Arahanga v Police

[2015] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2015-483-000008 [2015] NZHC 488

BETWEEN

JOSHUA ARAHANGA

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing:

13 March 2015

(Heard at Wellington by AVL)

Appearances:

S Ross for appellant
N Refoy-Butler for respondent

Judgment:

16 March 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Joshua Arahanga, pleaded guilty to one charge of assault with intent  to  injure  and  was  sentenced  by  Judge  Sygrove  on  23  February  2015  to

18 months’  imprisonment.1    Mr Arahanga  now  appeals  that  sentence  as  being

manifestly excessive.

Facts

[2]      Mr Arahanga was charged following an incident of domestic violence.  The statement of facts to which he pleaded guilty records that Mr Arahanga and his victim, with whom he has been in an on and off relationship for the past three years and with whom he has an 11 month old son, were at home.   It was day time, approximately  12.40  pm.    Mr Arahanga’s  victim  was  asleep  in  the  bedroom.

Mr Arahanga had attempted to wake her up, and a heated argument had ensued.

1      Police v Arahanga [2015] NZDC 2620.

[3]      Mr Arahanga’s victim stood up from the bed.  Mr Arahanga then pushed her forcefully back onto the bed and placed his hands around her neck where he applied pressure.   He stopped to pick up the child, who it appears was sleeping with his mother, and placed him in his cot.   He then returned to the bedroom and started hitting his victim’s legs while verbally abusing her.  It is recorded he punched her in the stomach to get her attention.   Mr Arahanga’s victim rolled over on the bed, yelling at him to stop hitting her.   He then slapped her on the back.   A struggle ensued during which Mr Arahanga slapped his victim twice more.  She was crying and pleading for him to stop. The baby then started crying and Mr Arahanga stopped assaulting his victim and left the address.

[4]      Mr Arahanga’s victim suffered a bruised upper right arm, red marks  and

grazes around her neck, scratch marks on her front and back.

[5]      Mr Arahanga  was  convicted  in  June  2013  for  four  previous  incidents  of violence against his former partner (assaulting a person with a blunt instrument x 2; injuring with intent to injure and male assaults female).

The sentence decision

[6]      Understandably,  the Judge took  a dim  view of  Mr Arahanga’s  offending. Regrettably, he did not follow the orthodox, Taueki, sentencing methodology.2   That is, he did not first set a starting point sentence by reference to the criminality of Mr Arahanga’s offending, then identify any adjustment that might be required for aggravating or mitigating circumstances personal to Mr Arahanga and then, finally, give Mr Arahanga appropriate credit for his guilty plea.   Rather, the Judge would appear to have set a starting point sentence not only by reference to Mr Arahanga’s offending but also by reference to his previous convictions.   The Judge set that

starting point at two and a half years’ imprisonment. The Judge then considered, as a mitigating factor, the extent of Mr Arahanga’s victim’s injuries, and on that account reduced  his  starting  point  sentence  to  two  years’ imprisonment.   The  extent  of

Mr Arahanga’s victim’s injuries is a matter to be considered when assessing the

2      R v Taueki [2005] 3 NZLR 372.

criminality of his offending.  Finally, and in a more orthodox manner, the Judge gave

Mr Arahanga the full credit of 25 per cent for his early guilty plea.

[7]      As Mr Ross for Mr Arahanga acknowledged, it is not a ground of appeal that the Judge adopted an unorthodox sentencing methodology.  The ultimate question is whether or not the end sentence arrived at is appropriate.  Nevertheless, the Court of Appeal  has  on  numerous  occasions  now  emphasised  the  appropriateness  of  the Taueki methodology.   Judges should adopt it.   It provides for transparency in sentencing and helps Judges to arrive at appropriate sentences.

