Taylor-Rountree v The King
[2024] NZHC 2340
•21 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000040
[2024] NZHC 2340
BETWEEN DARCY JASON TAYLOR-ROUNTREE
Appellant
AND
THE KING
Respondent
Hearing: 20 August 2024 Counsel:
R M Gould for Appellant M A Heslip for Respondent
Judgment:
21 August 2024
JUDGMENT OF LA HOOD J
(Appeal against Sentence)
Introduction and summary
[1] Darcy Taylor-Rountree, aged 27, appeals against his sentence of 26 months’ imprisonment imposed on 12 April 2024,1 on charges of injuring with intent to injure,2 and injuring with intent to cause grievous bodily harm.3
[2] I allow the appeal on the basis that there is a material error in the sentence imposed that has come to light on appeal with the admission of a psychological report detailing Mr Taylor-Rountree’s diagnosed mental disorder that materially contributed to his offending. Overall credit for personal mitigating circumstances should be 30 per cent, resulting in an end sentence of one year and 11 months’ imprisonment.
1 R v Taylor-Rountree [2024] NZDC 8163 [Sentencing decision].
2 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
3 Crimes Act, s 189(1); maximum penalty 10 years’ imprisonment.
TAYLOR-ROUNTREE v R [2024] NZHC 2340 [21 August 2024]
The principles of rehabilitation and reintegration, and community protection, are best served by a non-custodial sentence in Mr Taylor-Rountree’s particular circumstances. Nine months’ home detention is the least restrictive sentence appropriate, with special post-detention conditions requiring attendance at counselling.
Background
[3] I previously outlined the background to this matter in my reasons for allowing Mr Taylor-Rountree’s appeal against the refusal to grant bail pending this sentence appeal on 23 May 2024 as follows:4
The offending
[3] Mr Taylor-Rountree’s offending occurred at around 9:20pm on Saturday 29 October 2022. The two male victims had been to a restaurant and were waiting on the street for an Uber. Mr Taylor-Rountree and his partner were walking down the street. There was a verbal confrontation. It seems it started because Mr Taylor-Rountree and his partner were arguing and a comment was made by one of the victims along the lines that Mr Taylor- Rountree was “in trouble”. Following an exchange between one of the victims and Mr Taylor-Rountree’s partner, Mr Taylor Rountree reacted by punching the first victim in the head, causing him to fall to the ground where his leg lay over the roadside curb. As he was lying in that position, Mr Taylor-Rountree lifted up his leg and stomped hard on the victim’s shin bone causing the bone to break in two places. When the victim tried to stand up the damage was such that the broken bone pierced his skin. Mr Taylor-Rountree then turned to the second victim, hitting him in the head with a closed fist, causing him to spin and fall to the ground. The second victim received a four-centimetre gash on his head and was knocked unconscious for at least 30 seconds. Both victims required hospital treatment.
The sentencing indication
[4] Mr Taylor-Rountree sought a sentencing indication on 26 June 2023.5 The Judge indicated that a starting point on the more serious charge attracted a starting point of four years, applying R v Taueki,6 and an uplift of one year was required to reflect the second charge, applying Nuku v R.7 The Judge indicated a reduction of 25 per cent for guilty plea was available, and potentially credit for other factors.8 The Judge did not firmly indicate whether a short-term sentence would result, nor whether a non-custodial sentence would be available,9 but noted that serious street violence generally results in
4 Taylor-Rountree v R [2024] NZHC 1318. Prior to this decision Mr Taylor-Rountree spent six weeks in custody serving sentence.
5 R v Taylor-Rountree DC Wellington CRI-2023-085-418 [Sentencing indication].
6 R v Taueki [2005] 3 NZLR 372 (CA).
7 At [22]–[23]; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
8 At [24] and [27].
9 At [25].
prison,10 and “[w]hether that can change would depend on what other information I could get that provides some explanation and some assurance this would never happen again … if you wanted to move the needle away from prison, then there is going to have to be something pretty dramatic and significant happen”.11
[5] Mr Taylor-Rountree accepted the sentence indication and pleaded guilty to the two charges.
