IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-000345
[2020] NZHC 2602	

BETWEEN	MISTY HEKE
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	22 September 2020	
Appearances:	Matthew Timmins for the Appellant Matthew Davie for the Respondent	
Judgment:	5 October 2020	

JUDGMENT OF MOORE J
[Appeal against sentence]

This judgment was delivered by me on 5 October 2020 at 10:30 am.

Registrar/ Deputy Registrar Date:

HEKE v R [2020] NZHC 2602 [5 October 2020]

Introduction

[1]	On 22 January 2020, Ms Misty Heke pleaded guilty to excess breath alcohol causing injury,1 failing to stop and ascertain injury,2 failing to stop when followed by red/blue flashing lights,3 and driving with a breath alcohol level over 400 micrograms per litre of breath.4

[2]	On  26  May  2020,  following  a   sentence   indication   delivered   by   Judge B A Gibson on 19 May 2020,5 Ms Heke pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm,6 and assault with a weapon.7

[3]	On 21 July 2020 the Judge sentenced Ms Heke to five years’ imprisonment in the District Court at Auckland.8 Ms Heke appeals her sentence on two grounds:

(a)	first, the Judge erred in his application of the guilty plea discount; and

(b)	secondly, the Judge failed to give any discount for cultural and background factors (pursuant to s 27 of the Sentencing Act 2002).

The offending

[4]	The following descriptions are drawn from the summaries of fact to which Ms Heke pleaded.

[5]	There are two sets of offending. The first, committed in February 2019, relates to a drunk driving episode which started with serious violence being inflicted to two motorcyclists followed by a Police pursuit. The second, also involving alcohol,

1	Land Transport Act 1998, s 61(1)(a). Maximum penalty is five years’ imprisonment or $20,000 fine, and disqualification from holding or obtaining a drivers licence for one year or more.
2	Section  36(1)(c).	Maximum penalty is five years’ imprisonment or $20,000 fine, and disqualification from holding or obtaining a drivers licence for one year or more.
3	Sections 52A(a)(ii) and 52A(3). Maximum penalty is $10,000 fine, disqualification from holding or obtaining a driver licence for six months.
4	Section 56(2). Maximum penalty is three months’ imprisonment or a $4,500 fine, disqualification from holding or obtaining a driver licence for six months or more.
5	R v Heke DC Auckland CRI-2019-044-000444, 19 May 2020.
6	Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
7	Section 202C. Maximum penalty is five years’ imprisonment.
8	R v Heke [2020] NZDC 14133.

occurred in April 2019 and relates to a violent altercation Ms Heke had with her neighbour. I shall summarise each.

February offending

[6]	At the time of the offending, Ms Heke was 19 years old.

[7]	On 2 February 2019 at approximately 4:00 pm, Ms Heke was driving near Warkworth. As she approached a junction with State Highway 1 (SH1), a number of motorcycles were stationary at a give way sign, waiting to turn left. The complainants, Ms Zhang and Mr Hughes, were two of the motorcyclists.

[8]	Ms Heke approached the riders and nudged the rear tyre of Ms Zhang’s bike. Ms Zhang registered her objection and moved her bike forward. Ms Heke repeated the manoeuvre. Mr Hughes got off his motorcycle to confront Ms Heke who then accelerated forward hitting the back of the bike and propelling it forward, causing Ms Zhang to lose her balance and fall off. Ms Heke dragged Ms Zhang along the road before running over her head and body. In the resulting commotion, Ms Zhang’s motorcycle collided with Mr Hughes who became trapped between his motorcycle and that of Ms Zhang’s.

[9]	Ms Heke made no attempt to stop to check on Ms Zhang or Mr Hughes. Instead, she drove over a traffic island and fled. The Police were called.

[10]	A short time later, a Police patrol saw Ms Heke driving north in the Dome Valley part of SH1 between Warkworth and Wellsford. The Police turned on their siren and red and blue flashing lights. They gave chase. Instead of stopping, Ms Heke accelerated. She swerved in and out of her lane. She shouted from the window, made hand signals and pulled the fingers at the Police following her. She drove at speeds in excess of 120 kilometres per hour. On several occasions, she crossed the yellow centre line to pass other cars.

[11]	She then entered Wellsford. The Police deployed road spikes which caused her to stop and she was arrested.

