WALKER-DAHLBERG v R [2020] NZCA 661

WALKER-DAHLBERG v R [2020] NZCA 661 [18 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA413/2020[2020] NZCA 661BETWEEN TIANA MAREE WALKER-DAHLBERGAppellantAND THE QUEENRespondentHearing: 4 November 2020Court: Clifford, Woolford and Mander JJCounsel: N Levy QC for AppellantK S Grau for RespondentJudgment: 18 December 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of three years' imprisonment is quashed and replaced with asentence of two years and four months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Tiana Maree Walker-Dahlberg pleaded guilty as a party to a charge ofaggravated burglary. On 3 July 2020, she was sentenced to three years' imprisonment.1She now appeals against sentence as being manifestly excessive.1 R v Walker-Dahlberg [2020] NZHC 1562 [Sentencing notes].Factual background[2] The principal offender was the appellant's partner, Rex Ji Terangi Daley.Mr Daley is a member of the Nomads gang. On 2 December 2018, Mr Daley and theappellant were driven on two occasions by a third person, Aaron Takamore, anotherNomads gang member, to an address in Masterton. They went there for the expresspurpose of confronting and threatening D-Jae Rhodes, a relative of the appellant'sformer partner. The appellant's former partner is a member of the Black Power gang.There had been some sort of altercation between the appellant and Mr Rhodes earlierthat day.[3] Mr Daley was about six months out of a 13 year prison sentence and in the gripof a methamphetamine addiction and escalating mental illness.[4] At approximately 7.30 pm, Mr Daley, the appellant and Mr Takamore, togetherwith associates in two other cars, arrived at Mr Rhodes' address. All three vehiclestooted their horns. Mr Rhodes walked outside and saw Mr Daley, the appellant andMr Takamore along with their associates parked on the street, in front of the address.Mr Rhodes then challenged Mr Daley to a fight on the front lawn. Mr Rhodes sawthat Mr Daley was holding something, which he assumed was a bat. He saw Mr Daleytapping it against the front windscreen of the car in which he was seated. Mr Daleywas however armed not with a bat, but with a sawn-off shotgun and a number ofrounds of ammunition. Mr Daley yelled out to Mr Rhodes "I'm going to kill youmotherfucker", before the three cars drove away.[5] At about 9.00 pm, Mr Rhodes and other family members were standingoutside, at the front of the address. They believed that Mr Daley, the appellant andMr Takamore could return to the address for the purpose of a further altercation. Theywere looking out for the three cars. At that time, it was getting dark. Mr Rhodes sawa car appear on the street, park some distance away from the address and turn its lightsoff. Mr Daley, the appellant and Mr Takamore were in the car. They covered theirfaces with bandanas. Mr Daley got out of the car with the shotgun and began to walktowards Mr Rhodes and his family members. As Mr Daley got closer to the address,Mr Rhodes could see he was carrying something in his left hand. Again, assuming itwas a bat, Mr Rhodes walked out on to the street and challenged Mr Daley to a fight.Mr Daley continued to walk towards Mr Rhodes and as he got within a few metres heraised the shotgun and closed the barrel, loading the shotgun into an active state.[6] Mr Rhodes recognised the distinctive sound of a shotgun being activated.He immediately ran back inside the yard of the address and tried to hide behindvehicles that were parked in the driveway. Mr Daley entered the enclosed yard.He stalked Mr Rhodes and then tried to point the shotgun directly at him while yelling,"I'm going to kill you motherfucker". In the process, Mr Daley also pointed theshotgun at other family members, who all feared for their immediate safety.Mr Rhodes continued to evade Mr Daley by placing objects between himself andMr Daley.[7] Meanwhile, Mr Takamore drove the car, in which he and the appellant wereseated, closer to the address. He parked on the opposite side of the road to the address.The appellant got out of the car and began to yell abuse at Mr Rhodes and his familymembers. Mr Rhodes' partner, Jamie Nepia, and two other women at the address heardher abuse and ran towards the appellant, who retreated and got back into the frontpassenger seat of the car, locking the door as she did so. Ms Nepia and the two otherwomen began to bang on the window of the car. Mr Daley saw what was happeningand ran back to the car while still carrying the loaded shotgun. When he got to the car,he used the butt of the shotgun to hit out at one of the women. Ms Nepia tried todefend the other woman from being hit further and while doing so, Mr Daley turnedand pointed the shotgun at her. While standing in close proximity to Ms Nepia, hefired the shotgun once at her, causing a round of ammunition to penetrate her left thigh.Ms Nepia immediately dropped to the ground and began to bleed profusely from herwound.