Tawhiti v The Queen
[2021] NZHC 3178
•25 November 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-463-131
[2021] NZHC 3178
BETWEEN NICOLA HINEWAI TAWHITI
Appellant
AND
THE QUEEN
Respondent
Hearing: 25 November 2021 Appearances:
A Hill for Appellant
L Evans for Respondent
Judgment:
25 November 2021
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 25 November 2021 at 2 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Tauranga
TAWHITI v R [2021] NZHC 3178 [25 November 2021]
[1] Ms Tawhiti pleaded guilty to charges of wounding with intent to injure, assault, threatening to kill and attempting to pervert the course of justice. On 20 October 2021 Judge P W Cooper sentenced her to one year seven months imprisonment.1 He directed that Ms Tawhiti was to serve the sentence without release in whole because it was a “second strike” offence.
[2] Ms Tawhiti appeals against sentence on the basis that the Judge ought to have sentenced her to home detention at the Grace Foundation to enable her to address her longstanding and complex rehabilitative needs.
The charges
[3] The charges related to a violent attack by Ms Tawhiti’ on her partner, with whom she had been in a relationship for approximately 12 months. On 15 December 2020 she and her partner arrived at a caravan park in Rotorua. Shortly after arriving Ms Tawhiti became angry at her partner. Whilst they were still in their vehicle she punched him once on the left cheek with a closed fist. She then stabbed him in the left hand side of the chest using a knife with a 7.5 centimetre blade and a finely serrated edge. Her partner then got out of the vehicle and sought help from people nearby.
[4] Two of these people approached Ms Tawhiti and tried to calm her down. She continued to shout and appeared to be very angry. She pulled out the knife and threatened to stab everyone in the vicinity. She also began pointing the knife at the two people who had approached her. Ms Tawhiti continued to threaten to stab both these people and others in the park.
[5] Not surprisingly, the police were called. When Ms Tawhiti heard sirens approaching she ran back to her partner and said she was going to “stab him some more”. She was ultimately disarmed after the police arrived and used a taser to subdue her. Fortunately the wound to her partner’s chest did not produce serious consequences.
1 R v Tawhiti [2021] NZDC 20900.
[6] In late January 2021 Ms Tawhiti sent a letter to her partner in which she claimed that he had stabbed himself in order to stop her from informing the authorities that he was a paedophile and a predator. She asked her partner to “tell the truth” and said he would only get a sentence of community service or probation for making a false statement. Commendably, Ms Tawhiti’s partner handed the letter to the police. This led to Ms Tawhiti being charged with attempting to pervert the course of justice.
The sentence
[7] The sentencing process involved the Judge giving Ms Tawhiti a sentence indication on 3 September 2021. She then entered guilty pleas in reliance on that indication.
[8] The Judge took a starting point of two years three months imprisonment on the lead charge of wounding with intent to injure. He added an uplift of eight months to reflect the remaining charges. He then increased the sentence by one month to reflect the fact that the offending had occurred whilst Ms Tawhiti was subject to a sentence of intensive supervision. This produced a sentence of three years imprisonment.
[9] The Judge did not apply an uplift to reflect Ms Tawhiti’s previous conviction for violence that had led to the first strike warning. He applied a reduction of 25 per cent to reflect guilty pleas and applied a further reduction of 20 per cent, or eight months, to reflect factors identified in a cultural report tendered under s 27 of the Sentencing Act 2000. This produced the end sentence of 19 months imprisonment.
[10]The Judge dealt with the issue of home detention as follows:2
[5] I want to talk now about whether the case should be one where the Court could impose a sentence of home detention instead of that 19 months. The s 27 report echoes what the psychological report says and also what is in the pre-sentence report. You have had an appalling early life. Violence and substance abuse were embedded behaviours. It says that you have been a heavy drug user since the age of 16. It talks about the work that you have been involved in and ultimately the disastrous effects that work has had on your mental health.
[6] The pre-sentence report says that you are unlikely to comply with any community-based sentence. It says that you are at high risk of further violent
2 R v Tawhiti [2021] NZDC 20900
offending and it notes that this offence is the third time you have stabbed a partner. The strong view of the Corrections officers who have dealt with you over the years, and the view of those involved in managing your situation in custody, is that the best chance that you have of addressing the complex needs that you have is in prison rather than in the community, and it is noted that last time you were at the Grace Foundation on electronically-monitored bail, you absconded.
[7] I have seen a victim impact report which sayes that the victim wants you to get help. He says he re-lives that knife going into his chest, he says that it was a frightening experience and he still feels scared, but he does not think that prison is the place for you and he does not want to see you go to jail.
[8] I cannot ignore the views of the very experienced probation officers who have assessed your case. Their view that the best chance of having your complex needs addressed is in prison, not the community, is borne out by your performance in the community when you have been given chances to address these matters. In addition to that, the Grace Foundation, where you hope to serve an electronically-monitored sentence, is not able to take you with the present COVID-19 restrictions. So, I am not prepared to grant you an electronically-monitored sentence of home detention.
[9] You will be sentenced to 19 months imprisonment. As this is your second strike, I direct that that sentence be served without release in whole.
The appeal
[11] Mr Hill acknowledges that Ms Tawhiti has a poor history of compliance with community-based sentences. He also acknowledges she had been granted EM bail to the Grace Foundation on the present charges and then absconded. Mr Hill responsibly accepts that these transgressions would justifiably leave the Court concerned about her ability to comply with a sentence of home detention.
[12] Despite this, Mr Hill submits that Ms Tawhiti should be given one last chance. He says that, at the age of 39 years, Ms Tawhiti is now determined to rehabilitate herself for her long-term benefit. Ms Tawhiti echoes these submissions in a letter she has written to the Court.
[13] Mr Hill points out that the Grace Foundation would provide a structured and supportive environment in which Ms Tawhiti’s varied rehabilitative needs can properly be met. It has tight security arrangements and Ms Tawhiti will be well aware that any transgression would inevitably result in her being sent back to prison. He says a bed remains available at the Grace Foundation on the condition that Ms Tawhiti is doubled-vaccinated.
Decision
[14] A decision whether to convert a short term of imprisonment to a sentence of home detention involves the exercise of a judicial discretion fettered only by the purposes and principles contained in the Sentencing Act 2002. This means an appellate court may only interfere where the sentence has erred in principle by taking into account irrelevant considerations or failing to take into account relevant considerations. Intervention may also be justified where the decision in question is plainly wrong.
[15] There has been a change of circumstances since sentencing to the extent that a placement with the Grace Foundation is now available when that was not the case at the time of sentencing. However, the passage set out above demonstrates that the Judge did not base his decision on the unavailability of a placement. Rather, he considered he could not ignore the views of very experienced probation officers who viewed a sentence of imprisonment as being Ms Tawhiti’s best opportunity to have her complex rehabilitative needs addressed.
[16] I do not consider the Judge erred in taking this factor into account because it directly addressed Ms Tawhiti’s rehabilitative needs. These were plainly relevant to the question of whether a sentence of home detention was appropriate. Furthermore, the fact that Ms Tawhai had removed her electronic bracelet and absconded when she had earlier been remanded on EM bail to the Grace Foundation means a sentence of home detention to be served at that facility was unlikely to be a viable option. It follows that the Judge did not err in declining to convert the sentence of imprisonment to one of home detention.
Result
[17]The appeal against sentence is dismissed.
Lang J
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