Heemi v The the Queen
[2022] NZHC 2141
•2 September 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-77 CRI-2022-463-78
CRI-2022-463-79 [2022] NZHC 2141
BETWEEN JAMAINE HEEMI, RANDYL PAINTER AND
SAXON LIDDINGTON
AppellantsAND
THE QUEEN
Respondent
Hearing: 10 and 26 August, 2 September 2022 Counsel:
S Mills for Heemi and Painter A Schulze for Liddington
A Maino for Crown
Judgment:
2 September 2022
Reissued:
6 September 2022
REDACTED JUDGMENT OF MUIR J
This judgment was delivered by me on 2 September 2022 at 3.00 pm.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Lance Lawson, Rotorua South
Gordon Pilditch, Rotorua
HEEMI AND ORS v R [2022] NZHC 2141 [2 September 2022]
Background
[1] Saxon Liddington, Randyl Painter and Jamaine Heemi each pleaded guilty to one charge of assault with intent to rob.1 On 27 June 2022, Judge D J McDonald sentenced Mr Liddington to two years and six months’ imprisonment, and Mr Painter and Mr Heemi to two years and three months’ imprisonment.2 They appeal against their respective sentences.
The offending
[2] In January 2021, Mr Liddington ordered a pair of shoes online. They were delivered to his previous address in Turangi. He formerly resided there with the victims.
[3] Mr Liddington contacted one of the victims, Mr R, about his shoes. This resulted in a dispute about money he owed.
[4] Mr Liddington hatched a plan to rob the address. He created detailed diagrams of the layout of the property. These included depicting the property and nearby reserve from birds-eye view. He highlighted rooms of interest where valuable items were located.
[5] On 15 March 2021, Mr Liddington enlisted his close friend, Mr Painter, to assist. They agreed to steal the shoes, a PlayStation console and money. The following day Mr Painter’s cousin, Mr Heemi, also agreed to participate.
[6] On 17 March 2021, the trio asked a caregiver to drive them from Taupō to Tūrangi. They were dropped off at the nearby reserve. There they stashed some belongings in blackberry bushes. These included a change of clothes, caps, sunglasses and a large kitchen knife.
[7] The trio headed towards the property. Each held a steel pipe. The pipes were about 70 centimetres long and weighed around one kilogram. They were table legs
1 Crimes Act 1961, s 236(1)(b) and (c): maximum penalty of 14 years’ imprisonment.
2 R v Liddington [2022] NZDC 11966.
repurposed by Mr Liddington. Each also wore coloured bandannas across their faces and sunglasses.
[8] The trio entered through the backdoor. They walked through the kitchen to the lounge. Mr R was sitting on the couch.
[9] Mr Painter hit Mr R with the pipe several times to the head. Mr R lifted his arms to defend himself. Mr Painter continued striking at his arms. Mr Heemi also attacked Mr R with his pipe. He struck at his legs.
[10] Mr R yelled out for help. Another occupant was alerted to the attack and ran down the hallway. Mr Liddington was standing by the hallway door holding his pipe. The occupant held the door closed and screamed out to the others. Mr Liddington, joined by Mr Painter and Mr Heemi, bashed at the wooden door with the pipes. Two other occupants came from the sleepout to assist.
[11] A brawl ensued in the kitchen. It spilled into the laundry. Two windows in the laundry were smashed. The occupants overpowered the trio. They abandoned their pipes and fled towards the reserve. Mr Heemi was injured during the fight. He could not keep up with Mr Liddington and Mr Painter. He stumbled and collapsed in the bushes along the reserve.
[12] Mr Painter attempted to help him. The occupants chased them. Mr Heemi was unable to continue fleeing. Mr Painter continued running without him.
[13] Two of the occupants caught Mr Heemi. They beat him with the pipes that the trio brought to the address. After beating him, they walked him back to the address and notified police. Mr Heemi was arrested shortly after.
[14] Mr Liddington and Mr Painter hid in some trees. They were eventually collected by the caregiver who dropped them off. The caregiver drove them back to Taupō. They went straight to the Taupō Police Station to express their concern about Mr Heemi being beaten.
