Whittle v The the Queen

[2022] NZHC 946

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-08

[2022] NZHC 946

BETWEEN

JOSHUA TE IRIMANA WHITTLE

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 April 2020
Appearances:	D M Goodlet for Appellant R P Bates for Respondent
Judgment:	5 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 5 May 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

WHITTLE v R [2022] NZHC 946 [5 May 2022]

[1]    Mr Joshua Whittle was sentenced together with five co-offenders in the Dunedin District Court on a charge of wounding with intent to injure.1 Mr Whittle faced an additional charge of assault with a weapon.2 After pleading guilty to these charges, he was sentenced by Judge Robinson to 22 months’ imprisonment.3 He now appeals that decision on the basis it is manifestly excessive and should have been commuted to a sentence of home detention.

Background

[2]    On the evening of 25 September 2021, Mr Whittle and four of the other offenders were making their way as a group to a party at an address in Leith Street, Dunedin. This involved using a shortcut through a gap in a fence between the address of the victim, Bradley Thomas, and a flat on Castle Street. Mr Thomas had just used the shortcut. When he got into the backyard of the Castle Street flat an altercation developed between himself and the offenders at the location of the gap in the fence. The offenders started assaulting Mr Thomas.

[3]    During the course of the attack Mr Thomas was surrounded. He was knocked to the ground where each of the offenders, including Mr Whittle, proceeded to punch, kick and stomp on him. Each time Mr Thomas managed to get to his feet, the offenders pulled him back onto the ground and continued the beating. He was punched in excess of 70 times and received multiple kicks and stomps to all areas of his body while he was on the ground, including a number of blows to the head.

[4]    During this assault, Mr Whittle searched the immediate area looking for a weapon. He picked up a beer bottle and returned to where Mr Thomas was being assaulted. Mr Whittle forcefully struck Mr Thomas on top of his head with the bottle.

[5]    Efforts by Mr Thomas’s friends to assist him resulted in them being assaulted by one of the other offenders, Marika Parker, who had also joined in the assault on Mr Thomas. As a result of the attack, Mr Thomas sustained a concussion and received

1      Crimes Act 1961, s 188(2) – maximum penalty of seven years’ imprisonment.

2      Crimes Act, s 202C – maximum penalty of five years’ imprisonment.

3      R v Parker [2022] NZDC 4651.

multiple grazes and cuts to his body, head and face, a large wound to the left lumbar region and a split left ear.

District Court decision

[6]    In sentencing each of the six offenders, the Judge adopted a collective starting point before reviewing the particular circumstances as they related to each individual. The Judge described the offending as two minutes of alcohol-fuelled, drunken violence committed with a pack mentality against a person who was largely defenceless. The attack, which was captured on video, was aggravated by the fact it continued despite Mr Thomas’s pleas to his attackers for them to stop. Judge Robinson noted the very significant harm to the community caused by alcohol-related offending and the resulting need for the sentence to provide deterrence.

[7]    The Judge canvassed the significant and ongoing physical and psychological effects of the assault on the victims, particularly Mr Thomas, who was unable to continue studying at university, and has been diagnosed with PTSD. He was assessed as being unlikely to be able to “return to full function until about nine months post- injury”, such has been the profound trauma he has suffered which has significantly impeded his mental health and wellbeing. He suffers headaches, vision loss, fatigue, reduced concentration, changes in memory, delayed information processing and mood changes. The ongoing effects on this young man have been severe.

[8]    The aggravating features identified by the Crown were not disputed. They included extreme violence, serious injury, attacks to the head (which it was noted could be treated as similar to attacks where a weapon has been used), the vulnerability of the victim (who was on the ground for the majority of the attack) and the multiple attackers (six on one). After referring to a number of relevant authorities, a starting point of three and a half years’ imprisonment was adopted for each offender.4 A full 25 per cent discount was afforded to each offender for their guilty pleas and the Judge acknowledged further credit was available because of the offenders’ age, each of

4      Nuku  v R  [2012] NZCA 584, [2013] 2 NZLR 39; Wynd  v Police  [2013] NZHC 1270; Poi v R

[2015] NZCA 300; and Hammond v R [2021] NZHC 1064.

whom was 19 years at the time of the offending. It was accepted there was an element of peer pressure in each man joining in the assault.

