WAIKATO-TUHEGA v R [2021] NZCA 503

WAIKATO-TUHEGA v R [2021] NZCA 503 [4 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA112/2021[2021] NZCA 503BETWEEN ZION WAIKATO-TUHEGAAppellantAND THE QUEENRespondentHearing: 26 July 2021Court: Goddard, Thomas and Wylie JJCounsel: H M S Cheeseman for AppellantJ E Mildenhall for RespondentJudgment: 4 October 2021 at 11.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of six years and four months' imprisonment is quashed andsubstituted with a sentence of four years and five months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Introduction[1] Zion Waikato-Tuhega was sentenced to six years and four months'imprisonment in the Auckland District Court following his conviction on two chargesof aggravated robbery, two charges of theft, one charge of unlawfully using or takinga vehicle, one charge of possession of an offensive weapon and one charge ofburglary.1[2] Mr Waikato-Tuhega appeals his sentence on the grounds the Judge erred ingranting inadequate discounts for his personal circumstances, namely his youth andcultural background, and as a result, the sentence was manifestly unjust. The Crownresponse is that, given the scale of the offending, the end sentence was, if anything,lenient.BackgroundFactual background[3] Mr Waikato-Tuhega was involved in four separate sets of offending whichoccurred between November 2018 and May 2020.[4] On two occasions in November 2018, when Mr Waikato-Tuhega was 17 yearsold, he arranged via Facebook to meet people who had advertised iPhones for sale.When he met each of them, he asked to look at the phone and, upon it being handedto him, he ran off with it. On the second occasion, Mr Waikato-Tuhega wasapprehended by the police and was found to be in possession of both phones anda claw hammer. This resulted in the two charges of theft and one of possession of anoffensive weapon.[5] In December 2018, six people, including Mr Waikato-Tuhega (still aged 17 andwearing a white cap at the time), entered a liquor store in Auckland, with their facespartially obscured. One of them pointed a pistol at the manager. The manager wasstruck several times in the head and body with a tennis racquet causing minor bruisingbut was able to escape the store. The offenders took the cash till and a quantity ofalcohol which they transferred into a previously stolen vehicle parked outside the storeand then drove away. The police located a white cap containing Mr Waikato-Tuhega'sDNA outside the store near where the vehicle had been parked. CCTV footage showedMr Waikato-Tuhega entering the store twice wearing the white cap and a third time1 R v Waikato-Tuhega [2021] NZDC 2506.without it but pulling his hood over his head to conceal his face from view.This resulted in the first aggravated robbery charge.[6] In the early hours of 8 May 2019, Mr Waikato-Tuhega (then 18 years old) andthree others entered a mall in Auckland by smashing through two sets of glass doors.They then entered a mobile telephone store by smashing through security doors.They stole at least 15 electronic items, including mobile phones, with a total value of$5000. The police saw them driving on the motorway exceeding the speed limit bysome 30 kilometres per hour. A police pursuit was abandoned but a police helicopterlocated the vehicle and tracked it travelling at dangerous speed against oncomingtraffic. The vehicle eventually crashed. Mr Waikato-Tuhega and the other threeoffenders were apprehended by the police a short time later. This resulted in theburglary charge.[7] The final set of offending occurred in May 2020. A car was stolen from anaddress in Auckland. About two weeks later, Mr Waikato-Tuhega (then 19 years oldand on bail) and four others travelled in the stolen car to a mall in Auckland.They wore gloves and hooded jerseys with bandanas covering their faces and carriedhammers. One offender carried a large rock.[8] The offenders smashed the glass door of a jewellery store (while severalassistants, customers and the store owner were inside) and threatened the staff whilesmashing several glass display cabinets with hammers. After removing gold jewelleryvalued at over $1 million, they returned to the waiting stolen car and fled the scene.Shortly afterwards, the offenders exited the car and ran through a park, dropping someof the stolen items as did so. They got into a waiting motor vehicle and drove awayat speed. The offenders were located by a police helicopter at an address in Papatoetoeand apprehended. This resulted in the second aggravated robbery charge and onecharge of unlawful taking of a vehicle.Sentencing indication and sentencing decision[9] On 20 November 2020, Judge Bouchier gave a sentencing indication to thefive offenders involved in the May 2020 aggravated robbery of the jewellery store andunlawful taking of a motor vehicle, and for Mr Waikato-Tuhega on the December 2018aggravated robbery and May 2019 burglary.2[10] The Judge identified the aggravating features of the jewellery store offendingas premeditation, the value of the items stolen, the use of weapons, and the presenceof multiple offenders.[11] She took a starting point of five years and six months' imprisonment,considering the offending to be similar to Inamata v R.3 That case concerneda daylight robbery of a jewellery store by multiple offenders wielding hammers andfleeing with items valued at around $1 million (although in that case only two stolenwatches were recovered, whereas here $850,000 of gold jewellery had beenrecovered). A five-and-a-half-year starting point was upheld on appeal.