Kaihau v Police

[2012] NZHC 191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000430 [2012] NZHC 191

PETER RICHARD KAIHAU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 February 2012

Counsel:         S M Cowdell for the Appellant

L J Clancy for the Respondent

Judgment:      20 February 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 20 February at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     S M Cowdell P O Box 76683 Manukau City Manukau 2241 for the Appellant

Solicitors:   Meredith   Connell   P   O   Box   2213   (DX   CP24063)   Shortland   Street

Auckland 1140

KAIHAU v POLICE HC AK CRI-2011-404-000430 [20 February 2012]

[1]      The appellant, Peter Kaihau, was convicted on charges of injuring with intent to  injure,  theft  and  assault  with  intent  to  injure.    He  was  sentenced  in  the District Court  to  two  years,  three  months’ imprisonment.    He  now  appeals  that sentence on the grounds of disparity with the sentence imposed on his co-offender, and that the sentence was manifestly excessive. The appeal is opposed.

Facts

[2]      There were two separate incidences of offending.  The first group of offences, which involves the offences of theft and assault with intent to injure, occurred on

30 September 2010.  The appellant approached the victim, Kurt Honey, and asked to borrow his  mobile phone.   After Mr Honey gave him  the phone,  the appellant attempted to swap the SIM card.  After a short while, Mr Honey asked for his phone back.  The appellant refused, stating that the phone was now his.  When asked again, he replied, “it’s not yours, it’s mine now”.

[3]      The appellant then walked away with the phone.  Mr Honey followed him, repeatedly asking for the phone.   Eventually the appellant turned around, grabbed Mr Honey,  and  told  him  not  to  “tell  anybody  or  [the  appellant  would]  burn [Mr Honey’s] house down”.   The appellant then punched Mr Honey in the face several times, during which his shirt was ripped, and ran off with the phone.

[4]      Though the phone has been recovered, Mr Honey suffered severe swelling and bruising to his left cheek, bruising to his right cheek, a small cut to the chin and scratches on his left forearm.  According to his victim impact statement, his cheek was swollen for a week and a half, during which he struggled to eat, and although he has  physically  recovered,  he  has  struggled  to  sleep  and  has  ongoing  anxiety. Mr Honey was 17 years old at the time of the attack.

[5]      The second offending occurred on 4 February 2011, at a time while the appellant was on bail for the 2010 offending.  The appellant was drinking with his associates at a marae.  It is unclear exactly how the altercation started.  The judgment records  that  the  victim,  Mr Arnold  Kaihau  (the  appellant’s  uncle),  accused  the appellant of taking his alcohol. According to the caption summary, the appellant and

his co-offender, his cousin, Teuwira Kaihau, confronted Mr Arnold Kaihau while he was sitting in his car and accused him of taking a box of alcohol.  The pre-sentence report states that Mr Arnold Kaihau wanted to take the alcohol that the appellant was sharing with Mr Teuwira Kaihau.   However it began, the confrontation led to an argument, during which the appellant punched Mr Arnold Kaihau in the side of the head three times.   Mr Arnold Kaihau grabbed the appellant to stop him, and then Mr Teuwira Kaihau punched Mr Arnold Kaihau in the head, causing him to black out.

[6]      Mr Arnold  Kaihau  managed  to  get  into  his  vehicle  and  drive  the  short distance to his house.   The offenders followed him and dragged him out of his vehicle.  He fell to the ground, and the appellant and Mr Teuwira Kaihau stomped on the side of his face approximately six times each.  They were pulled away by other family members, after which they ran off.

[7]      The pre-sentence report states that Mr Arnold Kaihau became angry after the initial confrontation and pulled out his air rifle and aimed it at the appellant, who retaliated violently out of fear for his life.   This was not mentioned in the other documents and is undermined by the second attack that occurred in a different location.

[8]      Mr  Arnold  Kaihau  was  unconscious  for  around  two  minutes  after  the offenders were pulled away.  The assault fractured his eye socket, which required an operation to fit a metal plate.  As a result, he spent four days in hospital and requires ongoing treatment for his injuries.   He has been told that he will not regain full vision in one eye, which has meant that he has been unable to return to work.

[9]      The sentencing Judge noted the major aspects of the victim impact statements and pre-sentence report, and that the appellant’s father was present to support him in Court.  The Judge listed the relevant principles and purposes of sentencing, as well as the following aggravating features: there was more than one person involved in the second attack, the second attack occurred while the appellant was on bail, and resulted in significant injuries.