[9]    Turning specifically to Mr Whittle, the Judge considered his previous excess breath alcohol conviction was largely irrelevant and no uplift was required. In relation to the separate charge of assault with a weapon with which Mr Whittle alone was charged, the Judge considered, having viewed the video, that it involved a degree of premeditation and calculation in sourcing the weapon and timing the blow on a struggling Mr Thomas. While noting the authorities suggest the assault with a weapon charge would warrant a starting point of 18 months’ imprisonment as a standalone offence, the Judge determined the appropriate uplift on a totality basis was nine months’ imprisonment.

[10]   A letter of apology that Mr Whittle had written and reports testifying to his good character and supportive background were acknowledged. It was also observed that Mr Whittle had made lifestyle changes by relocating to Whanganui to be closer to the positive influence of his family. These personal mitigating considerations resulted in a further reduction of 30 per cent. An additional one month discount was applied to reflect the time Mr Whittle had spent on bail.

[11]   In considering whether the end sentence of 22 months’ imprisonment should be commuted to a sentence of home detention, the Judge observed that a feature that set Mr Whittle apart from the other offenders was his resort to a weapon capable of inflicting considerable harm. Notwithstanding the uplift already applied for this offending and Mr Whittle’s personal circumstances, the Judge considered the offending, involving as it did young people engaging in alcohol-fuelled violence, required particular deterrence and denunciation and that a sentence of home detention would be insufficient to meet those sentencing purposes.

[12]   The Judge remarked that Mr Whittle’s co-offenders (save for Mr Parker) were “right on the dividing line” between receiving sentences of home detention and imprisonment, but Mr Whittle’s additional use of a weapon took him over that line onto the side of imprisonment. In addition to the 22 months’ imprisonment,

Mr Whittle was also directed to pay $2,000 for emotional harm and a further $3,000 in reparation, being the total amount he had offered to pay.

[13]   Mr Whittle’s co-offender, Mr Parker, who faced additional charges of injuring by an unlawful act and common assault for his attacks on three other people who had sought to come to Mr Thomas’s aid, received a sentence of 29 months’ imprisonment and was ordered  to  pay  $3,000  in  reparation  for  the  emotional  harm  caused. Mr Whittle’s four other co-offenders received sentences of between eight and nine months’ home detention together with between 200 and 250 hours community work, and ordered to pay reparation of between $3,000 and $5,000.

The appeal

[14]Mr Whittle advances his appeal on two grounds:

(a)the nine-month uplift for the assault with a weapon charge was manifestly excessive and wrong in principle; and

(b)the Judge erred in declining to exercise his discretion to commute    Mr Whittle’s sentence to one of home detention.

Uplift for assault with a weapon charge

The arguments

[15]   In arguing the Judge erred in imposing a nine-month uplift for the assault with a weapon charge, Ms Goodlet, on behalf of Mr Whittle, sought to distinguish the circumstances of the present case from those where the use of a bottle has resulted in specific attributable injuries or was committed in the context of family violence.5   Ms Goodlet submitted the present case was analogous with Merrill v Police, where the force of the blow had been insufficient to break the bottle and had not resulted in the victim being knocked to the ground or rendered unconscious, nor had it broken the skin.6 A starting point of 13 months’ imprisonment had been adopted in that case.

5      Examples provided were Wharepapa v R [2021] NZHC 1011; and Pascoe v Police [2012] NZHC 187.

6      Merrill v Police [2016] NZHC 2140.

[16]   It was argued that, had the assault with a weapon charge stood alone, it would have attracted a starting point of only 10 months’ imprisonment and that, having regard to the principle of totality, the final total starting point adopted for Mr Whittle’s offending of four years and three months’ imprisonment was out of proportion to the gravity of the offending. Ms Goodlet argued the starting point was manifestly excessive when compared with that adopted in respect of Mr Whittle’s four co- offenders (excluding Mr Parker) of three and a half years’ imprisonment, to which there was no challenge. It was submitted an uplift of no more than six months’ imprisonment should have been applied for the assault with a weapon charge.

Analysis

[17]   In Hurinui v R,7 the Court of Appeal affirmed that the methodology outlined in the guideline decision of Nuku v R8 for violent offending involving an intent to injure is applicable for assault with a weapon offending. Under Nuku, the sentencing band into which any particular offending will fall will depend on an assessment of the offender’s culpability based on relevant factors that may include the use of extreme violence, premeditation, serious injury, use of weapons, attacking the head, multiple attackers and the vulnerability of the victim.