[12] The Judge uplifted the starting point by four years to account forMr Waikato-Tuhega's involvement in the December 2018 aggravated robbery andthe May 2019 burglary.4 She applied additional uplifts of four months forMr Waikato-Tuhega's Youth Court notations for unlawfully taking a motor vehicle andaggravated robbery, and three months for the fact that the May 2020 aggravatedrobbery of the jewellery store occurred while Mr Waikato-Tuhega was on bail pendingsentence for the December 2018 aggravated robbery and the May 2019 burglary.5This resulted in a final starting point of 10 years and one month's imprisonment.[13] In terms of mitigating factors, the Judge acknowledged Mr Waikato-Tuhega'syouth (being aged 19 at the time of his most recent offending and 17 at the time of thefirst aggravated robbery), as well as the factors identified in his report prepared unders 27 of the Sentencing Act 2002 (s 27 report). The s 27 report recordedMr Waikato-Tuhega's time in State care and the youth justice system, exposure tofamily violence and alcohol and drugs at a young age, and alienation from mainstreameducation in his early teens. However, the Judge also noted that the report-writer said2 R v Waikato-Tuhega DC Auckland CRI-2020-004-4486, 20 November 2020 [Sentence indication].3 At [34], relying on Inamata v R [2017] NZCA 556.4 At [52].5 At [52]. For the December 2018 aggravated robbery and the May 2019 burglary,Mr Waikato-Tuhega was convicted in the Manukau District Court and remanded on bail pendingsentencing.Mr Waikato-Tuhega appeared "disinterested" throughout the interview and that hislack of engagement was reflected in the scarcity of information contained in thereport.6[14] The Judge considered that a total discount of 35 per cent was appropriate in thecircumstances, consisting of 25 per cent for a guilty plea and 10 per cent for youth andtime spent on electronically-monitored bail (EM bail).7[15] Following the sentencing indication, Mr Waikato-Tuhega pleaded guilty to theMay 2020 aggravated robbery (he had already pleaded guilty to the other charges).[16] By the time of sentencing, a second pre-sentence report was available.This recorded that Mr Waikato-Tuhega did not express remorse for the offending butsaid he had reflected while in prison on how he had affected the victims, that hisoffending was committed as part of a gang called "Know Your Role" (KYR), and thathe was in a relationship with a partner described as "pro-social".[17] At sentencing, the Judge noted that Mr Waikato-Tuhega was also beingsentenced for the 2018 two thefts and possession of an offensive weapon.8After considering totality and Mr Waikato-Tuhega's age, the Judge concluded that nouplift was required for those charges.9 Mr Waikato-Tuhega had been unable toparticipate in restorative justice as he had been remanded in custody but the Judgeconsidered a small adjustment to the sentence indication of an additional discount oftwo months was appropriate.10 Applying that plus the 35 per cent discount, the finalsentence was six years and four months' imprisonment.116 At [28].7 At [49].8 R v Waikato-Tuhega [2021] NZDC 2506 at [1].9 At [2].10 At [3].11 At [4].[18] Mr Waikato-Tuhega was also given his first strike warning.12Our approach[19] Given the ultimate question is whether we are satisfied there was an error anda different sentence should be imposed,13 we propose to examineMr Waikato-Tuhega's sentence as follows:(a) Was the starting point too high?(b) Were the uplifts appropriate?(c) Was the discount for the factors identified in the s 27 report inadequate?(d) Was the discount for youth inadequate?Was the starting point too high?[20] Mrs Cheeseman, for Mr Waikato-Tuhega, acknowledged that the globalstarting point of nine and a half years' imprisonment was not outside the availablerange, although it was in her view stern.[21] Ms Mildenhall, for the Crown, disagreed, instead suggesting the starting pointwas towards the lower end of the available range, because:(a) the five-and-a-half-year starting point adopted for the jewellery storeaggravated robbery was lenient in light of the strong factual similaritieswith Inamata;1412 At [8]. The notice of consequences of first warning signed by the Judge dated 15 February 2021lists the relevant serious violent offences as both aggravated robberies. However, the warning canonly apply to the aggravated robbery of the jewellery store. It cannot apply to the aggravatedrobbery of the liquor store because Mr Waikato-Tuhega was 17 years old at the time of thatoffending. A stage-1 offence is an offence that is a serious violent offence and was committed byan offender at the time they were 18 years old or older: see Sentencing Act 2002, s 86A definitionof "stage-1 offence".13 Criminal Procedure Act 2011, s 250(2).14 We note here that the starting point cannot be described as lenient in light of Inamata, above n 3,given the same starting point of five and a half years' imprisonment was taken in that case.(b) the four-year totality-adjusted starting point for the other offending wasalso generous, particularly given the December 2018 liquor storeaggravated robbery had arguably more serious aggravating factors thanthe 2020 jewellery store aggravated robbery, including actual violenceand the presence of a firearm — on its own this offending would havewarranted a starting point of around six years; and(c) there was no adjustment to the starting point for the two charges of theftand one of possession of an offensive weapon.