R v ORMSBY-TURNER [2023] NZCA 601

Redacted VersionR v ORMSBY-TURNER [2023] NZCA 601 [29 November 2023]NOTE: NO PUBLICATION OF THE YOUTH COURT PROCEEDINGSREFERRED TO IN THIS JUDGMENT IS PERMITTED UNDER S 438 OFTHE ORANGA TAMARIKI ACT 1989, EXCEPT WITH LEAVE OF THECOURT THAT HEARD THE PROCEEDINGS, AND WITH THEEXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL ORTECHNICAL NATURE THAT TO DO NOT INCLUDE THE NAME(S) ORIDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, ORTHE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CAREOF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THECHILD OR YOUNG PERSON WAS OR IS ATTENDINGIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA445/2023[2023] NZCA 601BETWEEN THE KINGAppellantAND TANA ORMSBY-TURNERRespondentHearing: 6 November 2023Court: Katz, Mander and Osborne JJCounsel: I S Auld and T C Didsbury for AppellantK R Pascoe and S Hunt for RespondentJudgment: 29 November 2023 at 10.00 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence on appeal is granted.B The appeal is allowed.C The sentence of 12 months' home detention is set aside and substitutedwith a sentence of two years and 10 months' imprisonment.D Mr Ormsby-Turner must surrender himself to the Prison Director atMt Eden Corrections Facility (or such other location as may be directedby Corrections in writing) to commence his sentence of imprisonment by2.00 pm on Friday 1 December 2023. The current sentence of homedetention is to continue in effect until that time.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Table of ContentsPara NoIntroduction ......................................................................................................... [1]Application to admit further evidence on appeal ............................................. [6]The offending ....................................................................................................... [7]Further background.......................................................................................... [18][Redacted] [18]Events in the lead-up to sentencing for the present offending [20]Sentencing decision ........................................................................................... [30]Was the starting point too low?........................................................................ [36]Was the discount for time spent on EM bail within the available range?.... [43]Were the discounts for cultural and personal background, remorse,youth, and rehabilitative potential within the available range? ................... [48]Personal and cultural background [50]Remorse [62]Youth [68]Rehabilitative prospects [73]Conclusion as to the appropriate discount for personal mitigating factors [83]Conclusion as to the appropriate sentence ...................................................... [87]The appropriate appellate response ................................................................ [89]Result .................................................................................................................. [97]Introduction[1] Tana Ormsby-Turner (Tana) and his older brother Turanganui JohnOrmsby-Turner (TJ) attacked a prospect for a rival gang, Rei Marshall. TJ stabbedMr Marshall once in the torso with a large hunting knife. Tana struck Mr Marshall onthe head multiple times with a hammer, fracturing his skull.[2] Tana and TJ were initially both charged with murder. After pathology findingsrevealed that the knife wound had caused Mr Marshall's death, the murder chargeagainst Tana was withdrawn. Tana then pleaded guilty and was convicted in theHigh Court of one charge of wounding with intent to cause grievous bodily harm1 andone charge of being an accessory after the fact to murder.2 Cooke J sentenced Tana to12 months' home detention.3 Tana is now 17 years of age and was 16 at the time ofthe offending.[3] TJ pleaded guilty to Mr Marshall's murder. He was sentenced to lifeimprisonment with a minimum period of imprisonment of 10 and a half years.4[4] With the consent of the Solicitor-General, the Crown appeals Tana's sentenceon the basis that it is manifestly inadequate and wrong in principle.5 The key issuesraised by the appeal are:(a) whether the starting point of seven and a half years' imprisonmentadopted by the Judge adequately reflects the seriousness of theoffending and Tana's culpability;(b) whether the discounts applied for guilty pleas, time spent onelectronically monitored bail (EM bail), youth, prospects ofrehabilitation, remorse and cultural factors were excessive or wrong inprinciple; and(c) whether the end sentence adequately reflects the seriousness of theoffending.[5] Because this is a Crown appeal, the accepted approach is that the sentence willonly be increased if it is manifestly inadequate or based upon a wrong principle. TheCourt will be reluctant to interfere with the sentence if this would cause injustice tothe offender. Further, if the appeal is allowed, the sentence should only be increased1 Crimes Act 1961, s 188(1).2 Sections 71 and 176.3 R v Ormsby-Turner [2023] NZHC 1817 [Sentencing notes].4 R v Ormsby-Turner [2023] NZHC 406.5 Criminal Procedure Act 2011, s 246(1) and (2).to the level which accords with the lowest range of appropriate sentences for therelevant offending.6Application to admit further evidence on appeal[6] The Crown seeks leave to adduce further evidence on appeal in the form oftwo affidavits by employees of the Department of Corrections. The first affidavitconcerns events which occurred after Mr Ormsby-Turner was sentenced. It recordsthat Mr Ormsby-Turner enquired about having items held by police returned to him,including his Mongrel Mob patch. We are satisfied that this affidavit is fresh, credibleand cogent and we admit it accordingly. The second affidavit concerns theDepartment's approach to managing young people who are serving sentences ofimprisonment. This affidavit is credible and cogent, but not fresh. The Crown hasprovided a reasonable explanation, however, as to why that evidence was not providedto the sentencing Court. We therefore admit that affidavit also.The offending[7] The following summary of the offending is largely based on the policesummary of facts (which was agreed for sentencing purposes) and the description ofthe offending in the sentencing notes.[8] At the time of the offending, TJ was president of the West Coast chapter of theMongrel Mob and Tana was a prospect for the gang. A third co-offender,Hamiora Laupama (who was convicted of being an accessory after the fact to murder),was also a patched Mongrel Mob member.[9] Mr Marshall, who was aged 23 at the time of his death, was a young father.He was also a prospect of the rival Uru Taha gang. One of Mr Marshall's familymembers, however, was a member of the Mongrel Mob. On 3 August 2023,Mr Marshall arrived, together with that family member, at the family member'sresidence. Tana, TJ and Mr Laupama were sitting outside the address in a vehicle, asthey had come to pick up Mr Marshall's family member to go and "tax" someone who6 McCaslin-Whitehead v R [2023] NZCA 259 at [29]–[32].owed TJ money. (Gang taxing is a form of extortion and/or retribution, often involvingthe violent taking of property or money from a victim in lieu of payment of allegeddebts.) TJ and Tana became agitated when they saw Mr Marshall arrive at the addressdue to his affiliation with the Uru Taha gang and the fact there had been issues betweenthe Uru Taha gang and the Mongrel Mob.