[12]	A breath test produced a reading of 1204 micrograms of alcohol per litre of breath. The legal breath alcohol limit is 250 micrograms per litre of breath.9

[13]	Ms Heke told Police that she had hit someone and volunteered, “That was me, I did that, I hit that bitch”.

[14]	Ms Zhang suffered a shattered pelvis, a complex fracture and dislocation of her left hip/femur, a fractured right arm, damaged shoulder, and a punctured lung. She underwent multiple  surgeries  and  spent  three  and  a  half  months  in  hospital.  Mr Hughes suffered extensive damage to his knee and lower leg, including a tibial plateau fracture which required surgery.

[15]	For this offending Ms Heke was charged with excess breath alcohol causing injury, failing to stop and ascertain injury, failing to stop when followed by red/blue flashing lights, driving with excess breath alcohol and causing grievous bodily harm with intent to cause grievous bodily harm.

[16]	Ms Heke was released on electronically monitored bail (“EM bail”).

April offending

[17]	On Saturday 13 April 2019, Ms Heke was at her home in Warkworth. At approximately 4:50 pm, she went across to her elderly neighbour’s home. She was intoxicated and agitated. She made various threats of violence towards him. He asked her to leave several times. She walked away but returned shortly afterwards carrying an aluminium fence standard. She pushed her way through the front ranch slider. She held the metal bar above her head as if to strike her neighbour and yelled, “I’ll give you something to call the Police about”. Her neighbour was able to push her back through the open door before shutting and locking it. And so she used the fence standard to smash the top glass panel of the ranch slider door.

[18]	She was arrested and remanded in custody. For this offending she was charged with assault with a weapon.

9	Land Transport Act 1998, s 11(a).

Procedural history

[19]	As noted, following the February offending Ms Heke was released on EM bail. After the April incident, she was remanded in custody.

[20]	On 18 December 2019, she was again released on EM bail.

[21]	On 22 January 2020, she pleaded guilty to all of the February charges except the grievous bodily harm and assault charges. Trials on these charges were scheduled in March and April 2020.

[22]	In March 2020, Ms Heke cut off her electronic bracelet.

[23]	She was remanded in custody from 12 March 2020 until her sentencing indication on 19 May 2020.

[24]	At that hearing the Judge identified the grievous bodily harm charge as the lead charge. He referred to two charges of causing grievous bodily harm, but the charge sheets indicate Ms Heke pleaded guilty only to one. The Judge indicated an appropriate starting point for both charges would be six years and six months’ imprisonment. He then considered an uplift of four months’ imprisonment for the assault with a weapon. He applied a discount of 10 per cent for Ms Heke’s youth and relative lack of previous offending, before allowing a further 15 per cent discount in the event Ms Heke accepted the indication and pleaded guilty.

[25]	Ms Heke accepted the sentence indication. On 26 May 2020, she pleaded guilty to the grievous bodily harm charge as well as the assault charge. She received a first strike warning.

District Court sentencing

[26]	After canvassing the facts of Ms Heke’s offending, the Judge noted that it possessed “many” aggravating features.10 The serious nature of Ms Zhang’s injuries was noted; for three months after the accident Ms Zhang was unable to stand and even

10	R v Heke, above n 8, at [5].

after that required assistance. The Judge noted that the facts appeared to be “a lot more serious” than the cases the Crown had referred him to at the sentence indication but nevertheless accepted that a starting point of six and a half years’ imprisonment remained appropriate given the aggravating features of the use of a car and the serious injuries inflicted.11 He confirmed his indication of a starting point set at six and a half years’ imprisonment for the February charges, an uplift of four months to reflect the April offending, discounts of 10 per cent for youth and 15 per cent for Ms Heke’s guilty plea.

[27]	The Judge then moved to consider Ms Heke’s personal circumstances. He observed that the cultural report spoke of the dysfunction present in Ms Heke’s childhood and accepted the nature of that background. However, he commented that it “is common to many people who appear in these Courts and obviously not all people with similar or worse backgrounds offend”.12

[28]	The Judge considered a discount for Ms Heke’s previous good character was precluded given her earlier conviction for burglary and commented that even aside from that conviction, she might not have been entitled to such a discount in light of the material contained in the reports before him.13 The Judge accepted Ms Heke was a heavy user of alcohol and drugs and that this may have been a contributing factor. But he considered this could not excuse her offending and was not a mitigating feature.

