TE PUNI v NEW ZEALAND POLICE [2019] NZHC 762

TE PUNI v NEW ZEALAND POLICE [2019] NZHC 762 [9 April 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2019-416-4[2019] NZHC 762BETWEEN TALON TE PUNIAppellantAND NEW ZEALAND POLICERespondentHearing via AVL: 9 April 2019Counsel: M Mitchell for AppellantN Wright for RespondentJudgment: 9 April 2019ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Te Puni appeals against the sentence of 13½ months' imprisonmentimposed by Judge Cathcart in the Gisborne District Court on 28 February 2019.1Mr Te Puni's sentence was imposed on one charge of injuring with intent to injure.2[2] Counsel for Mr Te Puni, Mrs Wright, submits that the sentence should bequashed, and a sentence of home detention be imposed, if Mr Te Puni is able to providea suitable address.1 New Zealand Police v Te Puni [2019] NZDC 3842. He was also sentenced to one monthimprisonment on one charge of breaching bail, to be served concurrently.2 Crimes Act 1961, s 189(2) [maximum penalty of five years' imprisonment].Factual background[3] On 2 June 2018, the victim, Mr Crawford, was socialising with friends at anaddress not far from where Mr Te Puni was celebrating his cousin's birthday.Mr Crawford and Mr Te Puni did not know each other. At approximately 8pm,Mr Crawford decided to walk to another friend's house a few streets away. He crossedpaths with two young men standing outside a party; one of these men was Mr Te Puni.Mr Te Puni yelled out to Mr Crawford, and he stopped to speak with the young menin the middle of the intersection on the road.[4] As Mr Crawford stood there talking to Mr Te Puni and his associate,Mr Te Puni, without warning, using his entire body weight, punched Mr Crawford inthe face. It was described as a "king-hit" and has been accepted by Mrs Wright asbeing appropriately so described.[5] Mr Crawford was hit so hard that witnesses described him as falling straightbackwards with his arms at his sides onto the road. As he hit the ground, he lay therenot moving and began making noises described by the witnesses as snoring sounds.Blood began coming from his nose and ears; he was unconscious.[6] Although it has been asserted by Mrs Wright that there is a possiblereconciliation between the contents of the summary of fact which records that afterhitting Mr Crawford, Mr Te Puni stopped and put him in the recovery position, andthe alternative evidence that was before the Court in the summary of fact that he simplywalked away, this Court is bound by the summary of fact. It does not appear that therewas any challenge to that summary of fact in the Court, and it clearly says that afterthe assault Mr Te Puni went back to the party and it was the passers-by who came tothe assistance of Mr Crawford, who was at that point still laying in the middle of road.It was those passers-by who assisted Mr Crawford until the ambulance arrived, notMr Te Puni.[7] I approach this appeal on the basis that those were the facts.[8] The consequences for Mr Crawford as a result of this assault have beenconsiderable. In terms of his injuries, Mr Crawford was knocked unconscious,suffered multiple contusions and had bleeding beneath his skull. He also had afractured temporal bone behind his ear and spent two days in the intensive care unit atGisborne Hospital. Mr Crawford's victim impact statement outlined a range of furthercomplications and permanent damage suffered as a result of the brain injuriessustained.[9] Mr Te Puni's explanation to Police was that he did not remember what the menhad been talking about, and he said "I don't know why I did it. I put him into therecovery position when he started fitting though". As I have just indicated, the Courtdoes not accept that latter statement.[10] Mr Te Puni was 20 years old at the time of the offending.[11] Mr Te Puni was charged on 13 June 2018 with wounding with intent.3 He wasreleased on bail but on 19 July, he was charged with breaching that bail by failing toattend Court when required. Mr Te Puni pleaded guilty to the lesser charge of injuringwith intent to injure, following the Police amendment of the charge.District Court decision[12] Judge Cathcart sentenced Mr Te Puni to 13½ months' imprisonment on thecharge of injuring with intent, along with a concurrent sentence of one monthimprisonment on the charge of breaching his bail conditions.