PARAHA v R [2022] NZCA 646

PARAHA v R [2022] NZCA 646 [21 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA258/2022[2022] NZCA 646BETWEEN JOSHUA SIMON PARAHAAppellantAND THE KINGRespondentHearing: 15 August 2022Court: Katz, Wylie and Palmer JJCounsel: D A Kemp for AppellantM W Nathan for RespondentJudgment: 21 December 2022 at 9:00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Joshua Paraha was convicted of aggravated burglary1 following a jury trialbefore Judge Gibson in the Auckland District Court.1 Crimes Act 1961, ss 232(1)(a) and 66 (maximum penalty: 14 years' imprisonment).[2] Judge Gibson sentenced Mr Paraha to six years and nine months' imprisonmenton 11 May 2022 (the May Sentence).2 Mr Paraha appeals that sentence on the basisthat it is manifestly excessive.3[3] Mr Paraha's specific concern with the May Sentence is that the Judge providedno discount to reflect his personal circumstances and rehabilitative efforts. Morebroadly, however, the issue raised by this appeal is whether Judge Gibson should haveadjusted the May Sentence for totality to reflect that, two months earlier, JudgeFitzgerald had sentenced Mr Paraha in respect of nine other offences that Mr Parahahad committed around the time of, or in the months preceding, the aggravated burglary(the March Sentence).4[4] The Crown opposes Mr Paraha's appeal. It says that Mr Paraha's total effectiveend sentence was well within range and not manifestly excessive.Background[5] On 26 June 2020, Mr Paraha was sentenced to 12 months'intensive supervision for 15 charges of lower-gravity dishonesty, violence, driving anddrug-related offending occurring during the period between 28 June 2017 and 29 June2019.[6] While on intensive supervision for that offending, Mr Paraha committed10 further offences: nine offences which Mr Paraha pleaded guilty to, and which weredealt with by Judge Fitzgerald in the March Sentence; and the aggravated burglarywhich went to a jury trial, and which was dealt with by Judge Gibson in theMay Sentence.[7] We will first summarise the March Sentence, and the offending it relates to,before turning to consider the May Sentence.2 R v Paraha [2022] NZDC 8420 [May sentencing notes].3 Criminal Procedure Act 2011, ss 244(1), 247(1)(d) and 250.4 R v Paraha [2022] NZDC 11898 [March sentencing notes].The March Sentence[8] On 3 March 2022, Judge Fitzgerald sentenced Mr Paraha in respect of the ninecharges he had pleaded guilty to. The Judge described the relevant offending in hissentencing notes as follows:[1] firstly, in 2020 unlawfully getting into a motor vehicle and theft on17 October 2020 The facts in brief regarding those charges are that thevictim had his Toyota HiAce van stolen from an address in Mount Albert onSunday 20 September 2020. On 17 October 2020 at about 11.05 pm you werelocated by the police in that van. The police then found six blue oil drums inthe back of the Toyota HiAce van which had been stolen from a place calledAbilities Group, the value of those items $480.[2] Next, breaching intensive supervision on 27 November 2020 bytesting positive for use of an illicit drug which was in breach of a conditionnot to possess such things. Then unlawful taking of a Royal Enfieldmotorcycle between 22 and 24 December 2020. The facts regarding that are that the victim had parked his Royal Enfield road bike in the carpark atSky City at about 11 am on 22 December. You took that bike from the carparkat about 1.43 am on 24 December.[3] The following offences in 2021, intentionally damaging a barrier armat Sky City and then failing to stop for the lights and siren of a police car on4 February. At about 1 am on that date you had been at the casino and youwere leaving in a Nissan car. As you approached the barrier arm you drovethrough it causing extensive damage before driving away. Police observedyou doing that and activated their lights and siren but you did not stop anddrove dangerously at high speed on Hobson Street.[4] Then unlawful possession of a pistol and unlawful possession ofammunition on 14 February 2021. On that date you were stopped driving aNissan car, the police searched the vehicle and located a 9 millimetre pistoland two rounds of ammunition inside the magazine. The pistol andammunition were found inside an orange shoulder bag. Then there is anothercharge of unlawful possession of ammunition on 18 May 2021.[9] As noted above, all of these offences were committed while Mr Paraha wasserving a sentence of intensive supervision. In addition, the seven offences followingthe initial two charges were committed while Mr Paraha was on bail.