Kaiwai v Police
[2024] NZHC 2491
•2 September 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-000012
[2024] NZHC 2491
BETWEEN JAKAHN ROBERT KAIWAI
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2024-441-000013 BETWEEN
PAAKA MALACHI BABBINGTON
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 22 August 2024; further submissions 28 August 2024 Counsel:
C E Church for Appellants
M J M Mitchell for Respondent
Judgment:
2 September 2024
JUDGMENT OF LA HOOD J
(Appeal against Sentence)
[1] Jakahn Kaiwai and Paaka Babbington were charged (alongside five other men) with one charge of injuring with intent to injure.1 The group are gang members and associates who attacked a fellow inmate in prison. Messrs Kaiwai and Babbington pleaded guilty and were each sentenced to three years’ imprisonment by Judge Ingram in the Hastings District Court.2 They appeal on the basis that the Judge erred by setting
1 Crimes Act 1961; maximum penalty of five years. The charge was originally “intent to cause grievous bodily harm” but this was amended.
2 Police v Babbington [2024] NZDC 12175 [Decision under appeal].
KAIWAI v NEW ZEALAND POLICE [2024] NZHC 2491 [2 September 2024]
the starting point too high, failing to account for parity with co-offenders, and failing to accept as a mitigating factor the tikanga Māori principle of utu.
[2] I have concluded the starting points of imprisonment should be adjusted to reduce the disparity between the appellants’ sentences and the sentences imposed on their co-offenders. The disparity would cause an independent objective observer to think the administration of justice has miscarried. As the starting points adopted for the co-offenders were manifestly inadequate, the appellants’ starting points should be reduced to the bottom end of the available range because a manifestly inadequate sentence cannot justify the imposition of another sentence outside the available range. I consider a starting point of no less than three and a half years’ imprisonment was appropriate.
[3] I consider no further adjustment to the sentences is required as there was no error in the Judge’s approach. There was no basis to consider the practice of utu a mitigating factor in this case. There would at least need to be pūkenga evidence to support the proposition that an orchestrated gang attack on a rival gang member in prison is consistent with utu. Moreover, recognition of utu would be contrary to binding authority that vigilante action is an aggravating rather than mitigating factor.3 The assertion that the attack was in retaliation for an unwanted sexual advance on Mr Kaiwai falls well short of the threshold required to establish provocation as a mitigating factor.4
[4] Therefore, the appeal is allowed. The sentences of three years’ imprisonment are quashed and sentences of two years and one month imprisonment substituted.
What happened?
[5] The appellants (and their co-offenders) are all patched members or associates of Black Power. Mr Kaiwai and Mr Babbington were remanded in custody and resided in the same wing as the victim at Hawkes Bay Regional Prison. At around 1.00 pm on 23 October 2024, the victim was assaulted in a sustained beating in the corridor of
3 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31(m)].
4 At [32(a)].
Wing 3. The victim was punched, kicked and stomped on. A co-offender, Mr Wharepapa, struck the victim with a metal broom. The attack was captured on CCTV. The victim received considerable bruising and swelling to his face and suffered severe pain to his chest, spine, head and arms. No bones were broken.
[6]As Judge Ingram said in his decision:5
[3] The summary of facts says that it was simply a case of patched Black Power members dealing a measure of violence to a patched Nomads member. The arguments addressed to me today indicate that it may have been a little more nuanced in that the group of Black Power men apparently considered that they were entitled to extract utu from the victim because he had done something inappropriate whilst in the showers.
[7] Mr Kaiwai has provided an unsigned affidavit on appeal stating that the victim “made sexual advances” towards him in the shower. He “was pretty upset about what had happened” and “quite taken aback”. He relayed the incident to older prisoners who had become his support network and says these individuals “were not happy”. Mr Kaiwai is of the opinion that the attack was to be a penalty for the victim’s “indiscretion” and that the victim accepted the consequence would be “a hiding”. He says, “we all joined in to show solidarity, so that the victim was under no illusions that what he did was wrong, and that everyone supported the punishment”. Mr Kaiwai speaks of the protection offered to him through this act by older prisoners, and his learning that “most male inmates do not appreciate the advances of one man on another man”.