[15] Many of those involved suffered injuries. Both Mr R and Mr Heemi were treated at Taupō Hospital. Mr R suffered a significant wound to his head, which required stitches, and bruising to his head, arms and legs. Mr Heemi suffered a broken left wrist, several cuts to his head and bruising to his arms and right shin.
[16] One of the other occupants suffered a cut to his right wrist, grazes and bruising to his shoulders, back and upper left thigh.
[17] Mr Liddington suffered grazes and swelling around his left ear, bruising to his back and a small cut to his right hand.
[18] When spoken to by police, Mr Liddington said that he wanted to rob the address because the victims had taken his shoes. Mr Painter admitted the offending and said the plan was to “go to Tūrangi to fuck people up and rob them”. He said that he originally thought a “criminal life” of this nature was “cool”, but that it “turned out to be a garbage idea”. Mr Heemi said he simply wanted to “help the bro” recover the debt.
District Court sentencing
[19] Judge McDonald considered that the aggravating factors of the offending were the planning and premeditation involved; the home invasion; the use of bandannas and sunglasses as disguises; the use of steel pipes as weapons; that there were three offenders; and the injuries caused.3 There was little to differentiate between each offender’s role, save for Mr Liddington being “the leader”.4 The starting point for his offending was set at seven years’ imprisonment.5 That for his co-offenders was set at six years and six months’ imprisonment.6
[20] Judge McDonald then turned to each offender’s personal circumstances. Each received identical discounts.7 The Judge applied discounts of 25 per cent for each
3 At [29].
4 At [31].
5 At [32].
6 At [32].
7 At [52].
offender’s guilty plea,8 30 per cent for youth,9 and 10 per cent for personal background circumstances.10 This resulted in an end sentence of two years and six months’ imprisonment for Mr Liddington, and of two years and three months’ imprisonment for Mr Heemi and Mr Painter.11 His Honour declined to entertain discounts beyond the “massive” 65 per cent allowed on the basis that “the community and victims cannot be forgotten in such sentencing”12 and that, despite the defendants’ age, a full time custodial sentence was required to achieve the necessary level of denunciation and deterrence.13
Approach to sentence appeals
[21] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.14 The focus is on the sentence imposed, rather than the process by which it is reached.15 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.16 To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason to depart from it.17
Appellants’ submissions
Mr Liddington
[22] Mr Schulze, for Mr Liddington, submits that the end sentence was manifestly excessive. His overarching submission is that the end sentence should have been two years’ imprisonment (or less). In turn, he says that having reached the threshold where I can consider commuting the sentence to one of home detention, I should do so.
8 At [34], [45] and [48].
9 At [39], [45] and [48].
10 At [42].
11 At [55]–[56].
12 At [53].
13 At [54].
14 Criminal Procedure Act 2011, s 250(2).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
16 At [36].
17 At [35].
[23] Mr Schulze reaches the two-year imprisonment threshold via two routes. First, he submits that the Judge adopted a starting point that was outside the available range. He says that it was inconsistent with comparable cases and took into account unproven facts. Second, he submits that a differentiation of no more than three months between Mr Liddington and his co-offenders was appropriate.
[24] Mr Schulze’s second ground of appeal is that no or insufficient weight was given to the full range of personal mitigating factors available to Mr Liddington and, in particular, his remorse, previous good character and rehabilitative prospects. He submits that these factors justify an additional discount of 10 per cent.
Mr Painter and Mr Heemi
[25] Unsurprisingly, Mr Mills, for Mr Painter and Mr Heemi, similarly seeks to persuade me that the appropriate sentence was two years’ imprisonment (or less), at which point a sentence of home detention could and should be substituted.
[26] Unlike Mr Schulze, he does to seek to challenge the starting point of six years and six months’ imprisonment. Although suggesting it was stern, he acknowledges it is within range.