[10] Judge Fitzgerald adopted a 10-month starting point for the unlawful taking ofa motor vehicle charge, which carries a maximum of seven years' imprisonment.5That starting point was then uplifted by three months for the balance of the offending,excluding three offences which were punishable only by a fine. There was an5 Crimes Act, s 223(b); March sentencing notes, above n 4, at [9].additional one-month uplift for offending carried out while Mr Paraha was on bail.No uplift was applied in respect of Mr Paraha's previous convictions.6[11] The Judge gave Mr Paraha a 25 per cent discount for his (relatively) earlyguilty pleas.7 The Judge also gave a further 25 per cent discount to reflect that:(a) Mr Paraha had attended a restorative justice meeting with the ownersof the oil drums;8(b) Mr Paraha had been subject to EM bail for "a number of months"(although the Judge noted that there had been compliance issues);9(c) Mr Paraha had a disadvantaged background, as set out in in a reportprepared pursuant to s 27 of the Sentencing Act 2002 (the s 27 Report).The Judge noted that the disadvantage that Mr Paraha had suffered hadits origins in colonisation and the intergenerational difficulties that flowfrom that. The Judge further observed that it was "also likely that othernegative impacts such as [Mr Paraha's] drug addictions had theirsources in such issues and experiences".10(d) Mr Paraha had undertaken voluntary work at a childcare centre overthree weekends. The Judge referred to the quality of the work "in termsof the improvements to the childcare centre" and noted that the managerof the centre had been "particularly impressed" by "the attitude[Mr Paraha] brought to it".11 (We note that the manager of the childcarecentre who wrote the reference letter appears to be Mr Paraha's mother.To the best of our knowledge, this was not drawn to the attention of theJudge).126 March sentencing notes, above n 4, at [10].7 At [11].8 At [11].9 At [11].10 At [12].11 At [12].12 Mr Paraha's mother's name, which is relatively unusual, is referred to in the s 27 Report (albeitmisspelt) and twice in the submissions of Mr Kemp, counsel for Mr Paraha.[12] The result was an effective end sentence of seven months' imprisonment.13The May Sentence[13] Following a jury trial, Mr Paraha was found guilty of the aggravated burglarycharge. When sentencing him, Judge Gibson summarised the facts of the aggravatedburglary as follows:14[3] The facts of the matter are that the burglary was carried out during theday when the residence you targeted with two others was inhabited by twopersons who lived there. With the offending occurring at that time it raisedthe risk of confrontation with the occupants and in fact that happened.You kicked in the door; you took from what I could see from the CCTVcoverage the main role in kicking in the door. Beside you was another personwho was armed with a rifle. You were bigger than him and so no doubt yourstrength was needed to gain access to the property. You targeted the propertybecause you believed, wrongly, that there was a cannabis stash there. All Ican conclude is that either the intelligence you received was wrong or you[mistakenly] targeted the wrong address but you and the co-offender who hasnot been detected and who was armed with a rifle as I said kicked in the doorand then confronted the male occupant of the house who had moved to thehallway once he realised there was that activity occasioned by you. The thirdoffender who has already been sentenced was left outside the garage doorwhich was on the lower part of the household and he gained admission oncethe door was able to be opened after you had got into the house.[4] The occupants were clearly intimidated, understandably so, but Iaccept there was no physical violence inflicted on them and you seem to havebeen able to calm the situation down so that the gunman in particular did notuse his weapon to inflict physical violence on the occupants. You searchedthrough the house for the cannabis and you corralled the two occupantsdownstairs to the garage area where the garage was opened to admit your otherco-offender. The search was fruitless and it was you who returned to theproperty, after the other two had gone up the drive to get into the car, and tooktwo guitars with you. Those guitars have not been recovered and have a valueof approximately $2,000.