Areaiti v Police

[2014] NZHC 2150

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-30 [2014] NZHC 2150

BETWEEN

TEREMOANA AREAITI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

4 September 2014

(By way of audio-visual link)

Appearances:

K L McHugh for Appellant
E L Higbee for Respondent

Judgment:

5 September 2014

INTERIM JUDGMENT OF MANDER J

[1]      Teremoana Areaiti  and  his partner  were drinking and socialising in their home when an argument developed between them.  Mr Areaiti threw a glass bottle at his partner before grabbing her by the throat and pinning her against a wall.   His victim struggled for breath and believed she was going to die.  After some minutes she managed to force Mr Areaiti away and left the address.

[2]      Two days later, Mr Areaiti and his partner came into contact at his sister’s address.  His partner was in the process of leaving the address in her vehicle when the two of them began to argue.  Mr Areaiti picked up a bicycle to head height, and threatened his partner who locked herself in the vehicle.  He kicked the rear of his partner’s car, struck the side window and yelled that he was going to kill her, her brother and her parents.  After the intervention of Mr Areaiti’s sister, the victim was able to reverse out of the driveway but not before Mr Areaiti kicked the front of the

vehicle.

AREAITI v NEW ZEALAND POLICE [2014] NZHC 2150 [5 September 2014]

[3]      Mr Areaiti pleaded guilty to a charge of male assaults female and two charges of breaching a protection order.  He was sentenced by Judge Bouchier to 18 months imprisonment on each of the charges.  It is against those sentences which the appeal lies.

[4]      Mr Areaiti submitted that the end sentence was manifestly excessive.   In particular, that the overall starting point of 2 years imprisonment was too high and that there was inadequate recognition of his rehabilitative efforts.  It was submitted that the Judge erred in not articulating a starting point for each of the offences and indicating the components of the overall sentence attributable to each of the charges that Mr Areaiti had pleaded guilty to.  It was submitted that an end sentence of no more than 12 to 13 months imprisonment should have been imposed.

[5]      In  support  of  the  appeal,  leave  was  sought  to  adduce  further  evidence advising of Mr Areaiti’s placement in a residential facility for the purposes of alcohol and drug treatment. This information was received by me without objection from the Crown.

The District Court sentence

[6]      Of  understandable  concern  to  Judge  Bouchier  was  Mr Areaiti’s  criminal history which largely comprised violence and dishonesty offending.   The present conviction for male assaults female is the fourth of its kind, and he has numerous previous convictions for contravening protection orders.   He has, over the past 15 years, accumulated 48 convictions with 21 sentences of imprisonment.  The risk of harm that he presents to others is considered high.

[7]      In the pre-sentence report his use of violence and alcohol in relationship issues was identified as contributing to his offending.  Judge Bouchier noted that it was recommended that Mr Areaiti receive residential treatment for alcohol and drug counselling.  The Court noted that was imperative given the findings of the report. Mr Areaiti’s history of failing to abide with community-based sentences in the past prevented consideration of such a sentence and it was not contested otherwise on behalf of his counsel, nor is that contended for on appeal.

[8]      Judge Bouchier indicated in her sentencing remarks that she would approach the offending as a whole, taking the first two offences as the lead with the breach of the protection order arising out of the second incident being a further component to be added to the sentence that would otherwise have been imposed.

[9]      In assessing the appropriate starting point, Judge Bouchier noted the failure of previous sentences of various types to arrest Mr Areaiti’s reoffending, and that a sentence of imprisonment was the only option, which would be coupled with proposed release conditions in the hope this would prevent further offending.  The sentencing Judge considered the assault to be a significant assault, placing it at the upper end of such offending.   Her Honour, taking a global approach to all three charges, took a starting point of 18 months imprisonment with an uplift of six months imprisonment to reflect the aggravating feature of the appellant’s prior convictions.  A 25% discount was afforded for Mr Areaiti’s guilty pleas, resulting in a  final  sentence  of  18  months  imprisonment  on  each  charge  to  be  served concurrently.

The issue on appeal

[10]     The issue for determination on appeal is whether the sentencing Judge erred by  imposing  a  sentence  that  was  manifestly  excessive  and  beyond  the  range available to her in the exercise of her sentencing discretion.  In support of the appeal, Ms McHugh on behalf of the appellant made reference to a number of sentencing decisions involving charges of male assaults female involving acts of violence at least comparable to the present offending, where starting points of between 10-15 months imprisonment had been considered, often in the context of related breaches

of  protection  orders.1      Mr  Higbee  on  behalf  of  the  respondent  also  referred  to

sentencing decisions which in his submission supported the starting point of 18 months taken by the sentencing Court.2     Inevitably, each case turns on its own circumstances.    Mr  Higbee  acknowledged  that  the  starting  point  of  18  months

imprisonment  could  be  considered  high,  but  that  having  regard  to  the  repeated

1      R v Reihana CA 143/03, 3 July 2003; R v Werahiko CA 716/07, 25 February 2008; Tutbur v

Police [2013] NZHC 2960; Te Tau v Police [2012] NZHC 10688.

