CULLEN DEVON SIONE AMITUANAI AND NEW ZEALAND POLICE

[2024] NZHC 2715

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2024-463-000082 [2024] NZHC 2715

BETWEEN

CULLEN DEVON SIONE AMITUANAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 September 2024
Appearances:	M R Douglas for Appellant C Houia for Respondent
Judgment:	19 September 2024
Reasons:	19 September 2024

REASONS JUDGMENT OF VENNING J

[Sentence appeal]

This judgment was delivered by me on 19 September 2024 at 2.30 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Pollett Legal Ltd, Tauranga Counsel:  M R Douglas, Tauranga

AMITUANAI v NEW ZEALAND POLICE [2024] NZHC 2715 [19 September 2024]

Introduction

[1]                   Cullen Amituanai pleaded guilty to charges of strangulation, assault on a person in a family relationship, threatening behaviour x2, and careless driving. On 3 July 2024, Judge J P Geoghegan sentenced Mr Amituanai to imprisonment for two years, three months.1 Mr Amituanai appeals.

[2]I take the summary of facts from the Judge’s decision:

[2]                   The summary of facts tells me that you had been in a relationship with the victim for a few months. You have no children together but she had two children aged five and six who lived with her.

[3]                   On the evening of 30 November, you were at the victim’s property. Her two young children were also present. There has been an argument. That has resulted n your grabbing your partner’s hair dragging her into her room, jumping on top of her and punching her numerous times all over her body. That has given rise to the charge of assault on a person in a family relationship.

[4]                   You have then placed her in a headlock with your arm wrapped around her neck also placing your hand over her mouth and nose and not surprisingly, she felt suffocated and could not breathe. She has attempted to get out of that headlock but you have tightened the headlock causing her to hurt her neck. You have then taken her car key and house keys so that she could not leave.

[5]                   The following morning, the argument between you has continued. The second victim, who is the father of the children, has arrived at the address to pick the children up and has asked your partner to come out with them because he feared for her safety. You have told her that if she left, you were going to stab the children's father in the face in front of her children. That gives rise to a charge of threatening behaviour.

[6]                   You have then left the property with your partner. You have been at a petrol station parked at a pump. The children’s father has pulled into the same petrol station, has parked next to you. He has then exited his vehicle and walked in front of your truck to get to the passenger’s side to speak to your partner and you have turned on the vehicle and attempted to run him over which has led to a charge of careless driving which is rather generously laid given the reading of the summary of facts.

[7]                   The further threatening behaviour charge consists of your existing the vehicle with a machete and running towards the children's father. …

District Court sentence

[3]                   The Judge took the charge of strangulation as the lead offence. He identified three aggravating features and applied a starting point of 30 months to that offence.

1      New Zealand Police v Amituanai [2024] NZDC 15427.

He uplifted that by three months to take account of the other offending. The Judge then considered a further uplift of two months was appropriate to take account of Mr Amituanai’s previous convictions. The Judge allowed a credit of 20 per cent for the guilty plea which he described as generous. He also accepted Mr Douglas’ submission that a further credit should be allowed for the time spent on EM bail of one month. The end result was the sentence of 27 months. As a result home detention, which had been the sentence recommended by the probation officer in the Provision of Advice to Courts (PAC) report and argued for by counsel, was not available.

The appeal

[4]                   Mr Douglas submitted that the starting point of 30 months for the charge of impedes breath/strangulation was, in the circumstances of this case, too high which has led to a manifestly excessive end sentence. Mr Douglas submitted that the end sentence should have been two years or less and that would have been translated into the sentence of home detention recommended in the PAC report. Further, as Mr Amituanai had spent time in custody he would have been entitled for a credit for that when the term of home detention sentence was fixed.

[5]                   Mr Douglas did not take issue with the other uplifts and adjustments made by the Judge. The focus of the appeal was on the starting point of 30 months’ imprisonment taken by the Judge. With reference to the case of Shramka v R,2 Mr Douglas submitted that the offending should have been placed in the bracket of “lower-level s 189A offending”. He suggested that from the summary of facts it seemed the impediment of breath would appear to have been transitory in nature with the only record of injury being a sore neck experienced by the victim. There was no mention of loss of consciousness or the victim feeling as though that might have been about to occur. Mr Douglas noted that in Riley v R,3 three aggravating features were identified. The starting point of 24 months was not disturbed on appeal. In Riley the appellant had straddled the complainant and placed both of his hands around her throat and squeezed with enough force to prevent her breathing for about 10 seconds.

2      Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.