Final decision on sentencing
[6] At the finalisation of Mr Taylor-Rountree’s sentence on 12 April 2024, the Judge considered Mr Taylor-Rountree’s personal background and circumstances with the benefit of a pre-sentence report and cultural report. From the starting point of five years, the Judge gave credit of approximately
56.5 per cent, made up of 25 per cent for guilty plea, 12.5 per cent for cultural background, 12.5 per cent for youth, good character, family support, work ethic and Mr Taylor-Rountree starting to confront counselling and rehabilitation, and 6.67 per cent for the impact of removing Mr Taylor- Rountree from his young whānau. This brought the sentence down to 26 months’ imprisonment.
Approach on appeal
[4] The Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed.12 The appellant must show a material error was made and that a different sentence ought to be imposed.13 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.14 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”15
[5]As noted in Johnson v New Zealand Police the error principle recognises:16
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important
10 At [29].
11 At [27]–[29]. His Honour was referring to the possibility that personal circumstances, youth may be factored in, but that tendering an explanation for the unexplained violence would go a long way further. An offer of restorative justice was suggested.
12 Criminal Procedure Act 2011, s 250.
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
14 At [30]–[36].
15 At [30] and [35].
16 Johnson v New Zealand Police [2023] NZHC 3748 at [6].
to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
The parties’ positions
For Mr Taylor-Rountree
[6]Mr Taylor-Rountree appeals the sentence on two grounds, namely that:
(a)Insufficient credit was given for his personal mitigating factors. Ms Gould submits that a greater discount for the matters in the cultural report was warranted and further reduction for the impact on his family should be considered.
(b)Insufficient material explanatory of the offending was put to the Judge. Ms Gould submits that the new psychological report provides a fuller picture of the appellant’s circumstances, and calls for a therapeutic sentence.
[7] Mr Taylor-Rountree has three children – a three-month-old new-born with his current partner, and two children aged 12 and six who he has care of on weekends. He is currently attending anger management and drug and alcohol counselling. Mr Taylor-Rountree is employed as an arborist, with weekday shifts from 6:30am– 4:00pm and with Saturday shifts available to him. His employer describes him as diligent and reliable. He has a number of glowing references as to his character from colleagues, friends, and family. Mr Taylor-Rountree acknowledges the physical and emotional suffering he has caused and has offered to pay $500 by way of emotional harm reparation to each victim, but they do not want to receive emotional harm reparation.
[8] Ms Gould submits that a sentence of home detention is the least restrictive outcome available in the circumstances.17
17 Ms Gould initially suggested that a sentence of community detention and intensive supervision is appropriate to minimise disruption to Mr Taylor-Rountree’s work and family commitments, but responsibly accepted at the hearing that this was not realistic given the seriousness of the offending.
For the Crown
[9] The Crown opposes the admission of a psychological report as fresh evidence on appeal and opposes the substantive appeal on the basis that there was no error in the sentence the District Court imposed.
[10] In terms of discounts reflecting Mr Taylor-Rountree’s exposure to family violence and trauma, the Crown submits that 12.5 per cent was comfortably within the range available, and his circumstances were not at the upper end of systematic deprivation and abuse that warrants an exceptional discount at the higher end. The Crown submits that even if the psychological report had been available, there would have been no error in the Judge deciding to impose a custodial sentence on the appellant despite that information. The Crown submits that the extent of the credit given for personal mitigating factors was open to the Judge in circumstances where the sentencing was subject to significant adjournments, during which time the appellant made little progress in addressing his offending through counselling and did not provide the Court with the explanations called for or assurances that it would not happen again.
