R v Tai

[2021] NZHC 2769

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-035-1103

[2021] NZHC 2769

THE QUEEN

v

SHANE TAI

Hearing:	15 October 2021
Appearances:	S A H Bishop for the Crown I R Hard for the Defendant
Judgment:	15 October 2021

SENTENCING OF COOKE J

[1]    Shane Tai you are here today to be sentenced on two charges of attempted grievous bodily harm with intent to cause that harm,1 two charges of wilful damage,2 one charge of dangerous driving,3 and one charge of driving with excess breath alcohol4 following your entry guilty pleas to those charges. I formally enter convictions on the wilful damage, dangerous driving, and excess breath alcohol charges.

[2]    In explaining the sentence that I intend to impose I will begin by outlining the facts of your offending. I will then assess the period of imprisonment that would be

1      Crimes Act 1961, ss 72 and 188(1) – maximum seven years’ imprisonment.

2      Summary Offences Act 1981, s 11(1)(a) – maximum three months’ imprisonment or $2,000 fine.

3      Land Transport Act 1988, s 35(1)(a) – maximum three months’ imprisonment, $4,500 fine, six months’ disqualification.

4      Section 56(1) – maximum three months’ imprisonment, $4,500 fine.

R v TAI [2021] NZHC 2769 [15 October 2021]

the starting point for offending of that kind. I will then consider whether there are factors personal to you that would result in an uplift from that starting point, and whether there are factors personal to you that should lead to a discount, including the discount for your guilty pleas. I will then address whether you should be sentenced to home or community detention if the period of imprisonment I reach is two years or less.

The facts

[3]    I begin by outlining the facts of your offending which come from the summary of facts to which your guilty pleas relate.

[4]    On Saturday 10 October 2020 you were at an address in Masterton attending a birthday party for Mr Alan Gannaway. You were a friend of the family. Due to the level of your intoxication you were asked to leave the party, however. You and your partner then moved outside the address and had an argument. On hearing the argument Mr Gannaway’s adult children, Harley-Rae and Justine Gannaway came out to speak to you. A fight broke out between you but they were able to overpower you and you then left.

[5]    You then returned a short time later holding a fence paling which you had ripped from a nearby fence. You then used the fence paling to smash the windscreens of two vehicles belonging to Mr Gannaway and Harley-Rae. These actions give rise to the two wilful damage charges.

[6]    Police were then called. You had run off to your mother’s address down the road and got into your Nissan Pulsar motor vehicle. You then returned to the address in your vehicle. By that time police had arrived and two officers were standing on the footpath speaking to Mr Gannaway, Harley-Rae and Justine. You then rounded the corner and accelerated sharply in excess of 70 kilometres an hour in a 50 kilometre an hour zone. When you saw Harley-Rae and Justine on the footpath you turned sharply in their direction with the intention of causing them grievous bodily harm with the car. Mr Gannaway and the two police officers were also standing on the footpath nearby. Because of your intoxication and the speed at which you were driving you misjudged your trajectory and crashed your vehicle into the side of the police vehicle. The impact

pushed the vehicle sideways onto the footpath where the victims were standing. It acted as a protection for them. Your car bounced off the police vehicle and travelled approximately 10 metres further down the road. The three members of the Gannaway family were forced to take evasive action and ran down the driveway out of your path. These actions give rise to the two charges of attempted grievous bodily harm and dangerous driving.

[7]    You immediately got out of the vehicle and again began to physically fight with Harley-Rae and Justine. You were arrested by the police.

[8]    Because you showed signs of recent alcohol intake testing procedures were carried out and a subsequent analysis of the breath sample gave a result of 679 micrograms of alcohol per litre of breath giving rise to the charge of driving with excess breath alcohol.

[9]    When you were spoken to on your arrest you said you were upset by the way that Harley-Rae and Justine had treated you and you wanted to drive your vehicle through their house and take someone out. You apologised to police saying that you didn’t want to get them, but were trying to get Harley-Rae and Justine.

Starting point

[10]   As I explained the first step that is required in deciding what your sentence will be is to determine the starting point for a period of imprisonment. That is done by considering what the Courts have said about offending of this kind generally. It does not involve any assessment of any factors personal to you, but rather the nature of the offending itself.

[11]   There is no dispute that the most serious offences that you committed are the two charges of attempted grievous bodily harm with intent to cause that harm. They are taken as the lead offences for assessing the starting point with the other offending then factored in by making adjustments to that starting point where that is appropriate.

[12]   There are two steps involved in assessing your attempted grievous bodily harm offending. The first is to work out what the period of imprisonment would be had you

been successful with your grievous bodily harm offending directed against Harley- Rae and Justine. The second is to address the discount from that starting point because you were not successful, and are only guilty of an attempted offence.

