MAAKA-WANAHI v NEW ZEALAND POLICE [2023] NZHC 3291

MAAKA-WANAHI v NEW ZEALAND POLICE [2023] NZHC 3291 [21 November 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-35[2023] NZHC 3291BETWEEN KINGI DUVAL MAAKA-WANAHIAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2023 (via VMR)Appearances: N P Bourke for AppellantR L Hicklin for RespondentJudgment: 21 November 2023JUDGMENT OF McQUEEN J[1] On 16 October 2023, Kingi Maaka-Wanahi was sentenced by Judge Grieg inthe Hāwera District Court to two years and two months' imprisonment on six chargesto which he pleaded guilty.1[2] Mr Maaka-Wanahi now appeals that sentence. He says that his FASD andADHD were not appropriately accounted for by the Judge in setting and adjusting thestarting point, making the end sentence manifestly excessive.2 The Police opposeMr Maaka-Wanahi's appeal.[3] For the reasons below, I allow Mr Maaka-Wanahi's appeal.1 Police v [Maaka]-Wanahi [2023] NZDC 23152 [Decision under appeal].2 I use 'FASD' as an abbreviation for Foetal Alcohol Spectrum Disorder without Sentinel FacialFeatures. 'ADHD' is likewise used as an abbreviation for Attention Deficit Hyperactivity Disorder.The offending[4] There were three episodes of offending, giving rise to six charges. Theseepisodes occurred while Mr Maaka-Wanahi was subject to a sentence of intensivesupervision and electronic monitoring.[5] The first charge of burglary occurred on 8 July 2023. Mr Maaka-Wanahientered a garage and stole a motor-vehicle, which was left locked and alarmed.Mr Maaka-Wanahi used a spare key he found in the garage. The GPS data from hisEM bail anklet indicated that he was at the victim's address at approximately11:10 pm. Mr Maaka-Wanahi also took a screwdriver and a tomahawk from thegarage. Between 8 July 2023 and 10 July 2023, Mr Maaka-Wanahi also enteredanother property without authority on four occasions. From there, he took threeelectric scooters, three chargers, a hammer, and an electric compressor, giving rise tothe second charge of burglary.[6] Then at approximately 10:25 pm on 10 July 2023, Mr Maaka-Wanahi wassighted by the owner of the vehicle he had stolen, who, along with three others,confronted him. Mr Maaka-Wanahi became enraged and swung the tomahawk aroundin an intimidating manner, using it to smash the rear window of the vehicle in whichthe victim had arrived, who then, with the others, fled. This gave rise to the charges ofintentional damage and possession of an offensive weapon.[7] Approximately ten minutes later, Mr Maaka-Wanahi and a female associatewere in the stolen vehicle. They were spotted by the Police. Mr Maaka-Wanahi'sassociate was driving and drove the stolen vehicle away. Mr Maaka-Wanahi eitherexited the car, or was already outside of it, and stood in front of a Police car, attemptingto obstruct it from pursuing the vehicle. Mr Maaka-Wanahi's associate then droveaway, with Mr Maaka-Wanahi inside the car again, speeding and driving dangerouslythroughout Hāwera, being chased by the Police for approximately 30 minutes. Duringthis time Mr Maaka-Wanahi was throwing items out of the car at the pursuing Policecar. This gives rise to the charge of assault with a weapon.[8] Eventually, Mr Maaka-Wanahi's associate lost control of the vehicle and itstopped. While being arrested, Mr Maaka-Wanahi swung his elbow back into the faceof one of the Police officers. This gives rise to the charge of assault on a Police officer.When the vehicle was searched, one of the electric scooters referred to above wasfound, as was the electric compressor. Part of Mr Maaka-Wanahi's explanation to thePolice was that he was trying to impress his associate, and that he did whatever shetold him to.[9] The charges to which Mr Maaka-Wanahi pleaded guilty were:(a) two charges of burglary;3(b) assault with a weapon;4(c) possession of an offensive weapon;5(d) intentional damage;6 and(e) assaulting a police officer.7Reports about Mr Maaka-WanahiPre-sentence report[10] A probation officer prepared a pre-sentence report about Mr Maaka-Wanahi inSeptember 2023. Because of his previous convictions, the report-writer assessedMr Maaka-Wanahi's risk of harm as moderate to high, highlighting his impulsivityand inability to think beyond "in the moment". He recorded that Mr Maaka-Wanahihad explained the reason for his offending as trying to impress his girlfriend andtherefore doing whatever she told him to do. The report-writer noted that Mr Maaka-Wanahi's IQ is "just above the cut off for an Intellectual Disability", and that thereforehe is not eligible for further support in the community. While Mr Maaka-Wanahi issupported by Community Corrections, most of his needs are "outside the scope" of the3 Crimes Act 1961, s 231(1)(a); maximum penalty ten years' imprisonment.4 Section 202C; maximum penalty five years imprisonment.5 Section 202A(4)(b); maximum penalty three years' imprisonment.6 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months' imprisonment or a$2,000 fine.7 Section 10; maximum penalty six months' imprisonment or a $4,000 fine.Department of Corrections. The report-writer says that Mr Maaka-Wanahi is a frequentcannabis user and requires access to treatment and programmes that are not readilyaccessible.