DAVIES v POLICE [2019] NZHC 2984

DAVIES v POLICE [2019] NZHC 2984 [15 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-319[2019] NZHC 2984BETWEEN TARQUIN DAVIESAppellantAND NEW ZEALAND POLICERespondentHearing: 11 November 2019Appearances: N Baier for the AppellantD Becker for the RespondentJudgment: 15 November 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 15 November 2019 at 1.00 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandPublic Defence Service, AucklandIntroduction[1] The appellant, Tarquin Davies, breached a protection order on two occasions.On the second occasion, he was on bail for the first breach. He pleaded guilty to eightcharges arising out of the events on those two occasions.[2] On 12 July 2019, Mr Davies, was sentenced to two years and two months'imprisonment by Judge Collins in the Auckland District Court on the followingcharges:1(a) contravention of a protection order (x2);2(b) wilful damage (x3);3(c) common assault;4 and(d) failing to answer District Court bail (x2).5[3] Mr Davies now appeals that sentence on the basis that the sentence wasmanifestly excessive on the grounds that:(a) the starting point was disproportionate and inconsistent with similaroffending;(b) there was insufficient adjustment to reflect the principle of totality;(c) the uplift for relevant previous convictions was excessive; and(d) insufficient credit was given for mitigating factors.1 Police v Davies [2019] NZDC 13668.2 Domestic Violence Act 1995, ss 19(1)(c), 49(1)(a) and 49(3). Maximum penalty: three years'imprisonment.3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months' imprisonment or a finenot exceeding $2,000.4 Section 9. Maximum penalty: six months' imprisonment or a fine not exceeding $4,000.5 Bail Act 2000, s 38. Maximum penalty: one year's imprisonment or a fine not exceeding $2,000.Background[4] On 2 February 2017, a final protection order was issued against Mr Davies infavour of the victim, his former partner.[5] The charges relate to two separate sets of offending.[6] First, on 8 July 2018, Mr Davies arrived at the victim's home address with hisbrother. An argument broke out between Mr Davies and the victim. Mr Daviesgrabbed the victim's cell phone and threw it against the concrete driveway five timesrepeatedly, causing the phone to smash. Mr Davies grabbed the victim by the arm andstarted to pull her up the road against her will. He released the victim and she returnedto her house. Mr Davies followed her, entering into the victim's property in an attemptto locate her. The victim asked Mr Davies to leave; he refused. The victim then raninto the bathroom of the house and locked herself inside for protection.[7] This event resulted in three charges: contravention of a protection order,common assault and wilful damage.[8] Secondly, on 24 November 2018, the victim and her new partner were asleepin the victim's bedroom. Mr Davies arrived at the victim's address at about 4.30 am.He approached the victim's bedroom window and punched it, causing glass to shatterover the victim's bedroom. As he was leaving the address, Mr Davies smashed thewindscreen, driver-side window and wingmirror of a motor vehicle belonging to thevictim's new partner.[9] This event occurred while Mr Davies was on bail for the offending on 8 July2018 and resulted in two charges of wilful damage and one charge of breach of aprotection order.District Court[10] On 12 July 2019, Mr Davies appeared before the District Court for sentencing.The Judge considered that the two charges of contravention of a protection order werethe lead charges for sentencing.6[11] The Judge adopted a starting point of 12 months' imprisonment for the first setof offending,7 and a starting point (or uplift) for the second set of offending of18 months' imprisonment.8 The Judge then made an adjustment to reflect the totalityof the offending, adjusting the end starting point from 30 months to 27 months'imprisonment.9[12] An uplift of six months was adopted to reflect Mr Davies' relevant previousconvictions, including offending against the same victim.10 There was a further upliftof two months for Mr Davies' failure to answer bail (being one month for eachfailure).11[13] This resulted in an end global starting point of 35 months' imprisonment.12[14] From that global starting point, the Judge allowed a discount of three monthsto reflect the time spent on restrictive bail conditions, and then a further six months toreflect the entry of early guilty pleas.13[15] The end sentence was two years and two months' imprisonment.Approach to appeals against sentence[16] An appeal against sentence is an appeal against a discretion. The first appealcourt must only allow the appeal if satisfied that:146 Police v Davies [2019] NZDC 13668 at [8].7 At [9].8 At [10].9 At [10].10 At [11].11 At [11].12 At [12].13 At [13].14 Criminal Procedure Act 2011, s 250(2).