Pasifatama v The King

[2024] NZHC 3084

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-485

[2024] NZHC 3084

BETWEEN

RAE AKENI PASIFATAMA

Appellant

AND

THE KING

Respondent

Hearing:	14 October 2024
Appearances:	J C H Liu and A C L Jordan for Appellant O J Southern for Respondent
Judgment:	23 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 23 October 2024 at 3 pm

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Public Defence Service, Manukau Kayes Fletcher Walker, Auckland

PASIFATAMA v R [2024] NZHC 3084 [23 October 2024]

Overview

[1]    This is an appeal against the sentence of Judge S Moala on 19 August 2024.1 On that date, Mr Pasifatama was sentenced to two years and three months’ imprisonment following his guilty plea to one charge of sexual violation by rape.    At the time of the offending, Mr Pasifatama was 19 years old, and the victim was   18 years old. They knew each other because Mr Pasifatama was friends with members of the victim’s family.

[2]    Mr Pasifatama had no previous criminal conviction history and was assessed as having a low risk of reoffending. Whilst on bail prior to sentencing, Mr Pasifatama obtained full-time employment, entered into a committed relationship, and now has a newborn daughter who is four months old. Prior to the custodial sentence being imposed, Mr Pasifatama was the sole breadwinner for the family.

[3]On behalf of Mr Pasifatama, Mr Liu submits on appeal that:

(a)insufficient discounts were given for remorse, the causative role of addiction, and the effect on his whānau (including this newborn baby);

(b)accordingly the overall sentence was manifestly excessive; and

(c)an end sentence of home detention is the least restrictive outcome appropriate in the circumstances.

Legal principles

[4]    The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

1      R v Pasifatama [2024] NZDC 19723.

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

[5]    The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

[6]    Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

District Court sentencing

[7]    The District Court followed the two step methodology for sentencing as set out in Moses v R.7

[8]    Assessing the guideline bands for rape set out in the decision of R v AM,8 this offending was placed at the lower end of band 1 and the Judge adopted a starting point of six and a half years’ imprisonment. There is no challenge to this aspect of the sentence.

[9]    The Judge then made the following downwards adjustments for mitigating factors personal to Mr Pasifatama:

(a)15 per cent discount for his guilty plea;

(b)30 per cent discount for youth and previous good character;

(c)15 per cent discount for rehabilitative prospects and community work completed; and

(d)just over a five per cent reduction (four months) for time spent on restrictive bail.

5 At [32].

6      R v Boyd (2004) 21 CRNZ 169 at [38].

7      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

8      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].

[10]   In respect of the submission that a 10 per cent adjustment should be given for remorse, the Judge did not accept that Mr Pasifatama was genuinely remorseful given adverse comments in a report prepared pursuant to s 38(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP report).

[11]   In particular, the report writer questioned Mr Pasifatama about what happened in relation to the offending and was given inconsistent answers about what he could remember. Mr Pasifatama acknowledged that he had drunk a lot that night and yet was reluctant to accept that he was in fact intoxicated and at one point said, “I would have remembered that, I didn’t do it”. In addition, the sentencing notes record the Judge’s frustration that Mr Pasifatama had not completed any drug and alcohol programme or rehabilitative course to address his sexual offending or drinking problems, despite numerous adjournments of sentencing to give him that opportunity.

[12]   The sentencing notes record submissions made about Mr Pasifatama’s personal circumstances, including the fact that he now has a young baby.9 However, no additional discount was allowed for those circumstances, and no reasons or analysis was provided in respect of this separate factor.

Application to admit fresh evidence

[13]The appellant seeks to admit new evidence on appeal, namely:

(a)An affidavit from the appellant’s mother describing Mr Pasifatama’s childhood, acknowledging the gravity and harm of the offending, explaining Mr Pasifatama’s attempts to engage in rehabilitation and the steps that he has taken to turn his life around by stopping drinking from when he was charged, and his increased responsibility and maturity with a newborn child.

9      R v Pasifatama, above n 1, at [31].

(b)The second affidavit is from his partner, the mother of his new daughter. She describes her relationship with Mr Pasifatama which postdates the time of his offending. She says that Mr Pasifatama has been honest about those events, expressing his remorse. He has also always been respectful to her, and she speaks about his transformation into a responsible breadwinner and loving partner and father from when she became pregnant.

