Tahau v The the King

[2022] NZHC 2964

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-121

CRI-2022-463-122 [2022] NZHC 2964

BETWEEN

ZION TAHAU and RIKIHANA DIXON

Appellants

AND

THE KING

Respondent

Hearing:	9 November 2022
Appearances:	G Burns for Appellant Tahau A Hill for Appellant Dixon A Maino for Respondent
Judgment:	11 November 2022

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 11 November 2022 at 3:00 pm.

Registrar/Deputy Registrar

Solicitors:           Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel:  G Burns, Auckland

A Hill, Rotorua

TAHAU v R [2022] NZHC 2964

[1]    On 9 September 2022, Zion Tahau and Rikihana Dixon were sentenced by Judge GC Hollister-Jones in the Rotorua District Court to three years and two months’ imprisonment and two years and nine months’ imprisonment respectively.1 They now appeal against their sentences. They say that the Judge was wrong not to impose sentences of two years’ imprisonment or less, which could then have been commuted to sentences of home detention.

[2]    Section 250(2) provides that the 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.

Factual background

[3]    Mr Tahau and Mr Dixon were charged with aggravated robbery and assault with intent to rob. A third offender had earlier pleaded guilty and been sentenced for his role in the offending.

[4]    The agreed summary of facts records that at around 2:00 am on 29 July 2020, the three offenders visited an address on Old Taupo Road in Rotorua. This is an address used by several sex workers as a base for their work. The offenders knocked on the door, which was answered by the first complainant. When the first complainant found the offenders had no money to pay for sexual services, she told them to leave.

[5]    The offenders then drove to another address on Old Taupo Road. They knocked on the front door, which was answered by the second complainant. The second complainant told the offenders that sexual services were being offered at the other address on Old Taupo Road and that she was not a sex worker.

[6]    While talking to the offenders, the second complainant held her front door open. Mr Tahau and Mr Dixon rushed inside and started searching the house. One of the offenders made a comment that the second complainant was alone, and this comment prompted the co-offender to grab the second complainant by her neck in an attempt to drag her inside the house towards the bedroom. The second complainant

1      R v Dixon [2022] NZDC 17813.

struggled with the co-offender. The co-offender let go of the second complainant and punched her on her left eye and kicked her out of the door. The co-offender began to hit the second complainant many times and kicked her body around her stomach and chest area. The second complainant started to run towards the road to get assistance while the offenders promptly left the address in their vehicle. This is the basis for the charge of assault with intent to rob. Mr Tahau and Mr Dixon were charged as parties to the assault by the co-offender.

[7]    The offenders then went back to the first address on Old Taupo Road. The co- offender knocked on the door and showed the first complainant some cash to indicate that they could pay for her services. The three offenders were briefly invited inside. The first complainant told Mr Tahau and Mr Dixon to wait outside while she catered to the co-offender first. Mr Tahau and Mr Dixon briefly went outside. However, a short later the co-offender held the door open and called out to Mr Tahau and Mr Dixon to enter to the property. Mr Tahau and Mr Dixon managed to push the door open, breaking the hinges and lock on the door.

[8]    The co-offender grabbed the first complainant by the neck and flipped her over his hip in a manoeuvre more commonly referred to as a hip toss. As a result, the first complainant landed on her back on the ground.

[9]    Mr Tahau and Mr Dixon began searching the house for property to steal. In the meantime, the co-offender held the first complainant around the neck and escorted her to the lounge. One of the offenders picked up a large meat cleaver from the kitchen.   It is unclear whether it was the co-offender or Mr Dixon, but it was not   Mr Tahau. The offender with the meat cleaver threatened the first complainant with it, stating “Give us the money or I will fucken kill you”. The first complainant gave the defendants $31 from a drawer. The offenders then quickly exited the address with the meat cleaver, three mobile phones, a pair of shoes, an overcoat, and $31. They drove away from the address in the same motor vehicle. This is the basis for the charge of aggravated robbery.

Case chronology

[10]   I set out the case chronology as it has some relevance to the points raised on appeal.

