Tamakaha v Police

[2019] NZHC 2838

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-91

[2019] NZHC 2838

IN THE MATTER

of an appeal against sentence

BETWEEN

MICHAEL JAY WILLIAM

REREWAOTERANGI TAMAKAHA
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

31 October 2019

Counsel:

B Hall for appellant

AJ Pollett and EF Collis for respondent

Judgment:

1 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 November 2019 at 4 pm

Registrar/Deputy Registrar

Date……………

Solicitors:           Pollett Legal Ltd, Rotorua To:          B Hall, Tauranga

Tamakaha v New Zealand Police [2019] NZHC 2838 [1 November 2019]

[1]    Mr Tamakaha appeals his sentence of two years, five months’ imprisonment in relation to one charge of assault with intent to injure and one charge of injuring with intent to injure.1 Both charges relate to offending against the same victim, who he has been in an on-again off-again relationship with for around 20 years.

Offending

[2]    The offending took place in two incidents; the August 2018 offending giving rise to a charge of assault with intent to injure,2 and the November 2018 offending giving rise to a charge of injuring with intent to injure.3 The Crown initially laid an additional charge of assault with a weapon in relation to the November offending, but it was not proceeded with and the charge was dismissed at sentencing.4

August offending

[3]    On the morning of 29 August 2018, Mr Tamakaha, the victim, and the victim’s seven-year-old son were at a caravan occupied by Mr Tamakaha. Mr Tamakaha and the victim had an argument regarding comments Mr Tamakaha had made to the victim’s son. During this argument, Mr Tamakaha became angry when the victim informed him she would not make him breakfast.

[4]    Mr Tamakaha grabbed the victim and punched her a couple of times in the right shoulder area using a closed fist. Although she told him to stop he proceeded to use his fingers to try and gouge her eyes, then grabbed her jaw and squeezed it. While he was squeezing her jaw, he slid his hand down and placed it on her neck.

[5]    Mr Tamakaha then told the victim to leave the address and after she picked up her belongings, grabbed her and pushed her outside. As the victim went to gather more belongings from a shed he followed her and pushed her again. As she walked out of the gate near the caravan Mr Tamakaha came at her holding a chilly bin lid in the air, although did not strike her with it.

1      R v Tamakaha [2019] NZDC 18889.

2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

3      Section 189(2). Maximum penalty five years’ imprisonment.

4      R v Tamakaha, above n 1, at [1].

[6]    The victim suffered bruising to her left eye, a sore right shoulder, and a red mark on the side of her neck.

November offending

[7]    On 19 November 2018, the victim was at Mr Tamakaha’s father’s address, where Mr Tamakaha was residing in a sleep out. She was three and a half months pregnant with Mr Tamakaha’s child at the time. An argument ensued about the victim not spending sufficient time with Mr Tamakaha.

[8]    Mr Tamakaha then pushed the victim onto the bed where she was sitting. He headbutted her, then repeatedly punched her. The victim put her hands up to protect herself and Mr Tamakaha cut her knuckle by punching her. Despite the victim’s attempts to get Mr Tamakaha to stop, he continued the assault, twisting her body, then putting his thumb in her eye and eye gouging her. As he did this, he started to choke the victim so she could not breathe. He also bit her on the left side of her neck.

[9]    When Mr Tamakaha told the victim to wash her face, she was able to run away and seek help. She was transported via ambulance to hospital. She suffered a contusion to her right eye and bruising to her eyeball, a lump on her forehead, a cut and bruising on her left hand, pain to the right side of her torso, a raised mark on her neck, and a sore jaw.

District Court decision

[10]   Judge D G Harvey took the November offending as the lead offence. He considered it fell within band two of the Nuku guidelines,5 noting the extreme violence, prolonged nature of the incident, attack to the head, and the victim’s vulnerability (and in particular that Mr Tamakaha knew she was pregnant).6 He also noted Mr Tamakaha was on bail at the time of the November offending.7 He adopted a start point of three

5      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. Counsel were agreed at the District Court sentencing that the offending fell within band two.