[10]     The  Judge  stated  that  he  took  account  of  the  guidelines  of  the  leading judgment  of  the  Court  of Appeal  regarding  injuring  with  intent  to  injure,  and considered that this offending fell within the most serious band.

[11]     The Judge considered that the charge of injuring with intent to injure would carry a starting point  of three  years’ imprisonment.   The other charges  he saw warranting a sentence of between 12 and 18 months’ imprisonment. Taking a totality approach, the Judge adopted a starting point of three and a half years’ imprisonment. This was reduced by six months to reflect the appellant’s youth, and 25 per cent for his early guilty plea.  The end sentence that was imposed was two years and three months’ imprisonment.  The Judge then imposed 12 months’ imprisonment for the first assault with intent to injure charge and one month’s imprisonment for the theft charge, to be served concurrently with the other term of imprisonment.

[12]     The appellant accepts that a term of imprisonment is appropriate, but that the length of the term was manifestly excessive and would leave no room for rehabilitation.  He argues that the Court of Appeal has stated that greater weight must be given to the statutory requirement that the least restrictive outcome be imposed when an offender is sentenced to imprisonment for the first time; and reduced the sentence on this basis: see R v Earle CA414/91, 9 March 1992.  Similar statements have been made in R v Bibi [1980] 1 WLR 1193, which was followed in R v Vergis CA165/92, 17 July 1992; as well as, recently, Tarrant v Police HC Palmerston North CRI-2007-454-10, 14 May 2007.

[13]     The  appellant  argues  that  the  Judge  did  not  impose  the  least  restrictive outcome.  Here, the appellant had no previous convictions and was being sentenced to imprisonment for the first time.  The appellant also argues that the Judge did not make a sufficient reduction for the mitigating factors of the appellant’s remorse, willingness to participate in a restorative justice conference, or previous good character.

[14]     The pre-sentence report states that the appellant was heavily intoxicated at the time of his offending, which is not a mitigating factor.  It also states that he feels remorse and shame for his actions, that he wrote a letter to Mr Honey to apologise,

and, in relation to the offending against his uncle, the appellant was willing to attend a restorative justice meeting, which was refused by his family; they remain angry and resentful towards him, and considered that he still did not understand the extent of the harm that he has caused.

[15]     Regarding  the  appeal  ground  based  on  parity  with  his  co-offender,  the appellant  submits  that  the  Court  must  take  into  account  the  desirability  of consistency in sentencing levels.  It is submitted that here, the end sentence of two years and three months’ imprisonment is manifestly excessive in comparison with the sentence given to Mr Teuwira Kaihau for injuring with intent to injure, which was one of 10 months’ home detention and 350 hours’ community work.

[16]     Mr Teuwira  Kaihau  was  sentenced  by  another  District  Court  Judge.    In sentencing Mr Teuwira Kaihau, that Judge stated: “The only distinguishing feature that I find between  your case and that of your co-offender is that  I believe he initiated the offending in which you later participated”.   I raised with counsel the desirability  of   me   being   fully  informed   of   the   sentencing   information   for Mr Teuwira Kaihau.   I was prepared to call for further information.   However, the respondent helpfully and responsibly acknowledged that, apart from the additional offending in September 2010, there was nothing to distinguish one offender from the other.

[17]     The respondent also acknowledged that here, were it not for the additional offending, the appellant would also have been eligible for a sentence of home detention and that if he could have provided a suitable address from which to serve such a sentence, it is most likely that a similar length sentence of home detention would have been imposed.

[18]     The respondent’s acknowledgement avoids the need for me to seek further information on Mr Teuwira Kaihau.   I propose, therefore, to approach the parity argument on the basis that, apart from the additional offending in September 2010, there is nothing that distinguishes one co-offender from the other and that, as long as the appellant could provide a suitable address, there is no reason, apart from the

additional offending, as to why he would not have received a sentence of home detention.

[19]     The appellant also states that the Judge who sentenced the co-offender took into account the fact that Mr Teuwira Kaihau had been on a 24 hour curfew for some time and had spent nine weeks in custody.  As the remand in custody was a result of Mr Teuwira Kaihau breaching his bail, the appellant submits that the fact that he was “compliant with his bail conditions should not mean that he then suffers a harsher sentence”.