[13]   There is a guideline judgment for grievous bodily harm offending with intent to cause that harm in the decision of the Court of Appeal in R v Taueki.5 That case sets out three relevant bands for this offending: the first involving a starting point of three to six years involving violence at the lower end of the spectrum and not involving extreme violence or violence that is life threatening; the second is band two from five to ten years with offending having two or three aggravating features; and the last nine to fourteen years for serious offending with three or more identified aggravating features. The Court set out a list of potential aggravating factors to form part of the assessment.

[14]   In considering those bands I accept the Crown’s submission that your offending can be treated at the top of band one, and the bottom of band two. Band one is not usually appropriate for violence that is life threatening and your actions in driving a vehicle at people on the footpath intending to cause grievous bodily harm to them could well have been life threatening. I also accept the Crown’s submissions that in terms of aggravating features it can be said that there were two present. The first is that there was an element of premeditation in what you did. It was short lived, and the consequence of an impulsively planned action fuelled by anger and intoxication. But after you had fought with Harley-Rae and Justine and smashed the windscreens you still went to your mother’s house to get your car with the intention of returning and running them down. So it was planned to some extent. The second, and more significant factor is that you were using your vehicle as a weapon as you intended to drive it into your victims. Used in that way a vehicle can be an object which causes significant harm, which is the reason why this attempted grievous bodily harm offence could have been life threatening. Your actions also caused significant risk to other people, and not just the two people you intended to cause harm to — namely the two police officers and Mr Gannaway.

5      R v Taueki [2005] 3 NZLR 372.

[15]   But I nevertheless accept that it is only at the bottom of band two as there is only one dominating aggravating circumstance — your use of your vehicle as a weapon — with your premeditation being a more secondary feature of the offending.

[16]   In those circumstances I accept that a starting point would be five years’ imprisonment.

[17]   The next step is to take into account that this was only an attempted offence of grievous bodily harm with intent to cause that harm. Given that it was only an attempt the maximum penalty is only half that it would have been had you been successful — that is seven years rather than 14 years.

[18]   The Crown submits, and I accept, that assessing your attempt involves an overall evaluation, including considering the extent to which you had succeeded in committing the offence. They have the decision of the Court of Appeal in Carpenter v R in support of that submission.6

[19]   Here I accept that you had made a serious attempt at this offence. You only failed because you crashed into the police vehicle at the last moment, your judgment being impaired by your intoxication. You were accordingly close at being successful. It would not be appropriate to apply an approach that halved the starting point in those circumstances. Applying an overall evaluation I discount the starting point by approximately one-third leading to a starting point of three years four months’ imprisonment.

[20]   That starting point needs to be uplifted for your other offending. The two charges of wilful damage arise from your earlier conduct of obtaining a fence paling to smash the windscreen of two vehicles. Each offence involves a maximum penalty of three months’ imprisonment. They justify an uplift of a further one month imprisonment for both offences.

[21]   The dangerous driving and excess breath alcohol charges each also involve a maximum of three months’ imprisonment or a fine as well as disqualification. I add a

6      Carpenter v R [2010] NZCA 560.

further one month for both offences recognising that I have taken into account your driving and your collision with the police vehicle as part of the attempted grievous bodily harm offending, but also recognising it was still offending that caused significant damage.

[22]   This gives rise to a total starting point of three years and six months’ imprisonment.

Uplifts and discounts

[23]   The next step is to consider whether there should be uplifts or discounts from the starting point because of factors personal to you.

[24]   You are only 22 years of age but nevertheless have a significant criminal record, primarily in the Youth Court and primarily for property related offences and lower level assaults and breaches. The Crown rightly does not seek an uplift because of this prior offending, but I accept that there can be no discount for previous good character. There are also no other factors that would lead to an uplift from the starting point.

[25]   But there are factors personal to you that lead to a discount from the starting point. I have had a series of reports about you personally, each of which provides insight into you as a person, your struggles, and where the future might be more optimistic for you.

[26]   Even the nature of the offending itself demonstrates the internal conflicts that you have. Harley-Rae and Justine were your friends and you were attending a family barbeque for their father. Yet you got drunk, got angry, lost control and tried to do serious harm to your own friends. I do not think that you are an inherently bad person. I think that you are a person who has real struggles, and that is what the reports I have received explain.

[27]   The first thing is that you have admitted your offending, and are entitled to a discount for the guilty plea. I note that you effectively did so immediately after the offending when you apologised to police. The Crown accepts that a full 25 per cent

discount is appropriate. I note that you originally faced charges of attempted murder which is understandable given what you did and what you said you intended to do. The fact that the charges have been amended demonstrates that the Crown itself understands that you are a young person facing complicated struggles. So the charges have been amended and the Crown agrees to the 25 per cent discount which I agree is appropriate.

