SWEENEY v R [2023] NZCA 417

SWEENEY v R [2023] NZCA 417 [4 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA243/2023[2023] NZCA 417BETWEEN PENE AMENE TE AO KAPUAHURIWAKA SWEENEY (AKABENJAMIN SWEENEY)AppellantAND THE KINGRespondentHearing: 27 July 2023Court: Mallon, Moore, and Palmer JJCounsel: N P Chisnall KC for AppellantM R L Davie for RespondentJudgment: 4 September 2023 at 3 pmJUDGMENT OF THE COURTA Leave is granted to adduce further evidence.B The appeal is allowed. The sentence of two years and two months'imprisonment is quashed and substituted with a sentence of one year and11 months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)Summary[1] Mr Benjamin Sweeney, the appellant, was found guilty of assault with intentto injure and assault with a weapon, and acquitted of manslaughter, arising from abrawl at a petrol station in Ōtorohanga in October 2021. He was sentenced by Downs Jin the High Court on 9 May 2023 to two years and two months' imprisonment.1Mr Sweeney appeals on three grounds. We consider it was open to the Judge not toprovide a discount for Mr Sweeney's expressions of remorse which were focussed onthe death of one of Mr Sweeney's opponents in the brawl, as opposed to beingfocussed on his offending. We consider that the law, applied to Mr Sweeney'scircumstances, means that there should have been a discount to his sentence for theinterests of his two young children, and their effect on his rehabilitative prospects.However, we are satisfied that the interests of the children in this case do not tip thebalance far enough to make home detention the least restrictive sentence that isappropriate in the circumstances of this serious violent offending. We allow the appealand substitute the sentence with a sentence of one year and 11 months' imprisonment.What happened?[2] In his sentencing remarks, the Judge outlined the offending of Mr Sweeney andof his cousin, Mr Frank Sweeney:[3] On 2 October 2021, you, Benjamin Sweeney, you, Frank Sweeney,and a third man, stopped your car on the main road in Ōtorohanga outside theservice station. It was about 6.15 in the evening. It was still light.[4] Almost immediately, Anthony Bell and his two brothers, Ethan Tumaiand Victor Tumai, pulled up behind your car. Anthony Bell and Ethan Tumaihad been drinking.[5] Both of you and the third man rushed the victims' car as they weregetting out. Benjamin Sweeney, you were initially holding a beer bottle.[6] Sadly, everyone wanted to fight. I return to why shortly.[7] Anthony Bell was initially holding a hammer. He dropped it and bentover. As he did so, you, Benjamin Sweeney, punched him to the head twice.Your blows were hard. They knocked Mr Bell to the ground. While he wason the ground, you punched him to the head, kicked him to the head, and ashe was getting up, stomped his head. You also punched his body. Thisviolence reflects the first charge of assault with intent to injure, which carriesa maximum penalty of three years' imprisonment.[8] Victor Tumai was fighting the third man from your car. BenjaminSweeney, you picked up the hammer from the ground, ran to Victor Tumai andstruck him, using the hammer, to the back. You then ran back to Mr Bell; then1 R v Sweeney [2023] NZHC 1095. These offences are punishable by maximum penalties of threeand five years' imprisonment respectively: Crimes Act 1961, ss 193 and 202C(1).back again to Mr Tumai. You again hit him in the back with the hammer. Thisviolence is captured by the assault with a weapon charge, which carries amaximum penalty of five years' imprisonment. Victor Tumai sustainedswelling, bruises and grazes to various parts of his body.[9] Frank Sweeney, you squared off with Ethan Tumai. He was holding asmall screwdriver or small knife. He ran away from you. You chased himacross the road. You then ran back to where Mr Bell was standing in theforecourt of the service station. You then delivered a very powerful blow,either to Mr Bell's head or upper body. I cannot stress enough its forcefulness.It knocked Mr Bell backwards onto the ground. He died because of braininjury in consequence of your assault. You and Benjamin Sweeney fled.[10] You did not know the victims. You had encountered them, by chance,a little earlier on the main road leading into Ōtorohanga.[11] What happened on the road between the two groups was a matter ofcontention at trial. The entire sequence cannot be reconstructed. However, Ihave no doubt that you, the Sweeneys, were the initial aggressors on the road.I am sure you were initially following the victims' car and that you thentailgated it. I am also sure you passed the victims' car at some point. Amotorist driving the other way saw someone in your car making a MongrelMob gesture out of the window at the victims' car. I do not doubt those in thevictims' car returned your aggression in some way or ways. By the time thetwo cars arrived at the service station, everyone wanted to fight because ofwhat had happened on the road.[12] The case went to trial. Both of you claimed you were acting inself-defence. Indeed, both said you were terrified of the victims and worriedthey would cause you serious bodily harm—or worse. Much of yourtestimony was exaggeration or outright fabrication. I have no doubt that bothof you wanted to fight the victims, just as they, initially at least, wanted tofight you. That was apparent from the closed-circuit television footage fromthe service station. Indeed, almost everything that occurred was captured onclosed-circuit television.