similarly involved gang-related retribution via a car chase in a provincial centre, risk to the public and harm caused.14 In that case as in the present case, it is evident that the District Court Judge did not ignore s 16 of the Sentencing Act, and did not prioritise denunciation and deterrence without regard to the other sentencing purposes. Rather the decision makes it clear the Judge considered that a sentence of home detention would not adequately achieve those purposes.
[31] It follows I do not agree with Mr Phelps that the Judge’s decision requires guesswork or speculation as to why imprisonment was chosen over home detention. Her Honour had considered all of the information which was in a very comprehensive s 27 report, as well as references, and positive PAC reports. She acknowledged there were factors favouring home detention. But she also appropriately had regard to the gang context and the conduct which she rightly said put the public at great risk and caused very serious harm to the victim. As she said, a stern response was required. It is apparent that her Honour saw the factors supporting home detention as an end sentence were outweighed by the need to denounce and deter such offending.
[32] As I have said, the decision was finely balanced. I do have some sympathy for the appellants’ predicaments. They were otherwise good candidates for home detention. But I am unable to find an error in the Judge’s approach.
[33]Accordingly, the appeals against sentence are dismissed.
Grau J
Solicitors:
Crown Solicitor, Napier
Copies:
M J Phelps, Barrister, Hastings for Appellant Adams S Jefferson, Barrister, Napier for Appellant Pahi
14 Lay v Police [2024] NZHC 1118.
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