RUSSELL & HOKAI v POLICE [2020] NZHC 127

RUSSELL & HOKAI v POLICE [2020] NZHC 127 [11 February 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000001[2020] NZHC 127BETWEEN KODIE REECE RUSSELLAppellantAND NEW ZEALAND POLICERespondentCRI-2019-412-000042BETWEEN ETHAN JAMES HOKAIAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2020Appearances: M A Stevens QC for the Appellant RussellA Dawson for the Appellant HokaiR Smith for the RespondentJudgment: 11 February 2020JUDGMENT OF NATION JIntroduction[1] The appellants, Kodie Russell and Ethan Hokai, pleaded guilty to a joint chargeof assault with intent to injure. In a decision of 24 September 2019, Judge Flatley inthe District Court sentenced each of them to 18 months' imprisonment.1 The1 Police v Hokai and Russell [2019] NZDC 19067.appellants both appeal that sentence on the basis the starting point was excessive andthe Judge did not consider totality.Facts[2] The appellants and the victim are prisoners at the Otago Correctional Facility.On 18 April 2019, all three were in the exercise yard. Mr Hokai approached the victimand kicked him. At the same time, Mr Russell punched the victim in the side of thehead. The victim was on the ground and shielded himself with his arms, while theappellants continued to punch and kick him for nearly 40 seconds. The assault stoppedwhen a Corrections Officer arrived.[3] The victim suffered a swollen lip, abrasions to the face and a loose tooth.District Court decision[4] Judge Flatley considered the aggravating features of the offending were thatthere were attacks to the head, there were two on one, the level of violence, theprolonged nature of the attack and the vulnerability of the victim. He assessed theoffending as falling within the second band of Nuku v R, and adopted a 24 monthstarting point for both appellants.2 That starting point also took into account the needfor a strong deterrent sentence where offending has taken place in prison, to reinforcethe importance of prison discipline and the protection of vulnerable inmates.[5] The Judge considered Mr Hokai's criminal history, including his currentsentence for violent offending, and decided not to make an uplift in respect of thataggravating factor. He was conscious not to engage in double counting given MrHokai was already serving a lengthy sentence for violent offending, and to achieveparity between the appellants. However, the Judge refused to grant any discountbecause the appellants had already had prison privileges removed from them inresponse to the offending.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.[6] The appellants were given a full discount for their guilty pleas, resulting in anend sentence of 18 months' imprisonment respectively, imposed cumulatively on theircurrent sentences.Principles on appeal[7] 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 that a different sentence should beimposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".4 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.5SubmissionsAppellants' submissions[8] The appellants submitted firstly that the starting point of 24 months was toohigh. Counsel accepted that the offending was properly assessed as band two of Nuku,which justifies a starting point of up to three years' imprisonment. For Mr Russell,Mrs Stevens QC submitted that the offending was at the lowest end of that band. Sheargued that the violence used was only moderate, seemed to be directed more atshowmanship than injury and the duration of the assault was relatively short. Bothcounsel noted the apparent absence of serious injury.[9] Mrs Stevens also urged that caution should be exercised to avoid doublecounting in terms of the vulnerability of the victim, where that vulnerability related tohis being in the prison environment but the fact the offending occurred in prison was,in itself, an aggravating feature of the offending. Mrs Stevens also suggested that theassault might be seen as less serious when it occurred in a situation where the3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].defendants would have known they were under surveillance, Corrections officerswould in all likelihood intervene and there were likely to have been other prisonersaround who might also have come to the victim's assistance.[10] Mr Dawson adopted the submissions of Mrs Stevens. He referred to Kepu vPolice, where two prisoners seriously assaulted another inmate, including stabbinghim multiple times.6 Mr Kepu did not stab the victim, but dealt him a number ofpunches to the head. On appeal, the Judge found the starting point of 15 months wastoo lenient.7 Mr Dawson submitted the present offending was far less serious than inKepu because the assault was relatively brief, the victim suffered no serious injuries,there was no weapon used, and no clear element of premeditation. He argued that,even though the 15 month starting point in Kepu was considered lenient, the presentstarting point of two years was still too high in comparison.