[13] The jury found both of you guilty, save you Benjamin Sweeney inrelation to Mr Bell's death. The jury were not sure that you helped [or]encouraged Frank Sweeney commit manslaughter.(Footnotes omitted)[3] Mr Chisnall KC, for Mr Sweeney, submits that the Judge's finding at paragraph[11] of his sentencing, and another observation that the fight commenced by "tacitagreement",2 downplayed the undisputed evidence that the deceased and his brothersdoggedly pursued Mr Sweeney and his companions. The Judge's remarks werefocussed on what had precipitated the assault, namely that the Sweeneys were theinitial aggressors on the road and that everyone wanted to fight when the two cars2 At [17].arrived at the service station. Those remarks were not inconsistent with evidence thatthe victim and his brothers doggedly pursued the Sweeneys. It was open to the Judge,as trial judge, to form the views he expressed in this part of his sentencing remarks.There is no error in this respect.[4] The Judge identified three aggravating factors of Mr Sweeney's offending:attacking Mr Bell to the head with significant force; administering blows while he wasdefenceless on the ground; and using a weapon against Victor Tumai.3 He consideredthe offending was plainly serious, though it fell just short of extreme violence.4 Headopted a global starting point of two years and nine months' imprisonment, saying:5I also record the obvious: this violence occurred in daylight, in a main street,under the gaze of closed-circuit television and people at the service station.Violence in a public place has a ripple effect. It makes those in the communityfeel unsafe, it compromises trust, and it contributes to a sense of lawlessnessin a post-pandemic world.[5] The Judge uplifted Mr Sweeney's sentence by three months' imprisonment forhis history of recent violence — a conviction for injuring with intent or recklessdisregard in August 2017 and for assault in a family violence context in January 2018.6The Judge considered discounts to the adjusted starting point of three years'imprisonment. As explained further below, he:(a) made no deduction for remorse;7(b) allowed a five-month (approximately 14 per cent) discount forMr Sweeney's personal circumstances set out in a pre-sentence reportand cultural report;8(c) deducted five months for Mr Sweeney's 14 months onelectronically-monitored (EM) bail before the trial;93 At [14].4 At [15].5 At [17].6 At [18].7 At [21].8 At [24].9 At [25].(d) did not make a deduction for Mr Sweeney's role as caregiver to hischildren;10 and(e) stated that, even if home detention were available, he would not haveimposed it.11[6] Mr Sweeney's end sentence was two years and two months' imprisonment.Mr Frank Sweeney was sentenced to four years' imprisonment for the manslaughterof Mr Bell.Appeal[7] Mr Sweeney appeals his sentence on the grounds that he should have discountsfor remorse and for being a solo parent to his young children and, accordingly, shouldhave been sentenced to home detention instead of imprisonment.[8] Under s 250 of the Criminal Procedure Act 2011, we must allow the appeal ifsatisfied that there is an error in the sentence imposed and a different sentence shouldbe imposed instead.12 Otherwise, we must dismiss the appeal. The Court will onlyintervene, and substitute its own view on appeal, if the sentence is manifestlyexcessive.13 The focus is on whether the end sentence is within the available range.14[9] Mr Sweeney seeks leave to adduce an affirmation about adverse aspects of theDepartment of Corrections' pre-sentence report, as well as evidence of completing ananger management course. Mr Chisnall, for Mr Sweeney, submits there was nomeaningful opportunity for Mr Sweeney to respond to the inaccuracies in the reportbecause it was only made available to Mr Sweeney's counsel two working days beforesentencing. Mr Davie, for the Crown, observes that Mr Sweeney had an opportunityto discuss the pre-sentence report with his lawyer prior to sentencing and his lawyerexpressed Mr Sweeney's views to the Judge. But the Crown abides the Court'sdecision on admissibility.10 At [27].11 At [45].12 Criminal Procedure Act 2011, s 250(2).13 Ripia v R [2011] NZCA 101 at [15].14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].[10] The principles for assessing the admissibility of new evidence on appeal is wellsettled. It must be credible and fresh. Being fresh requires an assessment of whetherit could have been presented to the sentencing Judge with reasonable diligence. If itis credible and fresh, it should be admitted unless the appellate court is satisfied itwould have no impact on the sentence.15 Mr Sweeney received the pre-sentence report20 minutes before his sentencing and had little time to talk with his lawyers about iton the morning of the sentencing. The Judge is unlikely to have known that. But sucha period is not a sufficient opportunity in the circumstances of this case, in terms ofthe principles of natural justice, for Mr Sweeney to respond to the adverse informationin the report that was relevant to his sentencing. The evidence Mr Sweeney now seeksto adduce is a response to the report and is relevant to issues