Thomas v The King
[2023] NZHC 2027
•1 August 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-17
[2023] NZHC 2027
BETWEEN JEREMIAH MATTHEW JOHN THOMAS
Appellant
AND
THE KING
Respondent
Hearing: 1 August 2023 Counsel:
N Bourke for the Appellant
R L Hicklin for the Respondent
Judgment:
1 August 2023
JUDGMENT OF GWYN J
Introduction
[1] Jeremiah Thomas appeals his sentence1 of two years and nine months’ imprisonment in respect of one charge of aggravated robbery2 to which he pleaded guilty.
Background
The offending
[2] On 4 February 2023 at approximately 8.45 pm the appellant drove a car with the registration plate FEH377, pulling up outside the Highlands Dairy at 271 Coronation Avenue, New Plymouth. Two people including the appellant, who
1 R v Thomas [2023] NZDC 12028.
2 Crimes Act 1961, s 235(c). The maximum sentence is 14 years’ imprisonment.
THOMAS v R [2023] NZHC 2027 [1 August 2023]
was 18 at the time, stepped out of the vehicle wearing full disguise and each holding a hammer.
[3] One offender ran behind the counter and the other jumped over the counter. As the shopkeeper attempted to lock herself in a secure room at the back of the dairy, one of the offenders pushed the door, attempting to gain entry, but the shopkeeper locked it before the offender gained entry.
[4] The offenders took a large quantity of cigarettes and over $1,000 of cash from the dairy before returning to the waiting vehicle.
Criminal history
[5] Mr Thomas has 16 previous convictions, 11 in the Youth Court and five in the District Court. At the District Court level, they include burglary by day, burglary by night, attempted unlawful taking, and unlawfully in building.
Procedural history
[6] On 14 June 2023 the New Plymouth District Court sentenced Mr Thomas to two years and nine months’ imprisonment.
[7] The Court canvassed Mr Thomas’ history of offending, poor compliance with intensive supervision, absconding on electronically monitored (EM) bail, and personal circumstances. The Judge said Mr Thomas presents “a really difficult scenario for the courts”.3
[8] The Judge found the offending is most similar to an example given by the Court in R v Mako:4
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence.
3 R v Thomas, above n 1, at [19].
4 R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA) at [56].
A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.
[9]The Judge found Mr Thomas “ticks a number of boxes” referred to in the Mako
example. The Judge said:5
… You planned this robbery, you had armed yourself, you were disguised. The victim, fortunately, was able to take off without actually being harmed, although there was an attempt to get at her when she was locking herself in the room. It has had a huge emotional impact on her. …
[10] The Judge noted youth is a factor in this offending and the prospects of rehabilitation can be taken into account, but equally the Court should have regard to the comments in Mako that teenagers cannot expect leniency purely on account of their young age in sentencings for serious aggravated robbery offences.6
[11] The Judge said that although Mr Thomas could “easily get to that six-year mark as a start point”, he set the starting point at five years’ imprisonment given the nature of the offending involved serious violence.
[12]The Judge applied a discount of 25 per cent for Mr Thomas’ guilty plea.
[13] The Judge also applied a 10 per cent discount for his youth. The Judge noted the discount for youth needed to be tempered against the appellant’s history in the Youth Court and subsequently in the District Court.
[14] The Judge applied a further 10 per cent discount for personal background factors as explained in the cultural report filed under s 27 of the Sentencing Act 2002.
[15] The Judge noted a “really valid submission” that imprisonment might be “dooming” Mr Thomas given he has lacked attachment in his life and he may seek attachment in a gang.
5 R v Thomas, above n 1, at [38].
6 R v Mako, above n 4, at [65]–[66].
[16] The Judge said he hoped the rehabilitation of Mr Thomas would be given some weight, but there was a public interest in discouraging his offending and discouraging others from going down the same path.
[17] Additionally, the Judge made a Firearms Prohibition Order7 by consent. The order will commence upon Mr Thomas’ release from custody. The Judge also ordered the $354 of cash found on Mr Thomas when he was arrested to go towards the victim.
Submissions
For the appellant
[18] Mr Bourke, for the appellant, submits the District Court erred by failing to apply adequate discounts for Mr Thomas’ youth and background factors.
