AUCKRAM v NEW ZEALAND POLICE [2022] NZHC 1446

AUCKRAM v NEW ZEALAND POLICE [2022] NZHC 1446 [20 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2022-404-000101[2022] NZHC 1446BETWEEN RYAN AUCKRAMAppellantAND NEW ZEALAND POLICERespondentHearing: 13 June 2022Appearances: R Mansfield QC for the AppellantF J McKechnie for the RespondentJudgment: 20 June 2022JUDGMENT OF TAHANA JThis judgment was delivered by me on 20 June 2022 at 3.00pmRegistrar/Deputy RegistrarSolicitors/Counsel:R Mansfield QC, Barrister, AucklandMeredith Connell, AucklandIntroduction[1] Mr Auckram appeals against a sentence of 27 months' imprisonment on thefollowing charges in respect of which he pleaded guilty in the District Court atWaitakere:1(a) Threatening to kill;2(b) Assault on a person in a family relationship;3(c) Wilful damage;4 and(d) Burglary.5[2] Mr Auckram appeals on the basis that the sentence is manifestly excessive andsays the Judge erred by:(a) adopting a starting point that was manifestly excessive;(b) incorrectly applying an uplift for previous convictions after reductionsfor personal mitigating factors;(c) giving insufficient weight to Mr Auckram's personal mitigating factors;and(d) not imposing a sentence of home detention.[3] The Crown opposes the appeal and says the sentence was within range and isnot manifestly excessive.1 New Zealand Police v Auckram [2022] NZDC 5989.2 Crimes Act 1961, s 306. Maximum penalty of seven years' imprisonment.3 Crimes Act 1961, s 194A. Maximum penalty of two years' imprisonment.4 Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months' imprisonment or afine not exceeding $2,000.5 Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years' imprisonment.Factual background[4] Mr Auckram and the victim were in a relationship for nine years. While theyhave been separated for eight years, they occasionally saw one another and wereintimate.Assault on a person in a family relationship, threatening to kill, and intentionaldamage[5] Around midday on 30 June 2021, Mr Auckram arranged to meet the victim ather workplace at 10 pm. The victim subsequently advised Mr Auckram that she wouldbe late and arrived at 11.30 pm. There she waited in her car.[6] Mr Auckram arrived some 10 minutes later. He parked his van behind thevictim's car. He then sat in the front passenger seat of her car.[7] Mr Auckram then began to verbally and physically abuse the victim forapproximately 30 minutes. He accused her of having a sexual relationship with gangmembers and several of his associates. He then struck her left arm and back.[8] Mr Auckram returned to his van. The victim locked her car doors.Mr Auckram demanded that she let him back in and kicked at the car. This dented theexterior.[9] When the victim opened the driver's side door, Mr Auckram punched at herarms. He also kicked her right thigh twice. These assaults caused bruising to her arms,shoulders and right thigh.[10] Mr Auckram retrieved a crowbar from his van. He raised it above his head.The victim believed that he was going to assault her with it. Mr Auckram smashedthe rear window of her car.[11] Mr Auckram demanded that the victim join him in his van. The pair sat in thevan for another half an hour before leaving and spending the remainder of the nightdriving around Auckland. During this time Mr Auckram continued his verbal abuseand accusations of sleeping with gang members and several of his associates. Hethreatened to kidnap her and kill her (including by stabbing her).[12] At one point Mr Auckram taunted the victim by telling her that he would crashthe van into a lamp post and kill them both. When doing so he was driving above thespeed limit and erratically swerving towards lamp posts. The victim pleaded withMr Auckram to stop scaring her.[13] At around 5 or 6 am, the victim escaped from the vehicle. She was picked upby a member of the public and taken to a nearby associate's address.[14] When spoken to by police, Mr Auckram admitted to damaging the victim'svehicle.Burglary[15] In the early hours of the morning on 9 May 2021, Mr Auckram went to a barin Pakuranga Heights, Auckland. There he removed copper spouting that was fixed tothe building near the front carpark. He then climbed a wall and entered the outdoordining area, where he removed more copper spouting. Mr Auckram placed the copperspouting in his vehicle and left the premises.District Court decision[16] The Judge sentenced Mr Auckram on 15 March 20226 with an end sentence of27 months' imprisonment, arrived at as follows:(a) A starting point of 18 months' imprisonment for threatening to kill (thelead offence).(b) An uplift of 12 months' imprisonment for the assault (11 months) andintentional damage (1 month).(c) An uplift of 6 months' imprisonment for the burglary.6 New Zealand Police v Auckram [2022] NZDC 5989.