Shoshonee Pullan-Whakarau v New Zealand Police

[2024] NZHC 3134

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000036

[2024] NZHC 3134

SHOSHONEE PULLAN-WHAKARAU

v

NEW ZEALAND POLICE

Hearing:

23 October 2024

Counsel:

N Bourke for Appellant

R L Hicklin for Respondent

Judgment:

25 October 2024

JUDGMENT (REASONS) OF GRAU J

[Sentence appeal]

Introduction

[1]                 I have allowed Mr Pullan-Whakarau’s appeal against his sentence in a results decision delivered on 23 October 2024.1 These are my reasons for allowing the appeal.

[2]                 The appeal was against a sentence of two years and two months’ imprisonment imposed on charges of discharging a firearm with intent to intimidate,2 and unlawful possession of that same firearm.3

1      Pullan-Whakarau v New Zealand Police [2024] NZHC 3101.

2      Crimes Act 1961, s 308A (maximum penalty of five years’ imprisonment).

3      Arms Act 1983, s 45(1) (maximum penalty four years’ imprisonment or $5,000 fine or both).

PULLAN-WHAKARAU v NEW ZEALAND POLICE [2024] NZHC 3134 [25 October 2024]

[3]                 The appeal was advanced on the grounds that the starting point was too high, insufficient credit was provided for personal mitigating factors, and the Court ought to have arrived at an end sentence of two years’ imprisonment or less, at which point a sentence of home detention should have been imposed.

[4]                 The respondent’s position was that the starting point was within an available range, sufficient credit was given for personal mitigating factors, and the end sentence was not manifestly excessive.

The offending

[5]                 The offending is summarised in the District Court’s sentencing decision as follows:4

[3]        The facts refer to you being in Wellington because there had been a vehicle collision that involved your 15-year-old nephew who was on life support in Wellington Hospital. The next paragraph says that you were a patched Black Power member and had been staying with family across the road from the hospital at a lodge or motel. Also staying there was a person who had a child in the neo-natal intensive care unit at Wellington Hospital. That person and you were both staying at the same lodge.

[4]        There had been several verbal altercations in relation to different gang links. In response to these altercations, you got a loaded long-barrelled shotgun from an associate in Wellington. You do not have a firearm’s licence.

[5]        On 1 May, the person you had had the verbal altercation with, was visited by an associate. This associate is the named victim of your offending with respect to discharging the firearm. That person you had had the altercation with, and his associate are both patched Mongrel Mob members.

[6]        At about 5.10 pm, you were at the lodge with your associates. There was an altercation between you and your associates and these other two which, just on that reading, indicates there were at least three of you in your group, and two in their group.

[7]        The first person you had had words with armed himself with a knife, and the victim of your offending armed himself with a machete. More words were exchanged with you and your associates. The other two left that motel area in their Ford Ranger, drove to the hospital, and parked near the front entrance.

[8]        You collected the shotgun you had got days earlier from your motel room and with an associate, you walked to the entrance of that motel lodge area, carrying the firearm. There were numerous cars passing in front of you, travelling in both directions along the main street in front of the hospital, in

4      Police v Pullan-Whakarau [2024] NZDC 21052.

Riddiford Street. You told your associate that you wanted to “blow their heads off”.

[9]        Along with two associates, you got into a car that was parked at the lodge carpark. You were a passenger. One of your associates drove you and the other person to the hospital in the emergency department carpark. The associate who had been driving your vehicle, got out. You got into the driver’s seat. You drove the wrong way up the pick and drop off lane in front of the main entrance, stopped your car a short distance from the victim’s vehicle. That vehicle was parked immediately outside the main entrance of the hospital. Numerous people were coming and going from that hospital entrance. You and your associate got out of your vehicle and gestured in a pointing motion towards the entrance of the hospital. You were holding the loaded shotgun by the side of your legs.