[18]   The assault with a weapon charge faced by Mr Whittle involved him breaking away from the ongoing assault on Mr Thomas to search the immediate area for a weapon. He can be viewed on the CCTV footage picking up a beer bottle, which he carried back to the site of the attack and used to forcefully strike Mr Thomas on the top of his head. Notably, as the Judge observed, Mr Whittle appeared to pause before striking his victim, as if awaiting the right moment to inflict the blow.

[19]   The applicable factors present in this case are stark. There was the attack to the head and the vulnerability of the victim. At the time Mr Whittle used the bottle, Mr Thomas was already subject to a sustained assault from all angles by a group of five other men and was on the ground with no ability to take defensive action. Mr Whittle effectively exploited his victim’s vulnerable position to take the opportunity

7      Hurinui v R [2014] NZCA 290 at [26].

8      Nuku v R, above n 4.

to inflict further harm. The degree of premeditation or calculation, however, must be tempered by the fact the assault occurred as a result of a chance meeting and the resort to the bottle was in the heat of the moment. In my assessment, the assault with a weapon offence falls within band two of Nuku, where three or fewer aggravating factors are present. Standing alone, a starting point of up to three years’ imprisonment may accordingly be considered appropriate.9

[20]   In support of their respective arguments, a number of cases were referred to by the parties. Inevitably, the circumstances of each case will vary and care is required when placing reliance on individual sentencing decisions, particularly where there is a guideline judgment available. However, some assistance is provided from these cases in determining the starting point the use of a weapon charge would attract as a standalone offence:

(a)Wharepapa v R:10 the appellant was convicted of assault with a weapon and breaching a protection order. He got into an argument with the victim, who was his then partner. He became angry and verbally abused her before throwing a full glass bottle at her from the opposite side of a vehicle. The bottle struck the top of her head, causing a laceration, and smashed. Nation J found a starting point in band two of Nuku was appropriate because of the attack to the head, the vulnerability of the victim, the evident power imbalance and the domestic violence context. The Judge noted the violence was not sustained or premeditated. It was determined a starting point of 20 months’ imprisonment was appropriate for both offences.

(b)Pascoe v Police:11 the 19-year-old appellant pleaded guilty to eight offences, including assault with a weapon, committed over a three- month period. The assault with a weapon offence was taken as the lead charge. The appellant hit the victim with an empty glass bottle across the head. This attack continued while the victim was on the ground.

9      Nuku v R, above n 4, at [38](b).

10     Wharepapa v R, above n 5.

11     Pascoe v Police, above n 5.

The victim suffered two black eyes, a broken nose, cuts to the nose and a laceration to the back of his head. Having regard to the use of the bottle as a weapon, the sustained nature of the attack and the blows to the victim’s head, the sentencing Judge adopted a starting point of 18 months’ imprisonment. This starting point was not challenged on appeal and this Court noted it was within the range available to the Judge.

(c)Merrill v Police:12 the appellant pleaded guilty to two charges of assault with intent to injure, one of assault, and one of assault on a police officer. The appellant entered a hotel carrying a bottle of beer. The manager requested she hand over the bottle. The appellant refused and emptied the contents over the victim’s head. She then pushed the victim in the chest and face, before hitting her on the top of the head with the empty bottle. When the appellant’s associates forced the victim to the ground, she kicked the victim in the legs. The victim received a lump to her head, a cut to her nose and slight bruising to her face. Three weeks later, the appellant was involved in a further violent incident. The assault with intent to injure charge involving the bottle was taken as the lead offence (which attracts a maximum sentence of three years rather than five years for assault with a weapon). This Court identified the use of the bottle as the most serious aggravating feature but also observed the blow was administered with insufficient force to break the bottle, it did not knock the victim to the ground or cause unconsciousness, nor any fracture to the skin.   A starting point of    13 months’ imprisonment was adopted on appeal.

Decision

[21]   Ms Goodlet cautioned against the risk of double-counting aggravating factors and the need to assess the defendant’s overall culpability when setting the combined starting point for the two charges Mr Whittle faced. Mr Whittle struck the victim forcefully, but it does not appear he administered sufficient force to break the bottle.

