R v Meno
[2022] NZHC 1062
•16 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000092
[2022] NZHC 1062
BETWEEN THE QUEEN
Appellant
AND
AL MENO
Respondent
Hearing: 9 May 2022 Appearances:
F Faull for Appellant
M Hamlin and O Skelton for Respondent
Judgment:
16 May 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 16 May 2022 at 12.00 midday
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Kayes Fletcher Walker, Manukau M J Hamlin, Auckland
R v MENO [2022] NZHC 1062 [16 May 2022]
Introduction
[1] The respondent, Al Meno, pleaded guilty to two charges of assault with intent to injure,1 three charges of male assaults female,2 two charges of intimidation3 and a single charge of breach of a protection order.4 He was sentenced in the Manukau District Court on 9 February 2022 by Judge P Recordon to eight months’ home detention.5
[2] The Crown appeals the sentence. It says that the Judge erred in principle and that the resulting sentence was manifestly inadequate. In particular, it says that four errors were made by the Judge. It says that he:
(a)failed to impose an uplift for Mr Meno’s relevant previous convictions;
(b)allowed excessive discounts for Mr Meno’s personal mitigating factors;
(c)allowed a discount from the notional end sentence of imprisonment for time that Mr Meno had spent in custody on remand as well as time Mr Meno had spent on electronically monitored (EM) bail; and
(d)erred in exercising his discretion to commute the sentence to one of home detention.
[3]Mr Meno opposes the appeal.
Factual background
[4] The victim of the offending was Mr Meno’s ex-partner. She and Mr Meno met and entered into a relationship in or about August 2019. The offending commenced shortly thereafter and continued through until December 2020.
1 Crimes Act 1961, s 193. Maximum penalty 3 years’ imprisonment.
2 Crimes Act 1961, s 194(b). Maximum penalty 2 years’ imprisonment.
3 Summary Offences Act 1981, s 21(1)(a) and (3). Maximum penalty 3 months’ imprisonment or
$2,000 fine.
4 Family Violence Act 2018, s 112(1)(a) and (3). Maximum penalty 3 years’ imprisonment.
5 R v Meno [2022] NZDC 2137.
Charge 1 – intimidation
[5] Soon after their relationship began, Mr Meno persuaded the victim to cease using contraception. She soon became pregnant. While Mr Meno was initially supportive of the pregnancy, his attitude soon changed. In September/October 2019, when Mr Meno and the victim were in Mr Meno’s car, Mr Meno threatened the victim and told her that she should get an abortion. He said that he would take the baby away from her and that he had the money and resources to do so. When the victim refused, Mr Meno threatened to prevent her from having the baby and stated that he could hit her hard enough in the stomach to make her miscarry. The victim asked Mr Meno to drop her home, crying out of fear as he did so. As a result of Mr Meno’s threats, the victim feared for her safety and that of her unborn child. The next morning she arranged an abortion and this proceeded some three weeks later.
Charge 2 – male assaults female (a representative charge)
[6] On 22 June 2020, Mr Meno and the victim became embroiled in an argument. She packed her belongings and tried to leave, telling Mr Meno that she did not want to be in a relationship with him anymore. He became aggressive. He hit her across the head with his wallet. Each time she tried to leave, he pulled her back and pushed her onto a bed. At one point he held her up against a wall. When she again attempted to leave, he placed himself between her and the door, grabbed her right arm and bit it, causing the victim’s arm to feel “tingly” and numb and resulting in a large bruise with visible bite marks.
Charge 3 – assault with intent to injure (a representative charge)
[7] On 24 July 2020, Mr Meno and the victim got into another argument. He was on bail at the time for the offending the subject of charge 2 and he was subject to various conditions including that he not associate with the victim or offer violence to her. Mr Meno was nevertheless with the victim. She attempted to gather her belongings and leave. Mr Meno stood in front of the door to block her from doing so. He grabbed her arms and pulled her away from the door. She continued trying to leave; he repeatedly pulled her back from the door and forced her onto a bed. At one point, he held her up against the door. The victim said that Mr Meno used force that
hurt her on a “10 out of 10” scale and that he gripped her roughly and painfully. Because she was unable to leave, she sat down at a table to have a cigarette. He walked up to her and attempted to hit her in the face. She raised her arm to block his blow and suffered a bruise as a consequence. As a result of this offending, she suffered multiple bruising to both of her arms.
Charge 4 – male assaults female
[8] By November 2020 Mr Meno and the victim had separated. She was trying to move on from the relationship but he continued to contact her. On 1 November 2020 (while he was still on bail for the offending the subject of charge 2) Mr Meno waited outside the victim’s parents’ house. She was being dropped home by a friend. She saw Mr Meno and asked her friend to continue driving. She waited some two hours before returning home. Soon after she got home, Mr Meno drove past the house and saw that she was there. He called her and angrily demanded that she come outside. She agreed to meet him at his house so as not to disturb her parents. When she arrived at Mr Meno’s house, he screamed at her and repeatedly called her a “slut” and a “whore”. While she was standing by the front door, he charged at her. She picked up a bowl of coins from a bench and threw them at him. She attempted to escape through another door. He grabbed her by her arm and pushed her to the ground. He then dragged her along the floor into a bedroom. He kicked her while she was on the ground. As a result, she suffered deep bruising to her right arm. She eventually managed to escape from the house but only after Mr Meno had threatened her, saying that he would send somebody to “fuck her up” or rape her at her work. As a result, the victim did not return to her work out of fear for her safety.