[8] Mr Takamore immediately reacted and drove the car a few metres away beforerealising he had left Mr Daley behind. He stopped the car and then reversed it in thedirection of Mr Daley. While doing so, he struck Ms Nepia and another associate whowas attending to her while she lay on the roadside, causing minor injuries to both.Mr Daley got back into the rear of the car and the three offenders — Mr Daley,the appellant and Mr Takamore — fled the scene. As they drove from the scene,Mr Daley pointed the shotgun out of the rear passenger window and fired anotherround in the direction of where people were standing at the front of the address. Thepellets struck a bedroom window of the house, causing it to shatter as well as lodgingin the external weatherboards. A family member was present in the bedroom when itswindow was shattered. The persons at the address feared for their safety and tookcover to ensure they did not get hit by any further shots.[9] Ms Nepia sustained a life-threatening wound to her left thigh. She washospitalised for several months. Her left leg was amputated from above the knee.She continues to require medical treatment. The impact on her has been devastating.Charges[10] Mr Daley, Ms Walker-Dahlberg and Mr Takamore all faced several charges asa result of the incident, including causing grievous bodily harm with intent to causegrievous bodily harm, aggravated burglary, burglary and discharging a firearm withintent to do grievous bodily harm.2 All sought sentence indications on the basis theywould plead guilty to burglary or aggravated burglary charges — and an additionalviolence and firearms charge in the case of Mr Daley — with the Crown withdrawingthe others. Mr Takamore was dealt with first.[11] Mr Takamore sought a sentence indication in respect of a charge of being aparty to aggravated burglary.3 In a sentence indication on 14 March 2019, Thomas Jadopted a notional starting point of five years' imprisonment as regards Mr Daley'saggravated burglary offending, which she discounted in Mr Takamore's case by oneyear to recognise his lesser participation, with a further discount of 25 per cent for aguilty plea.4 The end sentence indicated by Thomas J was therefore one of three years'imprisonment. The indication, however, made no allowance for any relevant factorswhich might be identified in the pre-sentence report or other material made availableon sentencing. Mr Takamore accepted that indication and pleaded guilty to the charge2 Several of these replaced charges of attempted murder initially laid by the Police.3 Mr Daley's entry into the enclosed yard at Mr Rhodes' address with a loaded sawn-off shotgunwith an intent to commit an imprisonable offence therein.4 R v Takamore HC Wellington CRI-2018-035-1361, 14 March 2019 at [40]. The Crown had, at theindication, agreed with the defence Mr Takamore's starting point should be three years, before anyguilty plea or other discount.of aggravated burglary on 21 March 2019. The other charges were withdrawn.On 13 September 2019, Thomas J sentenced Mr Takamore to 12 months' homedetention.5 Apart from the indicated guilty plea discount of 25 per cent, Thomas Jgranted Mr Takamore a further discount of 25 per cent for remorse and his life ofhardship and disadvantage as set out in a cultural report. That brought the end sentencedown to two years' imprisonment, which was then commuted to home detention.[12] Ms Walker-Dahlberg's sentence indication was given by Simon France J on2 May 2019 in respect of two charges: one of aggravated burglary and one of burglary.6The Judge indicated a starting point of four years and six months on the aggravatedburglary charge,7 uplifted by six months for the simple burglary charge. A discount of25 per cent was indicated for a guilty plea, with the possibility of additional discountsfor personal mitigating factors left open. Ms Walker-Dahlberg declined thatindication.[13] Mr Daley's sentence indication was given by Ellis J on 13 December 2019 onthe basis he would plead guilty to one charge of aggravated burglary, one of causinggrievous bodily harm with intent to cause grievous bodily harm8 and one charge ofdischarging a firearm with reckless disregard for the safety of others.9 Taking thegrievous bodily harm charge as the lead offence, and allowing for an uplift to reflectthe other two charges and Mr Daley's prior convictions, the Judge indicated a startingpoint of 13 years' imprisonment, with a discount of 3 years for a guilty plea.A 50 per cent minimum period of imprisonment (MPI) would be imposed.