[10]      You and your associate got back into the car and drove closer to the victim’s vehicle. You and your associate got out again. You stood on a raised traffic island, held the shotgun in two hands, pointed it towards the victim’s car. A family member attempted to intervene by pulling the barrel of the shotgun towards the ground. As the shotgun was lowered, the victim activated an orange flashing light on the canopy of his vehicle and got out of the driver’s seat. You were about five metres from his vehicle. You pointed the shotgun at the victim who was standing in the opening of the driver’s door and you fired a shot which impacted the driver’s side door of the vehicle. It entered that door about a metre to the right of the victim. It missed him but the outer panel of the vehicle door was punctured by the shotgun pellets.

[11]      You and your associate got back into your vehicle. You got into the driver’s seat, drove the wrong way up the drop off pick up lane until you got back onto the main street and left the area.

[12]      Due to that incident, Wellington Regional Hospital went into lockdown for a period.

[13]      When spoken to, you explained you had obtained the loaded gun from a friend following the verbal altercation with the first person, and that you fired the gun outside the hospital to make that person and the victim feel threatened and scared.

[6]                 I add the following facts that provide additional context to the events. I make it clear that I consider this offending was very serious indeed. The additional context in no way excuses it. But it does go some way at least to explaining it.

[7]                 The altercations between Mr Pullan-Whakarau and the rival gang associates at the motel had been ongoing over several days. The day before the shooting, the victim told Mr Pullan-Whakarau he was going to shoot him.  On the day of the shooting,  Mr Pullan-Whakarau’s whānau had been told his nephew’s life support would be turned off. The whānau were grieving. The nephew died that day. In the direct lead up to the shooting, Mr Pullan-Whakarau had been accosted at the motel by the victim

and the victim’s associate, who were armed with a machete and knife respectively, and Mr Pullan-Whakarau followed them the short distance along the road to the hospital.

The sentencing decision

[8]                 After setting out the facts, the Judge noted Mr Pullan-Whakarau had no previous history before the courts.5

[9]                 There were no victim impact statements, but a restorative justice meeting had taken place, with one of the restorative justice facilitators acting as a community representative in place of a victim. Mr Pullan-Whakarau had apologised and agreed to engage with a local counsellor. It was said he was going to write letters of remorse, but they had not been provided at sentencing.6

[10]              Mr Pullan-Whakarau had explained his mental health was not great. He said he felt it was either him or them, and he decided to threaten them so they would leave. There was a lot of adrenaline and his mind went blank. He had said he was not usually violent and that he was trying to leave the gang, but he just could not, although his partner was encouraging him to leave.7 He said he did not think about the effects on people in the vicinity, but now that he had, he would have run for his life if he had been in that position.8 He had also acknowledged the hospital area should have been a safe space. He noted that his remand in custody when he first appeared on the charges was his first experience in prison and had helped change his outlook on life.

He had the possibility of work. His partner was his biggest support.9

[11]              After referring to the submissions on behalf of Mr Pullan-Whakarau, suggesting a starting point of between two years and four months and two years and six months, and the prosecution submissions advocating for a four-year starting point, his Honour adopted the starting point put forward by the prosecution.10

5      Police v Pullan-Whakarau, above n 4, at [15].

6 At [16].

7 At [17].

8 At [18].

9 At [19].

10 At [39].

[12]              His Honour considered as aggravating factors the premeditation in obtaining the firearm days before the offending after a gang-related verbal altercation, then following the victim and his associates and, ultimately, despite a family member intervening, ignoring that intervention, lifting the firearm, and firing it at the victim, hitting the door panel of his vehicle. It was only one metre away from the victim, when Mr Pullan-Whakarau was five metres away. His Honour observed that was not a particularly significant distance considering a long-barrelled shotgun’s range and the degree of dangerousness.11

[13]              His Honour also took into account the location of the incident, in front of the main entrance of Wellington Public Hospital which, in the early evening, had people coming and going, led to the hospital shutting down, and a significant level of concern by those who needed to be there.12 It was gang-related violence involving firearms. The Judge also referred to what he called an “arrogance” involved in this sort of offending, in taking a gang-related dispute to a public place. There was a high potential for harm.13

[14]              Taking into account the cases that he had been referred to, his Honour said the decisions referred to a start point of two to three years for the discharge of the firearm, and in his view, two years should be added for possessing it in the first place, making a starting point of four years.14