2      Mitchell v R [2013] NZCA 583; Te Whata v Police HC Auckland CRI-2011-404-135, 1 August

2011.

breach of the protection order over a 48 hour period which included a threat to kill, and the nature of the assault on the appellant’s partner, the starting point was within the sentencing Judge’s discretion.

[11]     Ms McHugh submitted that a 33% increase from the initial 18 month starting point to reflect the appellant’s previous convictions was not justified.  The 6 months was clearly imposed to reflect “the aggravating feature of the prior convictions”, however it was submitted that the seriousness of the breaches of the protection order which may have accounted for the 18 month starting point had already been taken into account. The further uplift therefore represented double-counting.

[12]     As acknowledged on behalf of Mr Areaiti, the critical question on appeal is whether the effective sentence, however constructed, properly reflects the totality of the offending and the circumstances of the offender.3   Standing back, I am not taken to  the point where  I can  conclude that Judge Bouchier exceeded  the discretion available to her in imposing an 18 month sentence for this offending.  I accept it is arguable whether the assault is of a type that can be considered to be at the “upper

end of the scale” as was found by the sentencing Judge.   However, equally, the grabbing  of  the  complainant’s  throat,  and  squeezing  it  to  the  point  where  she struggled for breath and thought she was going to die, must be considered serious. Of particular concern however is the appellant’s previous convictions which include convictions for male assaults female, assault with intent to injure and breaches of protection orders in respect of the same complainant.  That is to be combined with Mr Areaiti’s  extensive  history  of  violent  and  dishonesty  offending  which  was remarked upon by the sentencing Judge.

[13]     Associated with Mr Areaiti’s violence is his destructive pattern of alcohol use.    This  coupled  with  his  issues  of  anger  control  and  a  recurring  pattern  of domestic violence is deeply troubling. As was noted by Judge Bouchier, a variety of previous sentences has not arrested his behaviour.   Worryingly, special conditions imposed for the purposes of post-sentence rehabilitative needs have been breached

and Mr Areaiti has failed to complete programmes in the past.

3      R v Zxie CA 397/05, 8 August 2006.

[14]     Having regard to that history it is unsurprising that the sentencing Court emphasised the need for deterrence and protection in imposing a stern sentence. While I accept there may be grounds to criticise the way in which the sentencing Judge structured the sentence and the extent of the uplift to recognise the appellant’s criminal history, I am not brought to the point where I can conclude that the ultimate sentence imposed was one that was not legitimately available.  In that regard, it is to be noted that the appellant received a full 25% discount for his guilty plea despite it being entered on the morning of the fixture.  Ms McHugh points out that the plea was entered only after the Police had downgraded the charge from one of injuring with intent to injure, however, it is not apparent to me whether such an offer by the appellant to plead guilty to such a charge was made at an earlier stage in the criminal proceeding.

[15]     A further ground of appeal put forward by the appellant is that the sentencing Judge did not consider or take into account the appellant’s commitment to undertake residential alcohol and drug treatment.  At the time of sentencing, Mr Areaiti was awaiting confirmation of whether he would be accepted into a residential facility, He Waka Tapu, in Christchurch.   Information has now been received which confirms that  a place is  available for the  appellant,  commencing 27  October  2014.    His sentence end date however is not until 12 November 2014.

[16]   The drug and alcohol assessor who prepared a report on Mr Areaiti recommended that having regard to his extreme addiction a seamless transition from imprisonment to residential treatment would be the recommended course.   At the time of sentence, in the absence of when Mr Areaiti could be placed in the residential treatment programme, Judge Bouchier was unable to take this rehabilitation initiative into  account  in  tailoring  the  length  of  sentence.    Mr  Higbee  for  the  Crown responsibly acknowledged that having regard to the appellant’s alcohol addiction and cycle of domestic violence this initiative should not be lost.  He did not oppose an alteration to the sentence, which would not in any case be significant, to accommodate that opportunity.

[17]     Based  on  the  information  available  to  Judge  Bouchier  at  the  time  of sentencing,  I have not concluded that the sentence she imposed was  manifestly

excessive.  There is now new information before the Court that was not available to the District Court, and on the basis of that fresh information confirming a placement for Mr Areaiti at He Waka Tapu, I am minded to grant the appeal to allow him that opportunity.  In discussing this possible course with Ms McHugh at the hearing of this  appeal,  I advised  that  I would  give  her  the  opportunity to  make  enquiries regarding what modification needs to be made to the length of the sentence in order to allow Mr Areaiti to immediately transition from imprisonment to the residential treatment programme.

[18]     Accordingly,   I   allow   the   appeal   in   principle   for   the   purpose   of accommodating Mr Areaiti’s placement at the He Waka Tapu residential treatment programme.  This judgment is issued on an interim basis pending receipt of further information, and will be issued in final form once I am in receipt of those details from Ms McHugh.

Solicitors:

AWS Legal, Invercargill

Preston Russell Law, Invercargill