Aiono v Police

[2012] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-020 [2012] NZHC 1603

MORESI AIONO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 July 2012

Appearances: K Pascoe for the appellant

A W M Britton for the respondent

Judgment:      6 July 2012

JUDGMENT OF CLIFFORD J

[1]      The appellant, Mr Aiono, pleaded guilty to one charge of injuring with intent to  injure under s 189(2)  of the Crimes Act  1961.   Mr Aiono  was  sentenced  by Judge Ross in the District Court at New Plymouth on 16 May 2012 to 16 months’ imprisonment and to paying emotional harm reparation of $1,000 to his victim. Mr Aiono now appeals that sentence as being manifestly excessive.

Facts

[2]      The statement of facts to which Mr Aiono pleaded guilty records that at

11.30pm on Thursday, 2 February 2012 Mr Aiono was in a vehicle on Tavistock

Street, New Plymouth with several associates.   He observed an associate (whom I

AIONO v POLICE HC NWP CRI-2012-443-020 [6 July 2012]

understand was not in the vehicle with him) punch the victim, knocking him unconscious.   Mr Aiono then got out of the car, approached the victim as he lay unconscious on the ground and stomped on the side of his head.  One of Mr Aiono’s associates pulled him away from the victim, but Mr Aiono managed to break away and attempted to, once again, kick his victim in the head.  On that occasion, the kick was blocked by one of the victim’s friends.   Mr Aiono explained his actions by reference to the effects of alcohol.

[3]      As a result of the attack on him, the victim sustained a blackened left eye, bruising to the left side of his head and cheek and a cut and bruised lip.   When talking to a restorative justice manager, as Mr Aiono had expressed a wish to attend a restorative justice meeting, Mr Aiono’s victim spoke of lasting injuries for which he required  specialist  assistance.    I  acknowledge  that  it  is  not  possible  with  any precision  to  determine  the  extent  to  which  Mr Aiono’s  associate,  or  Mr Aiono himself, contributed to those injuries.  Clearly, however, they both did.

[4]      Mr Aiono was remanded in custody as a result of his offending.  During that time,  Mr Aiono  completed  two  art  sketches  which  were  purchased  by  a  local organisation for $150.  Mr Aiono wrote to his victim, apologising, and also paid him that $150.  His victim was recorded as being grateful for that payment, although he sought a further amount of reparation.  He said he would have been happy for a total of about $600.

The Judge’s sentencing decision

[5]      When sentencing Mr Aiono, the Judge identified an initial starting point of

18 months’ imprisonment.    Then,  by  reference  to  Mr Aiono’s  substantial  list  of previous convictions, one of which was for assault, he determined that an uplift of three months was appropriate.   His reasoning was that the assault with intent to injure offending represented an escalation of earlier disorderly and anti-social behaviour offending, most of which had been associated with alcohol use.

[6]      The Judge then considered the question of remorse.   The Judge was not impressed by the letter Mr Aiono had written to his victim.   The Judge made no

reference to  the payment  of $150  that Mr Aiono had  made to  his victim.    But allowing a full 25 per cent discount, or five months, for Mr Aiono’s guilty plea resulted in an end term of imprisonment of 16 months.   The Judge then imposed release conditions for six months, and the emotional harm reparation of $1,000.

Grounds of appeal

[7]      Mr Aiono originally appealed against his sentence on the grounds that: (a)    the initial starting point identified by the Judge was too high;

(b)the  Judge  had  erred  by  uplifting  that  starting  point  for  unrelated previous offending;

(c)      in imposing the sentence of reparation the Judge had failed to have regard, as required by s 10 of the Sentencing Act 2002, to Mr Aiono’s offer of reparation; and

(d)      the Judge had been wrong to impose emotional harm reparation of

$1,000.

[8]      Arguing the appeal for Mr Aiono, Ms Pascoe focussed first not so much on the initial 18 month starting point identified by the Judge (which she acknowledged to be in range) but on the uplift of three months for previous offending.  She said that because only one of Mr Aiono’s many offences was, as the Judge had acknowledged, for violent offending, Mr Aiono was in effect being sentenced twice for his previous offending.

[9]      Ms Pascoe’s further submission was that s 10 of the Sentencing Act is clear. It requires Judges to have regard to payments made by way of amendment for emotional harm. The Judge had simply failed to have regard to Mr Aiono’s payment, rendering his order for reparation unlawful.

