Hati v R

[2017] NZHC 687

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-59 [2017] NZHC 687

BETWEEN

DANYON HAILE HATI

Appellant

AND

THE QUEEN Respondent

Hearing:	29 March 2017
Appearances:	C S Cull for the Appellant R B Annandale for the Respondent
Judgment:	10 April 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 10 April 2017 at 3:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms C S Cull, Barrister, Kerikeri

Mr R B Annandale, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

HATI v R [2017] NZHC 687 [10 April 2017]

[1]      The appellant, Danyon Hati, appeals against a sentence of imprisonment for

2 years 2 months for offences of dangerous driving causing death and dangerous driving causing injury.  This sentence was imposed in the District Court at Kaikohe by Judge D J McDonald.1

[2]      Mr Hati contends that there was error by the Judge in the following respects:

(a)      The starting point of 3 years 6 months imprisonment was too high and should have been no more than 2 years 6 months to 3 years imprisonment.  It is contended that the Judge was wrong to assess Mr Hati’s culpability as being “in an intermediate to high level”.

(b)The Judge failed adequately to address a range of personal mitigating factors and that, in consequence, a reduction of 7 months was inadequate.

[3]      The appellant further contends that correction of those errors would result in an end sentence of 2 years or less, after allowing for a further reduction of 25 per cent for a guilty plea, and that the appropriate sentence is one of home detention.

The facts

[4]      The offences occurred in February 2016, in Moerewa.  Mr Hati was driving to his home at about 2:30 am.  He was on Nisbet Street, where the speed limit is 50 kilometres per hour, approaching the State Highway.  Nisbet Street is controlled by a stop sign at its intersection with the State Highway.  The summary of facts records that, as he approached the intersection, Mr Hati accelerated towards it, making no attempt to stop or slow down.   He drove at speed through the stop sign on to the State Highway intending to enter the street opposite, Wynyard Street, as quickly as he could.  He failed to see a light commercial truck approaching the intersection on the State Highway, to his left.  Mr Hati drove at speed into the side of the truck.

[5]      The truck was being driven by Mr Andrew Bell with two passengers, his wife, Mrs Maxine Bell, and his daughter, Ms Kadie Bell.   They were driving to

1      R v Hati [2016] NZDC 24337.

Auckland for Ms Bell to return to university and for Mr and Mrs Bell to take seedlings and plants to their regular stall at the Takapuna market.   Mr Bell was killed.  It is believed that he would have died immediately because of the force of the impact and the extent of the injuries he sustained.  He was left trapped in the cab of his truck.  Mrs Bell and Ms Bell were pulled from the overturned truck.  Ms Bell received bruising, whiplash, and a split liver.

[6]      Mr  Hati  was  at  the  scene  when  police  arrived,  with  supporting  family members nearby.  Mr Hati was taken to hospital by police and, following treatment, was spoken to at a police station.  He admitted the facts relating to his driving, which I have summarised.  He told police that he knew he was not supposed to be driving. He said he made no attempt to stop at the intersection because he was trying to get home more quickly.

[7]      Although he did not have a driver licence, Mr Hati owned the car he was driving.  He had bought this when he turned 19 years of age in July 2015.  He told a clinical psychologist, who had been engaged on his behalf to assist on sentencing, that he was very proud of the car and that it had been driven by his uncle to take the two of them to work at the local freezing works.   Mr Hati acknowledged that on occasion he had driven, despite his not having a driver licence, and despite the fact that he had been stopped by a police officer in June 2014 driving a car and warned not to drive again until he had a driver licence.

[8]      On the evening before the accident Mr Hati and friends had travelled to Paihia in Mr Hati’s car, but he was a passenger.  They drove back to Moerewa, again with Mr Hati as a passenger.  He went to sleep on the way.  He said that he woke sometime after 2:00 am in his car, which was parked at a friend’s house.  His friends had gone into the house.   The psychologist asked Mr Hati to explain why he had driven his car.  Her report includes the following:

Mr Hati stated that he felt sleepy and tired and was focused on going home for a sleep.2   He described thinking ‘I want to be in my own bed’ and ‘It is so close, only 100 to 200 metres up the road’ and ‘three turns and I am home’ as justification for his driving.   He stated that if he had been out of town he would not have driven.