on appeal. As inBetteridge v R, it is fresh in the relevant sense and, in certain key respects, both cogentand credible.16 We grant leave to adduce the affirmation and evidence of the angermanagement course.Issue 1: RemorseIndications of remorse[11] Mr Sweeney's remorse was canvassed in four documents. First, in a letter tothe Judge before his sentencing, Mr Sweeney expressed his sympathy for those whohad lost Mr Bell and explained he had also suffered traumatic loss of his partner.Among other things, he said:I write this letter to express my sincere regret and genuine remorse for mybehaviour and actions, and any way in which I contributed to what happenedon that day. My remorse comes from a genuine and heartfelt place ofexperience as I too have felt deep, traumatic loss. This letter comes from theheart, with compassion, sorrow, and deep regret.[12] Second, the Department of Corrections pre-sentence report stated, relevantly:At the start of the interview, Mr Sweeney presented as defensive, and focusedentirely on getting out of prison the fastest way possible. He was evenconsidering seeking an adjournment of his sentencing and applying for EMBail to achieve this.15 Mark v R [2019] NZCA 121 at [16] applying the principles established in Lundy v R [2013] UKPC28, [2014] 2 NZLR 273 at [120].16 Betteridge v R [2019] NZCA 513 at [23]–[24]. [H]owever, by the end of the interview, Mr Sweeney had acknowledgedthe enormity of the offending, and seemed to be exhibiting genuine remorseand empathy. He explained that his initial presentation was due to a lack oftrust of the interviewer, and a preconceived idea that they were only out to"make the offending gang-related and recommend the harshest sentencepossible".He stated he "did an anger management course once upon a time" and "doesn'twant to be thrown in with Toms, Dicks and criminals" to do another one "justto tick a box". Mr Sweeney has made his children his focus and would attenda parenting course, but not a specific rehabilitative intervention for his ownbenefit. Although Mr Sweeney, has expressed remorse for the victim's whanau, hisunwillingness to undertake any form of rehabilitation, means any sentenceimposed will be of a punitive nature only; unless Mr Sweeney has a changeof heart.Mr Sweeney has had the experience of losing a loved one in tragiccircumstances and said he wouldn't want anyone else to experience that pain.Although he had a Restorative Justice Conference with the person "who killedhis partner", where he was able to "get a lot off his chest", Mr Sweeney iscontinuing on "a long, lonely, sad road of healing". He said this has given himan understanding of what the victim's children are going through.Accordingly, he has "written a lovely remorse letter", and added that in thescheme of things, it doesn't carry much weight. Eventually he would like tosit down with the victim's whanau as part of their healing ("that hui has to godown"). He thought he might organise that with his Kaumatua in a couple ofyears time.[13] Third, in response to the pre-sentence report, Mr Sweeney says in hisaffirmation:(a) He was resisting his co-offender's application for a sentencingadjournment and was contemplating an EM bail application if there wasan adjournment out of concern for his children's welfare. This was putto the Judge in a memorandum before the sentencing.(b) He has always been willing to do a course that addresses his violentbehaviour if it is meaningful, as demonstrated by his meaningfulcompletion of the anger management course and his wish to do aparenting course.[14] Fourth, Ms Shelley Turner's pre-sentence cultural report on Mr Sweeney'spersonal circumstances touches on his remorse. Ms Turner outlined that Mr Sweeneymaintained his innocence but accepts he was found guilty and expressed remorse fromthe loss of life that resulted from the offending. Mr Sweeney said to Ms Turner:My heart goes out to them, the family, his parents, his partner, his kids, hiswhole whānau. Just to lose somebody is a huge blow for anyone. My heartgoes out to his whānau first and foremost.If I could turn back time, I would. If I could apologise for my whānau, I wouldhappily do so. This was an accident. I didn't wake up one day thinking Iwanted to do this to anybody.If I do get a chance to rectify whatever, or ever get a chance to meet them, I will. Whether it's a year from now or ten years from now, that's all tikanga.High Court decision on remorse[15] The Judge said:17[21] I am not persuaded you are genuinely remorseful. You were right nextto Frank Sweeney when he struck Mr Bell. You knew Mr Bell had fallen tothe ground. Yet you fled the scene with Frank Sweeney. You defended thecharges. Much of your evidence was, as I have said, exaggeration or outrightfabrication. Your portrayal of the victims at trial was inconsistent withremorse. Your offer to attend a restorative justice conference struck me asmade for forensic advantage. I, therefore, make no deduction under this head.Submissions[16] Mr Chisnall submits, as an ancillary ground of appeal, that the Judge erred bynot accepting that Mr Sweeney is genuinely remorseful and a discount of aboutfive per cent is commensurate, because:(a) Mr Sweeney's acquittal of the manslaughter charge vindicated hisdecision to go to trial.17 R v Sweeney, above n 1.