29 July 2020	Date of offending
7 August 2020	Mr Tahau, Mr Dixon and co-offender speak with Police.
13 August 2020	Mr Tahau, Mr Dixon and co-offender are charged with aggravated robbery and assault with intent to rob.
11 December 2020	Sentence indication given to Mr Tahau and Mr Dixon (rejected).
6 March 2021	Co-offender’s second interview with Police.
8 March 2021	Co-offender sentenced.
13 March 2021	Callover.     Not   guilty   pleas   maintained.     Trial confirmed as being required.
17 May 2022	Mr Dixon offers to resolve the prosecution by pleading guilty to aggravated robbery and for assault with intent to rob charge to be withdrawn.
20 May 2022	Crown counteroffers to amend the charge of assault with intent to rob and specify the role of Mr Tahau and Mr Dixon as parties and amend summary.
24 May 2022	Mr Tahau and Mr Dixon accept Crown’s proposal.
30 May 2022	Date  of  start  of   scheduled  trial.     Mr Tahau  and Mr Dixon enter guilty pleas.

District Court sentence

[11]   At the outset of his sentencing remarks, the Judge recounted the summary of facts before referring to the Victim Impact Statements and the limited criminal histories of Mr Tahau and Mr Dixon.

[12]The Judge then listed the aggravating features of the offending as:

(a)An element of premeditation in that the clear intent of the group was to go to premises where sex workers were working late at night for the purpose of taking money or property;

(b)There were three offenders;

(c)The two victims were vulnerable. They were women working at night and were outnumbered by the three offenders;

(d)There was actual violence used although Mr Tahau and Mr Dixon were not involved in inflicting the violence; and

(e)The impact on the victims and the trauma caused to them.

[13]   The Judge then referred at length to the submissions of both Crown and defence counsel as to the appropriate sentence. After doing so, the Judge began by setting a starting point. The Judge took a starting point of five and a half years’ imprisonment for the aggravated robbery and uplifted that by six months for the assault with intent to rob. He accepted that the culpability of Mr Tahau and Mr Dixon for the latter offending was less serious than that of the co-offender. The Judge indicated there would be no uplift for the criminal history of either Mr Tahau or Mr Dixon because of their ages.

[14]   The Judge then turned  to  personal  mitigating  features.  Looking  first  at Mr Tahau, the Judge gave a 15 per cent discount for his youth as he was aged 19 (nearly 20) at the time of the offending. He already had three convictions for assault with intent to injure and one for theft. His actions on the night showed some degree of purpose, which was not completely explained by youth impulsivity. However, the Judge accepted that he had a long way to go in life and as a result, had a greater capacity for rehabilitation.

[15]   The Judge did not, however, give any discount for Mr Tahau’s background as the cultural report obtained for the purposes of sentencing indicated that he had the benefit of a good background, with strong foundations in the Christian faith and Te Ao Māori. The main challenge he faced was the death of a grandparent and separation of parents in 2014, but the Judge was of the view that those challenges were not causative of the offending. The Judge did give a very small discount of two per cent for remorse. The Judge said there was some acknowledgement of wrongdoing in the pre-sentence report, but real empathy for the victims did not come through strongly.

[16]   The Judge then acknowledged that Mr Tahau’s efforts in rehabilitation had been impressive and accordingly granted a further 12 per cent discount for Mr Tahau’s efforts at rehabilitation.

[17]   Finally, the Judge gave a 10 per cent discount for the guilty pleas, which were on the morning of trial, after the Crown had amended the charge of assault with intent to rob charge from a 14 year charge to a seven  year charge and made it clear that  Mr Tahau’s involvement in that charge was as a party. The Judge was of the view that the change in the charge resulted in a six month uplift, rather than a one year uplift.

[18]   The total discounts accorded to Mr Tahau were 39 per cent, which the Judge rounded up to 40 per cent. This reduced the sentence by 29 months and resulted in an end sentence of three years and seven months’ imprisonment. The Judge, however, noted that Mr Tahau had spent 14 months on electronically monitored bail without incident and there would be a further five month reduction for that. The end sentence for Mr Tahau was, therefore, one of three years and two months’ imprisonment.

[19]   The Judge then turned to Mr Dixon and the discounts which were available to him. The Judge noted that Mr Dixon was aged 20 (nearly 21) at the time of the offending and had five convictions in the adult court, but none involving violence. His comments to Mr Tahau that the offending was not entirely explained by youthful impulsivity, also applied to Mr Dixon. Although he was older than Mr Tahau, he had less convictions and appeared to be less engrained in offending. Balancing that, the Judge applied the same discount for youth – 15 per cent.

[20]   In terms of cultural factors, the Judge referred to the modelling of the gang lifestyle that Mr Dixon’s grandfather provided and his links with the Black Power in Fordlands. The Judge noted that unfortunately for him, Mr Dixon had been connected to the values of Black Power, rather than the values of Te Ao Māori. This meant that he was now a patched member of Black Power. The Judge accepted his whānau’s deep connection to Black Power was a contributor to where he was today, but there were other more positive aspects as well. The Judge gave a discount of 17 per cent for Mr Dixon’s background cultural factors.