[22] We agree with the Crown that there can be no real challenge to the first stageglobal starting point of nine years and six months (five years and six months'imprisonment for the jewellery store offending plus four years' imprisonment for theliquor store aggravated robbery and the burglary of the mobile telephone store).We largely agree with Ms Mildenhall's analysis.[23] What we do wish to comment on, however, is her submission that the Judgecould have increased the starting point in respect of the two thefts and one charge ofpossession of a weapon, and also to comment briefly on how to approach startingpoints where an offender is under the age of 18 years.[24] Amendments to ss 15B and 18 of the Sentencing Act came into effect after theoffending in this case, except for the second aggravated robbery, but beforeMr Waikato-Tuhega was sentenced.15 Section 18 as amended now reads:18 Limitation on imprisonment of person under 18 years(1) No court may impose a sentence of imprisonment on an offender inrespect of a particular offence, other than a category 4 offence, ora category 3 offence for which the maximum penalty available is orincludes imprisonment for life or for at least 14 years, if, at the timeof the commission of the offence, the offender was under the ageof 18 years.15 The amendments came into effect on 1 July 2019: see Oranga Tamariki Legislation Act 2019,ss 2(2) and 55.[25] Section 15B as amended provides that no court may impose a sentence of homedetention on an offender under the age of 18 years except in respect of the same levelof offending as specified in s 18.[26] Mr Waikato-Tuhega was 17 years old at the time of the two thefts andpossession of an offensive weapon, and the December 2018 aggravated robbery.Aggravated robbery carries a maximum penalty of imprisonment for a term notexceeding 14 years16 and is a category 3 offence.17 Therefore, despiteMr Waikato-Tuhega being only 17 years old at the time of the first aggravated robbery,the limitation in s 18 did not apply and he was liable to a sentence of imprisonment onthat charge. Accordingly, that charge was properly included in the four-year uplift.That reflects the policy underpinning s 18 that a sentence of imprisonment should notgenerally be imposed on a young person under 18, except in the most serious cases.The burglary was also properly included within the uplift because it was committedwhen Mr Waikato-Tuhega was 18 years old.[27] The Judge did not uplift her starting point to reflect the two thefts andpossession of an offensive weapon, which occurred when Mr Waikato-Tuhega was 17.We consider that the principles reflected in s 18 of the Sentencing Act confirm thatthere should not have been an uplift for these offences. Mr Waikato-Tuhega wasentitled to be sentenced by reference to the amended provision, by virtue of s 6 of theSentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990. It would beinconsistent with the policy of s 18 for the Court to uplift a sentence of imprisonmentby reference to offending which, pursuant to s 18, could not itself result in a sentenceof imprisonment. As noted in Diaz v R, that policy reflects the diminished culpabilityof young offenders, their greater potential for rehabilitation and the disproportionatehardship of imprisonment on young persons — factors that we discuss in greater detailbelow.18 It also reflects New Zealand's obligations under the United NationsConvention on the Rights of the Child, which provides that imprisonment of a person16 Crimes Act 1961, s 235.17 Criminal Procedure Act, s 6(1).18 For a more detailed discussion of this issue, see Diaz v R [2021] NZCA 426.under 18 "shall be used only as a measure of last resort and for the shortest appropriateperiod of time".19[28] We therefore have no issue with the first stage starting point.Were the uplifts appropriate?[29] Mrs Cheeseman acknowledged that the uplifts for Mr Waikato-Tuhega'sYouth Court notations were warranted and within range, although at the higher end ofthat range.[30] Ms Mildenhall submitted that the uplifts for personal aggravating factors wererestrained. The uplift for Mr Waikato-Tuhega's Youth Court notations amounted toa 3.5 per cent uplift only. The other uplift of three months recognised that the2020 aggravated robbery was committed while on bail pending sentencing for the2018 and 2019 offending — and that offending was committed while on bail on theearlier charges and could have attracted a further uplift.[31] The Judge imposed a four-month uplift for Mr Waikato-Tuhega's Youth Courtnotations.20 Mr Waikato-Tuhega had committed a number of offences between 2015and 2018 which saw him appear in the Youth Court. He was discharged on the earlieroffences which mainly involved unlawfully getting into a motor vehicle. He thenappeared for offending committed between 2016 and 2018, including unlawfullytaking a motor vehicle, burglary and two aggravated robberies committed when hewas 16 years old. He was sentenced to six months' Social Welfare supervision withresidence for three months.