[20]     The respondent argues that, given the two sets of offending, the sentence imposed on the appellant is well within the range of available sentences and thus it cannot  be said  to  be manifestly excessive.    Regarding the parity argument,  the respondent contends that the different outcomes  are the result of the legislation which permits the substitution of a sentence of home detention for a short sentence of  imprisonment,  which  by  definition  excluded  the  sentence  of  imprisonment imposed on the appellant.

[21]     The respondent argues that putting aside the statutory consequence, there is little difference between the sentencing processes applied to each co-offender.  The Judge who sentenced Mr Teuwira Kaihau adopted a similar starting point and gave similar  discounts  to  those  given  for  the  appellant.    The  Judge  who  sentenced Mr Teuwira Kaihau arrived at an end point, before allowing for home detention, of two  years’ imprisonment,  which  made  him  eligible  for  consideration  for  home detention.

[22]     The respondent argues that, given the additional offending of the appellant, it is understandable that in his case, a sentence of two years and three months’ imprisonment  was  reached,  and  further,  that  the  additional  three  months  is appropriate to reflect the culpability displayed in the offending of September 2010. Thus, the terms of imprisonment to be applied to each of them was not disparate. The different outcomes, in terms of Mr Teuwira Kaihau ultimately receiving a non- custodial sentence of home detention but the appellant receiving two years, three

months’ imprisonment are said to be simply a consequence of the Sentencing Act

2002 provisions as, under that Act, anyone who is sentenced to a sentence of two years’ imprisonment or less is eligible for consideration of a sentence of home detention, whereas someone who has received a sentence of over two years’ imprisonment cannot be considered for home detention.

[23]     The respondent accepted that had the appellant’s end sentence come to two years’ imprisonment or less, he too would then have been eligible for a sentence of home detention and, subject to him being able to provide a suitable address from which he could serve such a sentence, that would have been the likely sentence to be imposed on him as well.

Analysis

[24]     The grounds on which this Court can, on appeal, vary or quash a sentence are provided in s 121(3)(b) of the Summary Proceedings Act 1957.  Adams On Criminal Law Sentencing at para SAB18 cites authorities in which the Courts have recognised that a sentence may be overturned because it is based on a wrong principle: see R v Finau (2003) 20 CRNZ 333 (CA); M v Police HC Auckland CRI 2004-404-440

10 December 2004, Heath J.  Particularly relevant are Heath J’s comments at [43]- [45]:

[43]      A significant feature of the Sentencing Act 2002 is the provision of a framework for analysis for Judges who sentence offenders.  The framework emphasises the general desirability of consistency in sentencing: s 8(e) Sentencing Act 2002.

[44]      Offenders and victims may feel a sense of grievance if a Judge fails to deal appropriately with factors requiring attention and an appellate Court simply endorses the Judge’s end result on the basis that a reasonable Judge could have come to that conclusion using a proper methodology.

[45]      In my view, the correct approach on appeal is to consider the process by which the Judge reached the end sentence.  If there were material errors in the Judge’s approach the appellate Court should treat the sentencing process as having miscarried and sentence afresh.   I adopt, in that regard, what was said in R v Finau (2003) 20 CRNZ 333 (CA) at 337.

[25]     The Sentencing Act has imposed a more rigid framework on the sentencing process than otherwise existed.  Failure to conform to the requirements of that Act

will, if the error is material, lead to a sentence that is so wrong in principle that it could  be  said  to  fall  outside  the  sentencing  Judge’s  jurisdiction  in  terms  of s 121(3)(b).  It will also be an inappropriate sentence in terms of s 121(3)(b).

[26]     A sentence is manifestly excessive when it is “substantially or significantly more severe” than was required in light of the offence and culpability of the offender. In R v Peters CA12/03, 14 May 2003, at [13] the Court of Appeal expressed the view that  the  issue  of  whether  a  sentence  is  manifestly  excessive,  or  manifestly inadequate, or inappropriate must be examined by looking at the sentence actually passed rather than the process by which it was reached:

[T]he issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be a product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.

This statement of principle was re-affirmed in R v MacCulloch [2005] 2 NZLR 665 at [50].

