Cadralala v The King

[2024] NZHC 1857

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-232

[2024] NZHC 1857

BETWEEN

MAIKA CADRALALA

Appellant

AND

THE KING

Respondent

Hearing:	8 July 2024
Appearances:	MGH Jenkins for appellant M S Chiraagh for respondent
Date of judgment:	9 July 2024

REASONS FOR JUDGMENT OF JAGOSE J

This reasons for judgment was delivered by me on 9 July 2024 at 3.00pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Joanne Wickliffe, Barrister, Auckland Meredith Connell, Auckland

CADRALALA v R [2024] NZHC 1857 [9 July 2024]

[1]                 Maika Cadralala appeals the 21 May 2024 decision of Judge A M Fitzgibbon in the District Court at North Shore,1 sentencing him to eight months’ home detention on his guilty pleas to charges of wounding and injuring, both with intent to injure.2 The victim is his wife. At its hearing yesterday, I dismissed the appeal, with reasons to follow. These are those.

Background

[2]                 Mr Cadralala is 43 years old. He has no criminal or bail history. His guilty pleas came with his acceptance of Judge Fitzgibbon’s sentence indication of a two years and 10 months’ starting point.3 The Judge’s indication was on the basis of facts she summarised in the following terms:4

You and [the complainant] were married and lived together with your three year old and six year old children. On Saturday 29 July [2023] you confronted her about an alleged affair that you thought she was having. You became angry during this time and struck her about the head and these strikes caused injury to her. The next morning you again confronted her about having an affair and this time you became more angry and used your closed fists to punch her on the side of the face. She tried to defend herself by putting her forearms up and you became annoyed about that, or upset about that and grabbed a wooden broom handle and used that to strike her hand. She moved her hands away from her head and then you hit her across the back of the head which caused an open wound and she was bleeding and suffered injuries as a result of that to her face, breast, hand and cuts to her neck and hand. When you were asked for an explanation you said you assaulted her because you were enraged that she had had an extramarital affair.

Judgment under appeal

[3]                 For sentencing,5 from her indication’s 34-month starting point, the Judge applied discounts of 45 per cent — comprising 25 per cent for Mr Cadralala’s guilty pleas; 10 per cent for his rehabilitation and remorse; five per cent for his previous good character; and five per cent also for his compliance with restrictive bail conditions — resulting in an 18-month sentence of imprisonment, which the Judge converted to

1      R v Cadralala [2024] NZDC 11874.

2      Crimes Act 1961, s 188(2), maximum penalty seven years’ imprisonment; and s 189, maximum penalty five years’ imprisonment.

3      R v Cadralala CRI-2023-044-2521, 16 January 2024.

4 At [2].

5      The Judge also declined Mr Cadralala’s application for discharge without conviction. No issue is taken with that decision on appeal.

eight months’ home detention.6 The Judge noted the sentence’s reduction beyond half the term of imprisonment was because she appreciated “you have taken a lot of effort with the rehabilitation side but there has been nothing for the punitive side of the offending which was serious”.7

[4]                 For Mr Cadralala, Miriam Jenkins contends the Judge erred both in combining and diminishing her 10 per cent discount for Mr Cadralala’s remorse and rehabilitation

— contending instead for discounts of five per cent for his “sincere remorse”; 10 per cent “to reflect the successful outcome of the restorative justice process”; and 15 per cent “to reflect Mr Cadralala’s successful completion of a stopping violence programme” — and in sentencing him to eight months’ home detention, as manifestly excessive when a sentence of supervision was the appropriate outcome.

Approach on appeal

[5]                 I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.8 In any other case, I must dismiss the appeal.9 The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentencing appeals.10 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached will rarely be decisive.11

Discussion

[6]                 Mr Cadralala’s appeal essentially is founded on the Judge’s assessment of reports provided to her for sentencing.

[7]                 Corrections’ pre-sentence report assessed Mr Cadralala at low risk of reoffending or harm, given his lack of criminal history and his demonstration of remorse and steps taken to address his offending behaviour. The last was his

6      R v Cadralala, above n 1, at [21].

7 At [22].

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

11     Ripia v R [2011] NZCA 101 at [15].

completion of anger management and alcohol and drug abuse programmes, contributing factors to his offending being his “anger and attitude”. The report writer recommended a sentence of supervision and community detention with an overnight curfew at his home; alternatively, home detention at that address. Notably, notwithstanding Mr Cadralala’s completion of rehabilitative programmes, the report writer nonetheless recommended his sentence be conditioned with requirements “[t]o attend and complete an appropriate non violence programme, course or counselling”.