[19] Counsel submits the starting point of five years’ imprisonment was excessive. The starting point should have been in the vicinity of four years’ imprisonment. In support, counsel referred to five comparable cases:
(a)In Reweti v R,8 the appellant was one of four youths who robbed a service station with a crescent spanner. The High Court adopted a starting point of four years’ imprisonment for aggravated robbery, which the Judge noted was at the lower end of seriousness; assault with intent to injure and three counts of car conversion.
(b)In R v Stevens,9 the appellant robbed a petrol station with a knife. There was no physical harm to the shop attendant. The High Court adopted a starting point of three years and six months’ imprisonment for aggravated robbery, burglary and breach of release conditions.
7 Arms Act 1983, pt 7A.
8 Reweti v R [2018] NZHC 809.
9 R v Stevens [2023] NZHC 144.
(c)In Tera v Police,10 the appellant robbed a petrol station with a knife. The High Court upheld a starting point of four years’ imprisonment for one charge of aggravated robbery.
(d)In R v Wharerau,11 the defendant and three other youths robbed a dairy with a tyre iron. One of the offenders struck the shop attendant across the face with the tyre iron. The defendant was the “getaway driver”. The District Court adopted a starting point of three years and six months’ imprisonment for one charge of aggravated robbery.
(e)In Collard-Vea v R,12 the appellant and two other young associates stole a car and robbed two service stations. The High Court upheld a starting point of four years’ imprisonment for the aggravated burglary with a 12-month uplift for the balance of the offending.
[20] By comparison to Reweti, counsel submits that both there and in Mr Thomas’ case, the offender was an 18-year-old Māori man, there was no actual violence or express threats of actual violence, and cigarettes and cash were taken. However, unlike in Reweti, Mr Thomas is being sentenced on a single charge.
[21] Unlike Wharerau, there was no physical assault in Mr Thomas’ case. Counsel also submits Collard-Vea involved more serious offending than Mr Thomas’ case because the offenders smashed the front door of the service station and inflicted physical violence on the shop attendant.
[22] In light of these comparisons, counsel submits that four years’ imprisonment would have been the appropriate starting point.
[23] Mr Bourke notes the observations in Mr Thomas’ s 27 cultural report include parental mental illness; instability during childhood and youth; limited education; attention deficit hyperactivity disorder (ADHD); recent trauma; and the structural disadvantages affecting Māori.
10 Tera v Police [2013] NZHC 1229.
11 R v Wharerau [2017] NZDC 3504.
12 Collard-Vea v R [2018] NZHC 3269.
[24] Counsel submits that those factors explain how he came to offending and constitute a causative contribution to this offending, in a Berkland v R13 and Carr v R14 sense, warranting a meaningful discount. Counsel submits it would be difficult to conceive of a more obvious and direct link between Mr Thomas’ background factors and his trajectory into offending.
[25] The appellant notes that at sentencing the Crown submitted a discount in the vicinity of 15 per cent should be available. However, the Judge considered a 10 per cent discount was appropriate to put Mr Thomas on a better track.
[26] Counsel refers to Waikato-Tuhega v R15 where the Court of Appeal held a 15 per cent discount was appropriate for the defendant whose upbringing was marked by dysfunction and violence; care and protection and youth justice issues; limited education; substance use; and disconnection from his te ao Māori and Niuean heritage. The offending was more serious than Mr Thomas’ offending.
[27] Similarly, in Minogue v R,16 the Court of Appeal gave a discount of 15 per cent for background factors given the nature and extent of the appellant’s severely disadvantaged background circumstances and the undisputed link between these factors and the offending.
[28] Counsel submits a 15 per cent discount should have been applied to take account of Mr Thomas’ background.
[29] Counsel submits the appellant is still young and he has experienced a hindered development. His offending reflects the neurological difference between him and an older adult. A sentence of imprisonment would be counterproductive and affect his capacity for rehabilitation. Counsel submits a further 15 per cent discount should have been applied for Mr Thomas’ youth.