[11] Both counsel submitted that a starting point of 15 to 18 months would beappropriate for the present offending. They sought support from the judgment of theHigh Court in Van Silfhout v Police.8 The Court there was dealing with a defendantwho, with an associate, had attacked another inmate in an exercise yard at the prison.There was no one else present at the time. The two men punched and kneed the victimin the head on numerous occasions. They continued to do this until a prison officerobserved what was going on and came to the rescue of the victim. The victim sufferedbruising to his head and body, injuries to his ribs, pain under his rib cage and grazesand tenderness to the neck. The attack left him suffering from headaches and nausea.The sentencing Judge adopted a starting point of 18 months' imprisonment. In theparticular circumstances of that case, the Judge decided the sentence would beimposed concurrently with an existing sentence. There was no criticism of the startingpoint when the matter was before the High Court.[12] The appellants' second ground of appeal was that the Judge did not have regardto totality given the appellants were already serving a sentence of imprisonment onother charges. Counsel submitted that s 85(2) Sentencing Act 2002 creates a6 Kepu v Police [2016] NZHC 2410.7 At [32].8 Van Silfhout v Police HC Tauranga CRI-2011-470-22, 2 September 2011.mandatory requirement for the Court, when imposing a cumulative term ofimprisonment, to ensure that the total period of imprisonment is not disproportionateto the gravity of the overall offending.[13] Mr Dawson referred to the Court of Appeal judgment in Opetaia v R, wherethe Court suggested a sentencing Judge should consider what the appropriate endsentence would have been if they had been required to sentence the offender on allcharges at the same time.9[14] Mr Hokai was serving a sentence of five years and three months' imprisonmentfor charges of aggravated robbery and injuring with intent to cause grievous bodilyharm. After adding the 18 months imposed for the present offending, his effective endsentence is six years and nine months' imprisonment. Mr Dawson argued that sentencewas disproportionate to the gravity of Mr Hokai's overall offending, and close to"crushing" on someone who was only 23 years old at the time the offence wascommitted and 20 when the earlier offending was committed. He argued the totalperiod of imprisonment would have a major impact on Mr Hokai given he would beonly in his 20s during that time.[15] He submitted the appropriate sentence for the present offending, with regardto totality, would be 10 to 12 months' imprisonment.[16] Mr Russell was serving a sentence of three years' imprisonment for dishonesty,arson, drug offending and escaping, plus the cumulative sentence of 18 months, whichresulted in an effective end sentence of four and a half years for all offending. MrsStevens argued this was a disproportionate sentence for similar reasons to thosesubmitted on behalf of Mr Hokai. She submitted an appropriate end sentence for MrRussell would be 10 months' imprisonment.[17] Both counsel referred to the penalties the appellants faced through thesanctions imposed within the prison as a result of the incident. These included limitedaccess to contact family and the ability to leave a cell for the exercise yard for onlyone hour each day, when that exercise yard was little more than a confined cage which9 Opetaia v R [2013] NZCA 434 at [34].gave them limited scope for real exercise and no contact with other people. Thosesanctions were imposed for a period of 14 days.Respondent's submissions[18] Mr Smith, for the respondent, submitted the starting point was justified. Hesaid it was difficult to imagine a more serious example of assault with intent to injurethat would not have resulted in a more serious charge. The attack lasted around 40seconds, involved a substantial number of blows delivered in concert by two offenders,and continued well after the victim had been knocked to the ground. Mr Smithsubmitted the Judge was correct to assess this as involving a high level of violence,and noted the Judge was well placed to make that assessment given he viewed footageof the incident. In addition to the other aggravating factors identified, he submittedthe fact the assault occurred within a prison was a serious aggravating feature.10 Giventhese features, Mr Smith contended the offending could be seen as falling within bandthree of Nuku. The starting point of two years was therefore well within range andperhaps even generous.[19] Mr Smith further submitted that this was not a case where an adjustment fortotality was required or appropriate.[20] Mr Smith submitted that the appellants' reliance on Opetaia was misplaced.The cumulative sentence in that case was imposed for offending that pre-dated thesentence already imposed, and none of the offending related to incidents occurringwithin a prison. Mr Smith contended that is a very different situation from the presentcase. He submitted the present case is more akin to Skipper v R where the Court ofAppeal observed that the totality principle will have less application where theoffending occurred after that for which the offender was first sentenced.11[21] In regard to Mr Dawson's final point about prison sanctions, Mr Smithsubmitted that it would not be appropriate for the Court to take account of that fact.He contended that the loss of privileges within the prison is a matter of prisoner10 Lake v R [2017] NZCA 39, at [7].11 Skipper v R [2011] NZCA 250, at [35]-[36].management catered for under the Corrections Act 2004 and is vital to the effectiveand safe management of prisoners. Mr Smith was unaware of any authority, nor wasany cited by the appellants, to support the proposition that the loss of privileges withinthe prison should be taken into account as a mitigating circumstance at sentencing.