[32] In sentencing an offender a court must take into account the number,seriousness, date, relevance, and nature of any previous convictions.21 However, asnoted by the learned authors of Adams on Criminal Law, proceedings in theYouth Court do not (with limited exceptions) result in the "conviction" of an19 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature20 November 1989, entered into force 2 September 1990), art 37(b).20 Sentence indication, above n 2, at [52].21 Sentencing Act, s 9(1)(j).offender.22 Therefore, instead of being considered under s 9(1)(j) of theSentencing Act, they could be taken into account under s 9(4)(a).23 In R v Putt, thisCourt endorsed the earlier observations in Kohere v Police, where Anderson J heldthat:24[While the Youth Court] behavioural history does not amount to priorconviction it must be the case that such history can have some relevance indetermining what is an appropriate sentence for the person appearing in theCourt of criminal record.[33] Those observations were made prior to the introduction of s 18 of theSentencing Act, discussed above. We agree that an offender's Youth Court history canhave some relevance to sentencing and would likely preclude any credit for previousgood character25 but we do not accept that it should result in an uplift on sentencing.[34] Although two of Mr Waikato-Tuhega's Youth Court notations related toaggravated robbery, those charges were retained in the Youth Court, where a sentenceof imprisonment cannot be imposed.26 The principles of sentencing which apply inthe Youth Court are different from those which apply in the adult jurisdiction.27 So, thesame general reasoning as discussed above in relation to s 18 and the starting pointapplies, and there should have been no uplift in respect of the Youth Court notations.[35] The uplift of three months for offending on bail cannot be criticised,particularly given Mr Waikato-Tuhega was on EM bail and removed the electronictracker and absconded.Was the discount for the factors identified in the s 27 report inadequate?[36] Mr Waikato-Tuhega received a total discount of 10 per cent in respect of hisyouth and factors identified in the s 27 report.22 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters)at [SA9.15(4)].23 Section 9(4)(a) provides that nothing in s 9(1) or (2) prevents a court from taking into account anyother aggravating or mitigating factor that it thinks fit. See also R v Rongonui [2009] NZCA 279,[2010] 1 NZLR 742 at [88], referring to Kohere v Police (1994) 11 CRNZ 442 (HC).24 R v Putt [2009] NZCA 38 at [18], quoting Kohere, above n 23, at 444.25 Sentencing Act, s 9(2)(g).26 Oranga Tamariki Act 1989, s 283.27 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [75].[37] In Mrs Cheeseman's submission, the 10 per cent discount did not sufficientlyreflect:(a) Mr Waikato-Tuhega's background, including prolonged disconnectionfrom his whānau, lack of pro-social support and impulse control, andsusceptibility to anti-social influences;(b) his increased levels of insight and remorse which indicateda heightened capacity to rehabilitate; and(c) the impact of alcohol and drug addiction on Mr Waikato-Tuhega'soffending and his overall development.[38] In Mrs Cheeseman's submission, a discrete discount of 10 to 15 per cent forthe factors set out in the s 27 report would have been appropriate. She reliedparticularly on Solicitor-General v Heta,28 (discussed in more detail below) whereMr Heta was granted a 40 per cent discount to recognise a range of s 27 factors.[39] Ms Mildenhall stressed that evaluation of s 27 factors is a very fact-specificexercise and that a causal linkage, as well as evidence of real potential forrehabilitation, was required. Furthermore, referring to Poi v R, Ms Mildenhallsuggested that, while in some cases an increased focus on rehabilitation anda decreased emphasis on denunciation and deterrence may be called for, if it appearsthat an offender finds it difficult or impossible to avoid offending, this may increasethe importance of community protection.29 She said there was nothing in thes 27 report or the pre-sentence reports that demonstrated any genuine motivation forrehabilitation or willingness to change on Mr Waikato-Tuhega's part.[40] As a result, in Ms Mildenhall's submission, only a small allowance couldrealistically be made for Mr Waikato-Tuhega's personal background (and his youth),particularly given the seriousness of his offending.28 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.29 Poi v R [2020] NZCA 312 at [27].Discussion[41] In Zhang v R, a Full Court of this Court considered the role of s 27 reports,observing that sentencing must achieve justice in individual cases and this requiresflexibility and discretion.30 The Court further noted that ingrained systemic povertyresulting from loss of land, language, culture, rangatiratanga, mana and dignity requireconsideration at sentencing when shown to contribute causatively to the individual'soffending.31[42] The Full Court adopted the reasoning of Williams J in R v Rakuraku andWhata J in Heta.32 When commenting that ingrained poverty resulting from loss ofland, language, culture, rangatiratanga, mana and dignity required consideration atsentencing, the Full Court cited [50] of Heta.33 There, Whata J had described evidenceand symptoms of systemic deprivation of Māori (intergenerational social and culturaldislocation of the whānau, poverty, alcohol and/or drug abuse by whānau membersand by the offender from an early age, whānau unemployment and educationalunderachievement, and violence in the home), and then noted that there needs to besome evidence identifying the presence of systemic deprivation in the offender'sbackground and linkage to the offending.