KINGI v POLICE [2020] NZHC 1896

KINGI v POLICE [2020] NZHC 1896 [31 July 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-000017[2020] NZHC 1896BETWEEN NGAPUAHI HURIWAKA TE PAEA KINGIAppellantAND NEW ZEALAND POLICERespondentHearing: 14 July 2020Appearances: R J Little for the AppellantM B Brownlie for the RespondentJudgment: 31 July 2020JUDGMENT OF NATION JIntroduction[1] On this appeal, Mr Kingi's counsel argued Mr Kingi should not have beensentenced to imprisonment. In doing so, he referred to the report from He WakaRoimata written by Uepū Hāpai i te Ora – the safe and effective justice advisory group.This report noted the concerning statistics regarding the rate of imprisonment forMāori. While one in 12 New Zealand males have been imprisoned by age 35, forMāori males this figure is one in five.[2] This appeal is a paradigm case demonstrating the difficulties the courts face inendeavouring to keep such an offender out of prison.[3] To support the appeal, a cultural report was presented by the defence. Itreferred to the way Mr Kingi had deep mātauranga (knowledge) of Te Ao Māori (theMāori World), a strong connection to Māori culture and was fluent in Te Reo. MrKingi was motivated to engage in programmes with a Māori focus and there was otherinformation to suggest Mr Kingi could benefit from a non-violence programme witha Kaupapa Māori focus.[4] It appears Judges in the District Court have recognised the need for Mr Kingito engage in rehabilitative programmes. However, they were also conscious that MrKingi has been violent to people he lived with and so needed to be somewhere safewhile engaged in such a programme. Mr Kingi has thus received a number ofrelatively short sentences of imprisonment with leave to apply for home detention ifan appropriate address became available. No such applications have been made.[5] Although the s 27 cultural report identified ways Mr Kingi might benefit froma Māori focused rehabilitation programme, it provided no information as to processesthat are available to resolve issues relating to his offending or how support from hiswhānau or community might be available to help prevent further offending. These arematters which the Sentencing Act expressly says may be addressed in a s 27 report.1[6] On this appeal, as the Judge in the District Court likely recognised, there couldhave been benefit to Mr Kingi, the victim of his offending and the communitygenerally if he could be given the opportunity and challenge of being in the communitywhile engaged in such a programme. The information before the Court however wasthat, if in the community, Mr Kingi would need to be in a pro-social environmentwhere there would be minimal risk of him doing harm to others through further violentoffending.[7] Two potential family addresses were identified for consideration. Informationfrom Corrections indicates that at one such address the family member has been thevictim of a previous incident of violence involving Mr Kingi. The other address isclose to that of the victim who has been the victim of serious violence from Mr Kingiin the past. She has the benefit of a protection order against him.[8] The only possible residential address available seemed to be effectively aboarding house. There is no suggestion there would be any supervision or pro-socialsupport available at that establishment to promote and support Mr Kingi in a1 Sentencing Act 2002, ss 27(1)(c), (d) and (e).rehabilitative programme and to ensure he complies with the conditions of a sentenceof intensive supervision.[9] The Court is thus faced with the reality that the Department of Corrections,welfare agencies in the community and Mr Kingi's whānau or iwi are all unable tooffer any other residential establishment at which Mr Kingi might safely reside whileengaged in the sort of programme he needs to avoid a future return to prison. Thatlimits the ability of the courts to deal with Mr Kingi's offending other than through asentence of imprisonment. There is however limited scope for him to benefit from thesort of rehabilitative programme he needs while in prison. In part, that is because ofthe relatively brief term of his prison sentence. The potential for him to be engaged insuch a programme may also be limited by Mr Kingi's non-compliant behaviour whilein prison.[10] Ultimately, it is the reality of these difficulties which have dictated the outcomeon this appeal. That reality may well have been all too familiar to the District CourtJudge when he had to sentence Mr Kingi.The appeal[11] Mr Kingi pleaded guilty to one charge of breaching a protection order and onecharge of breaching release conditions. He was sentenced by Judge Flatley on 9 June2020 to 11 months' imprisonment with standard and special conditions of releaseextending six months beyond the sentence date.2 Judge Flatley also gave leave for thesentence to be converted to home detention with specific conditions if a homedetention address became available.[12] Mr Kingi appeals his sentence on the grounds a sentence of intensivesupervision should have been imposed, there was no consideration for rehabilitation,no credit was given for his youth or cultural identity and the Judge incorrectlyconsidered that deterrence and denunciation meant imprisonment was the only option.