(b) It is difficult to conceive how Mr Sweeney's physical proximity to hiscousin at the time the latter assaulted Mr Bell bears on Mr Sweeney'sremorse.(c) The Sweeneys' departure after Mr Bell was knocked to the ground,when they were not aware of the extent of his injuries, does notcounteract his stated contrition.(d) Mr Sweeney's portrayal of the victims as the aggressors does not meanhe was not genuinely remorseful for the consequence of his actions, thetragic death of a family man.(e) The Judge's conclusion, that Mr Sweeney feigned remorse foradvantage, clashes with the pre-sentence report and it was wrong totreat Mr Sweeney's offer to attend restorative justice as worthy ofcondemnation.[17] Mr Davie submits the Judge was right to decline a discount for remorse.Mr Sweeney continues to maintain his innocence, falsely saying he acted inself-defence. He is sorry about Mr Bell's death, but never suggested he felt bad aboutwhat he did. He could have pleaded guilty to the offences of which he was foundguilty. Even his letter was equivocal about why he felt remorse.Should there have been a discount for remorse?[18] It is well-established that genuine remorse for offending can be reflected in adiscount to a sentence.18 Genuine remorse, identified as a mitigating factor in s 9(2)(f)of the Sentencing Act 2002, increases the prospect of rehabilitation. Assessment ofremorse is necessarily evaluative.[19] Here, Mr Sweeney was convicted of injuring Mr Bell with intent to injure him,by punching him in the head including while he was defenceless on the ground, aswell as kicking him in the head, stomping his head, and punching his body.18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Moses v R [2020] NZCA 296,[2020] 3 NZLR 583 at [24].Mr Sweeney was convicted of assault with a weapon on Mr Tumai, hitting him in theback with the hammer. Mr Sweeney apparently still maintains that the wider contextthat led to the brawl means that he and his cousin were defending themselves. But thejury found that the defence of self-defence was not available to him. If they didconsider he was defending himself, they must have considered he used more forcethan was necessary in the circumstances as he believed them to be. Even the briefaccount above illustrates why they may have reached that conclusion.[20] When examined carefully, Mr Sweeney's statements of remorse were primarilyoriented to his sympathy for the effect of Mr Bell's death on Mr Bell's whānau.Mr Sweeney is able to empathise with this, given his loss of his partner in 2019. Buthe was acquitted of manslaughter. Sympathy for Mr Bell's death is not the same asremorse for the offences of which Mr Sweeney was convicted. His expressions ofremorse have said nothing about his attacks on Mr Bell or on Mr Tumai. We do notshare the Judge's view that fleeing the scene or defending the charges necessarilycount against Mr Sweeney's later remorse. And we do not have a view on whetherMr Sweeney's offer to attend restorative justice was genuine. But Mr Sweeneyappears to continue to hold to the view that his actions in the offending were justifiedand has not expressed remorse for the offences of which he was convicted. Given this,we do not consider that the Judge erred in declining to discount Mr Sweeney'ssentence for remorse.Issue 2: The interests of the children and the end sentenceLaw regarding the interests of the children[21] The principles of sentencing set out in s 8 of the Sentencing Act require that asentencing court:(h) must take into account any particular circumstances of the offenderthat mean that a sentence or other means of dealing with the offenderthat would otherwise be appropriate would, in the particular instance,be disproportionately severe; and(i) must take into account the offender's personal, family, whanau,community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or whollyrehabilitative purpose;[22] In Philip v R, the Supreme Court stated the principles relevant to discountinga sentence to mitigate the effect on a child.19 The Court stated:20[50] The Court of Appeal in Campbell v R stated that it was"uncontroversial" to say that the impact imprisonment has on the offender'schildren is a relevant factor in considering the appellant's personalcircumstances.21 The Court also observed that, the "weight to be accordedthat factor depends on the circumstances. The relevant circumstances includethe type of the offending and the circumstances of the child or children".22[51] That approach is consistent with the earlier judgment of the Court ofAppeal in R v Harlen.23 It is helpful to briefly refer to Harlen as this Court inR v Jarden24 cited the passage from Harlen set out below. To put the excerptin context, the Court in Harlen was responding in part to another decision inwhich the Court of Appeal had indicated the importance of deterring offendersfrom thinking that a substantial prison sentence will not be imposed wherethey have young children and of discouraging the idea there might be anadvantage in using women to undertake drug activities to avoid an appropriatesentence.25 In Harlen the Court said this:It is an error to read this passage as suggesting that New ZealandCourts do not take the welfare of affected children into accountin the sentencing process. The family situation of a convictedperson, including where applicable the wellbeing of anoffender's