Tamakaha v New Zealand Police [2019] NZHC 2838

Tamakaha v New Zealand Police [2019] NZHC 2838 [1 November 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-91[2019] NZHC 2838IN THE MATTER of an appeal against sentenceBETWEEN MICHAEL JAY WILLIAMREREWAOTERANGI TAMAKAHAAppellantAND NEW ZEALAND POLICERespondentHearing: 31 October 2019Counsel: B Hall for appellantAJ Pollett and EF Collis for respondentJudgment: 1 November 2019JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 1 November 2019 at 4 pmRegistrar/Deputy RegistrarDateSolicitors: Pollett Legal Ltd, RotoruaTo: B Hall, Tauranga[1] Mr Tamakaha appeals his sentence of two years, five months' imprisonment inrelation to one charge of assault with intent to injure and one charge of injuring withintent to injure.1 Both charges relate to offending against the same victim, who he hasbeen in an on-again off-again relationship with for around 20 years.Offending[2] The offending took place in two incidents; the August 2018 offending givingrise to a charge of assault with intent to injure,2 and the November 2018 offendinggiving rise to a charge of injuring with intent to injure.3 The Crown initially laid anadditional charge of assault with a weapon in relation to the November offending, butit was not proceeded with and the charge was dismissed at sentencing.4August offending[3] On the morning of 29 August 2018, Mr Tamakaha, the victim, and the victim'sseven-year-old son were at a caravan occupied by Mr Tamakaha. Mr Tamakaha andthe victim had an argument regarding comments Mr Tamakaha had made to thevictim's son. During this argument, Mr Tamakaha became angry when the victiminformed him she would not make him breakfast.[4] Mr Tamakaha grabbed the victim and punched her a couple of times in the rightshoulder area using a closed fist. Although she told him to stop he proceeded to usehis fingers to try and gouge her eyes, then grabbed her jaw and squeezed it. While hewas squeezing her jaw, he slid his hand down and placed it on her neck.[5] Mr Tamakaha then told the victim to leave the address and after she picked upher belongings, grabbed her and pushed her outside. As the victim went to gathermore belongings from a shed he followed her and pushed her again. As she walkedout of the gate near the caravan Mr Tamakaha came at her holding a chilly bin lid inthe air, although did not strike her with it.1 R v Tamakaha [2019] NZDC 18889.2 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.3 Section 189(2). Maximum penalty five years' imprisonment.4 R v Tamakaha, above n 1, at [1].[6] The victim suffered bruising to her left eye, a sore right shoulder, and a redmark on the side of her neck.November offending[7] On 19 November 2018, the victim was at Mr Tamakaha's father's address,where Mr Tamakaha was residing in a sleep out. She was three and a half monthspregnant with Mr Tamakaha's child at the time. An argument ensued about the victimnot spending sufficient time with Mr Tamakaha.[8] Mr Tamakaha then pushed the victim onto the bed where she was sitting. Heheadbutted her, then repeatedly punched her. The victim put her hands up to protectherself and Mr Tamakaha cut her knuckle by punching her. Despite the victim'sattempts to get Mr Tamakaha to stop, he continued the assault, twisting her body, thenputting his thumb in her eye and eye gouging her. As he did this, he started to chokethe victim so she could not breathe. He also bit her on the left side of her neck.[9] When Mr Tamakaha told the victim to wash her face, she was able to run awayand seek help. She was transported via ambulance to hospital. She suffered acontusion to her right eye and bruising to her eyeball, a lump on her forehead, a cutand bruising on her left hand, pain to the right side of her torso, a raised mark on herneck, and a sore jaw.District Court decision[10] Judge D G Harvey took the November offending as the lead offence. Heconsidered it fell within band two of the Nuku guidelines,5 noting the extreme violence,prolonged nature of the incident, attack to the head, and the victim's vulnerability (andin particular that Mr Tamakaha knew she was pregnant).6 He also noted Mr Tamakahawas on bail at the time of the November offending.7 He adopted a start point of three5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. Counsel were agreed at the District Courtsentencing that the offending fell within band two.6 R v Tamakaha, above n 1, at [19]-[20].7 At [23]. I note this may have been factored into the six month uplift for the August offendingrather than the three year start point.years in relation to that offending, with an uplift of six months for the Augustoffending.