[13] Alternatively, Mr Kingi submits the sentence of imprisonment was excessivewhen considered against sentences imposed in other similar cases.2 Police v Kingi [2020] NZDC 10487.Facts[14] Mr Kingi is aged 22. He and the victim have been in a relationship forapproximately four years. She is aged 18. Their relationship has been particularlytraumatic for the victim and probably also for Mr Kingi because of medical events thevictim suffered through that relationship. The victim has also suffered from MrKingi's violence towards her.[15] On 3 October 2017, Mr Kingi was sentenced to 11 months' imprisonment withleave to apply for home detention on a charge of injuring with intent to injure/recklessdisregard and three offences of male assaults female, those offences were committedon 7 May 2017. The victim was granted a protection order at the same time.[16] On 12 August 2019, Mr Kingi was sentenced to one year' imprisonment withleave to apply for home detention on a charge of assaulting the same victim with intentto injure on 22 April 2019, and a charge of contravening a protection order. On 25November 2019, Mr Kingi was released from prison on that sentence.[17] Mr Kingi was subject to one year and one day release conditions following hisrelease from prison. He was required to report weekly. Before March 2020, he failedto report on two occasions and was issued a verbal and written warning. He had notreported after 13 March 2020. Due to the COVID-19 lockdown, Mr Kingi wasrequired to make phone contact in place of face-to-face contact. He failed to do so.[18] On 24 April 2020, during the COVID-19 lockdown, the victim went to afriend's house. At 11.30 pm Mr Kingi began sending derogatory and threatening textmessages to the victim. Using a friend's phone, he told the victim to come home.After she failed to answer several messages, he threatened to "hunt her down". MrKingi then threw all the victim's clothes out of their bedroom window.[19] The victim received the texts when she returned home as her phone battery hadbeen flat. She requested her flatmate call the Police. Mr Kingi was verbally abusiveto the victim when the Police arrived.[20] On 24 April 2020, Mr Kingi was arrested and charged with breaching aprotection order. On 30 April 2020, he was charged with breaching release conditionsin failing to report on 22 April 2020.[21] At the time of the latest events, the victim and Mr Kingi were living together.In the victim impact statement dated 2 June 2020 the victim referred to Mr Kingi asher ex-partner. She said, although he had not physically harmed her on the latestoccasion, he had done so in the past and this had left her petrified of him. She saidshe was scared of what he would do to her on his release from prison.District Court decision[22] Judge Flatley considered Mr Kingi's relevant prior convictions illustrated aclear pattern of offending. Given Mr Kingi's history and the circumstances of thatoffending, the Judge considered intensive supervision was not appropriate. While theoffending was relatively low gravity, the context of the previous convictions increasedits seriousness. The Judge also considered the need to protect the victim and preventre-offending. He came to a starting point of 15 months' imprisonment, with a 25 percent discount for a guilty plea, leading to an end sentence of 11 months' imprisonment.[23] A non-violence programme with a Kaupapa Māori focus, and a rehabilitativeprogramme based on home detention could be provided if a home detention addressbecame available. Considering Mr Kingi's youth and his need for rehabilitativeinterventions, the Judge agreed Mr Kingi should have leave to apply for homedetention if an address became available.Principles on appeal[24] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.3As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court'sdecision, "[an appellate] court 'will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles'".4 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencing3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].principles.5 The focus of an appellate court must "primarily be on the appropriatenessof the end sentence, not the means by which that end sentence has been reached".6Appeal against the length of the prison sentence[25] Mr Little submitted the length of imprisonment was excessive. He said theoffending occurred during the COVID-19 lockdown where Mr Kingi was required toget in contact via phone. He said Mr Kingi did not own a phone. He suggested astarting point of two or three months would be justified for this offence. Mr Littlesubmitted it may have warranted a cumulative sentence but, in that case, the totalityprinciple would also have to be applied[26] As to the breach of the protection order, Mr Little submitted it was alongstanding order with only one recorded breach. He submitted the Judge shouldhave recognised the stress associated with the lockdown restrictions. He emphasisedthere was no physical violence. This was a situation where the victim and Mr Kingiwere living together so it was different from the scenario where a protected personwanted no contact with the offender and was fearful of such contact.