[17] This resulted in a cumulative starting point of 36 months' imprisonment. TheJudge then applied:(a) a discount of 20 percent for time spent on EM bail, remorse,rehabilitative efforts and positive references;7(b) a discount of 20 percent for the guilty plea; and(c) an uplift of six months' imprisonment for prior convictions.[18] The Judge noted that the seriousness of Mr Auckram's offending was at thehigh end for the threatening to kill charge and it could well have been accompaniedby a kidnapping charge.8 The Judge noted that this meant the sentence was outside ofthe range where a community based sentence was available.9 The offending was "tooserious for [the Judge] to deal with in another way".10Approach on appeal[19] Appeals against sentence are brought as of right under s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. ThisCourt must allow the appeal if satisfied that for any reason there was an error in thesentence imposed on conviction and a different sentence should be imposed.11 Thefocus is on the sentence imposed, rather than the process by which it is reached.12 TheCourt will not intervene where the sentence is within the range that can properly bejustified by accepted sentencing principles.13 To this end the concept of a "manifestlyexcessive" sentence is well-engrained and there is no reason not to use it.147 New Zealand Police v Auckram [2022] NZDC 5989 at [11].8 New Zealand Police v Auckram [2022] NZDC 5989 at [5].9 New Zealand Police v Auckram [2022] NZDC 5989 at [12].10 New Zealand Police v Auckram [2022] NZDC 5989 at [15].11 Criminal Procedure Act 2011, s 250(2).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].Analysis[20] Mr Mansfield, for Mr Auckram, submits that each component of the startingpoint set by the Judge was manifestly excessive. Ms McKechnie, for the Crown, saysthat a cumulative starting point of 36 months' imprisonment was within the availablerange.Threatening to kill charge[21] Mr Mansfield submits that the starting point of 18 months' imprisonment wastoo high and 15 months is more appropriate. He relies on Taylor v Police15 andRichards v Police.16[22] In response, the Crown says the cumulative starting point for the familyviolence charges (30 months' imprisonment) is appropriate given:(a) the presence of the factors identified in Faaleaga v R;17(b) the context of an intimate relationship between Mr Auckram and thevictim; and(c) the history of violence against the victim.[23] In Taylor, Mr Taylor forced his way into the victim's house and pinned heragainst a bedroom door.18 He screamed at the victim that she was a "nark" andthreatened to kill her.19 She had obtained a protection order just two days prior.20Mr Taylor then left when the victim reached for her phone to alert police.21 Williams Jadopted a starting point for threatening to kill of 18 months' imprisonment.2215 Taylor v Police [2014] NZHC 1139.16 Richards v Police [2015] NZHC 2650.17 Faaleaga v R [2011] NZCA 495.18 Taylor v Police [2014] NZHC 1139 at [4].19 Taylor v Police [2014] NZHC 1139 at [5].20 Taylor v Police [2014] NZHC 1139 at [6].21 Taylor v Police [2014] NZHC 1139 at [5].22 Taylor v Police [2014] NZHC 1139 at [21].[24] Mr Mansfield says that Mr Auckram's conduct was less serious than in Taylor23because there was no bad blood, fear or animosity prior to Mr Auckram and the victimarranging to meet up. He says they "regularly" met up to consume methamphetamineand engage in sexual intercourse. Further, unlike in Taylor,24 this did not include aninvasion of the victim's home where one should feel safe and secure given theprotection order.[25] I do not consider that Mr Auckram's conduct was less serious than in Taylor.25While the threats did not occur in the victim's home, they occurred over a longerperiod (five to six hours) and in a confined space (Mr Auckram's van). Further, threatsoccurred after Mr Auckram had punched the victim and smashed her car's rearwindscreen with a crowbar. Elements of Mr Auckram's offending were more seriousthan the offending in Taylor.26[26] Mr Mansfield then refers to Richards v Police27 to justify a 15 month startingpoint. There the offender was in a heated argument with his partner after theirrelationship broke down.28 He grabbed her arms and pushed her to prevent her fromleaving.29 Over the course of a two-hour argument he threatened to smash a glassbottle he was holding over his head and over her head.30 He then threatened to kill herand himself.31 On appeal, Fogarty J quashed a sentence of 10 months' imprisonmentand imposed a sentence of six months' supervision, having regard to the offender'sparole eligibility and the fact that a community based sentence would serve arehabilitative purpose in giving him a chance at being readmitted to the Army.32[27] The offending in