(a) there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[17] Thus, the appeal court "does not just start afresh or simply substitute its ownopinion for that of the original sentence".15 In assessing whether an alleged error is ofthe requisite character, it will be helpful to consider whether the error is material.16This will involve establishing that the sentence is manifestly excessive or wrong inprinciple or that there are exceptional circumstances.17 Despite s 250 of the CriminalProcedure Act 2011 making no express reference to "manifestly excessive", thisprinciple is "well-engrained" in the court's approach to sentence appeals.18 A sentencewill be manifestly excessive if it is substantially or significantly more severe than itought to have been, having regard to the seriousness of the offending and theculpability of the offender.19[18] The focus is on the end sentence rather than the process adopted to reach theend sentence.20 If the end sentence is within range, an appeal court will not tinker withit, unless there are exceptional circumstances such an arithmetical error.Was there an error in the sentence?[19] First, I consider whether there was an error in the sentence imposed. Sucherrors may include where the sentence was inappropriate in the particular case orwhere the sentence involved an error of law or principle.21 I consider each of the fourgrounds of appeal under this first part. Secondly, if there was an error, was that errorsignificant? In other words, should another sentence have been imposed — was thesentence manifestly excessive or otherwise not justified by the relevant sentencingprinciples?2215 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].16 At [30].17 At [31].18 At [33]–[35].19 At [33] and [35].20 At [36]; and Ripia v R [2011] NZCA 101 at [15].21 See Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, ThomsonReuters) at [CPA250.01].22 Ripia v R [2011] NZCA 101 at [15].Starting point disproportionate and inconsistent with similar offending?[20] Ms Baier, for Mr Davies, submits that the global starting point of 30 months'imprisonment taken for two sets of offending was too high in the circumstances. Shesubmits, with reference to similar cases, that the global starting point for both sets ofoffending should each have been within the range of 12 to 16 months' imprisonment.[21] There is no tariff case for offending of this type. Sentences for breaches ofprotection orders vary to a large extent and comparing one case to another is difficult,given the offending is always highly contextual.23[22] While acknowledging those propositions, Ms Baier refers the Court to threecases, which she submits are factually similar.24 Each of those cases, like the presentcase, involved two sets of incidents. The first incident involved the offender visitingthe victim's house, getting into an argument with the victim, being asked to leave bythe victim and refusing to leave. The second incident involved the offender, while onbail for the first incident, returning to the victim's house and a further argumentbreaking out. The starting points were: eight months for each set of offending, servedcumulatively;25 15 months for each set of offending, served concurrently;26 and fourmonths for the first incident and an uplift of two months for the second incident.27[23] A summary of each of those cases is as follows:(a) Mataiti v Police: The appellant pleaded guilty to two charges of breachof a protection order and one charge of wilful damage. The breachesarose out of two separate incidents on 10 October 2013 and 20 March2014. On the first occasion, Mr Mataiti was at the victim's house. Thevictim went inside for a cigarette; Mr Mataiti followed, demanding acigarette as well. She refused. They argued. Mr Mataiti was asked toleave; he refused. Instead, he went inside the house and slammed the23 Jackson v Police [2019] NZHC 281 at [41].24 Mataiti v Police [2014] NZHC 1675; Crean v Police [2015] NZHC 3203; and Reid v Police [2015]NZHC 299.25 Mataiti v Police [2014] NZHC 1675.26 Crean v Police [2015] NZHC 3203.27 Reid v Police [2015] NZHC 299.door. Again, the victim told him to leave; he refused. The victim wentto call the Police in the bathroom. Mr Mataiti followed her, yelled ather and hit the door, causing a hole. He left when the victim called thePolice. On the second occasion, Mr Mataiti was on bail for the firstincident. He arrived at the victim's home; she agreed that they wouldgo and watch their son's rugby game together. When they returnedhome, a heated argument ensued. Mr Mataiti refused to leave andpushed the victim. She pushed back. The neighbours called the Police.On appeal, this Court upheld Mr Mataiti's sentence of eight months foreach set of offending, to be served cumulatively. With a 25 per centdiscount, the end sentence was 12 months' imprisonment.