children, will always be among the personalcircumstances to which regard is had by a sentencing Judge. What however must be recognised is that the family situation ofan offender, including the wellbeing of the offender's children,is only one of a number of relevant factors. How much weight itcan be accorded in any particular case depends on itscircumstances. [52] The provision for such discounts reflects both s 8(h) and (i) of theSentencing Act. Section 8(h) requires the court to take into accountcircumstances of the offender that would mean an otherwise appropriatesentence "would, in the particular instance, be disproportionately severe".Section 8(i) directs the court to consider various personal circumstances,namely, "the offender's personal, family, whanau, community, and culturalbackground in imposing a sentence with a partly or wholly rehabilitativepurpose". A sentencing approach which recognises the importance to a childof the familial relationship is also supported by the United Nations Convention19 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.20 Footnotes in original.21 Campbell v R [2020] NZCA 356 at [41].22 At [41] (footnote omitted).23 R v Harlen (2001) 18 CRNZ 582 (CA).24 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [13].25 R v Harlen, above n 23, at [22].on the Rights of the Child (Children's Convention).26 The Children'sConvention emphasises the importance for children of growing up in a familyenvironment and imposes an obligation on courts to treat the best interests ofchildren as a "primary consideration".27[23] The Court agreed that a discrete discount was available "given Mr Philip wasan important presence in his young child's life" and cited the expert evidence aboutthe child's attachment and the pre-sentence report.28 It held that "there was such aclose relationship between Mr Philip's rehabilitation and his relationship with the childas to warrant the [10 per cent] discount allowed" by the High Court.29 The Courtstated:30We do not find it helpful to characterise such discounts as "rare" or toemphasise, to the exclusion of other factors, whether the defendant is theprimary caregiver or the seriousness of the offending. What is required is aconsideration of all of the relevant circumstances which must include thechild's interests. Those interests include, as our reference to the Children'sConvention indicates, the importance for children of growing up in a familialenvironment.31 We accept that there may be other factors in this considerationtake primacy including, by way of example, issues of inter-familial violence;32an absence of remorse and/or lack of any rehabilitative steps,33 but thosefactors are not relevant here.Mr Sweeney's circumstances[24] Mr Sweeney's partner died in a car accident in February 2019, in which histhen-infant son was also injured. Mr Sweeney assumed full-time responsibility for hisson, now aged four, and daughter, now aged six. Relevant information about this iscontained in several sources:26 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990). See Francesca Maslin and Shona Minson "What about thechildren? Sentencing defendants who are parents of dependent children" [2022] NZLJ 367.27 Preamble and art 3. The Court in Harlen, above n 23, did not consider art 3 was relevant to theinterpretation of ss 6 and 7 of the then in force Criminal Justice Act 1985: at [28]. There issufficient support in the Sentencing Act for our view regarding discounts for children but we seethe Convention as affirming this.28 Philip v R, above n 19, at [53].29 At [54].30 At [56].31 See the discussion in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [116] on thecorrelation between offending in later life and environmental factors affecting children such as thelack of prosocial familial support and connection, and having a caregiver who is, or has been, inprison.32 As in Mau v R [2021] NZCA 106.33 As in Fukofuka [2019] NZCA 290.(a) Corrections' pre-sentence report notes Mr Sweeney's concern that theroutine he created for his children was no longer there. Mr Sweeneywas living with his children at his late partner's parents' address whilehe was on EM bail. The children are still there. He acknowledges hisproposed address for home detention would be challenging for hischildren in adjusting to a small-town country lifestyle in Matatā. Buthe wants to dedicate his change over the next 10 years to his children.The report writer says that Mr Sweeney needs to understand that therestrictions of EM bail differ from those of home detention, where afterhours requests are for emergencies only.(b) Ms Shelley Turner's report about Mr Sweeney's personalcircumstances quotes him saying, after losing his partner:I've still got my kids. My kids got a lot of trauma from it. Ihad to stop everything and just do my kids and prioritise thekids. And I did that. I've done that ever since she died.I went out looking for grief counselling for my children,especially my son. To this day I've been out looking for griefcounselling for him, too. Right from the get-go, I could seethe fear in my son's eyes of losing his mum or losing me. Those sorts of traumas, even me being in [prison], if I don'tget it together when I get out, it will bite my kids in the arselater on in life. That's where I've gotta be a better man.Ms Turner also notes that Mr Sweeney's whānau report that his children"really fret" when he's not there.