[14]   The test for adducing fresh evidence on appeal is set out by the Privy Council in Lundy v R:10

The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[15]   The Court of Appeal has confirmed that these principles also apply in the context of appeals against sentence.11

[16]The respondent opposes that further evidence being adduced:

(a)The proposed evidence is not fresh. Although the appellant himself claims to have been unaware that he could approach whānau to speak on his behalf under s 27 of the Sentencing Act 2002, he had the benefit of legal representation. With reasonable diligence, this option could easily have been canvassed with him.

10     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

11     Mark v R [2019] NZCA 121 at [16].

(b)The evidence is not cogent. Judge Moala was made aware that the appellant had a young child. She was also aware that the appellant had not engaged in any rehabilitation but was seemingly willing to do so. There is little material in the affidavits that was not put before the Judge in another form, so the material is not capable of demonstrating any error in sentencing.

[17]   I accept that the proposed evidence is not fresh in that it could have been adduced at the time of sentencing. Its cogency is also limited — the fact that the appellant has a young child is common ground and was referred to in the sentencing notes,12 as was the fact that he was employed by the time of the sentencing hearing.13 Accordingly, my analysis of the issues on appeal is based primarily on the material before the sentencing Judge.

[18]   However, I consider it appropriate to admit the mother’s and partner’s affidavits to the extent they provide further information about the steps taken by    Mr Pasifatama to find and attend suitable rehabilitation programmes, and to abstain from alcohol since he was charged. The sentencing Judge was particularly critical of these aspects, and I consider there is a risk of a miscarriage of justice if those facts are not available to me on appeal.

Analysis

Dependent children

[19]   I start with the appeal point that the sentencing Judge made an error in not allowing any discount for the impact of the appellant’s imprisonment on his newborn daughter.

12     R v Pasifatama, above n 1, at [31].

13 At [31].

[20]   In Philip v R, the Supreme Court recognised the effect of sentencing on the appellant’s young child as a separate mitigating factor reflecting subss 8(h)–(i) of the Sentencing Act.14 The Court also cited the United Nations Convention on the Rights of the Child:15

[52]  … A sentencing approach which recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention). The Children’s Convention emphasises the importance for children of growing up in a family environment and imposes an obligation on courts to treat the best interests of the child as a “primary consideration”.

…

[56] …What is required is a consideration of all of the relevant circumstances which must include the child’s interests. Those interests include, as our reference to the Children’s Convention indicates, the importance for children of growing up in a familial environment.

[21]   In that case, a 10 per cent discount was considered appropriate for the impact the sentence of imprisonment would have on the appellant’s young child.16

[22]   In C (CA 153/2023) v New Zealand Police, the Court of Appeal stated that “[a]ttention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”.17

[23]   In Whaanga v R, the Court of Appeal accepted that allowance should have been made to reflect the fact that incarceration of Mr Whaanga (who had become the primary caregiver to allow his partner to study) had a significant impact on his four children.18 The sentence of 26 months was quashed and substituted with a sentence of 22 months (the appellant was then considered an appropriate candidate for home detention).

14     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52].

15     Footnotes omitted.

16     At [15] and [48].

17     C (CA 153/2023) v New Zealand Police [2024] NZCA 136 at [60(b)].

18     Whaanga v R [2024] NZCA 29.

[24]   In Sweeney v R, the Court of Appeal considered a 10 per cent discount should have been applied for the interests of the appellant’s children, whose mother had passed.19 The Court summarised the basis for the discount:

[27]  The law as stated in Philip is that the court must take the welfare of   the children into account as part of the personal circumstances which are relevant to sentencing Mr Sweeney. That is required by s 8(h) and (i) of the Sentencing Act and is consistent with the United Nations Convention on the Rights of the Child. It is only one of a number of relevant factors. But, like Mr Philip, Mr Sweeney is clearly an important presence in his young children’s lives …

[25]In Nguyen v R, Johnstone J upheld a discount of three months (approximately

5.5 per cent) to take into account the impacts of the sentence on the defendant’s newborn child.20 The Judge summarised the relevant law:

