HEREMAIA v R [2023] NZCA 232

HEREMAIA v R [2023] NZCA 232 [14 June 2023]NOTE: PURSUANT TO S 25 OF THE MENTAL HEALTH (COMPULSORYASSESSMENT AND TREATMENT) ACT 1992, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILYCOURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA172/2022[2023] NZCA 232BETWEEN WILLIAM SHANE HEREMAIAAppellantAND THE KINGRespondentHearing: 3 May 2023Court: Gilbert, Thomas and Woolford JJCounsel: J M Hudson for AppellantE J Hoskin for RespondentJudgment: 14 June 2023 at 2 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] Mr Heremaia was convicted of manslaughter following a jury trial in theAuckland High Court.1 Fitzgerald J sentenced him to six years and seven months'imprisonment.2 He now appeals against his conviction and sentence.Background[2] On 13 May 2020, the female victim, Mr Heremaia and an associate weredrinking alcohol together in Mr Heremaia's unit in West Auckland. The group alsoconsumed cannabis, which the victim had brought with her.[3] At some point during the evening, the victim was violently assaulted and diedfrom multiple blunt force and sharp force injuries.[4] The victim's body was found lying on the floor of Mr Heremaia's unit. She hadsustained significant injuries including fractured ribs, a broken scapula, swelling toher face, extensive bruising, a head injury, evidence of likely stomping to her abdomenarea, significant lacerations to the left side of her face and ear, a (non-fatal) stab woundto her neck and a stab wound to her chest. Her bra was exposed, her underwear hadbeen removed, and her jeans were undone and incorrectly fitted. Three blood-stainedknives were on the kitchen bench and one was found next to the victim's body.[5] The victim's DNA was found in bloodstains on Mr Heremaia's shoes andclothing. Mr Heremaia's DNA was found in oral, vaginal and introital swabs takenfrom the victim. His DNA was detected on the inside and outside of her jeans andunderwear. No evidence of semen was found. DNA from both Mr Heremaia andthe associate was found in the victim's fingernails.[6] The victim's DNA was found on all four knives. The associate's DNA wasfound on two. Mr Heremaia's DNA was not found on any of the knives.1 Crimes Act 1961, ss 160 and 171.2 R v Heremaia [2022] NZHC 443 [Sentencing notes].[7] When interviewed by police, Mr Heremaia claimed he had no recollection ofwhat had occurred. He maintained he had passed out or fallen asleep around 6.00 pmand woken to find the victim on the floor of his unit at around 1.00 am. Unable todetect her breathing, he became concerned she was dead and sought help from hispartner who resided in an upstairs unit. He denied touching the victim. The defencecase at trial was that the associate killed the victim while Mr Heremaia was either in adrunken slumber or had been knocked unconscious.[8] The admissibility of the DNA evidence from samples taken from the victim'sbody and clothing was challenged pre-trial. The evidence was ruled admissible on thebasis it was forensic evidence which tended to support the proposition thatMr Heremaia had at least some form of close contact with the victim and that it wasan important part of the Crown's (circumstantial) case against him.3[9] Mr Heremaia and the associate were both charged with the victim's murder.The associate was found unfit to stand trial. At the conclusion of the Crown caseagainst Mr Heremaia, Fitzgerald J discharged the murder charge, leaving a charge ofmanslaughter on which the jury found him guilty.Conviction appealGrounds of appeal[10] Mr Heremaia appeals his conviction on the following grounds:(a) the trial Judge erred by failing to provide a lies direction under s 124 ofthe Evidence Act 2006;(b) the trial Judge did not give a tailored direction, or a sufficient direction,about how the DNA evidence was to be used, or about prejudice andsympathy; and3 R v Heremaia HC Auckland CRI-2020-090-2204, 29 July 2021 (Reasons for Ruling (1))at [19]–[20].(c) the Judge failed to give a warning about voice identification evidencegiven by a witness who was Mr Heremaia's neighbour.Did the trial Judge err by failing to provide a lies direction?[11] Section 124 of the Evidence Act provides:124 Judicial warnings about lies(1) This section applies if evidence offered in a criminal proceedingsuggests that a defendant has lied either before or duringthe proceeding.(2) If evidence of a defendant's lie is offered in a criminal proceedingtried with a jury, the Judge is not obliged to give a specific directionas to what inference the jury may draw from that evidence.