[11] Mr Maaka-Wanahi proposed an address for electronic monitoring. However,the report-writer considered that the address would not be appropriate given the otheroccupants, who are known to the Police and Community Corrections. The report-writer also noted that Mr Maaka-Wanahi's ability to comply is reasonable whensupported by a probation officer with an understanding of FASD. The report-writerrecommended a sentence of imprisonment with release conditions, including acondition to undertake assessment, treatment, and counselling as directed by aprobation officer.Community Corrections memorandum[12] An earlier memorandum from May 2023 was also provided by CommunityCorrections for the purpose of Mr Maaka-Wanahi's sentencing. This was prepared bythe same probation officer who wrote the pre-sentence report. The probation officerhas worked with Mr Maaka-Wanahi since December 2022.[13] Mr Maaka-Wanahi is 22 years' old. The memorandum records that he wasdiagnosed with FASD at an early age and that it appears that once he left the care ofOranga Tamariki and returned to his maternal whānau, oversight regarding hisdisability dissipated.[14] The memorandum acknowledges that the report writer is not a psychologist butthat the report was provided for the purpose of reassuring the District Court that"Community Corrections understands the complexity that [Mr Maaka-Wanahi]presents". The report-writer says:[Mr Maaka-Wanahi] tends to struggle with day-to-day functioning, and hetends to display significant deficits in his social, communication, andcomprehension skills. Consequently, [Mr Maaka-Wanahi] struggles withlinking cause and effect, and emotional regulation, and appears to be highlysuggestible. These factors, alongside other difficult life outcomes and highlevels of co-morbidity with mental health issues, contribute to his revolvingengagement with the justice system.Abstract concepts appear to be foreign to [Mr Maaka-Wanahi]. Neurologicaldamage makes it difficult for [Mr Maaka-Wanahi] to understand the conceptof personal ownership of property, that is a prerequisite for understanding whystealing is wrong. As [Mr Maaka-Wanahi] does not appreciate what personalownership means, he cannot understand that taking other's possessions isstealing. Often it takes many years of direct instruction for [persons withFASD] to understand the abstract concept of rightful ownership.This disconnected sense of ownership leaves [Mr Maaka-Wanahi] at risk oftaking things that are not his. If we peruse his criminal pattern most of hisoffending is simplistic and impulsive with minimal effort to conceal hisbehaviour. The lack of planning is evident and the lack of concern of beingcaught is also identified.Memory is a neurological function that does not work well in children withFASD. They cannot decide about "next time" based on "what happened lasttime" and there are limits to how well they can process information.Sentencing purposes such as holding the person accountable, denouncing (forthe harm done) and deterrence are problematic, when perhaps attempting tobe applied to an individual who cannot adequately link cause and effect, doesnot understand his or her own offending, and who has memory impairments.[15] The probation officer describes the support that is available to Mr Maaka-Wanahi in the community, such as income support, health support, Whānau Oraservices, mental health services, and part-time employment. He says also that, prior tohis remand in custody, the complexity of Mr Maaka-Wanahi's disability alongside hisoffending obscured the significant progress that he has made. The probation officerrecommended that Mr Maaka-Wanahi be kept in the community, subject to intensivesupervision.Report by Dr McGinn[16] The Judge was also given a report about Mr Maaka-Wanahi prepared unders 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. This report waswritten by Dr Valerie McGinn, a clinical neuropsychologist, and was prepared for thepurpose of ascertaining whether Mr Maaka-Wanahi was fit to stand trial.[17] Dr McGinn had assessed Mr Maaka-Wanahi previously, once when he wasseven years' old and again when he was 12 years' old. She indicates that Mr Maaka-Wanahi was placed into state care when he was two years old because of abuse,neglect, and family violence in his home. He was placed with his grandmother but thisbecame unsuitable due to his aggressive behaviours and her use of physical discipline.Mr Maaka-Wanahi was then placed in Oranga Tamariki care until he was 17 years'old, having been identified as having high and complex needs. He was diagnosed withADHD and FASD. Dr McGinn notes that Mr Maaka-Wanahi began offending at15 years' old and that consequences that might deter a neurotypical offender have beenineffective for Mr Maaka-Wanahi.[18] When first assessed by Dr McGinn, Mr Maaka-Wanahi was considered to havea "borderline level of intellectual function". He had not started to read or write by thetime he was seven years' old. At age 12, when he was assessed again, Mr Maaka-Wanahi had significantly improved, and was participating fully at school. Hisintellectual function had increased, but he remained disorganised, impulsive, andunable to plan towards a goal. Dr McGinn says that although Mr Maaka-Wanahi's IQwas above the cut-off for an intellectual disability, he functioned in life as if he hadsuch a disability, and that FASD is equivalent in severity to an intellectual disability.