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
14 Carr v R [2020] NZCA 357.
15 Waikato-Tuhega v R [2021] NZCA 503.
16 Minogue v R [2020] NZCA 515.
[30] With those increased discounts, Mr Thomas would become eligible to be considered for home detention. Counsel notes imprisonment is the most restrictive sentence available under the Sentencing Act and it should be “a measure of last resort”.17 As s 16(2) of the Sentencing Act notes, the Court must not impose a sentence of imprisonment unless satisfied that the purposes and principles of sentencing cannot otherwise be achieved.
[31] Counsel acknowledges Mr Thomas currently lacks appropriate accommodation for home detention but submits that if appropriate accommodation can be found, a sentence of home detention would best foster Mr Thomas’ rehabilitative prospects and the ongoing interests of the community, while protecting him from the inherently anti-social environment prison provides to a young, vulnerable person. Counsel seeks leave for Mr Thomas to apply for home detention when a suitable address is identified.18
For the respondent
[32] Ms Hicklin, for the respondent, submits the sentence was not manifestly excessive.
[33] Counsel referred to a factually similar case which in turn refers to the tariff judgment R v Mako,19 Te Hauwaho v R.20 In Te Hauwaho, the 19-year-old appellant robbed a service station with a kitchen knife, with his face concealed with a hoodie. He jumped over the counter and threatened to cut the shopkeeper’s throat and a physical altercation ensued. The appellant took $1,118.21 of cash and cigarettes. The High Court upheld a starting point of four years and six months’ imprisonment. The Court applied a discount made up of 25 per cent for the guilty plea, 15 per cent for the background factors and 10 per cent for youth. Counsel submits the higher starting point of five years’ imprisonment is justified for Mr Thomas in comparison to Te Hauwaho because Mr Thomas brought a co-offender, both offenders brandished weapons, and they took cash and cigarettes with a higher value.
17 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.
18 Sentencing Act 2002, s 80I.
19 R v Mako, above n 4.
20 Te Hauwaho v R [2022] NZHC 2519.
[34] The respondent referred to the three aggravating features Judge Hikaka considered:
(a)Premeditation, evidenced by Mr Thomas and his associate wearing disguises and bringing weapons with them. Mr Thomas acknowledged his lead role in the aggravated robbery and the involvement of premeditation in his interview for the Provision of Advice to Courts (PAC) report.
(b)The high level of intimidation, despite the lack of physical violence. The intimidation included one of the offenders attempting to follow the shopkeeper into the back room.
(c)The significant emotional harm suffered by the victim, who is now left feeling vulnerable and unsafe.
[35] Counsel submits Mr Thomas’ case can be distinguished from the cases referred to by counsel for the appellant.
(a)Reweti v R involved a crescent spanner, which is a less serious weapon than the hammer Mr Thomas brandished, and the items stolen were of lower value in Reweti.
(b)R v Stevens and Tera v Police involved one offender with low premeditation and theft of, respectively, one packet of cigarettes and items valued at $245. Mr Thomas acted in a pair and the value of the items exceeded $13,000.
(c)R v Wharerau involved a sentencing of the reluctant “getaway driver” to the offending. Mr Thomas was the lead offender.
(d)Collard-Vea v R did not involve a weapon. The four-year starting point reflects the lower seriousness than Mr Thomas’ case which involved a hammer.
[36] The respondent notes the Judge did not apply discrete uplifts to the starting point in Mr Thomas’ case for his previous convictions or the fact the offending occurred while he was subject to a sentence of intensive supervision. The starting point was within range.
[37] Counsel refers to Churchward v R where the Court of Appeal detailed the ways in which youth may be relevant to sentencing.21
[38] However, the respondent submits Mr Thomas has a low potential for rehabilitation given his history of violent and dishonest offending, and the PAC report assessment that he is at a high risk of reoffending. The aggravated robbery arose while he was in breach of his sentence of intensive supervision. He has previously removed an EM bracelet and absconded. Attempts to give the appellant structure in his life have failed. Therefore, the Judge correctly limited the discount for youth to 10 per cent.
