TAVAI v NEW ZEALAND POLICE [2023] NZHC 2077

TAVAI v NEW ZEALAND POLICE [2023] NZHC 2077 [7 August 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-108[2023] NZHC 2077BETWEEN DYLAN TYSON AMATAGA TAVAIAppellantAND NEW ZEALAND POLICERespondentHearing: 3 August 2023Appearances: J M Campbell for AppellantG E R Alloway for RespondentJudgment: 7 August 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 7 August 2023 at 10.40 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Dylan Tavai was sentenced to 21 months' imprisonment in the District Courton 13 June 20231 on a charge of impeding breathing2 and a charge of breaching aprotection order.3 He appeals his sentence of imprisonment, saying that, in all thecircumstances, a sentence of home detention was the least restrictive sentence that wasappropriate.Facts[2] Mr Tavai and his partner, the victim in this case, have been in a relationship foraround 14 years and have several children between them, though these children arenot currently in their care. There has been a protection order in place in favour of thevictim since 2009.[3] In early December 2022, an argument developed between Mr Tavai and thevictim. It continued over the course of the night and, the next morning, Mr Tavaithreatened to shoot himself if the victim left the address as she intended.[4] During the escalating argument, Mr Tavai stood in front of the victim andtwice placed his hands around her throat. The second time, he applied sufficientpressure to the front of her throat such that she could not breathe.District Court decision[5] The Judge, in setting the starting point, noted the particular harm associatedwith strangulation offending, especially the psychological harm. She considered thevictim to have been a vulnerable person, and the offending to have been aggravatedby virtue of the violence used against her in the past by Mr Tavai.[6] A starting point of 24 months was adopted. An uplift of four months wasapplied to reflect the breach of the protection order.1 New Zealand Police v Tavai [2023] NZDC 12004.2 Crimes Act 1961, s 189A; maximum penalty 7 years' imprisonment.3 Family Violence Act 2018, s 112; maximum penalty 3 years' imprisonment.[7] The Judge referred to Mr Tavai's recognition that violence and drug use wereproblematic aspects of his relationship. In particular, he struggled withmethamphetamine abuse. The Judge congratulated Mr Tavai on engaging with aSalvation Army addiction service.[8] The Judge allowed a discount of 20 per cent for Mr Tavai's guilty pleas andfive per cent for his rehabilitative efforts. The 28-month sentence was thereforereduced to 21 months.[9] Turning to whether home detention should be imposed, the Judgeacknowledged Mr Tavai should have the least restrictive sentence possible and onewhich facilitated his rehabilitation. Against this, the sentence needed to make clearthe offending was unacceptable while also protecting the victim.[10] The Judge concluded home detention was insufficient to break the cycle ofdrug-use and violence. Leave was reserved to apply for home detention to a residentialprogramme.SubmissionsAppellant's submissions[11] Mrs Campbell, for Mr Tavai, submits the Judge erred in not arriving at asentence of home detention. As Mr Tavai lost his address due to his imprisonment,Mrs Campbell seeks that leave be granted to apply for home detention (without theresidential rehabilitation prerequisite) to allow for an appropriate address to beorganised. Mr Tavai's parents, who attended the appeal hearing, were prepared to offertheir home as an address.[12] She submits home detention is the least restrictive available sentence, and thereare not grounds for instead imposing a sentence of imprisonment. She notes thepre-sentence report recommended a sentence of home detention; the report writernoted Mr Tavai's willingness to engage with the treatment and risk managementpathway he himself had identified.[13] Mrs Campbell also notes that Mr Tavai engaged with the Salvation Army onhis own volition, and with a view to attending and completing residential treatment.Mr Tavai also spoke with He Waka Tapu in relation to a stopping violence course,sought additional community support from Aviva, and recognised a non-associationcondition with his partner may be appropriate.[14] Mrs Campbell argues imprisonment undermined these rehabilitative efforts.Mr Tavai lost his address and access to the Salvation Army's residential program.There has been no alcohol and drug assessment of Mr Tavai, and he has only this weekhad any contact with his case manager. He will still need to overcome the significantwaitlists for residential rehabilitation programs. Meanwhile, in prison he has not hadaccess to any courses yet due to being in isolation as a result of threats to personalsafety.[15] Mrs Campbell submits the Judge overstated Mr Tavai's cycle of violence andwhat was required to protect the victim. His most recent conviction for violenceagainst his partner was from 2017, and there were no further allegations of violencebetween the current offending and sentencing.[16] Finally, Mrs Campbell notes that if the Judge wished to explore theappropriateness of residential rehabilitation, s 25 of the Sentencing Act could havebeen utilised which allows a Judge to adjourn sentencing for enquiries into the mostsuitable method of dealing with the case or to allow a rehabilitation programme to beundertaken.Respondent's submissions[17] Mr Alloway, for the respondent, submits the Judge addressed the keyconsiderations, being the need to protect the victim from further offending(particularly when a protection order failed to do so), rehabilitation, and denunciation.Under s 16 of the Sentencing Act, the Judge was required to balance these factors anddid not need to prioritise Mr Tavai's rehabilitative needs.