[11] As to the impact on Mr Taylor-Rountree’s children, the Crown submits that the four-month (6.67 per cent) credit given was sufficient in circumstances where there was no evidence beyond the generic impacts of imprisonment on children, distinguishing the case of Philip v R.18
[12] The Crown notes that the victims do not wish to receive reparation, and that in any case, limited credit can be given for an offer to pay reparations on the subsequent appeal rather than at sentencing.
Assessment of arguments and decision
Fresh evidence
[13] There is a preliminary issue regarding whether the psychological report should be admitted as fresh evidence. For admission on appeal, the evidence must generally
18 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [15] and [48].
be fresh, credible and cogent. The overriding consideration is whether the evidence should be admitted in the interests of justice.19
[14] I accept the Crown submission that the evidence is not “fresh” as the information could have been adduced at sentencing. The explanation for the failure to do so appears to be that it did not occur to previous counsel to obtain one. I accept the Crown submission that there were generous periods of adjournment prior to sentencing, and indications of the importance of this type of information.20 However, I also consider that a psychological report is not likely to be obtained unless it is arranged and driven by counsel.
[15] The Crown further submits that the report is not particularly cogent on the basis that the Judge was aware of, and considered in giving credit, the appellant’s history of witnessing trauma, its impact on the appellant generally, and its likely link to the offending.
[16] I have necessarily considered the content of the psychological report to determine whether it should be admitted on appeal. I consider it goes some way further than the information previously apparent in the pre-sentence and cultural reports available to the Judge in the sense of explaining the defendant’s offending. It includes a diagnosis for Post Traumatic Stress Disorder (PTSD) and provides clarity in terms of what needs to occur for the appellant to address the underlying causes of his offending (intensive therapy in addition to the anger management and alcohol and drug counselling he is currently engaged in). These matters are directly relevant to the purposes of sentencing, particularly the purposes of community protection, and rehabilitation and reintegration.21 Neither of these matters were squarely before the
19 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].
20 The sentence indication was given on 26 June 2023, and was accepted by Mr Taylor-Rountree on 29 June 2023. Sentencing was initially set down for 25 August 2023, but did not proceed that day due to a reassignment of defence counsel within the Public Defence Service notified to the Court on 18 August 2023. At this stage, the PAC report was also incomplete, and information on counselling, employment, and family matters had not been prepared. After an adjournment, a monitoring hearing on 7 September 2023 resulted in the matter being scheduled into the callover list on 12 December 2023 when the matter was set down for 12 April 2024 due to the Judge being on extended leave.
21 Sentencing Act, s 7(1)(g)–(h).
Judge, and despite the unsatisfactory failure to adduce the evidence in the District Court, I consider it is in the interests of justice to admit it.22
Substantive appeal
[17] I consider any underlying factual dispute about the circumstances of the alleged offending must be put to one side for the purposes of this appeal. The sentence was imposed on the basis of Mr Taylor-Rountree’s guilty plea to an agreed summary of facts (a necessary pre-condition of a sentence indication) which cannot be undermined by inconsistent assertions on a sentence appeal.23 A disputed facts hearing was not pursued.24 Ms Gould referred me to a police witness statement from an independent witness (who partially filmed the event) who states that one of the victims pushed Mr Taylor-Rountree’s partner prior to Mr Taylor-Rountree assaulting the victims. Ms Gould submitted this can be taken into account because it does not contradict the agreed summary of facts. However, I accept Mr Heslip’s submission that in the absence of the disputed fact process being followed, this issue cannot be resolved on appeal. The victims have not accepted that one of them pushed Mr Taylor- Rountree’s partner and the issue has never been tested in evidence.
[18] I also do not accept Ms Gould’s submission that the Judge ignored the statement in the agreed summary of facts that: “A verbal confrontation occurred between the group that escalated to violence”. The passage in the sentencing notes Ms Gould relies on to support this submission in fact indicates the Judge was asking for more detail about the nature of confrontation and what was said during it.25 The Judge does not appear to have been referred to the statement of the independent witness, but he was in no position to resolve any dispute even if he had been.