[10] Tana and Mr Laupama went into the house to pick up Mr Marshall's familymember. While inside, Tana was handed a bag containing a semi-automatic shotgunand a semi-automatic high-powered rifle. He then left the house via a back door.Mr Laupama left the house through the front door.[11] Meanwhile, Mr Marshall was going in and out of the house putting food intohis car which he was going to take to his mother. He crossed paths with Mr Laupamaoutside and they exchanged words. Mr Marshall and Mr Laupama walked towardsone another, and Mr Marshall took a swing at Mr Laupama, but missed.[12] TJ was initially behind Mr Marshall but moved to a position in front of himand stabbed him once in the torso with a large hunting knife. There is no evidencethat Mr Marshall tried to fight back. Rather, he screwed up his face in pain, held hisside, and moved backwards.[13] Tana, who was armed with a hammer, then attacked Mr Marshall, striking himmultiple times on the head. Based on Mr Marshall's injuries (which were to the backof his head) we assume that he was likely attacked from behind. Mr Marshall fell tothe ground, but Tana continued to assault him with the hammer.[14] Mr Marshall's family member came out of the house and intervened to stop theattack. He and Mr Marshall's partner then drove Mr Marshall to hospital, butMr Marshall was pronounced dead not long after arrival.[15] Meanwhile, TJ instructed Mr Laupama and Tana to get rid of their vehicle andseveral items, including Mr Marshall's hat and TJ's knife. They did so, throwing theitems into a stream. TJ, Tana and Mr Laupama subsequently removed the clothingthey had been wearing, which Tana then took outside and burned. They also dumpedthe bag containing the firearms, hid the vehicle they had been in, and took steps tocoordinate their stories. TJ was bragging about how he had stabbed Mr Marshall, andTana was bragging about how he had hammered him.[16] Pathology findings confirmed that Mr Marshall died because of the stab woundinflicted by TJ. In relation to the injuries caused by Tana's assault with a hammer, thefindings were that:The head injuries inflicted by Tana involve multiple lacerations to the back ofthe head of the deceased and two fractures; one to the inner table, rightoccipital bone and the other a basal skull fracture. There was also blunt forcetrauma to the right neck with associated subcutaneous haemorrhage.The fractures to the base of the skull of the deceased, in themselves can beresponsible for death. However, the deceased did not suffer a "severe" basalskull fracture (ie on both sides which would have caused a "hinge" fracture)which are easily identifiable as causing death. The stains that had been takenfrom the deceased's brain show no positive beta-APP staining, which meansit is equivocal as to whether the head injuries would have caused death inisolation from the fatal stab wound.In the scenario we have in this case, it is likely that the short period of timebetween the injury and death did not allow the changes to occur in the brainthat would have picked up beta-APP stains.It is entirely possible that the head injuries did contribute to death, as injurieslike this have been known to result in death. However, it is entirely possiblethat they did not contribute to death, as injuries like this are also known to besurvivable.[17] In summary, Mr Marshall died relatively quickly from the stab wound.While it is possible that the head injuries inflicted by the hammer could havecontributed to his death, this is no more than a possibility. The murder charge wastherefore appropriately withdrawn. If Mr Marshall had not suffered a fatal stab wound,it is not known whether his head injuries would have resulted in death, but it is possiblethat they would have.Further background[Redacted][18] [Redacted][19] [Redacted]Events in the lead-up to sentencing for the present offending[20] On 12 September 2022, Tana was granted electronically monitored (EM) bail.Tana pleaded guilty in December that year. One of the original conditions of Tana'sbail was "[n]ot to associate or have contact directly or indirectly with other person/snamely any gang members." Subsequently, on 17 April 2023, the relevant bailcondition was amended to "[n]ot to associate or have contact directly or indirectly withthe co-offender/s namely any gang members."[21] A Provision of Advice to Courts report (PAC report) was prepared on3 March 2023. It assessed Tana as being at medium risk of reoffending "given he isclearly [being] influenced by older members of his family", and as being at a high riskof harm to others. The offending-related factors were identified as peers andassociates, and violence. The report writer noted that Tana had complied with hisEM bail and that this indicated "he is capable of complying with a sentence of HomeDetention". The Report further noted that a co-offender had received a sentence ofhome detention (presumably Mr Laupama, who was not a participant in the assault,and was only convicted of being an accessory after the fact) and also noted Tana's age,before recommending a sentence of home detention.[22] On 14 March 2023, Tana spoke to TJ over the telephone twice. As TJ was inprison, his phone calls were being recorded by the Department of Corrections.The phone calls reveal that Tana had recently received a Mongrel Mob back tattooand, further, that he had been associating with various gang members including theperson who had tattooed him; other "dogs" who commented on his tattoo; aMongrel Mob member who left to start up a new chapter; and a patched member hesaw at the gas station. It is apparent from the content of the discussions between TJand Tana that Tana was committed to continuing his involvement with theMongrel Mob and is deeply immersed in gang culture. Indeed, it can be inferred thatTana may have earned elevated status in the gang because of his offending. Tana'sparents were both present for at least parts of the phone calls.[23] A report on Tana's personal background was prepared by Dr Jarrod Gilbert,Dr Ben Elley, Rose O'Connor and Danielle Moore in April 2023, pursuant to s 27 ofthe Sentencing Act 2002 (the s 27 report). The s 27 report stated, based on informationprovided by Tana, that Tana had now left the Mongrel Mob gang and that he told thereport writers that:It turns out I'm just lucky. I left before I was eventually patched. Becauseprospects get to leave a lot easier than patched members. They're real hardout on their leaving. They find it quite offensive. I'm just lucky I got outbefore it got any worse.[24] Tana further told the report writers that he did not have tattoos, gang ornon-gang related, as he was scared of tattoo guns. He said that his brother TJ was rightwhen he had said gang life is not for him (Tana). Tana told the report writers that theoffending had changed him for the better, as he was now intent on leading a gang-freeand more prosocial life.