[15]His Honour applied a reduction of 25 per cent for the guilty plea.15

[16]              Next the Judge said he would reduce the sentence by a further 10 per cent as a combination to take account of remorse, lack of previous history, age, and the time spent on electronically monitored bail.16 His Honour remarked that might seem a very minimal discount, but he said it needed to be put in the context of the nature of the

11     At [40]–[43].

12     At [44]–[45].

13     At [46]–[47].

14 At [49].

15 At [51].

16 At [52].

offending itself, “and what I am satisfied is a high level of premeditation and in furtherance of gang objectives”.17

[17]              His Honour then noted an early acceptance of responsibility, prospects, and that Mr Pullan-Whakarau had children, which raised the question of “why on earth” he did this, particularly prior to discharging the firearm, when a family member had intervened and pushed the barrel of the gun down. Yet, that was not enough to prevent him pursuing his objective.18

[18]              His Honour also said he did not overlook the submission and information about Mr Pullan-Whakarau’s nephew’s state of health, which was impacting on Mr Pullan- Whakarau. However, it was also apparent that the person he had altercations with also had a family member in hospital, yet both decided to focus on their gang connections, giving the appearance that was the priority, rather than supporting whānau.19

[19]              His Honour then added another reduction of 10 per cent for “totality”, leading to a reduction of 45 per cent, taking the end sentence to two years two months’ imprisonment.20

[20]              His Honour’s view was that this sentence was the least restrictive option. He said he had not overlooked all the purposes and principles of sentencing, including rehabilitation and reintegration prospects. However, premeditated gang-related violence in a very public place needed a strong message to denounce the conduct. His Honour said, as well as the principle of hopefully deterring Mr Pullan-Whakarau, it was a message for others, particularly for gang members, who might be similarly inclined to use firearms to express themselves in “effectively a gang warfare context”.21

17 At [53].

18 At [54].

19 At [55].

20 At [56].

21 At [59].

[21]              His Honour also imposed a firearms prohibition order,22 as well as a disqualification from driving for six months.23 I note here those orders are not challenged on appeal.

Approach on appeal

[22]              Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction, and a different sentence should be imposed. The court retains no discretion in the event these criteria are not satisfied and must dismiss the appeal.

[23]              When considering whether a different sentence should be imposed, the court will have regard to the end sentence rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is manifestly excessive and not justified by the relevant sentencing principles.24 It must be shown that there has been an error made by the sentencing Judge.25 The Court cannot tinker with the sentence imposed where that end sentence is within range.26

[24]              The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion. It is governed by the purposes and principles of sentencing contained in the Sentencing Act 2002. Appellate review, as in other sentence appeals, focuses on the identification of error, if any, in the Court below.27 Strictly speaking the question of identifying an error in not imposing home detention does not arise in this case because the sentencing Judge did not arrive at an end sentence that would have enabled consideration of alternatives to a sentence of imprisonment. It is therefore a matter of discretion for this Court if an end sentence of two years or less is reached on the appeal.

22     At [60]; pursuant to s 39A of the Arms Act.

23     At [60]; pursuant to s 124 of the Sentencing Act 2002.

24     Tutakangahau v R [2014] NZCA 279 at [32]–[35].

25 At [27].

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

27     Manikpersadh v R [2011] NZCA 452 at [12]

Discussion

Was the starting point within range?

[25]              As the submissions for the appellant point out, the lead offence of discharging a firearm with intent to intimidate is a relatively new offence and accordingly there is a little case law available. It appears there has been no consideration of the charge at sentencing in this Court to date.

[26]              Section 308A was inserted on 5 April 2023 by s 5 of the Criminal Activity Intervention Legislation Act 2023.

