COWELL v POLICE [2022] NZHC 3088

COWELL v POLICE [2022] NZHC 3088 [24 November 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000147[2022] NZHC 3088BETWEEN KINGSTON TAHARUA COWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2022Appearances: K J Gray for the AppellantL Fiennes for the RespondentJudgment: 24 November 2022JUDGMENT OF NATION JIntroduction[1] Kingston Taharua Cowell pleaded guilty to charges of demanding withmenaces,1 unlawful possession of ammunition,2 possession of a knife in a publicplace,3 and driving whilst forbidden.4 On 24 August 2022, Mr Cowell was sentencedby Judge Farish in the District Court to 21 months' imprisonment on those chargeswith leave to apply for home detention.5 Mr Cowell appealed that sentence on thebasis it was manifestly excessive.1 Crimes Act 1961, s 239(2) – maximum penalty of seven years' imprisonment.2 Arms Act 1983, s 45(1) – maximum penalty of four years' imprisonment and/or a fine of $5,000.3 Summary Offences Act 1981, s 13A – maximum penalty of three months' imprisonment or a fineof $2,000.4 Land Transport Act 1998, s 52(1)(c) and (2) – maximum penalty of a $10,000 fine.5 R v Cowell [2022] NZDC 16237.Facts[2] On 20 September 2021, Mr Cowell was served a Road Safety Directive Noticeand forbidden from driving until he obtained an appropriate licence.[3] At approximately 11.20 am on 5 March 2022, Mr Cowell arrived at a flat onBreens Road, Bishopdale, Christchurch, with two associates. The victim was visitingthe address at the time. Mr Cowell entered a bedroom at the address where the victimwas. Mr Cowell saw the victim's keys on an Audi lanyard beside the victim and said"are those your keys?" The victim confirmed they were. Mr Cowell took the keys,knowing they belonged to the victim and without permission from him.[4] Approximately five minutes later, Mr Cowell made the victim leave thebedroom and come into the lounge room where Mr Cowell's two associates were. Oneof the associates was wearing a gang patch. Mr Cowell took the victim's cell phonefrom him and gave him an ultimatum that he could let him take his phone or he couldkeep his phone and take a hiding. The victim did not want to be beaten up and yieldedin duress to Mr Cowell's threat of violence.[5] Mr Cowell and his associates left the address in the victim's Audi. He had nopermission to take the vehicle. In the vehicle was a pair of Nike running shoesbelonging to the victim.[6] These events gave rise to a charge of demanding with menaces.[7] At approximately 2.57 pm that day, Mr Cowell was driving the stolen Audivehicle south on Leacroft Street, Christchurch. The vehicle was subsequently stoppedby Police on Clotilda Place. This gave rise to a charge of driving while forbidden.[8] Mr Cowell was placed under arrest and searched. He was wearing a smallblack bag around his body that contained a wooden-handled folding pocketknife andfour rounds of .22 calibre ammunition. Mr Cowell does not hold a firearms licence.For this, he was charged with possession of a knife in a public place and unlawfulpossession of ammunition. In explanation, he stated he was driving the victim's carand was on his way to give it back.[9] The victim's property was returned to him without any damage.District Court decision[10] On the lead charge of demanding with menaces, the Judge adopted a startingpoint of two years' imprisonment. She noted most sentences for demanding withmenaces are around the range of two years to two years and 10 months' imprisonment.She considered the offending was aggravated by the actual threats made, which wereenhanced by the presence of his two associates and the fact one of them was wearinga gang patch. Although she lacked an updated victim impact report, the Judge alsoobserved the offending was distressing for the victim and had a significant effect onhim.[11] The Judge uplifted the sentence by three months for the possession of a knifeand unlawful possession of ammunition charges. She said the possession ofammunition was not serious and comprised only four small bullets without a gun. Sheimposed a further uplift of four months to take into account Mr Cowell's history ofviolent offending. She said this history was very concerning and indicated he had beenlikely institutionalised in the prison environment.[12] The Judge then allowed a discount of 17 per cent for guilty pleas. She saidthose pleas were not entered at the earliest opportunity but as soon as the charge wasreduced from aggravated robbery to demanding with menaces.[13] The Judge then referred to the matters raised in Mr Cowell's s 27 report. TheJudge noted Mr Cowell's s 27 report disclosed that he is a Māori man with a somewhattroubled upbringing, having been sent to live away from his parents for a period oftime. She noted this had a significant traumatic effect upon him and, like many youngMāori men, left him feeling disenfranchised. She acknowledged Mr Cowell wasdiagnosed with attention deficit hyperactivity disorder (ADHD) at a relatively youngage, which affected his schooling, and that he gravitated towards anti-social peers.The Judge identified Mr Cowell's biggest problem, in terms of his cycle of offending,was his reliance on illicit substances, particularly methamphetamine. She consideredhis deprivation, lack of ability to engage in meaningful education, and alcohol anddrug issues had led him to choose a harmful lifestyle. However, the Judge recognisedthat it is only now, after harming a considerable number of people and rejectingopportunities to change, that he is willing to change. For these matters, the Judgeallowed a further 10 per cent discount.