[43] Whata J then referred to a passage in Rakuraku in which Williams J spokeabout the effects of a childhood marred by poverty, violence, racism, dislocation fromtikanga and exposure to gang culture.34[44] We turn now to discuss the more recent decision of this Court in Carr v R.35We do so because it has been relied upon in support of the proposition that extensiveserious offending precludes a discount of more than 15 per cent for personal factors.3630 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10(a)].31 At [159]. See also Heta, above n 28, at [49].32 R v Rakuraku [2014] NZHC 3270; and Heta, above n 28.33 Zhang, above n 30, at [159].34 See Heta, above n 28, at [50], quoting Rakuraku, above n 32, at [56]–[58].35 Carr v R [2020] NZCA 357.36 See for example Kisiogo v R [2021] NZHC 1648 at [19], where the High Court dismissed theappeal of Mr Kisiogo (one of Mr Waikato-Tuhega's co-offenders). The appeal was dismissed inlight of Mr Kisiogo's personal circumstances, including age, conviction history, offending whensubject to post home detention release conditions and bail, lack of genuine remorse and insufficientnexus between the s 27 report and the offending.Mr Carr was sentenced on four charges of aggravated robbery, two of robbery, five ofunlawfully using or taking a motor vehicle, two of dishonest use of a document, oneof demanding with menaces, one of aggravated assault and two of theft. The offendinginvolved the use of a range of weapons across a number of separate events, as well ascommitting violence against victims. On two separate occasions, Mr Carr helda victim at gunpoint, while on another occasion he used a victim as a shield whileholding an axe against her neck.37[45] The sentencing Judge was not satisfied there was a sufficient link between theoffending and Mr Carr's background to warrant a discount. This Court disagreed butconcluded that, despite the significant matters canvassed in Mr Carr's s 27 report,38the extent of the offending precluded a discount greater than 15 per cent.39 We do not,however, interpret that decision as saying discounts of more than 15 per cent are notwarranted in cases of serious offending. Indeed the Court made several usefulcomments about the application of Zhang.40[46] The Court considered it significant that the reasoning in Rakuraku and Hetawas adopted in Zhang because it confirmed that, where a cultural report containsa credible account of social and cultural dislocation, poverty, alcohol and drug abuse,unemployment, educational underachievement and violence as features of theoffender's upbringing, such matters ought to be taken into account in sentencing.41It observed that it was inappropriate to reason that, because other people withdisadvantaged backgrounds do not offend, evidence of an offender's life of deprivationshould be put to one side.4237 For the facts of offending, see Carr, above n 35, at [6]–[15].38 The report detailed that Mr Carr had experienced a severe disconnection from te ao Māori, familyviolence, an incident of sexual abuse at a young age, an early exit from the education systemcoupled with an early entry into the criminal justice system and alcohol and drug abuse.39 Carr, above n 35, at [67].40 At [65]–[66].41 At [60]. This Court also directly endorsed Williams J's reasoning from Rakuraku in Minogue v R[2020] NZCA 515 at [46].42 At [66].[47] It is simply not right to say that, in cases involving serious offending, smalldiscounts only, or no discounts at all, can be given for factors set out in s 27 reports.43Cases involving murder,44 manslaughter,45 causing grievous bodily harm with intentto injure,46 and attempted aggravated robbery47 have all seen relatively substantialdiscounts for s 27 factors when a causal nexus between those factors and the offendingis found to be present.[48] And there may still be a discount for the personal circumstances andbackground of the offender in cases of serious offending even where there is notnecessarily significant evidence of an offender's willingness to rehabilitate.For example, in Kreegher v R, the appellant had been sentenced for kidnapping,aggravated robbery, wounding with intent to cause grievous bodily harm and arson.48This Court found that the five per cent discount for the appellant's personal mitigatingcircumstances was inadequate. Despite the fact the appellant continued to deny hisoffending (and thus was not granted a discrete discount for his capacity forrehabilitation), this was a case where a "meaningful discount" for his upbringing anddeprived social circumstances was available.49[49] Mr Kreegher was described as having had a turbulent upbringing, characterisedby abuse and violence, early membership of a gang and early drug abuse. He had lefthome at the age of 15. The Court was satisfied that these issues, and more generallya life marred by social deprivation, including at the time of the offending, likelyinfluenced Mr Kreegher's poor life choices generally and on the night in question, andconsidered a 10 per cent discount was justified in the circumstances.50[50] Trauma in a person's background, whether intergenerational or immediate,does not guarantee that they will offend. As noted by Williams J writing43 For a useful analysis of this incorrect assumption, see Oliver Fredrickson "Systemic DeprivationDiscounts and Section 27 Reports: Progress But Not Perfect" (2020) September Māori LR.44 Rakuraku, above n 32.45 R v Nepia [2019] NZHC 1932; R v Beattie [2019] NZHC 3108; and R v MacDonald[2021] NZHC 224.46 Waho v R [2020] NZCA 526.47 Taiapa v R [2020] NZHC 3355.48 Kreegher v R [2021] NZCA 