Ah Hi v The Queen

[2019] NZHC 678

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-044

[2019] NZHC 678

BETWEEN

LAAUOLEOLA PATRICK LAITITI AH HI

Appellant

AND

THE QUEEN

Respondent

Hearing:	1 April 2019
Counsel:	C Ross for Appellant Z Fuhr for Respondent
Judgment:	3 April 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 April 2019 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:

Public Defence Service (Manukau) for Appellant Crown Law (Wellington) for Respondent

AH HI v R [2019] NZHC 678 [3 April 2019]

Introduction

[1]                  On 30 November 2018, Mr Ah Hi was sentenced by Judge DJ McNaughton to three years’ imprisonment on one representative charge of indecent assault and one charge of doing an indecent act in a public place.1 The maximum penalties are seven years’ imprisonment2 and two years’ imprisonment3 respectively. Mr Ah Hi appeals the sentence as being manifestly excessive.

[2]                  In order to succeed, Mr Ah Hi must satisfy me there is an error in the sentence such that a different sentence should be imposed.4

Background

[3]                  The charge of doing an indecent act in a public place arose from an incident which took place on 29 July 2017. The charge of indecent assault arose some five months later on 21 December 2017 while Mr Ah Hi was on bail for the first charge. The facts of each incident are usefully set out in the Crown’s submissions:

Indecent act in a public place

8.On 29 July 2017, the first victim (aged 13) noticed the appellant watching her at the Manurewa indoor netball courts. She walked away to a public area to buy food, feeling uncomfortable about the way the appellant was looking at her. The appellant followed her and intercepted her in a hallway near the toilets. The appellant gestured towards the toilets and said in Samoan “let’s go to the toilets and have sex”. The victim alerted members of the public who intercepted the appellant and called the police. The appellant claimed that he thought the victim was 23 (even though she had been wearing a school uniform at the time).

Indecent assault

9.The second incident occurred in Takanini five months later, while the appellant was on bail for the first charge. On 21 December 2017, the second victim, an 84-year-old woman [Ms D], was returning home from the dairy when she was approached by the appellant. The appellant followed her, initiating a conversation with her. He asked her how she was and if she was going for a walk – the victim replied that she was walking home. When she stopped outside her house and said she was going in, the appellant asked her if it was her house and

1      R v Ah Hi [2018] NZDC 25249.

2      Crimes Act 1961, s 135.

3      Section 125.

4      Criminal Procedure Act 2011, s 250.

whether she lived alone. She said that she did. The appellant told her that she looked like his mother and asked if he could have a look inside the house. The victim said she was going and walked around the back of the house. Unbeknownst to her, the appellant followed her through her garden to her back door. It was only when she opened the door that she realised the appellant was behind her. She turned and asked him what he was doing – he claimed to want a glass of water. The victim obliged, giving him a glass to fill up using the outside tap. When the appellant said he wanted warm water, the victim refused and asked him to leave. At that point the appellant’s demeanour changed. He threw the glass in the doorway and walked inside, closing the door behind him.

10.The appellant grabbed the victim by the shoulders, threw her down on the floor, causing her to land on the back of her head, and lay on top of her (face to face), covering her mouth with his hand. She fought back, kicking and grabbing the appellant’s hair in an effort to get him off her. The appellant suddenly got up, walked through the house, stopping to look in the victim’s bedroom and unsuccessfully tried to open the locked front door.

11.In the interim, the victim had managed to get up off the ground and, thinking the appellant had left, tried to lock the back door. The appellant ran back through the house and grabbed her by her shoulders at the back door. He again threw her to the ground, causing her to hit her head. Again, the appellant lay on top of her. When she began to scream, he ran off. The victim went to her neighbour’s house and called the police.

12.The victim suffered scratches to the side of her face and extensive bruising to her lower back.

Judge McNaughton’s sentence

[4]                  Judge McNaughton, having set out the facts, related the effects of the offending on the victims as contained in the victim impact statements. The effects on the elderly victim, Ms D, have been dramatic. There are ongoing physical effects as well as psychological effects. The Judge commented, “I think it is no exaggeration to say that you have destroyed her life”.5

[5]                  It seems the impact of the offending on the 13-year-old victim has also been serious. The victim is undergoing counselling, her schoolwork is suffering, and she is anxious and self-harming. The victim’s mother described a distinct change in her daughter’s personality – “she is now very quiet and closed off”.

5      R v Ah Hi, above n 1, at [25].

[6]                  Judge McNaughton was concerned the charges do not precisely address the culpability of the offending. In the Judge’s assessment, the offending would more closely align with an attempt to commit sexual violation in the context of a burglary. However, in the context of the actual charges, the Judge was of the view the aggravating features take the seriousness of the offending to the upper end of the available range for sentence. If the charges had been different, the Judge would have adopted a starting point of five years’ imprisonment. On the charges before him, the Judge adopted a starting point of four years’ imprisonment.

[7]                  The starting point was increased by three months to take into account the offending against the 13-year-old victim.

[8]                  The Judge gave credit of three months’ imprisonment for Mr Ah Hi’s previous good record, gave a further discount of 15 per cent for the pleas of guilty and a final discount of four months’ imprisonment as credit for Mr Ah Hi’s participation in literacy and Pacifica Identity programmes.