6      R v Tamakaha, above n 1, at [19]-[20].

7 At [23]. I note this may have been factored into the six month uplift for the August offending rather than the three year start point.

years in relation to that offending, with an uplift of six months for the August offending.

[11]   The Judge then considered personal mitigating factors. He noted a s 27 cultural report had been provided which recorded Mr Tamakaha had grown up in a violent household, which the Judge considered “has had some effect”.8 He also considered Mr Tamakaha had prospects for rehabilitation, and had been on restrictive bail conditions (although was perhaps fortunate to be granted bail after the November offending).9 He allowed an overall five month discount to reflect all these factors, a discount of approximately 12 per cent. Although not expressly provided for in the discount, I note the Judge also made reference in his sentencing notes to a letter Mr Tamakaha had written to the Court in which he finally acknowledged responsibility for the offending, and indications in the pre-sentence report that Mr Tamakaha had self-referred to rehabilitation services.10

[12]   The Judge recorded that counsel were agreed a 20 per cent guilty plea was appropriate.11 Later, he stated he was granting what he described as “a full discount” for guilty plea (which he stated he was rounding up). I note the discount in fact given, 7 months, was approximately 22 per cent. I infer he intended to award the 20 per cent agreed by counsel rather than the full 25 per cent discount available for guilty plea. This resulted in the end sentence of two years five months’ imprisonment.

Personal circumstances

[13]   Mr Tamakaha is 36 years of age. He is Māori and told the Provision of Advice to Courts (PAC) report writer he aligns to Parihaka marae, although admits his connection to both his culture and marae could be stronger. He has three children aged between 17 years and two months old, although none of his children reside with him.

8 At [27].

9 At [28].

10 At [17]. Mr Hall confirmed at the hearing before me that although Mr Tamakaha attended two sessions of the service, given his restrictive bail conditions, which impacted on his ability to earn, he could no longer afford to attend them.

11 At [24].

[14]   Mr Tamakaha has nine convictions since 2001. Of these, only two are particularly relevant, male assaults female convictions for offending in 2010 and 2017. For both convictions he received sentences of community work. This is his first sentence of imprisonment.

[15]   The PAC report assessed Mr Tamakaha as having a medium risk of reoffending, but noted his current charges indicated a severe escalation from his limited criminal history. Despite Mr Tamakaha telling the report writer the August offending was a “fabrication”, the report considered Mr Tamakaha demonstrated some insight into his offending, having identified his impulsivity and poor anger management as factors. It also records he has self-referred to Te Ara Pae Trust to seek assistance with anger issues.

[16]   The PAC report notes Mr Tamakaha has not previously been given the opportunity to engage in a rehabilitative sentence, and opines his rehabilitative needs could be met with either a community or prison-based sentence. The report ultimately recommends a sentence of home detention with special conditions to attend alcohol/drug assessments and domestic violence and anger management counselling. It notes he has strong family support and the potential to obtain employment in Taranaki, where his proposed home detention address is.

[17]   I have also read the s 27 cultural report prepared in relation to Mr Tamakaha. As the Judge noted, the  report  notes  some  family  violence,  particularly  when  Mr Tamakaha was young. His mother left a violent relationship when he was six years old. He was then raised by his father until he was 13. The report notes there was physical discipline of Mr Tamakaha and his siblings at this time, but the Judge considered that “this type of discipline was quite common, particularly in the era that you were growing up in.”12 Mr Tamakaha then went to live with his mother and step- father, with whom he has a good relationship. Mr Tamakaha has been employed most of his working life, in the farming, freezing works, or mining industries. The report notes his relationship with the victim in this case, which has been volatile. But in terms of Mr Tamakaha himself, the report generally provides a picture of someone

12     R v Tamakaha, above n 1, at [27].

who has, particularly in their earlier years, been exposed to some violence, but generally now has good social networks and whānau support.

[18]   Finally, I note Mr Tamakaha provided a letter to the sentencing Judge in which he outlines his remorse and shame for his offending. In the letter, Mr Tamakaha says he takes full accountability for what he has done and hopes to be given the opportunity to address his anger issues by attending suitable rehabilitation.