(b) Crean v Police: The appellant pleaded guilty to two charges of breachof a protection order and one charge of breach of release conditions.The first breach involved Mr Crean consuming alcohol with the victimat the victim's home. The two began to argue. The victim askedMr Crean to leave; he refused. The victim left the address and calledthe Police. Mr Crean was found hiding under the victim's bed. Thesecond breach, which occurred nine days later, similarly involvedMr Crean drinking alcohol with the victim at her house. Again, herefused to leave despite being asked to. He then began following thevictim when she started walking down the road. They continued toargue, and the victim told Mr Crean to go away. The victim ultimatelylocked herself in a public toilet and waited for the Police.On appeal, this Court considered the appropriate starting point was thatof 15 months' imprisonment for each charge, to be served concurrently.(c) Reid v Police: The appellant pleaded guilty to two charges of breach ofrelease conditions and one charge of breach of a protection order.There were two incidents. First, on 28 July 2014, Mr Reid went to thevictim's house. He had been released on release conditions threemonths prior, which included a condition not to associate with thevictim, his former partner. He remained at her house for around24 hours. The next day, they got into an argument. As she went to useher phone, Mr Reid grabbed it and threw it against the wall, causing itto break. As the victim was unable to call the Police, she ran out of thehouse. Mr Reid chased her. Secondly, when Mr Reid was on bail forthe first set of charges, he returned to the victim's house and remainedthere for around three days. A number of incidents occurred during thistime leading to further charges being laid, including breach of aprotection order.On appeal, this Court considered that an appropriate starting point wasthat of four months' imprisonment for the first incident and an uplift oftwo months to reflect the subsequent offending.[24] Ms Baier accepts that the present case is more serious in that there are morecharges, including that of common assault. Accordingly, she submits that a slightlyhigher starting point is justified in this case, namely a global starting point of 12 to16 months' imprisonment for the two sets of offences.[25] In reply, the Crown submits that, in assessing the gravity of the offending, theCourt must be guided by the specific objectives of the Domestic Violence Act 1995.This includes ensuring that there is effective legal protection for victims as well assanctions and enforcement when there are breaches.28[26] The Crown also refers to a number of cases.29 In relation to the first breach,The Crown refers the Court to Mitchell v R (2015).30 In that case, the Court of Appealconsidered that an eight month starting point was at the top of the range for protectionorder breaches involving four voice messages that the appellant had recorded on thecomplainant's voicemail inbox.28 Domestic Violence Act 1995, ss 5(1)(b) and 5(2)(e).29 Mitchell v R [2015] NZCA 442; Cooke v Police [2014] NZHC 3224; Wiringi v Police [2014]NZHC 3214; Mitchell v R [2013] NZCA 583; and Iyer v Police [2017] NZHC 353.30 Mitchell v R [2015] NZCA 442.[27] In Cooke v Police, the appellant breached four protection orders in relation totwo victims.31 He went to the house of the first victim. He drove down her drivewayand spoke to her. She called for her husband to come outside. There was aconversation between the parties. The appellant was asked to leave. The victim wentinside. The appellant remained for a further five minutes. The Police were called.The judgment refers to the victim impact statement in which it is stated that the victimlived in fear of the appellant.[28] In that case, in relation to the second victim, over a period of a month, theappellant contacted her by phone on several occasions. On one occasion, he contactedthe victim's son by phone and said he was going to get his friends in the "Heads" tovisit her. The obvious inference is that was a reference to the Head Hunter gang. Astarting point of nine months' imprisonment was taken for the three breaches againstthe second victim and uplifted by a further six months for the breach against the firstvictim. The sentence was upheld on appeal. (I note that the maximum penalty at therelevant time was two years' imprisonment).[29] In Wiringi v Police, the appellant's partner had obtained a final protection orderagainst the appellant just over three months before the offending occurred.32 Theappellant and the victim were both at an address which apparently they shared. Theappellant returned home extremely intoxicated; she asked him to leave due to hisaggressive behaviour. He became angry and punched the wall and yelled at herabusively. He refused to leave, and she became frightened. He pulled a number ofposters from the wall. She continually asked him to leave. He refused and yelled,"You just get the fucking police". She ran to a neighbour's address. When the Policearrived, he was still at the address. The High Court considered the appropriate startingpoint to be six months' imprisonment.