[27] Mr Little argued the starting point of 15 months' imprisonment was excessive,having regard to the starting point adopted or the sentence imposed on appeal in anumber of other cases where the Court was dealing with protection order breaches.7[28] Mr Brownlie submitted there was no error in the starting point the Judgeadopted where there had been repeat offending over a brief period. There could alsohave been a separate uplift for his previous criminal offending.[29] Mr Brownlie submitted, in the Judge's decision to grant leave to apply forhome detention, there was implicit recognition of Mr Kingi's youth, the requirementfor the least restrictive sentence and Mr Kingi's rehabilitation needs.5 Ripia v R [2011] NZCA 101 at [15].6 Skipper v R [2011] NZCA 250 at [28].7 Prince v Police [2019] NZHC 1742; Edwards v Police [2017] NZHC 2834; Whiu v Police [2020]NZHC 298; Turner v Police [2017] NZHC 1113; Bartlett v Police [2016] NZHC 850.[30] Mr Brownlie referred to certain judgments of the High Court in submitting thestarting point adopted for the offending was not out of line with other cases.8Analysis[31] As Mr Little acknowledged, Mr Kingi's explanation that he did not own aphone was no excuse for his not keeping in contact with his probation officer as hewas required to do. He was able to access a phone when sending abusive text messagesto the victim on 24 April 2020. Presumably her phone would have been available tohim in the weeks before that time. Although the charge was specifically as to his notmaking contact on 22 April 2020, he had failed to make contact and received warningsfor not making contact prior to March 2020. Mr Kingi had convictions for breachingrelease conditions from 5 July 2018 and three convictions for failing to answer DistrictCourt bail from July 2015.[32] The offending did warrant a cumulative sentence. Because the offending wasdistinct from the offence of breaching a protection order, there did not have to be anyadjustment for totality.[33] The lead charge in this offending was the breach of a protection order, whichcarries a maximum sentence of three years' imprisonment. There is no tariff for thisoffence and, as the cases canvassed by both counsel indicate, the starting point will beheavily contextual.9 As noted by Hinton J, in Jackson v Police, it may be thatoffending that is a minor breach of itself is significant in the context of the historybetween the defendant and the victim.10[34] It was submitted some allowance should have been made because of stressesassociated with the COVID-19 lockdown. I note the victim and Mr Kingi were notphysically together at the time he sent abusive texts. It seems likely that Mr Kingibecame angry with the victim because she was asserting her independence in a modestway. Although he did not physically hurt her, he acted with unrestrained anger in8 Morris-Stewart v Police [2016] NZHC 1030; Bartlett v Police, above n 7; Robinson v Police[2019] NZHC 1412.9 Jackson v Police [2019] NZHC 281 at [41].10 At [42].throwing her belongings out a window and then abusing her in the presence of thePolice. With his previous history of actual violence towards the victim, his behaviourshowed he had no respect for the protection order and he was also a danger to thevictim.[35] I do not accept the breach of protection order was less serious because MrKingi had only one previous conviction for breaching a protection order. For part ofthe time after the protection order was made on 3 October 2017, Mr Kingi was servinga sentence of 11 months' imprisonment. Despite his youth, Mr Kingi had quicklyaccumulated a number of convictions for family violence, not involving the currentvictim. He also had a conviction for injuring with intent to injure/reckless disregardfor an offence committed on 23 July 2017, and a conviction for male assaults femalein another instance of family violence on 7 December 2017. He had six previousconvictions for breaching release conditions for offences committed between 3October 2015 and 1 February 2018.[36] The purpose of a penalty is to convey a clear message that family violence isunacceptable and tough penalties will be applied. Once made, protection orders mustbe upheld by the Court and dealt with firmly otherwise they will becomemeaningless.11 As Mr Brownlie submitted, where there has been repeat offending overa brief period, a short term of imprisonment could be the proper response.12[37] Having regard to all these circumstances, I do not consider that, if a sentenceof imprisonment had to be imposed, it could be said the end sentence imposed on MrKingi was manifestly excessive.Appeal against the sentence of imprisonment rather than intensive supervision[38] Mr Little submitted the imposition of a prison sentence of any length wasmanifestly unjust and, in Mr Kingi's particular circumstances, a lesser community-based sentenced should have been imposed.11 Police v Tule HC Rotorua AP87/02, 10 October 2002 at [14]12 R v Nathan CA209/06, 29 November 2006 at [25].[39] Mr Brownlie submitted the Judge was obviously conscious of the principles ofdenunciation and deterrence given Mr Kingi was appearing for sentence for hisseventh domestic violence conviction against the same victim. He submitted, havingregard to the seriousness of the offending, the Judge was not in error in deciding asentence of home detention would be the least restrictive sentence. He said the Judgewas faced with a situation where no suitable address was available. He submitted theJudge dealt with that situation appropriately by reserving leave to Mr Kingi to applyfor home detention if an address became available. He had recognised the need toprovide for Mr Kingi's rehabilitation needs through imposing standard and specialconditions on the sentence of imprisonment.