[22] Given the precedents regarding prison offending and the circumstances of thepresent case, Mr Smith submitted that a cumulative sentence of 18 months'imprisonment was not wholly out of proportion to the gravity of the overall offendingin the case of either appellant. He contended that a higher starting point may havebeen available to the Judge, as well as uplifts for the appellants' criminal histories.The end sentences were therefore well within range.Analysis[23] I accept this was a serious assault.[24] The appellants had to be sentenced on the basis of the summary of facts.Through that, they accepted they had participated in "an orchestrated attack". MrHokai approached the victim and kicked him. Simultaneously, Mr Russell punchedthe victim with a closed fist, connecting with the side of the victim's head. It was asustained attack. Mr Hokai punched the victim 33 times using his closed fists, thepunches connecting with the victim's head and body. While the victim was trying toprotect his head and body, Mr Hokai continued to kick and knee the victim anothereight times. Mr Russell punched the victim on 20 occasions using his closed fists, thepunches connecting with the victim's head and body. He also kicked and kneed thevictim a further 12 times, connecting with the victim's head and body.[25] The Judge viewed the CCTV footage. The Judge appears to have beenreasonably conservative in describing what happened as a "fairly brutal attack". Heappropriately said it could not be categorised as a "one-off violent attack". Thesummary of facts referred to the victim sustaining a swollen lip, abrasions to his faceand a loose tooth. Given the nature of the assaults, it would have been most surprisingif this was the extent of the pain or injuries he suffered. The Judge said "it is notentirely clear what injuries the victim suffered, if any", but did refer to the injuries justmentioned that were referred to in the summary of facts. In Nuku, the Court of Appealdeparted from earlier authority in saying the seriousness of an assault, such as occurredhere, should not be assessed primarily according to the seriousness of the injuriesinflicted.12[26] There was no error in the Judge categorising the offending as band two, asdiscussed in Nuku v R. It involved attacks to the head, multiple offenders, an attackof a prolonged nature and a vulnerable victim, given the attack occurred when he wasin prison and unable to escape or avoid the situation he was in. Consistent with that,the Judge noted the victim immediately went into a defensive position, attempting toshield his head with his arms and hands and attempting to walk about but eventuallyfalling to the ground.[27] In Van Silfhout, the High Court was dealing with a situation where a startingpoint of 18 months had been adopted for somewhat similar offending but, as Mr Smithpointed out, the Court there did not consider the appropriateness of that startingpoint.13 The issue on the appeal was whether, in the actual circumstances that hademerged, the sentencing Judge's intention, that the appellant would not have to servean extended time in prison with a further sentence, would be achieved with the endsentence that was adopted.[28] It is important that judges endeavour to achieve consistency with sentencesimposed for similar offending.[29] On 25 November 2019, in R v Tapine, Venning J sentenced Mr Tapine on anamended charge of assault with intent to injure following his guilty plea.14 Mr Tapinehad thrown the first punch against another inmate. The victim had fallen to the groundand was then attacked by two other inmates. Those inmates had shanks. As a result,the victim suffered a number of stab wounds. The Judge accepted Mr Tapine was notinvolved in the worst of the attack but he had thrown the punch which initiated theattack that followed. The Judge sentenced him on the basis it was a planned andpremeditated attack. Mr Tapine's role was to start the attack and to knock the victim12 Nuku v R, above n 2, at [33].13 Van Silfhout v Police, above n 8.14 R v Tapine [2019] NZHC 3134.down. The Judge accepted the Crown could not prove that Mr Tapine knew shankswere going to be used by the other two and that he was not directly responsible for theserious injuries caused to the victim. However, he noted that Mr Tapine hadnevertheless attacked the victim's head and both Mr Tapine and the co-defendant hadassaulted the victim in a way that caused him to fall to the ground immediately. MrTapine had effectively set up the victim for an ongoing attack by the other twodefendants. The victim also had a particular vulnerability in that he was handicappedby a prosthetic leg. The Judge adopted a starting point for the offence of two years'imprisonment.