[8] The Crown does not take issue with the affidavit being unsigned due to logistical difficulties with counsel obtaining a signed version from prison. However, the Crown submits Mr Kaiwai’s assertions in the affidavit appear contrary to his statements to the pre-sentence report writer that the incident in the shower was a gang related dispute rather than a sexual advance.
[9] The majority of the other individuals involved in the offending have been sentenced. The starting points adopted in their cases was as follows:
5 At [3].
[10] I will come back to the impact of these different starting points. Although parity considerations should be assessed against starting points, it should also be noted that the end sentences imposed on the co-offenders ranged from 17 to 18 months’ imprisonment compared to the three years’ imprisonment imposed on the appellants.
District Court decision
[11] Judge Ingram considered “it is not possible to conceive of a more serious case [of injuring with intent to injure] than this one”.6 He discussed the aggravating factors of the offending “which point strongly to the conclusion that this is about as bad as it conceivably can get”.7 These aggravating factors included the number of men involved, the gang aspect, the remand prison environment, the extreme and prolonged violence, a degree of victim vulnerability, and the evident premeditation.8 The Judge considered that if the injuries had been more serious a charge with a higher maximum penalty would have been pursued. Because of this, the Judge reached the conclusion that it was appropriate to start at the top end of the available sentencing range, namely five years’ imprisonment.
[12] The Judge considered both Mr Kaiwai and Mr Babbington were “relatively young” and “clearly both entrenched in the gang lifestyle”.9 Having weighed the “overall circumstances”, especially the probation reports and Mr Babbington’s cultural
6 At [6].
7 At [7].
8 See Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
9 Police v Babbington, above n 2, at [8].
report, Judge Ingram did not think the starting point needed to be extended beyond the maximum available.
[13] Turning to mitigation, a credit of 25 per cent was given for the prompt plea once the charge was reduced (as the original was “unnecessarily high”).10 The Judge then gave a discount of 15 per cent for youth and background. His Honour noted “they are both young, they are both products of their background, and they are both clearly gang members acting in accordance with the gang code of conduct”.11 He chose to not give further credit for Mr Kaiwai on the basis of youth and peer pressure, as that must be mitigated against his record for violent offending and gang association. There was “no hint, whisper or suggestion in any of the material before [the Judge] that [Mr Kaiwai] was seeking a way out.”12
[14] The total credit from the starting point of five years was therefore 40 per cent, resulting in a final sentence of three years’ imprisonment.
Approach to sentence appeal
[15] The Court must allow the appeal if it is satisfied that, for any reason, there is a material error in the sentence and a different sentence should be imposed.13 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.14 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”15
[16]As I noted in Johnson v New Zealand Police the error principle recognises:16
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public
10 At [17].
11 At [18].
12 At [23].
13 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
14 At [30]–[36].
15 At [30] and [35].
16 Johnson v New Zealand Police [2023] NZHC 3748 at [6].
confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
Submissions
For Mr Kaiwai
[17]Mr Kaiwai appeals the decision on the basis that the Judge:
(a)adopted a starting point that was too high and did not account for parity (described as the most important ground in this appeal);
(b)did not give any credit for culturally based issues; and
(c)did not give credit for the appellant’s vulnerability or victim’s sexual inappropriateness.
[18] Mr Church emphasises that the attack was a decision “to act in a culturally Maori way; to maintain balance and harmony in the prison block and regain mana by performing reciprocal vengeance”. It is suggested the level of assault and the lack of injuries that were suffered by the victim “showed that this was uniquely Utu”.
[19] Mr Church submits the CCTV footage of the attack, which I have viewed at counsel’s request, accords with Mr Kaiwai’s account that the victim understood and accepted the act was utu as he embraced the lead offender.
[20] Mr Church submits the Judge did not take into account that Mr Kaiwai’s co- offenders have “significantly worse criminal histories”, nor provide discrete discounts for remorse or for the uninvited sexual attention.
For Mr Babbington
[21]Mr Babbington appeals the decision on the basis the Judge:
(a)adopted a starting point that was too high and did not account for parity; and
(b)did not allow for culturally based issues.
[22]Mr Church relies on the submissions regarding utu referred to above.