[19] When Dr McGinn interviewed Mr Maaka-Wanahi for the purpose of the s 38report, Mr Maaka-Wanahi could not remember that he had FASD and had a poorautobiographical memory of his own life. Mr Maaka-Wanahi told Dr McGinn that sheappeared to know his own life better than him. He said that he had started smokingsynthetic cannabis about the time that he started offending, and that he also smokedsome cannabis. He reported that ADHD medication helped him and that going off ithad contributed to his offending. Mr Maaka-Wanahi said that he did not want tooffend, but rather that he wanted to get a job as a butcher, work hard, and have a family,while continuing to take medication again.[20] Dr McGinn recorded that Mr Maaka-Wanahi has a mental impairment by wayof his ADHD and FASD. Dr McGinn noted that persons who have FASD face lifelongimpacts which includes needing support with motor skills, physical health, learning,memory, attention, emotional regulation, and social skills. They tend to be sociallyimmature, naive and easily led, egocentric, impulsive and do not stop to think throughto the consequences of their actions. Dr McGinn says that Mr Maaka-Wanahi'sdevelopmental, behavioural, and social history is consistent with him having FASD.She considers that he has borderline intellectual function, and that he functions belowmore than 90 per cent of his age group.[21] Dr McGinn noted also that Mr Maaka-Wanahi has very poor communicationskills, and poor general knowledge. She said that he should be spoken to atapproximately the level of a ten-year-old, and that he presents as significantly delayedand immature in his thinking, with poorly regulated behaviour. She says that hisabstract reasoning, social understanding and judgement are impaired. This leaves himat risk of being easily led and his decision making is limited.[22] Dr McGinn highlighted that although Mr Maaka-Wanahi was progressing wellat 12 years old, his development since then had been stalled by leaving school earlyand going into the criminal justice system. Her view was that once he had "aged out"of Oranga Tamariki care, he could not care adequately for himself, and has been unableto abide by court imposed conditions, particularly while without medications,homeless, and under gang influences. He had no support from his whānau. She saidalso that Mr Maaka-Wanahi could moderate his impulsivity to a degree, but that in acomplex situation that ability would decrease. She states:While the government denies disability support services to individuals withFASD and they are left to fend for themselves in the community, they willbehave inappropriately and enter the criminal justice system. Where theresponsibility lies and what the consequences should be is a matter for theCourt. Even those like Kingi who were diagnosed, supported, and doing wellin state care as children, are not doing well as young adults. He contends witha form of brain damage not of his own making that makes him impulsive,reduces his capacity to moderate his actions and leads him into making poordecisions. His capacity to realise the implications of his actions on others isreduced. His whanau live with generations of alcohol and other harm due tocolonisation and are not in a position to provide Kingi with the structure,support and supervision he requires.Young people with FASD can do well with oversight and Kingi has previouslydone well at START Taranaki, gaining life and employment skills. However,once left to manage life alone, he could not. Without the medication that hehad been taking all his life, he was left confused, markedly impulsive, andemotionally dysregulated. He has fallen through the gaps of a health systemthat is not FASD informed and willing to help a young person like Kingi.Individuals with FASD are not inherently dangerous and it is support notpunishment that will keep them and the community safe.[23] Ultimately, Dr McGinn assessed Mr Maaka-Wanahi as fit to stand trial withthe support of a communications assistant. She also went on to recommend that:Kingi's FASD be accepted as a mitigating factor when applying sanctionsshould he plead or be found guilty. A long period of incarceration will becrushing for a young disabled person like Kingi who is younger than his agedevelopmentally. If incarcerated he would be more suitably placed in a youthunit or if that is not available, he should be considered a vulnerable prisonerwho should be kept away from gang influences.Sentence under appeal[24] The Judge began by setting out the charges, the factual background, andMr Maaka-Wanahi's previous convictions. The Judge discussed the views ofMr Maaka-Wanahi's probation officer as to his offending and complex presentation.The Judge also noted the views of one of the victims. He then discussed the difficultiesof FASD, and acknowledged the submissions made by Mr Bourke for Mr Maaka-Wanahi. In accepting that imprisonment was the appropriate sentence, the Judgestated:8I need to talk for a minute about the discounts that are given for youth, mentalhealth et cetera. In my judgement, they count for nothing if there is not somepositive benefit to them. If it simply means that someone whose mental healthmakes it inevitable that they will re-offend, then all these discounts do is createfurther victims and at a quicker pace. Discounts would mean something if thefacilities and programmes existed to help people such as yourself, but they donot and there comes a time when the other purpose [for which] the Courtexists, to protect the community, overwhelms the desirability of rehabilitatingcriminally inclined and very damaged young men. Others may disagree, buttoday I have in mind an 80-year-old woman who was twice terrorised by youand the future victims who will be terrorised by you and very possiblyseriously injured or killed.You have got a