2      There is no suggestion that Mr Hati was affected by alcohol or that he had consumed any.

[9]      He  went  into  the  house  to  get  his  keys  from  his  friend.    After  some questioning and reassurance that he was all right, Mr Hati was given the keys.  The psychologist asked Mr Hati to describe what he then did.  The psychologist’s report records the following:

Mr Hati reported that he had reversed out of the driveway and drove slowly up to the first intersection.   He described turning left, driving for approximately  50  metres  and  then  turning  right.3      He  reported  that  he

‘cruised along’ and picked up speed as he drove along the street towards the intersection with State Highway 1.   Mr Hati recalled that he had slowed down as he approached the intersection, he ‘had a quick look both ways’ and then accelerated again (to cross the intersection).  Mr Hati recalled seeing ‘a flash out of the corner of [his] eye’ which caused him to ‘get spooked’ as he was aware it would be a car, and he therefore accelerated again in an attempt to avoid collusion.

[10] There is a degree of difference between what was recorded in the summary of facts, which is reproduced at [4] above, and what Mr Hati said to the psychologist, with the latter recording that he said he had slowed as he approached the intersection, that he did have a quick look and that he had further accelerated because he had seen the vehicle out of the corner of his eye. This is, in large measure, consistent with Mr Hati’s advice to the probation officer who recorded in the advice to the Court:

Mr Hati realises he made a poor choice by looking, but not stopping, as he approached the intersection.  He advised he accelerated further when he saw the other vehicle in an attempt to avoid the collision.

[11]     There can be no debate that Mr Hati at the point of impact was travelling at speed.  The summary of facts records that the impact was so great it catapulted Mr Bell’s vehicle into the air, turned it 180 degrees, and it ended up on the footpath on the opposite side of the intersection on its side.  Furniture and plants were strewn in an arc of up to 50 metres from where the truck came to rest.  Mr Hati’s car sustained significant frontal damage.   It careered across the footpath, smashed through a concrete and wire fence, and came to rest on the concrete front steps of a home on

the corner of Wynyard Street and State Highway 1.

3      The right turn would have been into Nisbet Street.

The sentencing

[12]     In discussing a starting point, Judge McDonald referred to the fact that the maximum sentence for dangerous driving causing death had been increased in May

2011 from 5 years to 10 years imprisonment and said he had to take that increase into account.4     In that context he referred to the Court of Appeal’s decision in Gacitua v R and the discussion in that case of the approach to sentencing for dangerous driving causing death.5     Judge McDonald observed that the Court of Appeal had placed considerable reliance on a decision of the Court of Appeal of England and Wales in R v Cooksley and the review in Cooksley of the sentencing practice in that jurisdiction.6   I will come back to these matters.

[13]     The Judge noted that both counsel had referred him to a number of other cases and observed that sentencing in this area is very fact specific.  The factors he took into account in setting the starting point were, in summary:7

(a)      Mr Hati was travelling at speed and sped up as he approached the intersection with a stop sign.  He referred to the consequences of the collision   as   indicative   of   reasonable   speed   on   entering   the intersection.

(b)Mr  Hati  was  unlicensed  so  that,  in  effect,  there  had  been  no independent   tests   to   demonstrate   sufficient   driving   skill   and knowledge of the road code to be permitted to drive.  The Judge also noted that a person who first obtains a licence is not permitted to drive after 10:00 pm.

(c)       Mr Hati had received the warning not to drive.

(d)As a result of the dangerous driving Mr Hati killed Mr Bell and seriously injured Ms Bell.