12     Merrill v Police, above n 6.

Nor is it apparent that Mr Thomas suffered specific injuries that can be attributed to the discrete blow with the bottle. I also note that, unlike Wharepapa, the offence did not occur in a family violence context. However, having acknowledged those points, none of them materially detract from the aggravating features identified by the Crown which accompanied the commission of this discrete offence by Mr Whittle. Mr Bates, on behalf of the Crown, emphasised that at the time the bottle was used the victim was already under attack from five other assailants, he was vulnerable, and the blow was deliberately directed to his head.

[22]   The use of the weapon introduced a further element of danger into the assault and was purposefully done with the obvious intent of causing Mr Thomas further harm. He was in no position to defend himself at the time Mr Whittle used the bottle on him. In my view a standalone starting point in the vicinity of 14 to 16 months’ imprisonment was appropriate for the assault with a weapon offending.

[23]   Section 85 of the Sentencing Act 2002 requires the court to consider the totality of the offending when sentencing an offender on multiple charges. For the reasons already reviewed, the Judge was entitled to consider the use of the weapon as particularly serious in circumstances where Mr Whittle extricated himself from the group assault to seek out a weapon with which to deliver a further blow to his defenceless victim. While perhaps stern, I do not consider the uplift of nine months for  the  assault  with  a  weapon  charge  was  excessive.  When  combined  with   Mr Whittle’s involvement in the group attack, I do not consider the total period of four years and three months’ imprisonment fell outside the available range or was out of proportion to the gravity of Mr Whittle’s overall offending.

Refusal to commute imprisonment to home detention

The arguments

[24]   Ms Goodlet submitted the Judge erred by failing to exercise his discretion to commute Mr Whittle’s sentence to one of home detention. While counsel accepted the offending was serious, she argued the Judge failed to properly balance the purposes and principles of sentencing by giving excessive weight to deterrence and denunciation and had insufficient regard to Mr Whittle’s personal mitigating factors.

These were submitted to include remorse, offers of reparation, his previous good character, and his low risk of re-offending together with positive rehabilitative prospects. The need for parity with his co-offenders, and the fact a sentence of imprisonment would be disproportionately severe on him were other considerations Ms Goodlet argued were not given sufficient weight. It was submitted Mr Whittle’s personal circumstances canvassed in a number of reports and other material had not been sufficiently taken into account. This was said to have resulted in a failure by the sentencing Court to impose the least restrictive outcome appropriate in the circumstances, which was a sentence of home detention.

[25]   Mr Bates submitted that, even in cases where a collection of significant personal mitigating factors are present, it is open to a sentencing judge to find the seriousness of the offending precludes any sentence short of imprisonment. The Crown argued this was such a case and, having regard to the very serious violence inflicted on the victim, deterrence and denunciation were paramount sentencing considerations which had to be reflected in the sentence imposed, and could only be achieved by imprisonment.

Applicable principles

[26]   Home detention is an alternative to a short-term sentence of imprisonment which is provided by the Sentencing Act.13 In Fairbrother v R, the Court of Appeal observed that in the hierarchy of sentences, home detention is to be viewed as a significant sentence in its own right, and that in deciding whether to commute a short- term sentence of imprisonment to one of home detention:14

… 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.

13     Sentencing Act 2002, s 15A. A short term of imprisonment is one of two years or less — Sentencing Act, s 4(1); Parole Act 2002, s 4(1).

14     Fairbrother v R [2013] NZCA 340 at [30].

[27]   There is no presumption either for or against commuting a sentence of imprisonment to one of home detention.15 It has been recognised that the dividing line in exercising judgement as to whether to commute imprisonment to home detention is a difficult one to draw and that the principles and purposes of sentencing required to be taken into account may sometimes point in opposing directions.16 As a result, the margin of appreciation to be extended to sentencing judges in making that evaluative decision is significant.17 It is necessary for an appeal court to focus on the identification of error, having regard to the discretionary nature of the decision.18

The Judge’s reasoning

[28]   The sentencing Judge in this case acknowledged the requirement to impose the least restrictive outcome within the hierarchy of sentences but was concerned that home detention would not adequately serve certain purposes of sentencing, in particular the objectives of deterrence and denunciation. He was of the view these purposes were particularly relevant in order for a deterrent message to be sent to “young people that indulge in alcohol-fuelled violence”. In what the Judge considered was a finely balanced decision, Mr Whittle’s co-offenders (with the exception of Mr Parker) received sentences of home detention. However, notwithstanding his youth and other personal mitigating factors, which the Judge acknowledged, Mr Whittle’s “calculated resort” to a weapon resulted in him being imprisoned.

