Anguna v R
[2020] NZCA 127
•30 April 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA288/2019 [2020] NZCA 127 |
| BETWEEN | ANDREW RANGI ANGUNA |
| AND | THE QUEEN |
| Hearing: | 2 March 2020 |
Court: | French, Dobson and Moore JJ |
Counsel: | G A Walsh and M J James for Appellant |
Judgment: | 30 April 2020 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to bring the appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Following a jury trial in the District Court at Hamilton, Mr Anguna was found guilty of 10 charges arising out of domestic violence offending committed in December 2017.[1] He pleaded guilty to an additional six charges which related to events that took place six days later.[2]
[1]Three charges of breach of protection order (Domestic Violence Act 1995, ss 19(2)(a) and 49(1)(a)), burglary (Crimes Act 1961, s 231(1)(a)), kidnapping (s 209(b)), male assaults female (s 194(b)); two charges of threatening to cause grievous bodily harm (s 306(1)(a)), indecent act with intent to insult or offend (s 126); attempting to pervert the course of justice (s 117(e)).
[2]Driving while disqualified third and subsequent (Land Transport Act 1998, s 32(1)(a)), possession of an offensive weapon, namely a knife (Crimes Act, s 202A(4)(a)); unlawful possession of a firearm (Arms Act 1983, s 45(1)), unlawful possession of ammunition (s 45(1)), breach of protection order (Domestic Violence Act, ss 21(1)(a) and 49(1)(a)); possession of a class B controlled drug, namely MDMA (Misuse of Drugs Act 1975, s 7(1)(a)).
On 10 April 2019 the presiding Judge, Judge R G Marshall, sentenced Mr Anguna to six years and three months’ imprisonment.[3] He appeals that sentence on the grounds it is manifestly excessive. In particular, he says the sentences should not have been applied cumulatively.
An appeal against conviction was also filed but subsequently abandoned.
The notice of appeal was filed some 26 working days out of time. The delay is relatively short and explained on the basis that Mr Anguna had to engage a new lawyer for the purposes of his appeal. The Crown did not oppose granting an extension of time. Accordingly, we grant the extension.
The facts
The victim was Mr Anguna’s former partner of six years, Ms S. They separated more than a year before the offending. They have a daughter together. A final protection order in Ms S’s favour was granted in May 2017. Ms S lived in Hamilton with their daughter. Mr Anguna lived in Auckland.
[3]R v Anguna [2019] NZDC 6855.
5 to 6 December 2017 offending (the first incident)
On 5 December 2017 Ms S was at home when she saw Mr Anguna drive past. Fearing for her safety, she left home and parked her car outside a police station. She remained away from her home before returning about five hours later. This was because she knew Mr Anguna had an 8:00 pm curfew and assumed he would have returned to Auckland. However, when she got home shortly before 7:00 pm, Ms S found Mr Anguna there. He began to shout at her. He abused her. He accused her of having a new boyfriend and then told her that she had to travel to Auckland with him. He emphasised this by head butting a door and telling her, “You’re coming with me or you’re going to hospital”. He stood over her with a clenched fist. When she asked if she could be given time to pack some clothes, Mr Anguna told her that he had earlier climbed through a window and taken all her clothing.
Fearing for her safety, Ms S got into Mr Anguna’s car with their daughter. He drove them to his mother’s home in Auckland. He instructed Ms S on how she was to behave in front of others. Throughout the evening, he repeatedly spat on her, called her a liar and accused her of having affairs. He threatened that if she tried to leave he would break her legs, shoot her and she would end up in hospital. At one point, he took Ms S into the garage where he directed her to undress. He inspected her body, apparently looking for signs that she had been sleeping with someone else. He confiscated the keys to her house and car.
The following day Ms S told Mr Anguna that she needed to return to Hamilton. He responded by brandishing a knife at her and telling her that if she left he would cut her face off and the only place she would be going was to A&E.
However, around midday while Mr Anguna was asleep, Ms S managed to leave the house and return to Hamilton. In doing so she had no option but to leave her child behind.
In Hamilton she changed the locks to her house. The police supplied her with a panic alarm.
12 December 2017 offending (the second incident)
At about 7:30 am six days later, on 12 December 2017, Mr Anguna returned to Ms S’s Hamilton home. Using the key he had taken from her, he unsuccessfully tried to open the door. Ms S was home at the time. She activated the panic alarm.
The police responded immediately. When they got to Ms S’s home they saw Mr Anguna driving past slowly. He was stopped and his car searched. He was found to be carrying a knife. Inside the car the police located a .22 calibre Ruger pistol and a magazine containing compatible ammunition. There was also a small quantity of MDMA and methamphetamine.[4]
Attempting to pervert the course of justice
[4]Mr Anguna was discharged under s 147 of the Criminal Procedure Act 2011 in respect of a charge of possession of methamphetamine: R v Anguna [2019] NZDC 1185.
