Cave v Police
[2023] NZHC 361
•2 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-404
[2023] NZHC 361
BETWEEN RAWIRI CAVE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2023 Counsel:
E Butler and S Poulton for Appellant O Southern for Respondent
(Via VMR)
Judgment:
2 March 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 2 March 2023 at 4.00 pm.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Kayes Fletcher Walker, Manukau
CAVE v NEW ZEALAND POLICE [2023] NZHC 361 [2 March 2023]
[1] Mr Cave appeals against a sentence of home detention given by Judge Clark in the District Court on 20 October 2022. The charges were:
(a)Assault on a person in a family relationship (x2);1
(b)Assault with a weapon;2 and
(c)Threatening behaviour.3
Summary of offending
November 2021 offending
[2] The victim and the appellant, who were in a relationship, were together at an address on 16 November 2021. The victim was 20 weeks’ pregnant.
[3] At around 11:30 am, the victim went outside the address and began cleaning up the garden. The appellant followed her outside and started calling her a “slut” over something that happened the night before.
[4] The appellant then punched the victim five times in the face, causing her to fall over and become dizzy. The victim tried to get up by pulling herself up on the step railing, at which point the appellant hit her hands twice with a spade.
January 2022 offending
[5] The appellant appeared in the Manukau District Court on 16 November 2021. He was granted bail simpliciter, with a standard 7 pm to 7 am curfew, and conditions not to offer violence and not to associate with the victim.
[6] At around 7:30 am on 9 January 2022, the victim was sleeping at her home address with the appellant (who was in breach of his conditions by associating with the victim). She was 28 weeks’ pregnant.
1 Crimes Act 1961, s 194A, maximum penalty 2 years’ imprisonment.
2 Crimes Act 1961, s 202C, maximum penalty 5 years’ imprisonment.
3 Summary Offences Act 1981, s 21(1)(a), maximum penalty 3 months’ imprisonment.
[7] The appellant woke her by slapping her three times to the left side of her forehead with an open palm. He told her, “This is what you get, and this is why I am going to slap you all day”. He said, “I’m going to rape you, put you in the closet, and tie you up.” The victim got up and went to the lounge. The appellant followed her, told her that he would continue to hurt her, and slapped her to the left side of her face with an open palm.
[8] The appellant then picked up a plastic gun and started shooting the victim's legs and arms with gel bullets. The victim walked to the bedroom. According to the victim’s impact statement, the appellant followed her, saying, “I’ll kill you when my baby is born.” The victim feared for her life and started thinking of ways to get out of the house. She pretended to have pregnancy pain and was rushed to Middlemore Hospital by ambulance.
Sentencing decision
[9] Judge Clark adopted a starting point of 20 months’ imprisonment for the November 2021 offending. She uplifted that by 6 months’ imprisonment for the January 2022 offending, leading to an overall starting point of 26 months’ imprisonment.
[10] The Judge described the offending as serious and referred to comments by the victim made in two victim impact statements. In the first statement, which was after the November 2021 offending, the victim recorded she was very fearful of more harm. As the Judge said, she was quickly proven right about that. In the second statement, written after the January 2022 offending, the victim said she understood the appellant had completed programmes and she would like to start afresh with him. The Judge described in detail the injuries sustained by the victim, noting that the appellant had assaulted her while she was pregnant, and on more than one occasion, in one case using a spade as a weapon. She noted that the second assault occurred while the appellant was under bail conditions not to associate with or offend against the victim.
[11] From the 26-month starting point, the Judge imposed a 3-month uplift to account for the fact that the appellant had offended (against the same victim) while on bail. She also imposed a 4-month uplift for the appellant’s previous conviction history
for violent offending. In 2018, he was convicted of family violence assault charges and sentenced to eight months’ imprisonment. He also had subsequent convictions for lesser family violence charges.
[12] The Judge applied a 20 per cent discount for the appellant’s guilty plea, noting that it came quite some time after the November 2021 offending. She calculated this discount at “around six and a half months”. The Judge then allowed a 10 per cent discount for the appellant’s efforts at rehabilitation, which she calculated at around 3½ months.
[13]This brought the sentence to 23 months’ imprisonment.