[30] The Crown submits that the first breach is more serious than (the 2015)Mitchell and the offending in relation to the first victim in Cooke, where starting pointsof eight and nine months respectively were adopted, and also more serious thanWiringi.31 Cooke v Police [2014] NZHC 3224.32 Wiringi v Police [2013] HZHC 3214 (another pre-amendment case).[31] The Crown submits that an 18 month starting point for the second incident iscomparable to Mitchell v R (2013).33 That case involved Ms Mitchell leaving twoabusive phone messages an hour before she arrived at the victim's house close tomidnight. She brought a tyre iron and proceeded to walk around the house, smashingmost of the accessible windows. She smashed a large glass panel on the front doorwhich allowed her to enter the house. Once inside, she threatened the victim. TheCourt of Appeal confirmed a starting point of 18 months.[32] However, it is notable that in the five years since the protection order had beenobtained, there had been nine previous breaches. The Court referred to the appellant'sconduct over the five and a half years in which the protection order had been in placeas "extraordinary".34 The Court stated that:[14] We start with our assessment of the culpability of the breach ofprotection order. We consider that a starting point of 18 months' imprisonmentwas warranted, despite its proximity to the maximum term of two years [nowthree years]. We take that view because this was a wilful and terrorisingbreach of the protection order, made the more serious because it was the latestin a continuing pattern, and committed in the face of a stern judicial warning that Ms Mitchell's offending against the victims had reached a serious head.This was, in terms of s 8(d) of the Sentencing Act, a most serious case of itstype, warranting that proximity.(footnotes omitted)[33] As is apparent from the passage quoted above, the 18 month starting point wasadopted and approved at a time when the maximum penalty was two years.[34] The Crown also relies on Iyer v Police, where this Court considered that astarting point of 30 months was warranted for a single breach of a protection order.35There, Mr Iyer arrived at the victim's home uninvited in the very early hours of themorning. He appeared intoxicated. Despite being told repeatedly to leave, he enteredthe house. He insisted on talking to the victim despite her protestations. Mr Iyerpicked up a stereo from inside the house and threw it out the door onto the lawn,causing it to break. The victim's son was awoken. The victim then called the Police.The victim heard a banging noise outside and discovered that her car windscreen had33 Mitchell v R [2013] NZCA 583.34 At [13].35 Iyer v Police [2017] NZHC 353.been smashed. In upholding the 30 month starting point, the Court noted that this wasMr Iyer's sixth breach of the protection order in relation to the victim and hisseventeenth breach of a protection order since 1997.[35] In my view, the cases of (the 2013) Mitchell and Iyer cited by the Crown aredistinguishable. When sentencing for breach of a protection order, the courts haveconfirmed that prior convictions for breaching protection orders are integral to theassessment of the gravity of the index offending.36 That is evident in the courts'reasoning in both Mitchell and Iyer. But here, Mr Davies had no previous convictionsfor breach of a protection order.[36] In the present case, the key features of the offending on 8 July 2018 were, first,a degree of premeditation with Mr Davies arriving at the victim's home with hisbrother. Then there was threatening and intimidating behaviour together withdestruction of property and actual violence. After smashing the victim's cell phone,when the victim went inside her home, Mr Davies followed her in.[37] In relation to the offending on 24 November 2018, there was again an elementof premeditation. Mr Davies went to the victim's home, this time at around 4.30 am.On this occasion, Mr Davies was on bail for the earlier offence committed on 8 July2018. While there is always an element of vulnerability inherent in a victim beingclassified as a protected person under a protection order, by arriving at 4.30 am whenthe victim and her partner were asleep in bed and in smashing the bedroom window, Iconsider this gives rise to an added element of vulnerability on the part of the victim.On this occasion, there was also threatening and intimidating behaviour anddestruction of property.