22.49 At [44].50 At [47].extrajudicially, an approach that takes this broad assumption should be avoided, as itamounts to retrospective determinism dispossessing the offender of their own agencyand, in Māori terms, denies them their mana.51[51] However, as this Court has previously acknowledged, there does not need tobe extensive evidence of a nexus between offending and socio-economic and culturaldisadvantage for a discount to be granted.52 Furthermore, there is ample case law,53and research and reports,54 on the disconnection between whānau, whakapapa andculture caused by colonisation and indigenous dispossession of land and culture, andhow it may play a role as a causative factor in offending. This is often augmented byother factors, such as alcohol and drug use at an early age, disconnection from theeducation system, abuse and gang affiliation. Therefore, following Zhang and itsadoption of the reasoning in Heta and Rakuraku (as endorsed in Carr), when providedwith evidence of s 27 factors such as socio-economic and cultural deprivation, thecourts ought to assess this evidence holistically, considering the offending within theparticular circumstances of the offender, including the effects of cultural dispossessionwithin those circumstances. In short, the assessment of a nexus between the offender'sbackground and the offending should not be a mechanical exercise with a highthreshold of proof but an overall assessment, assisted by evidence available, unders 27 and generally, of how personal circumstances might have contributed toculpability or offending.51 See Joe Williams "Build a Bridge and Get Over It: The Role of Colonial Dispossession inContemporary Indigenous Offending and What We Should Do About It" (Robin Cooke Lecture,4 December 2019) at 20.52 Arona v R, [2018] NZCA 427, at [59].53 This is best illustrated by the case law set out below, particularly the observations of the Full Courtin Zhang, above n 30, regarding loss of land, language, culture, rangatiratanga, mana and dignityrequiring consideration at sentencing.54 See, for example: Waitangi Tribunal Tu Mai Te Rangi! Report on the Crown and DisproportionateReoffending Rates (Wai 2540, 2017) at 13; Te Ūepu Hāpai i te Ora | Safe and Effective JusticeAdvisory Group He Waka Roimata: Transforming Our Criminal Justice System (2019) at 9;Khylee Quince "Māori and the Criminal Justice System in New Zealand" in Julia Tolmie andWarren Brookbanks (eds) Criminal Justice in New Zealand (LexisNexis, Wellington, 2007) at12.3; Mason Durie Nga Tai Matatu: Tides of Māori Endurance (Oxford University Press,Melbourne, 2005) at 62–66; and Moana Jackson The Māori and the Criminal Justice System —A New Perspective: He Whaipaanga Hou (Department of Justice, Wellington, 1988) at 34.[52] It is our view that a causal nexus between Mr Waikato-Tuhega's offending andhis background is evident here. Mr Waikato-Tuhega's s 27 report describes fivebackground factors of particular note and which significantly disadvantaged him:(a) Whānau dysfunction and violence: Mr Waikato-Tuhega's parentsseparated when he was a toddler. His father drank and family violencewas prevalent in the home.55 The separation of Mr Waikato-Tuhega'sparents led to his family being uprooted, lacking a support system.(b) Care and protection and youth justice issues: State intervention inMr Waikato-Tuhega's life began at 13 years of age. He was placed invarious Child Youth and Family Services homes around Auckland.56He experienced abuse in State care, including at the youth justicefacility, but did not report it.(c) Limited education: Mr Waikato-Tuhega began to disengage at primaryand intermediate school and was alienated from mainstream educationat the age of 13. He was sent to an alternative education provider.He failed to complete either NCEA Level One or Two.(d) Alcohol and drugs: Mr Waikato-Tuhega first tried cannabis atage 14 and his substance use included cigarettes, cannabis and alcohol.According to the second pre-sentence report, he began to usemethamphetamine and hallucinogens, and admitted to pursuing crimefor financial gain, including being able to "buy more drugs".(e) Cultural disconnectedness from te ao Māori and his Niuean heritage:Mr Waikato-Tuhega was unable to elaborate on his cultural heritage.He does not speak either te reo Māori or Niuean and, according to thereport-writer, did not appear to be aware of his whakapapa or55 In Mr Waikato-Tuhega's second pre-sentence report (dated 28 January 2021), he expressed thathis father would "beat him" when he was drunk and that he would often watch his father beat hismother too.56 Mr Waikato-Tuhega's second pre-sentence report (dated 28 January 2021) states that he enteredChild Youth and Family Services care at 14 years old.turangawaewae. In the report-writer's opinion, this confirmedMr Waikato-Tuhega's lack of confidence and ability to feel comfortablein his own cultural identity.[53] Between the two pre-sentence reports and the s 27 report, it is evident that thereare a range of factors which could be said to contribute to Mr Waikato-Tuhega'sculpability and decision-making. As noted by the s 27 report-writer, during hisupbringing Mr Waikato-Tuhega experienced alienation and separation — from hiswhānau, his whakapapa and the mainstream education system. These factors mayhave adversely affected his development. This, combined with the adversity hesuffered in the form of violence and being placed into State care, as well as the impactof drug and alcohol use from an early age, could be seen to have influenced hisdecision-making, particularly in relation to his offending.