Tavai v Police
[2023] NZHC 2077
•7 August 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-108
[2023] NZHC 2077
BETWEEN DYLAN TYSON AMATAGA TAVAI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 August 2023 Appearances:
J M Campbell for Appellant
G E R Alloway for Respondent
Judgment:
7 August 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 August 2023 at 10.40 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
TAVAI v NEW ZEALAND POLICE [2023] NZHC 2077 [7 August 2023]
Introduction
[1] Dylan Tavai was sentenced to 21 months’ imprisonment in the District Court on 13 June 20231 on a charge of impeding breathing2 and a charge of breaching a protection order.3 He appeals his sentence of imprisonment, saying that, in all the circumstances, a sentence of home detention was the least restrictive sentence that was appropriate.
Facts
[2] Mr Tavai and his partner, the victim in this case, have been in a relationship for around 14 years and have several children between them, though these children are not currently in their care. There has been a protection order in place in favour of the victim since 2009.
[3] In early December 2022, an argument developed between Mr Tavai and the victim. It continued over the course of the night and, the next morning, Mr Tavai threatened to shoot himself if the victim left the address as she intended.
[4] During the escalating argument, Mr Tavai stood in front of the victim and twice placed his hands around her throat. The second time, he applied sufficient pressure to the front of her throat such that she could not breathe.
District Court decision
[5] The Judge, in setting the starting point, noted the particular harm associated with strangulation offending, especially the psychological harm. She considered the victim to have been a vulnerable person, and the offending to have been aggravated by virtue of the violence used against her in the past by Mr Tavai.
[6] A starting point of 24 months was adopted. An uplift of four months was applied to reflect the breach of the protection order.
1 New Zealand Police v Tavai [2023] NZDC 12004.
2 Crimes Act 1961, s 189A; maximum penalty 7 years’ imprisonment.
3 Family Violence Act 2018, s 112; maximum penalty 3 years’ imprisonment.
[7] The Judge referred to Mr Tavai’s recognition that violence and drug use were problematic aspects of his relationship. In particular, he struggled with methamphetamine abuse. The Judge congratulated Mr Tavai on engaging with a Salvation Army addiction service.
[8] The Judge allowed a discount of 20 per cent for Mr Tavai’s guilty pleas and five per cent for his rehabilitative efforts. The 28-month sentence was therefore reduced to 21 months.
[9] Turning to whether home detention should be imposed, the Judge acknowledged Mr Tavai should have the least restrictive sentence possible and one which facilitated his rehabilitation. Against this, the sentence needed to make clear the offending was unacceptable while also protecting the victim.
[10] The Judge concluded home detention was insufficient to break the cycle of drug-use and violence. Leave was reserved to apply for home detention to a residential programme.
Submissions
Appellant’s submissions
[11] Mrs Campbell, for Mr Tavai, submits the Judge erred in not arriving at a sentence of home detention. As Mr Tavai lost his address due to his imprisonment, Mrs Campbell seeks that leave be granted to apply for home detention (without the residential rehabilitation prerequisite) to allow for an appropriate address to be organised. Mr Tavai’s parents, who attended the appeal hearing, were prepared to offer their home as an address.
[12] She submits home detention is the least restrictive available sentence, and there are not grounds for instead imposing a sentence of imprisonment. She notes the pre-sentence report recommended a sentence of home detention; the report writer noted Mr Tavai’s willingness to engage with the treatment and risk management pathway he himself had identified.
[13] Mrs Campbell also notes that Mr Tavai engaged with the Salvation Army on his own volition, and with a view to attending and completing residential treatment. Mr Tavai also spoke with He Waka Tapu in relation to a stopping violence course, sought additional community support from Aviva, and recognised a non-association condition with his partner may be appropriate.
[14] Mrs Campbell argues imprisonment undermined these rehabilitative efforts. Mr Tavai lost his address and access to the Salvation Army’s residential program. There has been no alcohol and drug assessment of Mr Tavai, and he has only this week had any contact with his case manager. He will still need to overcome the significant waitlists for residential rehabilitation programs. Meanwhile, in prison he has not had access to any courses yet due to being in isolation as a result of threats to personal safety.
[15] Mrs Campbell submits the Judge overstated Mr Tavai’s cycle of violence and what was required to protect the victim. His most recent conviction for violence against his partner was from 2017, and there were no further allegations of violence between the current offending and sentencing.
[16] Finally, Mrs Campbell notes that if the Judge wished to explore the appropriateness of residential rehabilitation, s 25 of the Sentencing Act could have been utilised which allows a Judge to adjourn sentencing for enquiries into the most suitable method of dealing with the case or to allow a rehabilitation programme to be undertaken.