[29]	Ms Heke’s rehabilitative efforts were also noted and a “small discount” was considered appropriate.14 The Judge also considered that Ms Heke recognised she had caused great injury to Ms Zhang and Mr Hughes.15

[30]	The Judge determined that a discount of one month was appropriate to reflect the 12 weeks Ms Heke spent on EM bail, despite the April offending occurring while on bail and the fact she absconded. In response to Ms Heke’s counsel seeking a five per cent discount for rehabilitation the Judge indicated a “slight discount” would be

11	At [5].
12	At [6].
13	At [7].
14	At [8].
15	At [9].

given in that regard.16 He refused, however, to award a discrete discount for remorse, because he did not consider the regret and remorse expressed sufficient to constitute a discrete discount from that already implicit in the guilty plea discount.

[31]	On the question of social and cultural deprivation, the Judge accepted there was evidence of systemic deprivation in Ms Heke’s background but again observed that her experiences are shared by many and “not all offend, many go on to lead useful lives”.17 After considering this Court’s decision in R v Carr,18 the Judge stated that the “purpose of sentencing you is for denunciation and deterrence and so in my view there is no credit available for cultural factors”.19

[32]	The Judge formulated the end sentence of five years’ imprisonment in the following way:

(a)	adopted a starting point of six and a half years’ imprisonment, with a four-month uplift to reflect the April offending to arrive at an adjusted starting point of 82 months;

(b)	applied a discount of 10 per cent for youth, one per cent for Ms Heke’s time spent on EM bail and 15 per cent for her guilty plea to arrive at an end sentence of 62 months; and

(c)	further reduced that sentence to 60 months to take account of Ms Heke’s rehabilitative efforts.

[33]	Ms Heke was also disqualified from driving for three years after her release date and on the charge of failing to stop when followed by red and blue lights, a disqualification period of six months’ imprisonment was imposed.

16	At [11].
17	At [12].
18	R v Carr [2019] NZHC 2235.
19	At [14]–[15].

Personal circumstances

[34]	Ms Heke has one prior conviction for burglary from 2017, for which she received a sentence of supervision and community work.

PAC report

[35]	The PAC report, dated 13 July 2020, assesses Ms Heke to be at low risk of re- offending due to her limited conviction history but her risk of harm to be high. The report identifies alcohol and drug use as being factors driving her offending (although a Departmental screening tool indicated a low risk of drug misuse). The report records that Ms Heke said that the victims “didn’t deserve it” as they were just “random people”. She acknowledged that she “hurt those people.”

Section 27 reports

[36]	The cultural report was prepared by Louise Henare in accordance with s 27 of the Sentencing Act 2002. I will not descend into its details here. That is because there are aspects of it which are intensely personal and should remain private for the purposes of this appeal. Suffice it to say I have read the report carefully and I have noted the poverty, violence, sexual abuse, drug and alcohol use and extreme dysfunction evident in her home life and her family relationships as a child and teenager. I also acknowledge the dysfunction and hardships in the lives of her family members. The report writer states that Ms Heke is “seen to reflect intergenerational social and economic deprivation through a multiplicity of adverse childhood experiences” and concludes that:

“The writer sees general motivation of offending as linked to alcohol and/ or alcohol consumption; a significant mana loss resultant of sexual identity disclosure to her grandmother; depression (indicated by recent suicide attempt) and resultant self-destructive behaviour. The writer’s opinion is [Ms Heke] was intending on finding a strategy to cope emotionally and this has resulted in the offending.”

[37]	Another factor worthy of note is the report writer’s comment on Ms Heke’s bail breach:

“[Ms Heke] is a sexual abuse survivor. The writer is of the view, sexual traumatization is a factor for [Ms Heke], particularly of note when considering

the events which influenced offending and her later breach of bail explanation (in the best interests of a man in the programme). The way in which childhood victims trade sex for the affection of those who abuse them, can translate further into adulthood and become normalised behaviour.”

[38]	On the connection between Ms Heke’s alcohol use and her offending, the author of the report had this to say:

“Her mother was raised in violence with alcohol abuse, later involved in predominantly drug use and violent behaviour. Her grandmother admitted “We drink. We drank, but we were always in the shed and they were inside. If we drank inside, they stayed outside and played. She was involved in alcohol when we were bringing her up. Do you know, her life had not changed until I let her go back to her mother. We fought to get her back and we got her back. We were lovely grandparents.” The writer notes here an element of denial. It is also noted Misty’s grandmother has been recently charged with a drink driving related offence.”