Personal circumstances

[29]   At the time of the offending, Mr Whittle was 19 years old. He had successfully completed high school and obtained NCEA levels 1, 2 and 3. The s 27 cultural report prepared for Mr Whittle revealed he had experienced a happy childhood and had strong connections with te ao Māori. Mr Whittle had come to Dunedin to pursue a business management course which he successfully completed. He had one previous conviction for driving with excess breath alcohol committed in April 2020 for which he  completed  a  six-month  sentence  of  disqualification  and  paid  a  $480  fine.

15     R v Vhavha [2009] NZCA 588 at [29], adopted in Osman v R [2010] NZCA 199 at [20]; and

Doolan v R [2011] NZCA 542 at [37].

16     Palmer v R [2016] NZCA 541 at [19].

17     Palmer v R, above n 16, at [19].

18     Doolan v R, above n 15, at [39].

Mr Whittle was remanded on bail for four and a half months from the date of his arrest through to sentence without breach.

[30]   Mr Whittle’s pre-sentence report recommended a sentence of home detention. The report writer assessed Mr Whittle as presenting a low risk of offending but of a moderate risk of harm to others given the violence inflicted as part of the present offending. It was noted Mr Whittle had, on his own initiative, implemented significant changes to his lifestyle since the offending, which included relocating permanently to Whanganui to be closer to his family and to continue his education. He had ceased using alcohol entirely. Mr Whittle’s family were described by the pre-sentence report writer as “pro-social” members of the community, and his parents (in letters to the Court) as “dedicated and upstanding” who have a background of having worked for many decades in the areas of corrections and mental health. Clearly, Mr Whittle has strong social and whānau support available to him.

[31]   In respect of his alcohol consumption, Mr Whittle told the pre-sentence report writer that he was determined to abstain for a full year. A letter from a clinician from the Whanganui DHB was produced that confirmed Mr Whittle had self-referred himself for alcohol and drug counselling, and had proactively participated in his triage assessment. The clinician reported that Mr Whittle was forthright in providing information regarding his past alcohol use and that he intended to reduce any future alcohol consumption. In a further letter adduced from a different alcohol and drug clinician it was reported that Mr Whittle had engaged well in the assessment treatment process and that he displayed “excellent insight” into the issues canvassed. At that time Mr Whittle had “wholeheartedly participated” in five alcohol and drug relapse prevention sessions and devised a strategy to ensure he removes himself from problematic situations in the future. He told the s 27 report writers that through this counselling he had learned how to change his habits.

Remorse

[32]   The pre-sentence report writer assessed Mr Whittle as having shown deep remorse for his actions. He made it clear to the report writer that he knew his actions were wrong and that he was prepared to face the consequences. Mr Whittle wrote a

letter of apology to the victim in which he admitted his actions were “cowardly, despicable and horrific”. He wrote that he felt “sick and shameful reflecting on the gravity of [his] actions” and that there “can be no excuses” for “what was a mindless and senseless act”. The s 27 report writers reported that Mr Whittle had told them he looked back at his actions with “huge remorse, shame and regret”. Mr Whittle is said to have “totally acknowledges the severity and gravity” of his behaviour and “is deeply remorseful”.

[33]   Since his return to Whanganui late last year, Mr Whittle worked at the local freezing works six days a week on 10 to 12 hour shifts. Ms Goodlet advised that, as a result, he saved the $5,000 he offered as emotional harm and financial loss reparation to the victim.

Analysis

[34]   Aside from Mr Parker who was not eligible to be sentenced to home detention, Mr Whittle’s other co-offenders all had their sentences of imprisonment commuted to home detention. The reason articulated for not doing so in the case of Mr Whittle, notwithstanding his eligibility as a result of being liable to a short-term sentence of imprisonment, was because of the additional assault with a weapon charge. The Judge considered that if he did not sentence Mr Whittle to imprisonment a deterrent message would not be effectively sent to those who may otherwise indulge in alcohol-fuelled violence.