[42] … In Philip v R, the Court confirmed that the impact of imprisonment on the offender’s children is a relevant factor, reflecting s 8(h) and (i) of the Sentencing Act, and the courts’ obligation under the United Nations Convention on the Rights of the Child to treat the best interests of the child as a primary consideration …

[26]   In Clover v R, Becroft J reduced a sentence for violent offending by three months (from five years and three months’ imprisonment to five years’ imprisonment). That allowance was given for the impact of the prison sentence on Mr Clover’s five-year-old daughter. The Judge stressed “the focus here is on the child”.21

[27]   Despite these authorities, the respondent submits that it would have been inappropriate for the Judge to allow any discount for the impact of the appellant’s imprisonment on his daughter in this case, for the following reasons:

(a)A child under one year old is unlikely to be aware of the imprisonment of a father, let alone distressed by it.

(b)The appellant’s daughter remains in the care of her mother who is a competent and devoted caregiver and who also has the support of the appellant’s wider whānau.

19     Sweeney v R [2023] NZCA 417.

20     Nguyen v R [2024] NZHC 2974.

21     Clover v R [2024] NZHC 919 at [69].

(c)To the extent additional support is needed to be put in place to address childcare needs, the appellant has had ample time to arrange this.

(d)The offending was a serious case of sexual violence against a family friend and the appellant has not expressed genuine remorse or taken actual rehabilitative steps.

[28]   I do not accept that the above factors preclude a discount for the impact of imprisonment on a dependent child. I consider the sentencing Judge was in error in not expressly addressing this factor referred to at sentencing. In the absence of any reasoned analysis, I consider that issue afresh:

(a)Approaching matters from the interests of the child, I consider it obvious that the appellant’s imprisonment would have a significant adverse impact on the developing bond between the infant and her father, even though her cognitive development is at an early stage. The lack of support caused by the father’s absence also directly impacts on the relationship between the mother and the daughter in terms of the financial pressures and parenting responsibilities that she must now bear as the sole primary caregiver, albeit with the support of the appellant’s wider whānau. As held in Sweeney v R, expert evidence is not required to establish obvious determinantal effects on a child.22

(b)The fact that the daughter remains in the care of her mother is relevant to the size of the appropriate discount but does not preclude a discount being given. In Philip, the fact that a primary caregiver (Ms Hayman) remained in the home with the child was acknowledged, but a discount of approximately 10 per cent given by the High Court was nevertheless considered appropriate, to recognise  the  effect  of  sentencing  on  Mr Philip’s young child.23

22 Sweeney v R, above n 19, at [27].

23 Philip v R, above n 14, at [48] and [58]. In Solicitor-General v Rawat [2021] NZHC 2129 at [53], the Court on appeal did not ultimately quibble with a six per cent discount in similar circumstances, although regarding it as marginal.

(c)The connection of remorse and rehabilitative steps to the discount for a dependent child arises when the two are linked. In other words, the question is whether there is a close relationship between the offender’s rehabilitation and his or her relationship with the child such as to warrant a discount.24 In this case, even in the material before the sentencing Judge, it was clear that Mr Pasifatama had turned his life around post-charge by obtaining work, being a responsible breadwinner for his new family, and becoming a caring father. There is nothing to indicate that these factors are not closely and genuinely connected.

(d)I do not consider it relevant to say that there has been time to arrange alternative childcare for the daughter. The point is that imprisonment has a relatively harsh impact on a dependent child, including an increased burden on a mother who no longer has the support of her partner’s income or shared caregiving contributions.

[29]   The cases where a discount has been applied indicate that higher discounts may be available when the dependent child is not left  with  any  primary  caregiver.  Even where a primary caregiver remains, I consider that a discount of five per cent is well-justified in the present circumstances, and it was an error not to provide an adjustment for this factor.

Remorse and rehabilitation

[30]   The appellant submits that the District Court erred in failing to recognise    Mr Pasifatama’s genuine remorse. On a standalone basis, the appellant submitted that a discount of up to 10 per cent was appropriate in the circumstances.

[31]   The adverse view taken by the Judge on the issue of remorse was based on the CPMIP report dated 5 July 2024, recording the appellant’s comments in that interview denying or minimising his offending:

24 At [54].

(a)“I’m not sure I can’t remember what happened, the next thing I remember she was sitting in a chair looking at me the next day.”

(b)“I would have remembered that, I didn’t do it.”