[11] The Judge then considered personal mitigating factors. He noted a s 27 culturalreport had been provided which recorded Mr Tamakaha had grown up in a violenthousehold, which the Judge considered "has had some effect".8 He also consideredMr Tamakaha had prospects for rehabilitation, and had been on restrictive bailconditions (although was perhaps fortunate to be granted bail after the Novemberoffending).9 He allowed an overall five month discount to reflect all these factors, adiscount of approximately 12 per cent. Although not expressly provided for in thediscount, I note the Judge also made reference in his sentencing notes to a letter MrTamakaha had written to the Court in which he finally acknowledged responsibilityfor the offending, and indications in the pre-sentence report that Mr Tamakaha hadself-referred to rehabilitation services.10[12] The Judge recorded that counsel were agreed a 20 per cent guilty plea wasappropriate.11 Later, he stated he was granting what he described as "a full discount"for guilty plea (which he stated he was rounding up). I note the discount in fact given,7 months, was approximately 22 per cent. I infer he intended to award the 20 per centagreed by counsel rather than the full 25 per cent discount available for guilty plea.This resulted in the end sentence of two years five months' imprisonment.Personal circumstances[13] Mr Tamakaha is 36 years of age. He is Māori and told the Provision of Adviceto Courts (PAC) report writer he aligns to Parihaka marae, although admits hisconnection to both his culture and marae could be stronger. He has three children agedbetween 17 years and two months old, although none of his children reside with him.8 At [27].9 At [28].10 At [17]. Mr Hall confirmed at the hearing before me that although Mr Tamakaha attended twosessions of the service, given his restrictive bail conditions, which impacted on his ability to earn,he could no longer afford to attend them.11 At [24].[14] Mr Tamakaha has nine convictions since 2001. Of these, only two areparticularly relevant, male assaults female convictions for offending in 2010 and 2017.For both convictions he received sentences of community work. This is his firstsentence of imprisonment.[15] The PAC report assessed Mr Tamakaha as having a medium risk ofreoffending, but noted his current charges indicated a severe escalation from hislimited criminal history. Despite Mr Tamakaha telling the report writer the Augustoffending was a "fabrication", the report considered Mr Tamakaha demonstrated someinsight into his offending, having identified his impulsivity and poor angermanagement as factors. It also records he has self-referred to Te Ara Pae Trust to seekassistance with anger issues.[16] The PAC report notes Mr Tamakaha has not previously been given theopportunity to engage in a rehabilitative sentence, and opines his rehabilitative needscould be met with either a community or prison-based sentence. The report ultimatelyrecommends a sentence of home detention with special conditions to attendalcohol/drug assessments and domestic violence and anger management counselling.It notes he has strong family support and the potential to obtain employment inTaranaki, where his proposed home detention address is.[17] I have also read the s 27 cultural report prepared in relation to Mr Tamakaha.As the Judge noted, the report notes some family violence, particularly whenMr Tamakaha was young. His mother left a violent relationship when he was six yearsold. He was then raised by his father until he was 13. The report notes there wasphysical discipline of Mr Tamakaha and his siblings at this time, but the Judgeconsidered that "this type of discipline was quite common, particularly in the era thatyou were growing up in."12 Mr Tamakaha then went to live with his mother and step-father, with whom he has a good relationship. Mr Tamakaha has been employed mostof his working life, in the farming, freezing works, or mining industries. The reportnotes his relationship with the victim in this case, which has been volatile. But interms of Mr Tamakaha himself, the report generally provides a picture of someone12 R v Tamakaha, above n 1, at [27].who has, particularly in their earlier years, been exposed to some violence, butgenerally now has good social networks and whānau support.[18] Finally, I note Mr Tamakaha provided a letter to the sentencing Judge in whichhe outlines his remorse and shame for his offending. In the letter, Mr Tamakaha sayshe takes full accountability for what he has done and hopes to be given the opportunityto address his anger issues by attending suitable rehabilitation.Submissions for Mr Tamakaha[19] Mr Hall for Mr Tamakaha submits the sentence imposed by the District CourtJudge was manifestly excessive.[20] Mr Hall first says the start point reached on the lead charge was too high. Hesubmits a more appropriate start point would have been at the bottom, rather than thetop, of band two of Nuku. With reference to a number of authorities, he suggests atwo year six month start point.13[21] Secondly, Mr Hall says a greater discount should have been awarded for timespent on EM bail. He advises that between February 2019 and sentencing on20 September 2019 (some seven months), Mr Tamakaha was bailed to a remote ruralproperty on a 24/7 curfew. This in itself, he suggests, would warrant a discount of sixto eight weeks.