TAWHITI v R [2021] NZHC 3178

TAWHITI v R [2021] NZHC 3178 [25 November 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-463-131[2021] NZHC 3178BETWEEN NICOLA HINEWAI TAWHITIAppellantAND THE QUEENRespondentHearing: 25 November 2021Appearances: A Hill for AppellantL Evans for RespondentJudgment: 25 November 2021JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 25 November 2021 at 2 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Tauranga[1] Ms Tawhiti pleaded guilty to charges of wounding with intent to injure, assault,threatening to kill and attempting to pervert the course of justice. On 20 October 2021Judge P W Cooper sentenced her to one year seven months imprisonment.1 Hedirected that Ms Tawhiti was to serve the sentence without release in whole because itwas a "second strike" offence.[2] Ms Tawhiti appeals against sentence on the basis that the Judge ought to havesentenced her to home detention at the Grace Foundation to enable her to address herlongstanding and complex rehabilitative needs.The charges[3] The charges related to a violent attack by Ms Tawhiti' on her partner, withwhom she had been in a relationship for approximately 12 months. On 15 December2020 she and her partner arrived at a caravan park in Rotorua. Shortly after arrivingMs Tawhiti became angry at her partner. Whilst they were still in their vehicle shepunched him once on the left cheek with a closed fist. She then stabbed him in the lefthand side of the chest using a knife with a 7.5 centimetre blade and a finely serratededge. Her partner then got out of the vehicle and sought help from people nearby.[4] Two of these people approached Ms Tawhiti and tried to calm her down. Shecontinued to shout and appeared to be very angry. She pulled out the knife andthreatened to stab everyone in the vicinity. She also began pointing the knife at thetwo people who had approached her. Ms Tawhiti continued to threaten to stab boththese people and others in the park.[5] Not surprisingly, the police were called. When Ms Tawhiti heard sirensapproaching she ran back to her partner and said she was going to "stab him somemore". She was ultimately disarmed after the police arrived and used a taser to subdueher. Fortunately the wound to her partner's chest did not produce seriousconsequences.1 R v Tawhiti [2021] NZDC 20900.[6] In late January 2021 Ms Tawhiti sent a letter to her partner in which sheclaimed that he had stabbed himself in order to stop her from informing the authoritiesthat he was a paedophile and a predator. She asked her partner to "tell the truth" andsaid he would only get a sentence of community service or probation for making afalse statement. Commendably, Ms Tawhiti's partner handed the letter to the police.This led to Ms Tawhiti being charged with attempting to pervert the course of justice.The sentence[7] The sentencing process involved the Judge giving Ms Tawhiti a sentenceindication on 3 September 2021. She then entered guilty pleas in reliance on thatindication.[8] The Judge took a starting point of two years three months imprisonment on thelead charge of wounding with intent to injure. He added an uplift of eight months toreflect the remaining charges. He then increased the sentence by one month to reflectthe fact that the offending had occurred whilst Ms Tawhiti was subject to a sentenceof intensive supervision. This produced a sentence of three years imprisonment.[9] The Judge did not apply an uplift to reflect Ms Tawhiti's previous convictionfor violence that had led to the first strike warning. He applied a reduction of 25 percent to reflect guilty pleas and applied a further reduction of 20 per cent, or eightmonths, to reflect factors identified in a cultural report tendered under s 27 of theSentencing Act 2000. This produced the end sentence of 19 months imprisonment.[10] The Judge dealt with the issue of home detention as follows:2[5] I want to talk now about whether the case should be one where theCourt could impose a sentence of home detention instead of that 19 months.The s 27 report echoes what the psychological report says and also what is inthe pre-sentence report. You have had an appalling early life. Violence andsubstance abuse were embedded behaviours. It says that you have been aheavy drug user since the age of 16. It talks about the work that you have beeninvolved in and ultimately the disastrous effects that work has had on yourmental health.[6] The pre-sentence report says that you are unlikely to comply with anycommunity-based sentence. It says that you are at high risk of further violent2 R v Tawhiti [2021] NZDC 20900offending and it notes that this offence is the third time you have stabbed apartner. The strong view of the Corrections officers who have dealt with youover the years, and the view of those involved in managing your situation incustody, is that the best chance that you have of addressing the complex needsthat you have is in prison rather than in the community, and it is noted that lasttime you were at the Grace Foundation on electronically-monitored bail, youabsconded.[7] I have seen a victim impact report which sayes that the victim wantsyou to get help. He says he re-lives that knife going into his chest, he saysthat it was a frightening experience and he still feels scared, but he does notthink that prison is the place for you and he does not want to see you go to jail.[8] I cannot ignore the views of the very experienced probation officerswho have assessed your case. Their view that the best chance of having yourcomplex needs addressed is in prison, not the community, is borne out by yourperformance in the community when you have been given chances to addressthese matters. In addition to that, the Grace Foundation, where you hope toserve an electronically-monitored sentence, is not able to take you with thepresent COVID-19 restrictions. So, I am not prepared to grant you anelectronically-monitored sentence of home detention.[9] You will be sentenced to 19 months imprisonment. As this is yoursecond strike, I direct that that sentence be served without release in whole.The appeal[11] Mr Hill acknowledges that Ms Tawhiti has a poor history of compliance withcommunity-based sentences. He also acknowledges she had been granted EM bail tothe Grace Foundation on the present charges and then absconded. Mr Hill responsiblyaccepts that these transgressions would justifiably leave the Court concerned about herability to comply with a sentence of home detention.[12] Despite this, Mr Hill submits that Ms Tawhiti should be given one last chance.He says that, at the age of 39 years, Ms Tawhiti is now determined to rehabilitateherself for her long-term benefit. Ms Tawhiti echoes these submissions in a letter shehas written to the Court.[13] Mr Hill points out that the Grace Foundation would provide a structured andsupportive environment in which Ms Tawhiti's varied rehabilitative needs canproperly be met. It has tight security arrangements and Ms Tawhiti will be well awarethat any transgression would inevitably result in her being sent back to prison. Hesays a bed remains available at the Grace Foundation on the condition that Ms Tawhitiis doubled-vaccinated.Decision[14] A decision whether to convert a short term of imprisonment to a sentence ofhome detention involves the exercise of a judicial discretion fettered only by thepurposes and principles contained in the Sentencing Act 2002. This means anappellate court may only interfere where the sentence has erred in principle by takinginto account irrelevant considerations or failing to take into account relevantconsiderations. Intervention may also be justified where the decision in question isplainly wrong.[15] There has been a change of circumstances since sentencing to the extent that aplacement with the Grace Foundation is now available when that was not the case atthe time of sentencing. However, the passage set out above demonstrates that theJudge did not base his decision on the unavailability of a placement. Rather, heconsidered he could not ignore the views of very experienced probation officers whoviewed a sentence of imprisonment as being Ms Tawhiti's best opportunity to have hercomplex rehabilitative needs addressed.[16] I do not consider the Judge erred in taking this factor into account because itdirectly addressed Ms Tawhiti's rehabilitative needs. These were plainly relevant tothe question of whether a sentence of home detention was appropriate. Furthermore,the fact that Ms Tawhai had removed her electronic bracelet and absconded when shehad earlier been remanded on EM bail to the Grace Foundation means a sentence ofhome detention to be served at that facility was unlikely to be a viable option. Itfollows that the Judge did not err in declining to convert the sentence of imprisonmentto one of home detention.Result[17] The appeal against sentence is dismissed.Lang J