[25] A psychological report was prepared by Dr James Knight on 19 April 2023.Tana also told Dr Knight he had ended his association with the Mongrel Mob.He elaborated, in quite specific terms, by stating that: "The Mob said they would billme $13,000 for leaving, and I had to take a hiding as well." Tana told Dr Knight,however, that he was "happy with his decision to leave the Mongrel Mob".Tana further reflected that:It's been a shit journey, but I feel like I can be myself now, I thought I couldbe like my big brother, but we are completely different people, he went waydeeper into that life than me.Tana's mother supported Tana's account, telling Dr Knight that: "The Mob don't knowwhere Tana is at the moment, but I'm worried what will happen if they find out."[26] Not long afterwards, on 8 May 2023, Tana became a fully patched member ofthe Mongrel Mob. As the Judge noted, this may have been a consequence of thecurrent offending.7 Tana was living at his family home, on EM bail, at the time.[27] A further PAC report was prepared on 26 June 2023. The report recorded thatOranga Tamariki had advised that Tana had been fully compliant with his bail7 Sentencing notes, above n 3, at [38].conditions since he was released on EM bail on 12 September 2022. A sentence ofhome detention was again recommended.[28] The following day, 27 June 2023, police executed a search warrant atTana's EM bail address as a result of information received. They seized two vests withMongrel Mob patches, and a t-shirt and two sweatshirts with Mongrel Mob insigniaon them, from Tana's wardrobe. The police also took photographs of Tana'sMongrel Mob full back tattoo.[29] Following the police search, defence counsel obtained a further report fromDr Knight (dated 11 July 2023). Dr Knight acknowledged it was possible that Tanahad lied to him when he had claimed to have left the Mongrel Mob. Dr Knight noted,however, that this did not invalidate everything Tana had told him.Sentencing decision[30] The Judge commenced the sentencing process by referring to Goddard J'sminority concurring decision in Diaz v R,8 where Goddard J observed that, althoughthe sentence appeal in that case was being allowed on the basis of a conventionalsentencing approach, a possible alternative approach to youth sentencing would be asfollows:9... the court should begin by asking whether a sentence of home detention orimprisonment is the least restrictive outcome that is appropriate in thecircumstances, or whether some less restrictive option is appropriate. If noless restrictive option is appropriate, so the choice is between home detentionand imprisonment, the court would then ask whether a compelling justificationhas been made out for imposing a sentence of imprisonment rather than asentence of home detention.[31] Cooke J applied this possible alternative approach when sentencing Tana,ultimately concluding that home detention was the least restrictive option that wasappropriate, as it was the sentencing outcome that would best facilitate Tana'srehabilitation.10 At the conclusion of his analysis, the Judge stated that:118 At [29].9 Diaz v R [2021] NZCA 426 at [61].10 Sentencing notes, above n 3, at [30] and [44].11 At [44].That outcome is also available on a conventional sentencing approach.Applying the discounts on the starting point the cultural factors by themselvescould justify a 15 per cent discount on top of the 25 per cent discount for theguilty plea, and approximately 30 per cent for youth rehabilitation potentialand remorse. That would allow this sentence to be two years from the startingpoint of seven years (adjusted given the EM bail period after the previousdetention).[32] Given that Goddard J's observations in Diaz were obiter (and represented aminority view in that case, in any event), Cooke J was, of course, required to follow aconventional sentencing approach. Nothing turns on the issue, given Cooke J's viewthat the same outcome could be reached either on a conventional approach or byapplying the alternative approach suggested in Diaz. Cooke J's focus on thealternative Diaz approach, however, means that he provided limited reasoning insupport of the level of discounts he suggested were appropriate. To some extent,however, the Judge's reasoning can be inferred from his discussion as to why homedetention was the least restrictive sentencing outcome in this case.12[33] The conventional approach is that a young person who is sentenced in theDistrict Court or High Court (rather than the Youth Court) must be sentenced inaccordance with the purposes, principles and aggravating and mitigating factors inthe Sentencing Act.13 Youth may, however, be taken into account as a mitigatingfactor,14 as we discuss further below. In Dickey v R this Court noted that there wereno outer limits to the discount for youth in current sentencing practice, but discountsof 10 to 30 per cent were common.15[34] Viewed through the lens of a conventional sentencing approach, the Judge:(a) adopted a starting point of seven and a half years' imprisonment(reduced from eight years to reflect that Tana was responding to a fight,and was under his brother's "significant influence");1612 At [30]–[44].13 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [74].14 At [82]–[83].15 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175].16 Sentencing notes, above n 3, at [18].(b) deducted six months for the 10 months Tana had spent on restrictiveEM bail and the one month spent on remand in a youth justice facility;17(c) deducted 25 per cent for Tana's guilty pleas;18(d) deducted 15 per cent for cultural and personal background factors;19and(e) deducted 30 per cent for youth, rehabilitation potential and remorse.20[35] The end result was a sentence of two years' imprisonment, which wasconverted to 12 months' home detention with 12 months of standard post-detentionconditions.21Was the starting point too low?[36] R v Taueki is the guideline judgment for serious violent offending involvingthe infliction of grievous bodily harm.22 This Court observed in Taueki that:[26] GBH [grievous bodily harm] offences can vary substantially inseriousness in terms of both the level of culpability of the offender and theextent of the consequences for the victim. However, it must be recognisedthat any GBH offence involves very serious offending. This is reflected in the14-year maximum term. An offender will be convicted only if he or she hasacted with an intention of inflicting really serious harm to the victim, and hasactually caused harm of that gravity, or wounded, maimed or disfigured thevictim. [27] Almost all GBH offences will involve a high degree of criminality(and significant injury to the victim) which will require the imposition of aterm of imprisonment. [37] The Court in Taueki identified a number of factors which will bear on theassessment of the appropriate starting point, but emphasised that a sentencing judge17 At [22].18 At [23].19 At [44].20 At [44].21 At [44] and [49].22 R v Taueki [2005] 3 NZLR 372 (CA).needs not only to identify such factors, but also to evaluate the seriousness of aparticular factor.23 The Court identified three sentencing bands, as follows:(a) band one (3–6 years), which will be appropriate for offending involvingviolence at the lower end of the spectrum of grievous