[14] The Judge then allowed a further two months' discount for the difficulties MrCowell faced in accessing rehabilitation. This resulted in an end sentence of 21months' imprisonment, with release conditions to run for six months following theexpiry of his sentence.[15] The Judge said what Mr Cowell really needed was a residential treatmentprogramme and, if one were available, she would have imposed a sentence of homedetention. However, she acknowledged no such programme was currently availabledue to resourcing issues and a rehabilitative programme was unlikely to be offeredunder a short-term sentence of imprisonment. In these circumstances, the Judge gaveMr Cowell leave to apply for home detention and observed the He Waka Tapuprogramme would be an appropriate residence for such a sentence. She remarked thatit was "demoralising" to send Mr Cowell to prison as it was not realistically going tohelp his position but regretted that this appeared to be an instance of "post codejustice".[16] On the driving whilst forbidden charge he was convicted and discharged.Principles on appeal[17] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and a different sentence should beimposed.6 It is only appropriate for this Court to intervene and substitute its own viewsif the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.76 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at[36].SubmissionsAppellant's submissions[18] Ms Gray, counsel for Mr Cowell, submitted there are a combination of factorsthat rendered the end sentence imposed in this case manifestly excessive, namely that:(a) the starting point was excessive;(b) the Judge did not consider the totality of the offending;(c) the uplift for previous convictions was too high;(d) the discount for guilty pleas was inadequate; and(e) the discount for mitigating factors was inadequate.Respondent's submissions[19] For the Crown, Ms Fiennes submitted there was no error in the end sentenceadopted for the offending, which involved significant intimidation and the threat ofviolence, as well as the removal of the victim's car and phone (albeit for a short timeonly). She submitted, given the aggravating features present, a starting point of twoyears' imprisonment was within range. She submitted the uplifts applied wereappropriate and the discounts provided were within range.AnalysisStarting point[20] On the demanding with menaces charge, Ms Gray identified cases where alower starting point of 18 months was adopted, in contrast to the two years to twoyears and 10 month range referred to by the Judge.8 Ms Gray submitted, in light ofthe limited aggravating factors present, the offending does not justify the starting pointadopted of two years' imprisonment. While she acknowledged the offending involvedthreats of violence, she said it did not involve actual violence, premeditation or a homeinvasion (as the victim was not at his own home), and the stolen property was returned.8 Webster v Police [2017] NZHC 2685; Regan v R [2012] NZCA 227.She also noted the victim did not provide an updated victim impact statement andadvised that Mr Cowell does not accept he is involved in a gang himself.[21] For the Crown, Ms Fiennes submitted a starting point of two years for thedemanding with menaces charge was available to the Judge and within range. Shesubmitted that starting point was supported by Emery v Police, R v Whaanga andOpetaia v R.9 Ms Fiennes argued the cases referred to by the appellant do not suggestthe starting point of two years was manifestly excessive. While she acknowledgedthat cases involving demanding with menaces can attract starting points below twoyears, she submitted all the cases cited where such a starting point was adoptedinvolved fewer aggravating features than the present offending.[22] There is no guideline case for demanding with menaces. However, counsel forthe Crown helpfully referred to the following cases that are of assistance indetermining the appropriate starting point, having regard to the particular aggravatingfactors involved:(a) In Regan v R, the appellant walked into a bank premises in centralAuckland while heavily intoxicated.10 He demanded the money in the till,telling the teller to move to it. He spoke in a commanding voice that leftthe 18-year-old teller intimidated and shocked. The teller handed him$905. The Court of Appeal considered the offending involved no actualviolence or explicit threat of violence. He acted alone, without the supportof an associate and without the added menace of gang affiliations. Thevictim was also physically separated from the appellant and had the benefitof the bank's security systems. The Court considered a starting point of18 months' imprisonment was appropriate.