Submissions for Mr Tamakaha

[19]   Mr Hall for Mr Tamakaha submits the sentence imposed by the District Court Judge was manifestly excessive.

[20]   Mr Hall first says the start point reached on the lead charge was too high. He submits a more appropriate start point would have been at the bottom, rather than the top, of band two of Nuku. With reference to a number of authorities, he suggests a two year six month start point.13

[21]   Secondly, Mr Hall says a greater discount should have been awarded for time spent on EM  bail.  He  advises  that  between  February  2019  and  sentencing  on 20 September 2019 (some seven months), Mr Tamakaha was bailed to a remote rural property on a 24/7 curfew. This in itself, he suggests, would warrant a discount of six to eight weeks.

[22]   Third, Mr Hall submits insufficient weight was given to the factors outlined in the s 27 report, given the five month or 12 per cent discount captured not only that Mr Tamakaha’s background contributed to some extent to the offending, but also rehabilitation and time spent on very restrictive bail.

[23]   Finally, Mr Hall says a discrete discount was warranted for Mr Tamakaha’s remorse, which he says is evident in his letter to the sentencing Judge, the PAC report, and Mr Tamakaha’s self-referral to rehabilitation.

13     Kauvai v R [2017] NZCA 241; Hendra v R [2017] NZHC 1652; Lee v Police [2017] NZHC 2507.

[24]   Accordingly, Mr Hall seeks a reduction in sentence length with leave to apply for home detention. He confirms no issue is taken with the six-month uplift for the August offending, nor any issue with the guilty plea discount.

Submissions for the Crown

[25]   Ms Collis for the Crown responds that the start point on the lead charge was well within range. She notes that the Court in Nuku described band two offending as warranting a start point of up to three years’ imprisonment where there are three or fewer aggravating factors present. Here, there is no particular challenge to the Judge’s assessment there were four aggravating features (though Mr Hall did submit on appeal that not all of them ought to be given equal weight; hence it being agreed in the District Court that the offending was band two, and not band three). But Ms Collis suggests that, while the start point might be considered “somewhat stern”, it was nevertheless open to the Judge to select a start point at the top of band two, and he could have found the offending fell at the lower end of band three. She says the cases referred to by  Mr Hall are not apposite, involving offending that is less serious than Mr Tamakaha’s.

[26]   Turning to Mr Hall’s submissions regarding discounts, Ms Collis again suggests the discounts were in range. She submits limited weight can be placed on an offender’s background where the offending is serious.14 She also submits the Judge was correct to decline a separate remorse discount, given Mr Tamakaha had only recently accepted responsibility for the offending.

[27]   Ms Collis says it would have been open to the District Court Judge to impose an uplift for Mr Tamakaha’s previous male assaults female convictions, but he chose not to. She also submits that there was no additional uplift to reflect the November offending took place while Mr Tamakaha was on bail for the August offending. These are further factors, she says, that point against the overall sentence being manifestly excessive.

[28]   Ms Collis further submits that home detention is not appropriate. She highlights the offending involves serious and repeated instances of family violence,

14     Citing R v Carr [2019] NZHC 2335.

and notes the PAC report described this offending as a severe escalation of offending by Mr Tamakaha, for which he disclosed limited remorse (and in fact denied the August offending).

Jurisdiction on appeal

[29]   Appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011:

250     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[30]   An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.15 Unless there is a material error in sentence, for example, leading to a sentence that it is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.16

Evaluation

Was the start point too high?

[31]   The Court of Appeal in Nuku set the following bands for offending involving intent to injure:17

(a)    Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].

16     At [31]-[35].

17     Nuku v R, above n 5, at [38].

culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)    Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)    Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[32]   As noted, the Judge in adopting a start point of three years has adopted a start point at the very top of band two (but given the overlapping nature of the bands, it could also be categorised at the lower end of band three). Mr Hall has suggested the following cases favour a start point lower than three years:

(a)Kauvai v R:18 The victim intervened to stop Mr Kauvai making unwanted advances to a woman. In response, Mr Kauvai punched the victim in the face, then threw him to the ground and punched and kicked him multiple times. The victim fractured his jawbone and required surgery. The Court of Appeal upheld a start point of two years and 10 months’ imprisonment, and also noted this was in the context of the charge being in relation to the punching only, and not kicking.