Richards33 is less serious on the facts. There was less physicalviolence involved and there was no history of violence in the relationship. Theduration of the offending was also shorter. While in that case Mr Richards used a23 Taylor v Police [2014] NZHC 1139.24 Taylor v Police [2014] NZHC 1139.25 Taylor v Police [2014] NZHC 1139.26 Taylor v Police [2014] NZHC 1139.27 Richards v Police [2015] NZHC 2650.28 Richards v Police [2015] NZHC 2650 at [5].29 Richards v Police [2015] NZHC 2650 at [5].30 Richards v Police [2015] NZHC 2650 at [5].31 Richards v Police [2015] NZHC 2650 at [5].32 Richards v Police [2015] NZHC 2650 at [25]–[28].33 Richards v Police [2015] NZHC 2650.bottle to threaten the victim, in this case Mr Auckram was driving the van erratically,threatening to harm the victim, and could have used the van to harm the victim.Mr Auckram also said he had a knife and threatened to stab the victim.[28] Ms McKechnie, for the Crown, submits that the cumulative starting point forthe family violence charges of 30 months' imprisonment was appropriate. While notexplicit, the Crown submission appears to be that the starting point for the threateningto kill charge was too low and cumulatively with the uplifts for the other familyviolence changes, the cumulative starting point for family violence charges of 30months' imprisonment was not too high.[29] The Crown says that the threats to kill were serious, engaging all but one ofthe aggravating factors set out in Faaleaga v R.34 There the Court of Appealconsidered that:35[11] Key factors in assessing the culpability of offending of this nature willinclude premeditation (the degree to which the threats were planned orcalculated), the nature and frequency of the threats, any link to earlier actualviolence, whether the object of the threat has public office, the ability of theoffender to effect the threat and the allied question of the actual danger to thevictim.[30] The Crown also relies on Taniora v R.36 Mr Taniora had his partner collect himin her car.37 There he produced a machete, struck the victim in the face three times;head butted her on the left side of her body; grabbed her hair; and threw her around.38He smashed the machete around the car, damaging the radio panel and knobs, wiperstem, steering wheel, top of the glove box, screen for the reversing camera, rear visionmirror and the windscreen.39 For between 30 minutes and one hour the victim drovethe offender around while he threatened to kill her, including by chopping her headoff.4034 Faaleaga v R [2011] NZCA 495.35 Faaleaga v R [2011] NZCA 495.36 Taniora v R [2016] NZHC 2471.37 Taniora v R [2016] NZHC 2471 at [2].38 Taniora v R [2016] NZHC 2471 at [3].39 Taniora v R [2016] NZHC 2471 at [5].40 Taniora v R [2016] NZHC 2471 at [6]–[9].[31] Mr Taniora was convicted of threatening to kill, male assaults female andwilful damage.41 A starting point of 30 months' imprisonment was adopted for thelead charge of threatening to kill and a three month uplift applied for male assaultsfemale and wilful damage.42[32] While in Taniora43 the time spent in the car was less (30 mins to one hourversus five to six hours) the offending was more serious. The victim was struck in theface and not the arms and legs as is the case here. The victim was also head butted,her hair grabbed, and she was thrown around.[33] Mr Auckram's offending was less serious than in Taniora44 and closer to theoffending in Taylor.45 I therefore consider that it was open to the Judge to adopt astarting point of 18 months' imprisonment for the threatening to kill charge.Uplift for additional offending – assault on a person in a family relationship, andwilful damage[34] Mr Mansfield says that the uplift for the charges of assault on a person in afamily relationship and wilful damage should have been no more than six months'imprisonment. He says the Judge failed to consider totality when applying an upliftof 12 months' imprisonment for those charges.[35] In Taylor,46 an uplift of three months' imprisonment was applied for an assaultthat involved stopping the victim from leaving, grabbing her arms and pushing herback. Mr Taylor pinned the victim between the door and the washing machine. Thisis less serious than the punches Mr Auckram gave to the victim's arms and legs, whichleft her bruised and scared.[36] In this case, the District Court Judge noted that the assault that took place wasbad in the sense that there was no way or means by which the victim could go. Shewas in a vehicle and effectively prevented from doing anything other than accepting41 Taniora v R [2016] NZHC 2471 at [1].42 Taniora v R [2016] NZHC 2471 at [12].43 Taniora v R [2016] NZHC 2471.44 Taniora v R [2016] NZHC 2471.45 Taylor v Police [2014] NZHC 1139.46 Taylor v Police [2014] NZHC 1139.the punishment that Mr Auckram was dishing out.47 Mr Auckram punched thevictim's arms and kicked her twice on her right thigh. The victim impact statementnotes that the victim received bruising to her arms, shoulders and right thigh. Thepolice had submitted that an uplift of three to six months' imprisonment wasappropriate taking into account totality.