[14] The Judge also noted that during the burglary the rifle was pointed at theoccupants in an effort to subdue them and have them comply with the search oftheir home.15[15] The Judge then considered the appropriate starting point. Noting that R v Makowas the applicable guideline judgment,16 the Judge identified four aggravating13 At [13]–[14].14 May sentencing notes, above n 2.15 At [8(d)].16 At [8], citing R v Mako [2000] 2 NZLR 170 (CA). The Judge observed that, although R v Makofeatures of the offending: premeditation; the involvement of multiple offenders; thefact there had been a home invasion "in broad daylight"; and the fact a firearm hadbeen used in the offending to subdue the occupants and force them to comply with thesearch.17 The Judge acknowledged that Mr Paraha had taken some steps to de-escalatethe situation.18[16] Although the Judge referred to the guideline judgment of R v Mako,19 hefocused on two comparator cases: R v Stade20 and R v Hay.21 Given the absence ofactual violence, he relied primarily on R v Hay, where starting points of seven yearsand nine months' imprisonment and eight years and six months' imprisonment wererespectively imposed on two co-offenders.22[17] Taking into account these matters, Judge Gibson adopted a starting point of sixyears and six months' imprisonment.23 He then uplifted that sentence by three months,to reflect that the offending had occurred while Mr Paraha was on bail.24concerned aggravated robbery, the bands set out in that case "can equally apply to aggravatedburglary". This Court has acknowledged that R v Mako applies by analogy to sentencing foraggravated burglary: see R v Watson CA224/03, 24 October 2003 at [27]–[28]; and Pearson v R[2020] NZCA 573 at [22]–[23].17 May sentencing notes, above n 2, at [8(a)]–[8(d)].18 At [13].19 At [9], citing R v Mako, above n 16, at [58].20 May sentencing notes, above n 2, at [11]–[13], citing R v Stade [2015] NZHC 2611. That caseconcerned an aggravated burglary of a residential dwelling in the early evening by three offenders.The principal offender was armed with a .22 calibre rifle; he pointed the rifle at the victims andstruck one of the victims in the face with the barrel. The appeal primarily concerned theappropriate sentence for the getaway driver, Mr Stade, however in the course of his reasoningGendall J noted that the eight-year starting point adopted for the principal offender was"unimpeachable", likewise the seven-year starting point adopted for an unarmed co-offender whohad entered the property and had a physical altercation with one of the victims: at [31].21 May sentencing notes, above n 2, at [12]–[13], citing R v Hay [2015] NZCA 329, [2015] NZAR1426 involved two offenders breaking into a residential dwelling in the early hours of the morning,when the victims were present with children. One offender had a loaded firearm, the other acrowbar. They exchanged the weapons throughout the offending.22 May sentencing notes, above n 2, at [12].23 At [15]–[16].24 At [17].[18] No discount was given to recognise Mr Paraha's personal background, as setout in the s 27 Report or Mr Paraha's rehabilitative efforts.25 The end sentence wasaccordingly six years and nine months' imprisonment.26Principles on appeal[19] Section 85 of the Sentencing Act requires a court to consider the totality ofoffending when determining an appropriate sentence. As the authors of Adams onCriminal Law elaborate, when sentencing multiple offences, the principle of totalityrequires that:27 the sentencing judge must not only consider each offence individually, butalso assess the offender's overall culpability and determine what effectivesentence is appropriate for the totality of his or her conduct[.][20] Where successive sentencing hearings occur, courts must ensure the overalleffective sentence imposed on a defendant reflects the offending's gravity in totality— particularly where the offending for sentencing is related, or in the case of unrelatedevents, proximate.28 As this Court has previously stated:29Where separate sentences have been imposed for different offences, on appealthe proper approach to review is to assess what would have been theappropriate sentence had one Judge sentenced the offender on the sameoccasion for all the offences involved [21] Here, the offending relates to different incidents and events, but occurredwithin the same broad time period. Mr Kemp, counsel for Mr Paraha, franklyacknowledged that there are several features of this case which count against a totalityapproach being taken across all of the offending. The Crown, however, was preparedto accept that a totality approach to sentencing Mr Paraha is appropriate, and weproceed on that basis.25 At [18]. The Judge recorded in his notes that the only discount sought was a discount for thefactors referred to in the s 27 Report. On appeal, however, Mr Kemp submits that Mr Paraha'scounsel at the time sought a discount for rehabilitative efforts in the May Sentence and that thismay have been overlooked at sentencing.26 At [19].27 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at[SA85.01].28 Skipper v R [2011] NZCA 250 at [34].29 R v Fissenden CA364/95, 21 February 1996 at 2. See also Piao v R [2020] NZCA 607 at [22] andthe cases cited therein.