(3) Despite subsection (2), if, in a criminal proceeding tried with a jury,the Judge is of the opinion that the jury may place undue weight onevidence of a defendant's lie, or if the defendant so requests, the Judgemust warn the jury that—(a) the jury must be satisfied before using the evidence thatthe defendant did lie; and(b) people lie for various reasons; and(c) the jury should not necessarily conclude that, just becausethe defendant lied, the defendant is guilty of the offence forwhich the defendant is being tried.[12] In Mr Hudson's submission, for Mr Heremaia, the trial Judge's approach to thequestion of lies erred in two ways:(a) by wrongly concluding that a lies direction was not necessary; and(b) by failing to give a warning, despite the defence request she did so.Did the Judge wrongly conclude that a lies direction was not necessary?[13] The Judge provided comprehensive bench notes throughout the trial.Her bench note which discussed the question of a lies direction said as follows:4[3] In court for chambers, I discussed with counsel whether there wereany matters arising from the closings. Mr Tait queried whether I proposed togive a lies direction, given the Crown's submission to the jury thatMr Heremaia's account of events as given in his EVI was not credible, and thejury could infer he was lying to the Police. I noted that I did not consider alies direction was necessary, and that such a direction is directed more to ascenario where it is not in dispute that either a defendant or a witness has lied.In this case, the credibility or otherwise of Mr Heremaia's account will be amatter for the jury's assessment in the ordinary way, just as the credibility ofany other witness's evidence will be. (I also gave a tri-partite direction in mysumming up in relation to Mr Heremaia's EVI, including that even if the jurydoes not accept his account, they are not to reason straight from that to guilt.)[14] Mr Hudson noted that, in closing, the Crown contrasted the apparentinconsistency between Mr Heremaia's police video interview, where he said that hedid not have any physical interaction with the victim, and the DNA evidence.The Crown also alleged Mr Heremaia had lied about the time he went to bed and thetime he claimed he had woken and discovered the victim's body. In Mr Hudson'ssubmission, whether Mr Heremaia lied was therefore a matter the jury was required todetermine and a lies direction would not have diverted the jury's attention to a matterthey would not have otherwise considered. Mr Hudson maintained that, followingthe Crown and defence closing addresses, trial counsel requested that the Judge givea lies direction.5[15] In Ms Hoskin's submission, for the respondent, there were no clearlyestablished or admitted lies told by Mr Heremaia that formed part of the case againsthim. This was a case where the defence offered an exculpatory explanation which, onthe Crown case, was false. Ms Hoskin urged us to distinguish the case of Ward v R,where an appeal against conviction on charges of supplying methamphetamine andsexual violation was allowed, in part given the absence of a lies direction.6 In his DVDinterview, Mr Ward initially denied knowing the complainant, then denied sexualactivity with her and gave an account inconsistent with text messages he sent to her.4 R v Heremaia HC Auckland CRI-2020-090-2204, 9 August 2021 (Bench Note (10)).5 At [3].6 Ward v R [2016] NZCA 280.In Ms Hoskin's submission, Ward was a case where the defendant effectively admittedthat he had lied. It was in those types of circumstances that a lies direction isappropriate, she suggested, but it is not required where the Crown "simply maintainsthat a defendant's exculpatory explanation is false".7[16] Section s 124 is not limited to cases where it is not in dispute that a defendanthas lied. Section 124(1) provides that the section applies if evidence "suggests" thata defendant has lied. Subsection (3), which addresses the judicial warning, requiresthe judge to assess whether the jury may place undue weight on evidence of adefendant's lie.[17] On balance, we do not consider that the Judge erred in her assessment that alies direction was not warranted in the circumstances. In closing, the Crown said:[Mr Heremaia] told Detective Constable Anthony McLaughlin that he eitherwent to sleep at 5 pm or was knocked out he says he knew nothing aboutwhat happened with [the victim]. My case is that he is lying to you. I willinvite you to infer what he knew, intended and did when [the victim] wasmurdered, but I am not inviting you to speculate or to guess.We interpret this submission as a challenge to Mr Heremaia's credibility on the basisof the evidence, inviting the jury to conclude that his account could not be correct.