[19] Ms Gould also raised for the first time at the hearing that the Judge’s starting point of five years’ imprisonment was too high.
22 Lundy v R, above n 19, at [120].
23 McMillan v R [2022] NZCA 128 at [116]–[121]; and R (CA628/18) v R [2019] NZCA 135 at [28]–
[36].
24 Criminal Procedure Rules 2012, rr 5A.1(2)–5A.1(4).
25 Sentencing decision, above n 1, at [3]–[4].
[20] In the end, I consider this appeal can be resolved without the need for me to consider either the exact nature of the confrontation that led to the assault or the correctness of the Judge’s starting point.
[21] The primary issue on appeal is whether the Judge’s credit for personal mitigating circumstances was deficient to the point of material error. As set out above, the Judge gave credit of 12.5 per cent for cultural background, 12.5 per cent for young age, good character, support, work ethic, and starting to confront counselling and rehabilitation, and four months (6.67 per cent) reduction for family impact. These are not insignificant credits.
[22] Despite having been provided with a pre-sentence report and cultural report, the Judge appeared dissatisfied with the level of information before him, particularly as to the factors which may have been explanatory of the offending.26 However, the Judge acknowledged Mr Taylor-Rountree’s exposure to family violence was “severely traumatic” and that there was linkage between that and the nature of his response in the offending.27 The Judge noted:
[15] The cultural report reveals that he was exposed to violence as a child and witnesses family violence against his mother. This was at a level and intensity that could only have been severely traumatic. It resulted in him at a young age having to try and protect his mother from her partner who was beating her. There is no question that that would have a serious and damaging effect. I accept the argument that there can be seen to be a linkage between what happened in that childhood and the way Mr Taylor-Rountree has responded on this occasion.
[16] That does, in my view, provide some explanation and provides some mitigation. It also appears to have contributed to his alcohol abuse. That seems to have been, at part, in play on this evening. That said, being drunk is not mitigation. But where childhood trauma means someone struggles to regulate their emotions and turns to drugs or alcohol as a way of coping, that can be taken into account. I would have hoped to have had more information about that. Especially whether it is just alcohol at play or other drugs at play on this occasion.
[17] ... Unfortunately, there is not a great deal of information concerning those underlying issues and what can be done about them.
26 Sentencing decision, above n 1, at [16]–[17].
27 At [15]–[16].
[23] It is evident from this discussion that there was a lack of information before the Judge. The position has evolved before me, with the admission of the psychological report by clinical psychologist, Nev Trainor. Mr Trainor reveals that Mr Taylor-Rountree suffers from PTSD, as a result of childhood exposure to significant physical violence against his mother, prior to being abandoned by her. Mr Trainor notes that Mr Taylor-Rountree harbours chronic intense anger that he actively suppresses, but which he acknowledges he needs to address. Mr Trainor explains that Mr Taylor-Rountree scored, “well above the threshold” for markers indicating PTSD. Mr Trainor concluded:
24. The suppression and avoidance strategies employed by Mr Taylor- Rountree to cope with and push away anger, anxiety, and more recently, depressive experiences, failed on the night of the offending. The situation that unfolded could be described as a perfect storm of pre-existing vulnerabilities coming together to overwhelm Mr Taylor-Rountree’s internal restraints, resulting in his violence. That is, he had encountered the victims within the context of an argument with his partner which has likely primed his anger, then had this intensified by the comments made by one of the victims, and while he made efforts to move away, his partner becoming further involved in the altercation and him perceiving her as being grabbed around the throat and being assaulted was enough to rapidly intensify Mr Taylor-Rountree’s anger and perceptions of threat to the point of reactive violence.