(c)“I plead guilty I guess I must have done it.”

(d)“She might have ‘set me up that night’.”

[32]   Notwithstanding those comments, counsel for Mr Pasifatama submits that his other conduct demonstrates genuine remorse:

(a)By the time of the interview with the writer of the Provision of Advice to Courts (PAC) report dated 12 August 2024, Mr Pasifatama accepted responsibility for his offending, stating: “I wish it didn’t happen”, “Hard thing to go through”, “I wish I was sober” and “I am sorry”.

(b)Mr Pasifatama pleaded guilty on the first day of the scheduled trial.

(c)He made concerted efforts to find and attend a suitable rehabilitation programme. He was initially accepted into the SAFE programme to address concerns of harmful sexual behaviour. However, that programme only catered  to offending against children and minors.  Mr Pasifatama was exited after the first session as the programme was not suitable. It appears that there was no suitable programme for adult offenders in Mr Pasifatama’s position.

(d)Mr Pasifatama’s mother’s affidavit explains the efforts they made to engage in drug and alcohol counselling. They contacted Friendship House and Te Whānau Rangimarie to enquire whether programmes were available  at their  agency.  At the time, there was no vacancy.  Mr Pasifatama also made other online enquiries in Auckland. As confirmed in the PAC report, he remains interested and motivated to engage in counselling.

(e)In any event, from the time he was charged Mr Pasifatama abstained from alcohol.

(f)After being charged, Mr Pasifatama completely changed his life around. He significantly matured, became a prosocial member of society in full time employment, and started focusing on taking care of his partner and newborn child.

[33]   With the benefit of the information in the two further affidavits that I have admitted into evidence for this appeal, I accept that the sentencing Judge was not fully informed about the efforts Mr Pasifatama had taken to abstain from alcohol and find and attend suitable drug and alcohol counselling. Taking those additional matters into account, I consider that some recognition (such as a five per cent discount) could reasonably have been given for Mr Pasifatama having genuine remorse for his actions. Arguably, his inconsistent statements in the earlier psychology interview recorded in the CPMIP report should be understood in the context of his impaired memory from alcohol at the time of the offending, and immature comments because of his shame for conduct that was out of character.

[34]   However, I accept that the sentencing Judge was entitled to take the view she did that Mr Pasifatama had not demonstrated sufficient remorse to justify a separate discount, beyond the credit she gave for rehabilitative efforts. The focus of remorse is on acknowledging the wrong done and harm to the victim, and clear insight into that was lacking.

Addiction

[35]   Counsel for the appellant argues that there was  clearly  a  nexus  between  Mr Pasifatama’s addiction to alcohol and his offending. The Court of Appeal in Zhang v R confirmed that mitigating considerations arise in relation to addiction: prosocial tendencies may be overwhelmed by dependence and addiction, and it may call into question the effectiveness of deterrence.25

25     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [145]–[146].

[36]   I do not accept there was any error in deciding not to provide a discount in respect of alcohol issues. I agree with the Crown’s submissions that:

(a)There was no reliable evidence of any addiction that could be considered causative of the offending behaviour.

(b)Section 9(3) of the Sentencing Act provides that the court must not take into account, by way of mitigation, the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).

(c)It would set a dangerous precedent to treat the principles in Zhang about methamphetamine addiction as equally applicable to alcohol use of the type described in these facts.

[37]   Otherwise, Mr Pasifatama’s mother’s affidavit describes a prosocial upbringing with no structural deprivation issues.

Overall assessment

[38]   The Crown submits that, even if a further discount could arguably have been given for the impact of sentencing on Mr Pasifatama’s child, stepping back and assessing the overall sentence does not indicate any adjustment is required because other aspects of the sentencing decision were generous. In particular, the starting point could have been higher, the 15 per cent discount for entering a plea on the morning of trial was generous, as was the credit given for rehabilitation and for time spent on restrictive bail (when the curfew restrictions were only 7 pm to 7 am). The Crown says it follows that the end sentence was not manifestly excessive.

[39]   A further five per cent discount for the effect on a dependent child would increase the overall discounts from 65 per cent to 70 per cent, resulting in an end sentence of 23 months (rounding down). A cumulative discount at that level is high, but does legitimately occur in appropriate circumstances, particularly for youth

offending because of the policy issues then engaged.26 This is a point noted by the Court of Appeal in Pouwhare v R:27

… the fact [that] an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious.