[27] He does, however, submit that Mr Painter and Mr Heemi’s personal mitigating factors justify a further discount to the point where home detention could be considered. The particular factors he relies on are remorse, offers to attend a restorative justice conference and pay emotional harm reparation, previous good character and rehabilitative prospects.
Respondent’s submissions
[28] Ms Maino, for the Crown, properly accepts that home detention would be an appropriate sentencing outcome if this Court reduced any of the offenders’ end sentence to two years’ imprisonment (or less). She submits, however, that each offenders’ sentence was appropriate.
[29] She submits that the starting point adopted for each offender was within the available range. She emphasises that the Court of Appeal has said aggravated robbery cases involving home invasion typically require a starting point of at least seven years’ imprisonment.18 She opines that the cases cited by the appellants involve less serious offending.
[30] Ms Maino submits that a discount for rehabilitative prospects was implicit in the significant youth discount given by the Judge. She accepts that Mr Painter is remorseful, and that he and Mr Heemi offered to pay emotional harm reparation. Ultimately, she submits that while some discounts could have been higher or lower, the total 65 per cent discount applied was appropriate.
Did the Judge adopt a starting point that was too high?
[31] I deal first with Mr Schulze’s contention that the Judge adopted a starting point that was too high.
[32] No issue is taken with the aggravating factors identified by the Judge, although Mr Schulze criticises the Judge for his finding that the appellants would know that the victims would be present during the home invasion. He submits that this resulted in the Judge placing excessive weight on the level of premeditation.
[33] I accept as a matter of principle that a Judge cannot sentence an offender on a wider basis than that accepted by way of a guilty plea on a particular summary of facts.19 However, it is not apparent to me that the sentencing Judge did so. The Judge’s comment that the offending “was a well planned aggravated robbery when [the offenders] knew that [the victims] would be at home” does not, in my view, overstate the level and nature of the premeditation. The Summary of Facts refers to Mr Painter telling police that the group’s plan was “to fuck people up and rob them”. Each carried weapons and snuck in the back door. The attack on Mr R immediately followed. It was well open to the Judge to infer from those circumstances, and from the fact that the home invasion occurred at 5.30 pm on a weeknight, that the trio expected the
18 Poi v R [2020] NZCA 312 at [16].
19 See for example McEvoy v Police CA21/82, 17 December 1982.
victims and, in particular, Mr R who was known to be a [ redacted ], to be home at the time. In my view whether that expectation can be elevated to knowledge is unlikely to have materially affected the starting point.
[34] In any event, Mr Schulze argues that the starting point was incompatible with comparable cases. He first refers to Matkovich v Police.20 In that case the offender was charged with the aggravated robbery of a dairy.21 He and two co-offenders entered the dairy with their faces covered.22 He was armed with a hockey stick, which he used to strike the store attendant on the wrist.23 The group then stole cigarettes and tobacco.24
[35] The sentencing judge took this offending as the lead charge.25 A starting point of five years’ imprisonment was adopted, having regard to R v Mako.26 This was not challenged on appeal.27
[36] I accept Ms Maino’s submission that the offending in Matkovich is considerably less serious than the present even allowing for the fact that it involved an aggravated robbery, whereas in the present case the defendants were ultimately found to flee with nothing. Matkovich did not involve a home invasion, there was not the same proliferation of weapons, nor the infliction of injuries as serious as Mr R sustained. Mr Schulze did not contend that Mr Liddington’s culpability was equal to that in Matkovich. The issue is how much greater it was.
