Ratahi v Police

[2021] NZHC 3586

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2021-416-000011

[2021] NZHC 3586

BETWEEN

SHANNON RATAHI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 December 2021
Appearances:	N Wright for the Appellant C Walker for the Respondent
Judgment:	21 December 2021

JUDGMENT OF GRICE J

[1]                 Mr Shannon Ratahi was sentenced on 7 December 2021 at the Gisborne District Court, on two charges of breaching a family protection order, and one charge of kidnapping, to two years and two months' imprisonment.1

[2]He initially appealed this decision on four grounds:

(a)That the starting point adopted by the court was too high;

(b)That the Court miscalculated the guilty plea discount (now withdrawn)

(c)That the Court made an incorrect factual finding concerning the Crown's concession that home detention would be available; and

1      R v Ratahi [2021] NZDC 24219.

RATAHI v POLICE [2021] NZHC 3586 [21 December 2021]

(d)That the Court failed to take into account a number of relevant considerations

[3]                 Immediately preceding the hearing Ms Wright, for the appellant, added further grounds which she indicated would be the focus of the appeal:

(a)That insufficient weight was given to the contents of the Cultural Report; and

(b)Given the contents of the section 27 report, the case is an exception to the case law regime of setting a starting point first.

[4]                 The Crown did not oppose the amendment but opposed the substantive appeal, stating that there was no error in the sentencing process, and that the end sentence was not manifestly excessive.

[5]Leave to amend the grounds is given. I now deal with the appeal.

Background

Factual background

[6]                 Mr Ratahi and the victim have been in a relationship for 17 years and have four children. On 24 August 2005 a protection order was put in place against Mr Ratahi to protect the victim.

[7]                 On 28 April 2021, the victim went to pick up her daughter from an address in Gisborne. Although Mr Ratahi told her that he would not be at that address at the time, he was there when the victim arrived at the house. Their daughter did not want to leave and wanted the victim to stay, so she stayed overnight in her daughter's bed. This occurred after an incident on 27 April 2021, where Mr Ratahi had been driven home by the victim in an intoxicated state, and upon arriving at the address had become paranoid that the victim was setting him up and refused to leave the victim vehicle until he had seen her phone, ripping it out of her hand and exiting the vehicle.

[8]                 During the night of the 28 April, Mr Ratahi took possession of the victim’s car keys. The next morning at around 7.30 am, he asked to borrow the victim’s car. She refused. He then grabbed her and pulled her into the car, with their daughter in the back of the  car.    He then drove off.   The victim  was under the impression that    Mr Ratahi drove around Gisborne in a “maze-like manner”. During that time, the victim repeatedly asked to be let out of the car. At one point she opened her door and held it open with her foot while trying to get out. This caused Mr Ratahi to speed up and grab her leg.

[9]                 Mr Ratahi then took the victim down a long driveway at an address in Makaraka, outside of Gisborne. He parked the vehicle behind two water tanks and told the victim to hide in the bathroom at this property. She had never been to this property before, and thought she was going to die. He then grabbed the victim by the back of her head and pushed her down, so that she was hunched over, and walked her to a shed on the same property. He moved a stack of plastic chairs in the shed and told her to hide there. He then made several trips back and forth from the shed and the car, locking the door each time so she was unable to escape. When he left the shed the last time, he called her on her phone which he provided only when knowing she had no internet connection or credit. He then travelled to Wairoa with their daughter.

[10]            The victim managed to escape out of a side door and ran towards some trees in case Mr Ratahi returned. She called the police, who went to her location, and subsequently arrested Mr Ratahi. These incidents give rise to charges of contravening a protection order and kidnapping. At sentencing, the Judge determined that the period of detention was likely around, or less than, an hour.

[11]            Mr Ratahi was granted bail for this offending on the condition that he not contact the victim, and that he remain at an address in Napier with a curfew between 7 pm and 7 am. However, on 6 May 2021 he travelled to Gisborne and entered a property owned and occupied by the second victim, who was residing there with the first victim. The second victim confronted Mr Ratahi and asked why he was there, who replied that he had brought food for his children. He was told by the second victim he was not welcome and was asked to leave on several occasions. Mr Ratahi eventually ran down the road and out of sight. Mr Ratahi then allegedly sent 13 text

messages to the victim and also attempted 23 phone calls, which gave rise to another charge of contravening the protection order due to unauthorised contact.