[27]              The legislative statement for the Criminal Activity Intervention Legislation Bill (the Bill) outlines that it created new offences and enforcement powers “to better prevent and respond to harms commonly associated with gangs and organised criminal groups”.28

[28]              The Bill amended the Crimes Act 1961, the Sentencing Act, and a number of other acts; the amendments being said to support the Labour government’s commitments to maintain pressure on “tackling organised crime and gangs by ensuring Police and other enforcement agencies have the resources and powers to disrupt and prosecute relevant offending”.29

[29]              By way of background, it was said that a review and advice had been sought on specific proposals for offences and penalties relating to shootings in public places, to introduce more targeted penalties for discharging a firearm in a public place.30

[30]              The basis for the new offence of discharging a firearm with intent to intimidate in a public place was that:31

9Currently, there is an apparent gap in the law where law enforcement can intervene when a firearm is discharged with intent to intimidate, but only when it is to intimidate those in a dwelling house. The Bill

28     Criminal Activity Intervention Legislation Bill 2022 (166-2) (select committee commentary) at 1.

29     Criminal Activity Intervention Legislation Bill 2022 (166-1) (explanatory note) at 1.

30     Legislative Statement for the Criminal Activity Intervention Legislation Bill 2022 (presented to the House of Representatives in accordance with SO 272) at [4.1].

31     Legislative Statement for the Criminal Activity Intervention Legislation Bill, above n 30.

enables the Crimes Act to address all situations where a firearm is discharged with the intent to intimidate any person or group of people.

10The Bill sets a maximum penalty of 5 years’ imprisonment for this offence.

[31]              In the only two sentencing decisions of the District Court on this charge that have been located, the starting points adopted for charges identical to the present case were both three years’ imprisonment. In both cases, electronically monitored sentences were imposed.32

[32]              The District Court Judge in this case was provided with a number of authorities involving sentencing on firearms charges with higher maximum penalties.

[33]              The decision of McAllister v R,33 on which the Police appear to have particularly relied on at sentencing (and which, on appeal is also relied on), involved a charge of recklessly discharging a firearm, under s 198(2) of the Crimes Act; a charge with a seven-year maximum penalty. The firearms offending involved the appellant travelling to the victim’s address the evening after the victim had paid him for drugs with a counterfeit banknote. He had a sawn-off shotgun with him, concealed in a bag. He stood on the victim’s fence and pointed the shotgun at the victim on the front step, then fired it when the victim went inside. The shot broke the kitchen/dining room windows.34 There were children inside who were significantly impacted.35 A starting point of four years was adopted, which, on appeal, was held to be in range.36

[34]              In contrast, the case relied on at sentencing for Mr Pullan-Whakarau was Stirling v Police,37 also involving a charge of recklessly discharging a firearm, where the appellant fired a shot during a road rage incident which may have been aimed at the victim, but, if not, was aimed in close proximity and hit the victim in the arm.38

32 Only one case, Police v Pati [2023] NZDC 24038 pre-dates this sentencing. The other, Police v Buffett DC Rotorua, CRI-2023-063-002751, 6 September 2024, post-dates it and there are no sentencing notes available. That is because District Court sentencing decisions are not generally transcribed for sentences less than home detention. The sentence imposed on Mr Buffett was one of community detention, intensive supervision and a firearms prohibition order.

33 McAllister v R [2023] NZHC 3705.

34     At [5]–[7].

35 At [9].

36 At [30].

37     Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011.

38     At [2]–[3].

The pellet from the weapon could not be removed, the victim lost movement in his arm and could not return to his employment. On appeal, the starting point of two years and nine months was held to be “well within” an available range.39

[35]              I note here the facts of the two District Court decisions I have mentioned already:

(a)Police v Pati:40 the offender, a Black Power prospect, was on a street in Rotorua with other Black Power associates and fired a shot at an address occupied by a Mongrel Mob family.41 In the early hours of the following morning, another shot was fired from a car at that same address. The shot went through a bedroom window and into a wardrobe.42 The offender was found the next day driving the same vehicle, in which Police found a sawn-off shotgun, a shotgun shell, and a spent cartridge.43 The Judge observed that the unlawful possession of the cut-down shotgun and ammunition in a gang context would have, by itself, attracted a starting point of around two years.44 Coupled with a premeditated shooting at another house (and another charge) a starting point of three years was taken.45

(b)Police v Buffett:46 as above, the sentencing notes are unavailable. However, the summary of facts sets out that the two defendants, both Black Power associates, were in a vehicle driving in Rotorua and saw a vehicle occupied by Mongrel Mob members. A pistol was produced, aimed at the Mongrel Mob vehicle and discharged five times, shattering the rear windows. A bullet lodged in another vehicle parked at traffic lights. One bullet travelled into a civilian’s vehicle waiting at the lights. The starting point was three years’ imprisonment.