[14] Judge Clark then considered whether a sentence other than imprisonment would be appropriate. She noted that the appellant’s counsel advocated for a sentence of community detention to allow for his rehabilitation and employment prospects, but discounted that option:4
Mr Butler has talked about the fact that it would be better for you in terms of employment to be on community detention rather than anything more than that, but I am of the view, Mr Cave, that this is the last time that the Court will give you the opportunity to remain in the community. My intention is to convert or commute your sentence of imprisonment down to home detention, but that is as far as I am willing to go. That is because I need to send a strong signal to you and anyone else like you, that having been in prison before for violent offending against females, coming back in front of this Court again for a serious event in November last year, and then another event whilst on bail, means that you are right at the very top of the sentencing hierarchy.
[15] The Judge reduced the appellant’s sentence from 11 months’ home detention to eight months, to account for the period of time he had spent under electronic monitoring (240 days) and immediately before that in custody (44 days).
Grounds of Appeal
[16] The appellant takes no issue with the starting point. He contends that the Judge erred by:
4 New Zealand Police v Rawiri Cave [2022] NZDC 20851 at [32].
(a)applying an excessive uplift for the fact that the offending was while on bail;
(b)applying an excessive uplift for his previous criminal history;
(c)not discounting enough for time spent on EM bail and in custody; and
(d)failing to properly consider whether a sentence less than home detention was appropriate.
[17] The appellant considers that, as a result of these errors, his sentence of eight months’ home detention is manifestly excessive.
Appeal against sentence
Approach to appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[19]In any other case, the Court must dismiss the appeal.5
[20] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.7
5 Criminal Procedure Act 2011, s 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7 At [33], [35].
[21]The approach taken under the former Summary Proceedings Act was set out in
R v Shipton:8
(a)There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c)It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[22] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9
Appellant’s submissions
First and second grounds of appeal: imposition of excessive uplifts for offending while on bail and for previous criminal convictions
[23] On the issue of imposing a three-month uplift for offending on bail, Mr Butler submits that was conduct already reflected in the six-month uplift in sentence and should not be counted again. He refers to W v New Zealand Police10 where the High Court noted the importance of not double-counting offending on bail when it has already been recognised by an uplift to the sentence.
[24] As to prior convictions, Mr Butler notes that section 9(1)(j) of the Sentencing Act 2002, requires the Court to consider the number, seriousness, date, relevance and nature of any previous convictions of the offender. He asserts that this must be balanced against s 26(2) of the Bill of Rights Act 1990 which provides that no one
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
9 Ripia v R [2011] NZCA 101 at [15].
10 W v New Zealand Police [2019] NZHC 2933.
who has been finally convicted of an offence shall be punished for it again. He cites Orchard v R,11 in which the Court of Appeal noted that previous convictions are relevant as an indicator of character, culpability, potential recidivism and the need for deterrence. The Court also noted, with reference to s 26(2) of the Bill of Rights Act, that uplifts for previous convictions must be proportionate to the sentence imposed for the original offence.12
[25] Mr Butler submits that an uplift of four months for previous convictions was inappropriate, as the appellant was a “much younger man” at 18 years old when he was imprisoned for those charges. He notes that these were the first family violence charges he faced, and that the victim in those circumstances was his niece, not his partner. Mr Butler asserts that this was material and suggests that the appellant’s first conviction was not relevant to the degree Judge Clark believed. He noted that the appellant was sentenced, concurrently, on a charge of escaping police custody, suggesting that his sentence in that matter was not solely related to family violence offending.
[26] Mr Butler notes that later in 2018 the appellant was sentenced to supervision on further family violence convictions, with which he complied. Counsel refers to several cases in the High Court which imposed lighter uplifts with respect to previous convictions.13
[27] He submits that an uplift of two to three months’ imprisonment (instead of four months) for prior convictions would be appropriate and in line with the cases cited.
Third and fourth grounds of appeal: insufficient discount for EM bail and custody and failure to appropriately consider whether a sentence of less than home detention was appropriate
[28] The main point advanced for the appellant is that Judge Clark failed to consider his involvement with Te Whare Ruruhau when deciding whether to impose home detention or a community sentence. He notes that the appellant, through that
11 Orchard v R [2020] 2 NZLR 37.
12 Above, at [41].
13 Hemana v R [2022] NZHC 999; Rikihana v R [2013] NZHC 711; and Rawlings v R [2022] NZHC 879.
programme, had taken steps towards rehabilitation and had not re-offended since engaging. While this was taken into account with a 10 per cent discount, Mr Butler submits that the appellant’s rehabilitation efforts and prospects ought to have been considered in relation to sentence type as well as duration.