[37] The Judge does not refer to totality and his reasons for an uplift of 12 months'imprisonment are not provided. The Crown says that an adjustment for totality is notautomatic and is only required if the end sentence is "wholly out of proportion to thegravity of the overall offending".48 While I accept that it is the cumulative startingpoint that is relevant, there should be a reasonable basis for arriving at that startingpoint to ensure that it is not manifestly excessive.[38] The police submissions in the District Court sought an uplift of three to sixmonths' imprisonment on the assault and wilful damage charges and said that such "anuplift also properly factors in totality considerations when the offending is looked atas a whole." The police had submitted a starting point of 30 months' imprisonmentfor the lead charge of threatening to kill so the three to six month uplift submission isrelative to that starting point.[39] The police submission combined with the Judge adopting an uplift of 12months' imprisonment for the assault and wilful damage charges indicate that totalitydid not appear to be considered by the Judge when applying the uplifts for thosecharges.[40] I therefore accept Mr Mansfield's submission that the Judge erred in notconsidering totality in providing an uplift of 12 months' imprisonment. An uplift of12 months' imprisonment was manifestly excessive compared to the uplifts providedin Taniora49 where the offending was more serious. An uplift of no more than eightmonths was appropriate.47 New Zealand Police v Auckram [2022] NZDC 5989 at [10].48 Ashcroft v R [2014] NZCA 551 at [32]; and Sentencing Act 2002, s 85(2).49 Taniora v R [2016] NZHC 2471.Burglary charge[41] Mr Mansfield submits that the starting point of between six and nine months'imprisonment would be appropriate for the burglary offending in isolation. He saysan uplift of no more than four months' imprisonment is appropriate, taking intoaccount totality.[42] In response, Ms McKechnie refers to R v Stevens.50 In that case the offenderwent to commercial premises which he used to clean and stole approximately $350worth of copper piping.51 The Court of Appeal considered that "an appropriate startingpoint would have been no higher than 18 months' imprisonment".52[43] Ms McKechnie properly accepted that the offending in that case wasaggravated by a breach of trust, while Mr Auckram's was not. I accept her submissionthat taking that into account, the uplift of six months' imprisonment for the burglarycharge is appropriate and was within the available range.Conclusion on starting point[44] For the reasons set out at [40], the cumulative starting point of 36 months'imprisonment was arrived at without taking into account totality. A more appropriatestating point is 32 months' imprisonment.Uplift for previous convictions[45] Mr Mansfield says that the uplift for previous convictions should have beenapplied to the starting point before discounts were applied. Ms McKechnie says thatit was open to the judge to apply it at the second stage and relies on Moses v R53 andStuart v R.54[46] The approach set out by the Court of Appeal in Moses is to first calculate thestarting point based on the offending, then to adjust that starting point taking into50 R v Stevens [2009] NZCA 190.51 R v Stevens [2009] NZCA 190 at [3].52 R v Stevens [2009] NZCA 190 at [14].53 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.54 Stuart v R [2021] NZCA 539.account all aggravating and mitigating factors personal to the offender.55 This secondstage typically involves the summation of different uplifts and discounts, the total ofwhich is applied to the starting point.[47] The Court of Appeal in Stuart56 considered the approach for uplifts forprevious convictions when considering whether to grant leave to appeal. The Courtof Appeal determined that:57[I]t is abundantly clear from the reasoning in Moses that previous convictionsconstitute an aggravating factor personal to the offender, not an aggravatingfeature of the instant offending. We agree that previous offending is to betaken into account at step 2.[48] The decisions in Moses58 and Stuart59 confirm that the Judge did not err inapplying the uplifts for previous convictions at the second stage. I now need toconsider whether the quantum of the uplift was manifestly excessive.[49] Mr Mansfield says the uplift of six months for previous convictions wasexcessive and an uplift of three months is appropriate.