Charge 5 – assault with intent to injure
[9] By December 2020, Mr Meno and the victim had reconciled. On the morning of 4 December 2020 (whilst Mr Meno was still on bail for the charge 2 offending) the victim confronted him about calls on his phone from another woman. Mr Meno began screaming at the victim. He grabbed her by her neck and pushed her up against a wall with one hand, lifting her off the ground and squeezing her throat. She struggled to get free. He then threatened to murder her and verbally abused her. She was eventually able to escape.
Charge 6 – intimidation
[10] Between 10 April and 3 May 2021 (whilst still on bail for the charge 2 offending) Mr Meno repeatedly contacted the victim by sending texts to her and by calling her.
[11] On 3 May 2021, at about 8 pm, Mr Meno pulled up behind the victim as they were both driving. He began following her closely, honking his horn. He repeatedly called her on her cellphone. When she answered, he told her to pull over saying that if she did not do so, he would crash into her. She turned into a road with four lanes on each side. He pulled up in the lane beside her and then swerved into her lane. She in turn swerved into the left-hand lane to avoid a collision, forcing the cars in that lane to stop. Mr Meno continued to follow her and swerved into an inside lane on two further occasions. He only stopped following her when it became clear to him that she had called the police.
Charge 7 – breach of protection order
[12] On 28 May 2021, a temporary protection order was issued in the Manukau Family Court in favour of the victim. A copy of that order was served on Mr Meno on 23 July 2021.
[13] On the evening of 13 August 2021 (whilst Mr Meno was on EM bail in relation to the offending the subject of charges 2 to 6) the victim arrived at Mr Meno’s bail address to discuss their relationship. Sometime thereafter, she told Mr Meno that she wanted to leave and go home. He declared his love for her and begged her not to leave. She had a panic attack but was able to leave some hours later. Mr Meno then began contacting her via text message, Instagram and Facebook Messenger. She responded telling Mr Meno to stop messaging her. However, he continued to do so, sending over 400 unanswered messages to the victim via various messaging platforms. When she attempted to block his messages, he created new accounts in attempts to continue contacting her.
Charge 8 – male assaults female
[14] On 5 October 2021 (while on EM bail in relation to the offending the subject of charges 2 to 7) Mr Meno messaged the victim and convinced her to come to his bail address. She arrived at the property to discuss their relationship. During the course of the evening he told her that a friend of his was going to come over to meet her. She told him that she was not comfortable meeting his friend and that she wanted to leave. He became upset and they began to argue. He became increasingly angry; he grabbed her by the upper body and head butted her in the face with his forehead, causing her lower lip to swell and bruise. She attempted to call for an Uber so that she could leave. However, he snatched the phone out of her hand and placed it out of her reach. He then said that he was going to commit suicide and begged her not to leave. As a result, she had another panic attack. Later that night, Mr Meno accessed the victim’s mobile phone and deleted her messages. He returned the phone to her early the next morning. She immediately contacted a friend who came to pick her up.
Procedural history
[15] Mr Meno was initially arrested in relation to the offending the subject of charge 2 and he made a first appearance in the District Court on 29 June 2020. He was remanded on bail with, inter alia, conditions that he not associate with the victim or threaten or use violence against her. A stand-by trial was allocated but in the event it was adjourned on the Crown’s application, after the Crown received further information from the victim disclosing the offending that subsequently became the subject of charges 1, 3, 4 and 5.
[16] On 5 May 2021, Mr Meno was arrested for breaching the non-association condition and for the offending that became the subject of charge 6. He was remanded in custody.
[17] On 15 July 2021, Mr Meno was granted EM bail to a residential facility in Massey. On 17 August 2021, he was again arrested for breaching the non-association condition and for the offending that became the subject of charge 7. He was however readmitted to bail with a warning, notwithstanding opposition from the Crown.
[18] On 4 October 2021, Mr Meno’s bail address was varied to a residential address in Royal Oak. On 13 October 2021, he was arrested for breaching the conditions attaching to the grant of EM bail and for the offending that became the subject of charge 8. He was remanded in custody.
[19] On 29 November 2021, he pleaded guilty to the charges set out above and the Crown withdrew a number of other charges. Mr Meno remained in custody pending sentence on 9 February 2021.