(b) In Webster v Police, the appellant, with two associates either nearby orwith him, approached two others in the central city.11 He grabbed aniPhone worth $1,400 from one of the victims. He then threatened to"hook" the other victim if he did not hand over his phone. He had his fist9 Emery v Police [2014] NZHC 430; R v Whaanga [2019] NZHC 2427; Opetaia v R [2011] NZCA621.10 Regan v R, above n 8.11 Webster v Police, above n 8.clenched and gave the appearance of intending to strike. The High Courtconsidered a starting point of 18 months' imprisonment was within rangebut an uplift of one month was also required to reflect the theft of thephone.(c) In R v Whaanga, the offender was attending a social gathering when thevictim arrived in his vehicle with three friends.12 With a female friend, theoffender walked up to the driver's door, removed the keys from theignition and said "Sieg fucking heil, get the fuck out of the car". Fearingfor his and his friends' safety, the victim got out of the car. The offenderthen got into the car and, in the company of his friend, drove off. He wasarrested three days later. Although the car was eventually returned, itneeded repair work that the victim could not afford, leaving him without acar for months and requiring him to leave his job. The Judge reviewed arange of sentencing judgments for demanding with menaces, andconsidered the range lies between 14 months and two years'imprisonment. Given the offending did not involve actual violence and heessentially acted alone (although the language used brought with it animplicit gang threat), the Judge adopted a starting point of 21 months'imprisonment.(d) In Emery v Police, the appellant and three other patched gang memberswere invited into the victim's address.13 They were seeking money thevictim was said to have owed and demanded "where's your money". Theyordered the victim to pack up and hand them his PlayStation and give themhis EFTPOS card and its PIN. The appellant told the victim he wouldreturn the PlayStation when the victim gave him $1,500 (although this waslater reduced to $100 due to the victim's father's interventions). Theoffenders took the property to Cash Converters and received $200 for it.The Judge noted that, while the offending did not involve a home invasion,the appellant was unlawfully present in the victim's home once hedemanded the victim hand over his property. A starting point of two years'12 R v Whaanga, above n 9.13 Emery v Police, above n 9.imprisonment was upheld on appeal for what was described as a "seriousstand-over event with force of numbers", also taking into account theappellant's extensive list of similar criminal convictions.(e) In Opetaia v R, the offender and an associate, dressed in gang regalia,confronted a bartender.14 They demanded protection money of $1,200 permonth by saying "we are masters of this land, we own this territory". Theoffender's associate grabbed the victim by the shirt and threatened todamage the store and later return if their demands were not met. Thevictim handed over approximately $5 in coins to the offender, who spentit in gambling machines as he left the premises. The Court of Appealconsidered the offending involved an extortion racket by gang membersin which there was an increased level of intimidation by two persons beingpresent when the appellant delivered the threats, and noted they were bothdressed in gang regalia and demanding considerable money on an ongoingbasis. The starting point of two years' imprisonment was upheld onappeal.(f) In R v Thomas, the defendant and an associate went to the victim's housein the early hours of the morning.15 They were both wearing gang patches.They claimed the victim had stolen money from them and said they wouldnot be leaving without taking some "stuff". Items were stolen from thehouse to a value of around $1,500 and the occupant was threatened thatshe would be stabbed by the associate who was holding a knife. Thedefendant then put his hands around the victim's neck and started to chokeher in view of her son to the point she thought she was going to pass out.The defendant told the victim to give him her phone and she could go toher son, which she did. The victim did not receive any injuries and theproperty was returned voluntarily. The Judge identified the aggravatingfactors were unlawful presence in the victim's home, violence used, thenumber of items stolen, two people involved in the offence, and thepremeditation and intimidation involved (including wearing gang14 Opetaia v R, above n 9.15 R v Thomas [2016] NZHC 3083.patches). A starting point of two years and eight months' imprisonmentwas adopted.[23] The offending in this case involved threats of violence, implicitly to be inflictedby a group, and the presence of multiple offenders, one of whom was wearing a gangpatch. While there was no actual violence or a home invasion (as it was not thevictim's address), the victim was coerced into moving into a different room where hewas met by the associates. The whole scene would have been seriously intimidatingfor the victim. The events occurred in a sequence, consistent with Mr Cowell'sconfidence that he would benefit from having the support of others and that he couldbully and intimidate the victim into handing over property to him.