25. Mr Taylor-Rountree’s anger has its origins in the traumatic events of his childhood wherein he often felt small and powerless and his attempts to protect his mother were ultimately ineffective. He has never healed from those experiences and instead hoped time would be the antidote. The scenario which Mr Taylor-Rountree perceived as happening echoed these trauma memories and feelings and triggered in him aggressive reactivity toward the victims which was protective of his partner, but which has had serious consequences. He now recognises the need to address the underlying causes of this behaviour, so it is never repeated.
26. Mr Taylor-Rountree would benefit from therapy to ameliorate his PTSD and related problems of chronic anger. Anger management will not go far enough to address the root causes, and neither will substance use counselling, both of which are effectively symptom treatments. Mr Taylor- Rountree, if motivated to do so, could get on the waitlist for community mental health services, something his GP could help with, or he could look to engage in privately funded therapy. Improvements in symptoms related to anxiety, depression, substance use, and anger would all be expected to improve with trauma therapy.
[24] In the absence of this information, Mr Taylor-Rountree was afforded no credit for his diagnosed mental disorder, which materially contributed to his offending. For reasons I will explain, I consider that was a material error and that a different sentence should be imposed.
What sentence should be imposed?
[25] The key issue is the appropriate credit for personal mitigating circumstances, including recognition of the diagnosed mental disorder.
[26] Ms Gould refers me to Solicitor-General v Heta as authority for a 30 per cent credit for s 27 factors alone where a report discloses significant emotional childhood trauma combined with valiant efforts to overcome it and to lead a productive law- abiding life.28 However, Heta was a Solicitor-General appeal where Whata J concluded that a 30 per cent credit in that case did not lead to a manifestly inadequate sentence. Whata J considered the total 40 per cent discount for all personal mitigating factors (including an additional 10 per cent for engagement in restorative justice) while generous was not in error.29 However, Heta is not authority for the proposition that it would be an error not to give credit at the level of 30 per cent for significant emotional childhood trauma with a causal connection to the offending. Credit for personal mitigating factors involves a highly fact-specific assessment.30
[27] I agree with Whata J’s statement in Heta that there is no “clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues.”31 Whata J also noted that “larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender”.32 In particular, Whata J cites E(CA689/10) v R,33 a case in which the Court of Appeal surveyed previous cases and noted discounts in the range of 12 to 30 per cent were warranted where an offender had a mental illness which contributed to the offending.34
28 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
29 At [65].
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26], citing R v A [1994] 2 NZLR 129 (CA)
at 132.
31 Heta, above n 28, at [63] citing, for example, Waipouri v R [2015] NZHC 2029 where a combined discount of 12 per cent was given to account for childhood trauma and related post-traumatic stress disorder; R v Jenkins [2013] NZHC 95, where a 17 per cent discount was given to recognise Ms Jenkin’s troubled background, psychiatric issues (even though they were not causative of the offending), and remorse.
32 At [63].
33 At n 44.
34 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411at [71]–[83].
[28] In my view, the Judge’s overall credit for personal mitigating circumstances was appropriate, except for the lack of credit for the diagnosed mental disorder that contributed to his offending (which is now evident from the psychological report). I consider his disorder reduces Mr Taylor-Rountree’s moral culpability as it contributed to his offending and is therefore a mitigating factor for which he should be given credit.35 I do not accept Ms Gould’s that the sentencing Judge’s credits for cultural and other factors were otherwise deficient. Nor is the four-month credit in recognition of the general impact of a custodial sentence on Mr Taylor-Rountree’s family deficient. But I also do not accept the Crown submission that no further credit should be given on appeal, nor would have been given at sentencing, due to the psychological report.
[29] I accept the Crown submission that there will be cases of worse childhood trauma that has had an even greater contribution to the offending. But I do not accept this means the 12.5 per cent credit in this case was sufficient to recognise the additional factor that the trauma has manifested in an untreated mental disorder that contributed to the offending. The trauma that led to the mental disorder was significant (as a young child witnessing serious family violence against a parent over many years followed by abandonment by that parent) and the expert evidence about the disorder’s contribution to the offending is clear.