[54] We are not convinced that Mr Waikato-Tuhega's disinterest in engaging withthe s 27 report-writer (as noted by the Judge) is a particularly compelling reason fordeciding that a discount for personal circumstances should not be granted. His lack ofwillingness to engage and lack of knowledge of his whakapapa were, if anything,additional evidence of his personal circumstances and demonstrative of his loss ofcultural identity.[55] We also disagree with the Crown that there was nothing in the s 27 orpre-sentence reports that suggested any genuine motivation for rehabilitation waspresent. In his second pre-sentence report, Mr Waikato-Tuhega stated that "being inprison helped me reflect and think about how I had affected my victims, I need to ownup to my decisions I made, show the judge I am not a bad guy". While he might nothave expressed remorse for his actions, this concession does indicate some prospectof rehabilitation. In any event, there may still be a discount for the personalcircumstances and background of the offender, even in the absence of significantevidence of capacity or willingness to rehabilitate.57[56] All these factors should have been taken into account to a greater extent thanthey were when considering Mr Waikato-Tuhega's sentence. The Judge did discuss57 See our discussion at [48] above of Kreegher, above n 48.the extensive information about Mr Waikato-Tuhega revealed in the s 27 report and,in her sentencing decision, said she had "no doubt" that the Parole Board would takeinto account all the factors raised in the pre-sentence and other reports. While thatmay be true, the sentencing judge must also take these matters into account onsentencing.[57] We consider there should have been a discount of 15 per cent forMr Waikato-Tuhega's personal circumstances as described in the s 27 andpre-sentence reports.Was the discount for youth inadequate?[58] Mrs Cheeseman relied on Churchward v R for her submission that the10 per cent discount should have related solely to Mr Waikato-Tuhega's age, with theresult the total discount should have been in the region of 20 to 25 percent.58[59] In Churchward v R this Court identified three ways in which youth may act asa mitigating feature:59(a) There are age-related neurological differences between young peopleand adults, including that young people may be more vulnerable orsusceptible to negative influences and outside pressures (includingpeer pressure) and may be more impulsive than adults.(b) The effect of imprisonment on young people, including the fact thatlong sentences may be crushing on young people.(c) Young people have greater capacity for rehabilitation, particularlygiven that the character of a juvenile is not as well formed as that ofan adult.[60] The Court confirmed that these considerations are relevant under s 8(h) of theSentencing Act which requires the Court to take into account any particularcircumstances of the offender which mean that a sentence that would otherwise beappropriate would, in the particular instance, be disproportionately severe. The Courtdescribed this as preserving the longstanding principle of mercy in sentencing.6058 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.59 At [77] (footnotes omitted).60 At [86].[61] The Court discussed in some detail the neurological differences between youthand adults, particularly in relation to brain development and development of rationalthought:[79] Looking at these related factors in more detail, we note first thematters discussed by Dr Chaplow as to the differences between young peopleand adults. As he notes, there is a growing body of scientific evidence onadolescent brain development that demonstrates that young people aresignificantly different to adults.[80] The New South Wales Department of Education and Training hasstated that adolescence is a period of development, particularly in the abilityto produce, establishing an individual identity and developing logical andrational thought processes. It summarises the research as follows:(a) the ability to plan, consider, control impulses and make wisejudgements is the last part of the brain to develop;(b) adolescents are built to take risks and it is simply part of theirbiology;(c) most adolescents know right from wrong, but the environmentin which risk-taking and other behaviours occur can lead toinappropriate behaviour; and(d) adolescents are more prone to react with gut instincts andimpulsive and aggressive behaviour.(Footnotes omitted.)[62] Then, addressing how neurological factors relating to young people mayinform an assessment of a young person's culpability, the Court said:[81] These neurological factors can lead to a reduction in culpability ofyoung people as compared to adults. This does not mean that young personsshould not take responsibility for their actions: it is merely that their actionsmay be partly explicable (but not necessarily excusable) by their state ofneurological development. In KT v R, the Supreme Court of New South Wales(Court of Criminal Appeal) stated that:The law recognises the potential for the cognitive, emotionaland/or psychological immaturity of a young person tocontribute to their breach of the law. Accordingly, allowancewill be made for an offender's youth and not just theirbiological age.(Footnote omitted.)