District Court decision
[20]Judge Recordon had the following before him:
(a)the written and oral submissions from the Crown and for Mr Meno;
(b)a letter from the victim;
(c)a pre-sentence report dated 3 February 2022;
(d)a cultural report dated 21 January 2022;
(e)certificates evidencing rehabilitative steps taken by Mr Meno pending sentence;
(f)a restorative justice “no conference” memorandum; and
(g)a letter from Mr Meno expressing remorse.
[21] The Judge adopted a global starting point of four years’ imprisonment, made up of two years for the lead offending – assault with intent to injure – and an uplift of two years for the remaining offending. He then allowed Mr Meno a 20 per cent discount for his guilty pleas and a further 20 per cent discount for remorse, rehabilitative efforts and the matters set out in the cultural report. The Judge then gave a further unspecified discount from the nominal end sentence of imprisonment for the time Mr Meno had spent both in custody on remand and on EM bail. The Judge then
went on to consider whether to commute the resulting sentence to one of home detention. He noted that Mr Meno had heard the victim read her letter. He expressed the view that Mr Meno had reflected on matters and that he wanted to continue making positive changes. He concluded:
[8] It is a starting point of prison. It certainly is. Had you not been in custody, we would have no choice but that there was a prison sentence, but I think we can deal with the matter by way of home detention …
The Judge imposed an end sentence of eight months’ home detention, with 12 months’ post-detention conditions.
The appeal
[22] The appeal is brought by the Crown with the consent of the Solicitor-General pursuant to s 246 of the Criminal Procedure Act 2011.
[23] It is well established that, on an appeal by the Solicitor-General, the appellate Court should not alter the sentence imposed unless it is either manifestly inadequate or wrong in principle.6 Even if the appellate Court determines that the sentence is manifestly inadequate or wrong in principle, the sentence should only be increased to the level which accords with the lower range of appropriate sentences.7 The appellate Court should be reluctant to interfere with the sentence if to do so would cause injustice to the offender.8
Fresh evidence
[24] Before dealing with the substantive appeal, I deal with a further application made by the Crown. It seeks to adduce fresh evidence of alleged offending by Mr Meno whilst serving the sentence of home detention. It seeks to adduce a summary of facts relevant to this alleged offending. The summary of facts alleges that, on 16 February 2022, Mr Meno endeavoured to contact the victim by phone, making multiple unanswered video and telephone calls to her and sending multiple messages to her via text and using other social media platforms. Further, it alleges that, on
6 R v Muavae [2000] 3 NZLR 483 (CA) at [10], citing R v Pue [1974] 2 NZLR 392 (CA) at 392.
7 R v Muavae, above n 6, at [10], citing R v Simm CA148/81, 9 October 1981.
8 R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.
3 April 2022, Mr Meno made a number of unanswered calls to the victim. This alleged offending has resulted in a further charge of breaching the sentence of home detention.
[25]The Court can receive further evidence if the interests of justice so require.
The evidence must be credible and fresh.9
[26] Mr Faull, for the Crown, submitted that the proposed evidence is fresh, noting that it could not have been obtained prior to sentencing because the alleged offending had not then occurred. Mr Hamlin, for Mr Meno, submitted that the proposed evidence relates to events alleged to have occurred after the sentencing decision and that it is irrelevant to any consideration of the sentence imposed because it cannot support any error said to have been made by the sentencing Judge.
[27] In my view, it is not appropriate to allow the Crown to file the proposed further evidence. Mr Meno is now facing a further charge of breaching the sentence of home detention. This however is an allegation only. Mr Meno has not as yet entered a plea to the charge and he has not had the opportunity to respond to the allegations against him. He is of course innocent of the alleged offending unless and until he is proved guilty or enters a guilty plea. The further evidence proves nothing more than that Mr Meno faces an additional charge. It is irrelevant to the matters in issue on this appeal. Accordingly, I decline to allow the Crown to adduce the further evidence and I have not taken it into account in considering the appeal.
Substantive submissions
[28] Mr Faull submitted that the Judge erred by failing to impose an uplift for Mr Meno’s relevant previous convictions. He noted that Mr Meno has 10 previous convictions and submitted that a number were relevant to the sentencing exercise. It was argued that the relevant convictions should have resulted in a modest uplift.
[29] Mr Faull then turned to the discounts allowed by the Judge. He acknowledged that the Judge allowed a discount of 20 per cent for Mr Meno’s guilty pleas and he accepted that a discount at this level was available. He noted however that the Judge
9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ
71.
allowed Mr Meno a further combined discount of 20 per cent for his remorse, his rehabilitative efforts and for the matters contained in the cultural report. He submitted that this additional discount was excessive.
(a)He argued that whether or not there was genuine remorse requires a robust evaluation of all relevant circumstances and that the Judge failed to undertake this evaluation. He further submitted that even if there was tangible evidence of genuine remorse, a discount of around five to eight per cent would have been more appropriate.
(b)Regarding Mr Meno’s rehabilitative efforts, he accepted that they were made but argued that Mr Meno continued offending whilst completing his rehabilitation programmes.