[14] Mr Daley accepted that sentence indication and pleaded guilty on19 December 2019. On the same day Ms Walker-Dahlberg — without having5 R v Takamore [2019] NZHC 2315.6 R v Walker-Dahlberg HC Wellington CRI-2018-035-13641, 2 May 2019 [Sentence indication].The burglary charge related to a separate incident in which the appellant allegedly entered adifferent house while the occupiers were absent and caused damage.7 To reach this figure, the Judge applied Thomas J's notional starting point of five years and thensubtracted six months to reflect Ms Walker-Dahlberg's role, which he considered was less thanMr Daley's but greater than Mr Takamore's.8 The shooting of Ms Nepia.9 The discharge of the shotgun as the offenders left the scene: R v Daley HC WellingtonCRI-2018-035-1361, 13 December 2019.received a further indication — pleaded guilty to just one charge of aggravatedburglary. All other charges were withdrawn by the Crown.[15] Mr Daley and Ms Walker-Dahlberg were both sentenced on 3 July 2020 byEllis J.10 Turning first to Mr Daley, the Judge was in receipt of a psychiatric reportwhich she considered was of some significance. The matters canvassed in the report,including Mr Daley's disturbing and traumatic childhood, prompted the Judge to allowa further 15 per cent discount for remorse and personal factors, leading to a finalsentence of eight and a half years' imprisonment on the lead charge of causing grievousbodily harm with intent. Lesser concurrent sentences were imposed on the othercharges, including — consistent with Thomas J's original starting point — five yearson the charge of aggravated burglary. No MPI was ordered.[16] The Judge summarised the appellant's position as follows:11As I said earlier you are being sentenced on one count of aggravated burglaryfor which the maximum penalty is 14 years' imprisonment. The burglary herewas Mr Daley entering into an enclosed yard with the intention of threateningor committing violence. What makes it aggravated is the fact that he had aloaded sawn-off shotgun with him. You are liable as a party because youhelped or encouraged Mr Daley to do that.[17] As to the starting point, the Judge identified five factors which added to theseriousness of the charge:12(a) First, there was a degree of planning and preparation because of thebuild-up of tensions earlier that day. The Judge considered thatthe appellant had played a central role in the build-up of tensions;indeed, it was she who told Mr Daley about them, spurring him toaction.(b) Secondly, there was the fact that there were three offenders, eventhough it was only Mr Daley who actually entered the enclosed yard.10 R v Daley [2020] NHZC 1560; and Sentencing notes, above n 1.11 Sentencing notes, above n 1, at [24].12 At [25].(c) Thirdly, each of the three offenders attempted to disguise theirappearance through the use of bandanas.(d) Fourthly, the aggravated burglary involved both verbal threats ofviolence and physical threats of violence, when Mr Daley raised andactivated the shotgun within a few metres of Mr Rhodes and pointed itat other family members.(e) Fifthly, the burglary happened at night, although the Judge didacknowledge that at 9.00 pm in December, it may well not have beencompletely dark.[18] The Judge applied the starting point of five years considered appropriate byThomas J for the principal offender, Mr Daley, when sentencing Mr Takamore on thesame aggravated burglary charge. However, the Judge was of the view thatthe appellant should not receive the same one year reduction as Mr Takamore becauseshe considered her involvement in the offending was greater than his. The Judgetherefore agreed with Simon France J that a starting point of four and a half years'imprisonment was appropriate for the aggravated burglary offending.13 The Judgethought that a discount of 20 per cent was also appropriate for the guilty plea. In theend, the Judge deducted 18 months from the starting point of four and a half years'imprisonment for a combination of the appellant's guilty plea, remorse and time spenton restrictive bail.14 This amounted to a total discount of 33 per cent. The end sentenceimposed upon the appellant was therefore three years' imprisonment, which was notable to be commuted to a sentence of home detention, being a sentence of more thantwo years' imprisonment.Appellant's submissions[19] Counsel submits that the maximum penalty and normal sentencing levels foraggravated burglary are of limited significance in this case.13 At [27].14 At [39].