[50] An uplift for prior convictions must have a "reasonable relationship" with thestarting point.60 It is important that there be some proportionality between the startingpoint and any uplift.61 Here, Mr Auckram has previous convictions for family violenceoffending in 2003, 2013 and 2017. He has three convictions for male assaults female,two for common assault, one for wilful damage, one for possessing an offensiveweapon and one for contravening a protection order. Two of those convictions formale assaults female and wilful damage are for offending against the same victim in2017.[51] Mr Mansfield submits that the only relevant conviction which may not beviewed as historic are the convictions in 2017 for offending in 2016.55 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].56 Stuart v R [2021] NZCA 539.57 Stuart v R [2021] NZCA 539 at [15]–[16].58 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.59 Stuart v R [2021] NZCA 539.60 Taylor v R [2012] NZCA 332 at [46].61 Tiplady-Koroheke v R [2012] NZCA 477 at [24].[52] Ms McKechnie submits that the quantum of the uplift was proportionate to thegravity and relevance of Mr Auckram's prior offending and the starting point for theindex offending.[53] It is important that any uplift not result in the defendant being sentenced again.Six months is a significant uplift given that the previous relevant convictions occurredin 2003, 2013 and 2017. An uplift of four months' imprisonment should be applied.Guilty plea[54] Mr Mansfield says that the Judge should have given Mr Auckram a full 25 percent discount for his guilty plea given that Mr Auckram pleaded guilty at one of theearliest possible opportunities.[55] Ms McKechnie submits that there is no entitlement to a full guilty plea and thatthe 20 per cent discount given was within the acceptable range.[56] The hearing notes record four adjournments due to COVID-19 includingbecause of level 3 and level 4 lockdowns. Mr Auckram should not be penalisedbecause of COVID-19 related delays that may have impacted on the timing of hisguilty pleas. I therefore consider that the Judge erred in applying a 20 per cent andnot a 25 per cent discount for the guilty pleas.Personal circumstances including employment prospects, remorse, communitysupport, rehabilitative efforts, and time spent on EM bail[57] Mr Mansfield accepts that the Judge applied a 20 percent discount for timespent on EM bail, the Gracegate references, remorse and the Salvation Army coursethat was completed but says that:(a) The quantum of the discount for time spent on EM bail should havebeen particularised and not rolled into the overall 20 percent discount.Had this occurred an additional reduction of four months'imprisonment should apply.(b) Further mitigating personal factors were not taken into account,including:(i) prospect of continued employment;(ii) strong community support; and(iii) methamphetamine addiction and genuine successfulrehabilitation.[58] I consider that the Judge's mention of the Gracegate reference and theSalvation Army course indicate that he did consider Mr Auckram's addiction andgenuine successful rehabilitation efforts. The Salvation Army certificate refers to "aprofessional programme for the treatment of addictions".[59] In terms of community support and employment prospects, these issues wereexpressly referred to in Mr Auckram's letter of remorse where he refers to the supportof his parents and siblings and having established some strong prosocial relationshipswith recovery-focused peers, which he intends to maintain moving forward. Theremorse letter also refers to the support of his employer.[60] Given the remorse letter to which the Judge referred, I do not accept that thesefactors were not considered when applying the 20 percent discount for personalfactors.[61] Albeit helpful, it is not necessary for the Judge to articulate the quantum ofdiscount attributable to every single mitigating factor within a multifactorial discount,particularly where those factors are related. The question is whether the overalldiscount of 20 per cent was within the available range. I accept that it was, and thatan additional four month reduction is not warranted.Conclusion – end sentence[62] For the reasons set out above, I consider that the Judge erred by:(a) not considering totality and applying an uplift for the assault in a familyrelationship and wilful damage charges of 12 months, an uplift of 8months was appropriate;(b) applying a discount of 20 per cent for the guilty plea instead of 25 percent; and(c) uplifting the sentence by six months' imprisonment for previousconvictions, an uplift of four months' imprisonment was appropriate.[63] Applying the above:(a) The cumulative starting point is 32 months' imprisonment.