4      R v Hati, above n 1, at [19].

5      Gacitua v R [2013] NZCA 234.

6      R v Cooksley [2003] 3 All ER 40 (Crim App).

7      R v Hati, above n 1, at [20](a) to (d).

[14]     The Judge then said:

[21]      I consider taking all those factors into account, that your culpability, which means your blame, level of blame is in an intermediate to high [sic]. The Crown submit three to three and a half years. Ms Cull, two to two and a half. As I have said, this is not a mathematical exercise. In my view, taking into account all the matters that I have spoken about, I consider a start point of three and a half years was appropriate. That is for both charges. One must take into account that here, there were two victims.

[15]     The Judge discussed and dealt with personal factors which might increase or decrease the sentence as follows:

[22]     I now turn to personal factors. There is nothing against you which calls for an uplift of the three and a half years.

[23]     In your favour. Your previous good character, apart from driving unlicensed. I have had a number of references given to me, all speak highly of you, of your honesty, your loyalty, consideration, that you are humble, that you fight injustice. You completed your high schooling, got a level 1 and

2. Part of level 3. You worked when you could. You assisted your mum and your stepdad in looking after you siblings. That was all in your favour.

[24]      There was your age. You were 19 years and seven months at the time of this crash. Your remorse. I accept it is genuine. I have heard you speak today and it was with some difficulty that you spoke to the family and I am sure, and this is of course natural, that some of that remorse will be for the place you now find yourself. I consider you are entitled to a seven month discount for those factors.

[16]     The Judge was satisfied that the maximum reduction of 25 per cent for the guilty pleas was justified, resulting in the end sentence for dangerous driving causing death of imprisonment for 2 years 2 months.8   A concurrent sentence of 18 months imprisonment for dangerous driving causing injury was imposed.  Mr Hati was also

disqualified from obtaining a driver licence for 3 years.

8      In the sentencing notes as transcribed Judge McDonald referred to an end sentence of 2 years

3 months.  However, there is a handwritten note on the Criminal Record of Appearances, signed by the Judge, recording a sentence of 2  years 2  months imprisonment and the warrant of commitment for sentence is 2 years 2 months.  Two years 2 months is arithmetically correct in terms of the way in which the Judge calculated the sentence from the starting point.

Evaluation: starting point

Submissions

[17]     Ms Cull submitted that the Judge erred in assessing Mr Hati’s culpability as intermediate to high and that it should have been assessed as intermediate.   She submitted that on this basis the starting point should have been between 2 ½ and 3 years.  Ms Cull also referred to three decisions of this Court – Cao v Police,9 Xiao v Police10 and Ko v Police11 – where the starting points were 3 ½ years imprisonment in two of the cases and 3 years imprisonment in the other, and submitted that the

gravity of the offending in those cases was materially worse than the gravity of Mr

Hati’s offending.

[18]     For the respondent, Mr Annandale submitted that the starting point of 3 ½ years was well within the available range and that it may have been open to the Judge to adopt a higher starting point when Mr Hati’s culpability is balanced against the maximum penalty of 10 years imprisonment.  Mr Annandale submitted that the four factors the Judge took into account in setting the starting point were correctly identified as aggravating factors.  Mr Annandale also noted the significant impact on the victims, as had been detailed in their victim impact statements.  This included significant impact on the second child of Mr and Mrs Bell who was 15 years old.  Mr Annandale further submitted that the three cases referred to by Ms Cull were all readily distinguishable and argued that, by comparison with the offending in those three cases, Mr Hati was more culpable.

Assessment

[19]     I am satisfied that the starting point adopted by the Judge was too high and that this resulted from error which requires a reassessment of the starting point.

[20]     It is apparent that, in adopting a starting point of 3 ½ years imprisonment on

the basis that the offending was at “an intermediate to high level”, the Judge placed

weight on the appellate decisions in Gacitua and Cooksley, (as noted above at [12]).