[38] Taking the two sets of offending together, I consider that the offending is moreserious than Mataiti, Crean, and Reid. However, I consider that the Judge, in addingthe starting points for both sets of offending together (12 months and 18 months),arrived at a global starting point which was too high (even taking into account thethree months reduction), which resulted in a sentence which was manifestly excessive.36 Jackson v Police [2019] NZHC 281 at [43]; Carlon v Police [2017] NZHC 2526 at [20];Crean v Police [2015] NZHC 3203 at [16]; and Mitchell v R [2013] NZCA 583 at [12].[39] Section 85 of the Sentencing Act 2002 provides for the principle of totality. Ifcumulative sentences are imposed, they must not result in a total period ofimprisonment wholly out of proportion to the gravity of the overall offending.37 Ifconcurrent sentences are imposed, the most serious must receive the penalty that isappropriate for the totality of the offending.38 Ultimately, when sentencing for severaloffences, the court must not only consider each offence individually, but must alsoassess the offender's overall culpability and determine the appropriate sentence for thetotality of the offending.39[40] Section 84 of the Sentencing Act provides guidance on the use of cumulativeand concurrent sentences of imprisonment:(1) Cumulative sentences of imprisonment are generally appropriate ifthe offences for which an offender is being sentenced are different inkind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if theoffences for which an offender is being sentenced are of a similar kindand are a connected series of offences.(3) In determining for the purpose of this section whether 2 or moreoffences committed by 1 offender are a connected series of offences,the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.[41] Whilst the two sets of offending are separated by around four and a halfmonths, in my view, the overall nature of the offending is of a related kind. They areboth breaches against a protection order, the victim is the same and the breaches areof a similar kind, namely Mr Davies visiting the victim's house. Concurrent sentencesare therefore appropriate.[42] I take the second breach of the protection order as the lead offence, havingregard to the fact that it was committed while Mr Davies was on bail as referred to37 Sentencing Act 2002, s 85(2).38 Section 85(4).39 R v Bradley [1979] 2 NZLR 262 (CA).above and having regard to the other conduct on that occasion. In my view, havingconsidered the cases the Court has been referred to, a preliminary starting point of16 months' imprisonment for the second breach is appropriate in the circumstances.[43] I would impose an uplift of three months' imprisonment to reflect the firstbreach on 8 July 2018, resulting in a starting point of 19 months' imprisonment.Insufficient adjustment to reflect the principle of totality?[44] Ms Baier submits that the 10 per cent, or three month, adjustment downwardsto reflect the totality of the offending was insufficient. She also submits that, shouldthis Court consider that the proper approach is the imposition of concurrent sentences,then a discount for totality may not be required as it would have already been takeninto account when determining the starting point.[45] That is the approach I have adopted.Excessive uplifts for relevant previous convictions?[46] The sentencing Judge gave an uplift of six months for Mr Davies' relevantprevious convictions against the same victim for:(a) assault with a blunt instrument (13 October 2017);(b) common assault (13 October 2017); and(c) male assaults female (13 October 2017).[47] Ms Baier submits that the uplift is excessive. She submits that, whilst theprevious convictions are relevant, as the Court of Appeal has stated, uplifts should notbe imposed as a matter of course or where there is a risk of double punishment.40 Shesubmits that an uplift in the range of two to four months is appropriate.40 Beckham v R [2012] NZCA 173 at [84].[48] In Crean v Police, Brewer J, considering the sentence afresh on appeal, tookinto account the offender's previous convictions for breaching protection orders insetting the starting point. He then proceeded to give a further uplift of four months forthe offender's other relevant previous convictions, including three previousconvictions for male assaults female, one for common assault and another for failureto answer bail.41 Also, this Court in Reid v Police adopted an uplift of two months forMr Reid's previous convictions, which included assaulting his partner, breaching theprotection order and offending while on bail.42[49] In this case, whilst Mr Davies does not have a previous conviction for breachof a protection order, he does have a conviction in October 2017 for common assault,male assault female and assault with a weapon against the victim and a conviction in2016 for wilful damage to property of the victim.43 An uplift was thereforeappropriate. It is the amount of uplift that is in issue.