39 At [8].

40     Police v Pati, above n 32.

41 At [3].

42 At [4].

43 At [5].

44 At [25].

45 At [26].

46     Police v Buffett, above n 32.

[36]              In the present case, after first agreeing with the Police submission that the appropriate starting point was four years, the Judge later referred to a starting point of “two to three years” for the discharge of the firearm, based on the decisions he was referred to, and added on two years “for possessing [the firearm] in the first place”.47 Although the Judge did not explicitly refer to any need to adjust the starting point to reflect that the cases he was referred to involved a charge with a higher maximum penalty, the comments I have referred to above suggest he appears to have nevertheless done so. However, he then added two years on to reflect the additional charge of unlawful possession of a firearm.

[37]              Although it is correct that possession of a single firearm “generally calls for a starting point of two to three years imprisonment” that is the case if the charge stands alone.48 In this case, it might have been better regarded as an aggravating factor of what was the lead charge for sentencing, namely, discharging the firearm. The Judge’s approach thus appears to have amounted to a cumulative approach to the sentence, when a safer and more orthodox approach would have been to fix a starting point for the most serious charge and then apply an uplift to account for the additional charge. I note here the guidance on the use of cumulative and concurrent sentences in s 84 of the Sentencing Act, which provides that concurrent sentences of imprisonment are generally appropriate for offences of a similar kind that are a connected series. The (unlawful) possession of the firearm in this case was part and parcel of the principal offending.

[38]              I also note that no adjustment to the combined starting point was then made to reflect the totality of the offending. The Judge instead applied a “discount” for totality later in the sentencing process as if it was a personal mitigating factor. It is not. Thus, in reality the starting point should have been expressed as being 43 months, or three years and seven months.

[39]              That starting point is slightly over 70 per cent of the maximum penalty. When the offending was very serious, with a number of aggravating factors, I do not consider it was outside of an available range. It could perhaps have been slightly lower, but

47     Police v Pullan-Whakarau, above n 4, at [49].

48     As the Court of Appeal stated in Campbell v R [2022] NZCA 579 at [18].

equally, I consider a starting point of four years would also have been available. I observe that is higher than the three-year starting points adopted in the two District Court cases I have referred to. I consider those starting points were lenient; possibly too low. I also note here that in Police v Pati, the Judge adopted a two-year starting point for the unlawful possession of a firearm charge and then uplifted it by 12 months to take into account the discharging of the firearm. It should, however, have been the other way around; that is, by fixing a starting point for the more serious (and therefore lead) charge of discharging the firearm, with its unlawful possession treated as an aggravating factor.

[40]              Assessing the matter afresh, I consider the aggravating factors of the discharging of the firearm are:

(a)It was gang-related.

(b)There was some premeditation involved in obtaining the firearm, however, the later actions in following the victim to the hospital can also be considered as an impulsive act. The firing of the shotgun itself, despite a family member attempting to intervene, showed a degree of determination. Considering all of the circumstances, my view is that the sentencing Judge overstated the degree of premeditation.

(c)The shot was fired from a reasonably close distance and near to the victim. The potential for harm to the victim is self-evident.

(d)The discharge of the firearm occurred in a public place where members of the public were present. Again, the potential for harm is self-evident. In addition, it is made worse by the location being outside a hospital, which should be a place of safety and refuge. People present might already have been likely to be in a state of stress, or upset, or ill-health. That the hospital then had to be locked down, trapping people inside for a time, would inevitably have caused an additional layer of stress and upset.

(e)The firearm used in the offending was possessed unlawfully.