[10]     Finally, and as regards the $1,000 emotional harm reparation ordered, the Judge  had  been  wrong  to  impose  that  because  he  had  not  properly  considered Mr Aiono’s ability to make that payment.

[11]     For the Crown, Mr Britton’s overall argument was that whilst it could be accepted  that  the  uplift  might  be  challenged,  on  the  grounds  Ms  Pascoe  had identified, and that the question of the emotional harm reparation did raise issues, nevertheless the sentence taken overall was not manifestly excessive and the emotional reparation order was lawfully made.

Analysis

[12]     I do not consider the sentence of 21 months however determined by the Judge, before consideration of a discount for Mr Aiono’s guilty plea, to be manifestly excessive.  As Mr Britton pointed out, in my view Mr Aiono’s offending is properly categorised, in terms of R v Harris’ application of the R v Taueki methodology to injuring with intent to injure offending, as coming within the upper end of Band 2.[1]

Mr Aiono attacked the head of an unconscious, and therefore necessarily vulnerable,

man as he lay on the ground.  Serious injury was suffered, reflected by the victim’s need for ongoing specialist treatment.  Although Mr Aiono did not attack his victim together with his associate, he followed closely thereafter so that at least something of the “multiple attackers” factor was present.  In addition, and notwithstanding the Crown’s concession, I do not think the Judge was wrong to be concerned about the significance  for  this  offending  of  Mr Aiono’s  existing  and  lengthy  pattern  of disorderly and anti-social behaviour.   To regard this offending as more serious because of that previous pattern of offending is not, in my view, to punish Mr Aiono twice for that previous offending.   Rather it is to acknowledge a disturbing and escalating pattern of behaviour.   Whilst I would not necessarily consider a three month uplift was called for (something in the range of a month might be more appropriate) I do not think, taken over all, that the sentence of 21 months can, in

these circumstances, be regarded as manifestly excessive.

[1] R v Harris [2008] NZCA 528; R v Taueki [2005] 3 NZLR 372 (CA).

[13]     I therefore turn to the issues raised by the Judge’s approach to reparation.

[14]     Section 32(6) of the Sentencing Act provides that, when determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure or action taken by the offender as described in s 10. Section 10 refers to offers of amendment and measures taken to make compensation. Whilst the Judge referred to the letter written by Mr Aiono to his victim, the Judge made no reference to the payment of the $150.  On that basis, I cannot be satisfied that the Judge had regard to it.   The Sentencing Act is clear on that point: such payments must be taken into account by the Judge when determining the amount of reparation to be paid.  On that basis, the order for reparation cannot stand.

[15]     I am also concerned that reparation may have been ordered that Mr Aiono was simply not in a position to pay.  Although not required to do so, the Judge did not obtain a reparation report.   The Court of Appeal has made it clear that the availability of adequate information about the financial capacity of the offender is important in order to establish whether the making of an order would result in undue hardship under s 12(1) for the purpose of determining under s 35(1) the amount of reparation,  and  for  the  purpose  of  determining  the  conditions  of  the  reparation

sentence under s 36(1).[2]     A sentencing Judge is  required  to  have a “reasonable

measure of confidence” that the payment of reparation is able to be made,[3] and care must be taken before the order is made.[4]   Here, the Judge was aware that Mr Aiono was, as he put it, “trammelled by previous unpaid reparation”.  Mr Aiono’s criminal and traffic history records some $3,500 of outstanding reparation: the bulk of that

would appear to relate to reparation due for a burglary in 2006.  The Judge did not, however,  make  any  further  assessment  of  Mr Aiono’s  financial  position.    It  is difficult to see how the Judge could have had the necessary measure of confidence that payment could be made and thus I cannot be sure that the order imposed will not

result in undue hardship to Mr Aiono.

[2] R v Wonnacott [2009] NZCA 414; R v Story [2012] NZCA 98.

[3] R v Pender & Roberts [2007] NZCA 465 at [15].

[4] R v Wonnacott [2009] NZCA 414.

[16]     I therefore allow Mr Aiono’s appeal to the extent of quashing the order for

$1,000 emotional harm reparation made by the Judge.  Subject to that, Mr Aiono’s

appeal is dismissed and his sentence is upheld.

“Clifford J”

Solicitors:

Nicholsons, New Plymouth for the appellant.

The Crown Solicitor, New Plymouth for the respondent.