District Court decision

[12]              After setting out the relevant factual background, the Judge turned to the starting point for the kidnapping, noting that one of the "common features" of kidnapping applied in this case - kidnapping of a former spouse or partner in defiance of a protection order where the offender detains that spouse (often battered and/or helpless) or female ex-partner for motives of power, revenge, jealousy or irrational anger - inferred from Mr Ratahi's concern about messages on the victim's phone. The Judge identified aggravating features of the kidnapping as including:

(a)Its duration and nature, being roughly within one hour, and that it would have been terrifying for the victim;

(b)That even if this was not a rural or isolated property, the victim was unfamiliar with it;

(c)That the violence was not at the highest level of seriousness, although it had an additional element - being designed to make the victim submit to her detention;

(d)Mr Ratahi taking steps to prevent the victim from having meaningful communication from her phone;

(e)The impact on the victim, including her distress and concern, which was likely palpable;

(f)The breach of trust by Mr Ratahi against the victim, who trusted that he would drive her to her workplace;

(g)The presence of their daughter during aspects of this incident, which the Judge described as a disturbing feature of the offending, given that she witnessed the kidnapping and terror of her mother; and

(h)That the kidnapping was in breach of the protection order.

[13]            The Judge referred to the observations of Downs J in Cassidy-Gugich v R, where he stated that in cases where defendants briefly detained a former partner (with associated violence or threats of violence) starting points from approximately two and a half years had been adopted.2

[14]            Noting the aggravating features of the offending, the Judge concluded that the appropriate starting point was three years and two months' imprisonment. He considered that an uplift was required, to reflect the additional breach of the protection order, and held that two months were appropriate, noting that the additional breach needed to be kept in perspective as the circumstances indicated that there was essentially a co-dependent relationship between Mr Ratahi and the victim.

[15]            The Judge also imposed a further two-month uplift for Mr Ratahi’s previous convictions, noting that he had five previous convictions for either assaulting the victim or breaching the protection order over her. The current offending suggested that Mr Ratahi was not deterred by previous sentences for violent offending against her, and that a pattern was beginning to emerge in his history of targeting the victim.

[16]            According to the Judge, Mr Ratahi’s breach of bail was also a serious element, given that he was under specific direction from the court not to contact the victim - a condition he clearly failed to do. This justified an additional uplift of two months, resulting in an adjusted starting point of 44 months' imprisonment.

[17]            Turning to mitigating factors, the Judge acknowledged that Mr Ratahi was entitled to a full discount for an early guilty plea. A further two-month discount was given for Mr Ratahi’s remorse, and his willingness to attend a restorative justice meeting.

[18]            In terms of the s 27 report provided by counsel for Mr Ratahi, the Judge noted that it described Mr Ratahi as having a dysfunctional upbringing, experiencing abuse from his father, and falling into methamphetamine use, with minimal education. A

2      Cassidy-Gugich v R [2016] NZHC 3027 at [16].

positive feature that came through however, was Mr Ratahi's membership of the Mormon Church, indicating his willingness to turn his life around, and suggesting positive prospects for his future. Those factors justified a discount of six months, which led to an end sentence of 26 months' imprisonment.

Submissions

Mr Ratahi

[19]            On the first ground (relating to the starting point), counsel for Mr Ratahi submitted that the sentencing judge placed too much emphasis on a number of the aggravating factors. The duration of the kidnapping, split between the car and the building, was likely less than an hour, and was not as remote as submitted by the Crown. Mr Ratahi's application of force (pulling the complainant out of the car) was on the minor end of the scale, and while the complainant was detained at a location unfamiliar to her, she had her cell phone with her at all times, and could have called 111 at any point. Furthermore, counsel submitted that the breach of trust and breach of a protection order should have been assessed as a single aggravating factor, rather than a separate discrete factor.

[20]            Counsel noted that the Crown had referred the Court to a number of authorities in support of the submission that the appropriate starting point was between three to three and a half years' imprisonment, including Moffatt v R, and R v Yates,3 but that the offending in these cases was more serious than in the current circumstances. By inference, a starting point of no more than two years and nine months' imprisonment was open to the Court. Counsel submitted that in these circumstances, the starting point of three years and two months' imprisonment was manifestly excessive in light of the authorities.