9      Cao v Police [2015] NZHC 1793.

10     Xiao v Police [2016] NZHC 1947.

11     Ko v Police [2012] NZHC 3312.

In my opinion the observations in those two cases could not justify an assessment of the gravity of Mr Hati’s offending as being more than intermediate and the starting point within a range of 2 to 3 years imprisonment.

[21]     In Gacitua the Court said that, before considering the possible impact of the increased maximum sentences on sentencing levels, it was helpful to review the accepted approach to sentencing in cases involving dangerous or reckless driving causing death or injury.  For this purpose there was a reasonably extensive discussion of Cooksley and  sentencing  guidelines  which  had been  recommended  when  the maximum penalty for dangerous driving causing death was increased to 10 years imprisonment in the United Kingdom.  Our Court of Appeal noted that the Court of Appeal of England and Wales had adopted the aggravating and mitigating factors identified by the Sentencing Advisory Panel.

[22]     The aggravating and mitigating factors and four categories for starting points were set out fully in Gacitua.12  The Court then said:

[28]     There may be a case for establishing in New Zealand a tariff for categories of offending at different levels of culpability along the lines discussed in Cooksley. But it would be necessary to adapt the approach in the United Kingdom to take account of matters such as the statutory framework under our Sentencing Act 2002 and the sentencing methodology established by this Court in R v Taueki.13   There may also be a need to adapt the   guidelines   to   reflect   New   Zealand   conditions   and   community expectations. For these reasons, we would prefer to have this issue more fully considered by the Permanent Court in an appropriate case.

[29]     For the present, however, the Cooksley guidelines are useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind. Of course, the weight to be attached to these factors will be a matter to be determined in individual cases. We would not necessarily endorse the suggested sentencing bands in Cooksley.

[23]     The four sentencing bands adopted in Cooksley identify relevant aggravating factors, from a list of 16 aggravating factors, under four headings as follows:14

(a)      “Highly  culpable  standard  of  driving  at  time  of  offence”,  with

aggravating factors (a) to (i).

12     Gacitua v R, above n 5, at [23]-[27].

13     R v Taueki [2005] 3 NZLR 372 (CA).

14     Fully recorded in Gacitua v R, above n 5, at [25].

(b)      “Driving  habitually  below  acceptable  standard”,  with  aggravating

factors (j) and (k).

(c)       “Outcome of offence”, with aggravating factors (l) and (m).

(d)      “Irresponsible behaviour at time of offence”, with aggravating factors

(n) to (p).

[24]     The sentencing bands adopted in Cooksley, as recorded in Gacitua, are as follows:15

1.In cases in which no aggravating features are present, a starting point of between 12 and 18 months.

2.An offence involving a momentary dangerous error of judgement or a   short   period   of   bad   driving,   aggravated   by   a   habitually unacceptable standard of driving (factors (j) or (k)), by the death of more than one victim or serious injury to other victims (factors (l) and (m)) or by irresponsible behaviour at the time of the offence (factors (n) to (p)), a starting point of two to three years.

3.When the standard of driving is more highly dangerous (as indicated, for example, by the presence of one or two of factors (a) to (i), a starting point of four to five years.

4.Cases involving extremely high level of culpability involving three or more of the aggravating factors (a) to (i), a starting point of six years imprisonment.

[25]     In terms of the Cooksley guidelines, Mr Hati’s offending comes within band

2, with a starting point of 2 to 3 years.  Mr Hati’s case is one of a short period of bad driving and with an injury to a second victim which might be described as serious. None of the other aggravating factors referred to in band 2 were present in Mr Hati’s case.  In addition, and importantly, not one of the aggravating factors referred to in bands 3 and 4 was present in Mr Hati’s case.