bodily harmoffences;24(b) band two (5–10 years), which will be appropriate for grievous bodilyharm offending which features two or three of the aggravating factorsidentified by the Court;25 and(c) band three (9–14 years), which would normally encompass seriousoffending which has three or more of the aggravating features identifiedby the Court, where the combination of aggravating features isparticularly grave.26[38] Here, the Judge identified five aggravating factors — serious injury, use of aweapon, attack to the head, multiple attackers and gang associations — but noted thatthe overlap in those factors must be taken into account.27 He concluded that theoffending fell within band two of Taueki and adopted a starting point in the middle ofthat band (seven and a half years' imprisonment).28[39] We identify the following aggravating factors in Tana's offending:(a) Extreme violence: Tana's attack was not prolonged. However, in ourview multiple hammer blows to the head, of sufficient force to fracturea person's skull, constitutes extreme violence.23 At [30].24 At [34] and [36].25 At [34] and [38].26 At [34] and [40].27 Sentencing notes, above n 3, at [16], citing Flavell v R [2011] NZCA 361 at [22]; Diaz v R, aboven 9, at [29]; and Ta'akimoeaka v Police [2018] NZHC 68 at [23]–[24].28 Sentencing notes, above n 3, at [15]–[18].(b) Serious injury: Serious injury was caused, which could potentiallyhave been fatal if Mr Marshall had not first died from the stab woundinflicted by TJ.(c) Use of a weapon: Tana attacked Mr Marshall with a hammer.This Court noted in Taueki that the use of a lethal weapon is a seriousaggravating factor.29(d) Attacking the head: The attack was to the head. As noted in Taueki,attacks on the head of a victim can have particularly seriousconsequences.30(e) Multiple attackers: There were two attackers. Mr Laupama was alsopresent but there is no evidence that he struck the deceased.(f) Vulnerability of the victim: This is not a situation where the victimsuffered from a disability, or was a child. Nor was there a significantdisparity in size or strength between the attacker and the victim.However, the victim had already been stabbed (whether Tana knew thator not) and once he was on the ground he was in a highly vulnerableposition and largely defenceless.(g) Gang context: Where serious violence is perpetrated by members of acriminal gang, that is a further aggravating feature.31[40] We acknowledge that there is some overlap in these factors. For example, thegang context and the fact that there were multiple attackers are inextricably linked.Similarly, the use of a weapon, plus an attack to the head, will often result in seriousinjury.[41] Notwithstanding there was some overlap in the above factors, this was clearlyvery serious offending. Mr Marshall was unarmed, whereas both attackers were29 R v Taueki, above n 22, at [31(d)].30 At [31(e)].31 At [31(k)].armed. There is no evidence that Mr Marshall actually hit any of the three offenders.Although he took a swing at Mr Laupama following their verbal altercation, he missed.Tana launched an extremely violent attack on Mr Marshall (who had already beenstabbed) with a hammer. Tana struck multiple blows to the back of Mr Marshall'shead, with sufficient force to fracture Mr Marshall's skull and cause very seriousinjuries that could potentially have been fatal. Tana continued the attack onceMr Marshall was on the ground.[42] Taking into account that the aggravating factors overlap to some extent, weplace this offending at the upper end of band two or lower end of band three in Taueki.The number of aggravating factors, and their severity, warrants a starting point of atleast eight and a half years' imprisonment (taking into account the conservativeapproach taken to Crown appeals). We note that this is also the mid-point of the rangeof eight to nine years' imprisonment that defence counsel submitted was theappropriate starting point in their High Court sentencing submissions. Such a startingpoint is consistent with this Court's decisions in Heke v R,32 Hutchinson v R,33Lake v R,34 and R v Feterika.35 The case of R v Hita, on the other hand, involvedinjuries that were significantly less serious than those inflicted in this case.36Was the discount for time spent on EM bail within the available range?[43] Tana's EM bail conditions prohibited him from associating or having anycontact with gang members or his co-offenders.[44] Immediately prior to the sentencing hearing, the Judge heard submissionsregarding the allegations that Tana breached his EM bail conditions by speaking to TJon the phone and having a Mongrel Mob member present in his home to give him hisback tattoo. The Judge certified the bail breaches.37 He directed, however, that thebreaches should not form part of Tana's criminal record on the basis that there was a"reasonable excuse" for the bail breaches, given Tana's youth and the overwhelming32 Heke v R [2019] NZCA 256.33 Hutchinson v R [2013] NZCA 16.34 Lake v R [2017] NZCA 39.35 R v Feterika [2008] NZCA 127.36 R v Hita CA505/05, 29 November 2006.37 R v Ormsby-Turner HC New Plymouth CRI-2022-043-937, 12 July 2023 [Minute of Cooke J].influence of his brother on his life and his association with the gang. Further, the Judgesaid, there was no evidence that Tana had initiated the matters that gave rise to thebreaches.[45] Subsequently, as part of the sentencing process, the Judge was required toconsider the appropriate level of sentence discount to reflect the time that Tana hadspent on EM bail (10 months) and custodial remand in a youth justice facility (justover one month). The Judge observed that an allowance is usually made at sentencingfor time spent on restrictive EM bail, "with an allowance of 50 per cent not beinguncommon but not being the upper limit". The Judge concluded that a six-monthdeduction was appropriate in this case.38[46] On appeal, the Crown submitted that Tana should not have received a creditfor the periods when he was in material breach of his bail conditions.39[47] In the circumstances, the Judge's six-month discount was generous.A four-month discount may have been more appropriate. We do not propose, however,to interfere with the exercise of the Judge's discretion on this issue, particularly giventhis is a Crown appeal.Were the discounts for cultural and personal background, remorse, youth, andrehabilitative potential within the available range?[48] As noted above, the Judge deducted 30 per cent for youth, rehabilitativepotential and remorse, and 15 per cent for the cultural and personal background factorsset out in the s 27 report.40 The Crown submitted that the overall 45 per cent reductionfor these factors was excessive, particularly given that the underlying factors overlapsignificantly.