[20] Burglary is entering a building (which by extended definition includes anenclosed yard) with intent to commit an imprisonable offence.15 Aggravated burglaryis having or using a weapon while committing burglary.16 Counsel submits that thecriminal culpability intended to be captured by the offence of burglary is intrusion intoprivate and conceptually safe space. Counsel submits that, in this case, the wholeinterface between the two groups was public and intended to be so. Earlier, Mr Rhodeshad invited Mr Daley to fight on the property.[21] Counsel submits that the appellant's culpable criminal conduct was in abetting(by supporting) Mr Daley in confronting Mr Rhodes and his family members with aweapon. She knew that Mr Daley had a weapon. She travelled with him to confrontMr Rhodes. It was, however, implicit in the withdrawal of the more serious charge ofbeing a party to causing grievous bodily harm with intent to cause grievous bodilyharm, that the appellant did not intend that anyone be shot or know that to be a probableconsequence of the prosecution of the common purpose. By her guilty plea toaggravated burglary, counsel submits the appellant simply admitted knowledge thatMr Daley might enter the enclosed yard with intent to threaten Mr Rhodes with aweapon. The burglary element of the offending was incidental and unimportant to theappellant's culpability. From her perspective, and that of Mr Rhodes, Mr Daley'sthreatening behaviour with a weapon was as criminal and culpable before he steppedinto the yard as it was after. However, the effect of him stepping into the yard was toalter the charge to which she was a party from assault with a weapon,17 or threateningto kill,18 to aggravated burglary.19[22] Counsel accepts that the discount for the appellant's guilty plea, remorse andtime spent on restrictive bail is obviously appropriate, but a discount for her personalcircumstances was also required to reflect her vulnerability and the significant ongoingeffects of the incident on her, including post-traumatic stress disorder (PTSD). In thisregard, counsel pointed to a cultural report written by a friend of the appellant.15 Crimes Act 1961, s 231.16 Section 232.17 Section 202C. Maximum penalty of five years' imprisonment.18 Section 306. Maximum penalty of seven years' imprisonment.19 Section 232. Maximum penalty of 14 years' imprisonment.[23] Counsel also submits that she received a much more significant sentence thanMr Takamore. From the appellant's perspective, the end result of the sentencingexercise is that a person, such as Mr Takamore, more involved in the offending, betterable to exercise his own will in deciding whether to be a part of it, and with a relevantcriminal history for violent offending and burglary, received a significantly morelenient sentence than her. Counsel submits that this obvious disparity in the outcomeis relevant to a consideration of the overall sentence imposed on the appellant.DiscussionStarting point[24] Although there is no tariff case for aggravated burglary, the Judge noted thatthe principles in the tariff case for aggravated robbery, R v Mako,20 could apply equallyto aggravated burglary.21 The Judge therefore referred to factors mentioned in Makoas adding to the seriousness of the present case. She listed five factors, which we setout at [17] above.[25] First, as to planning and premeditation, the Court of Appeal in Mako stated:22[36] The degree of planning and preparation will reflect criminality.Detailed activity over a sustained period indicating care and sophistication inorganisation are hallmarks of serious criminals, particularly criminalorganisations. Such conduct is plainly to be regarded more seriously than lesspremeditated or spontaneous exploits.[26] We are of the view that, in the circumstances of this case, there was no detailedactivity over a sustained period indicating care and sophistication in organisation.The events in question did not reflect any real planning or preparation apart from thefact that Mr Daley armed himself with a shotgun and ammunition before they wentlooking for Mr Rhodes.[27] Secondly, as to the number of participants, the Court in Mako also stated:20 R v Mako [2000] 2 NZLR 170 (CA).21 Sentencing notes, above n 1, at [25] n 1, citing R v Watson CA224/03, 24 October 2003 at [27];R v Drewett [2007] NZCA 48 at [15]; and Archbold v R [2015] NZCA 493 at [9].22 R v Mako, above n 20.[37] The number of participants and their deployment similarly may reflectmore sophisticated or organised activity and may increase the degree ofintimidation and fear engendered among victims.