[30] I also do not accept the Crown submission that Mr Trainor’s evidence about the contribution to the offending should be treated with caution because he appears to rely on the assertion that Mr Taylor-Rountree’s partner was being assaulted. There is no dispute that there was a verbal confrontation that escalated to violence, and it is Mr Taylor-Rountree’s perception of the threat posed to his partner that is the key to how he reacted. I accept Mr Heslip’s submission that objective evidence that Mr Taylor-Rountree’s partner was actually being assaulted would increase the available credit, but the absence of such evidence does not mean there should be no credit.
[31] I consider a failure to give credit for this mitigating factor based on the psychological evidence now before me would be an error of principle. Obviously,
35 At [70].
there is no criticism of the sentencing Judge in this conclusion. Acknowledging the overlap this factor has with other mitigating features such as childhood trauma, efforts to overcome that trauma, and prospects of rehabilitation, I consider the error is best corrected by increasing the overall credit for personal mitigation factors.
[32] In addition to the discrete mitigating factor of the contribution of PTSD to the offending, Mr Taylor-Rountree’s prospects of rehabilitation are greater based on the evidence now before me. That includes not only identification of the treatment required to address the PTSD, but also by evidence of his increased motivation to take pro-active steps by now fully engaging in anger management and alcohol and drug counselling. This is in marked contrast to the position before the sentencing Judge, who noted that there was “not a great deal of information about those underlying issues and what can be done about them” and that his lack of engagement meant little credit could be given for “an aspirational goal”.36 The evidence before me appears to provide the type of explanations and assurances the Judge was looking for to “move the needle away from prison”.37
[33] Ms Gould explained that following Mr Taylor-Rountree’s first meeting with Mr Trainor he was so affected by it that a follow up appointment had to be arranged. Mr Trainor has also agreed to continue to treat Mr Taylor-Rountree free of charge. In addition, Ms Gould said that the diagnosis of PTSD will mean that Mr Taylor-Rountree can access ACC funded counselling if need be.
[34] In the circumstances, I consider the error should be corrected by increasing overall credit for personal mitigation of mental disorder, childhood trauma, efforts to overcome that trauma, youth, good character, family support, and prospects of rehabilitation from 25 to 30 per cent. A 30 per cent credit for those factors plus 25 per cent for the guilty plea and the four months for impact on Mr Taylor-Rountree’s family, leaves an end sentence of 23 months’ imprisonment. The materiality of the error is evident when its correction brings the sentence within a range where the Court is bound to consider non-custodial alternatives to imprisonment.38
36 Sentencing decision, above n 1, at [17]–[18].
37 Sentence indication, above n 5, at [4].
38 Sentencing Act 2002, s 15A; Sweeney v R [2023] NZCA 417 at [32].
[35] The question then becomes whether I should commute the sentence of imprisonment to home detention.
Consideration of home detention
[36] Home detention may be imposed where the offender is convicted of an offence punishable by imprisonment,39 the judge is satisfied that the purposes of the sentence cannot be achieved by any less restrictive sentence or combination of sentences,40 and the judge would otherwise impose a short-term sentence of imprisonment.41 There is no presumption in favour of home detention being imposed where jurisdiction arises.42 Also relevant, is s 16(1) of the Sentencing Act 2002, which requires the judge when considering a sentence of imprisonment to “have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.43
[37] The pre-sentence report dated 4 April 2024 recommended a combined sentence of supervision and community detention for the following reasons:
A supervision sentence with special conditions recommended of both AoD (alcohol and other drug) assessment and anger management counselling will provide a rehabilitative aspect to Mr Taylor-Rountree’s offending, whilst Community Detention, with a night-time curfew, will help mitigate Mr Taylor- Rountree’s ability to re-offend, given the incident before the Court occurred at night. It is also important to note that a sentence of Community Detention will also ensure Mr Taylor-Rountree’s employment is not jeopardised, as his curfew can be organised to accommodate the requirements of his job.