[50] The Crown accepts that a six month uplift was excessive. I also agree, havingregard to the two cases referred to in [48] above. Four months is appropriate.Insufficient credit for mitigating factors?[51] Ms Baier submits that insufficient credit was given for the mitigating factorsof reparation made and Mr Davies' prospects of rehabilitation. She submits that adiscount of five to 10 per cent should be given for reparation (indicating remorse) andthat a discount for rehabilitation "may" be warranted.[52] First, as to reparation, Mr Baier says that prior to sentencing, Mr Davies paidto the victim the cost of her damaged cell phone.[53] Section 9(2)(f) of the Sentencing Act provides that the court must take intoaccount any remorse shown by the offender or anything described in s 10 of the Act.Section 10(1)(a) provides that the court must take into account any offer of amends,41 Crean v Police [2015] NZHC 3203 at [21].42 Reid v Police [2015] NZHC 299 at [13].43 Police v Davies [2019] NZDC 13668 at [6].whether financial or by means of the performance of any work or service made by, oron behalf of, the offender to the victim.[54] Genuine remorse is a mitigating factor and warrants a discount separate fromthe guilty plea.44 The voluntary making of reparation may be material evidence ofremorse.45 However, reparation is likely to be given significant weight only to theextent that it represents a genuine effort by the offender to accept responsibility for theoffence and put things right.46 The Judge must be satisfied of the genuineness of theremorse.[55] The Provision of Advice to the Court (PAC report) provided for sentencingdoes not address the issue of remorse (either the presence of or lack of). As to thecell phone, the PAC report records Mr Davies' claim that he had paid reparation forthe damaged cell phone but goes on to say this was not verified.[56] There is a letter dated 6 October 2018 written by the complainant which states:Tarquin has now paid me back the full cost of my phone which was giventhrough his brother [57] I consider little or no reliance can be placed on that statement as, in the previoussentence, the complainant said:Tarquin Davies did not assault me and that [sic] I do not feel threatened byhim.[58] As is already apparent from this judgment, Mr Davies pleaded guilty to theassault charge. In all those circumstances, I do not consider the Judge made an errorin not giving a discount for remorse.[59] Secondly, as to rehabilitation, Mr Davies is 23 years old. The Court of Appealhas recognised that young people have greater capacity for rehabilitation.47 The44 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Williams v R [2012] NZCA 176.See also s 9(2)(f) of the Sentencing Act 2002.45 See s 10(1)(a) of the Sentencing Act 2002.46 R v Singh (2003) 20 CRNZ 158 (CA).47 Churchward v R [2011] NZCA 531 at [77].sentencing Judge did in fact consider Mr Davie's prospects of rehabilitation. TheJudge commented that:[14] It gives me absolutely no joy sending a man of 23 to prison but atyour age and the offending that you have committed in the past leaves me nodoubt that that is the appropriate outcome. There is no discount today foryouth because you have well and truly expended the credit for that. [And]previous rehabilitative sentences did nothing to deter you from offending. (emphasis added)[60] Mr Davies has previously been sentenced to community work, supervision,intensive supervision, community detention and home detention. I consider that, givenMr Davies previous offending, it cannot be said that the sentencing Judge erred in notgiving credit for Mr Davies' prospect for rehabilitation (and/or his youth).[61] Since sentencing, Mr Davies has been offered a place at Mana Atua CharitableTrust, a 24-hour curfew residential care facility, which is in partnership with the "ManUp" programme. There is a letter of 18 October 2019 from the Mana Atua CharitableTrust attaching details of the programme. In summary, the programme is said to offera supportive, safe and healthy environment for offenders who have chosen to betterthemselves by taking responsibility for their past actions. Conditions of entry into theresidential recovery include a minimum stay of four months.[62] I am prepared to accept the information about the Trust and the offer of a placeat the Trust as fresh evidence on appeal.48[63] The PAC report refers to the key factors as contributing to Mr Davies' currentoffending are: his use of alcohol, relationship difficulties, propensity for violence andoffending supportive attitude presented as his poor problem solving skills andlack of consequential thinking. He acknowledged the assessment andadmitted to being under the influence of alcohol at the time of the offending[which] occurred in Henderson and his on-going relationship issue with thevictim. At the interview, he expressed his intention to cease all alcohol useand agreed to engage in any programmes to prevent him from furtheroffending.48 See Criminal Procedure Act 2011, s 335.