[39]	A psychiatrist’s report for sentencing was also prepared by Dr Armstrong. This elaborates on Ms Heke’s background of abuse and alcohol use:

“The defendant told me that her use of drugs and alcohol was largely motivated by the ability of these substances to dull her emotional pain, and that she had little ability to cope with her emotions without using substances.”

[40]	Dr Armstrong concludes that Ms Heke has a history of severe traumatic events and that her current symptoms lead to a diagnosis of Post-Traumatic Stress Disorder, as well as Major Depressive Disorder.

Submissions

Appellant submissions

[41]	Mr Timmins, for Ms Heke, does not dispute the starting point. However, he submits that various matters of mitigation deserved greater recognition.

[42]	First, he submits that the Judge erred in his application of the guilty plea discount. Earlier this year, the Court of Appeal in Moses v R,20 determined that the guilty plea discount should be amalgamated with any discount for personal mitigating factors before being taken off the starting point. It would appear the Judge applied the previous three-step methodology although, given the decision in Moses was delivered

20	R v Moses [2020] NZCA 296.

just a week before, is understandable. He adjusted the sentence for mitigating and aggravating personal features and applied the guilty plea discount to that sentence.21 (It should be noted that the Judge then reduced the sentence  by  two  months  for  Ms Heke’s rehabilitation efforts). Mr Timmins calculates that the end sentence would have been about one and a half months less if the guilty plea was applied according to the Moses methodology. However, the calculation relies on the discount for rehabilitation being deducted as a final step.

[43]	Secondly, Mr Timmins submits that the Judge erred by not allowing any discount for cultural background factors.  Mr Timmins submits a discount of up to  30 per cent would be appropriate in the appellant’s circumstances. He also submits the Judge erred when he relied on Carr as authority to support the principle there should be no credit for cultural factors due to the prevailing statutory principles of denunciation and deterrence.22 This is because the Court of Appeal later reversed this Court’s decision in Carr v R and allowed a s 27 discount.23

Crown submissions

[44]	Mr Davie, for the Crown, acknowledges that the Judge should have applied the guilty plea discount according to Moses. He also acknowledges that another Judge might have allowed a greater discount for mitigating personal circumstances. However, he submits that the sentence is nevertheless in range because the Judge adopted a starting point which was not at the top of the available range. He thus submits the sentence of five years’ imprisonment is within range. It was open to the Judge to adopt a starting point of seven years and nine months’ imprisonment (seven and a half years for the February offending with a four-month uplift for the assault). A discount of no more than 35 per cent to reflect all mitigating factors (guilty plea, social deprivation, youth) was required. The Judge was not obliged to give a discount for EM bail because the appellant breached her bail.

21	Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
22	R v Carr, above n 18.
23	Carr v R [2020] NZCA 357.

Approach on appeal

[45]	I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.24 The focus is on the sentence imposed, rather than the process by which it is reached.25 Although the sentence does not need to be ‘manifestly excessive’, this is a helpful concept when considering the seriousness of the error.26

Discussion

Guilty plea discount methodology

[46]	I am satisfied the Judge erred in applying the discounts available to Ms Heke. Had the Moses methodology been applied at the time he sentenced Ms Heke, the sentence calculation would have been as follows:

(a)	82 months, reduced by 29 per cent (10 per cent for youth;

(b)	15 per cent for the guilty pleas; and

(c)	one per cent for time spent on EM bail and two months (approximately three per cent) for her rehabilitation efforts),

to reach an end sentence of 58 months, or four years and 10 months. This is an end sentence which is two months less than that imposed.

Should a discount for Ms Zhang’s cultural background have been given?