[13] His Honour began his sentencing exercise by including portions of the victimimpact statement, as read out by Mr Crawford at the sentencing hearing. Thatstatement reflects the severe impact this offending had on Mr Crawford above andbeyond the serious injuries he suffered at the time of the attack. As a result, he haspermeant damage to his smell and taste nerves, MRI scans have shown he haspermanent damage on his brain to an area that controls emotions and he is required tosee neurologists, rehabilitation physiotherapists, ear and nose specialists andoptometrists. He now has to wear prescription glasses. At the time of the sentencinghe had not returned to work and was unsure if he would ever be able to. Simple3 Section 188(2) [maximum penalty of seven years' imprisonment].questions make him erupt into anger, as he has less control over his emotions, and thathas caused serious disruption to his family dynamic.[14] His Honour then turned to his analysis. He began by noting that Police hadfiled written submissions contending a starting point of 24 months, on the basis thatthis offending falls within Band 2 of the tariff decision in Nuku v R.4 The Judgerecorded that given the severity of the injuries (both mental and physical) suffered byMr Crawford, counsel for Mr Te Puni accepted that a starting point of 24 months'imprisonment was appropriate. His Honour agreed that a two-year starting point wasappropriate and uplifted that by one month to account for the charge of breaching bail.This resulted in a starting point of 25 months' imprisonment.[15] The Judge went on to consider mitigating factors of the offender. He acceptedthat while Mr Te Puni was legally an adult, discounts for youth was sometimes givento offenders of his age. He noted that the applicable principles as outlined by the Courtof Appeal in Churchward v R were Mr Te Puni's capacity to rehabilitate, the offendingwas impulsive (which is characteristic of youthful offending) and that a long sentencewould be "crushing" for Mr Te Puni due to his youthful status.5 For youth, the Judgegave a six month discount which reduced the sentence to 19 months' imprisonment.[16] Judge Cathcart then went on to discuss the PAC report, which suggested asentence of community detention and supervision. The Judge explicitly stated that "Iregard that as wholly inadequate" and went on to say that, in his view, it "clearly failsto reflect the seriousness of the offending and its effect on Mr Crawford". As a result,the Judge put this recommendation to one side.[17] However, the Judge did review the PAC report closely and noted that the writersaid that Mr Te Puni was "sincerely apologetic" for his offending behaviour. TheJudge stated that although Mr Te Puni said he had difficulty remembering what hadoccurred that night, he recognised his remorse. The Judge recorded that Mr Te Puni's4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.5 New Zealand Police v Te Puni, above n 1, at [12] citing Churchward v R [2011] NZCA 531, (2011)25 CRNZ 446.demeanour in Court indicated that he was ashamed. An extra discount of one monthwas given for remorse. The sentence was then at 18 months' imprisonment.[18] Finally, Judge Cathcart moved on to give Mr Te Puni a discount for his guiltyplea. The Judge afforded Mr Te Puni a discount of four and a half months, being thefull 25 per cent discount available. The end sentence was one of 13½ months'imprisonment. The Judge continued on to consider whether, having regard for theprinciples and purposes of sentencing, home detention was the least restrictiveoutcome appropriate in the circumstances. Mrs Wright has made a submission thatthe Judge failed to have regard to that factor. However, it is clear from consideringthe decision as a whole that he has applied his mind to that.[19] The Judge began this portion of his analysis by acknowledging that "homedetention of its own right is not a soft sentence". He accepted that the principles ofdeterrence and denunciation can be met in given cases by a sentence of home detentionbut stressed that every case depends on its facts. Here, the key principles the Judgesaw relevant were holding Mr Te Puni accountable for the harm caused toMr Crawford and to promote a sense of responsibility for, and acknowledgement of,that harm. Also, at the forefront of the Judge's considerations was the need todenounce and deter this conduct, with particular reference to "deter[ing] others like-minded to deliver "king hits" in the Gisborne/East Coast region".6[20] Ultimately, the Judge concluded that with all relevant factors taken intoaccount, with express mention of Mr Te Puni's capacity for rehabilitation, that s 16 ofthe Sentencing Act 2002 was satisfied (meaning no other sentences would beconsistent with the principles and purposes of sentencing).