[30] In Karetu v R, the Court of Appeal was primarily concerned with whether ornot there needed to be an adjustment to the imposed sentence on account of the needto consider totality.15 Mr Karetu was sentenced to four years and three months'imprisonment on charges of injuring with intent to injure and wounding with intent toinjure, and subsequently to nine years' imprisonment on various sexual offencesarising out of an earlier rape.[31] Mr Karetu was convicted of injuring with intent to injure after he and anotherman went into the cell of a fellow inmate at the prison and beat him up, leaving thevictim with a deep cut to his lip, swelling and grazes to the face. The sentencing Judgeadopted a starting point of 18 months' imprisonment for that offending but uplifted itto two years to give a deterrent affect to the sentence because it concerned prisondiscipline and the need to protect other vulnerable inmates.[32] Mr Karetu had pleaded guilty to wounding with intent to injure. That relatedto an incident some four months later. Mr Karetu had confronted a prison officer inthe dining room and blind-sided him with a single punch, leaving him with two openwounds inside his mouth. The punch also caused a brain injury. The officer neededtreatment and was off duty for some months. The starting point adopted for thatsentence was three years.15 Karetu v R [2013] NZCA 408.[33] I note the charges for which Mr Karetu was sentenced in both instances weremore serious than were brought against the appellants here, with more seriousmaximum penalties. The charges brought and the sentence imposed neverthelessindicate how seriously the courts regard this sort of offending. A starting point of twoyears' imprisonment was adopted for offending similar to what occurred here.[34] Mr Karetu was subsequently sentenced to nine years' imprisonment for thesexual offending arising out of the rape. That sentence was imposed cumulatively.The Court of Appeal dismissed the appeals against sentence.[35] In Haeata v Police, the appellant was serving a sentence of imprisonment atthe time of the offending.16 He became angry with two Corrections officers and tookfrom his pocket a sock with two pool balls placed inside it. He began to swing thesock around aggressively, striking one officer on the head with it. Cooke J consideredthe offending fell within band two of Nuku given there was an attack to the head, useof a weapon, the victim was a public official and the offending occurred while he wasserving a sentence of imprisonment. He adopted a starting point of 18 months on acharge of assault with intent to injure.[36] In Tamihana v R, the Court of Appeal was concerned with a sentence imposedon an assault with intent to injure charge.17 Mr Tamihana and an associate wereoutside a bar. The associate became involved in an argument with the victim. Hepunched the victim in the face with a closed fist. The victim fell to the ground. Theassociate kicked him while he was on the ground. Mr Tamihana then ran up to thevictim and kicked him once in the head. As a result of the assault, the victim sufferedbruising and grazes to his head. The Judge adopted a starting point of 18 months'imprisonment for Mr Tamihana's offending.[37] The Court of Appeal noted there was no guideline judgment for the offence ofassault with intent to injure. The Court nevertheless acknowledged the relevance ofguideline decisions on more serious charges. It considered Mr Tamihana's offendingwas comparable to band two in Nuku. The Court considered the aggravating features16 Haeata v Police [2019] NZHC 3268.17 Tamihana v R [2015] NZCA 169.were Mr Tamihana's kick to the victim's head and the fact he was acting in concertwith an associate, so the victim was faced with two attackers. Thirdly, it consideredthe victim was vulnerable when he was kicked, lying defenceless on the ground. TheCourt however considered the offending was not at or towards the higher end of suchoffending. In contrast to the situation with these two appellants, it said the kick to thehead was a one-off attack and there was no premeditation. Of assistance to myanalysis, the Court of Appeal there considered sentences imposed for broadly similaroffending by the High Court.18[38] In Tamihana, the Court of Appeal decided the starting point of 18 months forMr Tamihana's offending was too high. They considered the starting point shouldhave been 12 months. A significant factor in adopting that starting point however wasthat a 12 month starting point had been adopted for Mr Tamihana's associate who hadpunched the victim to the face with a closed fist, causing him to fall to the ground, andthen kicked the victim while he was defenceless on the ground, albeit not to the headarea. The Court of Appeal considered the adoption of a starting point of 12 monthsfor the associate and 18 months for Mr Tamihana was wrong in principle.