[28] In the present case there were three participants, but we are of the view that theactions of the appellant and Mr Takamore did not increase the degree of intimidationand fear to any great degree. Although the appellant got out of the car and yelledabuse, she was not armed and was not a principal offender. Mr Takamore did not getout of the car.[29] Thirdly, in Mako, the Court of Appeal also stated that disguises and othermeans of concealing identity and facilitating flight generally suggest premeditationand planning.23 In the present case, Mr Daley, the appellant and Mr Takamore wereknown to Mr Rhodes and the fact that they may have covered their faces with bandanascannot be seen to be a disguise or a means of concealing identity and facilitating flight.The bandanas were obviously used to signify their gang affiliation and an attempt tointimidate Mr Rhodes.[30] Fourthly, the Court in Mako also referred to weapons used as follows:[39] The number and types of weapons and how they are brandished willbear upon the level of culpability. It is not to be assumed necessarily that themore potentially lethal the weapon the more serious the offence, althoughthere will be greater danger of harm to a greater number of people where aloaded firearm is presented. [31] In the present case, we agree the use of a loaded sawn-off shotgun was a seriousaggravating factor.[32] Fifthly, the Judge herself acknowledged that at 9.00 pm in December it maywell not have been completely dark. This factor is, in our view, not significantlyaggravating as the three offenders had been present at the address an hour and a halfearlier, and Mr Rhodes and his family members were expecting them to return.[33] Notwithstanding the Judge's adoption of factors set out in Mako, which — asMs Levy QC submitted — may not have been entirely apposite in this case given the23 At [38].unique circumstances, we are of the view that the starting point of five years'imprisonment was nevertheless available to the Judge for the principal offender.The Crown criticises the submission of counsel for the appellant that her sentenceshould be assessed by reference to charges that she did not face (of assault with aweapon or threatening to kill). There is, however, no tariff for threatening to kill, butit does carry a maximum sentence of seven years' imprisonment. Section 8(d) of theSentencing Act 2002 provides that a court must impose a penalty near to the maximumprescribed for the offence if the offending is near to the most serious of cases for whichthat penalty is prescribed, unless circumstances relating to the offender make thatinappropriate.[34] If Mr Daley had been charged with threatening to kill rather than aggravatedburglary, it had to be "near the most serious of cases" in terms of s 8(d), in respect ofwhich a court must impose a penalty near to the maximum sentence of seven years'imprisonment. To be chased around your own address by a methamphetamine-addicted and mentally unwell patched gang member pointing a loaded sawn-offshotgun at you while shouting he was going to kill you would have been absolutelyterrifying. The threat posed was also very real indeed as confirmed by Mr Daleyshooting Ms Nepia a few minutes later.[35] Mr Daley's irrationality and unpredictably was such that the Crown acceptedthat he went beyond any common purpose in shooting Ms Nepia. The Crown explainsthat is why it withdrew charges against the appellant and Mr Takamore of being partiesto the shooting of Ms Nepia. It was, however, anticipated by the appellant andMr Takamore that Mr Daley would present the loaded shotgun at Mr Rhodes andthreaten him.[36] What then of any reduction for the appellant to reflect her lesser culpability?The notional starting point of five years was, in the case of Mr Takamore, reduced byone year to reflect the fact that, although he drove Mr Daley to and from the sceneknowing that he would present the loaded sawn-off shotgun at Mr Rhodes and threatenhim, he did not get out of the car to take part in the confrontation or back Mr Daleyup.[37] In Mr Takamore's case, counsel for the Crown had submitted that the startingpoint of five years' imprisonment should be reduced by two years to recognise that hewas caught up in a heated family dispute, which escalated quickly and violently.24The Judge did not, however, accept that a discount of two years was appropriate.She cited the Court of Appeal's comments in Mako that a getaway driver should notbe treated as less culpable than those confronting the victims of an aggravated robberyunless they were truly less than full participants.25 The Judge nonetheless discountedthe starting point of five years by one year to arrive at a starting point of four years'imprisonment in the case of Mr Takamore.26[38] We are, however, of the view that the analogy of a getaway driver in anaggravated robbery is, again, not entirely apposite. Flight from the scene was not anintegral part of the planning and premeditation. It was a spontaneous reaction to theshooting. As such, it was open to the sentencing Judge to discount the starting pointfor Mr Takamore by two years as submitted by the Crown.