For the respondent
[23] The Crown submits there is no error in the approach to sentencing adopted when seen in isolation, but accepts that parity principles do apply. Ms Mitchell says the lower starting points for the co-offenders can be described as “unjustified” and manifestly inadequate, but “some allowance to correct the gross disparity that has resulted from this earlier error may be appropriate”. A discount of 12 months, as occurred in Waru v R, would be appropriate.17
[24] No additional discounts are appropriate in respect of the appellants’ personal circumstances, as the Judge took these into account in fixing a 15 per cent discount. The Crown submits the Churchward principles of youth sentencing are not applicable to Mr Babbington (aged 27) and can only go so far for Mr Kaiwai given his criminal history and gang affiliation (aged 20).
[25] Ms Mitchell submits the argument that credit is required to give effect to the principle of utu is inappropriate and contends any recognition of utu as claimed in the present case would not be reconcilable with the fundamental statutory and case law principles applicable. First, she says the allegation of any wrongdoing by the victim is untested and not accepted. Moreover, even if Mr Kaiwai’s assertions were correct they simply talk about what he perceived to be unwanted attention and a “sexual advance” without any suggestion of intimidation, or any actual or attempted physical or sexual assault. Second, it is not apparent the actions taken could be characterised as utu. Third, while tikanga Māori can be relevant to the exercise of judicial discretion and to the development of common law, it is also held that “the application of tikanga in the common law can be limited or excluded by statute”.18 The respondent says the submission here cannot be “sensibly entertained” as an appropriate response to a perceived slight or indiscretion, and in fact, directly contradicts the Crimes Act 1961,
17 Waru v R [2019] NZCA 347 at [41]. In Waru, the disparity between starting points for co-offenders in an attack on a prison officer, was five and a half years, but Waru’s role was more significant.
18 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [91].
rule of law and prohibition on vigilante justice.19 Further, absent any evidence of actual wrongdoing by the victim, such a reaction to merely the impression of a romantic advance by another man skirts dangerously close to another well-recognised aggravating feature,20 of a crime having been motivated by homophobia.
Parity
Co-offenders’ sentences
[26] Ideally, co-offenders should be sentenced by the same Judge at the same time. This is not always possible, as occurred here. Three co-offenders were sentenced at different times by the same Judge who adopted the same starting point. One was sentenced in a different District Court, with a different Judge, and given the same starting point specifically for parity reasons. The final two co-offenders (the appellants) were sentenced by a different Judge and given a different, significantly higher starting point.
[27] Stephen Tihore was sentenced on 8 May 2024 by Judge Matenga in the Hastings District Court.21 Judge Matenga traversed the “extreme and prolonged violence” and agreed with the submissions that this was “a band 3 matter”.22 Judge Matenga considered the cases of Dashwood and Papa,23 and came to a starting point of two years’ imprisonment, commenting this was a “stern response” which responds to the need for there to be order in the prison environment.24
[28] Judge Matenga sentenced Jesse Abraham-Cordtz on 15 May 2024.25 Judge Matenga followed his decision in Police v Tihore and set out a starting point of two years’ imprisonment, within band 3 of Taueki and Nuku.26 The Judge considered this a “stern response”.27
19 R v Taueki, above n 3, at [31(m)].
20 At [31(n)]; Sentencing Act 2002, s 9(h).
21 Police v Tihore [2024] NZDC 10288.
22 At [10].
23 At [11], citing Dashwood v Police [2020] NZHC 913; and Papa v R [2020] NZHC 80.
24 At [12].
25 Police v Abraham-Cordtz [2024] NZDC 10776.
26 At [7].
27 At [9].
[29] On 15 May 2024, Judge Matenga also sentenced Paddy Wharepapa.28 The Judge referenced the importance of parity between his two earlier decisions and adopted a starting point of two years.29
[30] K’las Tihore was sentenced on 22 May 2024 in the Gisborne District Court as part of other offending.30 Judge Cathcart said the offending would justify a high starting point in the vicinity of five years.31 However, the Judge emphasised the need for parity.32 Given Judge Matenga’s decision of a two-year starting point,33 Judge Cathcart felt “bound” to adopt a two-year starting point.34
[31] There is a fifth co-offender, Mr Matthew Peneha, who has not been sentenced yet.