[28]   The pre-sentence report advises that you have said that all your problems come from alcohol use. A drug and alcohol report has been provided and it confirms that you suffer from a severe alcohol use disorder. But there is more to it than that. There is an underlying distress and anger arising from your background and it plainly came to the surface when you got drunk, argued with your friends and tried to seriously harm them. But people who get angry with their friends do not usually try and run them down with their car. Alcohol is a key part of your propensity to offend, but so is the underlying distress and anger.

[29]   The drug and alcohol report, the pre-sentence report and the s 27 report all describe a background of state care, emotional and other abuse and the loss of family and cultural connections. You were put into the care of Child, Youth and Family from the age of nine and then cycled in and out of foster care placements, youth justice facilities, your nan’s house as well as several months on the run. You were exposed to alcohol from an early age. The cultural report indicates that your iwi is Tainui but you were not more forthcoming about your background, and that you are not at a point where you wanted to pursue those connections further.

[30]   What is striking about all three reports is that there is a strong sense of optimism about you in all of them. All refer to the importance of the long-term relationship with your partner, and most particularly that you have recently made changes in your life. You have become a father, and this has been very important to you and you have made changes to your lifestyle over the past two years. You report that you have managed to find employment in the forestry sector. All report writers state that you were open and honest with them which seems to me to confirm that you are making a positive effort to turn your life around. I know that cannot have been

easy for you, and I want to commend you for what you have achieved. You now have a clear pathway forward with the love and support of your partner and your children.

[31]   I have little doubt that your background of deprivation and social and cultural dislocation, including the emotional instability and abuse that you received all contribute to the distress and anger that is within you. I am not convinced that cultural deprivation in the sense contemplated by the authorities such as Solicitor-General v Heta is causatively linked in the way described.7 But it is more complicated than that as cultural deprivation is inherently interlinked with other disadvantages that affect the degree of individual culpability. The effects of social dislocation, poverty, alcohol and drug abuse, unemployment, educational underachievement and violence all become interrelated. As the Court of Appeal recognised in Carr and Anderson v R these factors need to be taken into account in sentencing.8

[32]   There is another related concept that arises in the circumstances of your case. That is your rehabilitation potential. You have already taken the steps down that path, and I sense in you a real commitment to turn your life around. All the report writers have that sense of optimism, as do I.

[33]   These circumstances mean that I accept that there should be a generous discount to reflect all the factors I have just referred to — deprivation, including cultural deprivation, as well as remorse, relative youth and rehabilitation potential. They seem to me to warrant a further 20 per cent discount above the 25 per cent discount for your guilty plea.

[34]   That results in a total discount of 45 per cent which takes the sentence from three years six months’ imprisonment to one year 11 months’ imprisonment. Or put another way it reduces it to 23 months’ imprisonment.

Time spent on remand and EM bail

[35]   There is a further important step to address in your case. Because the term of imprisonment involved would be a short one, the prospect of home detention or

7      Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].

8      Carr and Anderson v R [2020] NZCA 357 at [57]–[63].

community detention arises. For the reasons that I have already addressed, and which I will explain further shortly, it is apparent that a sentence of home detention is the appropriate one for you as it will continue to assist your rehabilitation.

[36]   When setting the period of home detention the normal approach is to approximately halve the period of imprisonment. So the home detention period would be 11 and a half months. But in addressing such a sentence there is an issue that I need to consider arising from the fact that you spent five months in prison on remand, and some seven months on electronically monitored bail.

[37]   The authorities have taken different views on how the period of time spent in prison on remand should be treated for the purposes of adjusting the length of a home detention sentence. Normally the period served on remand is irrelevant in setting the sentence because that period is treated as time served when later administering the length of the sentence. But that is not so if the sentence is to be one of home detention or community detention. Here the Court must decide what impact the time on remand has on the sentence. Some decisions have taken the time spent on remand and deducted it from the proposed term of imprisonment prior to the term of imprisonment being converted to a sentence of home detention.9 Others have deducted the period only after converting the sentence to home detention.10

[38]   I prefer the latter approach which was adopted in the cases of Longman, Kirk, Slade, Stridom and Paul as they give more accurate credit for the period spent on remand. Your five months in prison on remand involves a period that you would have served on a 10 month sentence of imprisonment, which is in turn equivalent to serving five months’ home detention. So the starting point is that the period on remand should be deducted on a one month for one month basis when setting the home detention period. If you take it off the sentence of imprisonment before it is converted to home detention you effectively halve the credit, which does not seem appropriate. Applying what I believe to be the correct approach would reduce the period of home detention

9      Laloni v R [2015] NZCA 55 at [14]; Parkinson v Police [2019] NZHC 1710; Wharrie v R [2019] NZHC 633 at [30]–[33]; McMillan v Police [2019] NZHC 3323 at [43]; Closey v Police [2020] NZHC 990 at [35]; Gotty v R [2020] NZHC 2035 at [18].