[47]	Section 8(i) of the Sentencing Act 2002 provides that a sentencing Judge must take into account the offender’s personal, family, whanau, community, and cultural background. Reports under s 27 are intended to provide detail about the offender’s personal, family, whānau, community and cultural background. A discount may only

24	Criminal Procedure Act 2011, s 250.
25	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
26	At [35].

be given for "traceable linkages between that deprivation, the offender and the offending".27 Setting a discount for s 27 factors is very fact specific.28

[48]	Whata J in Solicitor-General v Heta discussed the need for linkage between an offender’s background and their offending:29

“[50] The evidence of the presence of systemic deprivation (or social disadvantage more generally) on an offender need not be elaborate. The symptoms of systemic Māori deprivation are reasonably self — evident, including (among other things) intergenerational social and cultural dislocation of the whānau, poverty, alcohol and or drug abuse by whānau members and by the offender from an early age, whānau unemployment and educational underachievement, and violence in the home. Evidence from whānau about the offender’s life is enough. But there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending.”

[49]	Whata J noted that the scale of a discount may be affected by the seriousness of the offending, but “critically in this case, recognition of deprivation and personal trauma does not involve condoning the offending. Rather it helps to explain it.”30 A discount of 30 per cent was given.

[50]	As noted by Mr Timmins, the Court of Appeal reversed this Court’s decision in Carr relied on by the Judge.31 However, it did so after Ms Heta’s sentencing and it would be unfair to criticise the Judge for adopting a sentencing principle by which he was bound. This Court in Carr emphasised that “causation and correlation are not synonymous” and that “the law does not accept some groups may use violence — but not others”.32 The Judge gave no discount, considering that the offending was too serious to have linkage to the offender’s background.33 The Court of Appeal determined the High Court was in error in denying a discount on account of information in the s 27 report:

“[65] We consider that the report gave a credible account of matters which might be considered to have impaired choice and diminished moral culpability

27	Arona v R [2018] NZCA 427 at [59].
28	Whittaker v R [2020] NZCA 241 at [51].
29	Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; endorsed by the full Court of Appeal in Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [159].
30	At [66].
31	Carr v R, above n 23, at [65].
32	Above n 18, at [60]—[61].
33	At [62].

so as to establish a causative contribution to offending, of the kind envisaged in Zhang. Where that is shown, we consider it must have an effect on the sentencing outcome. The focus of s 27 is on matters personal to the offender and while the gravity of the offending might temper the extent of any discount allowed for such considerations, that is a different proposition from saying there should be no allowance. We note in fairness to the Judge that this Court’s judgment in Zhang had not been delivered when he sentenced the appellants.

[66] Nor is it appropriate to reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offender can be put on one side. We can agree with the Judge that “[e]xcessive discounts in this context” undermine what he described as the criminal law’s precepts of human agency and choice. Those observations obviously were intended to embrace s 7(1) of the Sentencing Act’s reference to the purposes of sentencing, including holding offenders accountable, promoting a sense of responsibility and denouncing the conduct in which the offender was involved. But there is a clear difference between avoiding an excessive discount and deciding that there should be no discount at all. …”

[51]	The Court of Appeal granted a 15 per cent discount for s 27 factors.

[52]	Against that background I consider that the Judge erred in failing to acknowledge the effect of the s 27 factors on Ms Heke’s offending. Both sets of offending involved extreme aggression in the context of alcohol abuse. There is a clear linkage and relevance to this conduct and Ms Heke’s background as set out in the s 27 reports. The extreme dysfunction and instability in her whānau relationships and home life, the dominating presence of alcohol, and the trauma and abuse in her youth and childhood has a causative connection to Ms Heke’s offending. It has impaired and limited the choices available to her. As reflected in the Court of Appeal’s comments in Carr the Judge was wrong to reason that many people experience adverse childhoods and yet do not go on to offend. Carr established that such reasoning is not relevant when considering the legitimate effects of Ms Heke’s own background and her moral culpability for the offending.

[53]	In so commenting I must emphasise that these factors do not detract from the seriousness of Ms Heke’s offending, which precludes a significant discount. But whilst any discount must be seen in light of all sentencing purposes, including denunciation and deterrence, it does not follow that an offender’s background has less of an impact on their culpability for serious crimes than it does for minor offending. Accordingly, I consider a discount of 15 per cent would be appropriate.

Was the sentence manifestly excessive?

[54]	Ultimately, I must look at the overall sentence. The Crown argument is based on the claim that the Judge’s relatively generous starting point means the overall sentence was within range. In order to analyse the correctness of that submission it is necessary to examine cases involving similar offending.