[18] Trial counsel in closing said that: you can only [answer] the questions the police put to you and the reality isall the things that he told us are true. Apart – what the Crown is saying thestatement's lies. Well, what? The fact that he doesn't remember is lies, whatabout all the other stuff [trial counsel refers to a number of statements madeby Mr Heremaia about things that were true] So you have to be cautious, one would say, when you swallow the submissionof the prosecutor about [Mr Heremaia's] statement being lies. It has to beweighed up with his addiction, his intelligence [19] The defence closed to the jury on the basis that all the things Mr Heremaia saidwere true. In those circumstances, we consider that the Judge would have been opento criticism if a lies direction were given as the direction would have effectivelyundermined trial counsel's closing submission. It would also carry the risk that the7 R v Guo [2009] NZCA 612 at [68].jury might think the Judge was giving the direction because she believed thatMr Heremaia's version of events was false.8[20] We also note that the Judge gave the jury a tripartite direction, even though onewas not, strictly speaking, required as Mr Heremaia did not give evidence.The tripartite direction involved the Judge instructing the jury that: even if you reject what Mr Heremaia said in his interview, then do not leapfrom that assessment to assuming Mr Heremaia must be guilty, because to doso would be to forget who has to prove the charge. Rather, you would put thatevidence to one side and then assess all the other evidence that you do accept.Did the Judge err in failing to give a warning despite the defence request she do so?[21] The Judge's bench note does not support the contention that trial counselrequested the Judge to give a lies direction despite her conclusion that she did notconsider one was necessary. The Judge referred to trial counsel's "query" about aproposed lies direction. That suggests there was an inquiry as to how the Judgeintended to proceed, not a defence request capable of triggering the mandatory liesdirection.9[22] This point is emphasised by the failure of trial counsel to request a lies directionafter the Judge concluded her summing up. Counsel informed the Judge there wereno issues arising from her summing up.10[23] In summary, even if there had been some misunderstanding as to whetherthe defence in fact requested a lies direction, trial counsel had the opportunity tocorrect that misunderstanding by making a request, following which the Judge wouldhave been required to give a lies direction. There was no such request.[24] We dismiss this ground of appeal.8 See similar comments in Howard v R [2018] NZCA 555 at [84]. See also Pink v R [2022]NZCA 306 at [91]–[95] and R v R [2022] NZCA 415 at [93].9 Evidence Act, s 124(3).10 R v Heremaia HC Auckland CRI-2020-090-2204, 9 August 2021 (Bench Note (11)) at [2].Should the Judge have provided a tailored direction about how the DNA evidence wasto be used or the resulting prejudice and sympathy?[25] Mr Hudson submitted that the potentially unfairly prejudicial nature of theDNA evidence, particularly as it related to intimate samples taken from the victim andher clothing, was raised prior to trial. Mr Hudson contended that the failure to directthe jury about how to approach this particular evidence caused a miscarriage of justice.[26] Mr Hudson acknowledged that the Judge referred to prejudice and sympathyat the beginning of her summing up but submitted the highly prejudicial nature of theDNA evidence meant a tailored direction was needed. He said the Judge's prejudiceand sympathy direction did not refer to the intimate connection between Mr Heremaiaand the victim which was established by the DNA. Mr Hudson submitted the Judgeshould have given a more nuanced direction, especially given the Crown closed on thebasis that there was a sexual element involved in the events which resulted in thevictim's death. He suggested the Judge should have tailored her direction and pointedout that Mr Heremaia did not face any charges alleging sexual offending.[27] We agree with Ms Hoskin's submissions on this issue. Prejudice and sympathywere the subject of focused submissions by both counsel at trial. The Judge directedthe jury in fulsome terms on the need to put prejudice and sympathy to one side andconveyed similar sentiments in the tripartite direction. The Judge summarised boththe defence and Crown theories in relation to the DNA evidence and told the jury"[y]ou will no doubt want to consider their evidence in its full context, and of coursein the context of all the other evidence you have heard in this case". We consider thatnothing more was required.[28] Mr Heremaia denied any sexual or intimate contact with the victim. Had theJudge commented on the absence of a charge of sexual offending, this may have donemore harm than good by suggesting to the jury such a charge was possible andpotentially caused the jury to attach more weight to this matter than was warranted.Notably, trial counsel did not consider any further direction was required whenthe Judge asked counsel if they had any issues following her summing up.