Anderson v The Queen

[2019] NZHC 620

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000012

[2019] NZHC 620

BETWEEN

HONE PIRIPI ANDERSON

Appellant

AND

THE QUEEN

Respondent

Hearing:	25 March 2019
Counsel:	GA Walsh for Anderson BT Vaili for Respondent
Judgment:	29 March 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 29 March 2019 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. GA Walsh, Hamilton.

ANDERSON v R [2019] NZHC 620 [29 March 2019]

The appeal

[1]    Judge R L B Spear sentenced Mr Anderson to a term of four years’ imprisonment.1 Mr Anderson twice injured his partner the same evening, including after Police intervention. Mr Anderson appeals. He contends his sentence is manifestly excessive, largely because the Judge adopted too high  a starting point.  Mr Anderson also invites attention to the uplift for his criminal record, and guilty-plea discount.

[2]The appeal involves a second-strike.

Background

[3]    Mr Anderson and the complainant were in a relationship. They have two young children. Mr Anderson and the complainant lived apart at the time.

[4]    At approximately 5.30 pm on 18 October 2017, Mr Anderson went to the complainant’s home to see their son—uninvited. The complainant told him to leave. An argument developed. Then a struggle. Mr Anderson grabbed the complainant’s left hand. He bit “down hard” on her little finger. Mr Anderson then left.

[5]    Photographs of the injury were shown to Judge Spear, who referred to “a significant laceration”.2 The complainant suffered no permanent injury.

[6]    Police  were  called.   They  issued  a  Police  Safety  Order.   It   prohibited Mr Anderson from going to the complainant’s home for five days. But after midnight, Mr Anderson returned to the complainant’s home. He verbally abused the complainant, grabbed her by the hair, and pulled her from a chair onto the ground. Mr Anderson then repeatedly stomped on her head. Mr Anderson also grabbed the complainant by the throat and strangled her.3 She lost consciousness. Family

1      R v Anderson [2019] NZDC 1501.

2 At [3].

3      The summary of facts says Mr Anderson used his fingers to “pinch” both sides of the complainant’s throat with such pressure she lost consciousness. Strangling remains a convenient description.

members intervened. Mr Anderson was promptly arrested. He told Police, “Yeah I assaulted her, so what.”

[7]    The complainant suffered “significant bruising to her face”. She required hospital treatment. Photographic evidence implies a very bad assault.

[8]    Mr Anderson ultimately pleaded guilty to two charges: wounding with intent to injure in relation to the biting,4 and injuring with intent to injure in relation to the post-Police Safety Order attack.5 I call the former the biting charge; the latter the injuring charge. The biting charge constituted a second-strike.

Starting point

[9]    The Judge adopted a three-year starting point for the injuring charge. He added 18 months’ imprisonment for the biting charge (after ameliorating the uplift for totality), producing a global starting point of four and a half years.

[10]   Mr Anderson contends sentencing miscarried here. He argues the injuring charge should have attracted a two-year starting point, uplifted by nine months for the biting charge. Mr Anderson contends the Judge wrongly placed the injuring charge at the bottom end of  band  three  of  Nuku;6  its  correct  placement  was  band  two.  Mr Anderson submits the injuring had only two aggravating factors—an attack to the head and serious violence. He observes the biting attracted no permanent injury. It follows an 18-month uplift was much too great.

[11]There are difficulties with this analysis.

[12]   First, implicit is the proposition each charge should have been considered in isolation, absent cross-aggravation. However, Mr Anderson committed both offences within seven hours, at the same place, against the same victim. Each offence does aggravate the other. Indeed, the two are better conceived as constituting a single

4      Crimes Act 1961, s 188(2).

5      Section 189(2).

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

sequence interrupted only by Mr Anderson’s departure and return in contravention of the Police Safety Order.

[13]   Second, band three of Nuku requires a starting point of two years’ imprisonment up to the statutory maximum when three or more aggravating features are present, and their combination is particularly serious. The band also captures cases with “a high level of violence”, “prolonged violence” or both, “even if there are few other aggravating features”.7

[14]   The sequence exhibits a host of aggravating factors. It involved extreme violence, an attack to the head, and an element of home invasion. That both offences occurred in the complainant’s garage rather than her home does not diminish the sense of security Mr Anderson violated. The injuring offence involved a flagrant breach of a Police Safety Order, made only hours earlier to protect the complainant. Whether this aspect is treated as victim vulnerability—Nuku refers in this context to the broadly analogous situation of a breach of a protection order8—or as some other species of aggravator matters not. Both offences involved a breach of trust.9

[15] Third, the seriousness of this combination placed the sequence firmly within band three, a conclusion underscored by the presence of a high level of prolonged violence throughout; see [13].

[16]A brief survey supports this conclusion.10

[17]   Mr Toko was convicted of assault with intent to injure, threatening to kill, and four charges of male assaults female. He punched his partner in the face. Several hours later he did the same again, this time repeatedly. Mr Toko committed yet another assault that evening. The complainant lost consciousness. He then assaulted her with a car door, kicked her and pushed a lit cigarette into her throat.

7      Nuku v R, above n 5, at [38](c).

8      Nuku imports aggravating factors from R v Taueki [2005] 3 NZLR 372 (CA), and Taueki refers to victim vulnerability at [31](i).

9      See Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420 at [27].

10 Mr Anderson cited Dean v Police [2014] NZHC 1542; Pokaia v Police [2015] NZHC 1718; and O’Docherty v Police [2014] NZHC 2312. All three involved stomping, but not domestic violence. I consider them distinguishable for this reason.