[40] Mr Little urged the Court to impose a community-based sentence where therecould be an emphasis on rehabilitation in a way that has not previously been availablefor Mr Kingi. He put before the Court a cultural report obtained by the defence,pursuant to s 27(1) Sentencing Act 2002. He said information in that report suggestedMr Kingi would benefit from engaging in a rehabilitative programme with a KaupapaMāori focus. Mr Little said Mr Kingi had wanted to participate in relationshipcounselling with such a programme before the COVID-19 lockdown but wasprevented from doing so with the lockdown and then with his arrest for his latestoffending.[41] Mr Little acknowledged there is no information before the Court now toindicate Mr Kingi has any appreciation of how his actions and attitudes towards otherpeople are damaging for them, put him at risk of further prison sentences and detractsfrom any mana he might otherwise have. Mr Little submitted, if Mr Kingi is to beable to show empathy for those who might otherwise be the victims of his offending,he needs to participate in a rehabilitation programme or counselling which will helphim achieve this. He submitted, if denied that opportunity at a young age, Mr Kingiwill likely continue with his present pattern of offending, putting both himself andothers in the community at risk.[42] When asked whether Mr Kingi has an address at which he could reside, withsafety for the victim of his offending, Mr Little said Mr Kingi retained the support ofhis mother and would be able to reside with her. She had not been willing to have himat her home if he was subject to all the constraints of a sentence of home detentionbecause of the particular stresses for both her and Mr Kingi associated with such asentence. Mr Little considered accommodation with his mother would be available indifferent circumstances. The first pre-sentence report advised Mr Kingi said he hasheaps of family support.[43] Mr Little's further careful submissions are reflected in the discussion thatfollows.[44] The principles of denunciation and deterrence are important when sentencingfor breaches of a protection order but Mr Kingi's offending history shows that prisonsentences have not deterred him from further offending, both by way of breaching aprotection order and being involved in domestic violence.[45] Mr Kingi was first sentenced to imprisonment on 21 July 2015 when he wassentenced to seven months on a number of charges, including failing to answer DistrictCourt bail, being unlawfully in a building and two charges of burglary. He was thenaged 17.[46] On 11 February 2016, Mr Kingi was sentenced to imprisonment for twomonths and three days on three charges of breaching court release conditions. It seemslikely that sentence equated to time he had already been in custody on remand.[47] On 15 December 2016, Mr Kingi was sentenced to imprisonment for fivemonths on charges of wilful damage and injuring with intent to injure/recklessdisregard.[48] On 3 October 2017, Mr Kingi was sentenced to 11 months' imprisonment oncharges for offending against the current victim.[49] On 12 August 2019, Mr Kingi was sentenced to imprisonment for one year forfurther offending against the current victim.[50] In each instance, other than when the prison sentence was imposed for timeserved, the sentencing Judge reserved leave for Mr Kingi to apply for home detention.That would be consistent with the sentencing Judge wanting Mr Kingi to be able toparticipate in a rehabilitative programme under the oversight of Corrections, with therebeing both an element of punishment for Mr Kingi and protection for the publicthrough his being subject to home detention. Presumably because no suitable addresshas been available, it has not been possible for that objective to be achieved. Mr Kingihas however been released from prison subject to release conditions which would havebeen imposed to ensure he could benefit from such counselling or programmes hisprobation officer considered appropriate. This also has never been achieved becauseMr Kingi has not complied with release conditions and has been involved in furtheroffending, ultimately resulting in his return to prison.[51] Even without the benefit of a cultural report, the sentencing Judge recognisedMr Kingi had rehabilitative needs due to his repeat offending. He said to Mr Kingi"you clearly need interventions and rehabilitation. Your thinking needs to change andyour behaviour needs to change." He noted that repeat visits to prison did not seemto be having the desired effect.[52] The initial pre-sentence report to the Court of 3 June 2020 noted Mr Kingiseemed to have often missed out on opportunities to engage with his identifiedrehabilitative needs due to his repeated offending. Corrections put forward what theysaid was a new approach where Mr Kingi could be supported by referring him to attenda non-violence programme with a Kaupapa Māori focus.