[41]              With reference to all of the cases that have been referred to, taking account of the lower maximum penalty of the charge under s 308A as compared with recklessly discharging a firearm, and with the unlawful possession of the firearm treated as an aggravating factor of the s 308A charge, in my view, the starting point could not appropriately be lower than around the three-and-a-half-year mark. It bears repeating that sentencing must express society’s condemnation of the availability and use of loaded firearms.49 That is particularly so when it is gang-related. In my view, therefore, a starting point of three years and seven months cannot be considered as outside of an available range.

Reductions for personal factors

[42]              Leaving aside the guilty plea reduction, which was appropriate and is not at issue, the only other reduction was 10 per cent (or approximately five months) for all of the factors that applied to Mr Pullan-Whakarau.

[43]I consider the combined 10 per cent reduction was inadequate.

[44]              First, a discount of 10 per cent was available for youth alone. The respondent does not disagree. It is well established that youth discounts will generally vary from 10 to 30 per cent.50 At age 22, Mr Pullan-Whakarau could not expect a higher level of discount, but 10 per cent would have been orthodox on a standalone basis, given the relevance of Mr Pullan-Whakarau’s age to the offending (which had some aspects of impulsivity), the effect of imprisonment on him as a young person, and his greater capacity for rehabilitation.51

[45]              A discrete discount was also appropriate to reflect Mr Pullan-Whakarau’s lack of previous convictions and good character, and his genuine remorse.

49     See, for example, Torea v R [2011] NZCA 96 at [11].

50     See, for example, Asaeli v R [2023] NZCA 486 at [23].

51     See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

[46]              As to the former, as Mr Bourke rightly pointed out, Mr Pullan-Whakarau’s lack of any previous contact with the criminal justice system is very significant given his personal circumstances. Despite growing up in a family connected to a gang, then more recently becoming a patched gang member, before this offending he nevertheless lived in a pro-social manner with a partner and he had responsibilities towards children. He was actively involved in sports. He has prospects to regain employment. Although the gang-related context of the offending makes it more serious, the bare fact of his gang membership also needs to be considered in context, when gangs have become intergenerational in Mr Pullan-Whakarau’s family. Although it is not something that a Court (or the community in general) can be expected to approve of, it goes a long way to explain his choice.52 In my view, it would have been appropriate to recognise Mr Pullan-Whakarau’s positive prior history by way of a small reduction of five per cent.

[47]              As to remorse, a discrete discount was also appropriate, particularly when  Mr Pullan-Whakarau attended a restorative justice conference. The courts are often faced with offenders who say they are willing to undertake restorative justice, but much less often with those who actually do. A positive report followed, as well a referral to counselling. Mr Pullan-Whakarau had also written apology letters (that the Judge did not see, but which I have, and have no reason to doubt are genuine) and expressed “deep remorse” to the pre-sentence report writer. He also pleaded guilty at an unusually early stage. All of those matters demonstrate remorse to a level that justified recognition. At the least, a five per cent reduction was appropriate.

[48]              There is also the time spent on electronically monitored (EM) bail, which the Sentencing Act requires to be taken into account.53 After a month in custody by consent, Mr Pullan-Whakarau was granted EM bail without opposition. He then successfully completed close to three months on EM bail before his sentencing. While credit is not inevitable for a relatively short period of EM bail, in my view, given the good compliance, a discrete discount of one month was available and appropriate.54 The respondent also accepts a credit at this level was appropriate.

52     See, for example, R v Kuru [2022] NZHC 309 at [40]–[41].

53     Sentencing Act, s 9(2)(h).

54     See Longman v Police [2017] NZHC 2928 at [13].

[49]              Finally, I note the Judge recognised the paucity of the reductions he was giving, but considered it needed to be put in the context of the nature of the offending and what he thought was a high degree of premeditation and in furtherance of gang objectives. Although it is the case that courts acknowledge the seriousness of offending may temper any discount given for personal factors, it is also the case that substantial discounts have been applied for personal factors, even in cases of murder and other serious offending.55

Conclusion on reductions and end sentence

[50]              In this case, I have concluded that in addition to the guilty plea discount, reductions of 20 per cent, along with a one-month reduction for time on EM bail, were appropriate for Mr Pullan-Whakarau’s personal circumstances. I cannot agree that these otherwise appropriate reductions should not be taken into account when the offending, while very serious, was an isolated unthinking lapse by a young man at a time of extreme grief, who has otherwise managed, against the odds, to lead a pro- social life.