Analysis

[8]      As Mr Arahanga argued, and the Crown agreed, the Judge’s starting point sentence (even acknowledging that it included an uplift for previous offending) was out of range.  The question for me is what that starting point sentence should be.  For Mr Arahanga, Mr Ross referred me to the decision of this Court in Wilson v Police.3

In addition to Wilson, in very helpful submissions the Crown referred me to Kojeunikov v Police, Kohu v Police and Graham v Police.4 Mr Ross’ submission was that, by reference to the facts in this case, a starting point sentence of six to nine months’ imprisonment would have been appropriate.  The Crown accepted that, on the basis of the authorities it referred to, a starting point sentence higher than 12 months’ imprisonment could not be justified.

[9]      In Wilson, Kós J allowed an appeal against a sentence for charges of male assaults female, assault with intent to injure, threatening to kill and breach of a probation order, where a 15 month starting point had been adopted.  In two separate incidents the offender had punched his pregnant wife in the face and grabbed her around the throat to the point where she felt unable to breath.  Justice Kós noted that the District Court Judge had not been referred to the decision of Chisholm J in R v

Richardson,  and  concluded  that  if  he  had  been,  he  would  not  have  adopted  a

3      Wilson v Police [2012] NZHC 2503.

4      Kojeunikov v Police [2013] NZHC 551; Kohu v Police [2013] NZHC 944; Graham v Police

[2014] NZHC 2112.

15 month starting point and that 12 months “at most” was the appropriate starting

point.5

[10]     In R v Richardson the defendant was charged with male assaults female, assault with intent to injure and threatening to kill.  Mr Richardson had been asleep with his partner and their 10 year old child.  He had been woken by the child playing with his face, became agitated and smacked the child on the hand.  An argument developed  between  Mr  Richardson  and  his  partner.    He  knew  his  partner  was pregnant at the time but he punched her in the side of the stomach, flew into a rage and started to smash items.  When his partner tried to intervene he threatened to kill her, and punched her another couple of times on the side of the stomach.  She curled into a ball to protect herself and Mr Richardson continued to attack her arms and legs.   When sentencing Mr Richardson, Chisholm J agreed with the Crown’s submission that a starting point sentence for the offending as  a whole must be somewhere between 12 and 15 months, and adopted the lower point of 12 months.

[11]     In Kohu, Simon France J upheld a 12 month sentence of imprisonment based on a 12 month starting point for domestic violence where the offender had pressed his clenched fist against his partner’s forehead and shoved her (common assault), punched his mother-in-law above her eye and again on her nose and mouth causing a bloody nose (assault with intent to injure) and slapped his partner simultaneously on either side of her face  (common assault).   The Judge considered the 12 month starting point was appropriate because the two punches to the head constituted the lesser end of the Taueki concept of attacks to the head.  In reaching that conclusion, Simon France J observed that “domestic violence is a scourge and sentences towards

the upper end of the range are appropriate”.6

[12]     I find the other cases I was referred to (Kojeunikov v Police and Graham v Police)7  of less help.   They did not involve domestic violence and, moreover, the violence  was  clearly  more  serious  than  that  for  which  Mr Arahanga  was  being

sentenced.

5      R v Richardson [2012] NZHC 1465.

6      Kohu v Police, above n 4, at [16].

7      Kojeunikov v Police, above n 4; Graham v Police, above n 4.

[13]     In my assessment, Mr Arahanga’s offending is not as serious as that which attracted starting points of 12 months in Wilson, Richardson, and Kohu. I consider a starting point of nine months is appropriate.  Allowing a 25 per cent discount for Mr Arahanga’s guilty plea results in an end sentence of seven months’ imprisonment.

[14]     Accordingly, I allow Mr Arahanga’s appeal, quash his sentence of 18 months’ imprisonment and substitute one of seven months’ imprisonment.   There was no suggestion home detention was appropriate.  The release conditions imposed by the District Court are confirmed.

“Clifford J”

Solicitors:

Stephen Ross & Raukawa Simon, Whanganui for appellant.

Crown Solicitor, Whanganui for respondent.