[18]   A global starting point of two years and nine months’ imprisonment was held to be “well within the available range”.11

[19]   Mr Bolton twice assaulted his partner, several weeks apart. On the first occasion, he threw her against the wall, held her by the throat and twice punched her to the face. On the second, he kicked the complainant four times (and smashed her property). Mr Bolton was convicted of two charges of male assaults female.

[20]   A global sentence of 26 months (after a reduction for totality) was upheld on appeal (it is difficult to identify the starting point).12

[21]   Mr Luff-Pycroft was convicted of injuring with intent to injure and two offences of assault with intent  to injure.  The offending spanned  several  months. Mr Luff-Pycroft choked his partner and threatened to kill her with a knife. Two months later, he pushed the complainant to the ground. He then kicked her several times and threatened her with a knife. A month later, Mr Luff-Pycroft strangled, bit and punched the complainant, breaking her teeth. The attack continued until others intervened.

[22]   The Court of Appeal allowed the appeal but did not comment adversely on the two-year starting point for the injuring charge—the last incident—or the four-month uplift for the earlier ones.13

[23]   Mr Maihi was convicted of wounding with intent to injure and three offences of injuring with intent to injure. He attacked his partner four times over 19 months. All involved blows to the head. Two resulted in hospitalisation. The complainant twice lost consciousness. The complainant played dead on the last occasion, hoping Mr Maihi would stop if he thought he had killed her. He did not. A family member intervened.

[24]   The sentencing Judge concluded each offence fell within band three of Nuku. He imposed cumulative sentences, for each, of between two and three years’

11     Toko v R [2017] NZCA 460 at [24] and [31].

12     Bolton v Police [2016] NZHC 1297.

13     Luff-Pycroft v R [2012] NZCA 107.

imprisonment. Adjusting for totality, the Judge adopted a global starting point of eight years’ imprisonment. The Court of Appeal allowed the appeal. It concluded the starting point for each was available, but inadequate allowance had been made for totality. The Court substituted a global starting point of six and a half years’ imprisonment.14

[25]   Mr Anderson’s offending is much more serious than the offending of Mr Toko, Mr Bolton and Mr Luff-Pycroft, but appreciably less serious than that of Mr Maihi. Mr Anderson’s global starting point sits approximately half way between these camps. This accords with the seriousness of his offending.

[26]   Fourth, the global starting point constitutes 90 percent of the maximum penalty for the injuring offence, in turn consistent with the Judge’s statutory obligation to impose a penalty “near to the maximum … if the offending is near to the most serious category of cases for which that penalty is prescribed”.15

[27]In summary, the Judge did not err in relation to the starting point.

Uplift for violent record

[28]   In October 2010, Mr Anderson injured with intent to cause grievous bodily harm—his first-strike offence—assaulted with intent to injure; and assaulted with a weapon. Judge R G Marshall imposed a three-year sentence of imprisonment. In September the same year, Mr Anderson assaulted Police (in the context of a family violence call-out).

[29]   Judge Spear added six months to the starting point because of all this. The Judge noted the 2010 injuring offence involved stomping on the head of an unconscious victim.

[30]   Mr Anderson contends the uplift amounted “to double counting” because he is ineligible for parole on the biting offence—it being his second-strike. In Wipa v R, the

14     Maihi v R [2016] NZCA 205.

15     Sentencing Act 2002, s 8(d).

Court of Appeal held an uplift for a second-strike can be disproportionately severe given “inadmissibility to parole”.16

[31]   The answer to this concern lies in the structure of the sentences imposed on Mr Anderson.  As  observed,  the  Judge  increased  the  global  starting  point  by  six months because of Mr Anderson’s record. The Judge mitigated the sentence by 12 months as Mr Anderson pleaded guilty. The result: a four-year term. The Judge imposed this on the injuring charge, and 18-months’ imprisonment on the biting charge. These he made concurrent.

[32]   Parole inadmissibility attaches only to the biting charge; not the injuring charge.17 So, the uplift has no effect on Mr Anderson’s parole eligibility because it increased the length of the sentence on the injuring charge, not the biting, second-strike charge.

Guilty plea discount

[33]   Mr Anderson pleaded guilty in September 2018, just under a year after being charged. Mr Anderson contends the Judge ought to have discounted his sentence by 20 percent. In fact, the Judge did exactly that; as observed, he deducted 12 months from what would otherwise have been a five-year sentence. Mr Anderson’s challenge may reflect the Judge’s reference to a discount “of around 18 per cent”.18 Again, the discount was 20 percent.

[34]   Greater discount (full credit) was unwarranted. Mr Anderson pleaded guilty on the morning of his back-up trial, when the prosecution abandoned a second-strike charge of injuring with intent to cause grievous bodily harm. Mr Anderson likely benefited from this, as this more serious intent could be inferred: Mr Anderson strangled the complainant until she was unconscious and repeatedly stomped on her head.19

16 Wipa v R [2018] NZCA 219 at [24].

17   Parole Act 2002, s 20(7) and (8).   Mr Anderson will be eligible for parole after 18 months.   But for his second-strike, he would be eligible for parole after 16 months (following the expiry of one- third of the injuring charge sentence).

18 R v Anderson, above n 1, at [16].

19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

[35]All of which means Mr Anderson’s sentence is not manifestly excessive.

Result

[36]The appeal is dismissed.

Postscript

[37]   The warrant of commitment contains two errors. It refers to the biting charge as injuring with intent to injure; not wounding with intent to injure. It also refers to the wrong offence provision in relation to this charge; s 189(2) of the Crimes Act. It should read s 188(2) of the Crimes Act.

……………………………..

Downs J