[40]   Standing back and assessing  the end  sentence  as  a whole,  I consider that 23 months is appropriate in the circumstances. The gravity of the offending is accounted for by the starting point, but the reasons for the various discounts are soundly based. I do not consider that the other discounts are unduly generous and, as discussed above, in my view a small discount for remorse could reasonably have been given.

[41]   I am conscious that the role of this Court is not to engage in tinkering. However, tinkering tends to be defined by reference to the proportionate reduction — here approximately 15 per cent — rather than period involved.28 Importantly, correction of the five per cent error for the effect on a dependent child is material in this case, for the benefit of Mr Pasifatama and his family. For that reason, I consider it important to correct the error, as a matter of fairness.

Custodial sentence or home detention

[42]   If the sentence qualifies as one of short-term imprisonment, the appellant submits it is appropriate to commute the sentence to home detention as the least restrictive sentence to meet the purposes of deterrence, accountability, and denunciation. The PAC report recommended a sentence of imprisonment given the seriousness of the offending and the impact on the victim, but home detention with electronic monitoring was considered as another possible sentencing option. The proposed home detention address is with his mother, grandparents and other family members.

26 See R v M [2014] NZHC 1848 at [29] and [38], referencing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [78]. For example, in Solicitor-General v Rawat, above n 23, an overall discount of 76 per cent was applied.

27     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96], cited with approval in Churchward v R, above n 26, at [84].

28 Deslaurier v Police [2022] NZHC 1078 at [21]. See also Mathew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SAB5.02].

[43]   The Crown says that even if the end sentence were a short term of imprisonment, the statutory presumption of imprisonment should still apply without any exception made.

[44]   Pursuant to s 128B(2) of the Crimes Act 1961, there is a statutory presumption of imprisonment for a person convicted of sexual violation. An exception can only be made if the court thinks that the person should not be sentenced to imprisonment, taking into account the particular circumstances of the person convicted, and the particular circumstances of the offence.29 The presumption is consistent with the view that almost every offence of rape involves serious violence:30

We agree with the sentencing Judge that almost every offence of rape is an offence involving the use of serious violence again another. Even if the degree of force is not great, the violation of the victim’s body can only be described, in any ordinary case, as in itself serious violence. In this case the offender took at least a major part as the party in acts of violation. That alone would be enough to call normally for a prison sentence.

[45]   The presumption applies to all forms of sexual violation, leaving scope for exceptions that differentiate between cases according to their degree of seriousness.31 Even when there are substantial mitigating factors, some term of imprisonment will normally be required.32

[46]   Of the cases in which home detention has been imposed for serious sexual offending by a young person who has good prospects of rehabilitation and who is committed to turning their life around,33 only three involved a charge of rape:

29     Crimes Act 1961, s 128B(2) and (3).

30     Mathew Downs (ed) Adams on Criminal Law — Offences and Defences (online ed, Thomson Reuters) at [CA128B.02], referencing the quote from R v Stoddart [1986] 1 NZLR 264 (CA) at

267. Recently quoted with approval in Perrin v R [2023] NZCA 94 at [7].

31     Adams on Criminal Law — Offences and Defences, above n 30, at [CA128B.02].

32     At [CA128B.02], referencing R v Accused (CA265/88) [1989] 1 NZLR 643; R v Edwards (1994) 12 CRNZ 302 (CA); and R v W (CA271/96) (1996) 14 CRNZ 132 (CA).

33 Solicitor-General v Rawat, above n 23, at [59], citing at n 42 and [56]: R v Millar [2019] NZDC 2005 (starting point of three years); R v Symons HC Wellington CRI-2007-091-424, 11 April 2008 (starting point for 1989 offending of up to 2.5 years); R v SMR HC Auckland CRI-2007-4-21910, 9 October 2008 (starting point of three years); and Asiata v R [2020] NZCA 53 (four years’ imprisonment given his mental impairment and consequent lesser culpability). See also Police v Thomas-Pilling [2016] NZDC 12057 (starting point of  4.5  years);  R v Halvorsen  CA273/03, 19 September 2003 (acquitted of rape, two years of imprisonment reduced to 12 months on appeal, with leave to apply for home detention); and Cavaney v R [2022] NZHC 1807 (starting point of three years).