[64] In the absence of the new information, now available to this Court, and withthe background of Mr Davies' continuing offending against the victim, it isunderstandable that the District Court Judge did not place any weight on Mr Daviesprotestations or promises as recorded in the PAC report and accordingly gave him nocredit for rehabilitative prospects.[65] With the further information now available to this Court, on appeal, I considerthat a minor allowance of one month should be given for rehabilitative prospects.Restrictive bail conditions[66] The sentencing Judge gave a discount of three months for time spent onrestrictive bail terms. Mr Davies did not dispute that on appeal.[67] However, Mr Becker, for the Crown, submits that if the Court were of the viewthat reparation and rehabilitation do warrant a credit, then any such credit is balancedby the fact that Mr Davies received a discount of three months for restrictive bailconditions. Mr Becker correctly points out that any sentencing credit is derivedthrough compliance with those bail conditions rather than simply their imposition andthat the Court of Appeal has declined to recognise the impact of restrictive or EM bailconditions where the offender has a record of a breach.49[68] I accept that the discount of three months was generous, but it was within theJudge's discretion to give such a discount. Additionally, I propose to make only aminor adjustment by way of credit for rehabilitative prospects.Result[69] A preliminary starting point of 16 months' imprisonment for the secondbreach of protection order is appropriate.[70] An uplift of three months' imprisonment, to reflect the first breach on 8 July2018, results in a starting point of 19 months imprisonment.49 R v Bidois [2009] NZCA 426 at [11]–[15] and [18]–[19].[71] The further two months uplift given for the two failures to answer bail was notdisputed. This bring the sentence to a sentence of 21 months' imprisonment.[72] Consistent with the decision of Crean v Police, I would give an uplift of fourmonths imprisonment for the previous convictions for offences committed againstthe victim. This results in a sentence of 25 months' imprisonment.[73] A modest discount of one month's imprisonment for prospects ofrehabilitation is warranted, resulting in a sentence of 24 months' imprisonment.[74] The discount of three months' imprisonment for restrictive bail conditionsremains. That brings the sentence to one of 21 months' imprisonment.[75] The discount for guilty pleas was not disputed on appeal. The Judge applied asix month discount for that purpose. Six months as a percentage of 32 months (thesentence imposed in the District Court after taking into account all personal mitigatingfactors) is approximately 20 per cent. Applying a 20 per cent discount to 21 months'imprisonment results in a five month discount (rounded up in Mr Davies' favour),bringing the end sentence to one of 16 months' imprisonment.[76] The sentence of two years and two months' imprisonment is quashed, and asentence of 16 months' imprisonment is substituted for breaching the protectionorder on 24 November 2018.[77] The sentences on the other charges are also quashed and the followingsentences are substituted: for the earlier breach of protection order on 8 July 2018, aconcurrent sentence of nine months' imprisonment; for male assaults female, aconcurrent sentence of two months' imprisonment; for intentional damage of theiPhone, one month's imprisonment; for intentional damage of the vehicle one month'simprisonment; for intentional damage of the bedroom window, one month'simprisonment; reparation $200; and one month's imprisonment on each of the twocharges of failing to answer court bail — all concurrent.Home Detention[78] A sentence of home detention is therefore available. Ms Baier seeks leave fora sentence of home detention to be substituted. The proposed address is different fromthe address which had previously been proposed and which was assessed as suitablein the PAC report. Ms Baier submitted that in the event that this Court were to allowthe appeal the appropriate course would be for the matter to be remitted to the DistrictCourt for the sentencing Judge to consider whether a sentence of home detentionshould be substituted.[79] I therefore remit this matter to the District Court for the sentencing Judge toconsider whether a sentence of home detention should be substituted.[80] For that purpose I direct a probation officer to prepare a further pre-sentencereport in accordance with s 26A(2) of the Sentencing Act.___________________________________Gordon J