[26]     The  Court  in  Gacitua  made clear that  it  was  not  adopting the  Cooksley guidelines for New Zealand, but they were nevertheless set out in detail to assist. As earlier  noted  it  seems  apparent  from  Judge  McDonald’s  express  references  to

Gacitua and Cooksley that he placed weight on the Cooksley guidelines.  In terms of

15     Gacitua v R, above n 5, at [27].

the Cooksley guidelines the gravity of Mr Hati’s offending could not be described as intermediate to high.   In my judgment it could not be described as being close to intermediate to high.  Mr Hati’s culpability, at least in terms of Cooksley, would be at the low end of intermediate culpability.

[27]     The comparison between the Cooksley guidelines and the Judge’s assessment suggests error, but could not be determinative of it.  But in my respectful opinion, error is clearly indicated by further considerations.

[28]     Two  of  the  four  aggravating  factors  identified  by  the  Judge  are  not aggravating factors, but are inherent in the offences.  The first is that Mr Hati drove at speed through a stop sign.  That is what made his driving dangerous.  The second is that the Judge treated Mr Bell’s death as an aggravating factor, but that was the other essential element of the offence of dangerous driving causing death.

[29]     The Judge also referred to the injuries to Ms Bell as an aggravating factor. Although the injuries to Ms Bell were an essential element of the second offence of dangerous driving causing injury, there was no error by the Judge in effectively treating those injuries as an aggravating factor in respect of the lead offence of dangerous driving causing death.

[30]     The two remaining aggravating factors identified by the Judge were the fact that Mr Hati was unlicensed and that he had been warned two years before not to drive.   They are aggravating factors, but they are of relatively minor significance when compared with the two other aggravating factors taken into account by the Judge which are in fact inherent in the offence.  And it may be noted that matters such as driving without a licence at the time of the offence are not considered in the Cooksley guidelines as an aggravating factor unless it is habitual.  There appears to be no evidence that Mr Hati habitually drove without a licence.  There is evidence that, in spite of the fact that he bought the car, most of the time he got others to drive it, as had happened that night.

[31]     Drawing these considerations together, in my judgment the starting point should not have been more than between 2 ½ to 3 years imprisonment, a reduction to

the starting point of 6 to 12 months.  This indicates that the starting point adopted by the Judge was out of range, because the adjustment is substantial – between approximately 14 per cent and 29 per cent.

Evaluation: reductions for personal circumstances

Submissions

[32]     Ms Cull submitted that the reduction of 7 months for personal mitigating factors was inadequate to the point of being an error.  7 months is a reduction of 17 per cent from the starting point of 3 years 6 months.   Ms Cull submitted that the reduction should have been at least 20 per cent to 25 per cent having regard to Mr Hati’s age, genuine remorse, previous good character, genuine offers of restorative justice, and steps taken by Mr Hati and his family.

[33]     For the respondent, Mr Annandale submitted that there are no guidelines that establish the appropriate reductions for the factors identified, and that each case involves exercise of judicial discretion turning on the particular facts.  Mr Annandale also submitted that Court of Appeal decisions support a proposition that denunciation and deterrence reduce the available reduction for youth in offences of motor manslaughter,   or   dangerous   driving   causing   death,   on   the   basis   that   a disproportionate  number  of  such  offences  are  committed  by  young  men.    Mr

Annandale referred to R v Pretty16 and Ormsby v R.17

Assessment

[34]     In  my respectful  opinion  the credit  given by the Judge  for the personal mitigating factors  was inadequate to  a  material extent.   There are a number of considerations.

[35]     The Judge noted Mr Hati’s age, but it was given no further consideration.  It is a factor requiring reasonably substantial weight.