[39] Counsel for the appellant submits that she is less culpable than Mr Takamorerather than more culpable. She did, however, encourage Mr Daley to confront andthreaten Mr Rhodes. She also got out of the car when it was parked across the roadand yelled abuse at Mr Rhodes and his family. Unlike Mr Takamore, herencouragement was public and led Ms Nepia and two other women to come across theroad to confront her. This then led almost immediately to the shooting of Ms Nepia.[40] Both Simon France J (in the sentence indication dated 2 May 2019) and Ellis J(in sentencing the appellant on 3 July 2020) considered that her role was somewhatgreater than Mr Takamore. We cannot say that assessment is wrong. One cannotdivorce the shooting of Ms Nepia from the actions of the appellant. Ms Nepia was atthe car confronting the appellant because of what the appellant had done in abusingMr Rhodes and his family members (which amounted in law to active encouragementof Mr Daley to commit the offence of aggravated burglary).24 R v Takamore, above n 5, at [21].25 At [25], citing R v Mako, above n 20, at [64].26 At [27].[41] We are, therefore, of the view that the appellant's culpability is appropriatelyplaced between her partner, as principal offender, and Mr Takamore, as the driver ofthe car. However, because of the Judge's adoption of factors set out in Mako, whichmay not have been entirely apposite and the Crown's submission that a discount oftwo years on the starting point for Mr Takamore was appropriate, we think a discountof one year and six months should be accorded to the appellant rather than six monthsas granted by the Judge, which results in a starting point of three years and six months'imprisonment rather than four years and six months' imprisonment. This reflects themuch greater culpability of her partner, Mr Daley.Personal factors[42] The Judge had before her a cultural report by a friend of the appellant and areport prepared by a clinical psychologist. The friend reported the appellant grew upin the Pākehā world and was in her late teens before she came to recognise her Māoriheritage. She has always had a strained and turbulent relationship with her mother,but has very close bond with her father.[43] The appellant "began to go off the rails" at age 15. She became rebellious andleft school. She met her oldest children's father, who was abusive both physically andmentally. She signed custody rights to her two oldest children over to her parents tokeep them safe from their father. After years of abuse, she finally left him.The appellant began self-medicating with alcohol, which led down the path to the useof methamphetamine.[44] The report writer opines that the appellant's fear of rejection caused her to stayin abusive relationships longer than needed. Although not raised in a violent or gangworld, she became lost in such a world, where a woman's opinion holds no value orstrength.[45] The appellant is, however, actively trying to right her mistakes and get out thesituation "she was simply collateral damage in". She now has sole custody of heryoungest, third son and is looking forward to the day she can be reunited with him.[46] The Judge also had before her a psychological report which describedsymptoms of PTSD relating to the shooting of Ms Nepia and also traumatic eventswhen she was a teenager.[47] After recounting all the reports and other material available, the Judge said:27[37] I have to say, Ms Walker-Dahlberg, the question of what we callpersonal mitigating factors is a difficult one in your case. Unlike Mr [Daley],for example—where it is not difficult to see how his childhood, his morerecent past and his mental health issues have led him to where he is today—quite how you have ended up here is much less clear to me. I acknowledgethat you have suffered some traumatic life events which have diminished yourcoping ability and which you need help to address and resolve without turningto drugs and alcohol. I also acknowledge, again, that you still have realpotential to make something of your life and that you wish to do so. But thereis very little in the way of your personal circumstances that could justify asignificant reduction in sentence today. I am, though, prepared to accept thatyou have recently exhibited signs of remorse, even though, I have to say, theyhave been a long time coming.