[21]The second ground of appeal has been withdrawn.

[22]            On the third ground (relating to incorrect findings), counsel noted that there was a dispute between Crown and defence in relation to whether or not the Crown had

3      See Moffatt v R [2015] NZHC 107; and R v Yates [2012] NZHC 3387.

conceded that home detention would be open to the Court to consider at sentencing. In the sentencing decision, the District Court Judge had concluded that the Crown did not concede home detention, and to suggest otherwise was an overstatement of the Crown's position and a misrepresentation of its stance.4 Counsel for Mr Ratahi produced an email of the exchange, and submitted that it was splitting hairs to find that there was not a concession by the Crown, particularly considering that Mr Ratahi had been in custody for approximately five months at the time of those negotiations (meaning it was well within range for counsel to argue that the appropriate and least restrictive outcome was home detention). I do not consider this ground takes the appeal further.

[23]            Counsel also submitted under this ground that in considering the impact of the offending on the victim, the District Court Judge appeared to adopt the Crown's oral submission that the offending was scary for the victim every minute of detention, which counsel submitted was contradicted by the Victim Impact Statement, and that the Judge failed to distinguish between the aggravating features of the offending, and the impact of the offending on the victim.

[24]            On the fourth ground, the Judge failed to take into account the following relevant considerations:

(a)The conduct of the victim: Counsel submitted that the Judge overlooked the complex, co-dependent nature of the victim's relationship with Mr Ratahi, including that the Victim had travelled to Mr Ratahi's address in Hawke’s Bay.

(b)Steps taken to shorten the proceedings: Mr Ratahi pleaded guilty and actively sought a resolution early on in the proceedings, with the sentencing date being extended due to delays in negotiations with the Crown, resulting Mr Ratahi being detained in prison for longer than was necessary.

4 At [64].

(c)The least restrictive outcome: Counsel submitted that this was not a key consideration of the sentencing Judge and should be assessed as a critical factor on appeal.

(d)Providing for the interests of the victim: In her Victim Impact Statement, the victim stated that she did not want Mr Ratahi to spend too much longer in prison for the sake of their children, which counsel suggested showed insight as to the need under a restorative approach for sentencing to consider the needs of the victim, community, and offender.

(e)Assisting Mr Ratahi in his rehabilitation and reintegration: According to counsel, the Court did not specifically acknowledge a key purpose of sentencing Mr Ratahi was to impose a sentence that fostered his rehabilitation and reintegration. Counsel noted that Mr Ratahi had changed his attitude, as evidenced by his abstinence from drugs and alcohol since his incarceration, his wish to remain sober and drug-free, and to study to become a hairdresser.

(f)Time spent in custody: Counsel referred to several authorities that supported the proposition that time spent in custody in sentencing is part of the overall sentencing exercise, and that this approach did not fly in the fact of s 82 of the Sentencing Act 2002. Mr Ratahi had spent 7 months in custody, which was not at all considered by the Judge.

[25]            On the added grounds, relating to failure to take the cultural report into account, Ms Wright went through various factors highlighted in the cultural report. In particular, she noted that the East Coast was an area that suffered particular deprivation culturally and East Coast Māori men continue to suffer from that legacy, a matter also referred to by the District Court Judge in his sentencing notes. Ms Wright suggested that insufficient weight had been placed on the report. The Judge approached the report in the orthodox manner, reaching the conclusion of 15 per cent discount was appropriate. Ms Wright said that it was not a matter to be approached in an arithmetical way, but it was more nuanced than that. She suggested a novel approach,

putting aside the methodologies suggested in Moses and Taueki, and looking at the whole matter holistically, starting with the cultural report in order to reach an appropriate sentence.

The Crown

[26]            In relation to the starting point for Mr Ratahi's kidnapping, counsel submitted that the Judge correctly identified the aggravating features of the offence, including the duration, violence, presence of the victim's daughter, breach of trust, the view of the victim, and the fact that it was a serious breach of the protection order.