[29] We dismiss this ground of appeal.Did the Judge err in failing to give a warning about the voice identification evidencegiven by a witness who was Mr Heremaia's neighbour?[30] Section 126 of the Evidence Act provides that in a jury trial in which the caseagainst a defendant depends wholly or substantially on the correctness of one or morevoice identifications of the defendant or any other person, the Judge must warn thejury of the special need for caution before finding the defendant guilty in reliance onthe correctness of any such identification.11[31] Mr Hudson submitted that an important aspect of the Crown case was thatMr Heremaia was awake much later than 6.00 pm (when he claimed to have passedout or fallen asleep after consuming alcohol and cannabis). Mr Heremaia's next-doorneighbour gave evidence that she could hear the voices of Mr Heremaia and the victimon the evening of the victim's death, well past 6.00 pm. The Judge refused trialcounsel's request for a voice identification warning immediately following theidentification evidence, as she was not persuaded that the case against Mr Heremaiadepended wholly or substantially upon the correctness of the voice identificationevidence.[32] In Mr Hudson's submission, while the Crown referred to other strands ofevidence, the correctness of the neighbour's identification was significant given itsrole in establishing Mr Heremaia was present and awake around the time of death.He said the Crown referred to this as an important piece of circumstantial evidence.[33] The Judge's bench note recorded that, after the neighbour gave her evidence,trial counsel asked the Judge whether a direction would be given and the Judgeexplained her view that one was not required.12 The Judge left the issue open to berevisited at the time of summing up and it does not appear that trial counsel objectedto this course.[34] The Judge then raised the matter with Crown and trial counsel prior to hersumming up and repeated that she did not intend to give a voice identification directionbecause she was not satisfied the Crown's case turned wholly or substantially on the11 Evidence Act, s 126(1).12 R v Heremaia HC Auckland CRI-2020-090-2204, 27 July 2021 (Bench Note (2)) at [8].neighbour's evidence.13 We consider that assessment correct and that the Judge didnot err in failing to give such a warning. While the neighbour's evidence wasimportant, the Crown also relied on other evidence, such as the DNA evidence, bloodon Mr Heremaia's face and bloodied footprints, the nature of the injuries,Mr Heremaia's behaviour in front of paramedics, and evidence of other neighbours.[35] But the short point is that there was no challenge to the witness' voiceidentification evidence in cross-examination. Mr Hudson conceded that, in thosecircumstances, there was no basis for any warning from the Judge. Mr Hudson thenresponsibly confirmed that this ground of appeal was no longer pursued.[36] We dismiss this ground of appeal.Conclusion[37] None of the grounds of appeal gave rise to a miscarriage of justice. The appealagainst conviction is dismissed.Sentence appeal[38] In sentencing Mr Heremaia, the Judge adopted a starting point of nine years'imprisonment.14 She allowed a discount of 25 per cent to reflect Mr Heremaia'spersonal circumstances and imposed a sentence of six years and seven months'imprisonment.15Grounds of appeal[39] Mr Heremaia appeals his sentence on the following grounds:(a) the sentence imposed was manifestly excessive due to the starting pointadopted;13 R v Heremaia HC Auckland CRI-2020-090-2204, 4 August 2021 (Bench Note (8)).14 Sentencing notes, above n 2, at [36].15 At [47] and [53].(b) there was inadequate credit to reflect Mr Heremaia's poor health andshortened life expectancy, visual impairment and cognitive difficulties;(c) there was an inadequate credit of two months for time spent on remandsubject to restrictive bail conditions; and(d) no credit was given for the lack of any in-person contact betweenMr Heremaia and his whānau whilst remanded in custody due toCOVID-19 restrictions.Was the starting point too high?