Following his arrest and while he was remanded in custody, Mr Anguna obtained prison approval by subterfuge to call Ms S. Between 28 December 2017 and 27 March 2018, he made more than 40 calls to her. These were recorded by the prison authorities. In the course of the calls, Mr Anguna instructed Ms S to write a false letter, swear a false affidavit and change her evidence. Judge Marshall said in his sentencing remarks that in listening to the recordings it was evident there was an increasing level of frustration and anger on Mr Anguna’s part as it became apparent Ms S was not responding quickly enough to his requests.[5] Ultimately Mr Anguna was successful in his attempts to have Ms S retract and minimise her account. At the trial, the Crown applied to have her declared a hostile witness and the Judge so ordered.
Approach to appeal
[5]R v Anguna, above n 3, at [15].
In order to succeed on this appeal Mr Anguna must satisfy us that not only did the sentencing Judge err but that a different sentence should be imposed.[6] The focus is on the sentence imposed rather than the process by which it is reached.[7] Thus the question is whether the end sentence is within the available range.[8]
District Court sentence
[6]Criminal Procedure Act, s 250(2).
[7]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]–[39].
[8]At [36].
For the first incident offending on 5-6 December 2017, the Judge adopted the kidnapping charge as the lead offence.[9] He identified the aggravating features as including premeditation, the use of threats and actual violence, the use of a weapon, the length of the detention and the victim’s vulnerability. He set a starting point of two years and nine months’ imprisonment.[10]
[9]R v Anguna, above n 3, at [17].
[10]At [27].
For the other convictions associated with the first incident offending, he gave an uplift of nine months’ imprisonment.[11]
[11]At [28].
Then, to reflect Mr Anguna’s previous convictions for violence, he added a further six months. This combination resulted in a total of four years’ imprisonment for the first incident offending.[12]
[12]At [29].
The Judge then turned to the charge of attempting to pervert the course of justice. He observed that that charge, if standing alone, might well have justified a sentence in the order of three years’ imprisonment. However, to reflect totality, he imposed a cumulative sentence of one year. This brought the provisional sentence to five years’ imprisonment.[13]
[13]At [30].
The Judge then considered the second incident offending. These were the charges to which Mr Anguna had pleaded guilty. The Judge noted the aggravating factors which included the carrying of the knife, and the pistol with a loaded magazine found in the car. He observed with concern the connection between that offending and Mr Anguna’s earlier threats that he would shoot Ms S. The Judge determined that the second incident offending justified the imposition of a further one year and six months, reduced by three months to reflect the guilty pleas. This sentence was also imposed cumulatively leading to a final, end sentence of six years and three months’ imprisonment.[14]
Was the Judge wrong to impose the sentences cumulatively?
[14]At [31].
Section 84 of the Sentencing Act 2002 (“the Act”) deals with cumulative sentences.
Section 84(1) provides that cumulative sentences are generally appropriate if the offences are different in kind, and whether or not they are a connected series of offences. In determining whether offences are part of a connected series the court may consider the time they occurred, the overall nature of the offending or any other relationship between the offences the court considers relevant.[15] Section 85(2) states that where cumulative sentences are imposed, the court must ensure they do not result in an end sentence disproportionate to the gravity of the overall offending.
[15]Sentencing Act 2002, s 84(3).
Mr Walsh did not take issue with the starting point, the uplift for the related charges, the uplift for previous convictions or the cumulative sentence imposed on the perverting the course of justice charge. His criticism, which lies at the heart of this appeal, is that the 18 month sentence for the second incident, while appropriate if it stood alone, should have been imposed on a concurrent, rather than cumulative, basis. As it was, the method adopted by the Judge led to an end sentence which was wholly out of proportion to the gravity of the offending. In Mr Walsh’s submission, because the offending represented a continuum of interconnected events committed in the context of domestic violence, the charges should not have been treated as discrete episodes.
Mr Walsh referred us to Maihi v R and Clark v R.[16] In Maihi this Court allowed an appeal against a sentence of six years and four months’ imprisonment imposed for four charges of violence against the appellant’s partner and one charge of assault on a child. The offending spanned a 19 month period. The Court observed that although the offences were of a similar kind and involved the same victim, each was separated by many months and occurred at a different location. It was open to the Judge to treat them as not forming a connected series of offences and impose cumulative sentences accordingly.[17]
[16]Maihi v R [2016] NZCA 205; and Clark v R [2013] NZCA 63.
[17]Maihi v R, above n 16, at [21].
We are satisfied that, subject to the totality principle, it was open to the Judge to impose cumulative sentences despite there being some temporal and contextual connection between the incidents. This Court has previously upheld cumulative sentences on appeal where the offending was part of a connected series of offences.[18] The Judge was entitled to conclude that the kidnapping (and related offences) should be considered separately to the second incident offending in Hamilton six days later. While another Judge may well have adopted a different methodology, viewing the two incidents as sufficiently connected to justify a concurrent approach, that is insufficient to interfere with the Judge’s finding that the conduct in this case involved separate and distinct courses of offending.
Was the sentence wholly out of proportion to the gravity of the overall offending?