[27]            Counsel referred to several of the cases considered by the Judge in setting the starting point for the kidnapping charge, including Moffatt v R, and R v Yates - which counsel submitted were factually similar to the current circumstances. While both of these had starting points of two years and nine months for the kidnapping, they were increased as a result of the element of violence within the offending. In this case, while the violence was arguably not as bad as Yates, the duration of the kidnapping was longer, and there was also the additional element of the breach of the protection order, which justified a starting point of three years and two months.

[28]            The Crown took no issue with the uplifts for previous convictions and offending while on bail or the discounts applied and submitted that the Judge made no error in calculating the guilty plea discount. This was because the guilty plea discount was based on the adjusted starting point of 40 months’ imprisonment, and 25 per cent of 40 months amount to 10 months, rather than 11 months.

[29]            The Crown did not accept that it had delayed the sentencing process at all, and submitted that the dispute in relation to the negotiations over home detention described by counsel for Mr Ratahi was neither accurate nor relevant.

[30]            Mr Walker indicated that in relation to the cultural report, the Judge had taken the orthodox approach that the discount was appropriate in the circumstances. In relation to Ms Wright’s invitation to take a novel approach and replace the established methodology with a holistic approach, Mr Walker submitted that the approach was up to the Court. However, such an approach was not supported.

[31]            Counsel for the appellant and respondent indicated the address identified in the District Court for home detention remained available. The address is a significant distance from the complainant in Gisborne. The victim, in a recent victim impact statement, has indicated she wanted to get away and stay away from the appellant, that the children are doing well and she hopes, for their sake, that the appellant does not stay in prison for too long because they want to be able to see him.

Approach to appeal

[32]            This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed. The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5

Relevant law and analysis

Starting point for kidnapping charge

[33]            The often-referred to starting point in kidnapping cases is R v Hall, citing R v Wharton, where the Court of Appeal stated that there can be an "infinite variety of circumstances which underlie the crime of kidnapping", and that there was therefore, no case setting out a clear tariff, or guideline in relation to the offence.6

[34]            However, the courts have been able to discern a number of relevant features in kidnapping cases which may influence consideration of the appropriate starting point. These were set out in R v Liev by Palmer J, who observed:7

I have reviewed all of the cases of kidnapping sentences referred to me by the Crown and defence counsel, as well as other cases which do not add much to them. I am conscious that there is no tariff case, or guideline case, and that the Court of Appeal has stated there can be "an infinite variety of circumstances which underlie the crime of kidnapping". Yet, it is possible to compare kidnappings in terms of the length of detention, the extent of pre-meditation, the number of offenders, gang involvement and the level of violence involved.

5      Ripia v R [2011] NZCA 101 at [15].

6      R v Hall CA296/05, 28 February 2006 at [26], citing R v Wharton CA374/02, 27 March 2003.

7      R v Liev [2017] NZHC 2253 at [25].

I consider the kidnapping here against other cases in general terms first and then examine the role of each of the offenders.

(Footnote omitted)

[35]            Downs J in Cassidy-Gugich v R referred to both Moffatt v R and R v Yates when observing that starting points from approximately two and a half years' imprisonment are adopted in relation to defendants who briefly detain a former partner where there is associated violence or threats of violence, or another aggravating feature or features.8

[36]            This approach has been affirmed in a number of cases following Cassidy-Gugich. For example, in R v Franklin, a case that arguably involved more serious incidents of kidnapping a domestic partner, Gordon J observed that Downs J was correct in stating that starting points of approximately two-and-a-half years' imprisonment are appropriate in relation to offenders who briefly detain a former partner, where there is associated violence or threats of violence. 9 In that case, Gordon J referred to R v Yates as supporting a starting point of two years and nine months.

[37]            The facts of Yates, Moffatt, and Joe v R are not dissimilar to the circumstances of the current case. In Yates, there were two kidnapping charges. First, the defendant assaulted the victim by hitting her around the head and upper body as well as punching and kicking her in her stomach and back and then locked her in a shipping container for several minutes. Secondly, the defendant dragged the victim back to the house when she tried to escape to a neighbour's house, and she was subjected to violence which included use of a weapon. A starting point of two years and nine months' imprisonment was considered appropriate, increased to three years and nine months' imprisonment to take into account the other charges of violence.