predilection for breaking into other peoples' property,sometimes armed with weapons that you then use when challenged. The recipefor a tragedy could not be clearer and the longer you are in custody the longerthat tragedy is postponed. I am as sad as anyone else in imprisoning you todaybut so long as that remains the only way of protecting the community then thatis what must be done and I also hope that maybe some form of shelteredaccommodation can be found for you. I say that because I read in one of thereports, that I have not actually read out today, structure does help you.8 Above n 1, at [18]–[19]. The judgment records that counsel for Mr Maaka-Wanahi, Mr Bourke,conceded that imprisonment was inevitable. Before me, Mr Bourke said that this was not the case,rather, his submissions focused on the time served by Mr Maaka-Wanahi, that there was no suitableaddress available, and that Mr Bourke would at some point have to accept that Mr Maaka-Wanahi's sentence of intensive supervision could be marked on his record as imprisonment.Mr Bourke also said that his submission to the Judge was incorrectly recorded in the judgment asindicating his view was that the sentence could only just come down below two years.[25] The Judge noted the purposes of sentencing as to denounce and deter. Whileacknowledging that due to Mr Maaka-Wanahi's FASD, deterrence is limited, the Judgeconcluded that:9 above all, I have to protect the community and I also need to protect youbecause a sentence that simply has you released in no better shape or in nobetter place than you were in July puts you at greater risk of serious re-offending and you will simply suffer further, along with your victims.[26] The Judge adopted the following starting points for the offences:(a) two years' imprisonment for the two burglary charges;(b) 12 months' imprisonment for the intentional damage and possession ofan offensive weapon charges;(c) 18 months' imprisonment for the charge of assault with a weapon; and(d) one month's concurrent imprisonment for the charge of assault on apolice officer.[27] That resulted in a starting point of four and a half years' imprisonment, whichthe Judge uplifted by six months because of Mr Maaka-Wanahi's previousconvictions. The Judge then reduced that figure to three years' and ten months'imprisonment for totality, awarded a 25 per cent guilty plea discount and a discountfor Mr Maaka-Wanahi's mental health and age. This left a final sentence of two yearsand two months' imprisonment. The Judge did not say explicitly what the percentagevalue of the totality or mental health and age discounts were.Approach to appeal[28] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011.An appeal against a sentence is an appeal against the exercise of a discretion. ForMr Maaka-Wanahi to be successful, the Court must be satisfied that there was an errorin the sentence imposed upon conviction and a different sentence should be imposed.109 Above n 1, at [20].10 Criminal Procedure Act 2011, s 250(2).If these factors are not satisfied, the Court does not retain any discretion and mustdismiss the appeal.11[29] When considering whether a different sentence should be imposed, the Courtwill have regard to the end sentence, rather than the process by which it was reached.It is appropriate for the Court to intervene where the sentence being appealed is"manifestly excessive" and is not justified by the relevant sentencing principles.12 Itmust be shown that there has been an error made by the sentencing Judge.13 The Courtcannot 'tinker' with a sentence imposed where that sentence is nevertheless in range.14The starting point[30] There are three issues to address in respect of the starting point adopted. First,whether the starting points adopted by the District Court Judge were within range, byreference to comparable caselaw. Second, whether Mr Maaka-Wanahi's mental healthshould have been taken into account at this step, and if so, what impact that shouldhave on setting the starting point.Comparable casesA Burglary charges[31] The Judge imposed a starting point of two years' imprisonment for the twoburglary charges.[32] Mr Bourke argued that the starting point for the burglary charges should havebeen between 18 months' to two years' imprisonment, relying on Patangata, whereDoogue J considered a starting point of twelve months appropriate for a case involvingentry into a garage or shed and the taking of limited items.15 In Patangata, however,there was only one charge of burglary, and the burglary involved the taking of itemswith little value. In the present case, Mr Maaka-Wanahi entered two properties, taking11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].13 At [27].14 R v Boyd (2004) 21 CRNZ 169 at [38].15 Patangata v Police [2020] NZHC 407 at [32].a vehicle and other electric items of some value. In my view, Mr Maaka-Wanahi'soffending was clearly more serious.[33] Although there is some variation in the authorities regarding starting points forcharges of burglary, the cases relied on by Ms Hicklin, counsel for Police, indicate thata starting point of 24 months' imprisonment was within range.16 Mr Maaka-Wanahientered two residential properties in the early hours of the morning, involving a riskof confrontation. He took items that were of some value. Although the offending wasnot sophisticated, it must be said that given Mr Maaka-Wanahi returned to the secondaddress four times, there was some element of premeditation. As such, I am satisfiedthat the starting point for the two burglary charges was within range.B The remaining offending[34] For the remaining offending, Mr Bourke sought an increase to the overallstarting point of four to six months, whereas Ms Hicklin submitted that a total increaseof 18 months was required.