[55]	The Court of Appeal’s guideline judgment in R v Taueki identifies the factors relevant to the assessment and fixing of a starting point for this sort of offending. It establishes three overlapping bands of starting point based on those factors.34 The Judge’s sentencing indication identified two aggravating features; the use of a car as a weapon and serious injury. In my view these place the offending in band two of Taueki (five to 10 years, for offending featuring two or three aggravating features).

[56]	The Crown advanced R v Heremaia as a comparable case.35 A starting point of six years six months was adopted for one charge of grievous bodily harm with intent to cause grievous bodily harm. Mr Heremaia was involved in a fight at a party. He left but returned in a car, reversing it into a group of people, knocking one to the ground. He then drove over the victim four times, also injuring another who fell as he tried to grab the keys from the ignition. The principal victim suffered life threatening injuries. The Judge noted that there had been an element of provocation and set a starting point of six years and six months’ imprisonment. Mr Davie submits that in the absence of provocation, the starting point would have been nine years because the offending fell into band three of Taueki. However, I struggle to see how this claim is made out having regard to the judgment. I do not accept that the starting point was reduced by two and a half years’ for the “presence of some provocation”.36 Further, Heremaia involved premeditation. Mr Heremaia returned to the party and commented to a bystander, “I am going to run them over, what do you think?”. In contrast to Heremaia, premeditation is not present here. It follows I do not consider a starting point higher than Heremaia is appropriate.

34	R v Taueki [2005] 3 NZLR 372 (CA).
35	R v Heremaia [2012] NZHC 3361.
36	At [16].

[57]	R v Wallis involved a protracted car pursuit of the victim. It ended when the victim was hit and carried for several metres on the bonnet before being hit again at speed and driven over.37 A repetition was only thwarted after the intervention of by- standers. A starting point of seven years was imposed to reflect the extreme violence, the use of a car as a weapon and the serious injury. I consider this case is distinguishable due to the sustained pursuit and the further attempts, albeit unsuccessful, to hit the victim.

[58]	In R v Sang-Yum the offender tailgated the victim’s car and blocked him from driving away. He got out of his car and spoke to the victim before returning with another and severely assaulting the victim and driving over his leg.38 The injuries to the victim’s leg were so serious they required amputation. Woodhouse J found the aggravating factors included the use of car as a weapon, extreme violence, serious injury as well as some degree of premeditation and vulnerability of the victim. The starting point was set at six years’ imprisonment for the aggravated assault with the car. Given the facts and the vulnerability of the victim, I consider the assault in that case slightly more serious than the index offending.

[59]	In R v A the offender knocked the complainant to the ground and drove over him. His injuries led to tetraplegia. Palmer J set a starting point of six years and two months’ imprisonment,39 noting the extreme violence and the extent of the victim’s injuries. The injuries in the present case were less enduring and less serious. However, I assess Ms Heke’s overall offending as worse, given the sustained and extremely dangerous use of her car during the Police chase.

[60]	After reviewing these cases, I do not consider that the Judge’s starting point of six years and six months sits at the lower end of the available range.

[61]	Having regard to my findings on the available discounts, I am of the view that the overall sentence was manifestly excessive.

[62]	It follows I must allow the appeal and embark on a re-sentencing of Ms Heke.

37	R v Wallis [2014] NZHC 2479.
38	R v Sang-Yum [2016] NZHC 2329
39	R v A [2020] NZHC 1169.

[63]	The substituted sentence is calculated as follows:

(a)	a starting point of 82 months (six years and six months on the grievous bodily harm charge, plus four months for the assault with a weapon);

(b)	I will apply a combined total discount of 44 per cent (10 per cent for youth; 15 per cent for s 27 factors; 15 per cent for the guilty pleas; one per cent for time spent on EM bail and three per cent for rehabilitation efforts).
The result is an end sentence of three years’ and 10 months imprisonment.

Result

[64]	The appeal is allowed.

[65]	The sentence on the charge of five years imprisonment is quashed and a sentence of three years’ and 10 months imprisonment is substituted.

[66]	For the avoidance of doubt, the sentence is made up as follows:

(a)	three years and 10 months for the charge of grievous bodily harm; and

(b)	to be served concurrently, four months’ imprisonment for each of the lesser charges.

[67]	The orders in relation to disqualification remain.

Moore J
Solicitors:
Ms Bloem, Auckland Crown Solicitor, Auckland