[22] Third, Mr Hall submits insufficient weight was given to the factors outlined inthe s 27 report, given the five month or 12 per cent discount captured not only thatMr Tamakaha's background contributed to some extent to the offending, but alsorehabilitation and time spent on very restrictive bail.[23] Finally, Mr Hall says a discrete discount was warranted for Mr Tamakaha'sremorse, which he says is evident in his letter to the sentencing Judge, the PAC report,and Mr Tamakaha's self-referral to rehabilitation.13 Kauvai v R [2017] NZCA 241; Hendra v R [2017] NZHC 1652; Lee v Police [2017] NZHC 2507.[24] Accordingly, Mr Hall seeks a reduction in sentence length with leave to applyfor home detention. He confirms no issue is taken with the six-month uplift for theAugust offending, nor any issue with the guilty plea discount.Submissions for the Crown[25] Ms Collis for the Crown responds that the start point on the lead charge waswell within range. She notes that the Court in Nuku described band two offending aswarranting a start point of up to three years' imprisonment where there are three orfewer aggravating factors present. Here, there is no particular challenge to the Judge'sassessment there were four aggravating features (though Mr Hall did submit on appealthat not all of them ought to be given equal weight; hence it being agreed in the DistrictCourt that the offending was band two, and not band three). But Ms Collis suggeststhat, while the start point might be considered "somewhat stern", it was neverthelessopen to the Judge to select a start point at the top of band two, and he could have foundthe offending fell at the lower end of band three. She says the cases referred to byMr Hall are not apposite, involving offending that is less serious than Mr Tamakaha's.[26] Turning to Mr Hall's submissions regarding discounts, Ms Collis againsuggests the discounts were in range. She submits limited weight can be placed on anoffender's background where the offending is serious.14 She also submits the Judgewas correct to decline a separate remorse discount, given Mr Tamakaha had onlyrecently accepted responsibility for the offending.[27] Ms Collis says it would have been open to the District Court Judge to imposean uplift for Mr Tamakaha's previous male assaults female convictions, but he chosenot to. She also submits that there was no additional uplift to reflect the Novemberoffending took place while Mr Tamakaha was on bail for the August offending. Theseare further factors, she says, that point against the overall sentence being manifestlyexcessive.[28] Ms Collis further submits that home detention is not appropriate. Shehighlights the offending involves serious and repeated instances of family violence,14 Citing R v Carr [2019] NZHC 2335.and notes the PAC report described this offending as a severe escalation of offendingby Mr Tamakaha, for which he disclosed limited remorse (and in fact denied theAugust offending).Jurisdiction on appeal[29] Appeals against sentence are governed by s 250 of the Criminal Procedure Act2011:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[30] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.15 Unless there is amaterial error in sentence, for example, leading to a sentence that it is manifestlyexcessive, manifestly inadequate, or wrong in principle, an appellate court will notintervene.16EvaluationWas the start point too high?[31] The Court of Appeal in Nuku set the following bands for offending involvingintent to injure:17(a) Band one: where there are few aggravating features, the level ofviolence is relatively low and the sentencing judge considers the offender's15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].16 At [31]-[35].17 Nuku v R, above n 5, at [38].culpability to be at a level that might have been better reflected in a less seriouscharge, a sentence of less than imprisonment can be appropriate.(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at [31] ofTaueki are present.(c) Band three: a starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will apply where threeor more of the aggravating features set out in Taueki are present and thecombination of those features is particularly serious. The presence of a highlevel of or prolonged violence is an aggravating factor of such gravity that itwill generally require a starting point within band three, even if there are fewother aggravating features.