[27]     I do not consider that what was said in R v Peters or in R v MacCulloch to be at odds with the comments of Heath J in M v Police.  In those cases, the Court of Appeal was dealing with appeals based on the sentence being manifestly excessive. The appellants were arguing that their sentences should be quashed because the steps the sentencing Judge took to reach the end sentence displayed a choice of starting point or uplift that was manifestly excessive, or insufficient allowance was made for mitigating factors, but they were unable to establish that such errors affected the end sentence that was ultimately reached.  The Court of Appeal’s view was that the focus should be on the appropriateness of the end sentence and whether that fell within the available range of sentences for the offending; whereas in M v Police, Heath J was referring to the different appeal ground of the sentence being wrong in principle, through the sentencing Judge omitting to take some mandatory step in the sentencing process.  The framework of the Sentencing Act means that where a sentencing judge errs in sentencing methodology by materially departing from the statutory process,

the sentence arrived at may be so wrong in principle that it is open to appeal on that basis.   Furthermore, a sentence that is reached through a process that is wrong in principle may also result in a sentence that is manifestly excessive.

[28]     But, where the end sentence falls within the range of appropriate sentences for the offending, there is no logical basis for an appellate court to intervene, even if there has been  an  error of process.    In such circumstances, it  can be said that whatever errors the sentencing judge may have committed are not material errors, as they have not resulted in a sentence that is so wrong in principle that it should be set aside on appeal.

[29]     I propose to deal with the ground of appeal based on the sentence being manifestly excessive and to consider if it is wrong in principle first, before dealing with the parity ground of appeal.

[30]     The tariff case for injuring with intent to injure is R v Harris [2008] NZCA

528.   In Harris, the Court of Appeal at [10] set bands for injuring with intent to injure, to be applied in cases where the injury broadly corresponded with the level of injury that the offender intended to inflict.   Accordingly, these bands reflect the levels of injury sustained:

(a)       Band one: little injury, few aggravating features, and a relatively low level of culpability; sentence of less than imprisonment.

(b)      Band  two:  moderate  injuries;  sentence  range  of  up  to  two  years’

imprisonment.

(c)       Band three: serious injury; sentence range of 18 months to five years’

imprisonment.

[31]     At [8] of the sentencing notes in the present case, the Judge noted that the appellant’s offending was within “the most serious band of offending of this type” and that his counsel agreed with this placement.  There does not appear to be any

challenge to this on appeal. A summary of similar band two and three cases suggests

to me that the categorisation given to the appellant’s offending was soundly based.

[32]     In Eden v R [2011] NZCA 54, Mr Eden was charged with injuring with intent to injure for his participation in a violent attack in which the group punched the victim on the head, knocked him to the ground, and began kicking his head and body. Twice, Mr Eden jumped in the air and landed on the victim’s head with both of his feet. The victim suffered ongoing headaches and blurred vision. The Judge placed these injuries at the top of band two, and adopted a starting point of two years’ imprisonment, which was increased by six months to reflect the gravity of the offending, in particular the stomping of the head, and a further six months to reflect Mr Eden’s history of offending. The Judge allowed a 20 per cent for his guilty plea, and a further discount of five per cent to reflect the offender’s youth, family support, and rehabilitative initiatives. The sentence was upheld on appeal.

[33]     In  Knight  v  Police  HC  Wellington  CRI-2010-485-59,  22  July  2010, Mr Knight was charged with injuring with intent to injure, as well as related charges that were to be served concurrently.  Mr Knight had been drinking with the victim when they began to argue.  Mr Knight hit the victim, who fell to the ground.  Once he was on the ground, Mr Knight kicked him five or six times around the head area, rendering him  unconscious.    Five minutes  later,  Mr Knight  returned  and  began kicking the victim around the head another five or six times before leaving the house.   The victim suffered ongoing injuries.   The Judge noted the aggravating features of prolonged and repeated attacks to the head, some of which occurred while the victim was on the ground and vulnerable, and that Mr Knight did not attempt to help the victim.  The offending was placed at the lower end of band three, with a starting point of three years. This was upheld on appeal.

[34]     In Winklemann v R [2010] NZCA 215, Mr Winklemann was charged with injuring with intent to injure, assault with intent to injure, and breach of community work. Mr Winklemann punched the first victim and continued to punch him while he lay on the footpath. The second victim was pushed away by Mr Winklemann’s co-offender, before Mr Winklemann punched him in the face, and continued to try to

hit him and knee him in the face and head when he fell back against a shop window. Both victims sustained serious injuries, though the second victim’s injuries were more serious and ongoing.  The Judge considered that the offending fell within band three of R v Harris, and adopted a starting point of three years and three months, which he uplifted to reflect Mr Winklemann’s previous convictions.   The starting point was upheld on appeal.