[35]   The sentencing purposes of denunciation, deterrence and accountability are highly relevant considerations in the circumstances of this case. This was a cowardly and gratuitous assault perpetrated by multiple assailants that has had enduring physical and psychological consequences for Mr Thomas. The alcohol-fuelled pack mentality of the offenders is to be condemned and the public is entitled to be protected from such street violence. However, the Judge having decided to commute other short-term sentences of imprisonment in respect of Mr Whittle’s co-offenders to home detention, the issue arises as to whether Mr Whittle’s additional act of introducing a weapon should disqualify him from being dealt with in a similar way. Notwithstanding the at least equally positive personal aspects of his background that point towards strong

prospects of rehabilitation and which if promoted will provide the best means of preventing Mr Whittle from repeating such violence, he was effectively deemed ineligible for home detention because of the additional charge.

[36]   In declining to commute Mr Whittle’s short-term sentence of imprisonment to home detention, the Judge did not specifically refer to Mr Whittle’s personal background and circumstances, at least not in any detail, beyond referring to his youth and the “factors generally”. I accept the Judge traversed those matters in some detail earlier in his sentencing remarks and it does not follow, simply from them not being repeated in the latter part of his sentencing decision, that they were not given full weight by the Judge.19 However, because of the rationale articulated by the Judge, which involved him distinguishing Mr Whittle’s position from that of his four other co-offenders on the sole basis of the additional charge, his approach is open to the impression the wider need for denunciation and deterrence required at least Mr Whittle to be imprisoned. This approach risked other relevant guiding purposes and principles of sentencing, which the Court was obliged to weigh in respect of the individual circumstances of the offender, being overlooked when assessing whether Mr Whittle, like his co-offenders, ought to receive a sentence of home detention.

[37]   Section 16(1) of the Sentencing Act enjoins a sentencing court 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.20 Despite the seriousness of the violence involved in this case, there are strong indications in the material available to the Court to indicate Mr Whittle could be kept in the community without any material risk to its safety. As the Court of Appeal in Fairbrother v R observed when deciding whether to commute a sentence of imprisonment to one of home detention:21

… 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.

19     Walsh v R [2012] NZCA 73 at [14].

20     Sentencing Act, s 16(1).

21     Fairbrother v R, above n 14, at [30].

[38]   The Court of Appeal in that case further noted the exercise of judgment can be difficult and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”.22 The Judge in the present case found himself in that situation. The decision of whether to commute the short- term sentences of imprisonment the five eligible offenders were otherwise facing to home detention was finely balanced. As noted, the apparent reason the sentencing Court distinguished Mr Whittle’s situation from that of the other four co-offenders was the additional charge relating to the use of the bottle. In Fairbrother the Court of Appeal noted that:23

[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.

(footnotes omitted)

[39]   A similar observation was made by William Young P (as he then was) in R v Vhavha, in his dissenting judgment:24

There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offences. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

…

I do not see the requirements of holding the appellant to account, denunciation or deterrence as logically controlling the decision whether to commute the otherwise appropriate sentence of imprisonment to home detention.

[40]   It has long been recognised that both forms of sentence (imprisonment and home detention) serve the principles of denunciation and deterrence.25 What is required of a sentencing judge, in choosing between the two, is a considered and principled choice that involves identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.26

22     At [31], citing R v D (CA253/2008) [2008] NZCA 254 at [66].

23     Fairbrother v R, above n 14.

24     R v Vhavha, above n 15, at [29] and [45].

25     Fairbrother v R, above n 14, at [30].

26     Fairbrother v R, above n 14 at [30].

Decision

[41]   Mr Whittle’s eligibility to have his sentence commuted to one of home detention ought not to have turned solely on him having been convicted of the additional charge of assault with a weapon because, as has been made clear by appellate courts, no category or type of offence necessarily bars an offender from being eligible to be sentenced to home detention if they would otherwise have been sentenced to a short-term sentence of imprisonment.27 Similarly, there is the principle of consistency in sentencing and the need to deal with defendants in a similar manner for like offending.28 The four co-offenders, who all faced the same charge of wounding with intent to injure, received sentences of home detention. Mr Whittle’s sentence on that charge was rightly uplifted because of the additional charge of assault with a weapon, and his longer sentence reflected that aspect of his additional culpability.

[42]   I have upheld the uplift in the starting point imposed for that additional charge. However, I do not consider, in addition to the increased sentence for this extra charge, it ought to have rendered Mr Whittle ineligible from being considered for home detention, which appears to be the effect of the decision to decline that sentence. When looking at the culpability of all the offenders who acted together in committing pack violence against a single isolated victim, a level of disparity emerges in the sentences imposed which is not warranted when based solely upon the additional charge laid against Mr Whittle for using a bottle. While highly dangerous, that act has not been identified as having resulted in any discrete additional injury or as having aggravated the very significant consequences for the victim as a result of the joint attack in which all offenders equally participated.