[38]            In Moffat, the defendant and his partner were driving home from a bar in Dunedin, when they became embroiled in a heated argument, causing the partner to ask to leave the vehicle. When she tried to call the police, he chased her and threw her back into the car. He took her phone and locked the doors of the car before driving

8      Cassidy-Gugich v R, above n 2 at [14]-[16].

9      R v Franklin [2018] NZHC 1868 at [41].

off. When she tried to press the horn, he grabbed her by the back of the head with such force that he ripped out her hair extensions. The victim then pretended to calm down and agree to go with Mr Moffatt to his home. When she reached his home address she made her escape and was able to call the police. On appeal, Dunningham J described the starting point of two years and nine-month as “entirely appropriate”. As Mr Walker pointed out, a further three-month uplift was applied for the totality of offending.

[39]            In Joe v R, the Court of Appeal upheld a starting point of three years' imprisonment for charges of kidnapping, male assaults female, and threatening to do grievous bodily harm, in relation to offending that was more serious than the current circumstances.10 In that case, the offender pulled his partner by the hair into his car, and drove to a cemetery. He threatened her with a wrench and kicked her in the head. The kidnapping lasted around an hour and three quarters.

[40]            In each of those cases, as in this case, there were elements of violence and attempts to control a domestic partner by holding them captive for a duration, although in both cases, the duration was shorter than Mr Ratahi's offending, but the violence involved was greater.

[41]            I also note that in other similar cases, similar starting points have been imposed, including cases which have involved a greater level of violence, or a longer duration of detention.

[42]            For example, in Heke v R11, the Court of Appeal upheld a starting point of two years and four months' imprisonment as "orthodox" for a kidnapping offence Mr Heke. (who had previously been in a domestic relationship with the victim) broke into the house that she was staying and entered the victim's bedroom, waking her. He was in an intoxicated, angry and abusive state, and demanded the victim leave the house with him. When she refused, he grabbed her by the hair and dragged her down a set of stairs towards the front door. He pushed and shoved her. She was screaming and crying. He

10     Joe v R [2019] NZCA 394.

11     Heke v R [2016] NZCA 38.

threatened to kill her. Mr Heke stopped only when the victim's grandfather called the police.

[43]            In Anguna v R,12 the offender drove his former partner to a relative's house, threatened her with a knife, spat on her, and forced her to undress. She was detained from approximately 8 pm until midday the following day, when she escaped. The Court of Appeal upheld a starting point of two years and nine months' imprisonment.

[44]            In Wilson v R,13 the victim attempted to leave the address, but was grabbed by the defendant, who took her forcibly back to the bedroom they shared. He placed her on the bed, pushed her down onto it, applied pressure on her neck with his hands, and spat onto her mouth and face. A starting point of two years and four months’ imprisonment was found to be justified.

[45]            I conclude that the Judge's decision to impose a starting point of three years and two months was in error. It was too high in comparison to the comparative cases involving similar circumstances. I consider that, given the analogy to a number of the cases above, a more appropriate starting point would be two years and nine months' imprisonment. Therefore, three years and two months' imprisonment was manifestly excessive as a starting point.

Other grounds of appeal

[46]            I do not consider that the other grounds of appeal have been made out here. The Judge appropriately assessed all of the considerations discussed in Mr Ratahi's fourth ground of appeal, and I do not consider that the Judge's finding as to the dispute in relation to home detention is relevant to whether he erred in determining the sentence to be imposed, given that home detention was not available under the final sentence anyway.

[47]            In relation to the added grounds, the discount of 15 per cent for cultural factors was appropriate. I can see no reason to depart from the orthodox sentencing methodology, as Ms Wright has suggested.

12     Anguna v R [2020] NZCA 127.

13     Wilson v R [2015] NZHC 2653.

The appropriate sentence

[48]            Applying a starting point of two years and nine months' imprisonment (or 33 months), with an additional two months for the second breach of protection order results in an adjusted starting point of 35 months. An additional four month uplift (for previous convictions and breach of bail) results in 39 months. A discount of eight months for the guilty plea, six months for the s 27 factors, and two months for remorse results in a sentence of 23 months (or one year and 11 months). This is not an exact science and the sentence is not the result of a strict arithmetical exercise. Standing back and looking at the matter in the round, a sentence of 23 months is appropriate in the circumstances.