[49] Given that the Judge's primary focus was assessing whether imprisonment orhome detention was the least restrictive outcome appropriate in the circumstances, hedid not separately identify the specific features of the s 27 report that would justify a38 Sentencing notes, above n 3, at [22].39 Citing Paora v R [2021] NZCA 559 at [60].40 Sentencing notes, above n 3, at [44].15 per cent discount. We accept the Crown submission that the personal mitigatingfactors in this case overlap significantly, which is evident in the Judge's generalanalysis. For example, the key aspect of Tana's background that the Judge identifiedas mitigating was the influence of his brother and the Mongrel Mob.41 This influence,however, also forms part of the Judge's assessment of Tana's rehabilitative potential,42and indeed was taken into account in setting the appropriate starting point.43 We willtherefore consider the potential mitigating factors in turn, before reaching a view as tothe appropriate global level of discount, taking into account any areas of overlap.Personal and cultural background[50] The information relating to Tana's personal background is set out in thes 27 report and Dr Knight's first report. We summarise the relevant information below,based on those reports.[51] Tana is of Ngāti Maniapoto descent. He feels a strong connection to hiswhakapapa but says he would like to explore it more. He spent his childhood both inNew Plymouth and in a small rural community in Te Rohe Pōtae, the King Country,where his father worked on dairy farms. Tana loved the farm life as a child, especiallybeing close to his cousins who also lived in the area. He reported that his whānauwere well provided for materially and food-wise, even though he was aware thatmoney was sometimes tight.[52] Tana reported that he always felt loved and cared for by his parents. Althoughhis mother is a "loving mum", he said that she was a heavy drinker who used to go outpartying a lot. His mother acknowledged this. Tana's father, on the other hand, didnot drink alcohol. He was, however, a strict disciplinarian who used to hit Tanaregularly. Tana's view is that this physical discipline was justified, as he "fucked up alot during [the] time [when he was] growing up". Tana said of his father that "I lovedhim more than I was scared of him." Tana remembered his parents arguing a lot, butsaid he was not aware of any physical violence taking place between them.41 At [34]–[35] and [40].42 At [33]–[34] and [40]–[43].43 At [18].Tana remains close to his family, and says they remain a strong source of supportfor him.[53] Tana "enjoyed everything" about primary school, where he had good friendsand good teachers. He said that "everything was good there". Unfortunately, thingschanged markedly once he started attending high school in New Plymouth.Tana became friends with some older boys, with whom he formed what he describedas a "little youth gang".[54] At around this time Tana's father had a heart attack and stroke which renderedhim bedridden for a period and unable to work. It was a difficult time for the familyand Tana's father said that the children started "rampaging" without his discipline.Tana reported that by the age of 13 he was smoking cannabis daily, drinking andfighting, missing classes and "being a bit of a menace in the school". Tana was askedto leave high school part-way through his first year.[55] By this time, Tana was regularly engaging in fights with other street gangs andbuilding up considerable "street cred" as a fighter. He reported, however, that hisparents always kept the door open for him and his father "was trying to put [him] [o]nthe right path" but Tana "wasn't listening to him".[56] Tana did not grow up around gangs (although he said that his older brotherTJ did). When TJ joined the Mongrel Mob, their parents initially "disowned him in away". They also tried to prevent Tana from associating with his brother. At somestage, however, TJ moved back into the family home and Tana began spending a lotof time with him and his fellow Mongrel Mob members. Tana looked up to his brotherand wanted to emulate him. Tana reported, however, that TJ was not keen for him tobecome involved with the gang and instead "put [Tana] in a good direction", byencouraging him to stop smoking cigarettes and cannabis, to take up fitness training,and get back into schoolwork. Nevertheless, Tana began prospecting for the gangwhen he was 14.[57] The key aspect of Tana's background on which the Judge placed reliancefor sentencing purposes was the "overwhelming" influence of his brother TJ.44This influence, in turn, had led to Tana becoming a gang prospect. The Judge alsonoted that the report writers had indicated that Tana had been socialised by otherdelinquent peers and that, given his background, a life within the gang waspredictable.45[58] We acknowledge that coming under the influence of an older sibling who is agang member, or coming under the influence of delinquent peers, will almostinevitably increase the risk of a young person becoming a gang member or associate.This in turn may result in them becoming enmeshed in a life of antisocial behaviourand criminal activity from which they will likely find it difficult or impossible toextricate themselves.[59] Here, Tana clearly came under the negative influence of his older brother, whowas a senior gang member, at a formative time in his youth. He also fell in withantisocial peers when he was a young teenager. It cannot be overlooked, however, thatTana's childhood up until that time was largely positive, more so than that of many (ifnot most) of the offenders who come before the courts. Tana was raised mostly in arural environment with hardworking parents who were able to meet his material needs.More importantly, their love and support for their son was never in question. Tana wasalso close to his extended whānau and enjoyed spending time with his cousins.He enjoyed primary school. His childhood (at least until the age of 11 or 12) appearsto have been a happy one.[60] We acknowledge that Tana's childhood had some negative aspects, includingthe use of physical discipline, and excessive drinking and partying by one parent.But there is nothing to suggest that this is causatively linked in any significant way toTana subsequently becoming a gang associate, or to the current offending.Indeed, Tana's parents tried to steer him away from gang influences. The influence ofhis older brother was significant, and contributed causatively to Tana becoming a gangassociate, even though TJ apparently tried to discourage Tana from pursuing a gang44 At [18] and [40].45 At [34].life. Ultimately, however, TJ's influence eclipsed that of Tana's parents (particularlygiven Tana's father's health issues). Tana's admiration for his brother and his wish toemulate him proved too powerful and this set him on the path to gang life. We do notaccept, however, that Tana's trajectory into gang life was in any way inevitable as aresult of his childhood or upbringing. This was not a case, for example, where gangmembership or association provided a form of brotherhood or whānau support thatwas otherwise missing from Tana's life. Tana is intelligent, came from a loving andsupportive family, and was discouraged by both his parents and his brother frombecoming a gang associate. His ability to exercise free agency was not entirelycompromised, although his youth no doubt had a significant influence on the poordecisions he made (as discussed further below).