16     R v Pretty CA277/00, 26 October 2000.

17     Ormsby v R [2013] NZCA 578.

[36]     In  this  context  I  do  not  agree  with  the  respondent’s  submission  to  the essential effect that the Court of Appeal decisions support a proposition that the reduction for youth in offences of dangerous driving causing death will be less than for other types of offences.  What the decisions say is that the reduction for youth may be less than it might be for other offences.  The relevant authority is Ormsby v R. As noted by the Court of Appeal in Ormsby, the other authority referred to by Mr Annandale, R v Pretty, is a pre-Sentencing Act 2002 decision.  In Ormsby the Court said that, in cases of motor manslaughter, “the potential for a discrete youth credit is

often limited by the need to emphasise other sentencing purposes”.18

[37]     The  starting  point  on  the  question  of  youth  is  that  Parliament,  in  the Sentencing Act 2002, has directed the Court on sentencing to take into account ten specific mitigating factors. The first of these is the age of the offender.19

[38]     The relevance of youth in sentencing was discussed by the Court of Appeal in some detail in Churchward v R.20   The Court recorded that youth has been held to be relevant to sentencing in several ways, which may be summarised as follows:21

(a)      There are age-related neurological differences between young people and adults.

(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c)      Young  people  have  greater  capacity  for  rehabilitation,  particularly given that the character of a juvenile is not as well formed as that of an adult.

(d)Offending by a young person is frequently a phase, which passes fairly rapidly, and in consequence a well balanced reaction is required

in order to avoid alienating the young person from society.

18     Ormsby v R , above n 17, at [10].

19     Sentencing Act 2002, s 9(2)(a).

20     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 (CA).

[39]     All four of those factors apply to Mr Hati.  And they apply notwithstanding the fact that, at the time of the offences, he was 19 years old.

[40]     The  neurological  differences  between  young  people  and  adults,  and  risk factors for road traffic accidents involving young people, and application of these matters to Mr Hati, were considered by Ms Wakeford, the psychologist engaged on Mr Hati’s behalf and whose report was provided to the Judge.  The Judge did not discuss Ms Wakeford’s  observations, and touched on her advice briefly only in relation to what Mr Hati said he did on the night.  Ms Wakeford’s report, in respect of general considerations, is consistent with consideration of these matters by the

Court of Appeal in Churchward.22

[41]     Ms Wakeford’s report includes the following:

Mr Hati meets some of the risk factors automatically by virtue of being a young male driver.  He admitted that he was driving without a licence and therefore was inexperienced with driving.   This inexperience and his age possibly contributed to his lack of ability with hazard/risk assessment which appeared to influence his judgment such as driving when he was unlicensed, not stopping at the stop sign of the intersection he crossed and also not looking clearly both ways for traffic.   He reported several cognitive justifications that provide evidence of his decision making errors, such as he was very close to home and also that there was typically no other traffic on the road at this time of the night.  Furthermore, he acknowledged that he was drowsy and tired and was driving late at night, which are noted as common risk factors for young people.

Mr Hati does not meet many of the risk factors for young people having an increased crash, or serious crash.  He also does not typically meet other risk factors for reoffending.   For example, there is no evidence of antisocial attitudes or antisocial peers prior to, or since, the accident.

[42]     The second, third and fourth factors identified in Churchward are given some emphasis in Mr Hati’s case because he has no previous convictions, let alone a sentence of imprisonment, and because of his positive achievements up until this offending, a number of which were summarised by the Judge in his sentencing remarks, (recorded above at [15]).

[43]     All four youth related factors in my judgment of themselves warranted a reduction of around 6 months.

[44]     As  the Judge fully recognised,  the other personal  mitigating factors  also warranted a reduction.  These matters are given emphasis by the way in which Mr Hati accepted full responsibility for what he had done from the outset and did not deviate from that approach at any point.   These factors, and leaving aside youth, would properly justify a reduction of around 6 months.

[45]     For these reasons I consider that the Judge’s allowance of 7 months was inadequate to the point of being an error. All of the personal mitigating factors in Mr Hati’s case warranted a reduction of around 12 months.

Evaluation: the end sentence

[46]     Under s 250(2) of the Criminal Procedure Act 2011, on a first appeal against sentence, the Court must allow the appeal if it is satisfied, for any reason, that there is an error in the sentence and a different sentence should be imposed.