(b)Hendra v R:19 Ms Hendra’s mother had decided she no longer wanted Ms Hendra to live with her and put her belongings outside. In response, Ms Hendra knocked her to the ground as she entered the house, then began to punch her around the head. Ms Hendra and a co-defendant then pinned the victim to the sofa and punched her again to the head. When the victim got up, Ms Hendra followed her, knocked her to the ground multiple times, then picked up the victim’s puppy and threatened to break its neck. The District Court cited the attack to the head, moderately severe violence, victim vulnerability, and multiple

18     Kauvai v R, above n 13.

19     Hendra v R, above n 13.

attackers, and also considered it aggravating that Ms Hendra’s six-year- old son was present throughout. The Judge had found the offending to fall at the top of band two of Nuku or perhaps at the bottom of band three, and adopted a start point of two years, six months. Gendall J upheld that start point.

(c)Lee v Police: 20 When Mr Lee became aware his ex-partner was in bed with another of his flatmates, he entered the room and jumped on the male flatmate, punched him, then grabbed his throat and began strangling him until it was difficult to breathe. He then bit the victim and gouged at his right eye. Mr Lee continued to bite and scratch the victim, biting him 11 times in total, until the victim was able to run and hide. Undeterred, Mr Lee collected a large carving knife, and after stabbing his ex-partner’s mattress, located the male victim on the mezzanine floor of the property. Fearing for his life, the victim jumped from the mezzanine floor, falling three and a half metres and impaling himself on a glass vase.   He suffered deep lacerations as a  result.   Mr Lee then pushed his ex-partner several times, slamming her head into a wall. The sentencing Judge had adopted a start point of three years, six months’ imprisonment. On appeal, Nation J accepted there were six aggravating factors, and also considered the seriousness and combination of them. Ultimately, and having discussed a number of comparable cases, he reduced the start point to three years.

[33]   With the exception of Lee, where a secondary victim was Mr Lee’s ex-partner, none of the cases cited by Mr Hall involve intimate partner violence. I have therefore also found the following cases involving intimate partner violence of some assistance:

(a)Wheeler v R:21 Mr Wheeler was charged with assault with intent to injure, injuring with intent to injure, and two charges of breaching a protection order. Mr Wheeler grabbed his partner by the hair and repeatedly smashed her head against the couch. Several days later,

20     Lee v Police, above n 13.

21     Wheeler v R [2019] NZHC 914.

during an argument about bill payments, Mr Wheeler grabbed his partner by the throat and threw her onto the bed. He told her he could kill her, then released her throat and covered her mouth and nose so she could not breathe. The same day he punched her to the right eye. At the time of sentencing, Mr Wheeler had amassed four earlier convictions for assault on the same victim, as well as breach of the protection order. Toogood J upheld a start point of two years, six months for the violence charges as “well available” to the District Court Judge, and noted that Parliament has placed particular importance on condemning strangulation as part of family violence.22

(b)Goodman v R:23 Mr Goodman was convicted of assault with intent to injure and male assaults female. He had grabbed his partner around the throat and threw her across the room (the assault with intent). He then pushed her outside. On the porch he pushed her, then kicked her with such force she fell to the ground. The victim had a cut to the forehead, redness, and soreness. The District Court Judge took a start point of two years on the assault with intent, with an uplift of 12 months for the male assaults female charge. After adjustments for totality, the start point for all the offending was two years, four months’ imprisonment. The Court of Appeal upheld the start point, agreeing it was a serious assault involving attacks to the head and neck and would have been frightening.