[61] Some discount to reflect Tana's background can be justified. Given, however,that the key relevant factor is the influence of Tana's brother, this is inextricably linkedwith his youth, which made him acutely susceptible to such influence. Having regardto the totality of Tana's background circumstances, both positive and negative, it is ourview that the appropriate level of discount for personal background (if considered inisolation from other mitigating factors, such as youth) would be modest.Remorse[62] Sentencing discounts are available to offenders who are genuinely remorseful.The Crown submitted, however, that allowing discounts, on the basis of arehabilitative approach, for remorse (or the offender's prospects of rehabilitation) incircumstances where an offender has attempted to mislead the court to achieve afavourable sentencing outcome brings the administration of justice into disrepute.On the other hand, Ms Pascoe (counsel for Tana) submitted that Tana is genuinelyremorseful and conveyed his remorse to both the writers of the s 27 report andDr Knight, as recorded in their reports.[63] As far as we are aware, Tana has not written to either the court or Mr Marshall'swhānau expressing remorse. The Judge noted that Tana had expressed remorse toDr Knight, who believed his remorse was genuine.46 We note, however, that this46 At [35] and [42].assessment appears in Dr Knight's first report, prior to him learning that Tana had liedto him about his ongoing gang involvement. What Tana told the report writersregarding his remorse, and their assessment of his sincerity on that issue, must betreated with considerable caution in such circumstances. We note in this context thatTana has been described as "intelligent" by the writers of the s 27 report and"very intelligent" by the provider of an educational programme that Tana had engagedin while on EM bail.47[64] On the basis that actions sometimes speak louder than words, it is helpful tolook at the surrounding circumstances to assess the sincerity of Tana's remorse.[65] On a positive note, Tana expressed a willingness to engage in a restorativejustice process with Mr Marshall's whānau, despite Tana finding such a prospectchallenging. That process did not proceed, apparently because Mr Marshall's whānaudeclined to participate once they learned that Tana had become a patchedMongrel Mob member while awaiting sentencing.[66] Other evidence weighs against a finding of genuine remorse. This includesTana's behaviour following the attack (as set out at [15] above); his decision to becomea patched gang member and get a Mongrel Mob tattoo while awaiting sentencing(despite knowing that this would make it extremely difficult to ever leave the gang);his ongoing associations with gang members (including his brother) in breach of hisEM bail conditions; his conversations with his brother in prison (the contents of whichdo not suggest remorse); his lies to the report writers regarding having left the gang;and his request following sentencing for the return of his Mongrel Mob patch.[67] Taking all of these matters into account, in our view the evidence does notsupport the conclusion that Tana is genuinely remorseful at a level that would justifya sentencing discount.47 The Judge also observed that Tana was "obviously an intelligent young man": at [43].Youth[68] Tana's youth, on the other hand, does warrant a sentencing discount. First, wenote Dr Knight's opinion that, at the time of the offending, Tana's "level of maturityand his comprehension generally and specifically regarding the magnitude of hisactions" would have been in most respects that of a relatively normal 16-year-old.A normal 16-year-old, however, is not an adult. It is now well recognised that thereare age-related neurological differences between young people and adults.48[69] Youth discounts also recognise that young people may be more vulnerable orsusceptible to negative influences and outside pressures, and have greater difficultyregulating their behaviour and impulses.49 Here, we accept that Tana's youth madehim acutely susceptible to the influence of his brother and other gang members.As Dr Knight explained:At a time of emotional vulnerability in his life (around the age of 12 or 13)Tana developed a strong association with the Mongrel Mob. He became aprospect for that gang at age 14. Tana described the culture of theMongrel Mob as being one in which prospects were expected to follow ordersand display blind and unquestioning loyalty to the gang.[70] Further, the offending appears to have been highly impulsive. Tana toldDr Knight that he heard sounds and ran inside, and that he thought Mr Laupama "wasgetting [a] hiding, I thought he was losing the fight". Tana ran inside, picked up ahammer, and assaulted Mr Marshall in what Dr Knight described as a "state of extremeemotional arousal" in circumstances where he believed it was his duty as a gangprospect to assist Mr Laupama.[71] Youth discounts also recognise that young people have greater capacity forrehabilitation.50 For reasons we discuss further below that factor that can carry onlylimited weight here.48 Dickey v R, above n 15, at [86]; Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [28];and Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].49 Churchward v R, above n 48, at [77(a)]; and R v Slade [2005] 2 NZLR 526 (CA) at [43].50 Dickey v R, above n 15, at [80]; Churchward v R, above n 48, at [77(c)]; Overton v R [2011] NZCA648 at [28]; and R v Wilson [1989] 2 NZLR 308 (CA) at 311.[72] Overall, it is our view that a discount for youth is appropriate in this case toreflect age-related neurological differences; Tana's youth-related susceptibility tonegative influences (specifically that of his older brother); and his youth-relatedimpulsivity and difficulty in regulating his behaviour.Rehabilitative prospects[73] The Crown submitted that home detention for serious violent offending cannotbe justified, in this case, because there is nothing to suggest that Tana is in any waycommitted to rehabilitation, or that he will make serious rehabilitative progress.[74] It is apparent from Cooke J's sentencing notes that the key driver of the homedetention sentence was the Judge's view that Tana's rehabilitative prospects were themost important consideration, and such prospects were best served by a sentence ofhome detention rather than a sentence of imprisonment.51 The Judge was concernedthat a sentence of imprisonment would "likely irretrievably prejudice any chance of[Tana] avoiding descending into an entrenched criminal lifestyle".52[75] The Judge's view was that Tana had "had no real alternative but to live lifeassociated with the gang", particularly because of his brother's influence. The Judgeaccepted, however, that Tana "would like a life away from the gang" and consideredthat because TJ will be in prison for a minimum of 10 and a half years, he will nolonger have an overwhelming influence on Tana.53[76] The Judge noted that Tana had "not been honest" with the report writersregarding his ongoing gang involvement.54 This did not mean, however, thateverything Tana had said was untrue.55 The Judge noted that the two PAC reports hadrecommended home detention.56 Reports from the providers of educationalprogrammes that Tana had engaged in while on EM bail said he was compliant andmaking good progress, and described him as "honest, open, respectful and very51 Sentencing notes, above n 3, at [44] and [47].52 At [33].53 At [40].54 At [39] and [42].55 At [40].56 At [37].intelligent".57 The Judge said he was not prepared "to go against the general viewsreached by the report writers and conclude that there is no prospect ofrehabilitation".58[77] The key evidence in favour of a finding that Tana has reasonable rehabilitativeprospects if sentenced to home detention is the feedback received from the providersof educational programmes that Tana engaged in while on EM bail. In particular,the Judge summarised a report from Number Twelve Youth Hub as follows:59You [Tana] are described as honest, open, respectful and very intelligent.You have attained 39 NCEA credits and are working on your driver's licence.It is reported that your facilitator has spoken highly of you and yourcontribution to the programme, as did other young people who are said to havedescribed you as inspirational and having the potential to go somewherein life.