[39] In contrast to Mr Tamihana's offending and that which was involved in thecases referred to by the Court of Appeal, this offending involved premeditation to amodest degree. There was nothing in the summary of facts to indicate the assaultsoccurred in a spontaneous response to something the victim had said or done. For theattack to be "orchestrated" and for both offenders to have simultaneously assaulted thevictim, there had to be a degree of planning. Consistent with that, Mr Hokai told theprobation officer who prepared the pre-sentence report that "the assault had been astupid idea and had happened because the victim had got smart to him". It was asignificant aggravating feature that it occurred within the prison environment.[40] I accept the fact that, with their loss of privileges and a period of 14 days insolitary confinement, Mr Hokai and Mr Russell were punished within the prisonsystem for that offending. The fact their offending had this consequence for them canbe considered by the Court in deciding what sentence should be imposed to achieve18 Ransfield v Police [2014] NZHC 1046; Kojeunikov v Police [2013] NZHC 551; Kohu v Police[2013] NZHC 944.the purpose of deterrence and accountability. Mr Hokai and Mr Russell would haveknown when they were in prison that offending of this sort would bring inevitablepenalties within the prison system of the sort they were subjected to. That obviouslydid not deter them from assaulting the victim as they did. The courts have recognisedthe need for a further deterrent sentence when a prisoner is being sentenced for thesort of offence that occurred here. The Court has taken that approach when inevitablythe prisoner must also have been subject to sanctions within the prison system of thesort that occurred here.[41] Having considered matters in this way, I conclude that the starting pointadopted by the sentencing Judge was stern but within range.Totality[42] The Judge did not expressly say he had considered whether or not there shouldbe a discount for totality. The failure of the Judge to mention the totality principle isof no moment if the sentence imposed is not out of proportion to the gravity of theoffending.19 I am satisfied the Judge would have considered the issue.[43] Sentencing judges had to consider whether and to what extent sentences shouldbe cumulative or concurrent with regard to the totality principle in Lake v R, Karetu vR and Van Silfhout v Police.20 These cases were referred to by the Judge in hissentencing decision.[44] Section 85 Sentencing Act 2002 states:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentencesof imprisonment for 2 or more offences, the individual sentencesmust reflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.19 Kite v R [2018] NZCA 485 at [21].20 Lake v R, above n 10; Karetu v R, above n 15; Van Silfhout v Police, above n 8.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition ofcumulative sentences would result in a series of short sentences thatindividually fail to reflect the seriousness of each offence, thenlonger concurrent sentences, or a combination of concurrent andcumulative sentences, must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximum penaltyprovided for that offence, receive the penalty that is appropriatefor the totality of the offending; and(b) each of the lesser offences must receive the penalty appropriateto that offence.[45] In Haywood v R, the Court of Appeal referred to "the imperative of s 85(2)".21With reference to Opetaia v R, the Court indicated it was necessary to stand back andconsider whether, with a cumulative sentence, an effective end sentence would beproportionate or disproportionate to the gravity of the overall offending.22[46] In Haywood, the appellant had been sentenced to seven years' imprisonmentfor supply of methamphetamine. There was no appeal against that sentence. Whileon bail on that charge, he committed aggravated burglary and assault with intent torob. Following a jury trial, he was sentenced to two concurrent sentences of six and ahalf years for those offences. The sentences were cumulative upon the earlier sevenyear sentence, creating an overall sentence of 13 and a half years' imprisonment.[47] In that instance, the Court considered it was relevant that, although twoseparate incidents were involved, the second and third arose while on bail for the firstand all, to a degree, arose from the appellant's dependence on methamphetamine. Inthat sense, the Court considered that, although the offences were separate and distinct,they were also a connected sequence of events. In Haywood, the Court of Appeal wasnot concerned with a cumulative sentence for violent offending while in prison on asentence for the earlier offending.21 Haywood v R [2015] NZCA 551 at [10].22 Opetaia v R, above n 9, at [32].[48] In Opetaia v R, Ms Opetaia had been sentenced on 2 November 2010 to nineyears' imprisonment on an array of charges including aggravated robbery, burglaryand theft.23 On 3 April 2012, she was sentenced to a term of six years' imprisonmenton further charges of aggravated robbery and a charge of assault with intent to rob.The offending for which Ms Opetaia was sentenced to six years' imprisonmentoccurred before the offending for which she was sentenced to nine years'imprisonment. It was in those circumstances the Court of Appeal considered the Judgehad been in error in not standing back and considering whether an effective endsentence of 15 years' imprisonment was proportionate to the gravity of Ms Opetaia'soverall offending.