[47]     For the reasons recorded, in my judgment there were two errors in the way in which the Judge assessed the sentence: the starting point was not within range and the credit for personal mitigating factors was inadequate to a material extent.  Those two considerations, taken together indicate that the end sentence was manifestly excessive.  A starting point of 2 ½ to 3 years, rather than 3 ½ years, and a credit for personal mitigating factors of around 12 months, rather than 7 months, would reduce the sentence at that point to one of imprisonment for 2 years or less.  The further reduction of 25 per cent for the guilty plea reduces the sentence, if it is to be one of imprisonment, to 18 months or less.

[48]     This assessment has importance in two respects.   The first is that an end sentence of no more than 18 months imprisonment indicates that the end sentence imposed was manifestly excessive.  The second is that, if the assessment indicates an end sentence of imprisonment of 2 years or less, under s 15A of the Sentencing Act

2002, the Court may impose a sentence of home detention rather than the sentence of imprisonment, and the Court is bound to consider home detention.

[49]     In this case a prison sentence under 2 years might be arrived at by different routes, but the range of matters considered to this point indicate that home detention should have been considered.

[50]     It is necessary to consider home detention on this appeal.  My conclusion is that this is a case where, notwithstanding the gravity of the offences, and the tragic result of the dangerous driving, a sentence of home detention should have been imposed.

[51]     Given  the  seriousness  of  the  offending,  and  the  consequences  of  that offending, it is important to record that home detention is a sentence which may be imposed where emphasis is to be given to holding the offender accountable for the harm done, to denouncing the conduct, and to deterring the offender and others from committing the same or similar offences.

[52]     The sentence that in my judgment should have been imposed on Mr Hati would have been one of 12 months home detention.   And it may also have been appropriate to impose other sentences that can be imposed with a sentence of home detention, such as community work.  But at this date Mr Hati has been in prison for over four months.  This fact requires imposition, on appeal, of a substantially shorter sentence of home detention than would otherwise have been required and also rules out an additional community based sentence.  Weighing these considerations, I am satisfied that the appropriate length of a sentence of home detention should be 3 months.

[53]     A home detention report, as required by the Sentencing Act, was provided for the purpose of the sentencing in the District Court.  On this appeal I was advised that the positive conclusions in that report, which would have enabled home detention to be imposed in the District Court, remain applicable.   The substituted sentence of home detention, recorded below, takes account of the relevant matters recorded in the original home detention report.

Result

[54]     The appeal is allowed.

[55]     The sentence of imprisonment for 2 years 2 months is quashed.

[56]     In substitution for the sentence of imprisonment, Mr Hati is sentenced to home detention for 3 months on the following conditions:

(a)       Mr Hati is to be released from prison forthwith.

(b)Upon release from prison Mr Hati is to travel by the most direct route, and without any unnecessary stops, to the home detention address, as specified  in  the  probation  officer’s  advice  to  the  Court  dated  18

November 2016 (the specified address), and await the arrival of the

Department of Corrections EM bail team.

(c)      Except with the leave of the Department of Corrections EM bail team, for the duration of the home detention sentence, Mr Hati is not to leave the specified address.

(d)Mr Hati is not to possess, consume or use alcohol or drugs (excluding those prescribed to him).

(e)      Mr  Hati  is  to  undertake  and  complete  appropriate  assessment, treatment, or counselling, as directed by, and to the satisfaction of, a probation officer.

(f)      Mr Hati is to undertake and complete a vocation and/or educational course as may be directed by a probation officer.

(g)Mr Hati is to attend and complete an appropriate cultural or Tikanga Maori programme to the satisfaction of a probation officer.   The specific details of the appropriate programme shall be determined by a probation officer.

(h)      Mr Hati is not to contact, directly or indirectly, any member of the

Bell family without the prior written approval of a probation officer,

which approval shall not be given without the consent in writing from

Mrs Maxine Bell.

Woodhouse J