Analysis

[9]                  Mr Ross for Mr Ah Hi submits the starting point of four years’ imprisonment was too high and this has led to the end sentence of three years’ imprisonment being manifestly excessive. Mr Ross submits the appropriate starting point was no more than three years’ imprisonment and, accepting the Judge’s other adjustments, the end sentence should have been in the region of 26.4 months’ imprisonment.

[10]              There is no tariff judgment for indecent assaults, which can occur across a wide range of circumstances and involve a broad variety of features. This makes finding analogous cases difficult.

[11]              Mr Ross pointed to Khangura v Police, which involved an appellant following a woman to her apartment door, where he told her she “look[ed] so sexy” and grabbed her by the arm.6 When she retreated behind the door and tried to close it he attempted to force it open, and passed a hand through to squeeze her buttock over the clothing.

6      Khangura v Police [2018] NZHC 203.

She abandoned the door and ran into a flatmate’s room. He followed but retreated on realising the flatmate was present. In that case a starting point of two years and six months’ imprisonment was upheld as “in the upper end, but still within the range that was open”.7 Beyond featuring a relatively forceful and protracted home invasion, I do not consider that case had the same degree or repetition of violence, nor victim vulnerability as this offending. Tialata v Police was also submitted but did not involve a home invasion context.8 Teriini v R dealt with an indecent assault of a stranger on the street, but similarly lacked a home invasion aspect.9 Hishon v R dealt with substantially different offending involving abuses of trust rather than stranger attacks.10 R v Hohaia was similarly characterised by an abuse of trust and is not substantially comparable.11

[12]              The Crown submits this case is more comparable to Milne v Police, in which an offender entered his ex-girlfriend’s home through a window, held her down, kissed her, and groped her to the extent of skin-on-skin touching of her breasts and vagina.12 The District Court Judge identified key aggravating features as premeditation, the extent of the sexual conduct and violence, home invasion, and the harm done to the victim in setting a starting point of three and a half years’ imprisonment. This was upheld on appeal as “high, [but] not outside the range available”.13 The Crown contends Mr Ah Hi’s offending is of comparable severity, though further exacerbated by the fact that Mr Ah Hi was on bail at the time.

[13]              I have also done my own research, and I have not found any cases sufficiently close to this offending’s combination of characteristics which provide substantive guidance. What is clear is that home invasion is consistently treated as seriously aggravating, as are particular victim vulnerability and seriously impactful offending.14

7 At [36].

8      Tialata v Police [2018] NZHC 203.

9      Teriini v R [2013] NZCA 614.

10     Hishon v R [2016] NZCA 558.

11     R v Hohaia CA221/05, 17 October 2005.

12     Milne v Police [2012] NZHC 320.

13 At [18].

14 See for instance R v Mua CA/190/94, 3 November 1994 at [4]: “Entry into dwellings at night and assaults, particularly indecent assaults, upon occupants must draw stern sentences to reflect society’s attitude to such conduct which affects the sense of security of the whole community.” While this assault occurred early in the morning, it had a similarly invasive and destabilising character, particularly given the force used and its victim’s vulnerability.

[14]              The problem for Mr Ah Hi on this appeal is that I have to decide whether the end sentence of three years’ imprisonment is manifestly excessive. I must look, therefore, at all the factors going to his culpability. Mr Ross has focused his submissions on the Judge’s starting point, but I must also look at the other adjustments. First, I agree with Judge McNaughton that the key culpability in the representative charge of indecent assault is not the circumstances of indecency (which I am told is Mr Ah Hi lying face to face on top of his victim) so much as the aggravating features of premeditation, home invasion, the extreme vulnerability of the victim and the repeated acts of violence against her inside her own home. A further aggravating feature is the great, and understandable, effect of the offending on the elderly victim, both physical and psychological.

[15]              I agree with Ms Fuhr for the Crown that a starting point of four years’ imprisonment is stern, but it is justified in the circumstances. It is a little over halfway along the sentence range leading to the seven-year maximum.

[16]              If I am, however, wrong in this assessment, then there are other factors which lead me to conclude the end sentence of three years’ imprisonment is not manifestly excessive:

(a)The Judge made no discrete uplift for this offending occurring while Mr Ah Hi was on bail on the charge of offending against the 13-year- old. An uplift of three to six months’ imprisonment was available.15

(b)A discount of 15 per cent (eight months) for the pleas of guilty was very generous. It came the day before his trial on the charge relating to the 13-year-old victim, Mr Ah Hi having shortly before succeeded in severing the trial of that charge from the indecent assault charge. Some discount was warranted, but a 10 per cent discount would have been within range.16

15     See for instance Herrick v R [2013] NZCA 595 at [13]–[15].

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

(c)The discount of four months for Mr Ah Hi’s efforts in completing literacy and Pacifica Identity programmes is difficult to justify in the context of offending for which Mr Ah Hi showed no remorse, continued to deny any sexual intent and was assessed as being at a high risk of reoffending.

[17]              Finally, I stand back and look at the sentence in its totality to assess whether it exceeds the proper response to the overall criminal culpability displayed by Mr Ah Hi. Here, it is important to remember the offending against the 13-year-old victim and its effect on her. That was separate offending unrelated to the offending against the 84- year-old victim and it could have been met with a cumulative sentence. Overall, I am satisfied the end sentence of three years’ imprisonment was a proportionate response to Mr Ah Hi’s offending.

Result

[18]I do not find the end sentence to be manifestly excessive.

[19]The appeal is dismissed.

Brewer J