Home detention

[49]            If an offender is convicted of an offence punishable by imprisonment, and the end sentence reached is a short-term sentence (meaning a sentence of imprisonment of up to 24 months), home detention becomes available as a sentencing option. However, whether or not it is appropriate to impose this sentence, in the circumstances of a particular case, is a matter for the discretion of the sentencing judge. There is no presumption in favour of home detention being imposed.

[50]            In Metua v R Hinton J (citing the Court of Appeal decision of Fairbrother v R), provided useful guidance on a court's assessment of when home detention is appropriate: 14

[12] Accordingly, as with any offence, where a proposed term of imprisonment is under two years the sentencing court is obliged to consider a term of home detention. Where appropriate, after considering the purposes of sentencing, home detention is to be imposed. The Court cannot impose a sentence of imprisonment unless satisfied that relevant sentencing purposes cannot be achieved by another sentence. The Court of Appeal in Fairbrother v R stressed that in choosing between the two options, "the choice must be intelligible", which requires that the "factors that really count must be identified and weighed". In that case…the Court provided useful guidance on when home detention should be substituted for imprisonment on appeal:

Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home

14     Metua v R [2018] NZHC 246 at [12].

detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence. That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, 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.

[51]            While denunciation and deterrence are significant factors in the sentencing process, section 7(1)(h) of the Sentencing Act dictates that one purpose of sentencing is also to assist in the offender's rehabilitation and reintegration, and that rehabilitation should be given adequate recognition in sentencing.15 The Courts have acknowledged that some recognition (often by way of a discount) should be given for genuine efforts by an offender to address the causes of his or her offending, particularly where this appears to have had some measure of success.

[52]            In R v Hill, rehabilitative considerations emphasised in determining whether to commute a sentence to home detention:16

Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society's perspective and from that of the offender.

[53]            Mr Ratahi’s enthusiasm to rehabilitate is a positive sign for a potential home detention sentence. However, that is tempered by the fact of his breaches of the protection order. Although finely balanced, I consider that the PAC Report ordered for Mr Ratahi’s original sentencing tips the balance in favour of home detention here.

[54]            This report, dated 2 December 2021, was provided to the Court. It recommended a community-based sentence. The report noted Mr Ratahi was motivated and had made strides while in jail. He was no longer using alcohol. He has returned to his faith and on Sundays was spending time with others in custody to have a service to help them keep their faith while away from the church. The report indicates that he was motivated to “mend bridges” with his children and, while in

15     Mallett v R [2014] NZCA 39 at [11].

16     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

custody, had had the time to concentrate on “himself” and had a positive plan for the future, including returning to his Youth Group activities for his church.

[55]            In those circumstances, a sentence of home detention appears the least restrictive sentence available. However, the home detention period needs to be of sufficient length to ensure the benefit of the proposed counselling, which includes a short rehabilitative programme. The probation officer in the PAC report notes that Mr Ratahi has been spoken to about the proposed detention and he will complete a community sentence well and is motivated to continuing counselling.

[56]            The residents of the address have been fully informed of their rights and responsibilities and that they are able to withdraw their consent at any time. They have given their informed consent for Mr Ratahi to serve an electronically monitored home detention sentence at the address.

Result

[57]            Appeal allowed. A sentence of two years and two months' imprisonment is quashed and substituted with a sentence of one year and 11 months' imprisonment.

[58]            That term of imprisonment is converted to a period of 12 months’ home detention, to be served subject to the recommended special conditions which are as follows:

(a)To attend an assessment for Short Rehabilitative Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(b)Not to communicate in any way or associate with the victim of your offending, without the prior written approval of a Probation Officer.

(c)Not to possess, consume or use any alcohol or drugs not prescribed to you.

(d)To attend an assessment for any counselling, treatment or programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(e)To attend an assessment for drug and alcohol counselling as directed by a Probation officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(f)Travel directly to [redacted] and wait there until your home detention connection is completed.

(g)To remain at [redacted] at all times unless an absence has been authorised by a Probation Office.

(h)To reside at [redacted] and not move to any new residential address without the prior written approval of a Probation Officer.

Grice J

Solicitors:
Elvidge & Partners, for the Crown