[22] The total effective sentence imposed on Mr Paraha in respect of all theoffending (namely, the cumulative total of the March Sentence and the May Sentence)is seven years, four months' imprisonment. Applying the principles set out above, thisCourt should only intervene if that total sentence is "wholly out of proportion to thegravity of the whole of the offending".30 To determine whether intervention isrequired, we consider below what the appropriate sentence would have been if oneJudge had sentenced Mr Paraha on the same occasion for all the offending.What would have been the appropriate sentence if one Judge had sentencedMr Paraha on the same occasion for all the offending?The starting point[23] The lead offence is the charge of aggravated burglary, which carries amaximum sentence of 14 years' imprisonment. Mr Paraha takes no issue with thestarting point of six years and six months' imprisonment adopted by Judge Gibson inrespect of that offence. We accept the Crown submission, however, thatJudge Gibson's starting point was a generous one.[24] R v Mako is the guideline judgment for aggravated robbery. As noted above,it applies also (by analogy) to aggravated burglary. It suggests a starting point ofbetween seven and 10 years' imprisonment for offending of this type:31Forced entry to a premises at night by a number of offenders seeking money,drugs or other property, violence against victims, where weapons arebrandished even if no serious injuries are inflicted would require a startingpoint of seven years or more. Where a private home is entered the startingpoint would be increased under the home invasion provisions to around10 years.[25] The "home invasion provisions" referred to in R v Mako have since beenrepealed, and the reference to a 10-year starting point must be read in that context.Nevertheless, unlawful entry into a private home remains an aggravating factor forsentencing purposes.3230 Haywood v R [2015] NZCA 551 at [11].31 R v Mako, above n 16, at [58].32 Sentencing Act 2002, s 9(1)(b). See also Tiori v R [2011] NZCA 355 at [10]–[16]; and Pearson vR, above n 16, at [23].[26] The Court further observed in Mako that:[39] The number and types of weapons and how they are brandished willbear upon the level of culpability. It is not to be assumed necessarily that themore potentially lethal the weapon the more serious the offence, althoughthere will be greater danger of harm to a greater number of people where aloaded firearm is presented. The danger of knives in the hands of nervous oraggressive offenders when confronted by the unexpected is all too familiar.Similarly the insidiousness of threats by horrible weapons such as syringes orharmful substances must not be minimised. The actual or potential dangershould be evaluated, not merely assumed from the nature of the targetpremises. Generally the use of unloaded firearms (though no comfort tovictims) gives rise to less danger – but it can be noted that in the case underappeal an unloaded weapon still led to shots having to be fired by the policein a residential area. It should be kept in mind that the very object of offendersis to convince victims that firearms are loaded and the impact on them is noless because they are in fact not loaded. Nor is there any less risk that victimsmight react in ways dangerous to themselves or others believing they are inmortal danger.[27] Although the aggravated burglary here did not involve actual violence, it didfeature a number of other aggravating factors, including that:(a) The burglary was a "home invasion" that involved kicking in the doorto gain entry to a private residence when the occupants were at home.(b) Three offenders were involved, two of whom entered the property.The Court noted in Mako that "[t]he number of participants and theirdeployment may reflect more sophisticated or organised activity andmay increase the degree of intimidation and fear engendered amongvictims."33 Those observations are apt here. The involvement ofmultiple burglars is also an aggravating feature due to a heightened riskof violence.34(c) Mr Paraha's associate was brandishing a firearm, which he pointed atthe victims twice during the burglary. Such behaviour carries with it areal risk of violence, including the risk of confrontation and (as noted33 R v Mako, above n 16, at [37].34 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [79], citing R v Povey [2009] NZCA 362at [15].in Mako) the risk that victims might react in ways dangerous tothemselves or others believing they are in mortal danger.35(d) The offending was highly traumatic for the victims, one of whomreferred to being "in fear of [his] life" and the other of whom fearedthat she "might get a bullet in [her] back".(e) The offending was organised and premeditated — the offenders' aimwas to steal cannabis that they (wrongly) believed was on the premises.