[21] He highlighted that by saying "as is plain today, Mr Te Puni, everyone nowrecognises you came very close to killing Mr Crawford. You were fortunate herecovered from that king hit blow".7 He also noted his express view that nocombination of other sentences, apart from imprisonment, would meet those principles6 At [17].7 At [18].and purposes. In concluding, he said "you need to be held accountable for the harmto Mr Crawford. You will be sent to jail, Mr Te Puni".8Grounds of appeal[22] Mr Te Puni filed a notice of appeal on 25 March 2019. The sole ground ofappeal articulated in the notice of appeal, and confirmed in counsel's writtensubmissions, is that Judge Cathcart erred in failing to substitute a sentence of homedetention.Standard of appeal[23] Mr Te Puni has a general right to appeal his sentence under s 244 of theCriminal Procedure Act 2011 (CPA). Pursuant to s 250(2) of the CPA, the appeal mustbe allowed if there has been an error in the sentence imposed that rendered the sentencemanifestly excessive, and a different sentence should have been imposed.[24] Following the approach in Tutakangahau v R, it must be shown that an erroroccurred in forming the appellant's sentence, and that this error resulted in a sentencethat was outside the range that could properly be justified by accepted sentencingprinciples. The focus is always on the end sentence, rather than the process by whichit was reached. An appellate court will not intervene where the sentence is one thatcan properly be justified by accepted sentencing principles.9[25] In the context of her oral submissions to this Court, Mrs Wright has advertedto the fact that Mr Te Puni offered an emotional harm payment. She submitted thatthe Judge should have had regard to that as well. For the Crown, Ms Mitchell,submitted that although the Judge did not expressly refer to this matter in hissentencing notes, it could be inferred that as a result of giving both the maximumdiscount for the guilty plea, and a separate discount for remorse, that the Judge had, ineffect, had some regard to the offer of the emotional harm payment. It is not clear thatthe Judge did apply his mind in that way. However, it is my function to look in totalityat the sentence rather than the precise method by which the Judge has calculated the8 At [19].9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29] – [30] and [36].appropriate sentence. It is my view that in the circumstances, given the substantialdiscounts, it is unlikely that any express further discount in relation to an offer ofemotional harm reparation, which I note was not actually paid, would have affectedthe result.[26] The approach to appeals relating to the imposition of imprisonment where thelength of sentence would mean that home detention is technically available has beendescribed by the Court of Appeal as follows:10[11] This Court identified the appropriate approach in James v R in thisway:11[17] We record that an appeal against a refusal to grant home detentiondoes not provide an opportunity to revisit or review the merits. The questionis whether [the Judge] erred in exercising his sentencing discretion: that is,did he apply an incorrect principle, give insufficient or excessive weight to aparticular factor, or was he plainly wrong? Ms Guy Kidd for the Crownproperly accepts that home detention can satisfy the objectives of deterrenceand denunciation, but to a degree. We are satisfied that, in accordance withthe earlier authority in this Court, that the decision about whether homedetention will meet those objectives in a particular case is a strictly evaluativeexercise. It is a matter of judgment for the sentencing Judge to determinewhether home detention is an adequate response to the seriousness of theoffending.[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing, as in other sentencingappeals to this Court, on the identification of error, if any, in the court below.[27] These principles were more recently affirmed in Twomey v R by the Court ofAppeal.12Relevant law[28] The tariff case for this type of offending is Nuku v R, where the Court of Appealset out the following sentencing bands:13(a) Band one: where there are few aggravating factors, thelevel of violence is relatively low and the sentencingjudge considers the offenders culpability to be at a level10 Manikpersadh v R [2011] NZCA 52 at [11] – [12].11 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.12 Twomey v R [2018] NZCA 206.13 Nuku v R, above n 4, at [38].that might have been better reflected in a less seriouscharge, a sentence of less than imprisonment can beappropriate.(b) Band two: a starting point of up to three years;imprisonment will be appropriate where three or fewerof the aggravating factors listed at [31] of Taueki arepresent.(c) Band three: a starting point of two years up to thestatutory maximum (either five or seven years,depending on the offence) will apply where three or moreof the aggravating factors set out in Taueki are presentand the combination of those factors is particularlyserious. The presence of a high level of or prolongedviolence is an aggravating factor of such gravity that willgenerally require a starting point within band three, evenif there are few aggravating factors.