[63] The Court in Churchward stressed the adverse effect of imprisonment onyoung people, noting that adolescents experience high levels of depression, anxiety,suicidal ideation and self-injurious behaviour, and victimisation from other inmateswhilst incarcerated.61 The Court then turned to discuss rehabilitation, noting theimportance of acknowledging the rehabilitative prospects of young people, even afterserious offending.62 And the Court pointed out that rehabilitation of young offendersis, of course, in both their own interests and in the interests of the public.63[64] This approach and analysis have been repeatedly endorsed by this Court.For example, Millar v R concerned an appeal against sentence for (vehicular)manslaughter and reckless driving causing injury.64 This Court, referring toChurchward, observed that the neurological science suggests that young people do nothave a fully developed system for balancing risk and reward. They have diminishedcapacity to control impulsive behaviour, are less future orientated, focus on the hereand now rather than consequences and so tend to discount risks and calculate rewardsdifferently from adults — not because they do not understand the risks, but rather, theyattach different values to them.65[65] It is for these reasons that the sentencing purpose of deterrence needs to beconsidered somewhat differently in respect of young offenders.66[66] Deterrence requires a person to respond rationally and maturely to risk versusreward. While the prospect of a prison sentence will undoubtedly have a deterrenteffect even on adolescents, the relative term of the prison sentence will logically havemuch less impact on their decision-making when their decisions are impulsive,peer-driven and based on an overvaluation of immediate reward.67[67] And the fact long sentences can have a counterproductive, even destructiveeffect on an offender, particularly a young offender, suggests that the purpose ofrehabilitation will have less chance of success if the sentence is overly long.61 At [85].62 At [88].63 At [90].64 Millar v R [2019] NZCA 570.65 At [26], citing Churchward, above n 58, at [53].66 Sentencing Act, s 7(1)(f).67 Millar, above n 64, at [27].[68] We regard the observations of this Court in Millar and Churchward areparticularly relevant to Mr Waikato-Tuhega's circumstances. We acknowledge thatMr Waikato-Tuhega's offending was premeditated and serious. However, it wouldalso be correct to describe it as peer-driven and based on an overvaluation ofimmediate reward with little, if any, consideration of the consequences. This isperhaps best illustrated by an observation in the s 27 report where the writer stated:When discussing [Mr Waikato-Tuhega's] recent charges, he lacked the abilityto comprehend the extent and seriousness of the offending, stating all of hisoffending to date has been in order "to get money."(Emphasis in original.)[69] Similarly, and as noted above, in his second pre-sentence report,Mr Waikato-Tuhega admitted to pursuing crime for financial gain, including beingable to "buy more drugs". Mr Waikato-Tuhega was aged between 17 and 19 when theoffending occurred. As well as his young age, there is evidence of other factors whichmight have hindered his development, including his early use of drugs and alcohol,the breakdown of his family unit and detachment from his school environment.His offending reflects the observation in Churchward that there is a neurologicaldifference between youth and adults in relation to decision-making and this should beconsidered in an assessment of his culpability.[70] Mr Waikato-Tuhega is still young. We consider that an unnecessarily longsentence could have a counterproductive effect, be crushing for him and adverselyaffect his greater capacity for rehabilitation, if given the chance. It is not clear that theJudge properly considered all of these factors.[71] The Judge appeared to allow a 10 per cent discount for a combination of youthand personal factors. We can understand why she would have considered themtogether because they are inextricably linked, with many factors relevant under bothheads. However, we consider the Judge erred in granting an inadequate discretediscount for youth and that a 15 per cent discount would be more appropriate in thecircumstances.[72] Unlike the Judge, we do not consider that a discrete two-month discount inrespect of restorative justice was appropriate. The Judge granted the discount becauseMr Waikato-Tuhega could not attend a restorative justice conference as he was incustody. However, Mau Te Rongo,68 a restorative justice provider, helda pre-conference with Mr Waikato-Tuhega on 21 October 2019 and recorded that hedeclined to participate in restorative justice. We are satisfied the 15 per cent discountfor youth adequately reflects Mr Waikato-Tuhega's youth and potential capacity forrehabilitation.Total discounts[73] Mr Waikato-Tuhega should have received a 15 per cent discount for culturaland personal background factors, and a 15 per cent discount for youth, rather than the10 per cent given by the Judge in respect of both matters. Combined with the full25 per cent discount for a guilty plea, this results in total discounts of 55 per cent.Result[74] The appeal against sentence is allowed.[75] Mr Waikato-Tuhega's sentence of six years and four months' imprisonment isquashed and substituted with a sentence of four years and five months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent68 Mau Te Rongo is the restorative justice arm of MUMA, the Manukau Urban Māori Authority.