[35] There are no tariff cases for the remaining offences. The Judge imposed12 months' imprisonment for the intentional damage and possession of an offensiveweapon charges. Ms Hicklin relied upon Vakatini in submitting that a 14 month upliftfor these charges was appropriate.17 In Vakatini, a starting point of 12 months wasupheld on appeal for charges of possession of an offensive weapon, behavingthreateningly, and wilful damage. The appellant had smashed a window in his mother'shouse during an argument and the following month he had been to the house of anotherperson, chased him with a spade and waved two knives around in a threateningmanner.[36] In this case Mr Maaka-Wanahi waved around the tomahawk and smashed awindow in the victim's car. His offending would appear to be of the same or lessernature than in Vakatini, and accordingly I do not accept that an uplift of 14 months'imprisonment would be appropriate by way of reference to that case. As submitted by16 Knock v Police [2017] NZHC 910; Tito v Police [2018] NZHC 3370; Peita v Police [2020] NZHC2098; Bracey v Police [2022] NZHC 476; and Olsen v R [2023] NZHC 2967.17 Vakatini v R [2019] NZHC 3331.Mr Bourke, while threatening, no physical harm to anyone resulted from Mr Maaka-Wanahi's course of conduct.[37] In circumstances where a series of minor offences are committed in a courseof conduct, it may sometimes be "a little artificial to seek to rely on other cases asrelevant precedents for the sentence, as it is ultimately a task of finding an appropriatesentence for the overall series of offences".18 This difficulty is often compounded inrelation to charges of intentional damage and possession of an offensive weapon,which are charges that commonly accompany more serious charges, and are dealt withby way of uplifts in relation to a lead charge or charges. This is the situation in thepresent case.[38] I consider that an uplift of nine months' imprisonment is appropriate for theoffensive weapon and intentional damage charges. I accept that there are somesimilarities between the present case and Vakatini. However, Mr Maaka-Wanahi'sconduct was more in the nature of a single instinctive and intimidating reactioninvolving a threat of violence. It did not involve two episodes of threatening behaviouron separate occasions, and nor did he seek out a person for the purpose of threateningthem, as in Vakatini.[39] The Judge imposed 18 months' imprisonment for the charge of assault with aweapon and one month's concurrent imprisonment for the charge of assault on a policeofficer. Ms Hicklin submitted that a further four months for these charges would bewithin range. The first point to note is that Ms Hicklin appeared to at least impliedlyaccept that the 18 months imposed for the assault charge was excessive. The Judgeprovided no reasons for adopting that as the starting point. Second, there is a lack ofcomparable cases for the purpose of assessing the starting point.[40] The only somewhat similar case I have considered is Police v McLeod. 19 Thatcase involved a single charge of endangering transport, which carries a maximumpenalty of 14 years' imprisonment.20 Endangering transport is accordingly a more18 Lambert v Police [2022] NZHC 49 at [20]; citing R v Xie [2007] 2 NZLR 240 at [17].19 Police v McLeod DC Invercargill CRI-2008-025-3721, CRI-2009-025-1643, 16 June 2009.20 Crimes Act 1961, s 270.serious offence than assault with a weapon, which carries a maximum penalty of fiveyears imprisonment.21 In McLeod, while a passenger in a vehicle travelling atapproximately 130 kilometres per hour to evade the Police, Mr McLeod threw anumber of items out of the vehicle at the pursuing Police vehicles. The items thrownincluded a large metal wheel brace, which narrowly missed a vehicle. Mr McLeod alsothrew "beer stubbiesalong with pieces of wood and a full coke container".22 Two ofthe beer stubbies and a piece of wood hit one of the Police vehicles. Mr McLeod wassentenced to 14 days' imprisonment, with a direction that he was to serve onlyseven days.23[41] In the present case, Mr Maaka-Wanahi was charged with an offence that is lessserious than endangering transport (although his behaviour potentially could havesupported that charge in the alternative). Further, the summary of facts do not recordthat any Police vehicles nor other vehicles were struck by any of the items thatMr Maaka-Wanahi threw from the vehicle. As such, I am satisfied that the startingpoint of 18 months' imprisonment imposed for the assault with a weapon charge waswholly out of range. Taken in the context of the course of conduct in which Mr Maaka-Wanahi was engaged, I consider that an uplift of three months' imprisonment isappropriate for the charge of assault with a weapon and the charge of assault on apolice officer.[42] These conclusions are all subject to the discussion that follows about therelevance of Mr Maaka-Wanahi's mental health.Is Mr Maaka-Wanahi's mental health relevant to setting the starting point?[43] Ms Hicklin submits that Mr Maaka-Wanahi's FASD is not of a character andgravity that it has altered the offending itself such that it needs to be taken into accountin relation to the starting point. She says that his offending is no different from offencescommitted by other young offenders acting impulsively or as a result of peer pressure.21 Section 202C.22 McLeod, above n 19, at [1].23 At [12].