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…
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- Case
- [2023] NZHC 2077
- Decision Date
CaseChat Overview and Summary
The central issue in this appeal was whether the District Court erred in not imposing a sentence of home detention instead of imprisonment. Tavai's counsel argued that the imprisonment undermined his client's rehabilitative efforts, and that home detention was the appropriate sentence. On the other hand, the respondent argued that imprisonment was necessary to protect the victim, ensure Tavai's rehabilitation, and denounce the offending.
The High Court found that the District Court judge had reasonably balanced the need for rehabilitation and protection of the victim. The Court held that Tavai's history of violence and drug use made it necessary for him to be in a structured environment to address his issues effectively. The Court also noted that Tavai's history of resuming his troubled relationship with the victim, despite court intervention, made it difficult to trust his promise of compliance with a non-association clause. The appeal was declined as the High Court was not satisfied that the District Court judge had erred in determining that imprisonment was the least restrictive sentence.
The High Court declined the appeal, upholding the District Court's decision to sentence Tavai to imprisonment for 21 months.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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