(c) Mr Sweeney's letter to the Judge, which starts:My name is Benjamin Sweeney, and I am a 32-year-old solo,stay at home father, raising my 6-year-old boy and 4-year-oldgirl full-time after losing my partner and the mother to mykids in a tragic accident 4 years ago.(d) A letter from Judy Wood of "Seasons for Growth" attesting toMr Sweeney contacting them about grief counselling for his son.However, that did not prove possible. She says saying that a Dad'sconstancy, calmness, and clear communication are especially importantfor children, who are often pretty anxious about the loss of anotherparent, having lost one already.Submissions[25] Mr Chisnall submits that the primary ground of appeal is that the Judge erredby declining to provide credit to recognise Mr Sweeney is a solo parent and theprimary caregiver to his two young children. Ms Turner's report cogently outlined thereasons why the Court should be satisfied that Mr Sweeney's rehabilitative prospectsare genuine, as a man with a proven employment track record who has dedicatedhimself to his children following his partner's death. He relies on Philip in submittingthat s 8(h) of the Sentencing Act does not require hardship to be suffered by theoffender directly so a sentence may be disproportionately severe if it affects thewelfare of others. He submits, as in Philip, Mr Sweeney's rehabilitative prospects areinextricably linked to his childcare responsibilities. He submits a 10 per cent discount,matching that in Philip, is commensurate.[26] Mr Davie submits the Judge did not err. The court should consider childrenwhen sentencing, on the basis that the sentence may harm the children or that keepingthe offender with their children may promote the offender's rehabilitation. But adiscount is not required in every case. These children are being well-cared for by theirmaternal grandparents. Unlike the case of Philip, there is no expert evidence as to thedegree of attachment between Mr Sweeney and his children or the harm caused themby his absence. Mr Sweeney chose to run the risk he might be imprisoned even thoughprevious sentences have kept him away from his children. The absence of remorsealso counts against a discount.Should there be a discount for the interests of the children?[27] The law as stated in Philip is that the court must take the welfare of the childreninto account as part of the personal circumstances which are relevant to sentencingMr Sweeney. That is required by s 8(h) and (i) of the Sentencing Act and is consistentwith the United Nations Convention on the Rights of the Child. It is only one of anumber of relevant factors. But, like Mr Philip, Mr Sweeney is clearly an importantpresence in his young children's lives. It is in their best interests to grow up in afamilial environment. And the material before the Court indicates there is a closerelationship between Mr Sweeney's rehabilitation and his relationship with hischildren. He assumed full-time responsibility for his young children in 2019 and hasfocussed on parenting. Given the material before the Court, we do not require expertreports to come to the conclusion that the interests of the children, and their effect onthe rehabilitative prospects of Mr Sweeney, indicate a discount is justified. Weconsider that the law as stated in Philip, applied to Mr Sweeney's circumstances,means that there should have been a discount to his sentence of imprisonment. Wewould have allowed a discount of 10 per cent.Should a different sentence be imposed?[28] Not making a discount when it should have been made is an error. But it doesnot necessarily mean the end sentence was out of the range available to the sentencingjudge and another sentence should be imposed.[29] The starting point for the offences of assault with intent to injure and assaultwith a weapon can be confirmed by reference to Nuku v R.34 We agree with the Judgethat attacking the head, use of a weapon, and the victim being vulnerable on the groundwere aggravating factors. This was not the kind of case where excessive self-defencewas a mitigating factor. As noted earlier, the Sweeney's were the initial aggressors onthe road and both groups were looking for a fight when they reached the servicestation. We agree that, with three aggravating features, the offending lies in band threeof Nuku, where the starting point is from two years up to the statutory maximum. Thestarting point he adopted, of two years and nine months' imprisonment, was available.As the Judge said, the violent offending was serious, if not quite extreme.[30] Responsibly, Mr Chisnall does not contend that the Judge's starting point isoutside the available range. But he does argue against a sterner starting point beingfeasible. Having regard to comparable cases decided by this Court, we agree. Thecases of M (CA78/2022) v R and C (CA155/2014) v R involved more offences and34 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39. See the application of Nuku to charges of injuringwith intent to injure and assault with a weapon in M (CA78/2022) v R [2023] NZCA 151 at [17].more aggravating factors and adopted starting points of three years and two years andeight months' imprisonment respectively.35[31] In relation to other discounts, Mr Chisnall submits:(a) The reduction of 14 per cent for personal factors, rather than the15 per cent submitted by counsel, was inexplicable. We consider it isexplicable by the fact that the discount given was five months the Judgeexplained was approximately 14 per cent.