As an option for the Court to consider, a sentence of Home Detention could be imposed, with special conditions consistent with those stated above.
[38] Ms Gould’s memorandum of 19 June 2024 advises that since being on bail, Mr Taylor-Rountree has been working Tuesday to Friday, and spending Mondays at Ora Toa Mauriora in Porirua to undergo alcohol and other drug counselling sessions, with the full support of his employers. A Violence Prevention Educator from Ora Toa has confirmed that he has also been actively participating in the Violence Prevention
39 Sentencing Act, s 80A(1)(a)).
40 Section 15A(1)(a)).
41 Section 15A(1)(b). A “short-term sentence” has the same meaning as in s 4(1) of the Parole Act 2002 which includes “a determinate sentence of 24 months or less”.
42 R v Stacey [2008] NZCA 465 at [21].
43 Sentencing Act, s 16; Faaliga v R [2023] NZHC 2901 at [15].
Programme (one-on-one sessions) and has completed five 60-minute sessions to date, as Ora Toa’s delivery started mid-June. While he has made positive progress, it appears that it is an ongoing process.
[39] Mr Taylor-Rountree has also been fully compliant with the conditions of his bail (including a curfew and an alcohol and drug prohibition).
[40] In terms of the suitability of electronic monitoring, the PAC report confirms the consent of all occupants at the proposed address, as well as the appellant, to the conditions of an EM sentence. The address is technically feasible and the police have raised no concerns as to the suitability of the address.
[41] Ms Gould drew my attention to the comments of the Court of Appeal in R v Hill that home detention reflects a perception that society’s interests are better served in some cases by the imposition of home detention,44 and that home detention should be considered where the offender is motivated to change and there is a realistic prospect that he will be able to do so.45 Ms Gould also emphasised the principle that home detention is not an easy sentence to complete and carries a considerable measure of denunciation and deterrence.46
[42] In light of Mr Trainor’s findings about the way forward for Mr Taylor-Rountree to address the underlying issues causative of his offending, it seems to me that the sentencing principles of offender rehabilitation and reintegration, as well as community protection (in ensuring his chronic anger and PTSD are addressed and do not manifest in further reactive violence) are best served by a non-custodial sentence. It would be counterproductive to Mr Taylor-Rountree’s rehabilitative efforts to now impose a sentence of imprisonment.47
[43] Although the offending and impact on the victims was serious, this is not a case where the purposes and principles of sentencing cannot be achieved by a sentence
44 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].
45 At [37].
46 R v Iosefa [2008] NZCA 453 at [41].
47 See similarly, R v Gear [2023] NZHC 432 at [22].
other than imprisonment.48 This is a case where those purposes and principles can be met by a sentence of home detention rather than imprisonment. In view of Mr Taylor- Rountree’s lack of previous convictions, good character, commitment to addressing the drivers of his offending, prosocial support in the community, stable employment, and his family circumstances, I consider home detention is the least restrictive outcome appropriate in the circumstances.
[44] A prison sentence of 23 months would normally result in a sentence of between 11 and 12 months’ home detention. But taking into account the six weeks Mr Taylor- Rountree has already served in prison, I consider a sentence of nine months’ home detention is appropriate.49
[45] I therefore allow the appeal, quash the sentence of imprisonment and substitute a sentence of nine months’ home detention with the following special conditions, which are also to apply as special post-detention conditions for a period of 12 months:
(a)To attend and complete any psychiatric or psychological assessment, counselling, or programme as directed by and to the satisfaction of a probation officer.
(b)To attend and complete any anger management and drug and alcohol assessment, counselling, or programme as directed by and to the satisfaction of a probation officer.
(c)Not to contact or associate with the victims of the offending without the prior approval of a probation officer.
La Hood J
Solicitors:
Crown Solicitor, Wellington
48 Sentencing Act, s 16(2).
49 See R v Bisschop [2008] NZCA 229 at [18].
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