[35]     Following the above authorities, particularly Knight v Police and Winklemann v R, the placement of the appellant in band three was appropriate.  The offence of injuring with intent reveals an escalating pattern of violence on the appellant’s part, which seems to be fuelled by abuse of alcohol and failure to control his anger.   I consider that the starting point of three years’ imprisonment for this offence was an appropriate starting point, given the circumstances of the offending.  The choice of a starting point of three years’ imprisonment for the charge of injuring with intent to injure was also consistent with the above authorities.

[36]     The other charges (theft and assault with intent to injure) were dealt with by the Judge adopting a six  month  uplift to  the three  years’ imprisonment  for the offence of injuring with intent.  It is here that I consider the sentencing Judge erred in his approach to sentencing the appellant.  I consider that the uplift of six months’ imprisonment was too much and it pushed the end sentence to one that was outside the range of available sentences.

[37]     If it had been dealt with in isolation, the first set of offending would not ordinarily have resulted in a custodial sentence.  At the time, the appellant was aged approximately 17 years old and these were his first convictions as an adult offender. Although the offence of assault with intent to injure involved some application of violence to the victim, I consider that the more likely outcome would have been the imposition of a non-custodial sentence, which recognised and attempted to address the problems the appellant was displaying in regard to abuse of alcohol and failure to control his anger.  Such an approach is consistent with the need to pay full regard to principles s 7(1)(h) (to assist in the offender’s rehabilitation and integration) and s 8(1)(g) (to impose the least restrictive outcome) of the Sentencing Act.   I would

have expected a sentence along the lines of intensive supervision, coupled with community work, to have been imposed on him.

[38]     It was only the perceived need to impose a sentence of imprisonment for the second offence that brought the earlier offending within the scope of a sentence of imprisonment.    However, when  due regard is  paid  to  this offending (as  I have outlined  earlier),  I  consider  that  an  uplift  of  no  more  than  three  months’ imprisonment was all that was required to recognise the earlier offending, as well as the aggravating feature of the second offending having occurred while the appellant was on bail.

[39]     An  uplift   of  three  months   would   take  the  sentence  to   39   months’ imprisonment.  Allowance would then need to be made for the relevant mitigating factors.     The  appellant  pleaded  guilty  at  an  early  opportunity,  and  this  was recognised by the sentencing Judge, who gave him a 25 per cent discount.   In addition, the sentencing Judge gave him a discount of 14 per cent to recognise his youth. This discount was not established on a true percentage basis, but by the Judge deducting six months from the sentence of imprisonment that he had arrived at.

[40]     I consider that a discount of 14 per cent to reflect the appellant’s youth is an appropriate discount, particularly if that figure is also used to reflect his remorse, which can be seen from his willingness to attend a restorative justice conference. The addition of the 14 per cent discount to the 25 per cent discount for the guilty plea brings the discount up to 39 per cent.   By my calculation, 39 per cent of 39 months comes to just over 15 months, which, when subtracted from the sentence of

39   months,   produces   an   outcome   of   just   under   24   months.      As   with Mr Teuwira Kaihau, the appellant would then be eligible for a sentence of home detention.  The correctness of this outcome can be tested by adopting an alternative sentencing methodology and assessing its impact on the end sentence that I have reached.

[41]     There is another way in which the sentencing process could have proceeded. Given the separation in time between the September 2010 offences and the February

2011 offence, I consider it would have been open to the Judge, and indeed more consistent  with  the provisions  of the Sentencing Act,  if  he had  approached  the sentencing exercise as if he were imposing cumulative sentences.

[42]     Under the Sentencing Act, a determinate sentence of imprisonment may be imposed  cumulatively  with  any other  determinate  sentence  of  imprisonment,  or concurrently with any other sentence of imprisonment (s 83(1) and (5), respectively). The Sentencing Act provides the following guidance as to whether a sentence should be imposed cumulatively or concurrently:

84Guidance  on  use  of  cumulative  and  concurrent  sentences  of imprisonment

(1)       Cumulative   sentences   of   imprisonment   are   generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)       Concurrent   sentences   of   imprisonment   are   generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)       In determining for the purpose of this section whether 2 or more  offences  committed by 1  offender  are  a  connected series of offences, the court may consider—

(a)       the time at which they occurred; or

(b)       the overall nature of the offending; or

(c)       any other relationship between the offences that the court considers relevant.