[29] Mr Butler refers to Douglas v R14 in which the High Court upheld a sentence of four months’ community detention where the defendant was convicted of breaching a protection order and assault on a person in a family relationship. He acknowledges that the starting point of 12 months’ imprisonment in that case was lower than for the appellant but suggests that the sentencing principles discussed by the Court – accountability, denunciation and rehabilitation – remains applicable. He further notes that the defendant in that case had a history of offending against the same victim. In that case, Jagose J emphasised the need to balance the risk of re-offending against a defendant’s rehabilitation prospects.15
[30] Counsel further submits that Judge Clark did not take appropriate consideration of the time the defendant had spent in custody and on electronically monitored bail without breach.
[31] The appellant spent 44 days in custody and a further 186 days on electronically monitored bail without significant breach. Mr Butler notes he missed important family events. Short-staffing and delays by the Department of Corrections meant that he was not granted variations to attend those events. He says that this resulted in the appellant’s time on EM bail being particularly restrictive.
[32] While there was one breach of his bail, Mr Butler submits that this was the result of an address being incorrectly entered into his updated bail bond, such that the appellant was technically in breach when visiting his mother. That visit had been granted by variation of his bail on 30 August 2022.
14 Douglas v R [2012] NZHC 1823.
15 Above, at [8].
[33] Mr Butler submits that the appellant’s restrictive bail conditions and the punitive nature of that bail meant that he had in substance already served a period of home detention at time of sentencing.
[34] He refers to R v Walker-Haturini16 in which the Court noted that the restrictiveness of EM bail should be taken into account when sentencing and credited “in the same way as an electronically monitored community-based sentence unless good reasons exist for not doing so.”17 The Court reasoned that the substance of a restrictive EM bail detention, imposed pre-conviction, is the same as an EM bail community sentence, and should be credited accordingly.
[35] While the appellant was effectively afforded a three-month reduction in his sentence of home detention to bring it from 11 months to eight, counsel suggests that given the appellant was in custody for 44 days, and on electronically monitored bail for six months, a three-month deduction was inadequate.
[36] Overall, Mr Butler submits that a total uplift of three-months’ imprisonment for previous convictions would have been appropriate, and no additional uplift should have been made for offending while on bail. He further submits that an end sentence of community detention was appropriate considering the defendant’s efforts at rehabilitation and the lengthy period he remained on electronically monitored bail with no significant breach.
Discussion
Incorrect application of Moses
[37] The respondent makes the important preliminary point that the Judge has incorrectly applied Moses18 in calculating the sentence, in a manner that is favourable to the appellant. She has calculated the percentage discounts for the guilty plea and efforts at rehabilitation, not from the adjusted starting point (26 months’ imprisonment for the offending overall), but from the adjusted starting point after uplifts for personal
16 R v Walker-Haturini [2021] NZHC 1208.
17 Above, at [24].
18 Moses v R [2020] 3 NZLR 583.
aggravating factors (33 months’ imprisonment). This has led to the actual discounts being greater than the percentages fixed by the Judge. Had the calculation been made correctly, the appellant would not have been eligible for home detention. As Mr Southern accepts, the Judge may have increased the percentage awards had she realised her error, but the point is clearly material as to whether the final sentence can be considered manifestly excessive.
Starting point
[38] Although not at issue, I note that Judge Clark’s starting point of 20 months’ imprisonment was within the available range. In Kihi v Police,19 an 18-month starting point was upheld on appeal where the appellant had assaulted the victim with a hair straightener, and a nine-month uplift was applied for surrounding factors. In Fifita v Police20 a starting point of 24 months’ imprisonment was upheld where the appellant assaulted the victim several times with an axle.
[39] As also accepted by both counsel, the six-month uplift for the January 2022 offending was well within the range available to Judge Clark. It took account of the totality principle of sentencing. I agree with the respondent that if the offending in January 2022 were to be assessed alone, it would likely attract a starting point of 12 months’ imprisonment.21
Uplift for offending on bail
[40] Judge Clark was entitled to impose an uplift of three-months’ imprisonment to account for the fact that the appellant had violently offended against the same victim while on bail for previous offending against her, in accordance with s 9(1)(c) of the Sentencing Act 2002. Such an uplift is not double-counting. It is quite standard. It
19 Kihi v Police [2017] NZHC 2883.
20 Fifita v Police [2013] NZHC 763.
21 In Wawatai v Police [2015] NZHC 406, Mr Wawatai faced a single charge of male assaults female, in relation to an incident where he had drunkenly punched his partner in the face with a closed first. On appeal, Courtney J considered that an appropriate starting point was one of 7 months’ imprisonment, with a 3-month uplift for Mr Wawatai's previous convictions of a similar nature. Smith v Police:21 Mr Smith was sentenced to a term of 12 months’ imprisonment for male assault females and wilful damage. The Judge adopted a starting point of 12 months' imprisonment for that offending. Mr Smith had struck the victim twice to the face with the back of his hand, kicked her on the upper thigh, and then grabbed her hair and swung her from side to side. The starting point was not challenged on appeal.