[39] The respondent acknowledges that Mr Thomas’ background factors outlined in his cultural report were seriously disadvantageous. But counsel submits this disadvantage needs to be balanced against his ongoing impulse to commit serious offences in spite of rehabilitative intervention. The rehabilitation and reintegration purposes of sentencing ought not to be given greater weight than the other purposes and principles of sentencing. The respondent submits Mr Thomas’ background factors were not proximate to the offending and therefore a discount of 10 per cent was within range.
[40] Counsel cautions against double-counting in the discounts for youth and background factors.
[41] The respondent submits that if the Court reaches an end sentence of two years’ imprisonment or less on appeal, and the appellant thereby becomes eligible for home detention, then home detention would be inappropriate because of the high risk to the community22 and the seriousness of the offending. The Crown’s submission is that a
21 Churchward v R [2011] NZCA 531, [2011] BCL 791 at [77].
22 Sentencing Act, s 7(1)g).
short term of imprisonment could provide the consistency and support that Mr Thomas needs, with the possibility of coming before the Parole Board at a relatively early stage and gaining access to rehabilitative options.
Relevant law
Approach to sentencing
[42] An appeal against sentence is an appeal against the Judge’s discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[43] Despite the statute making no express reference to “manifestly excessive”, this principle is well-established in the court’s approach to sentence appeals.23 An appeal court must not tinker with the end sentence if the end sentence is within range.24 The focus is more upon the end sentence than the process by which the Judge reached that end sentence.
[44] In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing.25
[45] The first step requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency between similar offending.
[46] At the second step the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount. The end sentence should reflect the totality of the offending and, barring
23 Ripia v R [2011] NZCA 101 at [15].
24 At [15].
25 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
other considerations, be the least restrictive outcome that is appropriate in the circumstances.
Tariff judgment for aggravated robbery
[47] R v Mako26 is the tariff judgment for aggravated robbery sentencing. The Court of Appeal identified 15 features as reflecting a greater degree of criminality:27
(a)degree of planning and preparation;
(b)the number of participants and their deployment;
(c)disguises and other means of concealing identity;
(d)the number and types of weapons and how they are brandished;
(e)the target premises or persons, relevant to the potential gain, and the number of members of the public who are affected;
(f)the specific provisions of the law;
(g)the vulnerability of the victims;
(h)the need for deterrence of certain types of activity in view of their frequency or prevalence in a particular area;
(i)the use of violence;
(j)the presence of threats or intimidation;
(k)the property stolen and the extent of any recovery;
(l)associated offending such as vehicle conversion, detention or abduction of victims and hostage-taking;
26 R v Mako, above n 4.
27 At [36]–[51].
(m)the impact on victims;
(n)evidence of gang activity; and
(o)multiple offending.
[48] The Court held the vulnerability of small business operators and the frequency with which such businesses are targeted increases the need for deterrence in sentencing and the courts can consider the need to protect the public.
[49] As the District Court found in Mr Thomas’ case, the offending is similar to the features described in [56] of Mako, where the Court of Appeal found a four-year starting point tends to be appropriate, although if money and property are taken or the shopkeeper is confronted by several offenders, a five-year starting point is appropriate. Later cases, including those cited by the appellant, have tended to adopt a lower starting point. And, as the Court of Appeal observed in R v Zhang,28 sentencing remains an evaluative exercise and guideline judgments must not be applied in a mechanistic way.
Analysis
Sentencing test: stage one
[50] Having considered the precedent cases referred to by both parties and the seriousness of the offending, I consider the District Court erred in its starting point. I conclude a starting point of four years’ imprisonment is appropriate. The factors that influence my conclusion are that there was no actual violence — although both offenders carried hammers, they did not threaten to use them or actually use them; and there were no other charges brought. I accept the offending was serious, as reflected by the charge of aggravated robbery, but I would not go as far as the District Court’s categorisation of the offending as being “serious violent offending.”29 For these reasons, I consider this offending is most similar to the cases referred to by the
28 R v Zhang [2019] NZCA 507, [2019] 3 NZLR 648 at [48].
29 R v Thomas, above n 1, at [42].
appellant, particularly R v Reweti. It is at the lower end of seriousness for aggravated robberies.
[51] As the District Court did, I will not apply a discrete uplift to the starting point to reflect that Mr Thomas was in breach of his sentence of intensive supervision at the time of the offending.