[44] I do not agree. In my view, Mr Maaka-Wanahi's impairments are precisely thekind of impairments that should inform both the starting point and the adjustment ofthe starting point by way of discounts. Such an approach is consistent with L v R,where the Court of Appeal stated:24It is uncontroversial that mental illness can be relevant to sentencing bothretrospectively and prospectively. That is, it is a relevant factor in assessingthe offender's culpability and, separately, in assessing the future subjectiveimpact of the starting point on the offender. An example of retrospectiverelevance will be where mental illness reduces the offender's moralresponsibility and thereby also reduces the need to denounce or in some casesthe need for specific deterrence. A causative relationship between the disorderand the offending is required.In addition, prospective effect may be found, for example, where a sentencemight weigh more heavily due to a disorder, or where an appropriatesentencing response ought to involve a significant therapeutic element to treatthe disorder so that it does not continue. The survey of cases in relation to thissecond stage in E (CA689/2010) v R showed discounts had ranged between12 and 30 per cent.We do not agree with the Crown that allowing discounts at both stages for thesame mental health disorder is to double count. On the contrary, to fail toproperly account for all relevant aspects of the offence and the offender is toundercount. It is not the cause of the reduced culpability or extra burden ofimprisonment, but the presence of those aspects which must be provided forunder ss 7–9 of the Sentencing Act 2002 (the Act) and in accordance withTaueki methodology.[45] In other words, where there is a causative link between a lack of capacity or animpairment that reduces an offender's moral culpability, this must be taken intoaccount when setting the starting point for the offending. The disability or impairmentmust have altered the character and gravity of the offending itself.25[46] I am satisfied, given Dr McGinn's report, that there is a causative relationshipbetween Mr Maaka-Wanahi's mental health and his offending. Mr Maaka-Wanahi hasFASD and ADHD. He has borderline intellectual function. Dr McGinn highlights thatconsequences that follow from offending that might be effective for a neurotypicaloffender are not effective for him. Mr Maaka-Wanahi's explanation of his offendingillustrates that he is easily led and has limited decision-making ability. He is unable tothink through the consequences of his actions on others. As Mr Bourke submits, the24 L (CA719/2017) v R [2019] NZCA 676 at [48]–[50].25 Orchard v R [2019] NZCA 529 at [45].fact that Mr Maaka-Wanahi was subject to GPS tracking at the time of the offendingand thus destined to be discovered demonstrates the limits on his decision making andability to comprehend consequences.[47] In these circumstances, Mr Maaka-Wanahi's moral responsibility for hisoffending is reduced.[48] I consider that Mr Maaka-Wanahi's mental health should have been consideredby the District Court Judge at the first stage of the sentencing process. While the Judgedid address briefly the authorities discussed above and Dr McGinn's report, hisHonour appeared only to do so in the context of assessing what discount could beapplied at the second stage of sentencing. I accept that the Judge was cognisant of theimpact of FASD on Mr Maaka-Wanahi and its relationship to his offending and thathe did not need to make discrete discounts provided all of the implications ofMr Maaka-Wanahi's unwellness were appropriately recognised.26 But I am satisfiedthat there was a failure to properly account for the causative connection between thatcondition and Mr Maaka-Wanahi's culpability in setting the starting point for theoffending.Impact of mental health on setting the starting point[49] I turn then to consider how Mr Maaka-Wanahi's mental health affects hisculpability in respect of setting the starting point for the offending.[50] Ms Hicklin contends that there should be no reduction to the starting points.Mr Bourke, however, submits that the appropriate starting point for the burglarycharges would be 12 to 15 months' imprisonment. He says that the remaining chargeswarrant an uplift of four to six months and that overall, having regard to Mr Waaka-Manahi's mental impairments an appropriate starting point for the totality of theoffending is in the range of 18 to 20 months' imprisonment.[51] The issues I discussed above about the difficulties in approaching a series ofoffences also arise in this context. In the round, I consider that a reduction of six26 Hall v R [2021] NZCA 314 at [30].months overall is appropriate to acknowledge how Mr Maaka-Wanahi's mental healthaffects his culpability.Conclusion on starting point[52] I have concluded that the Judge gave insufficient consideration to Mr Maaka-Wanahi's mental health in assessing his culpability at the first stage of the sentencingprocess, and also that the starting points imposed for the charges other than theburglary charges were out of the available range. I conclude that the appropriatestarting points were, without an adjustment for mental health:(a) 24 months' imprisonment for the two burglary charges;(b) nine months' imprisonment for the for the offensive weapon andintentional damage charges; and(c) three months' imprisonment for the remaining charges of assault usinga weapon and assault on a police officer.