[37] Mr Schulze also refers to Peke-Meihana v R.28 In that case the offender and two co-offenders went to a student flat in Palmerston North.29 The flat was known to the offender as his friend previously lived there, but had been asked to leave over concerns about missing property.30 The three offenders forced their way in the front
20 Matkovich v Police [2021] NZHC 1660.
21 At [10].
22 At [10].
23 At [10].
24 At [10].
25 At [14].
26 At [20] citing R v Mako [2000] 2 NZLR 170 (CA).
27 At [20].
28 Peke-Meihana v R [2019] NZHC 642.
29 At [3].
30 At [3].
door.31 Each wore bandannas covering their faces and two held metal bars of about 30 centimetres in length.32 The three flatmates in the lounge were threatened, told to lie on the floor and not to look up, and to give the offenders their unlocked cell phones.33 A fourth flatmate who was in his bedroom was pushed up against a wall, threatened with a metal bar and told to lie on the floor.34 One offender retrieved a knife from the kitchen and stood guard over the flatmates.35 One flatmate was directed to collect property to hand over to the defendants.36 Two gaming consoles, three cell phones, two televisions, a laptop and a gold watch were stolen.37 As the offenders left, one told the victims that they would return with a gun.38
[38] Mallon J commented that the home invasion was at the “lower end of seriousness”.39 Her Honour considered a starting point between five and six years’ imprisonment within the available range,40 reasoning that:
[34] … It was not carried out in the middle of the night when the robbery would have awoken the occupants from their sleep. The occupants were not elderly or otherwise especially vulnerable. They were of a similar age to, and probably a little older than, the offenders. The occupants out-numbered the offenders. The offenders had weapons, but they were make shift and not, for example, likely to be as frightening as firearms. While threats were made and one of the occupants was kicked in the head, the level of violence was low as demonstrated by there being no suggestion of any physical injury arising from it. The value of the property taken was at the low end (accepting the property was important and valuable to the victims) and monetary gain does not appear to have been the motive for the offending. There was no prolonged detention of the occupants.
[39] There are some similarities between Peke-Meihana and the present case. The robbery occurred during the day. The weapons used were makeshift. The occupants were not particularly vulnerable or outnumbered — even going so far as to overpower the offenders, chase them away and subsequently beat Mr Heemi with the offenders’ own weapons. There was no prolonged detention of the victims. I accept also that
31 At [4].
32 At [4].
33 At [4].
34 At [4].
35 At [5].
36 At [5].
37 At [5].
38 At [5].
39 At [34].
40 At [36].
Peke-Meihana again involved an aggravated robbery whereas in the present case, as the circumstances ultimately unfolded, the appellants’ intended robbery was unsuccessful.
[40] However, there was no actual violence in that case, whereas here both Mr Painter and Mr Heemi attacked Mr R with steel pipes causing injuries sufficiently serious that he required stitches and staples to his scalp and had to return to hospital for surgery on an infected haematoma.
[41] Mr Schulze emphasises that Mr Liddington, albeit a party to the assault on Mr R for the purposes of s 66 of the Crimes Act 1961, did not himself participate. He says that Mr Liddington stood by the hallway door and only became further involved when other occupants entered the fray. But given the joint nature of the enterprise this cannot, in my view, count for much by way of sentence differential.
[42] His better point, in my view, is that although Mr Liddington may have conceived the plan, from the point Messrs Painter and Heemi signed on, they were all in it together and equally premeditated in terms of outcome. In her discussion of the District Court’s refusal to grant bail pending appeal,41 Gordon J described Mr Heemi’s offending as “clearly premediated”.42 I agree. The same applies to Mr Painter.
[43] That brings me then to a parity issue. Although the Judge thought that there was in fact “little to differentiate” the three offenders, he noted the concession of Mr Liddington’s previous counsel that “you, Mr Liddington, should get a greater starting point because you were the leader”. He then identified a six-month starting point uplift as appropriate.
[44] I agree with the “little to differentiate” comment, reinforced by the Judge’s subsequent observation that “the two of you [Messrs Heemi and Painter] went along with him [Mr Liddington] knowing full well what would happen”.
41 Heemi v R [2022] NZHC 1616.
42 At [46].
[45] In my view a three-month differential would have been more appropriate. This captures the breach of trust and “instigator” elements particular to Mr Liddington’s offending, while recognising that in all other respects the three defendants were equally culpable.
[46] I therefore adopt a starting point for Mr Liddington of six years and nine months.
Did the Judge give insufficient weight to personal mitigating factors?