[43]     When imposing sentences of imprisonment for two or more offences, the Court must consider the totality of the offending so that the end period of imprisonment is proportionate to the gravity of the overall offending (s 85).

[44]     Whether sentences should be imposed cumulatively or concurrently depends on whether the offences are similar in kind and/or a connected series of events.  Here the offending in 2010 and 2011 are not part of a connected series of events.

[45]     The two sets of offending are similar in that they both involved alcohol- fuelled, seemingly arbitrary violence against another man, following an argument over property; they were reasonably close together in time (the second set of offending occurred while the appellant was on bail for the first set of offending); and the charges are very similar, though one is more serious.  The differences between the offending are that they occurred on two separate occasions in different contexts, in that the first set of offending occurred in public and involved a stranger, while the other occurred in a gathering and involved a family member.

[46]     Overall, the differences between the offending appear to be the details of the particular offence, rather than the overall nature of the offending.  The offences may, therefore, be characterised as similar in kind but unconnected.  Section 84 is silent as to the preferred approach to be taken to these kinds of offences.   Cumulative sentencing is generally appropriate if the offences cannot reasonably be described as a continuing course of conduct, even though they may be of the same type: see, for example, R v Clarke CA128/06 6 June 2006, where cumulative sentences were imposed for unconnected serious  assaults committed against the same victim at different time.  This approach is supported by cases that have imposed cumulative sentences in cases involving similar offences but different victims: see R v Mwai [1995] 3 NZLR 149.

[47]     The fact that an offence is committed while on bail is an aggravating factor that may justify a cumulative sentence: see R v Wallace [1983] NZLR 758 at 760, though this will not be the case where the offending otherwise fits within s 84(2): see R v Tait CA163/04, 29 September 2004.

[48]     Had the sentencing Judge commenced with an approach that treated each set of offences separately, I consider that he would have arrived at an end sentence of imprisonment of no more than two years for the offence of injuring with intent to injure, which is acknowledged by the respondent to be the appropriate end sentence for that offence.  Given the respondent’s further acknowledgment that, subject to a suitable    address,    a    sentence    of    home    detention    of    similar    length    to Mr Teuwira Kaihau  would  then  have  been  imposed  on  the  appellant,  the  likely

sentence for the offence of injuring with intent to injure could have been a sentence of home detention with 350 hours of supervision, this also being the type of sentence that was imposed on Mr Teuwira Kaihau.  Given that the injuring with intent offence was the second offence for the appellant, the sentence of home detention could have been set at 12 months, to distinguish him from Mr Teuwira Kaihau, whose previous offending was, I am informed, confined to traffic offences.

[49]     When it came to the first set of offending, I consider, for the reasons outlined earlier, that when looked at in isolation, the sentencing Judge would have concluded that a non-custodial sentence was appropriate. At this point, a sentencing judge, who had to sentence for both sets of offences, would have been faced with two choices.

[50]     First, to impose non-custodial sentences for the first offences and to combine those sentences with the home detention imposed for the second offence.  This could have been done by imposing additional community work and imposing a sentence of intensive supervision to help deal with the alcohol abuse and anger management problems.  Such an approach was adopted by Ellis J in R v Sheehan HC Hamilton CRI-2011-039-151, 19 December 2011.

[51]     Secondly, and in the alternative, the Judge could have abandoned the home detention sentence for the injuring with intent offence and, in addition to the two year sentence of imprisonment for that offence, he could have imposed a separate period of imprisonment for the first set of offences, such that, in combination, a period of imprisonment was imposed that accorded with the totality principle.

[52]     Faced with these alternatives, I consider that the proper course would be for the sentencing Judge to adopt the first alternative, as this would result in the least restrictive sentence; thus ensuring that the end sentence accorded with s 7(1)(h) and s 8(g) of the Sentencing Act.