Assessment of arguments and decision
[32] Every other co-offender was subject to a starting point of two years’ imprisonment. Judge Ingram did not discuss these other sentencing decisions because it appears he was not aware of them, given his discussion of hypothetical outcomes for the “others who were involved”35 and his statement that he would not venture any view on how the others “might in the end be dealt with”.36
[33] Judge Ingram emphasised the similarity of the appellants’ offending to their co-offenders: “[the appellants] played an indistinguishable role, indistinguishable from everyone, but [the ringleader]”37 and “I consider that these two men fall to be considered exactly the same as all the others”.38
28 Police v Wharepapa [2024] NZDC 10788.
29 At [8].
30 R v Tihore [2024] NZDC 11717.
31 At [18] and [20].
32 At [19].
33 Police v Tihore, above n 21.
34 At [20].
35 Decision under appeal, above n 2, at [10].
36 At [22].
37 At [21].
38 At [22].
Legal principles
[34] The disparity principle is engaged when two or more co-offenders receive unjustifiably different sentences.39 As explained in R v Lawson, it is significant for policy reasons:40
[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind the public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.
[35] Importantly, however, where an offender is being sentenced, and in the judge’s view the sentence imposed on a co-offender was manifestly lenient, it is not necessary for the Judge to impose the same sentence to ensure parity.41 An inadequate sentence cannot justify additional inadequate sentences, and disparity should not, in itself, produce an unjustifiable sentence.42 The Court of Appeal has commented in this context that “two wrongs do not make a right”.43 The threshold for intervention on appeal has been described as being at the level where an independent objective observer would think the administration of justice has miscarried.44
[36] Some reduction of the sentence imposed on an offender may be required to reduce the disparity to some degree, in order to remove the justifiable sense of grievance that would arise from a gross discrepancy with a co-offender’s sentence.45
[37] The starting points between the co-offenders in this case are grossly disparate (as are the end sentences). I accept the Crown submission that the starting point for the other offenders was manifestly lenient and should not justify reducing the appellants’ starting point to an inadequate level. In considering whether to reduce the
39 Cao v Police [2022] NZHC 2034 at [14].
40 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
41 Tai v R [2022] NZCA 403 at [34] citing R v Feterika [2008] NZCA 127 at [47]; R v Te Kaha CA49/05, 5 July 2005 at [48]; and R v Walter (1992) 9 CRNZ 178 (CA). See also Mau’u v R [2011] NZCA 385 at [28].
42 Matthew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA8.06] and [SAB5.08]. See also Kulu v R [2022] NZCA 284 at [33].
43 Vaeafisi v R [2017] NZCA 545 at [22].
44 Macfarlane v R [2012] NZCA 317 at [24].
45 R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson, above n 40; and Singh v R [2013] NZCA 245.
starting points, I must strike a balance between maintaining public confidence in the administration of justice on the one hand, and not amplifying the injustice of one manifestly inadequate sentence by adding another.46
[38] In Singh v R, the Court of Appeal faced a similar situation where the District Court’s approach rested on a mistaken premise as to the nature of the co-offender’s sentence.47 In comparing the two sentences, the Court of Appeal concluded “even though [the co-offender’s] sentence may have been unduly lenient”, the disparity was “so gross that an independent objective observer would conclude that, in Mr Singh’s case, the administration of justice has miscarried”.48 The case of Crutchley v R is also instructive.49 Mr Crutchley was sentenced to five years’ imprisonment for possession of cannabis for supply, and his co-offender, Mr Elder, was sentenced to intensive supervision and community work (by a different Judge at a different time). The Court of Appeal noted:50
[14] Mr Elder was treated extraordinarily leniently. This is not a situation in which the extent of the difference in sentences could, of itself, justify intervening on Mr Crutchley’s appeal. The Court can attribute to the notional independent observer an appreciation that Mr Elder was treated exceptionally leniently, and the expectation of parity must be tempered by that fact.
[39] However, the Court noted the “legitimate consideration in addressing the extent of the disparity”,51 contributed to a conclusion that the original sentence was manifestly excessive.