(c)Toko v R:24 Mr Toko was charged with injuring with intent to injure, threatening to kill, and four counts of male assaults female. He punched his partner in the face, then several hours later, while in the car, he again punched her five times to the head/face. Once home, he punched her to the head/face numerous times until she lost consciousness. He then slammed the car door into the back of her head and neck, kicked her in her face, and pushed a lit cigarette into her throat (the cigarette giving

22     At [32]-[34].

23     Goodman v R [2016] NZCA 64.

24     Toko v R [2017] NZCA 460.

rise to the injuring with intent charge), before telling her he would kill her. The District Court took a two year, nine month start point on all assault charges, uplifted by seven months for the threat to kill. The Court of Appeal noted that “prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band 3, even if there are few other aggravating features”, concluding the start point was “well within the available range”.25

(d)Thompson v Police:26 Mr Thompson was charged with injuring with intent to injure and breaches of a protection order. Mr Thompson’s partner came to his house to collect things. He approached her in a way that made her think she was in danger, so she ran away but came back a short time later. This pattern continued during which Mr Thompson punched a hole in a bedroom door. The victim then left the house pursued by Mr Thompson. He picked up a wooden chair, chased the victim around a car, then struck her to the back of the head. She fell face forward onto concrete, suffered injuries to her face, and had to be hospitalised overnight. The start point of two years in relation to the violence offending was upheld by Simon France J who described the offending as a “shameful attack”, and that the attack to the back of the head with a chair carried real risks.

[34]   Looking at Mr Tamakaha’s offending, I concur with the Judge that it sits near the top of band two and bottom of band three. It involves extreme violence, was prolonged, involved attacking the head and a vulnerable victim. With regard to the comments made by Toogood J in Wheeler as to the seriousness Parliament has recently placed upon strangulation, I also consider it significant the offending involved choking.

[35]   However, having regard to the cases discussed above, I consider a three year start point on the November offending, before any uplift for the August offending, was too high.

25     At [23]-[24].

26     Thompson v Police [2017] NZHC 3039.

[36]   I consider the offending in Toko, which attracted a two year nine month start point, involved more serious and extended violence (which caused the victim to lose consciousness) than the present offending. That two year nine month figure also encapsulated the four male assaults female charges. I consider the offending has some similarity to Wheeler, given both involved attacks to the head and choking. I accept that the violence meted out in the present case appears to be slightly more serious than that in Wheeler, but note that the two year six month start point in that case captured two incidents of violence several days apart (which gave rise to two charges).

[37]   Given this, in my view a start point of two years six months on the injuring with intent charge is appropriate. As noted, there is no issue raised on the appeal with the six month uplift to reflect the August offending, which I agree was well open to the Judge. This produces a start point before discounts of three years.

[38]   Ms Collis noted that the November offending occurred while Mr Tamakaha was on bail for the August offending, yet no uplift was given for this. But the Judge was plainly aware of this and specifically mentioned the need to recognise that in his sentencing.27 Accordingly, this was clearly factored in by the Judge in the start point adopted or the uplift, and I do not consider any separate adjustment is required to the start point I have adopted. Ms Collis also noted there was no uplift for Mr Tamakaha’s earlier violence convictions. However, she agreed, rightly in my view, that these are clearly of a different scale and type of offending to the present offending, attracting sentences of community work only, and in the most recent case, of only 40 hours. I do not consider a further uplift for these matters to be warranted.

Discounts for personal mitigating factors?

[39]   As noted above, the Judge gave a global five month discount to encapsulate Mr Tamakaha’s personal circumstances (as set out in the s 27 report), prospects of rehabilitation and time spent on restrictive bail conditions. Mr Hall says a greater overall discount was called for. He also submits that a discrete discount for remorse was warranted.

27     R v Tamakaha, above n 1, at [23].

[40]   As a preliminary point, I do not consider the Judge erred in not providing a discrete discount for remorse, over and above that encapsulated in the guilty plea. I accept Ms Collis’s submission that the PAC report does not provide a good basis for such a discount, given Mr Tamakaha told the report writer the August offending was entirely fabricated. Despite the letter provided to the Judge at sentencing, I do not consider this is a case where a separate remorse discount is called for.