(c)Regarding the cultural report, Mr Faull accepted that the report canvassed Mr Meno’s cultural background, his upbringing, his family connections and relationships, and his health and wellbeing. Mr Faull accepted that such matters must be taken into account by a Court in imposing a sentence, but argued that before a discount can be allowed for them, there must be a causal nexus sufficient to mitigate an offender’s culpability. It was argued that the cultural report did not establish a clear causal nexus, that the matters raised in the report did not mitigate Mr Meno’s culpability and that they did not warrant a discount.
(d)Next, Mr Faull argued that the Judge erred in applying a discount for time spent in custody on remand and that this was in breach of s 82 of the Sentencing Act 2002. He also argued that no discount was appropriate for the time spent by Mr Meno on EM bail, because Mr Meno offended against the victim whilst on EM bail.
[30] Finally, it was argued that the sentence should not have been commuted to one of home detention. First, it was submitted that, absent error, the appropriate sentence was not a short-term sentence of imprisonment and that, therefore, a sentence of home
detention was not available. Secondly, it was argued that a sentence of home detention was in any event manifestly inadequate to reflect the seriousness of Mr Meno’s offending. It was submitted that a sentence of imprisonment was the least restrictive outcome appropriate in the circumstances.
[31] In response, and dealing with the appeal points in the same order, Mr Hamlin submitted that Mr Meno’s prior offending was relatively historic and that it was dealt with at the time by way of community-based sentences. He argued that it had no bearing on Mr Meno’s culpability in relation to his more recent offending.
[32] In relation to the discounts, Mr Hamlin submitted that the discounts allowed by the Judge for Mr Meno’s personal mitigating factors were not excessive.
(a)He submitted that there was clear demonstration of genuine remorse by Mr Meno and that the extent to which a discount should be given for remorse is a matter for the discretion of the sentencing Judge.
(b)In relation to the discount for rehabilitation, he argued that the Judge appropriately exercised his discretion in allowing a deduction for Mr Meno’s rehabilitative efforts as part of the global discount for his personal mitigating factors. It was submitted that the discount was appropriate, notwithstanding that there was further offending by Mr Meno.
(c)In relation to the cultural report, he argued that the report identified a number of factors which were relevant to Mr Meno’s offending, in particular, that Mr Meno suffers from significant trauma and unresolved issues stemming from his childhood and from feelings of neglect and abandonment. Again, it was argued that the Judge appropriately exercised his discretion in allowing Mr Meno a discount for the matters raised in the report.
[33] It was noted that Mr Meno spent 209 days in custody prior to sentencing. It was conceded that a discount for time spent in custody was not available, given s 82
of the Sentencing Act. It was however noted that Mr Meno also spent 71 days on EM bail and that whilst he breached his bail, he made genuine efforts at addressing his offending by engaging in rehabilitation. It was argued that a discount for the time spent on EM bail was appropriate.
[34] In regard to the Judge’s decision to commute the sentence to one of home detention, Mr Hamlin acknowledged that, if the same starting points were to be adopted but a discount for time spent in custody was not allowed, a sentence of home detention would likely not have been available as there would no longer have been a short-term sentence of imprisonment. Nevertheless, it was argued that, in sentencing Mr Meno, the Judge clearly intended to impose a rehabilitative sentence. Mr Hamlin submitted that Mr Meno is willing to engage in further treatment and counselling and that a sentence short of imprisonment, with a focus on rehabilitation, was and remains the appropriate response to address Mr Meno’s offending. It was argued that a lower starting point was available to the Judge and that, if such a starting point had been adopted, a sentence of home detention would have been available and that it could reasonably be imposed. It was submitted that the sentence imposed by the Judge was not manifestly inadequate.
Analysis
[35] The Crown acknowledges that the starting point adopted by the Judge – a starting point of two years’ imprisonment for the lead offending uplifted by two years for the remaining offending – was within the available range, given the totality of the offending. It did however submit that the starting point was at the lower end of the available range and that, with the discounts allowed by the Judge, the end sentence imposed was, as a result, manifestly inadequate.
The uplift
[36] The Crown challenged the fact the Judge did not apply an uplift for Mr Meno’s previous convictions. I was told by counsel that an uplift was sought by the Crown at sentencing and that counsel for Mr Meno conceded that such an uplift was appropriate.
[37] At the time of sentencing, Mr Meno was 43 years old. He had a modest criminal history commencing in 1998, but much of it was irrelevant for sentencing purposes because it dealt with unrelated offending. He did however have some convictions for assault and contravention of protection orders in the family violence context. There was one conviction in 2002, another in 2009 and three in 2010. With the exception of the 2002 conviction, which was dealt with by way of a fine and a reparation order, the convictions were dealt with by way of community work orders and supervision. I was told from the bar that this offending involved a different victim.
[38] Uplifts for previous convictions should not be routinely applied but they can be relevant to sentencing in a variety of ways. They can be an indicator of character and culpability. They can create the need for a greater deterrent response and they can serve as an indicator of the likelihood of reoffending.