The appropriate starting point
[40] In light of these principles, I consider the Crown’s concession that some reduction is required to reduce the disparity was well made. Ms Mitchell indicated I should impose a starting point at the lower end of the available range. I consider the starting point adopted by Judge Ingram was stern but arguably within range. I also consider the starting point for the other defendants was unduly lenient. In the end, it
46 Kulu v R, above n 42, at [33].
47 Singh v R, above n 45.
48 At [35].
49 Crutchley v R [2015] NZCA 473.
50 At [14].
51 At [24].
is simply unjustifiable and unfair to have a disparity of three years between starting points for identical offending with a maximum penalty of five years’ imprisonment. However, when correcting the disparity, the sentence must remain within the permissible range.52
[41] I consider the lowest end of the available range in this case to be three and a half years’ imprisonment. In my view, Judge Ingram (with whom Judge Cathcart agreed) was correct to place the offending in band three of Nuku. It involved the aggravating features of prolonged and extreme violence, a high degree of planning and premeditation, an attack to the head, multiple attackers, and the attack happening in the prison environment (for which the courts have been clear a deterrent response is required).53 I consider these factors were present to a high or moderate degree justifying a starting point at the higher end of band three. Where it should sit within this range is a matter upon which reasonable minds can differ, but I consider anything less than a starting point of three and half years would not adequately reflect the seriousness of the offending.
[42] I have determined that substituting a starting point of three and half years’ imprisonment is necessary to reduce the disparity with the co-offenders’ sentences without resulting in a manifestly inadequate sentence.
Was there any error in the credit for mitigating factors?
[43] I do not accept Mr Church’s submission that there was a basis to distinguish between the roles of those involved in the attack because these appellants were not “seasoned” gang members like other participants. I agree with Judge Ingram that for an orchestrated gang attack in which all participants were involved in inflicting serious violence, there was no basis for such a distinction. While there may have been a basis to distinguish Mr Wharepapa’s role as the ringleader and the offender who used the broom, the starting point available for the role the appellants played could not have been less than three and half years.
52 Apiata v Police [2021] NZHC 3224 at [17]. See also R v Haronga CA 399/93, 28 February 1994.
53 See Tryselaar v R [2012] NZCA 353; R v Connelly [2010] NZCA 52; and Kepu v R [2011] NZCA 104.
[44] The co-offenders’ seasoned gang membership is reflected in their criminal histories, which was taken into account when considering uplifts for personal aggravating factors. Judge Ingram did not impose an uplift for the appellants’ criminal histories. In the case of Mr Kaiwai, who was only 20 years old, he did not give further credit for youth given his history of violent offending and gang affiliation (which led to the offending and of which there was no suggestion he was relinquishing). Although Mr Church appeared to concede at the hearing of the appeal that there was no error in the Judge’s approach on this aspect of the appeal, he has filed supplementary submissions that appear to resile from that concession. However, I consider the initial concession was responsibly made and there was no error in the Judge’s approach.
[45] I consider the 15 per cent credit given to both appellants for their youth and backgrounds was entirely within the appropriate range.
Utu
[46] That only leaves the issue of utu. I accept the Crown submission that there is no basis to consider utu to be a mitigating factor in the circumstance of this case.
[47]Judge Ingram’s conclusions on utu and vigilante justice were:54
[11] The issue of utu is a vexed issue, at least from my point of view. There was no expert evidence, and indeed no application to give evidence in relation to either utu or in connection with any dispute about the summary of facts. The summary of facts simply records that there was a prolonged assault by members of one gang on a man who belonged to another gang. The level of injury in my view was carefully calibrated and these men must have known what they were getting involved in.
[12] The claim that utu can justify a discrete reduction in sentence is in my view not tenable, at least in this case, and probably not at all. The reason I say that is because vigilante action is a statutory aggravating factor, and I consider in the circumstances that this is a classic example of a vigilante action. It might have occurred within the prison system, and it might have involved members of rival gangs, but the underlying feature of this incident was clearly the infliction of physical punishment for a perceived slight. In my view the Sentencing Act 2002 simply could not be clearer. If people are prepared to take the law into their own hands, then they run the risk that the Court will consider the matter to fall within the category of vigilante action, and in my judgement, this is a clear example of that.