Sentencing test: stage two
Aggravating factors
[52] I consider five of the 15 aggravating factors identified in Mako were present here.
[53] First, there was a degree of premeditation because the offenders drove to the dairy specifically, bringing weapons with them. It was not a spontaneous offence.
[54]Second, there were two participants.
[55]Third, both offenders disguised themselves.
[56] Fourth, both offenders held hammers during the robbery, although they did not threaten to or actually use them.
[57] Finally, the significant impact on the victim. In the Victim Impact Statement, the victim said the robbery has had a big impact on her and the business. She is unsure if her insurance will cover the loss from the cash and cigarettes stolen and if so what the excess payable is. She reports there was approximately $1,560 of cash stolen from the till and the value of the cigarettes taken was just over $12,000. Her computer screen was smashed during the robbery. It cost $3,700 to install a new one. In terms of emotional harm, the victim described how she feels scared all the time since the robbery, feels dizzy during the day and is frightened every time the dairy’s door buzzer goes off. She wants to sell the shop but she has three children to support. She notes the dairy has been robbed on two previous occasions but this time felt different because one of the offenders tried to force open the door to get to the back where she fled to,
and she and her elderly mother with heart disease had to use all their strength to close the door. She notes the scariest part of the robbery was seeing the hammers and how one of the offenders tried to get into the back of the shop. She wonders what would have happened if she and her mother had not got the door shut.
[58] In my view, the mitigating factors are Mr Thomas’ youth and his background, as detailed in the cultural report.
Youth
[59] The Court of Appeal in Churchward v R30 recorded that youth is relevant to sentencing in the following ways:
(a)Age-related neurological differences between young people and adults mean that young people may be more vulnerable or susceptible to negative influences and outside pressures.
(b)Long sentences of imprisonment may be crushing on young people.
(c)Young people have greater capacity for rehabilitation.
[60] Those conclusions were reiterated more recently in Dickey v R.31 In my view they apply here.
[61] Mr Thomas was 18 at the time of the offending. He is still very young. He has made serious mistakes. However, I consider his prospects for rehabilitation remain high. It appears he does not currently have gang associations or social pressures from other negative personal influences. He has not yet been through drug counselling or psychiatric evaluation, but I consider such programmes would help him address his use of methamphetamine, suspected fetal alcohol syndrome, lack of attachment, the effect of his parents’ mental health on his childhood, and other childhood trauma. Rehabilitative programmes are more accessible to Mr Thomas if he is not in custody.
30 Churchward v R, above n 21, at [50]–[55] and [77]–[91].
31 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [86].
Cultural report
[62] The appellant’s cultural report notes that Mr Thomas has Māori whakapapa, but feels disconnected from his culture and his iwi.
[63] The report describes Mr Thomas as having experienced a traumatic childhood. His mother was reportedly heavily sedated during her pregnancy, was diagnosed with schizophrenia, and was subject to a Community Treatment Order. His father lived in a secure unit as a Forensic Mental Health patient. Mr Thomas came to the attention of Oranga Tamariki when he was one week old, with concerns noted about his parents’ ability to care for him, but he was left in his parents’ care for the first 18 months of his life. He subsequently lived with his grandparents and then a foster mother. Mr Thomas’ foster mother says in her view irreparable damage was done during those 18 months and she suspects that as a result Mr Thomas developed attachment disorder. She also suspects he has fetal alcohol spectrum disorder due to his biological mother’s heavy sedation during her pregnancy.
[64] Mr Thomas started taking Ritalin at a young age. Also at a young age, he started compulsively stealing and lying. He first stole from his grandparents when he was aged seven.
[65] Mr Thomas first tried cannabis at age 12. He left school and home (his grandparents’ home) at age 13. He actively used methamphetamine between the ages of 13 and 16 or 17. He says he has not used methamphetamine for the past two years.
[66] The appellant has experienced extreme grief in the past two years. His biological mother and both his grandparents died. Two of his close whāngai cousins died by suicide. His aunt died of cancer and his uncle was killed by a gang. He says these deaths escalated his antisocial behaviour.