[49] In Karetu, the Court of Appeal said:24A deterrent sentence was appropriate. As this Court said in Tryselaar,"[o]ffending in the prison environment, particularly where that offending goesto the maintenance of the discipline needed to effectively manage a penalinstitution, demands a stern response".25 The point being made in Tryselaarwas that it would undermine the need for a stern sentence to require anadjustment to reflect the fact the offender is already serving a sentence ofimprisonment for other offending.[50] In 2019, in Waru v R, the Court of Appeal stated:26[31] As the Judge said, where an appellant has re-offended while in prison,the message from this Court has been clear and consistent. Such offendingdemands a stern response particularly where, as in this case, the offendinggoes to the maintenance of discipline needed to manage a prison effectively.As this Court commented in Kepu v R:[19] Where actual violence occurs, prison officers must be entitled to thefullest measure of protection from the courts. Issues of deterrence anddenunciation are then to the forefront of the principles that the courts mustapply when offenders are sentenced. The sentences to be imposed in suchcases must demonstrate to other prisoners that the courts will not tolerateunprovoked attacks on prison officers.[32] The required stern response would be seriously undermined ifsentences for re offending in prison required downward adjustment to reflectthe fact that the offender is already serving a sentence of imprisonment. Thatmessage is all the more pertinent where, as in this case, the sentence theoffender is serving is for previous violent offending in prison.23 Opetaia v R, above in 9.24 Karetu v R, above n 15, at [18].25 Tryselaar v R [2012] NZCA 353 at [18].26 Waru v R [2019] NZCA 347 (footnotes omitted)[33] In giving Mr Nuku a sentence indication, Lang J commented in muchthe same terms as had Wylie J:[18] Ordinarily, because the sentence would necessarily be cumulative, Iwould need to have regard to totality principles. Care must be taken in thiscontext, because the Court of Appeal has made it plain that significantdiscounts to reflect totality principles may be counterproductive whereoffending occurs within a prison environment. In other words, if prisonersknow that their sentence is likely to be reduced significantly if they offendwhilst in prison, they have little incentive not to offend.(Footnote omitted.)Lang J made a similar remark when giving a sentence indication to Mr Briggsabout a month later.[34] We are unable to fault Wylie J's approach which accords with the viewthis Court has consistently taken in cases involving reoffending in prison,particularly violent attacks on other inmates or prison officers.[51] Mr Hokai was sentenced to five years and three months' imprisonment on 17November 2016 on charges of aggravated robbery and injuring with intent to causegrievous bodily harm. The Crown advised the offending involved a home invasion-type robbery where the victim was attacked with a hammer and struck in the headmore than once. Mr Hokai's other criminal offending was for offences of dishonesty.He was 23 at the time of the current offending.[52] Mr Russell was sentenced to three years' imprisonment on 28 March 2017 on32 different charges. Seven of those charges involved theft of motor vehicles and fiveinvolved arson. That offending occurred between 21 December 2015 and 7 October2016. The Crown advised the arsons involved setting stolen vehicles alight. MrRussell was aged around 18 and 19 when that offending occurred. He was 22 whenhe offended in prison. He had an extensive history of criminal offending but not foroffences of violence.[53] The offending for which Mr Russell and Mr Hokai had to be sentenced in theDistrict Court was distinct in time and circumstances from the earlier offending forwhich each were serving sentences of imprisonment.[54] I have stood back and considered whether, in all the circumstances, the endsentence imposed cumulatively on the earlier sentences, was manifestly excessive. Ido not consider that the end sentence imposed on Mr Hokai could be consideredlenient on the basis there was no uplift having regard to his previous violent offending.Such an uplift would not have been appropriate given this offending, having occurredwhile he was in prison for that offending, was taken into account as a significantaggravating factor.[55] I have had particular regard to the ages at which both Mr Russell and Mr Hokaioffended in connection with the offending for which they are already serving prisonsentences and the subsequent offending in prison.[56] In all the circumstances, I do not consider there was any error in the Judgearriving at the same sentence for both Mr Russell and Mr Hokai.[57] Despite the thorough and careful submissions of their counsel, I have not beenpersuaded that the sentences imposed on each appellant were manifestly excessive.The appeals are dismissed.Solicitors:Public Defence Service, DunedinCrown Solicitor, Dunedin.