[40] The Judge began her sentencing by noting she was required to form her ownview of Mr Heremaia's culpability. She concluded the associate was significantlyinvolved in the assault on the victim`, describing him as a large and volatile man andreferring to the DNA evidence which suggested he used at least two of the knivesfound with the victim's blood on them. His DNA was found under the fingernails ofthe victim's right hand and the evidence of likely stomping on the victim suggested itwas from shoes belonging to the associate.16 The Judge concluded that Mr Heremaiaparticipated in the assault but in a less dominant way than the associate.17[41] The Judge rejected the Crown's submission that the use of knives was anaggravating factor, saying it could not safely be inferred that Mr Heremaia used theknives, or that he was aware the knives were being used.18 She also put aside thesuggested "unexplained sexual element to the offending" as it was not possible to saywhether this contact was in any way related to the assault.19[42] The Judge regarded the following as aggravating factors of Mr Heremaia'soffending:20(a) the assault was sustained and brutal;16 At [16].17 At [17].18 At [19].19 At [29].20 At [28].(b) the injuries to the victim were largely to her head, face, neck and upperbody;(c) there were two attackers; and(d) the victim was vulnerable, given her extreme intoxication at the time ofthe assault.[43] The Judge referred to a report from a clinical and neuropsychologist suggestingthat, given his reduced mental cognition, Mr Heremaia was vulnerable to others'influence and motivated in his behaviours to please and agree with others.However, she concluded there was no evidential foundation to suggest such issuescaused or contributed to Mr Heremaia's involvement in the assault, notingMr Heremaia's defence that he was not involved at all, rather than maintaining he hadbeen coerced and encouraged by the associate. The Judge did not consider this issueto be a mitigating factor to be taken into account when setting the starting point.21[44] The Judge reviewed a number of cases and concluded that a starting point ofnine years' imprisonment was appropriate.22[45] The Judge then cross-checked the starting point against R v Taueki, theguideline judgment for sentencing in cases involving grievous bodily harm.23A starting point of nine years fell within the top end of Taueki band 2 and the lowerend of band 3. She concluded three or more aggravating factors were present: seriousviolence; the use of weapons; attacking the head; multiple attackers; and a vulnerablevictim. She was therefore satisfied the starting point of nine years' imprisonment wasappropriate in the context of Taueki.21 At [31]. See for example R v FM [2008] NZCA 148 at [33]; and Shailer v R [2017] NZCA 38,[2017] 2 NZLR 629 at [43].22 R v Barlow HC Auckland CRI-2003-019-1, 27 April 2007; R v Hughes HC WhangareiCRI-2005-088-4349, 11 May 2007; R v Wawatai [2014] NZHC 2374; R v Day [2014] NZHC3412; and Blackler v R [2019] NZCA 232 (and the cases referred to therein).23 R v Taueki [2005] 3 NZLR 372 (CA). The Judge noted that the Court in Taueki emphasised thatthere must be flexibility in the use of bands, an assessment of the seriousness of each factor andindividual culpability. Sentencing notes, above n 2, at [36].[46] Mr Hudson contended that the starting point was too high, largely because oferrors in the identification of aggravating factors and by placing too much emphasison them. As a result, the offending was in a higher Taueki band than was warranted.Mr Hudson submitted that the Judge erred in identifying the use of weapons as anaggravating feature, given her finding that there was no evidence upon which shecould safely infer that Mr Heremaia used a knife or knew the associate was using one.He challenged the Judge's inclusion of the features of serious violence and attackingthe head given her conclusion about Mr Heremaia's role and the unchallengedevidence he was blind.[47] Mr Hudson submitted that the facts of the offending were closer to the case ofR v Barlow, where a starting point of eight years' imprisonment for manslaughter wastaken,24 than R v Day to which the Judge referred.25 Mr Barlow pleaded guilty tomurder and his co-offender, Mr Tukaki, was convicted of manslaughter following trial.Mr Barlow accepted responsibility for inflicting most of the severe injuries.Mr Tukaki admitted punching the victim two or three times and kicking him on theground once or twice (while wearing soft shoes). The trial Judge consideredMr Tukaki may well have downplayed his involvement but, as his precise role was notclear, adopted "the safer course" of a starting point of eight years' imprisonment.26[48] A nine-year starting point was taken in R v Day. Mr Day and the victim hadbeen drinking together and smoking cannabis. Following a disagreement, Mr Dayobtained a knife and stabbed the victim multiple times. He claimed he had a panicattack and was not aware of his actions. The starting point of nine years' imprisonmentwas considered appropriate, taking into account Mr Day's reduced level of intent dueto the panic attack, the Judge saying that a higher starting point would otherwise havebeen likely.27[49] Only one of the cases considered by the Judge