(b) Applying discounts of 20 per cent for personal factors and 25 per centfor guilty pleas, reduces the sentence to 17.6 months' imprisonment.(c) Applying an uplift of four months' imprisonment for the previousconvictions results in an end sentence of 21.6 months' imprisonment,which I reduce to 21 months.[64] Given the end sentence of 21 months' imprisonment, I now consider the issueof home detention.Did the Judge err by failing to impose a sentence of home detention?[65] Mr Mansfield says the Judge should have imposed a sentence of homedetention. Mr Mansfield acknowledges the seriousness of the offending andMr Auckram's previous breaches of home detention but says that Mr Auckram is at asignificant turning point in his life. He says Mr Auckram has made genuine andsuccessful efforts in addressing his addictions. If Mr Auckram is able to return to thecommunity and continue his rehabilitation, this will lead to a greater likelihood thatMr Auckram will not reoffend. Mr Mansfield also refers to the strong support ofMr Auckram's family. He says it is in the interests of the community for Mr Auckramto be able to continue his rehabilitation and home detention will better enable thisoutcome.[66] Ms McKechnie for the Crown says that imprisonment is an appropriatesentence. She says the seriousness of the offending, the impact on the victim andMr Auckram's prior convictions of family violence all point in favour of a sentence ofimprisonment. She also highlights Mr Auckram's prior convictions for breachinghome detention in 2018, 2012 and 2011 and says this tells against the imposition of ahome detention sentence.[67] In R v Hill, rehabilitative considerations were expressly considered to beimportant in determining whether to impose a sentence of home detention:62Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[68] Mr Auckram has shown that he is working to address his addiction issues. Hehas family support and an offer of employment. This will enable Mr Auckram toreintegrate and turn his life around. I also note that a protection order is in place forthe victim and should remain in place.[69] The "Provision of Advice to Courts" report dated 20 January 2022 notes thatMr Auckram has ended his relationship with the victim and is taking ownership toaddress his drug addictions. The report notes that rehabilitative interventions are thetools Mr Auckram needs to help address his ongoing offending behaviours.[70] I accept Mr Mansfield's submission that enabling Mr Auckram to rehabilitateis more likely to result in deterrence than the alternative of a sentence of imprisonment.Successful rehabilitation is also more likely to result in lower risk to the safety of thevictim.[71] Mr Mansfield says a further reduction should be applied for time spent onremand and in prison. In determining the length of the sentence of home detention, I62 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].may take account of time spent on remand and in custody.63 Mr Auckram has spent23 days on remand and has spent three months and five days as a sentenced prisoner– a total of three months and 28 days. The home detention time should therefore bereduced by four months.[72] I have reviewed the pre-sentence report dated 11 March 2022 which identifiesthe address of Mr Auckram's father as suitable for home detention. The reportindicates he understands the conditions of home detention and consents toMr Auckram serving the home detention sentence in accordance with thoseconditions.[73] The pre-sentence report also acknowledges Mr Auckram's previous breachesof community based sentences but assesses Mr Auckram's ability to comply as good.[74] I therefore consider that a term of six months' home detention is appropriate.Result[75] The appeal is allowed. The sentence of 27 months' imprisonment is quashedand a sentence of six months' home detention, commencing from 21 June 2022 issubstituted. The conditions of home detention are:(a) Mr Auckram is to travel directly to his father's address.64(b) Mr Auckram is to reside at his father's address and not move addresswithout the prior written approval of the Probation Officer.(c) Mr Auckram is not to possess, consume or use any alcohol or drugs notprescribed to him.(d) Mr Auckram is to notify a Probation Officer prior to commencing,terminating or varying any employment or voluntary work.63 Smith v Police HC Rotorua CRI-2009-463-110, 18 December 2009 at [45].64 Mr Auckram's father's address is that mentioned in the Provision of Advice to Courts report dated11 March 2022.(e) Mr Auckram is to attend and complete an appropriate DepartmentalProgramme to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme shall be determined by aProbation Officer.[76] The protection order under s 123B of the Sentencing Act 2002 remains in place.______________________Tahana J