[29] The aggravating factors as outlined in Taueki are as follows:14(a) Extreme violence: The extent of the violence involved in the offendingwill have an obvious impact on the level of criminality. Where anyviolent conduct is prolonged that will also be relevant, as will violencewhich is unprovoked or gratuitous.(b) Premeditation: The degree of premeditation and planning will alsoreflect criminality. Serious violence which can properly be classifiedas impulsive or a reaction to an unexpected event will generally beseen as less culpable than premeditated violence.(c) Serious injury: Where the injuries suffered by the victim or victimsare very serious, a higher starting point than in cases of minor injurywill be called for. This is particularly the case where the injuries arepotentially fatal or are such as to cause long-term or permanentdisability impacting on the victim's quality of life.15(d) Use of weapons: (e) Attacking the head: Even where weapons are not used, attacks on thehead of a victim can have particularly serious consequences. Thus,where a victim is subjected to a severe beating or kicking causing head14 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31] (fuller details included onlyfor those which are potentially relevant to Mr Te Puni's offending – the expanded details onpremeditation are included to show that, with an impulsive assault, culpability is slightly less thana premeditated attack).15 Counsel for Mr Taueki argued that the focus should be on the actions of the defendant, not theconsequences for the victim (because it can sometimes be a matter of luck how bad resultinginjuries are). The Court (at [31(c)]) accepted that submission as far as it goes, but noted that theoffending in question here is the "intentional inflicting of serious injury". The Court went on toacknowledge that care needs to be taken not to double-count the level of violence inflicted and theseriousness of the injuries resulting.injuries, the offender's conduct will be treated similarly to offendinginvolving a weapon.SubmissionsMr Te Puni[30] Mrs Wright, counsel for Mr Te Puni, submits that Judge Cathcart erred infailing to substitute a sentence of home detention in place of 13½ months'imprisonment. She accepts that the injuries to Mr Crawford were significant butsubmits that to uphold a sentence of imprisonment would be to "continue the tragedy".[31] She submits the Judge erred in law when he decided against home detention,which was contrary to the view of the PAC report writer and the defence submissions.She also states the New Zealand Police conceded at the sentencing hearing that homedetention was the appropriate outcome. Having raised that issue with both Mrs Wrightand Ms Mitchel, I think it is more accurate to say that at the defence hearing, the Policeaccepted that, if the Court was minded to impose home detention, the Police wouldnot oppose that course.[32] Mrs Wright submits that the sentence imposed on Mr Te Puni is irreconcilablewith the sentence imposed in R v Feleti.16 In that case, the High Court was faced witha conviction for manslaughter for, what was described by counsel as a single punchassault.17 The offending was classified as rash and impetuous.18 Mr Feleti lived withhis parents, was young, had community support, a low risk of reoffending, no previousconvictions for violence and was attending counselling. The Court's assessment wasthat prison would have a harmful effect on the defendant and despite the death of hisvictim, home detention was assessed as the appropriate sentence in that case.[33] Mrs Wright further submits that there are two cases referred to at sentencingthat demonstrate home detention as the appropriate outcome. These are Takerei vNew Zealand Police and Elizalde v Police.19 She submits that Mr Te Puni is not at the16 R v Feleti [2019] NZHC 94.17 This case did not involve a "single-punch assault", albeit it was considered to be somewhatanalogous18 At [24].19 Takerei v New Zealand Police [2014] NZHC 3360 and Elizalde v Police [2015] NZHC 959.state where imprisonment is the only adequate outcome and contends further thatsupport for this is found in the case of Dean v Police.20[34] Counsel accepts and expressly notes that "it is not denied that [the] victimsuffered irreversible brain damage". However, she submits that Judge Cathcart was"overwhelmed" by the effect of the assault on Mr Crawford. She points out again thatMr Crawford survived the attack, unlike the victim in Feleti. She submits that theirreversible brain damage must be viewed in the context of a single, spontaneous strikeby a youthful defendant.Police submissions[35] The Crown rely on the approach articulated by the Court of Appeal in James vR21 and the requirement on an appellant to show that a material error was made by theJudge in refusing to commute a prison term into a sentence of home detention.Reference was also made to the comments of the Court of Appeal in Tutakangahau vR: The Court said:22 the appellate court does not just start afresh nor simply substitute its ownopinion for that of the original sentence.