[24] The property was returned without damage once Mr Cowell was apprehended.However, there was significant value in the items taken (namely the Audi vehicle andcell phone) and the victim was left very distressed. The cell phone would also havebeen of considerable personal value to the victim.[25] In his victim impact statement written on the day of the offending, the victimstated he felt "traumatised" and "terrified" as a result of the offending. There was noreason to consider the distress caused to the victim would have been less simplybecause there had been no updated victim impact statement available at sentencing.[26] In the circumstances, I consider the starting point adopted by the Judge of twoyears' imprisonment was within the available range.Totality[27] Ms Gray submitted, after adopting a two-year starting point and applying anuplift for the weapons offending, the Judge failed to consider the principle of totalityand thereby adopted a starting point out of proportion to the gravity of the offending.[28] Ms Fiennes submitted an uplift of three months for the additional charges ofpossession of ammunition and possession of a knife was well within range and did notrequire a further adjustment for totality. She submitted a greater increase could havebeen warranted.[29] Pursuant to s 85 of the Sentencing Act 2002, when cumulative sentences ofimprisonment are imposed, they must not result in a total period of imprisonment thatis wholly out of proportion to the gravity of the overall offending.[30] Here, the Judge uplifted the starting point by three months for the additionalcharges of possession of four rounds of .22 calibre ammunition and possession of apocketknife. These items were located in a black bag Mr Cowell was wearing aroundhis body when he was arrested later that day. I accept the Judge did not have explicitregard to the totality principle. However, the failure of a Judge to mention the totalityprinciple is of no moment if the sentence imposed is not out of proportion to the gravityof the offending.16[31] The Judge treated the possession of four rounds of ammunition as being lessserious because, at the time, Mr Cowell did not have a gun. Although he was locatedwith a pocketknife on the same day as the demanding with menaces offending, therewas no evidence that he intended to use it in connection with that offending. But,unlawful possession of ammunition in these circumstances is not a trivial matterbecause of the way it demonstrates a disregard for the legal restrictions as to when andin what circumstances a person can be in possession of ammunition. The possessionof a knife was also potentially dangerous in circumstances where an offender did nothave the knife for a lawful purpose and was found in possession of it not long afterbeing involved in an incident where possession of a knife increased the risk of it beingused in a way that could have led to injury.[32] I do not consider the total starting point of 27 months' imprisonment waswholly out of proportion to the gravity of the overall offending.Uplift for previous convictions[33] Ms Gray submitted the four-month (or 15 per cent) uplift imposed for MrCowell's previous convictions was disproportionate to the starting point and shouldnot have exceeded three months. She submitted it does not appropriately reflect thatMr Cowell's last relevant conviction (for aggravated robbery) was almost a decade16 Kite v R [2018] NZCA 485 at [21]; and Herlund v R [2021] NZCA 71 at [58].ago in September 2013 when he was aged only 20, and such an uplift is akin tosentencing him again for an offence he has already expiated.[34] Ms Fiennes acknowledged the aggravated robbery conviction was relativelyhistorical but submitted, given Mr Cowell's history of relevant dishonesty andviolence-related offending, an uplift of four months was within range.[35] The Sentencing Act specifies the Court must take into account the number,seriousness, date, relevance and nature of any previous convictions of the offender.17In Reedy v Police, this Court considered the function of applying an uplift for previousconvictions.18 The Court observed that a criminal history does not, in itself, justify anuplift, it must have some relevance to the current sentencing and remain proportionateto the starting point.19 It explained that convictions may be taken into account as anindicator of character and culpability, because they show the need for a greaterdeterrent response, and as an indicator of the risk of reoffending.20[36] Mr Cowell is aged 29 and has 28 previous convictions for offending committedbetween 2010 and 2020. As the Judge identified, despite his relatively young age, MrCowell has a history of violent offending for which he has received significant periodsof imprisonment and more recent dishonesty-related offending. In 2012 he wassentenced to one year and two months' imprisonment for injuring with intent to injure(family violence) (in 2011), male assaults female (2011) and assault with intent toinjure (2010). Then in 2015 he was sentenced to four years and six months'imprisonment for aggravated robbery (firearm) (committed in 2013), unlawfulpossession of a firearm (2013) and wilful damage (2014). At this time, he alsoreceived his first strike warning under the now repealed three strikes regime. He wasreleased on parole in October 2018. In December 2019 Mr Cowell was sentenced toa total of 14 months' imprisonment for burglary, possession of a knife in a public place,possession of methamphetamine utensils and other driving offences committed earlierthat year. He was most recently disqualified from driving for a year on 20 August2020.17 Sentencing Act 2002, s 9(1)(j).18 Reedy v Police [2015] NZHC 1069.19 At [18]−[19].20 At [19].