[67] Mr Thomas has a two-and-a-half-year-old daughter from a relationship he had with a 22-year-old woman when he was aged 15 and living in emergency accommodation with her. His foster mum cares for his daughter on weekends and reports concerns about his lack of empathy with his daughter.
[68] The cultural report writers believe the background factors in Mr Thomas’ life may have placed him at a disadvantage generally and may relate to the offending with which he is charged.
[69] Mr Thomas is currently unemployed. His foster mother says he lacks empathy for humans but loves animals and would suit a farm job, although no such farm job is currently available. His Probation Officer is arranging counselling for him.
[70] The Supreme Court in Berkland v R said that where background was an “operative” or “proximate” cause of the offending it is likely to be a “potent” sentencing factor.32 The Court went on to say however that requiring operative or proximate cause in every case sets the bar too high.33
[71]The Court said:34
… We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.
[72] Although “causative contribution” is a lower standard than operative or proximate cause, it must be satisfied.35
[73] I therefore consider whether the background factors as set out in Mr Thomas’ cultural and PAC reports provide a logical explanation for his offending. In my view,
32 Berkland v R, above n 13, at [108].
33 At [109].
34 At [109] (footnotes omitted).
35 At [110].
they do. As a Māori rangatahi, he experiences structural disadvantages underlying and, in some ways, compounding the other discrete background factors.
[74] Mr Thomas’ upbringing was wrought with instability. His parents experienced mental illness and were unable to care for him as an infant. When he lived with them for his first 18 months, the groundwork was laid for his parental detachment and cultural disassociation. Although a diagnosis has not been confirmed, Mr Thomas himself is believed to have ADHD. His novelty-seeking disposition provides, in part, a logical explanation for the aggravated robbery.
[75] After moving between caregivers and homes, Mr Thomas did not have an attachment to his foster mother. He sought out the company of other youths whose influence, at least in part, resulted in truancy and him leaving school in his early teenage years. Consequently he did not experience a full education and the maturity and self-development that generally occurs during the schooling process.
[76] Mr Thomas began using methamphetamine in his early teenage years. The s 27 report notes his dual experience of ADHD and methamphetamine use and observes that these two disorders are commonly co-morbid due to the risk-taking component of ADHD fuelling methamphetamine use. The report notes a relationship between a diagnosis of ADHD and high novelty seeking personality scores. Mr Thomas has clear issues with impulsivity and the report concludes it is likely that his ADHD symptomology has impacted on his offending.
[77] As the s 27 report details, Mr Thomas has experienced significant bereavements in the last year or so. As the report notes, the losses experienced by Mr Thomas during that period have likely contributed to his ongoing behavioural issues.
[78] Mr Thomas is 19-years-old. The factors detailed in his s 27 report are not from a distant past, but part of the recent and current experience of a man who is still very young. I am satisfied that these background factors help to explain how Mr Thomas came to offend and amount to a causative contribution to his offending, relevant to sentencing.
Sentence calculation
[79]The starting point is four years’ imprisonment.
[80]I accept the 25 per cent discount for Mr Thomas’ guilty plea.
[81]I apply a discount of 15 per cent for his youth.
[82]I apply a further discount of 15 per cent for cultural factors.
[83] The end sentence is 22 months’ imprisonment, rounded to the nearest whole month. The eligibility threshold for home detention is 24 months’ imprisonment. Mr Thomas is accordingly eligible to have his sentence converted to home detention and I go on to consider his suitability for home detention.
Suitability for home detention
[84] The PAC report notes Mr Thomas does not currently have suitable accommodation if his sentence were to be substituted for one of home detention. I go on to consider whether I would have sentenced Mr Thomas to home detention but for a suitable residence.
[85] The PAC report notes Mr Thomas is at a high risk of reoffending and harm given his transient lifestyle. I accept Ms Hicklin’s submission that support and consistency will be essential for Mr Thomas. Mitigating this risk will necessitate more structure to Mr Thomas’s life, with employment — ideally working on a farm, given the observations about Mr Thomas that he has greater empathy with animal than people — and with strong male role models.