[36] The Crown submit that the sentencing Judge did not fail to take into accountany relevant factors nor take into account any irrelevant matter.Analysis and discussion[37] At first blush the decision in Feleti is not easily reconciled with the sentenceimposed here. However, upon closer review, I do not accept that, in reality, the twoare inconsistent. In my view there are clear, and material, factual and personaldifferences between Mr Feleti in his offending and Mr Te Puni in his offending.[38] Mr Feleti was 18 years old and the victim, Mr Holloway, was 19 years old.23They worked together as machine operators at a packaging company. One night while20 Dean v Police [2014] NZHC 1542.21 James v R, above n 11.22 Tutakangahau v R [2014] NZCA 279 at [30].23 R v Feleti, above n 16.working, Mr Feleti mis-fed a cardboard machine and some fell out on the ground.Mr Holloway picked it up and threw it at Mr Feleti, which caused an argumentbetween the two men. The two walked towards each other as if they were about tofight, when a colleague separated them and reminded them it was not worth losingtheir jobs over. They both returned to the machine, but shortly after that, Mr Feletipicked up a "metal machine tool" and threw it at Mr Holloway, who was not standingfar away on the other side of the machine. The tool was described as follows:[6] The T-shaped tool was approximately 25 cm long and 14 cm wide,and weighed 364 grams. So it was not very big or heavy, but it hitMr Holloway in the face and he fell to the ground, bleeding heavily.[39] Mr Feleti panicked and immediately apologised and tried to give Mr Hollowayfirst aid. I would note there that that is a significant distinguishing feature in relationto the actions of Mr Te Puni in this case. Tragically, Mr Holloway died a short timelater as a result of a penetrating injury to his left cheek, immediately below his lefteye. Police attended the scene and found Mr Feleti upset and immediately expressingremorse. Again, I would note that is a significant distinction from the situation ofMr Te Puni who returned to the party after the king hit to Mr Crawford. Mr Feletiexplained that he had lost his temper and threw the tool at Mr Holloway's stomach;he did not know how it had stabbed him in the eye region.[40] Toogood J noted that both the families of Mr Holloway and Mr Feleti werevictims in this case too. The Judge began his sentencing analysis with a discussion ofthe key sentencing principles applicable in this case, namely the need to denounceMr Feleti's conduct, to hold him accountable for the harm and to deter him and othersfrom resorting to violence. He also noted the need to consider the purpose ofrehabilitation for an offender, reintegration and the need to impose the least restrictiveoutcome in the circumstances.[41] In discussing whether the offence could be one classified as involving a"weapon", the Judge noted:24[20] I think characterising your offending as an attack with a weapon,however, is somewhat misleading; and I respect and am able to adoptMr Radich's submission for the Crown that this was a deliberate act but one24 (emphasis added).which might also be regarded as a freak accident; certainly the consequenceswere not intended by you.[21] The tool you threw at Mr Holloway was evidently capable of killinghim. But you did not use it with that purpose in mind. You did not go and getit from somewhere else. It just happened to be lying close at hand when youmade the rash decision to pick it up and throw it at Mr Holloway in much thesame manner as he did when he threw a piece of cardboard at you[42] He went on to acknowledge that striking the head of the victim made theoffending more serious, and although the tool had struck Mr Holloway in the head itwas not proven that Mr Feleti had aimed for his head. Again, I note that this is asignificant distinguishing feature to the present case. The Judge accepted thatMr Feleti was aiming for his stomach and because of that, opined that "it can[not] besaid that Mr Holloway's death was foreseeable to any degree when [Mr Feleti] threwthe tool at him". The Judge accepted that while it was, of course, foreseeable thatharm would occur, it could not be said that Mr Feleti "must have known that seriousinjury, let alone [Mr Holloway's] death, was likely to result".25[43] Toogood J went on to describe his view of the offending as follows:[24] Overall, this is how I view your offending. It was not a consideredattack. There was no plan and no premeditation. You made a rash andimpetuous decision in the spur of the moment. That is not to say it was notextremely reckless and dangerous – the tragic result shows that. But it wasalso thoughtless and lacking any vicious intent or premeditation. You realisedwhat you had done was wrong almost as soon as you did it. You immediatelyrushed to Mr Holloway's aid after he was struck by the tool and tried to helphim.