[53] That results in a total starting point of three years imprisonment. Having regardto Mr Maaka-Wanahi's mental health and its causative connection to his offending,and totality, I consider that the appropriate starting point for the totality of theoffending is two years and six months.Adjustments to the starting point[54] There are two issues to address in relation to adjustments to the starting point.First, whether the uplift imposed for previous convictions was appropriate in thecircumstances. Second, whether the credit given to Mr Maaka-Wanahi as a result ofhis personal mitigating factors was sufficient.The uplift for previous convictions[55] The Judge decided an uplift of six months was appropriate for Mr Maaka-Wanahi's previous convictions.[56] The significant issue to my mind is whether such an uplift was appropriate incircumstances where Mr Maaka-Wanahi has not previously been sentenced toimprisonment. This is an issue of proportionality, as submitted by Mr Bourke. TheCourt of Appeal has previously held that an uplift should bear a reasonable relationshipto the sentence imposed for the previous offending.27 Otherwise, an uplift for previousconvictions can constitute double punishment. An uplift is unlikely to be proportionateif it exceeds the prior sentence.28[57] In this case, the Judge imposed a six month uplift for previous convictions incircumstances where Mr Maaka-Wanahi had previously only received a sentence ofintensive supervision with special conditions. Ms Hicklin's submission was that anuplift was still justified on a public protection basis and because Mr Maaka-Wanahiwas subject to a sentence of intensive supervision and electronic monitoring at thetime of the offending.[58] While Mr Maaka-Wanahi has demonstrated a predilection for burglary, anuplift of six months' imprisonment is disproportionate when assessed as against asentence of intensive supervision. By way of analogy, in Irwin v R, the Court of Appealconsidered that an uplift of one month's imprisonment for a single previous convictionfor which the appellant was sentenced only to community detention, wasdisproportionate.29 The Court considered that the uplift should not have been appliedat all.30[59] Mr Maaka-Wanahi is in a different position given his criminal history and theextent of his previous dishonesty offending. Generally, recidivist burglars aresubjected to significant uplifts for their previous convictions.31 However, as this isMr Maaka-Wanahi's first sentence of imprisonment and accounting for the lack of adeterrence justification for him, I am satisfied that the Judge erred in imposing anuplift for his previous convictions. I consider that to do so was disproportionate.27 Patel v R [2017] NZCA 234 at [61]; and Thomas v R [2020] NZCA 257 at [18].28 Orchard v R, above n 25, at [14].29 Irwin v R [2020] NZCA 181.30 At [18].31 See R v Columbus [2008] NZCA 192 at [14]–[15].Youth and mental health[60] The District Court Judge did not award distinct discounts to Mr Maaka-Wanahifor youth and mental health, preferring to award a combined and undisclosed discountwhich amounted to approximately eight months. The difficulty with this approach isthat discounts for youth and mental health, while they are connected in this case, aremore commonly justified on different bases and awarded separately.[61] While discounts for youth and mental health concerns both speak to the waysin which the personal circumstances of an offender affect their rationality and abilityto choose not to offend, they have different foundations. Discounts for youthacknowledge neurological immaturity, peer-group influence, and capacity forrehabilitation. Discounts for mental health concerns reflect that in some circumstancesan offender's choice to offend may not be entirely rational in the way that the criminallaw typically assumes.[62] First, as discussed above, discounts are available where there is an evidentialbasis for concluding that mental health and/or intellectual disability causativelycontributed to offending. This is a matter that bears upon an offender's culpability atthe first step, and also is a personal mitigating factor under the second step. Anoffender's mental health may also bear upon the weight to be placed on any of thepurposes of sentencing. For example, in Mr Maaka-Wanahi's case, as identified byDr McGinn, a deterrent sentence is less likely to be effective for Mr Maaka-Wanahi,in isolation from services which can support him to live in the community.[63] In E v R, the Court noted that stage two discounts for mental health issuesranging from 12 per cent to 30 per cent had been seen as appropriate.32 In the presentcase, I am satisfied that a 15 per cent discount for Mr Maaka-Wanahi's mental healthwould be appropriate.[64] I note also that the approach taken by the District Court Judge appeared to bean approach by which Mr Maaka-Wanahi's mental health was considered to be an32 E (CA689/2010) v R [2011] NZCA 13, (2011) 24 CRNZ 411 at [71]. See also Fairbrother v R[2013] NZCA 340 at [34]–[35]; Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [43]; Edri vR [2013] NZCA 264; and Pomare v R [2017] NZCA 155aggravating factor, given the need to protect the community. The Judge referred to"future victims" and noted that discounts for mental health "create further victims andat a quicker pace", in respect of persons whose "mental health makes it inevitable thatthey will re-offend".33[65] I do not consider that this was the correct way to approach discounts for mentalhealth in order to respect and account for the purposes of sentencing, some of whichultimately pull in opposite directions. Rehabilitation is as present in s 7(1) of theSentencing Act as is the protection of the community. In the case of Mr Maaka-Wanahi, I consider that the protection of the community should be seen as encouraginga rehabilitative approach in the longer term.