[37] Ms Fiennes referred to Opetaia v R, where the Court of Appeal consideredwhether a six-month (25 per cent) uplift for previous convictions was outside theavailable range.21 There, the appellant had a number of previous convictions forhistorical serious violent offences (not specified in the judgment), the last of whichoccurred in 1996, some 13 years before the index offending. The Court found thatalthough the appellant had not received a prison sentence for any of the 10 offenceshe had committed since 1996, his present offending demonstrated he had continued tobe involved in serious criminal offending. The Court found the uplift was notexcessive.[38] I also have regard to Te Hau v R, where the Court of Appeal quashed an upliftof six months (16.67 per cent) for an offender's previous convictions.22 The offenderwas sentenced for aggravated robbery and had a previous conviction for that offencefrom 2002 (seven years earlier when he was 18 years old). The Court accepted thisoffending was similar in kind and therefore relevant, but that the need for particularindividual deterrence and community protection was less given he had not reoffendedin that way for a reasonably significant period of time. In the Court's view, no upliftwas warranted, although it observed a small uplift would not have been outside thesentencing discretion.[39] Mr Cowell's 2013 aggravated robbery was of relevance given the demandingwith menaces charge involved threatened violence. That earlier offending was alsocommitted through use of a firearm, increasing the concern relating to Mr Cowellhaving been found in possession of ammunition with this latest offending.[40] As a general principle, the greater the period of time within which there is norelevant offending, the less weight the courts are likely to give to previousconvictions.23 However, the period between that offending and the present offendingis of less benefit to Mr Cowell given he was released on parole in October 2018, wenton to commit a burglary in 2019 and, in December 2019, was sentenced for possessionof a knife in a public place.21 Opetaia v R, above n 9.22 Te Hau v R [2013] NZCA 431.23 Cashmore v Police [2017] NZCA 508 at [11].[41] On the basis of his previous involvement in both dishonesty-related offendingand violence, I agree the uplift of four months to meet the needs of communityprotection and deterrence was justified. As noted by his probation officer in the pre-sentence report, given the frequency with which Mr Cowell had offended, his apparentlack of responsiveness to previous rehabilitation interventions and limited progress inthe community on successive releases, he was assessed to pose a moderate to high riskof offendingDiscount for guilty pleas[42] Ms Gray submitted Mr Cowell pleaded guilty as soon as the charge wasamended from aggravated robbery and he was prepared to do so at an earlyopportunity. She highlighted that, by virtue of the aggravated robbery charge MrCowell initially faced, he was at that time potentially liable for his second strike underthe previous three strikes regime. She advised there had not been an agreed resolutionuntil the pre-trial callover stage but, given his motivation for resolution and the threestrikes legislation that applied to him, a 17 per cent reduction for his guilty pleas couldhardly have been considered generous.[43] Ms Fiennes accepted Mr Cowell entered a guilty plea to an amended charge.However, she argued the matter had progressed significantly (indeed, to pre-trialcallover) before resolution occurred. In circumstances where Mr Cowell received thebenefit of the resolution on a lower charge, and referring to Hessell v R, she submitteda 17 per cent discount was available to the Judge.24[44] In Hessell v R, the Supreme Court relevantly observed:[62] Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give the samepercentage credit invariably for an early guilty plea in sentencing withoutregard to the circumstances can amount to giving a double benefit. Forexample if the Crown agrees to accept a plea to manslaughter and drops acharge of murder in relation to offending, the acceptance of the plea can be aconcession in itself. If the full credit for an early plea is then also given, thesentence may not properly reflect the offending. 24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[45] The Court later said:25 the credit that is given must reflect all the circumstances in which the pleais entered, including whether it is truly to be regarded as an early or late pleaand the strength of the prosecution case.