[8]                 A  report  of  a  24  March  2024  restorative  justice  conference  between  Mr Cadralala and the victim, attended also by her cousin and his pastor, records his comprehensive apology to her, which she accepted, saying “[h]e listens to me since his programme … I want my family back together”. They would be supported “into the future” by the cousin and pastor.

[9]                 In addressing Mr Cadralala’s application for discharge without conviction, the Judge assessed the gravity of his offending as “serious and family violence type offending”.12 She observed he had “done a lot of reflection” and “made a lot of effort”.13 On sentencing him, she “[took] into account the good work that you have done, and I have given you credits for that”, including by reducing the home detention sentence by a month below half the proposed term of imprisonment.14

[10]              In sentencing terms, the Judge’s ‘credits’ are to reflect “mitigating factors personal to the offender”.15 Excluding the guilty pleas discount, the contest is between the Judge’s 20 per cent discount for such factors and Ms Jenkins’ 40 per cent contention, uplifting the Judge’s 10 percent discount for Mr Cadralala’s remorse and rehabilitation to 30 per cent, disaggregated by reference each to remorse, restorative justice and rehabilitation.

[11]              I do not consider discount for remorse and rehabilitation is open here to such disaggregation. First, as Moses makes clear, such a discount requires “tangible

12     R v Cadralala, above n 1, at [15].

13 At [16].

14 At [22].

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46(b)].

evidence, such as engagement in restorative justice processes”.16 So disaggregation between remorse and restorative justice is inappropriately to merge mitigating factors with their means. Second, rehabilitation also can evidence remorse (although it may in circumstances be a separate mitigating factor if independently addressing causes of the offending). That is clear from at least the Sentencing Act 2002’s ss 9(2)(f) and 10(1)(e). Again, a distinct credit here confuses the analysis. And third, even when rehabilitation justifies standalone discount, its ‘success’ in Mr Cadralala’s case remains to be seen. Rather, any such discount is to encourage and reward that effort.17 So seen here, again, it merges with remorse as tangible evidence of the same.18

[12]              More significantly, sentencing judges are to gauge the relevance and weight of mitigating factors in the case before them.19 The Judge clearly did so here in coming to her end sentence, not only in her explicit 20 per cent credit for Mr Cadralala’s personal mitigating factors, but also in the further month’s reduction to eight months’ home detention, lifting that percentage to 23 per cent, or 13 per cent for remorse and rehabilitation alone. That standalone calculation is toward the upper end of the usual five to 15 per cent range.20 The Judge’s assessment of available discount has not resulted in a sentence duration that is ‘manifestly excessive’.

[13]              Turning  to  Ms  Jenkins’  submission  the  Judge  should  have  sentenced  Mr Cadralala to community rather than home detention, as the least restrictive outcome appropriate in the circumstances,21 such depends on the seriousness of the offending and the appropriate level of supervision, monitoring and restriction on the offender.22 The adequacy of the respective sentence’s deterrence value also is material.23 Ms Jenkins only could point to the extent of respective curfew, and the need on  home  detention  to  obtain  probation   officer   exceptions   to   accommodate Mr Cadralala’s fulltime employment and shared childcare responsibilities. No suggestion is made such exception would not be provided on any reasonable ground.

16 At [24].

17     Campbell v R [2020] NZCA 356 at [46].

18     Kohu v R [2023] NZCA 343 at [40], referring to R v Devon Dairy Farms Ltd [2019] NZDC 20798.

19     Moses v R, above n 15, at [36].

20     Kohu v R, above n 18, at [40], referring to Poi v R [2015] NZCA 300; Rowles v R [2016] NZCA 208; A v R [2018] NZHC 543; and C v R [2022] NZHC 1807.

21     Sentencing Act 2002, s 8(g).

22     R v Salanoa [2008] NZCA 185 at [25].

23     Naiker v R [2014] NZCA 20 at [17].

Thus claim to community rather than home detention is on the basis of Mr Cadralala’s convenience.

[14]              As the Judge recognised,24 family violence is serious offending, not readily open to diminution by a sentence of community detention. Ms Jenkins’ submission Mr Cadralala’s remorse and rehabilitation may render him less culpable is not tenable. He is to be held responsible for his serious offending, irrespective of his subsequent recognition it was wrong. Again, the Judge’s choice of sentence cannot be characterised ‘manifestly excessive’, but her appropriate assessment of the seriousness of his offending. The Judge had specific regard for Mr Cadralala’s observable punishment,25 at least in his own deterrence, even if only in inconveniencing him. The Judge’s sentence also has substance in its general deterrence.

[15]              Mr Cadralala’s sentence is not manifestly excessive by any measure. The Judge did not err.

Result

[16]The appeal was dismissed.

—Jagose J

24     R v Cadralala, above n 1, at [15].

25 At [22].