was a decision of this Court,Blackler v R. Mr Blackler and his friend had consumed a significant amount of alcoholtogether when the friend made disparaging comments about Mr Blackler's sister.24 R v Barlow, above n 22, at [21].25 R v Day, above n 22, at [34].26 R v Barlow, above n 22, at [21].27 R v Day, above n 22, at [23].Mr Blackler attacked him, striking him multiple times to the head and neck area andcausing serious facial injuries. The injuries would not have resulted in the death of ahealthy person but the victim had a pre-existing heart condition and died. After theattack, Mr Blackler realised he might have killed the victim and left the house.The victim was found dead the following morning. The sentencing Judge placed theoffending in band two of Taueki and took a starting point of six years' imprisonment,which this Court considered within range, noting that the savagery of the beating tothe head and the callous behaviour afterwards in themselves justified a six-yearstarting point.28[50] These cases involved a range of circumstances and starting points. We makethe obvious observation that each case turns on its particular facts. As this Court hasobserved, a comparative exercise is never easy in manslaughter cases and caution isrequired when comparing cases as the circumstances of manslaughter vary so greatly.This is especially so in cases where the sentencing judge has, as here, presided over atrial and thereby acquired a detailed feel for the offender's true culpability.29[51] The Judge referred to R v Taueki only after she had already determined astarting point. While she did refer to the use of weapons, we interpret that as being inthe context of the offending overall before she returned to Mr Heremaia's culpability.With over three aggravating factors, namely two offenders, extreme violence, avulnerable victim and the fact injuries were to the victim's head, neck and upper body(and not including the fact the victim died), the offending fell into the lower end ofband 3 of Taueki, with a starting point of between nine and 14 years' imprisonment.Moreover, while Taueki may be useful as a check that the starting point is in range,there is no tariff case for manslaughter and a sentencing judge must make adetermination on the particular circumstances in the case.[52] In our view, there was no error. The Judge carefully explained the basis onwhich she approached Mr Heremaia's involvement in the offending. She specificallyput to one side the use of the knife and the "unexplained sexual element to the28 Blackler v R, above n 22, at [27].29 R v Edwards [2005] 2 NZLR 709 (CA) at [14].offending".30 Having taken into account Mr Heremaia's lower culpability and theaggravating features of the offending specific to him, while recognising the attack onthe victim was particularly brutal, she reached an appropriate starting point ofnine years' imprisonment.Was inadequate credit granted to reflect Mr Heremaia's personal circumstances?[53] The Judge did not consider the cultural report suggested that any culturalfactors, as opposed to personal health and associated difficulties, were relevant to thepurposes of sentencing.31 She accepted that the loss of Mr Heremaia's sight andresulting loss of employment and his slide into alcoholism contributed toMr Heremaia's state at the time of his offending. His loss of vision clearly led to adownward spiral in his life and the Judge accepted there was some, although limited,link between this and his offending, meaning that a very modest discount would beavailable.32[54] The Judge was satisfied Mr Heremaia's blindness and cognitive difficultieswould mean a sentence of imprisonment weighed more heavily on him.33 She alsoacknowledged Mr Heremaia's recent cancer diagnosis (which she noted was beingmanaged appropriately in custody) which is likely to significantly affect his lifeexpectancy.34 She noted that s 41 of the Parole Act 2002, which allows for earlyrelease on compassionate grounds, might become relevant in the future.35[55] The Judge observed that discounts for ill health have ranged from around 14 to33 per cent, depending on the severity of a defendant's health conditions.36She adopted a global discount for all personal factors of 25 per cent.