[46] It appears Mr Cowell entered a guilty plea to the demanding with menacescharge at the pre-trial callover stage, as soon as it was amended from aggravatedrobbery. However, in line with the observations in Hessell, Mr Cowell benefittedappreciably from the plea arrangement. In the absence of further information as to thecircumstances surrounding the amendment to the charges, such as the extent of thematerial difference between the summaries of facts for the original versus the amendedcharge, I can see little difference between Mr Cowell's offending and that which wouldjustify a charge under s 235(b) of the Crimes Act 1961 (that is, aggravated robbery byrobbing a person together with another person).26 I also note that it was open to himto enter pleas to the remaining charges at an earlier opportunity given theoverwhelming evidence in relation to those.[47] In these circumstances, I am satisfied the discount of 17 per cent was readilyavailable to the Judge.Discount for matters contained in the s 27 report[48] Ms Gray submitted that a greater discount was warranted for the factorsidentified in Mr Cowell's s 27 report, particularly given he faced mental health issuesin addition to significant cultural issues. She said the report outlined Mr Cowell'sexperiences of abuse, mental health and behavioural challenges (including a diagnosisof ADHD from a young age), perceived abandonment issues and dislocation from hiswhānau, educational under-achievement and truancy, and drug abuse.[49] She also highlighted the fact that, in speaking to Dr Jarrod Gilbert and others,Mr Cowell had spoken only recently to others of abuse he suffered also at a healthcamp.25 Hessell v R, above n 24, at [74].26 See Knight v R [2021] NZHC 2372 at [17]−[18].[50] The Judge had the benefit of a detailed and carefully written pre-sentencereport, the s 27 report prepared by Dr Gilbert and an alcohol and other drug assessmentand treatment service report prepared for He Waka Tapu and Odyssey House.[51] There is evidence in the reports suggesting Mr Cowell suffered from mentalhealth (including a diagnosis of ADHD) and behavioural challenges from a young age.That led, at times, to dislocation from his whānau, educational under-achievement andtruancy, and drug abuse, which must have all been factors in his criminal offending.However, Mr Cowell was not brought up in a gang environment. Mr Cowell said heunderstood his father was in a gang. His mother told Dr Gilbert that was prior to theirrelationship and never while Mr Cowell's parents were together. She said she wouldnot have tolerated that.[52] Although the pre-sentence report referred to Mr Cowell only recently beingdiagnosed as suffering from ADHD, his mother told Dr Gilbert it was staff at thekōhanga Mr Cowell attended who suggested he be assessed for ADHD. She had saidit was a long, drawn out process before the diagnosis was reached and Ritalinprescribed.[53] It would appear Mr Cowell's parents did provide examples of how people inhis family could live pro-socially. The s 27 report referred to his father working in adairy factory, then as a welding tutor, and his mother as a cleaner, café assistant and,for the past 22 years, in a range of administrative roles.[54] Mr Cowell's parents arranged for him to go to [a Health Camp] when he wasabout seven because they thought this would be positive for him at a time when hisbehaviour at primary school was causing concern.[55] His mother said they sent him to live with an aunt in Hamilton, away fromwhere the family lived in Auckland, when he was 11 because they were desperate. MrCowell returned to Auckland to live with his family as a teenager but often truantedfrom school, associated with various neighbourhood gangs and became involved incriminal activity.[56] In 2008, when he was 15 years old, Mr Cowell's family again tried to do thebest for him by deciding to move their whole whānau to Christchurch. Unfortunately,Mr Cowell as a teenager became increasingly involved in crime. He also began usingmethamphetamine, recreationally from the age of 16 and habitually since his earlytwenties. The family moved back to Auckland after Mr Cowell was remanded incustody for the aggravated robbery offending in 2013.[57] Mr Cowell told Dr Gilbert he used to get a thrill from crime, that he was awarehis poor decision-making leads him back to jail, and he does stupid things but says tohimself "it doesn't matter because this is the risk. Jail. So my decisions is, 'Ah, fuckit. It's only jail'."[58] To the probation officer, Mr Cowell acknowledged he had found reintegratingback into the community "really hard" and had in the past struggled to maintainmotivation and compliance. Consistent with that, the probation officer noted thiscurrent offending occurred only two months from his previous release from custodyin July 2021.[59] On 18 March 2015, Mr Cowell was sentenced to four years and six months'imprisonment for aggravated robbery with a firearm and was given a first strikewarning. That was an experience he could have leant from. Instead, on 6 December2019, he was sentenced to 14 months' imprisonment for a range of offences committedbetween 7 March 2019 and 1 October 2019, including offences of dishonesty,breaching release conditions and bail conditions, and unlawfully taking a car.[60] Mr Cowell acknowledges that much of his offending, including this mostrecent offending, has been committed in order to access methamphetamine.