[44] A starting point of three years was adopted. An uplift of two months was givenbecause this offending occurred while on bail for another charge (which had yet to bedetermined, so he had no previous conviction history).[45] The Judge moved on to note that it is in the community's best interests to "givean offender who is not perceived as a risk of further violence – particularly one asyoung as Mr Feleti – the best chance not to repeat the mistake".2625 At [22].26 At [27].[46] Ultimately, the end sentence reached was 20 months' imprisonment. The Judgethen turned to consider home detention. The Judge noted the Crown accepted therewas nothing precluding home detention in the PAC report. The Judge then recordedthat Mr Feleti was a "suitable candidate and living at home with [his] parents and [his]siblings" which was seen as appropriate. He went on to say that a number of factorsdemonstrated strong prospects of rehabilitation, including age, remorse, careeraspirations (courses currently enrolled in and actively pursuing), ongoing support ofhis family and community, no previous violence convictions, PAC report assessmentas him having a low risk of reoffending and "importantly" that he had taken real stepsto address the root of his offending by voluntarily participating in the "Living WithoutViolence" programme.[47] Ultimately, a sentence of 10 months' home detention was imposed.[48] In my view, there are key differences between Mr Te Puni's offending andpersonal circumstances and that of Mr Feleti, but given the importance thatMrs Wright has placed on the comparison between the decision in Feleti and thedecision of the District Court Judge in this case, it is important that I set out what Ifind to be those differences:(a) Differences in offending and foreseeable injuries: Mr Feleti'sactions were described as "lacking any vicious intent" and Toogood Jobserved that it could not be said that Mr Feleti "must have known thatserious injury was likely to result". That same thing cannot be fairlysaid in respect of Mr Te Puni's actions. He wound up and, seeminglyout of nowhere, with his whole body weight behind him, punchedMr Crawford directly in the face with such force that he fractured histemporal bone, knocked him unconscious, caused internal brainbleeding and permanent brain damage. I accept it was impulsive andlacked premeditation, but it can fairly, in my view, be characterised as"vicious". Mr Te Puni must have known that serious injury was likelyto result from this assault. Additionally, unlike the manslaughter chargein Feleti, Mr Te Puni has been convicted of a charge that, as an intrinsicfeature, includes "injuring with intent". A further key difference is thatToogood J accepted Mr Feleti's evidence that he was aiming forMr Holloway's stomach (which made the foreseeability of seriousharm less likely). Here, Mr Te Puni clearly aimed straight forMr Crawford's head with the intention of injuring him.27 There is afurther distinction, I think, in that Mr Feleti threw an object atMr Holloway whereas Mr Te Puni punched Mr Crawford directly in theface. The intentional violence seems objectively higher in Mr Te Puni'scase. Indeed, Toogood J described Mr Feleti's offending as "adeliberate act but one which might also be regarded as a freak accident;certainly the consequences were not intended by you". In my view, theactions of Mr Te Puni's assault, and the resulting consequences, cannotfairly be described as a "freak accident".(b) Callousness of the act: Mr Feleti, almost as soon as the tool left hishand, ran to Mr Holloway's aid apologising and trying to perform firstaid and/or assist him. This is very different to the response of Mr TePuni, who after punching Mr Crawford, left him on the roadunconscious and bleeding and returned to his party. When Mr Feletiwas questioned by Police, he apologised and expressed immediateremorse. While Mr Te Puni appears to express remorse now, too, theactions immediately after the offending are in stark contrast to those ofMr Feleti.