[32] As noted, the Judge in adopting a start point of three years has adopted a startpoint at the very top of band two (but given the overlapping nature of the bands, itcould also be categorised at the lower end of band three). Mr Hall has suggested thefollowing cases favour a start point lower than three years:(a) Kauvai v R:18 The victim intervened to stop Mr Kauvai makingunwanted advances to a woman. In response, Mr Kauvai punched thevictim in the face, then threw him to the ground and punched and kickedhim multiple times. The victim fractured his jawbone and requiredsurgery. The Court of Appeal upheld a start point of two years and10 months' imprisonment, and also noted this was in the context of thecharge being in relation to the punching only, and not kicking.(b) Hendra v R:19 Ms Hendra's mother had decided she no longer wantedMs Hendra to live with her and put her belongings outside. In response,Ms Hendra knocked her to the ground as she entered the house, thenbegan to punch her around the head. Ms Hendra and a co-defendantthen pinned the victim to the sofa and punched her again to the head.When the victim got up, Ms Hendra followed her, knocked her to theground multiple times, then picked up the victim's puppy andthreatened to break its neck. The District Court cited the attack to thehead, moderately severe violence, victim vulnerability, and multiple18 Kauvai v R, above n 13.19 Hendra v R, above n 13.attackers, and also considered it aggravating that Ms Hendra's six-year-old son was present throughout. The Judge had found the offending tofall at the top of band two of Nuku or perhaps at the bottom of bandthree, and adopted a start point of two years, six months. Gendall Jupheld that start point.(c) Lee v Police: 20 When Mr Lee became aware his ex-partner was in bedwith another of his flatmates, he entered the room and jumped on themale flatmate, punched him, then grabbed his throat and beganstrangling him until it was difficult to breathe. He then bit the victimand gouged at his right eye. Mr Lee continued to bite and scratch thevictim, biting him 11 times in total, until the victim was able to run andhide. Undeterred, Mr Lee collected a large carving knife, and afterstabbing his ex-partner's mattress, located the male victim on themezzanine floor of the property. Fearing for his life, the victim jumpedfrom the mezzanine floor, falling three and a half metres and impalinghimself on a glass vase. He suffered deep lacerations as a result.Mr Lee then pushed his ex-partner several times, slamming her headinto a wall. The sentencing Judge had adopted a start point of threeyears, six months' imprisonment. On appeal, Nation J accepted therewere six aggravating factors, and also considered the seriousness andcombination of them. Ultimately, and having discussed a number ofcomparable cases, he reduced the start point to three years.[33] With the exception of Lee, where a secondary victim was Mr Lee's ex-partner,none of the cases cited by Mr Hall involve intimate partner violence. I have thereforealso found the following cases involving intimate partner violence of some assistance:(a) Wheeler v R:21 Mr Wheeler was charged with assault with intent toinjure, injuring with intent to injure, and two charges of breaching aprotection order. Mr Wheeler grabbed his partner by the hair andrepeatedly smashed her head against the couch. Several days later,20 Lee v Police, above n 13.21 Wheeler v R [2019] NZHC 914.during an argument about bill payments, Mr Wheeler grabbed hispartner by the throat and threw her onto the bed. He told her he couldkill her, then released her throat and covered her mouth and nose so shecould not breathe. The same day he punched her to the right eye. Atthe time of sentencing, Mr Wheeler had amassed four earlierconvictions for assault on the same victim, as well as breach of theprotection order. Toogood J upheld a start point of two years, sixmonths for the violence charges as "well available" to the District CourtJudge, and noted that Parliament has placed particular importance oncondemning strangulation as part of family violence.22(b) Goodman v R:23 Mr Goodman was convicted of assault with intent toinjure and male assaults female. He had grabbed his partner around thethroat and threw her across the room (the assault with intent). He thenpushed her outside. On the porch he pushed her, then kicked her withsuch force she fell to the ground. The victim had a cut to the forehead,redness, and soreness. The District Court Judge took a start point oftwo years on the assault with intent, with an uplift of 12 months for themale assaults female charge. After adjustments for totality, the startpoint for all the offending was two years, four months' imprisonment.The Court of Appeal upheld the start point, agreeing it was a seriousassault involving attacks to the head and neck and would have beenfrightening.