Respondent’s submissions
[17] Mr Alloway, for the respondent, submits the Judge addressed the key considerations, being the need to protect the victim from further offending (particularly when a protection order failed to do so), rehabilitation, and denunciation. Under s 16 of the Sentencing Act, the Judge was required to balance these factors and did not need to prioritise Mr Tavai’s rehabilitative needs.
[18] Mr Alloway highlights that methamphetamine was a feature of the offending with Mr Tavai acknowledging having used it during the four days prior to the incident.
Where addiction underlies criminal offending, home detention may be inappropriate. He cites Sands v Police, where the High Court made the point that substance abuse cannot be as well monitored in the home, and rehabilitative facilities may be better.4 It was open to the Judge to conclude Mr Tavai’s methamphetamine addiction would be better addressed in a structured environment.
[19] In respect of denunciation, Mr Alloway submits the offending was serious, involving strangulation, and was more serious than the 2017 offending against the same victim for which Mr Tavai served a sentence of home detention. Given the escalation of offending, the Judge did not err in concluding home detention was insufficient to denounce the offending.
[20] Mr Alloway argues no error arose from the Judge failing to adjourn proceedings under s 25. He cites Zhang v R for the point that s 25 is directed towards allowing the offender to complete residential treatment, rather than allowing counsel to find an available treatment facility for the purposes of home detention.5 A more detailed plan is necessary.
Analysis
[21] Mr Tavai has advanced a focused appeal concerned only with the decision to sentence him to imprisonment with leave to apply for home detention provided it is to a residential rehabilitation program.
[22] The approach on an appeal on such grounds is that of standard appellate review as laid out in the decisions of Palmer and Tutakangahau.6 The appeal proceeds by way of rehearing, and the onus is on the appellant to identify the part of the judgment said to be in error. Because of the array of considerations requiring evaluation, a significant margin of appreciation is often extended to the sentencing Judge on appeal.7
4 Sands v Police [2018] NZHC 3048.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [181].
6 Palmer v R [2016] NZCA 541 at [18]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
7 Twomey v R [2018] NZCA 206 at [13].
[23]In Fairbrother v R, the Court of Appeal stated:8
[30] … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…
(footnote omitted)
[24] A sentencing judge may have regard to the need to assist in the offender’s rehabilitation and reintegration into the community.9 As the Court of Appeal noted in R v Hill:10
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[25] Mr Tavai, as recognised by Judge Duggan, has taken ownership of his offending and made efforts to address a relevant cause, namely his drug use. His engagement with Salvation Army rehabilitative services is promising. A letter from Susan Lumb, a coordinator for the Salvation Army Bridge program Mr Tavai participated in, spoke of him as an active member with identified goals of drug abstinence who worked positively to develop relapse prevention skills and was motivated and committed. While statements of willingness to engage with He Waka Tapu services and Aviva support can only take him so far, they do reinforce what appear to be genuine efforts at rehabilitation. That said, the pre-sentence report recorded that Mr Tavai would require support to become drug free.
[26] The Judge, in my view, reasonably balanced the need to give Mr Tavai the opportunity to rehabilitate, but in an environment where he would be supported to do so while avoiding the risk of violence to his partner.
8 Fairbrother v R [2013] NZCA 340.
9 Sentencing Act 2002, s 7(1)(h).
10 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].
[27]That conclusion was succinctly captured in the Judge’s observation that:11
I am not satisfied, with your history, that there is any other way to break the cycle of using drugs and being violent and that is why residential rehabilitation needs to happen.
[28] While Mrs Campbell advised that the relationship with his former partner is now over, and Mr Tavai would be happy to comply with a non-association clause, it is difficult to have confidence in that statement given the long history this couple has of resuming their troubled relationship and being the subject of family violence incidents. Furthermore, this offending has occurred despite Court intervention including the issue of a protection order. The Family Violence Bail Report shows a regular record of family violence incidents between the couple since they first got together, and continuing after the 2017 incident.
[29] It is also unclear to me just what support Mr Tavai would have if he were to be granted home detention now. While Mrs Campbell suggests he could pick up where he left off on the Salvation Army Bridge programme, that is simply her understanding. I would need to have confidence that he could immediately resume a very structured rehabilitative programme on release from prison, but Mrs Campbell’s submissions assert he has lost any position in respect of the residential programme he had been working towards.
[30] For all these reasons, while the matter was finely balanced, I am not satisfied that the Judge erred when determining that prison was the least restrictive sentence that it was appropriate to impose taking into account the relevant purposes of sentencing.
Conclusion
[31]Accordingly, the appeal is declined.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
J Campbell, Barrister, Christchurch
11 At [21].
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