[41]   Turning to the time Mr Tamakaha spent on restrictive bail conditions (seven months on a 24/7 curfew), the Court of Appeal has confirmed that there is no fixed approach to calculating discounts for time spent on EM bail. Instead, “judges in the process of exercising their sentencing discretion will provide for some modest discount under this head.”28 The Court in Keown provided a survey of discounts awarded:29

In Tamou, the appellant had spent nine months on electronic monitored bail. The sentencing Judge made no allowance. This Court reduced the sentence by three months to allow for that factor. In R v Gray, the appellant had been subject to a curfew and other stringent conditions of bail for about two years and nine months. This Court held that the sentencing Judge's allowance of three months for this factor could not be challenged. In R v Aram, a one year discount to reflect about 18 months on bail conditions which the Judge described as “fairly restrictive” was upheld by this Court. In R v Latifi, a two year discount for an offer of assistance, remorse, existence of restrictive bail conditions, and ill health was upheld. In R v Nichols and Piggott, the Court noted that while the appellant there faced significant restrictions he was in the comfort of his own home with his family and with the freedom to move around his farm day and night. That was not seen as justifying any interference with the sentence imposed by the sentencing Judge. In R v Faisandier, the appellant had been confined to her home for 24 hours a day for ten and a half months. A deduction of six months by the sentencing Judge was increased to 12 months by this Court.

[42]   More recently, the Court of Appeal upheld a four month credit for 10 months spent on EM bail in Parata v R, but noted a higher figure would not necessarily be wrong.30

[43]   The above demonstrates there is a relatively broad degree of variance in the scale of discounts awarded. However, even assuming a discount at the lower end of

28     Rangi v R [2014] NZCA 524 at [10].

29     Keown v R [2010] NZCA 492 at [14].

30     Parata v R [2017] NZCA 48 at [15].

the range discussed in the excerpt above, I accept Mr Hall’s submission that a discount of around eight weeks, possibly more, was warranted for the seven months on a 24/7 curfew. I accordingly consider a two month discount for this factor would have been appropriate (and a slightly higher figure would not have been in error).

[44]   Turning to discounts for personal circumstances and rehabilitation prospects, I agree  with  the  Judge  that  some   discount   was   warranted   for   factors   from Mr Tamakaha’s past which appear to have contributed to his offending. But in my view, a very significant discount is not warranted. Mr Tamakaha has generally had a fairly stable and pro-social upbringing. He has had continued employment throughout his working life. I accept that Mr Tamakaha has relatively good prospects of rehabilitation.

[45]   Taking all these matters together, I consider a six month discount was warranted.

[46]This brings the sentence to two years and six months’ imprisonment.

[47]   The Judge accepted counsel’s recommendation of a 20 per cent discount for a guilty plea (but with rounding, actually adopted a 22 per cent discount). No issue with that is taken on appeal. Adopting a 20 per cent discount (rather than 22 per cent) brings Mr Tamakaha’s sentence to one of 24 months, or two years’ imprisonment.

[48]   This brings the sentence to a level where home detention can be considered. In my view, and subject to a suitable home detention address being available, this would be an appropriate outcome and consistent with the principles to be taken into account on sentencing in this case. A useful summary of the principles concerning home detention were set out in Brittin v Police.31 Home detention is itself a severe sentence, which carries with it in considerable measure the principles of deterrence and denunciation. Mr Tamakaha has spent several months on very restrictive bail conditions and now also some time in custody. Particularly given his lack of any significant prior offending of the type for which he has now been convicted (despite his age of being in his late 30’s), there is hope that with appropriate rehabilitation this

31     Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].

sudden escalation in the nature of  Mr  Tamakaha’s  offending  will  not  continue. Mr Tamakaha will be under no illusion of the sentencing options for any further offending of this nature. He has displayed a willingness to engage in rehabilitative measures and has whānau and other support to assist him in that. It would be my firm recommendation that were Mr Tamakaha to be placed on home detention, he engage in suitable anger management and domestic violence programmes.

Result

[49]   The appeal is allowed. The sentence of two years five months’ imprisonment is quashed, and replaced with a sentence of two years’ imprisonment, with leave to apply for cancellation of this sentence and substitution of a sentence of home detention.32

Fitzgerald J

32     Sentencing Act 2002, s 80K.