[21]   The Judge noted the efforts made by Mr Dixon towards rehabilitation and granted him a further discount of seven per cent.

[22]   Finally, the same discount of 10  per  cent  was  applied  by  the  Judge  for Mr Dixon’s guilty pleas on the same basis as Mr Tahau. The total discounts granted to Mr Dixon were therefore 49 per cent, rounded up to 50 per cent and resulting in an end sentence of three years’ imprisonment. In terms of time spent on electronically monitored bail, the Judge noted that Mr Dixon had been largely compliant. There had been one breach in February, but not of a significant nature. The Judge, accordingly, granted a further discount of three months for the time on electronically monitored bail. The end sentence for Mr Dixon was one of two years and nine months’ imprisonment.

Starting point

[23]   The Judge adopted an initial starting point of five and a half years’ imprisonment for the aggravated robbery, which he uplifted by six months for the assault with intent to rob to reach an adjusted starting point of six years’ imprisonment.

[24]   Counsel submits that the initial starting point should have been five years’ imprisonment, rather than five and a half years’ imprisonment. No issue is taken with the six month uplift for charge of the assault with intent to rob.

[25]   The leading case on aggravated robbery sentencing is R v Mako.2 The Judge obviously thought that the offending fell somewhere in between two examples given in that case. The first example was a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon, such as a knife, after ensuring that no customers were present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The Court of Appeal stated that the starting point in that case should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple

2      R v Mako [2000] 2 NZLR 170 (CA).

offenders, or if more money and other property is taken, five years and, in bad cases, six years should be the starting point.

[26]   The second example was forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished. The Court of Appeal stated that even if no serious injuries are inflicted, a starting point of seven years or more would be required.

[27]   Mr Tahau  and Mr Dixon’s co-offender was sentenced 18 months earlier, on  8 March 2021. The Judge who sentenced the co-offender adopted a starting point of five and a half years’ imprisonment for the aggravated robbery, which he uplifted by one year for the assault with intent to rob.

[28]   Counsel submits that both Mr Tahau and Mr Dixon played a lesser role in the aggravated robbery, which should be recognised by a reduction in the initial starting point to five years’ imprisonment.

[29]   It seems to me, however, that the aggravated robbery was a joint enterprise. The offence of assault with intent to rob had already taken place before the offenders drove back to the house where the aggravated robbery took place. The co-offender had already used violence. The common intention, as disclosed by the actions which led to the assault with intent to rob charge, was to take cash and/or property from vulnerable sex workers with threats of violence or violence, if necessary. Although Mr Tahau and Mr Dixon did not, or could not, be shown to have picked up the meat cleaver, they had used violence to effect entry as the hinges and lock of the door were broken when they entered the house. Their role was then to search the house for valuables while the co-offender kept the complainant under control.

[30]   Some recognition of a lesser role may be able to be given if an offender did not enter the house or merely acted as a lookout or driver, but here each offender played a principal role. The fact that there were three offenders also contributed to the intimidation of the complainant.

[31]   In light of the Court of Appeal authority and the approach taken in sentencing the co-offender, I cannot say the Judge was wrong to adopt the starting point he did.

Personal factors

Youth

[32]   Both Mr Tahau and Mr Dixon received a discount for their youth of 15 per cent. At sentencing, both counsel advocated for a discount for their clients of 20 per cent to 30 per cent. On appeal, counsel for Mr Dixon accepts that a discount of 15 per cent is appropriate, while counsel for Mr Tahau continues to advocate for a discount of 20 per cent.

[33]   I am, however, of the view that the Judge was correct in treating their youth equally. Although Mr Tahau was a year younger than Mr Dixon, he had three previous convictions for assault with intent to injure – in 2017 and 2018 (x2) – for which he had been sentenced to nine months’ supervision with special conditions. Mr Dixon, on the other hand, only had minimal convictions. The only one that could be seen as possibly violent was a charge of disorderly behaviour. The Judge commented that  Mr Dixon seemed less engrained in offending.

[34]   In those circumstances, I cannot say the Judge was wrong to grant a 15 per cent discount to both Mr Tahau and Mr Dixon for their youth.