[53] In that pre-sentence report, Corrections recommended, for the protection of hisvictim, Mr Kingi be subject to an electronically monitored sentence. Correctionsnoted the Court had requested "for home detention only to be canvassed as analternative to imprisonment". It was in that context Corrections suggested the Courtmight consider a short term of imprisonment with leave to apply for home detention.[54] Mr Kingi continued to be remanded in custody prior to sentence. On 8 June2020, Corrections submitted a further report to the Court advising that, during hisremand in custody, Mr Kingi had accumulated five misconducts since May 2020.These included behaving in an abusive and defensive manner, including to medicalstaff and prison authorities, assaulting another prisoner, offering staff money forinformation and threatening staff. Corrections sought a more robust selection ofspecial conditions on release to be included in the Court's consideration should MrKingi be sentenced to a term of imprisonment under two years because of the way heposed a significant risk of further offending in relation to the victim of his currentoffending.[55] Despite that, Corrections advised home detention continued to be identified asthe most suitable sentencing outcome, ensuring Mr Kingi would remain at all times atan approved address, engage in suitable rehabilitation and be subject to other relevantspecial conditions related to the victim. This was all still in the context of the Courthaving directed that Corrections were only to consider home detention as analternative to imprisonment. Corrections said their recommendation remained at"other" given Mr Kingi had not yet been able to supply an address which could beassessed for home detention. Despite that, Corrections referred to an intensivesupervision sentence with GPS monitoring as an alternative community-basedsentence.[56] All this suggests Corrections has recognised a real need for Mr Kingi to beengaged in a rehabilitative programme but the ability for him to benefit from that hasbeen significantly limited through the Court deciding this would have to be achievedwithin the context of a home detention sentence. Such a sentence has not beenavailable because Mr Kingi has not been able to provide a suitable address.[57] This Court now has the benefit of the cultural report obtained by Mr Kingi'scounsel. This report, dated 13 July 2019, was written by Mrs Kereru13 and is basedon Te Whare Tapa Wha, which looks at the four dimensions of wellbeing central toMāori cultural behaviours and norms. If one of these dimensions are damaged thismay affect personal development and decision-making. This report was not availableto the sentencing Judge but Mr Brownlie accepted I could have regard to it.[58] Mrs Kereru describes Mr Kingi's whānau on both his mother and father's side.His father died when Mr Kingi was one year old. Mr Kingi has deep knowledge(matauranga) of the Māori world, his identity, his mother and father's whakapapa andhe speaks fluent Māori.13 Mrs Kereru is a practising lawyer, specialising in Family Law with association with Waikato IwiTainui and knowledge of Māori society, Te Reo, history and law.[59] Mrs Kereru describes Mr Kingi's Te Taha Whānau (family strength). WhileMr Kingi was a loved and spoilt child, he has memories of family violence and a partyculture until the age of nine when his mother stopped drinking. His stepfather treatedhis mother badly but his stepfather was Mr Kingi's only role model and taught him todive, fish and provide for himself. Mr Kingi defended his mother from his stepfathera number of times but loves his stepfather. Mr Kingi was placed in the care of Childand Young Persons Service (CYPS) at the age of 12 and in the care of his Koro (elder)in Dunedin when he was 14. He has no academic qualifications.[60] Mrs Kereru describes Mr Kingi's Te Taha Wairua (spiritual health) as impairedas he feels the loss of his father and his mother has separated from his stepfather. MrKingi's mental health (taha hinengaro) is likely to also be impacted by childhoodfamily violence, trauma and other events suffered by Mr Kingi's ex-partner. His TeTaha Tinana (physical health) is reasonable although he requires weekly physiotherapyfor an injury sustained from punching a window. Mr Kingi acknowledges that angercontrols his emotions and he must address this otherwise he will continue to offend.[61] In her report, Mrs Kereru thus submits Mr Kingi's family strength and mentaland spiritual health have been impaired from a young age. While he was nurtured inthe Māori world he was also exposed to adult issues, placed in CYPS's custody andfaced the pain of losing both his father and the opportunity to be a father. She said itis these weaknesses in his Te Whare Tapa Wha which have led to poor decision-making and warrant consideration for his sentence.[62] This report does not indicate that Mr Kingi has suffered cultural deprivation ina way that is often the case with serious criminal offenders who have ultimatelybecome dislocated from their Māori world and become involved in gangs or someother substitute for what they have lost. Mr Kingi's mother (Ms Yakas) is his strongsupporter. She was upset that a cultural report was being obtained for Mr Kingi. Shefelt that Mr Kingi had been gifted a high level of matauranga (knowledge) from Te AoMāori and had been given more opportunity to make something of his life, more thanother children and whānau, and he had wasted this opportunity and lost mana becauseof his offending. Ms Yakas believes Mr Kingi must learn humility and was hopefulher son would change his life, regain his mana and give back to his people, as wasgiven to him.