(c) Toko v R:24 Mr Toko was charged with injuring with intent to injure,threatening to kill, and four counts of male assaults female. He punchedhis partner in the face, then several hours later, while in the car, he againpunched her five times to the head/face. Once home, he punched herto the head/face numerous times until she lost consciousness. He thenslammed the car door into the back of her head and neck, kicked her inher face, and pushed a lit cigarette into her throat (the cigarette giving22 At [32]-[34].23 Goodman v R [2016] NZCA 64.24 Toko v R [2017] NZCA 460.rise to the injuring with intent charge), before telling her he would killher. The District Court took a two year, nine month start point on allassault charges, uplifted by seven months for the threat to kill. TheCourt of Appeal noted that "prolonged violence is an aggravating factorof such gravity that it will generally require a starting point within band3, even if there are few other aggravating features", concluding the startpoint was "well within the available range".25(d) Thompson v Police:26 Mr Thompson was charged with injuring withintent to injure and breaches of a protection order. Mr Thompson'spartner came to his house to collect things. He approached her in a waythat made her think she was in danger, so she ran away but came backa short time later. This pattern continued during which Mr Thompsonpunched a hole in a bedroom door. The victim then left the housepursued by Mr Thompson. He picked up a wooden chair, chased thevictim around a car, then struck her to the back of the head. She fellface forward onto concrete, suffered injuries to her face, and had to behospitalised overnight. The start point of two years in relation to theviolence offending was upheld by Simon France J who described theoffending as a "shameful attack", and that the attack to the back of thehead with a chair carried real risks.[34] Looking at Mr Tamakaha's offending, I concur with the Judge that it sits nearthe top of band two and bottom of band three. It involves extreme violence, wasprolonged, involved attacking the head and a vulnerable victim. With regard to thecomments made by Toogood J in Wheeler as to the seriousness Parliament has recentlyplaced upon strangulation, I also consider it significant the offending involvedchoking.[35] However, having regard to the cases discussed above, I consider a three yearstart point on the November offending, before any uplift for the August offending, wastoo high.25 At [23]-[24].26 Thompson v Police [2017] NZHC 3039.[36] I consider the offending in Toko, which attracted a two year nine month startpoint, involved more serious and extended violence (which caused the victim to loseconsciousness) than the present offending. That two year nine month figure alsoencapsulated the four male assaults female charges. I consider the offending has somesimilarity to Wheeler, given both involved attacks to the head and choking. I acceptthat the violence meted out in the present case appears to be slightly more serious thanthat in Wheeler, but note that the two year six month start point in that case capturedtwo incidents of violence several days apart (which gave rise to two charges).[37] Given this, in my view a start point of two years six months on the injuringwith intent charge is appropriate. As noted, there is no issue raised on the appeal withthe six month uplift to reflect the August offending, which I agree was well open tothe Judge. This produces a start point before discounts of three years.[38] Ms Collis noted that the November offending occurred while Mr Tamakahawas on bail for the August offending, yet no uplift was given for this. But the Judgewas plainly aware of this and specifically mentioned the need to recognise that in hissentencing.27 Accordingly, this was clearly factored in by the Judge in the start pointadopted or the uplift, and I do not consider any separate adjustment is required to thestart point I have adopted. Ms Collis also noted there was no uplift for Mr Tamakaha'searlier violence convictions. However, she agreed, rightly in my view, that these areclearly of a different scale and type of offending to the present offending, attractingsentences of community work only, and in the most recent case, of only 40 hours. Ido not consider a further uplift for these matters to be warranted.Discounts for personal mitigating factors?[39] As noted above, the Judge gave a global five month discount to encapsulateMr Tamakaha's personal circumstances (as set out in the s 27 report), prospects ofrehabilitation and time spent on restrictive bail conditions. Mr Hall says a greateroverall discount was called for. He also submits that a discrete discount for remorsewas warranted.27 R v Tamakaha, above n 1, at [23].[40] As a preliminary point, I do not consider the Judge erred in not providing adiscrete discount for remorse, over and above that encapsulated in the guilty plea. Iaccept Ms Collis's submission that the PAC report does not provide a good basis forsuch a discount, given Mr Tamakaha told the report writer the August offending wasentirely fabricated. Despite the letter provided to the Judge at sentencing, I do notconsider this is a case where a separate remorse discount is called for.