[47] No issue is taken with the discounts applied by the Judge. However, both Mr Schulze and Mr Mills contended that the Judge failed to apply further discounts for good character, prospects of rehabilitation and remorse.
[48] They refer to Diaz v R.43 That case involved a similarly young offender’s appeal against his sentence for causing grievous bodily harm with intent to cause grievous bodily harm and injuring with intent.44 The Court of Appeal applied the following discounts:
(a)10 per cent for previous good character, noting that the offender “had no prior convictions”;45
(b)30 per cent for youth, noting that the offender lacked maturity, impulse control and foresight, and that the offending occurred in the context of a volatile situation where he felt his family was threatened;46
(c)7.5 per cent for remorse, including attending a successful restorative justice conference;47 and
43 Diaz v R [2021] NZCA 426.
44 At [1].
45 At [35].
46 At [40].
47 At [41]–[42].
(d)20 per cent for “significant rehabilitative efforts”, which included attending five different programmes, one of which involved 17 sessions.48
[49] In total therefore the Court allowed discounts of 67.5 per cent in circumstances where there had been no guilty plea. Had there been such a plea at the earliest opportunity, the theoretical result could have been discounts of 92.5 per cent but I consider that to be an end result the Court of Appeal would have been unlikely to entertain given the seriousness of the offending and the purposes and principles of sentencing in ss 7(1)(a), (b), (c), (e), (f) and (g) of the Sentencing Act 2002.
[50] In the very recent decision of Stehlin v R,49 Lang J addressed the inherent tension between discounts with no “bright line” upper limit50 and the Court’s overall obligation to impose a sentence which is appropriate in the circumstances of the case, including the seriousness of the offending, requirements that offenders be held accountable, the interests of the victim and related matters. His Honour observed that until relatively recently discounts totalling 40 per cent would have been regarded as “generous” but that it was not uncommon for discounts of 50 to 60 per cent to be now applied (particularly in the case of youth offenders for whom there were identified social or cultural factors).51 He continued:
[23] … the fallacy in Mr Olsen’s argument is demonstrated by the fact that, applying his analysis, the Judge would have been required to apply discounts totalling 95 per cent. He would then have been required to apply a further discount of ten months to reflect the fact that Mr Stehlin was subject to restrictive EM bail conditions for 20 months. The end result of this process would be a conviction and discharge. That plainly could not be a correct response to offending of this seriousness.
[24] Such an approach demonstrates that the discounts to be given for mitigating factors such as youth, previous good character, expressions of remorse and rehabilitative prospects may often overlap. The fact that a discount has been applied at a particular level for a mitigating factor in other cases does not justify, without more, applying it at the same level in the case
48 At [44].
49 Stehlin v R [2022] NZHC 1619.
50 See for example Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83], the Court of Appeal observed that: “Sometimes the young person’s age will be a mitigating factor of high, perhaps decisive significance not to be circumscribed by any fixed upper percentage”. The fact that there is no “fixed upper percentage” was reiterated by the Court of Appeal in Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [35].
51 Stehlin v R, above n 49, at [22].
before the court. Applying individual discounts at particular levels or percentages for each mitigating factor may also run the risk of creating an overall reduction of sentence that is too high. At the end of the sentencing process it is still necessary to stand back and ensure the end sentence is appropriate having regard to all the circumstances of the case.
[51] I regard Lang J’s observation about the overlapping nature of youth discounts with other personal mitigating factors as apposite on the authorities. In the six cases cited by the Court of Appeal in Rolleston v R (No 2),52 for example, it is clear that other components weighed in the discounts which were recognised apart from the age- related neurological differences, greater impulsivity and greater susceptibility to peer pressure which typically underscore the youth allowance. Significantly in Rolleston itself, the Court of Appeal increased the (largely) age-specific discount from seven per cent to 17 per cent only, while acknowledging that its revised figure also captured the need to “calibrate the sentence in recognition of their prospects for rehabilitation and the limited risk of them offending in this serious way again”.53
[52] In the present case what the Judge styled as a “youth discount” was fixed at 30 per cent. I agree with Ms Maino that at this level the discount inevitably captured related concepts such as the appellants’ rehabilitative prospects.