3      Riley v R [2023] NZHC 124.

[6]                   Mr Douglas submitted that if 24 months were taken as the starting point in the present case then, applying the other uplifts and credits available an end sentence of less than 24 months would have been the result which would have brought into play consideration of home detention. He submitted that home detention would have been the appropriate and least restrictive outcome in this case, particularly given the support Mr Amituanai apparently has in Whanganui. He made the point Mr Amituanai’s offending has occurred in the Bay of Plenty.

[7]                   The Crown oppose the appeal. Ms Houia submitted that, while the appellant’s submissions focus on the starting point for the strangulation charge the question for the Court was whether the end sentence was manifestly excessive having regard to the totality of the offending in this case.

Appeal

[8]                   The appeal is brought under Part 6, subpart 4 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed upon conviction and a different sentence should be imposed. In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the CPA was not intended to change the approach to appeals against sentence.4 It still remains for an appellant to satisfy the appeal Court that the sentence was manifestly excessive or wrong in principle. The focus remains on whether the sentence was within range rather than the process by which it is reached.

[9]                   In Shramka v R the Court of Appeal identified eight aggravating factors of the offence of strangulation/impedes breathing:5

(a)pre-meditation;

(b)history of strangulation or prior very serious domestic violence;

(c)vulnerability of the victim;

4      Tutakangahau v R [2014] NZCA 279 at [26].

5      Shramka v R, above n 2, at [42].

(d)home invasion/breach of protection order;

(e)aggravated violence;

(f)threats to kill;

(g)enduing harm to the victim;

(h)harm to associated persons.

[10]               The Court emphasised that rather than suggesting bands based on the number of factors present, sentencing should be an evaluative exercise and it was important to judge relativity by reference to examples.6 On that basis the Court then went on to discuss examples of “high level s 189A offending”, “moderate s 189A offending”, and “lower level s 189A offending”. In adjusting the start point in Mr Shramka’s case to 36 months the Court noted there were four aggravating features in that case.

[11]               In the present case I agree with Ms Houia’s submission that the Judge was correct to identify three aggravating features: history of strangulation; vulnerability of the victim; and harm to associated persons (as the victim’s children were present). While, as Mr Douglas submitted, the summary of facts does not disclose how long the incident carried on for, as Ms Houia pointed out, it does refer to Mr Amituanai holding the victim in a headlock and using his other hand to cover her mouth and nose to prevent her breathing and when she tried to escape, he tightened his grip. In the circumstances, the Judge was right to categorise it as “moderate s 189A offending” but not as extreme as the case of Shramka.

[12]               As noted, Mr Douglas referred to the case of Riley.7 Two points can be made about Riley. The fact that no comment was made about the starting point on appeal does not necessarily suggest it could not have been higher. Second, as the Crown noted, the aggravating features in this case are the presence of the victim’s children and the fact that Mr Amituanai was serving a sentence of supervision for a previous

6      Shramka v R, above n 2, at [44].

7      Riley v R, above n 3.

offence of strangulation. It is not just about the number of aggravating factors, as the Court of Appeal has said an evaluation of the seriousness of the aggravating features is required.

[13]               In short, the starting point of 30 months, while perhaps at the upper end of the band in the present case for the strangulation offence, was available to the Judge.

[14]               On the basis that the appeal has been presented that is sufficient to dispose of it.

[15]               However the matter can be tested another way. Even if, for present purposes, the appropriate starting point was less than 30 months, possibly 27 months, as discussed with counsel the uplift for the related offending, which in itself was serious, of three months could certainly be regarded as generous. A further uplift between four and six months could have been available for that offending.

[16]               The Judge himself described the guilty plea discount of 20 per cent as generous and the further uplift of two months given past history could also be regarded as generous. The Judge could have been entitled to take a three-month uplift for that, particularly bearing in mind that the offending occurred while Mr Amituanai was serving a sentence of supervision for a previous offence of strangulation. Further, apart from the earlier offence of strangulation, he had a previous conviction for assault on a person in a family relationship a relatively short time prior to that offending.

[17]               Testing the matter that way, the starting point of 27 months could be uplifted by between four and six months to between 31 and 33 months, and applying a further uplift for two to three months for the previous offending leads to an adjusted start point of 33 to 36 months. Applying the discount of 20 per cent to that leads to an end sentence between 26 and 29 months.

[18]               That supports the conclusion that the end sentence the Judge arrived at of 27 months or two years, three months was not manifestly excessive.

[19]               Finally, while the PAC report suggested home detention as appropriate, it would not have been an appropriate sentence even if the end result of 24 months or less had been achieved.

[20]For the above reasons the appeal was dismissed.

Venning J