[48] Like the Judge, we are of the view that Ms Walker-Dahlberg's psychologicaland cultural reports provide relatively limited assistance in understanding how sheended up in her present position. In contrast with the reports the Judge had before herconcerning Mr Daley — whose psychiatric report disclosed a childhood marred byappalling violence and serious mental illness in adulthood — the factors discussed inMs Walker-Dahlberg's reports recorded a more benign upbringing up till the pointwhen, as Ms Walker-Dahlberg's friend described it, she went off the rails.[49] However, Ms Walker-Dahlberg herself demonstrated an understanding of whathad happened. As she put it in her letter of remorse tendered to the Court, she tookresponsibility for her own choices and actions. She stated:I have now come to realise that it is my own choices in life that have led meto where I now stand. The choice I made in my then partner, my associations,the company I kept, as well as the lifestyle my then relationship had me inwere the worst choices I have ever made. Choices that have cost me dearly,choices I wholeheartedly regret. I now have to live with them, along withtheir consequences. However, I only have myself to blame. I stand here today,and I take full responsibility, for these choices. This is a lesson learnt, one thatwill never have to be learnt ever again.[50] Her psychologist's report contains the following comments:27 Sentencing notes, above n 1.Ms Walker-Dahlberg said she was born and raised in Masterton with herbrother. She described a benign childhood and she said she was not aware ofany problems in her early years and she achieved normal milestonesthroughout infancy and early childhood. She denied there was any seriousconflict between her parents and described generally appropriate disciplineand boundaries in a supportive home. She said her parents instilled positivevalues such as loyalty, respect and good manners.However, Ms Walker-Dahlberg speculated that her stable upbringing meantthat she was sheltered from the negative aspects of gang life and soughtexcitement in her early teen years leading to a self-destructive pattern ofengagement with gang members who promoted substance abuse,disengagement from her family and anti-social behaviour including violence.[51] In our view, and against that background, the Judge gave appropriaterecognition for Ms Walker-Dahlberg's personal circumstances in allowing a13 per cent discount in addition to the discount of 20 per cent for her guilty plea.Parity[52] Although Mr Takamore was originally sentenced to a term of 12 months' homedetention for his role in the aggravated burglary, an application was later made by theDepartment of Corrections for his re-sentence after he left the home detention addresswithout consent. After being sentenced on 13 September 2019 and serving fourmonths (or a third) of the sentence of home detention, Mr Takamore was remanded incustody on 19 January 2020. After being in custody for two months, the Department'sapplication was dismissed with the effect that Mr Takamore's sentence of homedetention continued to run.28[53] After another seven weeks serving the sentence of home detention,Mr Takamore was removed from the home address at the request of the occupant andremanded in custody on 8 May 2020. After being in custody for another month, thesentencing Court cancelled the sentence of home detention on 12 June 2020 andre-sentenced Mr Takamore to one year, three months and two weeks' imprisonment.29In doing so, it recognised that Mr Takamore had completed half his nominal endsentence of two years' imprisonment (before it was commuted to 12 months' homedetention).28 R v Takamore [2020] NZHC 574.29 R v Takamore [2020] NZHC 1328.[54] Parity has to be assessed by a comparison, not of the end sentence, but of thestarting points for the offending. In the present case, there was only six months'difference between the starting point adopted for the appellant and Mr Takamore,which we regard as appropriate given their respective roles in the offending. There isno issue of parity.Result[55] The appeal is allowed.[56] The sentence of three years' imprisonment is quashed and replaced with asentence of two years and four months' imprisonment, being a starting point of threeyears and six months' imprisonment discounted by 33 per cent for guilty plea, remorseand time spent on restrictive bail.Solicitors:Crown Law Office, Wellington for Respondent