[18] Mr Alloway highlights that methamphetamine was a feature of the offendingwith Mr Tavai acknowledging having used it during the four days prior to the incident.Where addiction underlies criminal offending, home detention may be inappropriate.He cites Sands v Police, where the High Court made the point that substance abusecannot be as well monitored in the home, and rehabilitative facilities may be better.4It was open to the Judge to conclude Mr Tavai's methamphetamine addiction wouldbe better addressed in a structured environment.[19] In respect of denunciation, Mr Alloway submits the offending was serious,involving strangulation, and was more serious than the 2017 offending against thesame victim for which Mr Tavai served a sentence of home detention. Given theescalation of offending, the Judge did not err in concluding home detention wasinsufficient to denounce the offending.[20] Mr Alloway argues no error arose from the Judge failing to adjournproceedings under s 25. He cites Zhang v R for the point that s 25 is directed towardsallowing the offender to complete residential treatment, rather than allowing counselto find an available treatment facility for the purposes of home detention.5 A moredetailed plan is necessary.Analysis[21] Mr Tavai has advanced a focused appeal concerned only with the decision tosentence him to imprisonment with leave to apply for home detention provided it is toa residential rehabilitation program.[22] The approach on an appeal on such grounds is that of standard appellate reviewas laid out in the decisions of Palmer and Tutakangahau.6 The appeal proceeds byway of rehearing, and the onus is on the appellant to identify the part of the judgmentsaid to be in error. Because of the array of considerations requiring evaluation, asignificant margin of appreciation is often extended to the sentencing Judge onappeal.74 Sands v Police [2018] NZHC 3048.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [181].6 Palmer v R [2016] NZCA 541 at [18]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482 at [26]–[27].7 Twomey v R [2018] NZCA 206 at [13].[23] In Fairbrother v R, the Court of Appeal stated:8[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other"(footnote omitted)[24] A sentencing judge may have regard to the need to assist in the offender'srehabilitation and reintegration into the community.9 As the Court of Appeal noted inR v Hill:10Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[25] Mr Tavai, as recognised by Judge Duggan, has taken ownership of hisoffending and made efforts to address a relevant cause, namely his drug use. Hisengagement with Salvation Army rehabilitative services is promising. A letter fromSusan Lumb, a coordinator for the Salvation Army Bridge program Mr Tavaiparticipated in, spoke of him as an active member with identified goals of drugabstinence who worked positively to develop relapse prevention skills and wasmotivated and committed. While statements of willingness to engage withHe Waka Tapu services and Aviva support can only take him so far, they do reinforcewhat appear to be genuine efforts at rehabilitation. That said, the pre-sentence reportrecorded that Mr Tavai would require support to become drug free.[26] The Judge, in my view, reasonably balanced the need to give Mr Tavai theopportunity to rehabilitate, but in an environment where he would be supported to doso while avoiding the risk of violence to his partner.8 Fairbrother v R [2013] NZCA 340.9 Sentencing Act 2002, s 7(1)(h).10 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].[27] That conclusion was succinctly captured in the Judge's observation that:11I am not satisfied, with your history, that there is any other way to break thecycle of using drugs and being violent and that is why residential rehabilitationneeds to happen.[28] While Mrs Campbell advised that the relationship with his former partner isnow over, and Mr Tavai would be happy to comply with a non-association clause, it isdifficult to have confidence in that statement given the long history this couple has ofresuming their troubled relationship and being the subject of family violence incidents.Furthermore, this offending has occurred despite Court intervention including theissue of a protection order. The Family Violence Bail Report shows a regular recordof family violence incidents between the couple since they first got together, andcontinuing after the 2017 incident.[29] It is also unclear to me just what support Mr Tavai would have if he were to begranted home detention now. While Mrs Campbell suggests he could pick up wherehe left off on the Salvation Army Bridge programme, that is simply her understanding.I would need to have confidence that he could immediately resume a very structuredrehabilitative programme on release from prison, but Mrs Campbell's submissionsassert he has lost any position in respect of the residential programme he had beenworking towards.[30] For all these reasons, while the matter was finely balanced, I am not satisfiedthat the Judge erred when determining that prison was the least restrictive sentencethat it was appropriate to impose taking into account the relevant purposes ofsentencing.Conclusion[31] Accordingly, the appeal is declined.Solicitors:Crown Solicitor, ChristchurchCopy to:J Campbell, Barrister, Christchurch11 At [21].