Cultural factors

[35]   Mr Dixon received a discount for background cultural factors of 17 per cent. Mr Tahau received none. At sentencing, counsel for Mr Dixon advocated for a discount for Mr Dixon of 20 per cent to 30 per cent, while counsel for Mr Tahau advocated for a discount of 15 per cent to 20 per cent.

[36]   On appeal, counsel for Mr Dixon submits that 20 per cent rather than 17 per cent was appropriate for his client, while counsel for Mr Tahau continues to advocate for 15 per cent.

[37]   Adams on Criminal Law - Sentencing3 states that cultural factors may be relevant to sentence in four ways. First, as recognised in s 27(1)(a) of the Sentencing Act 2002 (the Act), they may demonstrate the existence in the offender’s background of pervasive and persistent social disadvantage, or systemic and intergenerational Māori deprivation, that will result in impaired choice and therefore be a relevant factor in the overall assessment of culpability. Secondly, while not justifying offending, cultural factors may sometimes assist in providing a direct explanation for the offender’s behaviour and mitigate culpability. Thirdly, as recognised by s 27(1)(b) of the Act, they may mitigate culpability in specific circumstances where the offender has reacted strongly to a provocation that was magnified by his or her ethnicity. Finally, as recognised by s 27(1)(d) of the Act, cultural factors may be relevant to rehabilitative prospects or to the type of rehabilitative sentence that may be appropriate.

[38]   In this case, both Mr Tahau and Mr Dixon obtained reports under s 27(1)(a) of the Act to assist the Court at sentencing. The report for Mr Tahau did not demonstrate any nexus with the offending. Mr Tahau described his upbringing as loving and caring. His parents were both hardworking and faith-based individuals who merged both faith and Māori cultural values and practices into one providing a strong foundation for Mr Tahau’s life and upbringing. The report writer states:

In reflection of this, Mr Tahau’s upbringing was not void of healthy Māori world values and practices, quite the opposite. The connection of cultural deficiency to his culpability is therefore not an argument I put forward in this report rather a return to those Māori cultural values that reinstate pro-social, pro-whānau and pro-community values.

[39]   Although not disclosed to the report writer, counsel for Mr Tahau advises that Mr Tahau has instructed him that he commenced using cannabis at age 11 and methamphetamine at age 12. He also started spending time with wider members of his whanau who were either associates of or patched members of a gang. Counsel,

3      Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at [SA27.02].

therefore, submits that some recognition should therefore still be given to Mr Tahau’s social and cultural background.

[40]   Mr Dixon’s report cannot be more different. He has experienced significant whānau and community disadvantages. His father left when he was a year old and has had no input in his life since. His mother has a family background of trauma and dysfunction. His maternal grandfather was President of Black Power for 40 years. His mother grew up in an unhealthy and unsafe environment of alcoholism, violence, partying and abuse. Mr Dixon was removed from his mother’s care by the authorities when he was six or seven years old. He spent five years in foster care. He was traumatised by the separation. He then went to live with his grandfather. He suffers from Attention Deficit Hyperactivity Disorder (ADHD) and dropped out of school. He became more involved in the gang lifestyle and became a patched member at a young age. He has a long history of cannabis use and has little or no connection to his Māori culture.

[41]   Counsel submits that it is hard to imagine a more difficult upbringing and it is precisely this type of background that the appellate courts have recognised deserves a meaningful discount.

[42]   Mr Tahau’s upbringing was largely positive and provided him with a strong foundation. The pre-sentence report writer identified Mr Tahau’s offending factors as his violent nature and anti-social attitude shared with his two co-offenders. No pervasive and persistent social disadvantage is identified, which may provide a nexus to the offending. In those circumstances, I cannot say the Judge was wrong not to grant Mr Tahau any discount for cultural factors.

[43]   Furthermore, although another judge may have granted a 20 per cent discount to Mr Dixon for the impact his upbringing had on his current offending, the 17 per cent granted by the Judge is still a meaningful discount.

Remorse and rehabilitation

[44]   The Judge granted a discount of two per cent for remorse and a further 12 per cent for rehabilitation to Mr Tahau. According to the Judge, Mr Tahau  had acknowledged his wrongdoing and said he was sorry not just for the victims, but for himself and his whānau  as he  felt he had let  everyone down.  He also  said that   Mr Tahau’s efforts had been impressive, and he had put in some real effort.

[45]   The Judge also granted Mr Dixon a discount of seven per cent for his efforts at rehabilitation.