[78] In addition, as the Judge noted, the two PAC reports also recommended homedetention. Somewhat less weight can be given to those reports, however, as the writerswere not aware at the time of Tana's ongoing Mongrel Mob associations (and indeedincreased commitment to the gang) and believed that he had been fully compliant withhis EM bail conditions.[79] The evidence we have set out above which weighs against a finding of genuineremorse also tends to suggest that Tana's rehabilitative prospects are currently poor.This includes Tana's behaviour following the attack (as set out at [15] above); and hisongoing association with the Mongrel Mob (as set out at [66] above).[80] Ultimately, Tana's prospects of rehabilitation are inextricably linked to hiswillingness to move on from his gang associations and find a more prosocial supportnetwork. Following the offending, a number of factors combined to give Tana anopportunity to do this. TJ's imprisonment removed his daily presence and influencefrom Tana's life. Being required to live at his father's remote rural home on EM bailwith a condition not to associate with gang members gave him an opportunity (indeedan obligation) to not associate with gang members. The educational programmes he57 At [36] and [40].58 At [43].59 At [36].was supported to attend provided him with positive educational and socialopportunities. Nevertheless, during this period, Tana significantly increased hiscommitment to the gang by getting a back tattoo and becoming a patched member(with the consequence that it will now be very difficult for him to leave the gang).Such conduct suggests, unfortunately, Tana is not currently motivated towards his ownrehabilitation.[81] A further factor that is relevant to Tana's rehabilitative prospects is thesuitability of his home detention address (at which his father appears to live full-time,and his mother part-time). While Tana's parents are clearly prosocial in some respects,it is of note that they facilitated Tana speaking to his brother in prison and his mothersupported his claim to Dr Knight that he had left the gang. Tana received hisMongrel Mob tattoo and became a patched member while on EM bail at the familyhome, which is now his home detention address. The Judge found that while onEM bail at that address "it [had] been very difficult for [Tana] to avoid the influencesof the Mongrel Mob".60 There is accordingly little basis for confidence that homedetention at the current address will significantly advance Tana's rehabilitation.Tana's apparent lack of remorse is a further factor which supports the conclusion that,at present, his rehabilitative prospects are somewhat limited.[82] Taking all of these matters into account, it is our view that Tana's prospects ofleaving the Mongrel Mob and adopting a more prosocial lifestyle are currently verylow, regardless of whether he is sentenced to imprisonment or home detention. That isnot to say that he has no rehabilitative prospects. He is obviously an intelligent youngman with clear potential. He is not beyond redemption. Unfortunately, however, thereis currently little to indicate that Tana is motivated towards his own rehabilitation, orthat his home detention environment will be conducive to rehabilitation.Conclusion as to the appropriate discount for personal mitigating factors[83] Given that the personal mitigating factors in this case overlap considerably andwere not analysed separately by the Judge, we will consider the appropriate discountfor the relevant factors on a global basis.60 Minute of Cooke J, above n 37, at [4].[84] For the reasons we have set out above, it is our view that:(a) There are many positive features of Tana's home life and upbringing,including supportive and loving parents. The key negative feature isthat, at a time of vulnerability when Tana's father was very unwell, Tanabecame acutely susceptible to the negative influence of his olderbrother, a senior gang member. This led to Tana becoming a gangprospect, with all the negative consequences this entails. This warrantsa modest discount.(b) The evidence does not support the conclusion that Tana is genuinelyremorseful to an extent that would justify a sentencing discount.(c) A discount for youth is appropriate to reflect age-related neurologicaldifferences, as well as other youth-related factors such as Tana'ssusceptibility to negative influences (specifically that of his olderbrother) and his impulsivity and difficulty in regulating his behaviour.(d) Tana's rehabilitative prospects are currently poor, given that hesignificantly increased his commitment to the Mongrel Mob while onEM bail pending sentencing. While there are clearly somerehabilitative prospects, particularly given Tana's age, at present thereare few signs that he is seriously committed to rehabilitation. Nor doeshis home detention environment appear to be conducive torehabilitation. Only a small discount can therefore be justified forTana's rehabilitative prospects.[85] There is significant overlap between these personal mitigating factors.Most notably, the key relevant personal background factor, as the Judge noted, is thenegative influence of Tana's older brother. Similarly, one of the key justifications fora youth discount is Tana's susceptibility to such negative influences, due to his youth.The increased rehabilitative potential of young people is one of the justifications for ayouth discount. There is therefore some overlap between any discount to reflect Tana'syouth and any discount for rehabilitative prospects.[86] In our view the appropriate global discount for the various personal mitigatingfactors we have identified, taking into account the degree of overlap, is 30 per cent,rather than the 45 per cent afforded by the Judge.Conclusion as to the appropriate sentence[87] For the reasons set out above, we consider that the sentence for Tana'soffending should have been arrived at by taking a starting point of at least eight and ahalf years' imprisonment, and applying the following discounts:(a) 25 per cent for guilty pleas (the guilty plea discount was not challengedon appeal);(b) 30 per cent for personal mitigating factors; and(c) six months for time spent on EM bail and custodial remand in a youthjustice facility (as noted above, we consider this discount was generousbut do not propose to interfere with it on appeal).