[66] In my view, the District Court Judge was also incorrect in suggesting thatdiscounts are only available if facilities and programmes are available to respond tothe matters for which the discounts are given.34 The availability of such facilities andprogrammes are certainly matters for the executive and not the courts—but a Judge'sproper consideration of the sentencing purposes and principles cannot in my view beaffected in this way. To my mind, the Judge's justification for imprisoning Mr Maaka-Wanahi as prioritising protection of the community over rehabilitation is misplacedgiven that Mr Maaka-Wanahi's needs remain, whether he is in prison or in thecommunity. It appears to me that the Judge's views resulted in him not taking a correctapproach to assessing Mr Maaka-Wanahi's situation.35[67] Second, the Court of Appeal has recently re-examined the neurologicaldifferences between young people in adults, and what effect those differences shouldhave in sentencing young people.36 In Dickey v R, the Court acknowledged that thereis no outer limit to the discount for youth, with discounts of 10–30 per cent beingcommon.37 In previous cases discounts have been awarded to defendants older thanMr Maaka-Wanahi.38 The Court of Appeal also considered that it was no longer correctto say that "youth can carry little weight when balanced against the public interest in33 Above n 1, at [18].34 At [18].35 See also the discussion in Police v Morrison [2019] NZDC 13977.36 Dickey v R [2023] NZCA 2. See also Frost v R [2023] NZCA 294 at [99]–[109].37 Dickey, above n 36, at [174]; citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].38 R v Nepia [2019] NZHC 1932 at [36]; and Woodstock v R [2020] NZCA 472 at [31]–[34].denunciation and accountability".39 In that case, in respect of much more seriousoffending, discounts were awarded to appellants whose offending "reflected the poorlydeveloped neurological capacity of adolescents".40[68] Ms Hicklin submitted that the discount given by the Judge was an appropriaterecognition of Mr Maaka-Wanahi's reduced moral culpability arising out of his FASDwhile ensuring the principle of community protection was given effect, bearing inmind the limited rehabilitative prospects. Ms Hicklin emphasised that there have beenrepeated attempts by the courts to keep Mr Maaka-Wanahi out of prison while limitingreoffending but that this has been unsuccessful.[69] I accept that counsel, probation officers and the courts have worked hard tohelp Mr Maaka-Wanahi and that ongoing challenges remain. But these challenges donot justify refusing to apply appropriate discounts in sentencing him. Mr Maaka-Wanahi was 21 years' old at the time of his offending. He is well within the range ofages for which youth has been considered a mitigating factor. Further, his FASD, asdescribed by Dr McGinn, places him intellectually as functioning similarly to a tenyear old. In these circumstances, I am satisfied that his youth justifies a further discretediscount of ten per cent.Is the end sentence manifestly excessive?[70] The focus of an appellate court in respect of sentencing is on the end sentenceand whether it is manifestly excessive. Particularly in the present case, as the DistrictCourt Judge made a substantial reduction on the basis of totality and arrived at an endsentence of two years and two months' imprisonment, the issue is whether, given myconclusions above, the end sentence is manifestly excessive.[71] I have concluded that Mr Maaka-Wanahi's sentence should have beenconstructed in the following manner:(a) a 24 month starting point for the burglary charges;39 Dickey, above n 36, at [177], compare R v Rapira [2003] 3 NZLR 794 (CA) at [120].40 At [203(a)].(b) a nine month starting point for the offensive weapon and intentionaldamage charges;(c) a three month starting point for the remaining charges of assault usinga weapon and assault on a police officer;(d) a six month reduction of the overall starting point to account for totalityand his reduced culpability;(e) a 25 per cent discount for his guilty plea (which is not in issue onappeal);(f) a 15 per cent discount for his mental health; and(g) a 10 per cent discount for youth.[72] That results in an end sentence of 15 months' imprisonment. I am satisfiedaccordingly that the sentence imposed in the District Court was manifestly excessiveand that I must allow Mr Maaka-Wanahi's appeal.[73] I also grant leave for Mr Maaka-Wanahi to apply for home detention. Homedetention will only be able to be granted if there is an appropriate environment inwhich Mr Maaka-Wanahi can complete such a sentence. This is a matter to be assessedin the District Court.Result[74] The appeal is allowed.[75] The sentence of two years and two months' imprisonment is quashed. Asentence of 15 months' imprisonment is substituted.[76] Leave is granted for Mr Maaka-Wanahi to apply for home detention.McQueen JSolicitors:Crown Solicitor, New Plymouth for Respondent