[46]   Counsel for Mr Tahau does not take issue with the 12 per cent discount for Mr Tahau’s rehabilitative efforts, but submits that his discount for remorse should have been five per cent rather than two per cent. Counsel submits that in granting only two per cent the Judge failed to give credit to Mr Tahau for his rehabilitative efforts and how this was demonstrative of not only his remorse, but also his insight into his offending. However, I cannot say the Judge was wrong to grant only a two per cent discount for remorse when he granted a 12 per cent discount for rehabilitative efforts, which was two per cent higher than the 10 per cent which counsel for Mr Tahau sought at sentencing. Mr Tahau received a total of 14 per cent for both remorse and rehabilitation. Counsel submits it should be 15 per cent. That would be tinkering with the sentence.

[47]   Mr Dixon did not receive a discount for remorse, but was granted a 7 per cent discount for his efforts at rehabilitation. Counsel submits he should have received a total of 10 per cent for both remorse and rehabilitation. As to remorse, the pre-sentence report writer noted:

He did not indicate remorse for the victims, advising that he did not know what happened at the time and seemed to be more aggrieved with one of the co-offenders that lied to the police over some of the events that night.

[48]   In those circumstances, the Judge was not able to consider a discount for remorse. As to  rehabilitation,  the  Fordlands  Community  Centre  has  supported Mr Dixon to obtain his drivers licence and to attend a 10 week work ready programme aimed at assisting and supporting whānau in gaining employment. In my view, these

efforts were appropriately and sufficiently recognised by the Judge in granting a seven per cent discount for rehabilitative efforts.

Guilty pleas

[49]   A major focus of the appeal is the 10 per cent discount given by the Judge for the guilty pleas entered by Mr Tahau and Mr Dixon. Both counsel submit it should have been 25 per cent, the maximum permitted by Hessell v R for pleas entered at the first reasonable opportunity when an offender can make an informed decision regarding plea.4

[50]   Counsel point to two matters which they submit meant that the morning of trial was the first reasonable opportunity for them to enter pleas. The first is the downgrading of the charge of assault with intent to rob from a 14 year maximum offence to a seven year maximum offence and clarification of their role as a party to the offence. The second is an amendment to the summary of facts relating to the aggravated robbery to make it clear it was not Mr Tahau who picked up the meat cleaver and it was unclear who did in fact pick it up and use it to threaten the complainant.

[51]   Mr Tahau and Mr Dixon were initially charged with being with each other and the co-offender assaulting the complainant with intent to rob her. This carried a maximum sentence of 14 years’ imprisonment.

[52]   The charge was downgraded by the Crown immediately before trial. The charges to which Mr Tahau and Mr Dixon pleaded guilty were charges of assaulting the complainant with intent to rob her. The aggravating element of being together with another person or persons was deleted. Reference was also made to s 66(1) of the Crimes Act 1961 to indicate that Mr Tahau and Mr Dixon were charged as parties to the offence committed by the co-offender. The lesser charge carried a maximum penalty of seven years’ imprisonment.

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[53]   This made an appreciable difference to the outcome, which the Judge appears to have failed to appreciate. Mr Tahau and Mr Dixon had earlier sought a sentence indication, which was given by Judge P W Cooper on 11 December 2020. Judge Cooper indicated that he would uplift the starting point of five and a half years’ imprisonment for the aggravated robbery by one year for the charge of assault with intent to rob with the 14 year maximum.

[54]   The co-offender subsequently pleaded guilty to aggravated robbery and assault with intent to rob with the 14 year maximum. Judge Cooper adopted a starting point of five and a half years for the aggravated robbery, which he uplifted by one year for the charge of assault with intent to rob.

[55]   Mr Tahau and Mr Dixon pleaded guilty to the lesser charge of assault with intent to rob. When it came to sentencing, the Judge only uplifted the starting point of five and a half years’ imprisonment for the aggravated robbery by six months for the assault with intent to rob. The Judge commented that:5

…it is accepted that your culpability or responsibility for that offending is less serious than that of your co-offender.

[56]   If Mr Tahau and Mr Dixon had pleaded guilty to the charge of assault with intent to rob with the higher maximum, it is likely the starting point adopted for the aggravated robbery would have been uplifted by one year rather than six months. After all, that had been the sentence indication and the approach taken in the sentencing of the co-offender.

[57]   Mr Tahau and Mr Dixon’s pleas of guilty to the amended charge of assault with intent to rob could therefore not have been made earlier.