recognises an offender’s disregard for court processes and orders.22 The Judge acknowledged the uplift as discrete in her sentencing notes.23
[41] In this case the January 2022 offending occurred soon after the appellant was granted bail (on 16 November 2021); the offending was against the same victim; the offending was in breach of two of the appellant’s bail conditions (non-association and non-offending against the victim); and the appellant had a history of violent offending while on bail.
[42] As to duration, a three-month uplift is proportionate and justified, by reference to a standalone starting point in the region of 12 months’ imprisonment for the January offending. I have already noted that the uplift in the starting point for that offending was well within range. While the Judge referred to the fact that the offending was on bail, I do not consider there is any element of double-counting.
Uplift for previous convictions
[43] I consider Judge Clark was also correct to impose a four-month uplift in respect of the appellant’s previous convictions.
[44] In Wawatai v Police,24 from a starting point of 7 months' imprisonment for a relatively minor male assaults female charge, Courtney J imposed a 3-month uplift for Mr Wawatai’s previous convictions. This was not challenged on appeal but the Court noted without demur that the Police considered it “generous”. In Smith v Police,25 from a starting point of 12 months' imprisonment for male assaults female, the Judge imposed a 4-month uplift for Mr Smith's previous convictions for family violence. Finally, in Bigham-Hill v R,26 from a starting point of 18 months' imprisonment for male assaults female (described as being towards the top end for such offending), the Judge imposed a 6-month uplift for Mr Bigham-Hill's previous convictions. This was not disturbed by this Court on appeal, although Mallon J noted that "such an uplift was at the very top of the available range."
22 Clunie v R [2013] NZCA 110.
23 Above n 4 at [24].
24 Above n 21.
25 Smith v Police [2013] NZHC 3406.
26 Bigham-Hill v R [2019] NZHC 753.
[45] I consider that the four-month uplift was within the available range. I reject the appellant’s argument that the appellant’s previous convictions were irrelevant because they related to an assault on his niece. There is no valid distinction. The significance of the previous convictions is they involved violence against females. The Judge’s concern and this Court’s concern is that the appellant had not been deterred by his sentence of imprisonment and has continued to violently offend against women.
[46] Overall, I consider the uplifts to have been fair and had the Judge calculated the sentence in accordance with Moses, the appellant was at risk of not even being eligible for home detention.
Insufficient discount for time spent on EM bail and in custody
[47] After discounts for rehabilitation and guilty plea, the appellant’s sentence was converted from 23 months’ imprisonment down to 8 months’ home detention (as opposed to the standard 11½ months), by reference to his time spent in custody and on EM bail, and to advance his rehabilitation prospects after sentence. The credit given is broadly consistent with other cases. Had these factors been individually credited, the 240 days of EM bail would have justified a reduction in the prison term of about three months, taking it to 10½ months’ imprisonment. Deducting the period spent in custody in full would have resulted in home detention of nine months.27 The Judge fixed a term of eight months, which was favourable to the appellant.
Sentence less than eight months’ home detention
I consider Judge Clark was correct to then conclude that a sentence of home detention, rather than imprisonment or a community sentence, would appropriately meet the relevant purposes and principles of sentencing. Home detention operates to deter and denounce the appellant and others from committing family violence offending, particularly where there has been recidivist offending (and in this case, two sets of offending against the same victim). Yet it also recognises the need to impose the least
27 Longman v Police [2017] NZHC 2928.
restrictive sentence that is appropriate in the circumstances, having regard to the appellant's prospects for rehabilitation.
[48] Given the gravity of his offending, particularly the risk of further offending against the complainant (part of the present offending being while on bail), I consider that Judge Clark was clearly correct to reject a sentence of community detention.
Result
[49] Overall, the sentence is not manifestly unjust. If anything, it is favourable to the appellant.
[50]For the reasons given, the appeal is dismissed.
Hinton J
15
0