[28] In Mr Paraha's favour, we accept Judge Gibson's findings that Mr Paraha tooksteps to de-escalate the confrontation with the homeowner that occurred when theoffenders entered the property. However, after Mr Paraha's associates had left theproperty and returned to their vehicle, it was Mr Paraha alone who returned to steal$2,000 worth of property before leaving with his associates. Such a return to theproperty after the victims believed the offenders had left would no doubt have addedfurther to their trauma, as well as risking further confrontation and violence.[29] Taking all of these matters into account, it is our view that the Judge's startingpoint of six years and six months' imprisonment was generous. A starting point ofbetween seven years' and seven years and six months' imprisonment would have beenmore consistent with the guidance given in Mako and cases such as R v Hay.Uplift for Mr Paraha's other offending[30] Mr Paraha's other offending, which was sentenced by Judge Fitzgerald in theMarch Sentence, is summarised at [8] above. In our view an uplift of at least 10months is appropriate to reflect the six offences that were punishable by imprisonment(three of the offences were punishable only by a fine). As noted above, two of theoffences carried maximum penalties of seven years' imprisonment. Given that it isnot appropriate to apply a guilty plea discount to the aggravated robbery offending, insetting the appropriate uplift for Mr Paraha's other offending we have had regard toMr Paraha's guilty pleas for the six imprisonable offences (he was convicted and35 R v Mako, above n 16, at [39].discharged on the other three charges). The appropriate discount for personalcircumstances, however, is addressed globally below.Uplift for personal aggravating factors[31] All of the offending covered by the March Sentence and the May Sentencetook place when Mr Paraha was subject to an order of intensive supervision. Eight ofthe offences were also committed while Mr Paraha was on bail. Notably, on fiveseparate occasions during a relatively short time span, Mr Paraha went on to commitfurther offending after being arrested, charged, and released on bail. Further,Mr Paraha's offending and bail breach on 18 May 2021 occurred less than two monthsafter a "final, final" warning from the District Court, which itself followed a "final"warning approximately two weeks prior.[32] Mr Paraha's continued offending on bail, while he was also subject to anintensive supervision order, was egregious and showed a total disregard forcourt orders. In our view a six-month uplift is appropriate to reflect such conduct.Discount for Mr Paraha's personal circumstances and pre-sentence rehabilitativeefforts[33] Judge Gibson and Judge Fitzgerald were, obviously, sentencing for differentoffending and had different pre-sentence reports before them at the time of sentencing.They were both provided, however, with the s 27 Report.[34] Judge Fitzgerald was of the view that the contents of that report, together withthe various other matters outlined at [11] above, justified a 25 per cent discount.36Judge Gibson, on the other hand, was of the view that a discount for personalcircumstances was not warranted. He stated that:[6] You have not been in work since 2010 and effectively you havebeen acting as a habitual criminal and I assume supporting yourself in part bythe proceeds of property offences and the like.[7] As for your personal circumstances your mother was Samoan, yourfather was Māori or part-Māori and you identify as Māori but you donot attach very much significance to your Māori culture. You were effectively36 March sentencing notes, above n 4, at [11]–[12].brought up by your mother. You have no complaint in the reports about yourchildhood, you have at least two brothers, for one of whom you made the pointthat he has not had any criminal offences or convictions other than a drivingconviction, driving with excess blood alcohol, and both in contrast to you arein regular employment. You drifted into a youth gang but you left when youwere 16 and you are a user of methamphetamine.[35] On the issue of whether Mr Paraha's background warranted a reduction in thesentence, the Judge said that:[18] The only discount sought is one for cultural reasons under s 27 of theSentencing Act 2002. There needs to be social, cultural or economicdeprivation that has a demonstrated nexus with the offending before a discountcan be given. That was set out in Zhang v R.37 As I have already made thepoint you make no complaint about the way you were brought up.Your brother who presumably had the same upbringing as you and the samebackground as you has been a law-abiding citizen save for a relatively minorconviction for driving with excess breath or blood alcohol. Both your brothersare in employment. Effectively you criminalised yourself, possibly throughdrugs, and in my view there is no nexus established to the offending as a resultof social, cultural or economic deprivation and neither is there in my view anysatisfactory evidence of systemic deprivation. Accordingly I refuse thediscount for cultural reasons.