[56] Mr Hudson said that, while Mr Heremaia is only 52 years old, he has a myriadof health needs and a visual impairment which will make a sentence of imprisonmentsignificantly more difficult for him. The 25 per cent discount for personal30 Sentencing notes, above n 2, at [29].31 At [42] (emphasis original).32 At [42].33 At [43].34 At [44].35 At [46].36 At [47] citing Hastie v R [2011] NZCA 498 at [40].circumstances was inadequate, in his submission, citing the Supreme Court decisionin Berkland v R which was released after Mr Heremaia was sentenced.37In Mr Hudson's submission, following the guidance of Berkland, a greater discountshould have been applied to reflect the causative connection between Mr Heremaia'sbackground and the offending, including the destructive consequences of his loss ofvision, descent into long term unemployment, alcoholism and addiction. Mr Hudsoncontended that these effects were amplified by Mr Heremaia's intellectual impairment,and a high level of dependence and suggestibility. Mr Hudson submitted this reductionshould have been assessed separately from any allowance for Mr Heremaia's reducedlife expectancy due to cancer.[57] In Berkland, Mr Berkland was given a 10 per cent discount for background andaddiction.38 The Court considered that the available information established thatvarious background factors contributed causatively to his offending and should havematerially affected his sentence in accordance with the relevant purposes andprinciples of sentencing which mandate individualised justice.39[58] We do not see any reason to interfere with the Judge's conclusion that thecultural report did not suggest any cultural factors had a causative connection to theoffending, although personal health and associated difficulties did. While the Judgeconsidered a very modest discount was available given her conclusion thatMr Heremaia's loss of vision led to a downward spiral in his life and that had a limitedlink to the offending, she took an overview of these factors and his other personalcircumstances which would mean imprisonment would weigh more heavily on himthan others and this included his cancer diagnosis and reduced life expectancy.[59] Discounts for age and poor health are justified on the basis that the particulardefendant is likely to suffer from a sentence of imprisonment more than otheroffenders.40 Mr Heremaia's doctor has confirmed Mr Heremaia's diagnosis.Mr Heremaia is receiving chemotherapy and other treatment is under consideration.37 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.38 At [162(a)].39 At [16] and [156]–[158].40 Edwardson v R [2017] NZCA 618 at [130]. In R v Vershaffelt [2002] 3 NZLR 772 (CA) this Courtcommented that this humanitarian principle found statutory expression in s 8(h) of the SentencingAct 2002.He has other health difficulties, including poorly controlled diabetes. Mr Heremaia'sdoctor described him as having responded very favourably to treatment. She said therewas no difference in management in the prison compared to the community and in factmanagement is likely better in the prison given the presence of medical staff to manageMr Heremaia's diabetes and to ensure he is compliant with his therapy. Mr Heremaia'sform of cancer has a median survival rate of five to ten years. The opinion ofMr Heremaia's doctor, given Mr Heremaia's genetic markers and presenting features,is a predicted median survival of three to seven years, depending upon his response totreatment.[60] When a prisoner's health declines seriously after sentence, the appropriateresponse is likely to be administrative — for instance under the Parole Act.41That said, this Court in R v Luce held that where extreme ill health is coupled with avery low life expectancy, a more than usual discount can be justified.42 Whether adiscount is appropriate and the amount of that discount is a matter of fact and degreewhich turns on the particular circumstances of the case — however, generally, thereductions given are limited.43[61] We consider the Judge assessed Mr Heremaia's personal circumstancescorrectly and that a 25 per cent reduction from the starting point appropriately reflectedthose matters, including the difficulties a sentence of imprisonment would cause him.She was right to identify the Parole Act provisions for early release which could beused if appropriate in the future.44 The fact no minimum period of imprisonment wasimposed is also important. It means Mr Heremaia can be considered for release by theParole Board on the earliest eligible date. The Parole Board will then have anopportunity to consider Mr Heremaia's personal circumstances at that time.41 Poi v R [2015] NZCA 300 at [13]. See also R v Pomona [2007] NZCA 138 at [22]; R v HartCA199/93, 17 November 1993; R v Tuoro CA 44/94, 17 March 1994; and de Bruin v R [2007]NZCA 600 at [56]. Statutory responses could be under ss 25(1) or 41(1)(b) of the Parole Act ors 62(2)(a)(ii) of the Corrections Act 2004.42 R v Luce [2007] NZCA 476 at [25].43 M (CA91/2012) v R [2013] NZCA 325 at [54].44 Sentencing notes, above n 2, at [46] citing Parole Act 2002, s 41.[62] Overall, while another judge might have given a slightly higher discount toaccount for the factors contributing to the offending and for ill health, it cannot be saidthat the Judge's decision to apply a 25 per cent discount was in error.Was the credit for the time spent on restrictive bail conditions inadequate?