[41] Turning to the time Mr Tamakaha spent on restrictive bail conditions (sevenmonths on a 24/7 curfew), the Court of Appeal has confirmed that there is no fixedapproach to calculating discounts for time spent on EM bail. Instead, "judges in theprocess of exercising their sentencing discretion will provide for some modestdiscount under this head."28 The Court in Keown provided a survey of discountsawarded:29In Tamou, the appellant had spent nine months on electronic monitored bail.The sentencing Judge made no allowance. This Court reduced the sentence bythree months to allow for that factor. In R v Gray, the appellant had beensubject to a curfew and other stringent conditions of bail for about two yearsand nine months. This Court held that the sentencing Judge's allowance ofthree months for this factor could not be challenged. In R v Aram, a one yeardiscount to reflect about 18 months on bail conditions which the Judgedescribed as "fairly restrictive" was upheld by this Court. In R v Latifi, a twoyear discount for an offer of assistance, remorse, existence of restrictive bailconditions, and ill health was upheld. In R v Nichols and Piggott, the Courtnoted that while the appellant there faced significant restrictions he was in thecomfort of his own home with his family and with the freedom to move aroundhis farm day and night. That was not seen as justifying any interference withthe sentence imposed by the sentencing Judge. In R v Faisandier, the appellanthad been confined to her home for 24 hours a day for ten and a half months.A deduction of six months by the sentencing Judge was increased to 12 monthsby this Court.[42] More recently, the Court of Appeal upheld a four month credit for 10 monthsspent on EM bail in Parata v R, but noted a higher figure would not necessarily bewrong.30[43] The above demonstrates there is a relatively broad degree of variance in thescale of discounts awarded. However, even assuming a discount at the lower end of28 Rangi v R [2014] NZCA 524 at [10].29 Keown v R [2010] NZCA 492 at [14].30 Parata v R [2017] NZCA 48 at [15].the range discussed in the excerpt above, I accept Mr Hall's submission that a discountof around eight weeks, possibly more, was warranted for the seven months on a 24/7curfew. I accordingly consider a two month discount for this factor would have beenappropriate (and a slightly higher figure would not have been in error).[44] Turning to discounts for personal circumstances and rehabilitation prospects, Iagree with the Judge that some discount was warranted for factors fromMr Tamakaha's past which appear to have contributed to his offending. But in myview, a very significant discount is not warranted. Mr Tamakaha has generally had afairly stable and pro-social upbringing. He has had continued employment throughouthis working life. I accept that Mr Tamakaha has relatively good prospects ofrehabilitation.[45] Taking all these matters together, I consider a six month discount waswarranted.[46] This brings the sentence to two years and six months' imprisonment.[47] The Judge accepted counsel's recommendation of a 20 per cent discount for aguilty plea (but with rounding, actually adopted a 22 per cent discount). No issue withthat is taken on appeal. Adopting a 20 per cent discount (rather than 22 per cent) bringsMr Tamakaha's sentence to one of 24 months, or two years' imprisonment.[48] This brings the sentence to a level where home detention can be considered.In my view, and subject to a suitable home detention address being available, thiswould be an appropriate outcome and consistent with the principles to be taken intoaccount on sentencing in this case. A useful summary of the principles concerninghome detention were set out in Brittin v Police.31 Home detention is itself a severesentence, which carries with it in considerable measure the principles of deterrenceand denunciation. Mr Tamakaha has spent several months on very restrictive bailconditions and now also some time in custody. Particularly given his lack of anysignificant prior offending of the type for which he has now been convicted (despitehis age of being in his late 30's), there is hope that with appropriate rehabilitation this31 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55].sudden escalation in the nature of Mr Tamakaha's offending will not continue.Mr Tamakaha will be under no illusion of the sentencing options for any furtheroffending of this nature. He has displayed a willingness to engage in rehabilitativemeasures and has whānau and other support to assist him in that. It would be my firmrecommendation that were Mr Tamakaha to be placed on home detention, he engagein suitable anger management and domestic violence programmes.Result[49] The appeal is allowed. The sentence of two years five months' imprisonmentis quashed, and replaced with a sentence of two years' imprisonment, with leave toapply for cancellation of this sentence and substitution of a sentence of homedetention.32____________________Fitzgerald J32 Sentencing Act 2002, s 80K.