[39] Previous convictions are an aggravating factor the Court must take into account on sentencing.10 Whether an uplift will be appropriate depends on the number, seriousness, date, relevance and nature of the earlier convictions, and the convictions for which the offender is being sentenced. Where an uplift is called for, there is no fixed quantum for the uplift and, on an appeal of this kind, the required assessment should take place within the context of the enquiry as to whether the end sentence was manifestly inadequate.11
[40] Mr Faull acknowledged that Mr Meno’s list of criminal convictions is not particularly lengthy and that his family violence convictions are relatively historic. Nevertheless, he argued that the offending in respect of which Mr Meno was being sentenced evidenced an escalating pattern of conduct and that Mr Meno has not been deterred by the previous community-based sentences which had been imposed on him for like conduct. He argued that Mr Meno’s history created an increased need for deterrence and that an uplift of between two and three months would have been appropriate.
10 Sentencing Act 2002, s 9(1)(j).
11 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf, Thomson Reuters) at [SA9.15(2)]; and see Crutchley v R [2015] NZCA 473 at [22]; and Ripia v R [2011] NZCA 101 at [10].
[41]The Judge did not say why he did not impose an uplift.
[42] In my view, an uplift was required. Mr Meno’s prior convictions for similar offending, whilst not particularly recent, are an indicator of his character and culpability. They are relevant to his claims of remorse and rehabilitation. They suggest that there was a need for a deterrent response from the Court and they are an indicator of the risk Mr Meno poses of further offending. I agree with the Crown that an uplift would have been appropriate in Mr Meno’s case.
The discounts
[43]I now turn to the discounts.
[44] The Judge allowed a discount of 20 per cent for Mr Meno’s guilty pleas. The Crown did not take issue with this discount and it was clearly appropriate. While Mr Meno pleaded guilty at a relatively late stage (after a stand-by trial on some of the original charges had been adjourned), he pleaded guilty to a substantially revised Crown charge notice and after instructing new counsel.
[45] The Judge also allowed a further combined discount of 20 per cent for Mr Meno’s remorse, rehabilitative efforts and the matters contained in the cultural report prepared pursuant to s 27 of the Sentencing Act. The Judge did not apportion the combined 20 per cent discount between these various matters. I deal with each in turn.
(a)Remorse
[46] Mr Meno expressed remorse to the author of the pre-sentence report for his actions and in a letter which was addressed to the Judge. He took full responsibility for his offending. While he did not seek to justify his actions, he did go on to say as follows:
… but all I can say is that there was no hitting or punching her badly, but it’s no different really because I still affected her emotionally and physically to a degree …
He also said:
Where I’m from, men and women have specific roles and duties and she [the victim] is a Kiwi and has different cultural beliefs, so it affected our relationship, and I had to realise that what is acceptable in my culture and country is not acceptable here in New Zealand …
[47] Mr Meno was also willing to engage in restorative justice, but in the event that did not proceed.
[48] Section 9(2)(f) of the Sentencing Act requires a sentencing Court to take into account as a mitigating factor any remorse evidenced by an offender. It is a personal mitigating factor that can justify a separate discount, over and above the discount allowed for any guilty pleas.
[49] However, sentencing Judges are not required to take unsubstantiated claims of remorse at face value. In Hessell v R, the Supreme Court noted as follows:12
… the 2002 Act … treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea. … Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
(citations omitted)
Remorse is a question of fact and judgment and an offender being sentenced bears the onus of showing that any remorse expressed is genuine in order to qualify for a discount.13 The Court of Appeal has noted that little weight can be placed on even genuine expressions of remorse where there is recidivist offending.14
[50] In the present case, the Crown submitted that a robust and proper evaluation of Mr Meno’s circumstances made any substantial discount for remorse inappropriate, and that no such evaluation was undertaken by the Judge.
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
14 R v Ngamo [2009] NZCA 512 at [9].
[51] I agree with the Crown submissions. Mr Meno’s expressions of remorse were intermingled with comments which sought to minimise the seriousness of his offending – for example, stating to the report writer that there was “no hitting or punching [of the victim] badly”, and acknowledging that he had affected the victim emotionally and physically “to a degree”. Mr Meno also sought to attribute his offending to cultural differences (he is from Iraq). Although he did go on to say that he had to realise that what was acceptable in his culture and country was not acceptable in New Zealand, he can have been under no illusions about this, having committed five previous family violence offences in New Zealand, and having been in this country for some 25 years.
[52] Further, Mr Meno’s expressions of remorse have to be assessed against the background of his sustained offending involving eight separate incidences of violence (some representative) or harassment over a period of some two years. Mr Meno continued to offend against the victim notwithstanding that he was subject to bail conditions requiring that he not associate with the victim or offer violence to her. On two occasions, he flouted a protection order in favour of the victim. These were aggravating factors the Court was required to take into account.15 I agree with the Crown that Mr Meno’s offending was recidivist offending which significantly reduced the weight that could be placed on his expressions of remorse.