10  Longman v Police [2017] NZHC 2928 at [14]; Kirk v R [2019] NZHC 3361 at [9]; Stridom v  Police [2019] NZHC 354 at [50]; Slade v Police [2020] NZHC 3396 at [26]–[33]; Paul v Police [2021] NZHC 1924 at [10]–[14].

to be imposed by five months. But as the Court of Appeal emphasised in Kidman v R it is only a starting point as the ultimate question remains the appropriate period of home detention to impose under s 80A(3) of the Sentencing Act in light of all relevant sentencing principles and the circumstances of the case, including the time spent on remand.11

[39]   I also need to address the fact that you have spent approximately seven months on electronically monitored bail. In Longman v Police Justice Simon France observed that the credit given for the period on EM bail was conceptually different from the credit given for time spent on remand.12 He explained that the period of EM bail was to be assessed in the overall sentencing exercise as required by s 9(2)(b) and (3A) of the Sentencing Act rather than being a credit given against the sentence imposed. I respectfully doubt there is such a clear conceptual distinction when the Court is imposing a home detention sentence, however. The Court of Appeal in Kidman treated both matters as part of the overall discretion. When the Court is imposing a home detention sentence the exercise contemplated by s 9(2)(b) and 9(3A) arises when the Court is considering the length of the period of home detention under s 80A(3) or the period of community detention under s 69B(2). This decision is ultimately evaluative rather than mathematical. Considering the credit for the period on remand is also assessed under these subsections. As the Court of Appeal said in Kidman in both situations the Court is required to address what credit should be given for the prior periods of restriction in the overall sentencing exercise.

[40]   But I agree that the period on EM bail may less frequently involve a credit on a month for month basis. For one thing the levels of restriction on EM bail vary. In addition the period of home detention introduces the rehabilitative and reintegrative elements of sentencing. So giving credit should not be a purely mathematical exercise, but one directed at the overall appropriateness of the period of home detention, particularly given its rehabilitative and reintegrative purposes, in light of periods already spent on EM bail and remand.

11     Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [15]–[16].

12     Longman v Police, above n 9, at [5]–[19].

[41]   You  have been on electronically monitored bail on restrictive terms since     5 March 2021, although the conditions have been varied from time to time. That is some seven months on reasonably restrictive bail with a curfew. But it would not be appropriate to give you a full month for month credit, as this might lead to a situation where the period of home detention was too small, or even non-existent. This is not consistent with the desirability of imposing a sentence that ensures the continuation of rehabilitation and reintegration.

[42]   The ultimate question is the appropriate length of time the home detention in the circumstances of your case taking into account the period already spent on EM bail and remand. In my view the period of home detention should be for a period of three months from now. This means that the credit I give you for your seven months on EM bail and five months on remand is around nine months.

Home detention or community detention?

[43]   The final step in the sentencing exercise which is to determine whether home detention or community detention is the appropriate sentence for this three month period. There is not a great deal of difference between the two, and they are similar to the EM bail that you are presently subject to. Although the pre-sentence report recommends community detention it seems to me that home detention is the more appropriate sentence. The period is short and is effectively a continuation of the EM bail conditions already set by the Court. So it seems to me that the conditions should be Court imposed for this further period, rather than involving decisions of the Probation Officer under the community detention sentence.

[44]   The home detention address will be your current EM bail address in Masterton and will involve a continuation of electronic monitoring. I also adopt the proposal that you can leave the address Monday to Friday between the hours of 4.30 am and 8 pm to attend work. The standard conditions will apply together with special conditions to attend an assessment for alcohol and drug programme as directed by a Probation Officer and attend and complete any counselling treatment or programme as recommended by the assessment as directed by, or to the satisfaction of a Probation Officer.

[45]   On the other charges, given I will be imposing a sentence of home detention on the basis I have just described you will be convicted and discharged, but there will be a mandatory disqualification for six months on the excess breath alcohol charge and dangerous driving charge.

Sentence

[46]   Mr Tai will you please stand. On the charges of attempted grievous bodily harm with intent to cause that harm, the appropriate sentence is 11 and a half months’ home detention, but given the five months that you have spent on remand and approximately seven months that you have spent on EM bail, I sentence you to three months’ home detention on the basis and conditions I have just described. On the other charges of wilful damage, dangerous driving and driving with excess breath alcohol you are convicted and discharged but subject to disqualification for six months.

Cooke J