[58]   The summary of facts was also changed. Mr Dixon was originally named as the offender who picked up the meat cleaver during the course of the aggravated robbery. I am advised that it was the co-offender who told the Police that, while the complainant described the man who picked up the meat cleaver in terms which better matched the co-offender. Mr Dixon always disputed it was him who picked up the

5      R v Dixon, above n 1, at [37].

meat cleaver. The summary was amended to say that it was unsure whether it was the co-offender or Mr Dixon who picked it up. I can therefore understand why counsel may have given advice to Mr Dixon to delay a plea until the issue was sorted out.

[59]   In all the circumstances, I am of the view that a discount of 20 per cent was appropriate for the guilty pleas, in particular, because of the material change to the uplift given for the charge of assault with intent to rob. I am not minded to grant the full 25 per cent because negotiations could have occurred much earlier or a disputed facts hearing could have been sought.

[60]   I am also aware of comments made in Hessell that where an offender has benefited from a resolution then to give a full discount on top of the benefit of a reduced charge may amount to a double benefit and not properly reflect the seriousness of the offending. Even with a 20 per cent discount, I am of the view that the end sentence does reflect the seriousness of the offending.

Time spent on EM bail

[61]   Mr Tahau  spent 14 months on EM bail prior to sentence.  Mr Dixon spent   11 months. The Judge granted discounts of five months and three months respectively. Counsel for Mr Tahau and Mr Dixon submit the discounts should have been 50 per cent of the time spent on EM bail or seven months and five and a half months respectively.

[62]   As to the rationale for taking time spent on restrictive bail into account, the Court of Appeal explained in Paora v R:6

It has long been accepted that the fact a defendant has been remanded on bail (the length of time a defendant has been on bail, the conditions of the bail and the defendant’s compliance) may affect sentence. Compliance evidences rehabilitative success or potential. And, while bail conditions are imposed for preventive reasons, a strict curfew may constrain liberty sufficiently to require recognition if the sentence is to be proportional in all the circumstances of the offence and the offender.

6      Paora v R [2021] NZCA 559 at [42].

[63]   Credit for time on restrictive bail is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case.

[64]   Mr Tahau and Mr Dixon were originally on ordinary bail. It was regularly breached. Mr Tahau also offended on bail and was later convicted of common assault committed on 27 April 2021.   EM bail was then sought for both Mr Tahau  and     Mr Dixon because of the bail breaches.

[65]   While on EM bail, Mr Tahau failed on one occasion to charge his bracelet and at the time of sentencing had not been residing at his bail address for several weeks. Mr Tahau was also permitted to attend rehabilitative courses while on EM bail, which enabled him to be granted a 12 per cent discount for his rehabilitative efforts.

[66]   Mr  Dixon’s   compliance  with  EM  bail  was  patchy.    He  breached  it  on 9 December 2021 through an unauthorised absence. He breached curfew during an agreed variation on 25 December 2021, following which he was remanded in custody until 13 January 2022. He breached his residential condition on 1 February 2022. Like Mr Tahau, Mr Dixon was permitted to attend rehabilitative courses, one of which took him away from home Monday to Friday during the day for a total of three weeks.

[67]   Although a discount of 50 per cent may have been available, I cannot say the Judge was wrong to grant discounts of 36 per cent of time served on EM bail to     Mr Tahau and 27 per cent of time served on EM bail to Mr Dixon. Their compliance was not 100 per cent and they had a measure of flexibility to attend rehabilitative courses away from their home.

Result

[68]   The appeal is allowed. The sentences of three years and two months’ imprisonment imposed on Mr Tahau and two years and nine months’ imprisonment imposed on Mr Dixon are quashed and replaced with sentences of two years and seven months’ imprisonment and two years and two months’ imprisonment. I set out the calculations:

Zion Tahau
Adjusted starting point		Six years’ imprisonment
Less discounts for personal factors
—	Youth	15 per cent
—	Remorse & rehabilitation	14 per cent
—	Guilty pleas	20 per cent
49 per cent
(Rounded up to 50 per cent)
Three years’ imprisonment
Less discount for time on EM bail		Five months
Two   years    and    seven months’ imprisonment

Rikihana Dixon
Adjusted starting point		Six years’ imprisonment
Less discounts for personal factors
—	Youth	15 per cent
Cultural factors	17 per cent
—	Rehabilitation	7 per cent
—	Guilty pleas	20 per cent
59 per cent
(Rounded up to 60 per cent)
Two     years     and     five months’ imprisonment
Less discount for time on EM bail		Three months
Two    years     and     two months’ imprisonment

Woolford J