[36] It seems likely that the difference in approach between Judge Fitzgerald andJudge Gibson was attributable, at least in part, to the fact that Judge Gibson also hadbefore him a pre-sentence report in which Mr Paraha stated that his childhoodwas "good". Mr Paraha also told the pre-sentence report writer that his father had leftthe family when Mr Paraha was young. We assume this information to be correct, asMr Kemp did not take any issue with this statement, which was expressly referred toin his submissions.[37] There are some apparent inconsistencies between the information in thepre-sentence report before Judge Gibson and the s 27 Report. Most notably, MrParaha's statement to the pre-sentence report writer that his childhood was "good" isat odds with the s 27 Report which paints a much bleaker picture of Mr Paraha'schildhood. Further, the s 27 Report makes no mention of Mr Paraha's father havingleft the family when Mr Paraha was young. On the contrary, the s 27 Report impliesthat Mr Paraha's father was a violent and emotionally abusive presence in the familyhome throughout Mr Paraha's childhood and youth.37 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.[38] Nevertheless, the s 27 Report does contain helpful background information thatis relevant to the sentencing exercise. Based on our review of that report, consideredtogether with the pre-sentence report provided to Judge Gibson, the key aspects of MrParaha's personal background which are relevant for present purposes appear to be asfollows.[39] Mr Paraha is 33 years old. His father is Māori and his mother is of Samoanheritage. Mr Paraha's father left the family when Mr Paraha was young. Mr Parahawitnessed domestic violence (presumably largely prior to his father's departure).He also suffered physical, verbal and emotional abuse at the hands of his father(particularly when his father was drunk). Again, we infer that this primarily took placeprior to Mr Paraha's father leaving the family home.[40] After Mr Paraha's father's departure, Mr Paraha and his brother were raised bytheir mother as a single parent. It is not clear what level of ongoing contact Mr Parahahad with his father. The only issue raised by Mr Paraha in relation to his mother's careappears to be that she worked a lot, which she acknowledged. Otherwise, Mr Parahatold the pre-sentence report writer, his childhood was "good". The household was aChristian one and Mr Paraha regularly attended church with his mother and siblings.[41] At school, however, Mr Paraha was regularly subjected to childhood bullying.He associated with an anti-social peer group and started drinking alcohol and smokingcannabis from a young age. Mr Paraha reports that he was excluded from high schoolin year nine due to behavioural issues, following which his mother sent him to a privateChristian school. He did not remain long at that school, however, due to their strictrules and the use of corporal punishment (caning).[42] During his primary and intermediate school years Mr Paraha proudly identifiedas Samoan and spent a lot of time with his maternal grandmother, who still livedaccording to traditional Samoan values and who never learned to speak English. In hisearly high school years Mr Paraha became more interested in his Māori heritage, butthis was not supported or encouraged by his father. As a result, Mr Paraha was caughtbetween two cultures and felt during his teenage years that he did not fit into either ofthem.[43] Mr Paraha's mother, who was concerned about the types of friends her son wasmaking, decided to send him to live with his older sister in Australia "for a fresh start".Mr Paraha attended the local high school there but the s 27 Report records that he"spent a lot of time wagging and partying". He says that he made friends with "thewrong kind of people". He also started to experiment with heroin andmethamphetamine, before returning to New Zealand a short time later. As thes 27 Report writer notes:Mr Paraha's disruptive behaviours at school, issues with authority,non-compliance and his use of cannabis from an early age negatively impactedhis education pathway.[44] In his late teens Mr Paraha was involved in a car accident in which he wasseriously injured and his best friend died. The psychological and physical trauma fromthe accident increased Mr Paraha's reliance on methamphetamine. Then, during hislate adolescence and throughout his 20s, the s 27 Report records that Mr Paraha "spenta lot of time with his mates in a gang they called NBR – Nothing But Ruthless".He struggled to work due to the injuries he had sustained in the car accident andbecame heavily addicted to methamphetamine. Mr Paraha says that he was under theinfluence of methamphetamine when he committed the aggravated burglary. The s 27Report identifies methamphetamine as:The drug that has shaped his early adult life and created a downward spiralbased around his addiction, the people he associated with and the crimes thathe committed in order to finance this addiction.