[63] What the report does however indicate is that Mr Kingi has a deep knowledgeof Te Ao Māori and speaks fluent Māori, so may well benefit, more than many, frominvolvement in a Māori rehabilitative programme such as Corrections recommended.[64] As Mr Little referred to, in Tawhara v Police, Toogood J summarisedsentencing principles related to community-based sentences as taken from the Courtof Appeal decision of R v Rawiri.14 Relevantly, these included:(a) When the criteria for home detention are met, but the offender isunsuitable for that sentence or it is unavailable for other reasons, theappropriate sentence does not automatically revert to a sentence ofimprisonment....(d) When considering the imposition of a period of sentence of imprisonmentfor a particular offence, the Court must have regard to the desirability ofkeeping an offender in the community as far as that is practicable andconsonant with the community's safety. It follows from this principle thatthe Court must impose the least restrictive outcome that is appropriate inthe circumstances according to the hierarchy of sentences set out in theAct. The Court cannot impose a sentence of imprisonment unless it issatisfied that:(i) the sentence is being imposed for a statutory purpose or purposes;(ii) that those purposes cannot be achieved by a sentence other thanimprisonment; and(iii) that no other sentence would be consistent with the statutoryprinciples as applied to the particular case.(e) Judges "will generally strive to avoid a custodial sentence where there isa genuine prospect of rehabilitation, unless other sentencing principles orpurposes operate to rule out that option".(footnotes omitted)[65] I accept the submission that, with the benefit of the cultural report nowavailable, it can be said the Court should not have defaulted to imprisonment whenhome detention was not available, given the recognised need for rehabilitative14 Tawhara v Police [2015] NZHC 2246 at [31], citing R v Rawiri [2011] NZCA 244.intervention and the fact Mr Kingi would benefit from such intervention but had notpreviously had the opportunity to do so.[66] I was tentatively satisfied a sentence of intensive supervision would reduce thelikelihood of Mr Kingi further offending through his rehabilitation and reintegration.The nature of his rehabilitative needs would have required the imposition of conditionsfor a period longer than 12 months which were not available through the sentence ofsupervision alone.[67] In a pre-sentence report, the Department of Corrections had recommended theimposition of an electronic monitoring condition. I was satisfied that such a conditionwould have been necessary because there is a significant risk of Mr Kingi furtheroffending in relation to the person who has the benefit of a protection order. Standardconditions alone would not adequately reduce that risk.[68] I was also satisfied the imposition of certain special conditions proposed byCorrections would reduce the likelihood of Mr Kingi further offending through hisrehabilitation and reintegration.[69] I had anticipated that, with a sentence of intensive supervision, subject toconditions, Mr Kingi would be given the opportunity, as his mother wants for him, ofre-establishing his mana and of showing he can live in the community withoutreoffending in a manner that would put him in jeopardy of further prison sentences.[70] In the particular circumstances of this case, for the protection of the public andfor the victim, the least restrictive sentence the Court could potentially have imposedwas one of intensive supervision. There would have had to be conditions attached tosuch a sentence to promote Mr Kingi's compliance with the conditions of thatsentence, his involvement in programmes that were likely to promote his rehabilitationand which would have ensured the safety of the person who had the benefit of aprotection order.[71] For all that to be achieved, Mr Kingi would have to be residing at an addresswhich was safe for him, safe for the victim of the latest offending and safe for people,especially children, living at such an address. I gave Mr Kingi, his counsel andCorrections the opportunity to see if such an address is available. The Court has beeninformed there is no such address. For that reason, the Court is not satisfied that thesentence imposed in the District Court was manifestly excessive or that a differentsentence should have been imposed.Result[72] Mr Kingi's appeal is thus dismissed.[73] He will remain subject to the sentence of imprisonment with leave to apply forhome detention if he can come up with an address which the Department ofCorrections can approve for a sentence of home detention. On his release from prison,he will remain subject to special conditions which should ensure he can participate insuitable rehabilitation programmes. Mr Kingi will have the challenge of making themost of that opportunity, not again breaching release conditions or offending in anyother way that might result in a return to prison.Solicitors:Eagles Eagles & Redpath, InvercargillPreston Russell Law, Invercargill.