[43]   The Court must have regard to an offender’s rehabilitation and reintegration into the community.29 Mr Whittle, as with his co-offenders who received home detention, presented as a young man with no relevant previous convictions.30 The negative impact of prison on young offenders is well-established, and it has long been

27     Palmer v R, above n 16, at [19].

28     Sentencing Act 2002, s 8(e).

29     Sentencing Act, s 7(1)(h).

30     Section 8(h).

recognised that an offender’s youth ought to provide better prospects for their rehabilitation.31 There is an obvious concern that a custodial sentence, even if only of short duration, will expose Mr Whittle to anti-social influences and potentially render him more likely to be exposed to a pathway towards criminality which should be avoided if at all possible. Given Mr Whittle’s age and the fact he presented effectively as a first offender, a sentence of imprisonment has the potential to be disproportionately severe.32

[44]   As I have been at some pains to stress, the gravity of this offending must be recognised, as must the culpability of Mr Whittle and his co-offenders. It is because of the seriousness  of the violence  and consequences  for the victims, particularly  Mr Thomas, that a starting point for any sentence must be a term of imprisonment. However, when all relevant purposes and principles of sentencing are taken into account, including Mr Whittle’s personal circumstances that bear on his rehabilitation and reintegration back into his community in Whanganui, together with his low risk of re-offending, it is not apparent a sentence of imprisonment is necessary to meet the needs of deterrence and denunciation, or that those objectives cannot otherwise be met by imposing a less restrictive outcome in the form of home detention.

[45]   Mr Whittle has the benefit of strong family support and has himself recognised the importance of his whānau and his close family connections to ensure he maintains his commitment not to be involved in any further offending. The apology letter written by his father on behalf of Mr Whittle’s whānau is indicative of the supportive environment that Mr Whittle has available to him in Whanganui and the strong pro- social influences that are available to guide him.

[46]   Since the offending Mr Whittle has proactively taken meaningful steps to address the causes of his offending by abstaining from alcohol, and engaging in alcohol and drug counselling which involves creating strategies for dealing with similar scenarios in the future. Mr Whittle’s offending, as with that of his co- offenders, was the product of a combination of alcohol consumption, a pack mentality and a lack of impulse control, which is often seen in young offenders. Mr Whittle is

31     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

32     Section 8(h).

recorded in the s 27 report as having reflected on his conduct and the steps he needs to take to address the factors that contributed to his offending. He has demonstrated genuine remorse and prior to his sentencing had taken practical rehabilitative steps by referring himself to alcohol and drug services and taking up employment in Whanganui.

[47]   The seriousness of this offending and the devastating effects Mr Thomas has suffered as a result of such mindless violence justify a punitive response. However, the needs of deterrence and denunciation can still be achieved through a sentence of home detention. Such a sentence has the advantage of promoting Mr Whittle’s rehabilitation and better accords with the approach taken by the sentencing Court with his co-offenders, all of whom, like Mr Whittle, presented with backgrounds which provide them with the opportunity to lead constructive lives. There is a need to treat these young offenders consistently  for  what  was  essentially  similar  offending.  Mr Whittle’s rehabilitation may potentially be jeopardised by being subject to the experience of imprisonment at such a relatively young age. It follows that I consider the Judge erred by not adopting the same approach that, with respect, he correctly took with the other four co-offenders by commuting their short term sentences of imprisonment to home detention.

Result

[48]   The appeal is allowed. The sentence of 22 months’ imprisonment is quashed. Allowing for the period of imprisonment that Mr Whittle has already served since the imposition of sentence, a sentence of nine months and two weeks’ home detention is substituted. In addition to the standard conditions that will apply to that sentence, the following special conditions, as recommended in the pre-sentence report, are imposed:

(a)Not to possess, consume or use any alcohol or unprescribed drugs.

(b)To attend an assessment for drug and alcohol counselling as directed by a probation officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

(c)To undertake and complete the Te Ihu Waka programme and abide by the rules of the programme to the satisfaction of the probation officer.

(d)To attend any educational/vocational and employment training as directed by a probation officer.

Solicitors:

Crown Solicitor, Dunedin