(c) Previous convictions and addressing the source of the offending:One of the key reasons behind imposing home detention on Mr Feletiwas his prospect of rehabilitation, with particular reference to theimportant efforts he was making to address the source of his offending– his difficulty dealing with and reacting to conflict – by participatingin the "Living Without Violence programme". Coupled with this wasthe complete absence of any previous violent convictions for Mr Feleti.The same cannot be said for Mr Te Puni. He has a previous convictionfor male assaults female (and while I accept it is from 2015 and did not27 As mentioned above, deliberate attacks on the head is an aggravating feature of offending of thiskind (as outlined in R v Taueki, above n 14).merit any increase in the sentence, I do not accept counsel's submissionthat it was historic in nature. It does, in a way, show Mr Te Puni has ahistory, at least once, of offending violently).28 Further, Mr Te Punidoes not have an explanation for why he attacked Mr Crawford, acomplete stranger who he did not know. He offered no explanation forthe events leading up to the assault whatsoever. He cannot be said tobe doing anything to address the root of his violence. Mr Feletiexplained the conflict that had occurred between the work colleagues,and while his gross overreaction was wrong, it does provide someprospect of rehabilitation that is stronger than what can be said aboutMr Te Puni's offending.[49] For these reasons, I do not accept that the sentence in Mr Te Puni's case isirreconcilable with the sentence in Mr Feleti's case. The other cases referred to byMrs Wright do not, in my view, change the position. Each case must turn on its facts.In Mr Te Puni's case, the seriousness of the long-term injuries sustained byMr Crawford is an important matter and one the sentencing Judge was correct to placeweight on.[50] In Takerei v New Zealand Police, another case which Mrs Wright placedconsiderable emphasis on, home detention was refused in the District Court in a waythe High Court held that was in error.29 Thomas J held that the District Court Judgeappeared to be of the view that imprisonment was required, because Mr Takerei hadpreviously been sentenced to a community based sentence for similar offending andhad not been deterred. In reviewing the issue of home detention, her Honourhighlighted the following key features of Mr Takerei that made home detentionappropriate:(a) He had a suitable address, a supportive family and a supportiveemployer.28 He received nine months' supervision for this conviction. He breached the conditions of thissupervision twice and received two breach convictions as a result (in 2015).29 Takerei v New Zealand Police, above n 19.(b) His father had been diagnosed with terminal cancer and had somemonths to live, with Mr Takerei providing financial and personalsupport to his mother and sister for care of their father, and to his ex-partner in respect of their daughter.(c) He was 22 years old at the time of the offending and only had oneprevious conviction (albeit for similar offending).(d) Had not previously served a sentence of home detention orimprisonment and had no history of breaching Court conditions orsanctions.30(e) He was willing and able to address factors that contributed to theoffending and he had voluntarily put himself in counselling.31[51] A key feature of this case and in my view, a defining distinction, is that theharm caused to the victim was not permanent. He suffered no permanent braininjuries. Unlike Mr Te Puni's case, where Mr Crawford's life has changed as a resultof the permanent brain damage he has sustained.[52] Similarly, in Elizalde v New Zealand Police, while the single punch to the facedid break the victim's jaw in two places and required surgery, there was no long-termimpact. The injury was described as "moderate" by the Judge. In any event, homedetention does not appear to have been seriously considered because Mr Elizalde wasa foreign national and could not serve a home detention sentence in New Zealandbecause he had no address.Conclusion[53] By way of conclusion, it has not been established that the Judge made an errorin sentencing Mr Te Puni. Whether home detention should be substituted for30 Unlike Mr Te Puni who has a conviction for breaching bail (2018) and two convictions forbreaching the conditions of his supervision sentence (2015).31 Again, unlike Mr Te Puni who has not been able to identify the cause of his offending and thereforehas not taken steps to address it.imprisonment is an exercise of discretion. It involves an intensely factual evaluativeanalysis.[54] The starting point was clearly within the range and despite the literalavailability of home detention, in my view it would not have been an appropriateoutcome in this case. For these reasons, the appeal should be dismissed.Churchman JSolicitors:Burnard Bull & Co, Gisborne for AppellantCrown Solicitor's Office, Gisborne for Respondent