[86] The report notes Mr Thomas is motivated to engage in alcohol and drug counselling and assesses his risk of using methamphetamine again as low. In terms of his domestic circumstances, he has a partner who lives in the same province. It is unknown whether she is a prosocial influence in his life. He does not have a relationship with his daughter, from a previous relationship, or his ex-partner.
[87] The report notes that he has never breached a community-based sentence and prior to his recent absconding from EM bail, he was reporting regularly to Community Corrections.
[88] When considering a sentence of imprisonment, the Court must 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,36 and must not impose a sentence of imprisonment unless the purposes of sentencing could only be achieved by that custodial sentence.37 The High Court summarised the additional factors relevant to the Court’s s 16 assessment when deciding between a sentence of imprisonment or home detention in Brittin v New Zealand Police:38
(a)Imprisonment is a measure of last resort.
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)The Court must 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.
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Sentencing Act.
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
36 Sentencing Act, s 16(1).
37 Section 16(2).
38 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).
(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.
(h)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.
[89] My assessment of the balance of s 16 factors supports the imposition of a sentence of home detention, rather than imprisonment. Mr Thomas is still very young. That increases the possibility of successful rehabilitation. I agree with counsel for the appellant and the District Court’s note that sentencing Mr Thomas to imprisonment would risk “dooming” him. In prison, he would likely be a prospect for a gang due to his youth, immaturity and lack of role models. That would, in my view, significantly reduce Mr Thomas’ prospects of rehabilitation.
[90] It is plain from the reports I have received that it is important to build Mr Thomas’ attachments and experiences with role models outside of prison, to reduce his risk of gang association. Similarly, in Tuwhangai v Police, Dunningham J substituted an 18-year-old’s sentence of imprisonment to home detention, commenting:39
… Mr Tuwhangai is particularly vulnerable to embarking on a career of offending, and this would only be exacerbated by a minimum of a year in prison. At this juncture, he has already served three months’ imprisonment. I consider this has given him a taste of prison life and if it is to have a deterrent effect, it should have had that by now.
[91] The need to take care to reduce the prospects of young offenders emerging from prison as more hardened criminals than when they went into custody has also
39 Tuwhangai v Police [2020] NZHC 3428 at [50].
been recognised in Wiki v Police40 and Kane v Police.41 I take the same approach for Mr Thomas.
[92] A non-custodial sentence may assist Mr Thomas to break his pattern of offending, and thereby promote his rehabilitation and reintegration, which are two critical purposes of sentencing.42
[93] I am not willing to conclude that, at only 19 years of age, Mr Thomas has no realistic prospect of rehabilitation. I am optimistic that he would benefit from a sentence of home detention, albeit that the home detention address and the support offered there, will be critical.
[94] The duration of home detention sentences is generally half of the custodial sentence that otherwise would have been imposed.43 Although this broad statement does not apply to every case,44 I consider it would have been appropriate to apply to the appellant’s sentence here. Half of 22 months is 11 months, so I would have sentenced Mr Thomas to 11 months’ home detention had he identified a suitable address.
[95] Although I cannot grant home detention today, I am satisfied I would have substituted Mr Thomas’ sentence of imprisonment for home detention if a suitable address had been available. I will make an order under s 80I of the Sentencing Act granting Mr Thomas leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if he finds a suitable residence at a later date.
Conclusion
[96]The appeal is allowed.
40 Wiki v Department of Corrections [2023] NZHC 1634 at [46].
41 Kane v Police [2012] NZHC 209 at [35].
42 Sentencing Act, s 7(1)(h).
43 Brittin v Police, above n 38, at [59].
44 Metua v R [2018] NZHC 246 at [27].
Result
[97] The appellant’s sentence is substituted for a sentence of 22 months’ imprisonment.
[98] The appellant is granted leave to apply to the court of first instance to cancel his sentence of imprisonment and substitute his sentence for one of home detention if he finds a suitable address after the delivery of this judgment.45 The Firearms Prohibition Order and reparation order made in the District Court remain.
[99] The District Court’s cancellation of the appellant’s sentence of intensive supervision remains.
Gwyn J
Solicitors:
Crown Solicitor, New Plymouth
45 Sentencing Act, s 80I.
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