[51]              Accordingly, from a starting point of three years and seven months, the reductions of 25 per cent for the guilty plea, 20 per cent for personal factors, and one month for time on EM bail, results in an end sentence of 23 months’ imprisonment. Although it is only three months less than the end sentence reached in the District Court, the difference is material because it puts Mr Pullan-Whakarau in a position where home detention is available.

Should the sentence be commuted to home detention?

[52]Section 16 of the Sentencing Act provides as follows:

16       Sentence of imprisonment

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

55     See the discussion in Salt v R [2022] NZCA 611 at [45]–[54].

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)No other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3)This section is subject to any provision in this or any other enactment that—

(a)provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b)requires a court to impose a sentence of imprisonment in relation to a particular offence.

[53]              Section 16 assists the Court to give effect to the hierarchy of sentences set out in s 10(2), and the principle in s 8(g) that a court must impose the least restrictive sentence that is appropriate in the circumstances.

[54]              The Court of Appeal has observed that “a considered and principled choice between [imprisonment and home detention] must be made”.56 Both sentences are regarded as serving the principles of denunciation and deterrence. But the Court must identify which better qualifies as the least restrictive outcome, taking into account all of the purposes of sentencing.57

[55]As the learned authors of Adams on Criminal Law have pointed out:58

A community-based sentence will generally be preferred to a short sentence of imprisonment since the latter has “proved to be the least successful in achieving sentencing principles, including because of the anti-social environment the offender is placed in”.

[56]              In my view, Mr Pullan-Whakarau presents as a clear case for home detention. Mr Pullan-Whakarau has already now had two periods of incarceration as a result of

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

57 At [30].

58 Mathew Downs (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at  [SA16.01]; with reference to White v Police [2020] NZHC 684 at [17]; Richmond v New Zealand Police [2019] NZHC 2001 at [73]–[79]; and Goodwin v Police [2021] NZHC 1526 at [29].

his offending. During the first period, he has said himself, “it has helped to change my outlook on life.” He also said he was told that “I am still young and still have a chance in life”. And since sentencing, he has spent another two months in custody. Accordingly, it is my view that the deterrent aspect of sentencing has already been achieved in Mr Pullan-Whakarau’s case. So too denunciation. Both of those principles are also achieved by the sentence starting point and are further achieved by a sentence of home detention, which itself has a significant punitive aspect, particularly for a young person.

[57]              There is no question that the criminality involved was serious. But personal characteristics also need to be weighed. Mr Pullan-Whakarau, who has been assessed as having a low risk of reoffending, is still young and has good prospects of rehabilitation. Those prospects will be significantly bettered by a sentence served in the community, where he has the ability to access the counselling he has already been referred to. His prospects of leaving the gang are more difficult, but self-evidently they are greatly improved by serving a sentence in the community instead of prison, where his ties to the gang will only be cemented.

[58]              It follows that a sentence short of imprisonment will also provide better protection for the community, in that this tāne’s rehabilitation and reintegration into the community is far more likely to reduce his (low) risk of any reoffending, but a short sentence of imprisonment will likely increase it.

[59]              Accordingly, I am satisfied the least restrictive sentence that is appropriate in the circumstances is home detention. I have reached a sentence of 23 months’ imprisonment. In the usual way that would be commuted to 11 and a half months’ home detention. However, it is also well-established that it is appropriate to adjust the period of home detention to take into account time spent in custody. I adopt the approach Cooke J took in R v Tai and reduce the length of home detention by three months.59

59     R v Tai [2021] NZHC 2769.

[60]              Thus, the end sentence is eight and a half months’ home detention imposed on the terms set out in the PAC report of 19 August 2024. As I set out in my results decision, the proposed special condition of home detention in that report is to apply for 12 months post detention.60

Grau J

Solicitors:
Crown Solicitor, New Plymouth

60     Attendance and completion of an appropriate rehabilitative programme.