[53] While I accept that the Judge had a discretion, there is nothing in his sentencing notes to record that he undertook any robust evaluation of the circumstances of Mr Meno’s offending. When those circumstances are considered, in my view, there should have been no, or at best only a small, discount for remorse.
(b)Rehabilitative efforts
[54]Much the same applies to Mr Meno’s rehabilitative efforts.
[55] Mr Meno attended various courses offered by the NZ BASS programme between August 2021 and October 2021. He completed a Kairology Manhood
15 Sentencing Act, s 9(1)(ca).
Programme and a “Money Mates” Programme. He worked in the Mt Eden Corrections Facility kitchen and he was considered to have an excellent work ethic and attitude.
[56] Nevertheless, Mr Meno continued to offend against the victim whilst completing his rehabilitative programmes. The offences the subject of charge 8 occurred just two days after he last attended his rehabilitative course. Self-evidently, his rehabilitative efforts did not sufficiently address the underlying causes of his offending. The need for deterrence was not reduced.
[57] Where an offender has reoffended after the completion of a rehabilitative programme, the Court can decline to allow any discount for such efforts.16 In my view, the ongoing offending precludes any, or any significant, discount for Mr Meno’s rehabilitative efforts.
(c)The cultural report
[58] I now turn to the cultural report. It was prepared by David Lui, a cultural assessor and report writer for Focus on Pacific Ltd. He noted that Mr Meno reported that he was born in the United Kingdom whilst his parents were studying at Oxford University. He spent the first two years of his life in that country before moving back to Iraq in 1980. His family were wealthy and they lived in central Baghdad. Both his parents were professionals and highly qualified. His parents’ relationship was however strained and they did not spend a lot of time with their children. His father was at times physically abusive towards his mother and his parents ultimately divorced when he was 12 years old. His father paid for him to leave Iraq and come to New Zealand on his own at the age of 18. When he arrived in this country, he could not speak English. He initially attended university but dropped out after some three months because he could not cope. His father then stopped supporting him. After a period in low paid employment, he started his own business and he has gone on and become successful.
[59] The report canvassed Mr Meno’s cultural background and relevant values and beliefs in Iraq. It commented on Mr Meno’s relationship with his parents and his
16 See Wilson v R [2015] NZCA 235 at [8].
upbringing. It also canvassed Mr Meno’s family connections, his relationships with other partners and his physical health and wellbeing. The report recorded Mr Lui’s view that Mr Meno experienced significant trauma in Iraq, particularly over a period of some two years when he served in the Iraqi military. It was suggested that these traumatic experiences have had a negative impact on Mr Meno. Mr Lui expressed the opinion that Mr Meno was not in a strong mental state to cope with army life, and that sending him to New Zealand on his own with little knowledge of English and this country, and with no support, was also traumatic for him. He considered that Mr Meno exhibits symptoms of rejection and abandonment and that he suffers from various unresolved issues stemming from his childhood.
[60] The Crown submitted that the cultural report did not establish a clear causal nexus between Mr Meno’s background and the sustained course of family violence offending which he inflicted on the victim. It was argued that, in the absence of any clear causal nexus, the matters discussed in the report cannot be said to mitigate Mr Meno’s culpability and that they did not warrant any discount.
[61] The Court of Appeal in Zhang v R considered the role of s 27 cultural reports in sentencing, observing that sentencing must achieve justice in individual cases and that this requires flexibility and discretion.17 It adopted the reasoning of Williams J in R v Rakuraku18 and Whata J in Solicitor-General v Heta.19 In Heta, Whata J noted that where there is evidence identifying systemic deprivation in an offender’s background and a linkage to the offending in respect of which the offender is being sentenced, a discount can be appropriate.
[62] The Court of Appeal revisited the role of s 27 cultural reports in Carr v R.20 It there confirmed that, where a cultural report contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse, unemployment, educational underachievement and violence as features of an offender’s upbringing, such matters ought to be taken into account in sentencing.21
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(a)].
18 R v Rakuraku [2014] NZHC 3270.
19 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
20 Carr v R [2020] NZCA 357.
21 At [60].
[63] The s 27 cultural report in respect of Mr Meno does not contain reference to many of the issues noted in Carr but it does paint a picture of a man suffering from unresolved childhood issues – in particular, estrangement from his parents – and traumatic stress whilst in the Iraqi army and on coming to New Zealand.