[53] However, the fact that each of the defendants were first time offenders combined with the remorse demonstrated by them, in my view, justified specific and additional recognition over and above the youth, guilty plea and s 27 discounts allowed.
[54] In the case of Mr Liddington, although the pre-sentence report writer stated that he struggled to articulate any insight into his offending, this was attributed to his age and inexperience rather than lack of understanding and that he considered the victims “whānau” and regretted them being hurt. Significantly, he expressed a wish to attend a restorative justice conference, although this did not proceed because Mr R did not wish to participate. Significant also is the fact that since the imposition of sentence, Mr Liddington has saved the sum of $1,000 which can now be applied by way of emotional harm reparation and he says that a further payment of $500 is
52 Rolleston v R (No 2), above n 50, at [34].
53 At [42].
possible within one week. I accept that his ability to do so comes at personal sacrifice
— it is not simply a case of supportive parents stepping in to “buy” an appropriate outcome. I accept also that the payment is tendered with genuine remorse.
[55] In the case of Mr Heemi, he told the pre-sentence report writer that he found the situation “pretty upsetting” and that he wanted to apologise to the victims. He also sought to attend the same restorative justice conference. At sentencing he offered to pay the victims $1,000 in emotional harm reparation. He has subsequently filed an affidavit in this Court in which he deposes to having worked and saved money while on bail pending his sentence appeal. He offers to increase the emotional harm reparation payment to $1,500 payable immediately.
[56] In the case of Mr Painter, the s 27 report writer noted that he initially had conflicted feelings about his offending. He said that what he did was a “bad thing to do” and that he “shouldn’t have done it” but had withheld a letter of remorse because he was upset about his cousin, Mr Heemi, being badly beaten. He offered to attend a restorative justice conference. He has now provided his letter of remorse. In it he hopes that the victims will one day allow him to speak to them directly to say how “truly sorry” he is for what he put the family through. He speaks directly about the stupidity of his involvement simply to “have his friend’s back” and his significant efforts to get his life back on track, including the fact that he is now six weeks into a ten-week “Pathways” course towards employment, has quit smoking and drinking and is seeing multiple counsellors. Further he now offers $1,500 by way of emotional harm reparation payable immediately. Again, I accept that his ability to do so has involved personal sacrifice and is intended as a tangible expression of remorse. I am prepared to take that into account.
[57] I am satisfied that in each of these cases a further modest discount of approximately five per cent was appropriate over and above those recognised for youth, guilty plea and family/cultural factors. That would take total discounts to 70 per cent, which was the level allowed by the sentencing judge in Stehlin and which Lang J declined to increase.
[58] In combination with the adjustment I consider appropriate to Mr Liddington’s starting point, the threshold for appellate intervention is satisfied. I note however that in coming to that conclusion, I have taken into account factors which post-date the sentencing and of which the sentencing Judge could not therefore be expected to have considered.
[59] In the case of Messrs Heemi and Painter, the approximately five per cent adjustment to discounts is at the margins of appellate intervention but in the interests of parity of ultimate outcome (all defendants being close to the home detention threshold) I will allow their appeals also.
[60] The result would be sentences of 24 months’ imprisonment for Mr Liddington and 23 months for Messrs Heemi and Painter.
[61] In coming to that result, I acknowledge also that the modern approach to sentencing, with its identification of starting point and application of discrete uplifts and discounts, expressed in years, months or percentage terms, is not a straitjacket. Barker and Heron JJ said precisely that in Ministry of Agriculture and Fisheries v Equal Enterprise Ltd where they observed:54
Sentencing should never be mechanical. The individual circumstances of defendants are infinite and there should be no straightjacket self-fitted on the Courts’ discretion.
[62] Similarly, in R v Waihapi,55 McCarthy P emphasised that a sentencing judge must always be open to taking “action calculated to encourage reformation”, even in cases which would normally call for a deterrent sentence.