[61] It is well-established that an offender's personal background of trauma ordeprivation can warrant a discount where there is a causal nexus with the offending —however that does not require the Court to be satisfied that those matters are aproximate cause of the offending.27 It has been frequently recognised that theexistence of pervasive and persistent social disadvantage or systemic deprivation will27 Carr v R [2020] NZCA 357 at [64].result in impaired choice and diminished moral culpability so as to justify such adiscount.28[62] In the present case, the Judge carefully considered the s 27 report. Sheaccepted it disclosed Mr Cowell had a somewhat troubled upbringing and exhibitedthe attributes shared by many disenfranchised young Māori men who are sent to liveaway from their whānau and are traumatised as a result. The Judge also had regard tothe fact Mr Cowell was diagnosed with ADHD from a young age, struggled with hisschooling, gravitated towards anti-social peers and developed a dependence on illicitsubstances, particularly methamphetamine. While the Judge did not explicitly refer tothe pre-sentence report or drug and alcohol reports, her detailed discussion of the needfor Mr Cowell to be placed in a residential treatment facility to address the underlyingcauses of his offending indicates she was well-acquainted with that material and anyomission to consider it did not materially impact the ultimate outcome.[63] The pre-sentence report identified that "[o]ffending supportive attitudes,violence proclivity and substance abuse are assessed to be key offending relatedfactors [for Mr Cowell], along with his association with criminal associates".[64] I consider there was no error in the Judge's allowance of 10 per cent for thebackground matters referred to in reports. It appropriately recognised the extent towhich background circumstances were factors in his offending while also recognisingthat Mr Cowell had to be held responsible for the circumstances which put him at riskof the offending for which he had to be sentenced and put others in danger.[65] The Judge provided an additional two months (or approximately 7.5 per cent)discount which she said was to reflect the difficulties Mr Cowell had faced in tryingto engage in meaningful rehabilitation. She was referring to the difficulty he faced inobtaining a placement in a residential treatment programme which could help him todeal with his drug use, which was assessed as a significant factor in his offending.28 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]; Solicitor-General v Heta [2018]NZHC 2453, [2019] 2 NZLR 241.[66] In providing for that discount, the Judge was recognising information in thereports which suggested Mr Cowell was now motivated to change and had thepotential to do so. The pre-sentence report referred to Mr Cowell becoming "quiteanimated in expressing his interest in gaining support around employment", with thebelief it would help to keep him out of trouble. He is willing to engage in a re-diagnosis assessment as to his ADHD.[67] Information from the pre-sentence report suggests Mr Cowell has some insightinto why he offends. He recognised it would be difficult for him to undertake drugtreatment in the community.[68] Mr Cowell has the support of a partner who spoke of Mr Cowell's attributes ina way that would indicate she would be likely to have a pro-social influence over him.The probation officer also spoke of the positive support which would be available froman aunt.[69] With the additional two months' discount, the total discount for matters relatingto Mr Cowell personally, other than his guilty plea, was 17.5 per cent. That wasadequate.[70] What was missing in both the pre-sentence report and Dr Gilbert's s 27 reportwas detailed information as to how Mr Cowell could be in the community in somesituation where he would be able to engage successfully in a drug treatmentprogramme and avoid all the circumstances and associations that would put him andothers at the risk of further serious violent offending. The Judge recognised this waswhat he needed and optimistically reserved leave for Mr Cowell to apply for homedetention if placement in a suitable residential facility became available.[71] Section 27 of the Sentencing Act allows an offender to ask the court to hearhow support from the family, whānau or community may be able to help preventfurther offending by the offender. What might have helped Mr Cowell avoid asentence of imprisonment was not so much a detailed account of his troubled past butdetailed information as to how such support would be available to him, his willingnessto accept that support and the responsibilities that go with it, and how, with thatsupport, the risk of further offending would be reduced. Unfortunately, the Judge hadto sentence Mr Cowell without the benefit of such information.Conclusion[72] On an appeal, the focus must be on the end sentence. In the District Court, theJudge carefully considered all the relevant issues. She did that by engaging with allthe information before her. I have not been persuaded there was any error in theconclusion she reached on particular issues or with the sentence that was ultimatelyimposed.[73] For that reason, this appeal must be and is dismissed.Solicitors:K Gray, Barrister, ChristchurchCrown Solicitor's Office / Raymond Donnelly & Co., Christchurch.