[64] The Court of Appeal has held that there does not need to be extensive evidence of a nexus between the offending in respect of which the offender is being sentenced and any socio-economic and cultural disadvantage before a discount can be allowed.22 Rather, the Court should assess the available evidence holistically, considering the offending and the particular circumstances of the offender. Determining whether there is a nexus between an offender’s background and the offending is not a mechanical exercise with a high threshold of proof; rather an overall assessment is called for, assisted by evidence available in any s 27 cultural report and generally, of how personal circumstances may have contributed to culpability and the offending.23
[65] The Crown is correct that there is little in the s 27 cultural report directly addressing any nexus between Mr Meno’s background and his offending. Nevertheless, viewed holistically, there was, in my view, a causal connection. The s 27 cultural report details Mr Meno’s sense of alienation from his parents, his father’s abuse of his mother, their subsequent divorce and Mr Meno’s traumatic experiences whilst serving in the Iraqi army. It also canvasses his dislocation when he first came to New Zealand. These factors can be said to have contributed to Mr Meno’s offending. I am not however persuaded that these factors should have resulted in a discount of 20 per cent from the sentence which should otherwise have been imposed. The linkage is slight and it is blurred by the passage of time. Mr Meno was 43 years old at the time of the offending and he came to New Zealand when he was 18. In my view, the discount given by the Judge was excessive.
(d)Time in custody/EM bail
[66] I now come to the discount allowed by the Judge for the time spent in custody on remand and on EM bail. The discount given was not specified but it must have
22 See Arona v R [2018] NZCA 427 at [59]; and Waikato-Tuhega v R [2021] NZCA 503 at [51].
23 Waikato-Tuhega v R, above n 22, at [51].
been a combined discount of at least six months for both factors, otherwise the Judge would not have been able to consider a sentence of home detention.
[67] It is clear that no discount was available for the time that Mr Meno spent in custody on remand. Section 82 of the Sentencing Act provides as follows:
82Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
[68] The section precludes a Court from taking into account time spent in custody on remand when determining the length of a sentence of imprisonment. Rather, time spent on remand is calculated in aggregate and deducted administratively from an end sentence of imprisonment as time served, pursuant to s 90 of the Parole Act 2002.24 Giving an offender credit for time spent in custodial remand is an error.25 The Judge erred in so doing.
[69] The Judge also allowed Mr Meno a discount for the time that he spent on EM bail.
[70] Mr Meno spent a total of just under three months on EM bail, from 15 July 2021 to 13 October 2021. For the first two months, he was bailed to a supported residential facility operated by NZ BASS. As already noted, on 4 October 2021, the bail address was varied to a residential address in Royal Oak.
[71] A sentencing Court must take into account time spent on EM bail in sentencing an offender.26 In taking this factor into account, the Court must consider:27
(a)the period of time the offender spent on EM bail;
24 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
25 Police v Wilson [2017] NZHC 2388 at [17].
26 Sentencing Act, s 9(2)(h); and Paora v R [2021] NZCA 559 at [44].
27 Section 9(3A).
(b)the relative restrictiveness of the EM bail conditions;
(c)the offender’s compliance with the bail conditions during the period he was subject to the same; and
(d)any other relevant matter.
[72] The Courts have not infrequently declined to grant discounts to offenders who have spent time on EM bail where the offenders have breached the bail bond and further offended whilst on EM bail.28
[73] Mr Meno’s compliance with the bail conditions was poor. Whilst he was on bail, he offended against the victim on two separate occasions, giving rise to charges 7 and 8. The Crown submitted that in the circumstances, the discount given for the time spent on EM bail was inappropriate. I agree.
Home detention
[74] Finally, the Crown submitted that the Judge erred when he exercised his discretion to commute Mr Meno’s sentence to one of home detention.
[75] Section 15A(1)(b) of the Sentencing Act provides that the Court can only impose a sentence of home detention if the Court would otherwise have sentenced the offender to a short-term sentence of imprisonment. A short-term sentence of imprisonment, in the case of a determinate sentence of imprisonment, is one of 24 months or less.29
[76] A two-stage approach is required before the Court can impose a sentence of home detention. A sentencing Judge must first decide whether the sentence which is otherwise appropriate is a short-term sentence of imprisonment and then whether to commute that sentence to home detention.30 The Court of Appeal has observed that “faithful adherence to such processes” requires the Judge at stage one to operate on
28 Paora v R, above n 26, at [60]; Gage v R [2014] NZCA 140 at [26]; Murray-MacGregor v R [2011] NZCA 66; R v Bidois [2009] NZCA 426 at [15]; and R v Bishop [2009] NZCA 265 at [13].
29 Sentencing Act, s 4(1); and Parole Act 2002, s 4(1).
30 R v Vhavha [2009] NZCA 588 at [31].
the assumption that there is no stage two; the underlying legislative purpose is to avoid net-widening and, more particularly, to ensure that the more lenient sentences which can be imposed at stage two are reserved for those who would truly otherwise have been imprisoned.31
[77] Here, the Crown submitted that a sentence of home detention was not available and that in any event, such a sentence was manifestly inadequate to reflect the seriousness of Mr Meno’s offending.
[78] I agree that a sentence of home detention was not available to the Judge. The discounts allowed by him were excessive and/or not available. There was no short-term sentence of imprisonment.