[88] The above starting point and discounts result in an end sentence of three yearsand four months' imprisonment. Based on our assessment of the appropriate startingpoint and discounts, home detention is not an available sentencing option.61This raises the issue of whether it would be appropriate to now substitute a sentenceof imprisonment for the current home detention sentence. We turn now to considerthat issue.The appropriate appellate response[89] The Supreme Court recently observed in Philip v R that where aSolicitor-General's appeal seeks to substitute a term of imprisonment for anon-custodial sentence, the usual practice of the courts is to take a conservativeapproach.62 Specifically, the court will be "reluctant to interfere if this would cause61 Pursuant to s 15A(1)(b) of the Sentencing Act 2002, an offender may only be sentenced to homedetention if the court would otherwise sentence them to short-term sentence of imprisonment(defined for the purposes of the Act as a sentence of two years or less).62 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [42].injustice to the offender".63 This is especially so where the offender has beencomplying with the conditions imposed as part of the community-based sentence.This is because of the harsh effect of substituting a term of imprisonment.64 This factorwill not, however, always result in the non-custodial sentencing being leftundisturbed.65 In some circumstances substituting a sentence of imprisonment will bejustified. One example is where "an error in principle warrants reconsideration of theentire sentencing exercise, and a sentence of imprisonment is the inevitableconsequence of correcting that error".66[90] Recently, in Wiwarena v R, this Court acknowledged that the substitution of asentence of imprisonment for a sentence of home detention can be seen as unfair,especially in relation to a young offender.67 Nevertheless, the Court found that theappellant's offending was of such a serious nature that home detention was simply notan available option, commenting further that "[a] non-custodial sentence cannot beartificially reached by setting a low starting point and applying overly generousdiscounts."68 This Court declined the application for leave to bring a second appealinsofar as it related to the High Court's substitution (on a Crown appeal) of a sentenceof imprisonment for one of home detention.69[91] Turning to the present appeal, the Judge's view was that the dominantsentencing purpose was rehabilitation, and that view drove the sentencing outcome.A rehabilitative focus will often be appropriate when sentencing young offenders.Here, however, Tana's prospects of making significant rehabilitative progress whileserving a sentence of home detention appear to be poor. Further, a sentence of homedetention is not available in any event, given our assessment of the appropriate startingpoint and discounts. Nevertheless, it would be open to this Court to simply indicatewhat the appropriate sentence is, while leaving the home detention sentenceundisturbed, as Ms Pascoe invited us to do.63 At [43], citing R v Donaldson (1997) 14 CRNZ 537 (CA) at 550.64 At [43].65 At [43].66 R v Fidow [2013] NZCA 209 at [47]. See R v Donaldson, above n 63, at 550; andSolicitor-General v Kaokao [2019] NZHC 2352 at [37].67 Wiwarena v R [2023] NZCA 384 at [42].68 At [43].69 At [44]–[46].[92] We are not persuaded that such a course is appropriate in the circumstances ofthis case. This was very serious violent offending. Leaving the home detentionsentence undisturbed would, in our view, be inadequate to meet the relevant purposesof sentencing. In addition to rehabilitation, these include the need to hold the offenderaccountable for the harm done to the victim and the community; promoting in theoffender a sense of responsibility for, and an acknowledgment of, that harm;denouncing the conduct in which the offender was involved; deterring the offender orother persons from committing the same or a similar offence; and protecting thecommunity from the offender.70[93] On the issue of accountability, we acknowledge that Mr Marshall's whānausee that as a key factor here. The victim impact statement of one of Mr Marshall'ssiblings explains their view of the concept of accountability, from a Te Ao Māoriperspective, as follows:Throughout this heinous process we're continually reminded of how you andyour brother want to uphold your mana — that this process seems to be drivenby instilling mana for the two of you.However, I struggle to understand your comprehension of mana.Mana isn't just about doing things that make you feel safe; it is also aboutaccountability.We are all whānau of te ao Māori; we have just as much, if not more, right tohave tikanga upheld.We are the victims left behind when you were involved in the attack on ourbrother.Our mana needs and deserves to be upheld through tikanga and promotingaccountability.[94] The writer goes on to explain how whakawhanaungatanga, kawa, kōrero, andwhakapapa all interact to promote accountability, and asserts that Tana has failed todisplay any of these values and has ignored "the real, human costs of his actions". Thevictim impact statement further explains that:In te ao Māori, when you do wrong, you carry shame.Shame for yourself and for your whānau, and you work to restore what is Tika.70 Sentencing Act, s 7(1)(a), (b), (e), (f), (g) and (h).[95] In conclusion, it is our view that the sentence of 12 months' home detentionwas manifestly inadequate and was not in proportion with the gravity of the offending.A sentence of imprisonment should be substituted. Based on our assessment of thecorrect starting point and discounts, the appropriate sentence is one of three years andfour months' imprisonment.[96] Tana was presumably inducted into his present sentence of home detentionshortly after his sentencing on 12 July 2023. On that basis he will have served justover four and a half months of his sentence by the time this judgment is delivered. Inour view it is appropriate to allow a credit of six months' imprisonment for this factor.71That period must be deducted from the final sentence, resulting in an end sentence oftwo years and 10 months' imprisonment. We point out, however, that the effectivesentence for this offending remains three years and four months' imprisonment.Result[97] The application for leave to adduce further evidence on appeal is granted.[98] The appeal is allowed.[99] The sentence of 12 months' home detention is set aside and substituted with asentence of two years and 10 months' imprisonment.[100] Mr Ormsby-Turner must surrender himself to the Prison Director at Mt EdenCorrections Facility (or such other location as may be directed by Corrections inwriting) to commence his sentence of imprisonment by 2.00 pm on Friday1 December 2023. The current sentence of home detention is to continue in effectuntil that time.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for AppellantNicholsons Lawyers, New Plymouth for Respondent71 Applying a similar approach to that taken in R v Tamatea [2012] NZCA 443 at [29] and R v Pene[2010] NZCA 387 at [20]–[21].