[53]     The importance of a sentencing judge giving greater weight to the principle in s 8(g), when considering the imposition of the first sentence of imprisonment on an offender, is not to be overlooked.   Such a sentence can increase the risk of

recidivism and, therefore, careful thought needs to be given to whether or not its imposition is warranted.  In Folau v Police HC Auckland CRI-2010-404-000175, 11

August 2010 at [30], I referred to the existence of academic opinion that holds that a sentence of imprisonment at an early stage of criminal offending can increase the likelihood of re-offending:

… There is a body of academic opinion that says that at a relatively early stage of criminal offending, the imposition of a sentence of imprisonment can increase the likelihood of reoffending, whereas a non-custodial sentence will  not  do  so.   A commonly  cited  paper,  “The  Effects  of  Community Sanctions and Incarceration on Recidivism” (2002) by Gendreau, Goggin & Cullen,  suggests  that  offenders  released  from prison  are  re-convicted  at higher rates than offenders receiving community sentences.   There are a number of variables at play in studies such as this, and usually offenders who receive sentences of imprisonment have more serious criminal histories than offenders who receive non-custodial sentences; so those factors may influence the results of studies such as these.   Nonetheless, such studies serve to indicate the importance of giving thought to non-custodial sentences when there is a choice to be made.

[54]     In the present case, there is no mention of either s 7(1)(h) or s 8(1)(g) in the sentencing notes.  Given the appellant’s age, these considerations should have been given specific consideration: see Tarrant at [10], where MacKenzie J said:

There is no explicit reference in the sentencing notes to the need to impose the  least  restrictive  outcome  as  required  by  s  8(g).    That  principle  is reinforced by reference to s 16 of the Act.  In this regard it is relevant to note that the appellant has not previously served a term of imprisonment.  The Court of Appeal in R v Earle (CA414/91, 9 March 1992), a decision on the previous legislation in 1992, held that where an offender is being sentenced to a custodial sentence for the first time greater weight may be given to the statutory requirement to impose the least restrictive outcome that is appropriate.

The application of this principle in Earle and Tarrant demonstrates some judicial acceptance of the ideas expressed in the academic opinion on recidivism.

[55]     The two approaches that I have outlined each result in a sentence that is different from the sentence imposed in the District Court.  These approaches accord with recognised sentencing principles.  This leads me to conclude that the sentence imposed in the District Court was procedurally wrong in principle.  I consider that this error of principle has also resulted in a sentence that is manifestly excessive. This is because here, the error is responsible for the appellant being on the wrong

side of the threshold of eligibility for a sentence of home detention.   But for the error, the appellant would have qualified for a sentence of home detention.   The difference  between  the  sentence  he  received  and  the  sentence  he  would  have received but for this error is significant in terms of the restriction imposed on him.

[56]     I now turn to consider the disparity ground of appeal.  As matters stand, one offender has received a sentence of two years, three months’ imprisonment, whereas the other has received a non-custodial sentence of 10 months’ home detention and

350 hours of community work.

[57]     In Vernon v R [2010] NZCA 308 at [17], the Court of Appeal said:

To succeed in an unjustified disparity claim an appellant must show that a reasonably minded independent observer, aware of all the circumstances, would  think  that  something  had  gone  wrong  with  the  administration  of justice given the disparity.

[58]     In the present case, the errors in the sentencing process resulted in the Judge reaching a term of imprisonment that was manifestly excessive and  outside the available range for a sentence of home detention.  The respondent has acknowledged that being outside the range of a sentence of home detention is all that precluded the appellant from receiving this sentence.  In such circumstances, the disparity between the co-offenders would clearly lead to any independent, reasonable observer thinking that something had gone wrong with the administration of justice.  For this reason, the appellant succeeds in the disparity ground of appeal as well.

[59]   I am satisfied, therefore, that the sentence of two years, three months’ imprisonment should be quashed.  However, when it comes to imposing a substitute sentence, I am conscious that the appellant has been serving the sentence of imprisonment since 31 October 2011.  This will need to be taken into account when determining the appropriate sentence to impose.  In addition, I am informed that the appellant’s father has arranged accommodation for the appellant at an address at which he could serve a sentence of home detention.  The suitability of this address and the appropriate mix of non-custodial sentences to assist with the appellant’s

rehabilitation and integration into the community will need to be explored by the

Probation Service.

[60]     Before I take any further steps in this appeal, I direct that an updating pre- sentence report on possible non-custodial sentences, as well as a home detention report, be prepared as soon as possible.   I am not going to consider bail in the meantime, as further investigation may reveal that a mix of non-custodial sentences is no longer suitable.   In that case, I may have no alternative but to sentence the appellant to a term of imprisonment.

Duffy J