[79] Further, I agree with the Crown that a sentence of home detention was inadequate to reflect the seriousness of Mr Meno’s offending. Whether or not to commute a sentence to one of home detention calls for an evaluative exercise, taking into account all the relevant purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act and the circumstances of the particular case.32 In Mr Meno’s case, the following factors were relevant:
(a)the seriousness and sustained nature of the offending, all directed at the same victim. It had a significant impact on her;
(b)the offending bore all the hallmarks of coercion and control. Such offending requires denunciation and deterrence;
(c)the offending involved a number of aggravating features, for example, attacks to the head, attempted strangulation, repeated breaches of bail conditions and a breach of a protection order. These matters emphasise the need for deterrence;
31 R v Vhavha, above n 30, at [31].
32 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].
(d)family violence is endemic in this country and it calls for denunciation and deterrence;
(e)the offending the subject of charge 6 put members of the public at risk. This calls for denunciation and deterrence;
(f)charges 7 and 8 arose while Mr Meno was on EM bail;
(g)some of the offending occurred after Mr Meno had completed rehabilitative courses;
(h)Mr Meno has committed similar offending in the past, for which he has received community-based sentences. These sentences have not deterred him from offending afresh.
[80]The Judge did not expressly take any of these various matters into account.
[81] In my judgment, the lowest appropriate end sentence (with rounding) was a sentence of 33 months’ imprisonment reached as follows:
(a)a starting point sentence of four years’ imprisonment (the same starting point as was adopted by the Judge);
(b)an uplift of two months (four per cent) for Mr Meno’s previous relevant convictions;33
(c)a discount of 10 per cent to recognise the factors raised in the s 27 cultural report;
(d)a discount of five per cent to recognise the belated remorse expressed by Mr Meno, his rehabilitative efforts to date (albeit that they have been unsuccessful so far), his willingness to engage in restorative justice and
33 Taking this into account as part of step 2 in the sentencing exercise – see Moses v R [2020] NZCA 296, [2020] NZLR 583, as explained in Stuart v R [2021] NZCA 536.
his expressed intention to undertake further rehabilitation and to turn his life around;
(e)a discount (20 per cent) for Mr Meno’s guilty pleas.
[82] An end sentence at this level is not a short-term sentence of imprisonment and a non-custodial end sentence was not an available sentencing option.
[83] For the reasons I have set out, I am satisfied that the sentence imposed by the Judge was wrong in principle and that it was manifestly inadequate to reflect Mr Meno’s culpability and the seriousness of his offending.
[84]Accordingly, the appeal is allowed.
Credit for time served on home detention
[85] The Crown properly acknowledges that Mr Meno is entitled to credit for time spent on home detention pending the hearing of this appeal.
[86] Mr Meno has spent some three months on home detention. Because an offender is released after serving half of a short-term sentence, but serves the full term of a sentence of home detention, 24 months’ imprisonment is generally considered to be equivalent to 12 months’ home detention, at least in terms of time served.34 This however is not an automatic result, and a longer term of home detention can on occasion be warranted.35
[87] This guideline does not however necessarily work in reverse and the credit that falls to be given for time spent on home detention will not necessarily equate to imprisonment for twice that amount of time. There are several decisions of the Court of Appeal where the discount applied was only modestly greater than the time spent
34 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
35 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [59]; Metua v R [2018] NZHC 246;
Box v Police [2018] NZHC 286 at [41]; and Simpson v R [2019] NZHC 3139 at [53].
on home detention.36 In two recent decisions of this Court, an eight month discount was applied to reflect three months spent on home detention, to recognise “the stress on a defendant who, months after sentencing, must now go to prison”.37
[88] In the circumstances of this case, I consider that Mr Meno is entitled to a credit of six months for the time he has spent on home detention. I accept that Mr Meno will no doubt be stressed by the imposition of a custodial sentence but I doubt that he can ever have realistically expected anything else. A six month discount results in an end sentence of 27 months’ imprisonment.
[89] The sentence of home detention imposed by the Judge is set aside and a sentence of 27 months’ imprisonment is substituted in its place. This substituted sentence of 27 months’ imprisonment is imposed in respect of each of the two charges of assault with intent to injure. Sentences of 18 months’ imprisonment are substituted for each of the three charges of male assaults female and the charge of breaching the protection order. A sentence of three months’ imprisonment is imposed for each of the two charges of intimidation. All sentences are to be served concurrently.
Wylie J
36 R v Pene [2010] NZCA 387 – offender served almost four months of a sentence of home detention and completed 51 hours community work. He was allowed a credit of five months, which was deducted from an end sentence of imprisonment; R v Tamatea [2012] NZCA 443 – offender served three months of a sentence of home detention and was given a credit for four months from an end term of imprisonment; R v Fidow [2013] NZCA 209 – offender served one month of his sentence of home detention and was given a credit for one and a half months from an end sentence of imprisonment.
37 R v LB [2020] NZHC 94 at [57]; and Solicitor-General v Wiwarena [2021] NZHC 844 at [52].
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