(b) Mr Sweeney was given a five-month reduction for the 434 days onEM bail without breach, rather than the seven months counsel sought.That was on the basis of remaining proportionate to the seriousness ofthe offending and because Mr Sweeney did not follow the requiredprocedures of EM bail and was difficult.36 We do not share the Judge'sconcerns about Mr Sweeney being "difficult" on EM bail. There wereno breaches of bail conditions recorded even if he annoyed the EM bailteam with his requests, which he says were related to meeting the needsof his children. But we do not consider five months was aninappropriate discount given the exemptions for Mr Sweeney's curfewwhile on EM bail.[32] Overall, we agree the starting point was appropriate and should not have beenhigher. We agree with the discounts given. We consider it was an error not to give adiscount in relation to Mr Sweeney's children, of around 10 per cent. We would havegiven a discount of three months' imprisonment. That sort of discount, on a sentenceof two years and two months' imprisonment, is not mere tinkering, particularly whenit brings the end sentence with the range where home detention is potentiallyavailable.37 Accordingly, we consider a sentence of one year and 11 months'imprisonment should be imposed.35 M (CA78/2022) v R, above n 34; and C (CA155/2014) v R [2015] NZCA 33.36 R v Sweeney, above n 1, at [25].37 R v Gledhill [2009] NZCA 415 at [32].Issue 3: Home detentionLaw of home detention[33] Whether a short-term sentence of imprisonment is to be commuted to homedetention involves the exercise of a discretion in a way that gives effect to the purposesand principles of sentencing as set out in ss 7 and 8 of the Sentencing Act.38 Section 7includes deterrence, denunciation, accountability, promoting a sense of responsibility,providing for the interests of the victims, protection of the community and theoffender's rehabilitation. In addition to the provisions quoted above at [21], s 8(g)requires a sentencing court to impose "the least restrictive outcome that is appropriatein the circumstances". Section 16 provides, relevantly:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment forany particular offence, the court must have regard to the desirabilityof keeping offenders in the community as far as that is practicable andconsonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it issatisfied that,—(a) a sentence is being imposed for all or any of the purposesin section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case.[34] This Court's judgment in Zhang v R endorsed passages from a judgment of theCourt of Appeal of England and Wales in R v Petherick, in which we include a furtherparagraph:39 a criminal court ought to be informed about the domestic circumstances ofthe defendant and where the family life of others, especially children, will beaffected it will take it into consideration. It will ask whether the sentence38 Manikpersadh v R [2011] NZCA 452 at [14]–[16]; and Osman v R [2010] NZCA 199 at [20],citing William Young P's dissent, with approval, in R v Vhavha [2009] NZCA 588 at [29].Manikpersadh also approved the President's reasons at [14].39 R v Petherick [2012] EWCA Crim 2214 at [20]–[24] cited with approval in Zhang v R [2022]NZCA 267 at [67] (footnotes omitted and emphasis added).contemplated is or is not a proportionate way of balancing such effect with thelegitimate aims that sentencing must serve. ... [I]n a criminal sentencing exercise the legitimate aims of sentencing whichhave to be balanced against the effect of a sentence often inevitably has on thefamily life of others, include the need of society to punish serious crime, theinterest of victims that punishment should constitute just desserts, the needsof society for appropriate deterrence and the requirement that there oughtnot to be unjustified disparity between different defendants convicted ofsimilar crimes. It also needs to be remembered that just as a sentence mayaffect the family life of the defendant and of his/her innocent family, so thecrime will very often have involved the infringement of other people's familylife. This present case is also one in which rights are affected not onlyin the defendant and her child but in the deceased and his family. [I]t will be especially where the case stands on the cusp of custody that thebalance is likely to be a fine one. In that kind of case the interference with thefamily life of one or more entirely innocent children can sometimes tip thescales and means that a custodial sentence otherwise proportionate maybecome disproportionate. [T]he likelihood, however, of the interference with family life which isinherent in a sentence of imprisonment being disproportionate is inevitablyprogressively reduced as the offence is the graver . [I]n a case where custody cannot proportionately be avoided, the effect onchildren or other family members might [emphasis in original] afford groundsfor mitigating the length of sentence, but it may not do so. If it does, it is quiteclear that there can be no standard or normative adjustment or conventionalreduction by way of percentage or otherwise. It is a factor which is infinitelyvariable in nature and must be trusted to the judgment of experienced judges.