54 Decision under appeal, above n 2.
[25] … neither counsel nor myself have been able to find an authoritative exposition of the principles of utu which could properly be applied under the provisions of the Sentencing Act. I accept that there have been other cases where it has been mentioned, but there certainly has not, to my knowledge, been a clear exposition of principle which would deal with the issues in this particular case.
[48] To the extent that this appeal asks me to directly engage with these questions, I am mindful that the relationship between tikanga and the common law must evolve contextually and as required on a case-by-case basis.55
[49]The Law Commission | Te Aka Matua o Te Ture’s study paper He Poutama
states:56
3.60 Utu is “the action undertaken for reciprocity”. Utu maintains harmony and balance and “conveys the ethic of striving to achieve balance in all things”. The action taken can either be positive or may take the form of retribution.
…
7.28 The Sentencing Act allows the court to direct that a cultural report be prepared that can include this information. It also allows an offender to request a court to hear any person speak to the cultural background of the offender and how that relates to their offending. The provisions relating to the cultural background of an offender can be traced to section 16 of the Criminal Justice Act 1985. This section “was a conscious attempt to recognise the importance of trying to meet the needs of Māori offenders”.
…
8.39 …
(f)The common law cannot give effect to tikanga that is contrary to statute or to fundamental principles and policies of the law.
[50] This last point is drawn from Supreme Court authority that tikanga will not be relevant if it is contrary to statute or binding precedent,57 or fundamental principles and policies of the law.58
55 Ellis v R, above n 18, at [21].
56 Law Commission He Poutama (NZLC SP24, 2023) at [3.60], [7.28] and [8.39(f)] (footnotes omitted).
57 Ellis v R (Continuance), above n 18, at [117] per Glazebrook J and [265] per Williams J.
58 Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [95] per Elias CJ.
[51] Notably, Mr Babbington had a cultural report prepared under s 27 of the Sentencing Act that does not address utu. Mr Church submits that a 1991 article by John Patterson, a Senior Lecturer in Philosophy at Massey, supports the conclusion that the offending was the practice of utu. However, the article does not address the situation that arose in this case. At the very least, the Court would require some evidence from a pūkenga about the application of utu in these circumstances before considering its relevance.59 An article by an academic writing about utu generally over thirty years ago, which does not address the specific circumstances of the case, does not provide a basis for the consideration of utu as a mitigating factor.
[52] As Judge Ingram noted, there is no place in our legal system, and especially in a prison context, for group beatings meted out by members of a gang. As already noted, it is well-established that a deterrent response is required for such offending.60
[53] However, the fundamental problem with this ground of appeal is that, on the evidence before me, recognition of utu as a mitigating factor would appear to be contrary to binding authority and fundamental principles and polices of the law. The full Court of Appeal in Taueki has held that vigilante action is an aggravating factor that must be taken into account at sentencing.61 This is long-established binding authority that this Court is not entitled to ignore, especially without an evidential basis to suggest that the practice of utu justifies a departure from it.
[54] I also do not overlook the Crown submission about the homophobic undertones of the offending in the absence of any suggestion of intimidation or physical or sexual assault. On the other hand, I acknowledge that an unwanted sexual advance, regardless of gender or sexual orientation, is likely to be unpleasant in a prison environment. But the evidence in this case about what occurred falls well short of the “serious provocation” required by the Court in Taueki to qualify as a mitigating feature.62
59 Extensive expert evidence was provided in Ellis v R, above n 18, as discussed at [35]–[38] and
[85] per Glazebrook J; and R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [4] and [5].
60 See Papa above n 23, at [21] citing Tryselaar v R, R v Connelly and Kepu v R, above n 53.
61 R v Taueki, above n 3.
62 At [32(a)].
Conclusion
[55] Taking a starting point of three and a half years’ imprisonment and giving the same 40 per cent credit for mitigating factors as Judge Ingram results in an end sentence of two years and one month imprisonment (rounding down in the appellants’ favour).
[56] I therefore allow the appeals, quash the sentences of three years’ imprisonment and substitute sentences of two years and one month imprisonment.
La Hood J
Solicitors:
Cliff Church Legal, Hastings for Appellants Crown Solicitor, Napier
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