[63] The end objective is to reach an appropriate sentence, not necessarily the precise period of imprisonment in years and months that might be indicated by a mechanical approach. That may be especially so with the sentencing of very young offenders when a precise calculation places them very close to eligibility for home detention.
54 Ministry of Agriculture and Fisheries v Equal Enterprise Ltd [1994] 2 NZLR 473 (HC) at 481.
55 R v Waihapi [1976] NZLR 422 (CA) at 424.
[64] Not only is there a mandate under s 8(g) of the Sentencing Act to impose the least restrictive outcome that is appropriate in the circumstances — something which Adams on Criminal Law describes as a “blunt affirmation that prison is a measure of last resort”56 — there is also specific legislative recognition, for example in s 15(1) of the Bail Act 2000,57 of the perils of incarcerating very young offenders. A sentencing judge should not, in my view, be constrained by strict arithmetic when imposing a sentence which recognises these considerations and, in turn, recognises the potential for the sentence to be commuted to home detention.
Should the Judge have imposed sentences of home detention?
[65] With the additional discount I have identified as appropriate, each of the defendants are eligible to be considered for home detention.58 The Crown properly accepts that if this was the point I reached on the appeals, the sentences should indeed be commuted. Each are young first-time offenders who not only have the capacity for rehabilitation but who are already demonstrating significant steps in that direction. A sentence of imprisonment will expose them to malign influences and could entrench criminality. At a minimum, it will frustrate their efforts to enter the workforce and/or establish a stable employment history which will ultimately be among their better protections against further offending. Home detention is the least restrictive sentence that is appropriate in the circumstances.59
[66] It follows that each of the defendants’ sentences of imprisonment should be quashed and substituted with one of home detention. Nominally I would fix the duration of such sentences as 12 months for Mr Liddington and 11 months for Mr Painter and Mr Heemi but some minor adjustment to this is required to reflect time in custody pending bail.
Result
[67]The appeals are allowed.
56 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA8.08] citing R v Rawiri [2011] NZCA 244 at [18].
57 This provision was introduced by the Bail Amendment Act 2013.
58 Sentencing Act 2002, s 15A.
59 Section 8(g).
[68] Mr Liddington’s sentence of two years and six months’ imprisonment is quashed. I substitute a sentence of 10 months 3 weeks60 home detention. I do so on standard terms together with the proposed special conditions in the Department of Corrections Home Detention Annexure dated 22 August 2022 (and at the address stipulated).
[69] Mr Painter’s sentence of two years and three months’ imprisonment is quashed. I substitute a sentence of 9 months 3 weeks61 home detention. I do so on standard terms together with the proposed special conditions and special post-detention conditions in the Department of Corrections Home Detention Annexure dated 31 August 2022 (and at the address stipulated). The special post-detention conditions are to expire 6 months from the detention end date.
[70] Mr Heemi’s sentence of two years and three months’ imprisonment is quashed. I substitute a sentence of 10 months 1 week62 home detention. I do so on standard terms together with the proposed special conditions and special post-detention conditions in the Department of Corrections Home Detention Annexure dated 22 August 2022 (and at the address stipulated). The special post-detention conditions are to expire 6 months from the detention end date.
[71] I make orders for emotional reparation payments in favour of Mr R63 as follows:
(a)Mr Liddington, $1,500 payable as to $1,000 by 2 September 2022 and
$500 by 12 September 2022.
(b)Mr Heemi, $1,500 payable by 2 September 2022.
60 Recognising the allowance necessary in respect of the 18 days he spent in custody after sentence and before bail was granted.
61 Recognising the allowance necessary in respect of the 18 days he spent in custody following sentence and before bail was granted.
62 Recognising the allowance necessary in respect of the 11 days he spent in custody following sentence and before bail was granted.
63 Acknowledging that others of his whānau were no doubt also traumatised by the events but taking into account the severity of his injuries by comparison with others and the fact he provided the only victim impact statement before the Court.
(c)Mr Painter $1,500 payable by 2 September 2022.
Muir J
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