[45] It is clear from the s 27 Report that Mr Paraha displayed challengingbehaviours from a young age, gravitated towards anti-social peers, and developed anincreasing drug habit from his early teens onwards. The reasons for this are no doubtcomplex. Some of Mr Paraha's trajectory clearly relates to personal choices he hasmade. We do not overlook, however, that Mr Paraha has likely also been impacted bytraumatic experiences in his childhood and youth, as outlined above. In addition, MrParaha's childhood experiences likely contributed to his drug use (and eventualaddiction). His addiction, in turn, likely contributed to the present offending.[46] On the other hand, Mr Paraha has had a level of whānau support that, sadly,many other offenders do not. In particular, he has had the benefit of being raised by aloving, committed and supportive mother who clearly did her best throughout hischildhood to keep Mr Paraha on the right track and, wherever possible, remove himfrom negative influences. This included taking him to church regularly, immersinghim in her Samoan culture (through his grandmother), enrolling him in a privateChristian school, and sending him to Australia for a "fresh start".[47] Taking all of the background factors we have outlined into account, it is ourview that a modest discount is warranted to reflect Mr Paraha's personalcircumstances.[48] Turning now to Mr Paraha's rehabilitative efforts, evidence was provided toJudge Gibson demonstrating that:(a) During June 2021 Mr Paraha completed a number of modules of theTe Hokinga Mai-Raki rehabilitation and training programme offered byPARS Inc.(b) Mr Paraha completed courses on fatherhood and financial skills inJuly 2021.(c) Mr Paraha returned a negative test result for drugs and alcohol inAugust 2021, while in Mt Eden Corrections Facility.(d) Mr Paraha completed various lessons of Kairology's Time for Changeprogramme in August 2021.(e) Mr Paraha undertook voluntary community work at an early childhoodcentre.In our view some credit for these rehabilitative efforts is also appropriate.[49] When assessing the degree of Mr Paraha's genuine commitment torehabilitation, however, it is necessary to have regard to the broader backgroundcontext. This includes that all of the offending occurred when Mr Paraha was subjectto a sentence of intensive supervision, which is a rehabilitative sentence. Hence,despite being given the opportunity of a sentence with a strong rehabilitative focus inJune 2020, Mr Paraha continued to offend, in breach of his court-imposed supervisionand bail conditions.[50] We further note that the core issue that Mr Paraha must address if he is to breakthe cycle of offending is his drug addiction. Judge Fitzgerald, when sentencingMr Paraha on 3 March 2022, noted that all of the people who had attended therestorative justice meeting recommended that Mr Paraha consider a drug rehabilitationprogramme. Two months later, however, Mr Paraha advised the pre-sentence reportwriter that while he was open to attending a community alcohol and drug programmeto address his substance abuse issues, he would not be interested in attending "anotherresidential rehabilitation programme". We acknowledge that the reason Mr Parahagave was that he wanted to find employment, but have some reservations regardingthis reason, given that Mr Paraha has not worked since 2010.[51] Finally, Mr Paraha is entitled to some credit for attending a restorative justicemeeting in relation to one of the 10 charges (the theft of the oil drums).[52] Overall, we consider that Judge Gibson erred by declining to apply a discountfor Mr Paraha's personal mitigating factors. It is our view that the various personalmitigating factors we have outlined warrant a combined sentence discount of 15 percent.Was the total effective sentence manifestly excessive?[53] We have considered what the appropriate sentence would have been if oneJudge had sentenced Mr Paraha on the same occasion for all of the offending. On ouranalysis (as set out above) an appropriate total sentence would be in the range ofseven years and one month's imprisonment and seven years and six months'imprisonment.[54] The total effective sentence of seven years and four months' imprisonmentactually imposed on Mr Paraha (the total of the March Sentence and theMay Sentence) is within this range. It necessarily follows that, despite the fact thatJudge Gibson erred by declining to apply a discount for personal mitigating factors,the May Sentence is not manifestly excessive.Result[55] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent