Tawhai pleaded guilty to two charges of assault on a person in a family relationship and one charge of wounding with intent to injure her.
He was sentenced in the High Court at Whangārei in May 2022 by Justice Mary Peters, who said then that a finite prison sentence would not stop Tawhai from reoffending.
She agreed with Crown prosecutor Richard Annandale’s submissions that Tawhai’s past criminal history showed a pattern of him expressing remorse and insisting he wanted to change, but taking little action, waiting out sentences and release conditions, before reoffending.
Justice Peters imposed a sentence of preventive detention with no parole for five years, which Tawhai then appealed in the Court of Appeal.
Preventive detention is an indeterminate prison sentence aimed at people who pose a significant and ongoing risk to public safety. People can be released when the Parole Board judges that risk has been reduced.
Justice Peters noted that Tawhai had not participated in any rehabilitation courses, apart from a drug and alcohol course, since he had been imprisoned for 10 years for rape in 2008.
The Court of Appeal said the fact that Tawhai had only participated in the three-month alcohol and drug course in a 10-year period was “pivotal” in Justice Peters’ decision to impose preventive detention.
“The judge was concerned that if she imposed a finite sentence, Mr Tawhai would simply wait it out as he had done before and nothing would change,” the Court of Appeal justices said.
However, they said, “We are not quite so pessimistic”.
The Court of Appeal justices said that reports from a psychologist and a psychiatrist said Tawhai was willing to engage in appropriate treatment and “is likely to do so”.
They said Tawhai had taken a number of positive rehabilitative steps while in prison.
He had gained qualifications in painting and cooking, participated in cultural programmes and become fluent in te reo Māori.
The Court of Appeal concluded there was “an error in the sentence”.
It allowed Tawhai’s appeal, set aside the preventive detention sentence and imposed one of three years in prison with no parole for two years.
The Court of Appeal said Justice Peters imposed preventive detention for three reasons - to incentivise rehabilitative treatment, because Tawhai’s offences were not serious enough to impose a lengthy determinate sentence, and because an extended supervision order after prison would not sufficiently mitigate his risks.
The justices in the appeal court agreed a lengthy determinate sentence was not available, but they had a different view of whether preventive detention was required to incentivise Tawhai to engage in treatment.
They also said an “appropriately tailored” extended supervision order - which would normally be imposed for 10 years - ought to be effective in mitigating risk.
The court has been told Tawhai first ran away from home at the age of eight, was subsequently abused in a boys’ home after the age of 10, and then lived on the streets drinking alcohol and using cannabis. He received his first conviction at age 14.
He has a number of convictions for violent offending against women with whom he has been in an intimate relationship, and was first imprisoned for common assault at the age of 22.
He was sent to jail again five more times before his last offending, including the 10-year sentence for rape and other times for various family violence offences.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.