[63] Mr Heremaia spent approximately 14 months on bail at his sister's addresssubject to a 24-hour curfew.[64] Mr Hudson contended this factor should have led to a greater reduction fromthe starting point than the two months the Judge allowed and that it should have beenin the region of seven months.[65] It is difficult to equate time spent on restrictive bail with time spent as a remandprisoner or even on bail while subject to electronic monitoring. New Zealand courtshave not treated restrictive bail as equivalent to remand in custody, even where bailincludes conditions amounting to house arrest. Bail conditions may permit adefendant substantially greater flexibility of movement and contact than if remandedin custody.45 What is required is an evaluative assessment of all the circumstances.There will be occasions where no allowance is required at all.46 Relevantconsiderations may be the extent to which the offender's liberty has been curtailed bythe bail conditions, the duration of the remand on bail, and whether the offenderbreached bail.47[66] We agree with the Judge's assessment that the seven month discount sought byMr Heremaia was not appropriate. As noted by the Judge, Mr Heremaia's bail was notelectronically monitored and was therefore less restrictive. It was "punctuated by notinfrequent absences from the address".48 Absences included shopping, visits to thebank, attending a family Christmas and a family birthday barbeque. A discount of twomonths was not in error.45 Paora v R [2021] NZCA 559 at [50]–[51].46 R v Tamou [2008] NZCA 88 at [19].47 Filoa v R [2010] NZCA 588 at [9]. See also Murray-MacGregor v R [2011] NZCA 66 at [18].48 Sentencing notes, above n 2, at [50].Should credit have been given for the absence of in-person contact betweenMr Heremaia and his whānau while he was held in custody due to COVID-19restrictions?[67] The Judge declined to allow a discount for the period of Mr Heremaia's remandin custody between 10 August 2021 and the date he was sentenced, 11 March 2022.49This period coincided with the lengthy COVID-19 lockdown in Auckland in thesecond half of 2021. Mount Eden Prison, where Mr Heremaia was held, was closedto whānau visits. In Mr Hudson's submission, those restrictions meant Mr Heremaiawas unable to have personal contact with his whānau during an especially difficultperiod, including the time when he was diagnosed with cancer. He cited the case ofR v Zhang, where an additional discount of five per cent was given to reflect the impactof COVID-19 on a prisoner's family support.50[68] The circumstances in R v Zhang were somewhat different. While Mr Zhang'swife and son lived in New Zealand, the rest of his family resided in Taiwan and China.Davison J in that case observed that the likelihood of his family visiting him wassignificantly diminished by the COVID-19 border restrictions which were in place atthat time. The Judge recognised that the denial of family support to foreign nationalsimprisoned in New Zealand may be treated as a mitigating factor as it renders asentence of imprisonment more severe. The combination of COVID-19 restrictionsand the fact Mr Zhang was not from New Zealand had been, and was likely to continueto be, denied family support. This warranted a discount of five per cent.51 While theJudge acknowledged that COVID-19 restrictions had contributed to a lack of familysupport for the period prior to sentencing, the discount was primarily a result of theassessment of the impact on Mr Zhang as a sentenced prisoner.[69] This Court has upheld discounts relating to COVID-19 restrictions in severalother cases involving foreign nationals imprisoned in New Zealand. As was the casein Zhang, these discounts were predominantly focused on the time that would be spentin prison after sentencing.5249 At [52].50 R v Zhang [2021] NZHC 3583.51 At [55].52 Hayden v R [2020] NZCA 369; and Wilkinson v R [2021] NZCA 438; and Zhang v R [2022] NZCA267.[70] The same considerations are not present in Mr Heremaia's case. Mr Heremaiais a New Zealand citizen whose whānau reside in New Zealand and will be able tosupport him in person as he serves his sentence. As noted by the Judge, COVID-19restrictions applied not only to those on remand but to a large number ofNew Zealanders.53 There was no error in the failure to give a discount in respect ofCOVID-19 restrictions which affected his period in custody on remand.Conclusion[71] We are not satisfied there was an error in the sentence and that a differentsentence should be imposed. The appeal against sentence is dismissed.Result[72] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent53 Sentencing notes, above n 2, at [52].