(a)Solicitor-General v Rawat involved more serious offending than the present case (three premeditated instances of rape by an 18-year-old offender of an 11-year-old victim, and other indecent assaults over a period of about one year). At sentencing, the offender was 31 years old. A starting point of nine years was considered appropriate, and discounts totalling 76 per cent were upheld on appeal. In that case, by the time of sentencing, 12 years had passed since the offending. On appeal, the sentence of home detention was considered on the “cusp of being inadequate” and arrived at “by the narrowest of margins”.34

(b)In Asiata v R,35 the Court of Appeal accepted that home detention was appropriate for the rape of a 15-year-old girl. This was exceptional due to the offender’s mental impairment (he had the mental age of a 12-year-old), meaning he could not remember the offending and was particularly vulnerable in prison.

(c)In Police v Thomas-Pilling,36 the rape only lasted seconds (the defendant quickly realised it was a bad thing to have done, removed his penis and left the room). The defendant had low cognition (82 on the IQ scale) and had been physically abused by one parent. A starting point of four and a half years was adopted, and discounts for a guilty plea (25 per cent) and personal factors (35 per cent) were applied. The defendant’s vulnerability in a prison environment was highlighted as a significant reason for the end sentence of two years intensive supervision and 200 hours community work.

[47]   More broadly, there is no presumption that a short term of imprisonment will be commuted to home detention. An analysis of the circumstances of the particular case is required. In Fairbrother v R, the Court of Appeal stated:37

34     Solicitor-General v Rawat, above n 23, at [63].

35     Asiata v R, above n 33.

36     Police v Thomas-Pilling, above n 33.

37     Fairbrother v R [2013] NZCA 340 at [30].

… the judge must make a considered and principled choice between the two forms of sentence [a short sentence of imprisonment and home detention], recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[48]   Taking into account the statutory presumption in s 128B(2) of the Crimes Act, the purposes of sentencing in s 7, the principles of sentencing in s 8, the personal circumstances of  the  appellant,  and  the  particular  circumstances  of  the  offence, I consider that a sentence of imprisonment remains the least restrictive sentence appropriate in the circumstances, primarily to meet the purposes of deterrence, accountability, and denunciation:

(a)I acknowledge that the sentencing Judge found that the offending fell near the bottom end of band 1, and there was no planning or premeditation involved. There was also no significant age disparity or particular victim vulnerability. The offending occurred on one occasion, when Mr Pasifatama was 19 years old. He has no previous criminal history.

(b)Since the offending, Mr Pasifatama seems to have turned his life around, including abstaining from alcohol and becoming a responsible partner and father. He shows promising rehabilitative prospects. These factors favour home detention compared with imprisonment. This would also have important benefits for his child.

(c)However, as referred to in the quote at [44] above, serious violence is an appropriate description of this offending, involving a violation of the victim’s body in two separate phases, despite being emphatically told “no” and “stop” throughout, while the victim was crying and trying to push him off.

(d)In my view, a sentence of home detention would not sufficiently meet the seriousness of the conduct in this case. It is much more serious than the other cases referred to at [46] above, with the sole exception of Rawat, which I distinguish as one where an arguably inadequate

penalty was imposed because of the lengthy time that had already passed since the offending. The two other rape cases in which a sentence of home detention was imposed were truly exceptional, reflecting offender impairments that do not apply here.

(e)General deterrence is one of the primary purposes of sentencing pursuant to s 7(1)(f) of the Sentencing Act, and I take the view that the marginal difference is important in this case, in the community’s interests, to give effect to the presumption in s 128B(2) and to denounce violent sexual offending of this type.

(f)A short-term period of imprisonment does not preclude Mr Pasifatama continuing rehabilitation and reintegrating successfully upon his release, and the impact of imprisonment on his child is already accounted for in the five per cent discount referred to above.

[49]   For the above reasons, I am not prepared to commute the sentence to home detention.

Result

[50]The application to adduce fresh evidence on appeal is granted.

[51]   The appeal is allowed. The sentence of two years and three months’ imprisonment imposed in the District Court is quashed and a sentence of 23 months’ imprisonment is substituted.

O’Gorman J