[18]See Waitohi v R [2014] NZCA 614 at [32]; and Hughes v R [2012] NZCA 388 at [34]–[35].
To some extent we have already answered this question. Mr Walsh’s submission is that on a totality basis the appropriate sentence for all offending would have been five years’ imprisonment rather than the six years and three months imposed by the Judge.
In order to examine that submission it is necessary to review a number of decisions of this Court which have reviewed sentencing levels in kidnapping cases.
In the 2003 decision of R v Wharton, the victim obtained a protection order which the appellant breached.[19] While he was on bail for assault, threatening to kill relative and breach, he lured the victim back to his home. When she attempted to leave, he assaulted her. She remained in his home overnight. She did not leave because she was fearful of the consequences of doing so.[20]
[19]R v Wharton (2003) 20 CRNZ 109 (CA).
[20]At [3].
This Court quashed a sentence of four-and-a-half years’ imprisonment and substituted a sentence of three-and-a-half years on the kidnapping charge. In explaining why there is no tariff decision the Court commented:
[11] There can be an infinite variety of circumstances which underlie the crime of kidnapping. Some may relate to the abduction of citizens to be held for ransom … others may involve gang activity for the collection of proceeds of crime or for financial extortion … . Many are an adjunct to or part of sexual criminal offending … and others, regrettably becoming more common, are part of the activity of a former spouse or partner who defies a protection order and detains a fearful, often battered and helpless female ex‑partner for motives of power, revenge, jealousy or irrational anger. …
[12] The present case clearly falls into the last category. It is no less serious because of its grouping. Commonplace elements such as physical and emotional abuse and constraint by a violent, abusive partner in breach of a protection order do not allow Judges to treat such cases as being anything other than serious. In this case it involved prolonged and lawless invasion of the rights, dignity and integrity of a woman powerless to resist him with any resistance being broken by his assault, earlier threats and intimidation, together with his history of violence. Attendant upon that was his offending whilst on bail, the abuse of a [position] of trust in relation to the woman and the risk of reoffending. All of those factors are applicable in this case, in terms of s 9 of the Sentencing Act 2002.
(Citations omitted)
In Heke v R this Court, referring to Wharton, said:[21]
The Courts’ recognition of the particular need for deterrence, denunciation and protection in such cases has, if anything, increased in the 12 years since that case was decided.
[21]Heke v R [2016] NZCA 38 at [10].
In Heke v R, the appellant broke into the house where the victim was staying and entered her bedroom. He was intoxicated, angry and abusive. She told him to leave. He responded by demanding that she leave with him. When she refused he grabbed her by the hair and dragged her down a set of stairs toward the door, pushing and shoving her. He threatened to kill her and only stopped his conduct when the police were called.[22] This Court observed that given the 14 year maximum available, the starting point of two years and four months’ imprisonment sat well within the available range.[23]
[22]At [3].
[23]At [11].
In Franklin v R this Court upheld a starting point of two years and nine months’ imprisonment on a charge of kidnapping.[24] The appellant, who had been in a lengthy dysfunctional and abusive relationship with the victim, picked her up in his car. She jumped out but returned after being threatened. While the car was moving, the appellant forced her to remove her shorts. He then demanded she remove her underwear. She refused. He grabbed a fishing knife and threatened to cut her underwear off. The victim attempted to jump from the moving car. When it pulled over, the victim jumped out.
[24]Franklin v R [2018] NZCA 495. The appeal was allowed in respect of the sentencing Judge’s decision to impose preventive detention. However, the Court imposed a determinate sentence in line with the sentencing Judge’s calculations. The Judge had adopted a starting point of two years and nine months’ imprisonment.
In the present case, the kidnapping charge attracted a sentence of two years and nine months’ imprisonment. The related first incident offending attracted a nine month uplift, leading to a total of three and a half years’ imprisonment. On any analysis, the present offending is at least as serious as that in the cases discussed above and might well have justified a longer term. But that is before the offending on the second incident is considered.
The effect of Mr Walsh’s submission is that the second incident offending should be subsumed as a concurrent sentence. However, that proposition ignores the serious aggravating factors involved in the second incident.
Without an uplift, the seriously aggravating factors associated with the second incident offending would receive no recognition. The Judge observed that the unlawful possession of the firearm charge alone could attract an appropriate starting point of two years’ imprisonment. However, in recognition of the totality principle, and after making an adjustment for the guilty plea he only imposed a one year and three month uplift, for all the second incident offending.
In our view that approach was correct. Given the background, Mr Anguna’s deliberate and necessarily premeditated decision to make a return trip to Hamilton and to attempt to enter Ms S’s house, apparently with a knife, represents an alarming escalation in seriousness when viewed in its totality. It seems that Mr Anguna retreated only after the panic alarm was activated and the police were on their way. That he also had in his car a pistol and ammunition is a particularly concerning aggravating factor. This further conduct called for a stern response. The uplift of one year and three months was within range. Viewed through the lens of totality, it cannot be said that such a sentence is manifestly excessive.
Result
An application for an extension of time to bring the appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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