[35] But the Court in Zhang identified a number of difficulties with giving furtherrecognition to the impact of Ms Zhang's imprisonment on her children. They includedthat:(a) the Court received no evidence that the baby was being adverselyaffected by the present circumstances;40(b) her case did not stand on the cusp of custody because even with afurther five per cent discount, home detention would not be evenparticularly close to being an option;41 and(c) overall, the discounts for personal factors were generous.4240 Zhang v R, above n 37, at [70].41 At [71].42 At [73].High Court on home detention[36] Here, in relation to home detention, the Judge stated, briefly:[45] I return to you Benjamin Sweeney. Your end point is two years andtwo months' imprisonment. Even if home detention were available, I wouldnot have imposed it. Your pre-sentence report speaks firmly against homedetention; it says you have been unwilling to undergo any form ofrehabilitation and your propensity for violence remains a concern.[46] On your behalf, Mr Chisnall KC says I should not accept what thepre-sentence report says. I see no reason not to take it on its face. It presentsas careful and considered.Submissions[37] Mr Chisnall submits that the end sentence that ought to have been reachedjustifies this Court substituting a sentence of home detention. Mr Sweeney was onEM bail for 434 days without breach. He dealt with Corrections proactively to securetemporary variations to benefit his children. That enhances rather than reduces hissuitability for an EM sentence. Section 16 of the Sentencing Act clearly mandates aless restrictive outcome than imprisonment in this case. The Judge failed to squarelyengage with the reasoning in Philip and Zhang. The case is on the cusp of anon-custodial sentence and Mr Sweeney's childcare responsibilities should tip thescales in his favour. Imprisonment is disproportionately severe. Home detentionwould also elevate Mr Sweeney's own redemptive prospects. The time on homedetention would need to take account of Mr Sweeney's time on remand before andafter the trial on a one for one basis. The proposed home detention address remainsavailable.[38] Mr Davie submits the Judge was right to say that home detention is not anappropriate sentence. Risk of non-compliance tells against home detention which canbe difficult to serve. He would be living in a reasonably remote location as the solecaregiver of two young children. He is not well equipped for the challenges of soloparenting, having difficulties resolving inter-personal problems, exhibiting demandingbehaviour and with an anger management problem. His recent anger managementcourse was the second he has completed. The first did not prevent the offending here.The constraints on freedom in home detention are much more than on EM bail. Hewould not be able to go to the gym and do outdoor exercise to keep his anger undercontrol. He has a propensity for violence, including in a domestic context against hispartner.Home detention[39] The interests of Mr Sweeney's children are clearly relevant to the question ofwhether a sentence of imprisonment or home detention should be imposed. As theCourt said in Petherick, that is especially so where the case stands on the cusp ofcustody, as it does here. As it also said, the likelihood of interference with family lifeinherent in imprisonment being disproportionate is also inevitably progressivelyreduced the graver the offence. In the context of this case, that is reflected in thepurposes of sentencing to hold the offender accountable for the harm done to the victimand community, to denounce his conduct, and to deter future such conduct.[40] We consider the balance of these considerations is, by a fine but appreciablemargin, tilted in favour of imprisonment. Mr Sweeney's offending entailed seriousviolence between two groups of men who did not know each other at a gas station.Mr Sweeney punched Mr Bell's head, kicked his head, stomped his head, and hitMr Tumai in the back with a hammer. This behaviour warrants the accountability,denunciation, deterrence, and protection of the community that is afforded byimprisonment. Given the nature of the offending, it is only the interests ofMr Sweeney's children that make home detention a question.[41] We do not need expert evidence to recognise the value of parental guidance forchildren. And, as we have said, we have no doubt the interests of the children wouldbe enhanced by Mr Sweeney's presence. But there is no evidence the children arebeing adversely affected by their present circumstances of being cared for by theirgrandparents in the same home they were in when Mr Sweeney was with them onEM bail. We are satisfied that the interests of the children in this case do not tip thebalance far enough to make home detention the least restrictive sentence that isappropriate in the circumstances of this serious violent offending.Result[42] Leave is granted to adduce further evidence.[43] The appeal is allowed. The sentence of two years and two months'imprisonment is quashed and substituted with a sentence of one year and 11 months'imprisonment.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent