DAVID-TE-KAPUA PATENA AND NEW ZEALAND POLICE

[2024] NZHC 2590

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-0079

[2024] NZHC 2590

BETWEEN

DAVID-TE-KAPUA PATENA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 September 2024
Appearances:	S A McKenna for appellant LSP Glaser for respondent
Date of judgment:	9 September 2024

REASONS FOR JUDGMENT OF JAGOSE J

This reasons for judgment was delivered by me on 9 September 2024 at 3.30pm

………………………… Registrar/Deputy Registrar

Solicitors:

McKenna King, Hamilton Hamilton Legal, Hamilton

PATENA v POLICE [2024] NZHC 2590 [9 September 2024]

[1]                  David Patena appeals the 8 July 2024 decision of Judge A I M Tompkins in the District Court at Hamilton,1 sentencing him to 19 months’ imprisonment on pleading guilty to assault with intent to injure.2 At its remote hearing this morning, I dismissed the appeal, with reasons to follow in writing. These are those.

Background

[2]                  On 27 March 2023, the victim and his wife were driving behind Mr Patena’s car on Hamilton’s Anzac Parade. Mr Patena took exception to their car’s exit from a roundabout at the corner of Anzac Parade and Anglesea Street, perceiving it to have cut him off. He followed them some distance across the Anzac Parade bridge over the Waikato River before turning right onto Grey Street, where both vehicles came to a stop and Mr Patena approached the other car on foot. When the driver stepped out of his car to explain his driving, without any warning, Mr Patena used both his hands with closed fists to “hook punch” the victim “full force” about the head approximately 15 times. The driver sustained swelling and bleeding to his lips, nose and ear.

Judgment under appeal

[3]                  Having regard for the pre-sentence report’s recommendation of a non-custodial sentence, Judge Tompkins considered “given all the circumstances the least restrictive outcome must be a full-time sentence of imprisonment”.3 Those circumstances were:4

… a trivial driving matter which led to a sustained attack by Mr Patena on the head of a victim which occurred not immediately but after Mr Patena had driven behind the victim for some time. It also occurred in the presence of the victim’s wife and given that it occurred on a public street the risk to the victim after having been punched to the head, of falling and striking his head on the concrete was very significant.

[4]                  The Judge accepted defence counsel’s submission for a two-year starting point,5 and applied a 20 per cent deduction for Mr Patena’s “late guilty plea” and “an

1      R v Patena [2024] NZDC 15761.

2      Crimes Act 1961, s 193. Maximum penalty: three years’ imprisonment.

3      R v Patena, above n 1, at [10].

4 At [10].

5      Referring to Howes v New Zealand Police [2019] NZHC 1841; and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

additional month to allow for the defendant’s willingness to engage in the restorative justice process”,6 to come to his end sentence of 19 months’ imprisonment.7

[5]                  For  Mr  Patena,  Scott  McKenna  submits  the  Judge  erred  in  requiring  Mr Patena’s imprisonment exclusively on the basis of the gravity of his offending. He argues the Judge did not engage with any assessment of “the least restrictive outcome that is appropriate in the circumstances”,8 in which imprisonment was “a measure of last resort”.9 Had the Judge done so, he should have recognised a non-custodial sentence was available here, where few aggravating features were present.

[6]                  Now aged 43, despite his familially violent upbringing, Mr Patena had no convictions for violent offending at all (his sole conviction being for careless driving in 2007). His lack of remorse and ‘victim blaming’ comprehended by the probation officer were explicable from his background, and his self-reported “emotional abuse” of his partner illustrated his insight for rehabilitation. Sentencing’s purposes were met by a non-custodial supervisory sentence, perhaps including disqualification from driving for a period.

[7]                  Mr McKenna proposes nine months’ community detention the appropriate penalty in Mr Patena’s case, here to be reduced on appeal to six months on account of his intervening time in custody.

Approach on appeal

[8]                  I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 To be successful, an appellant must point to an error — either intrinsic to the

6      R v Patena, above n 1, at [11].

7 At [12].

8      Referring to R v Rawiri [2011] NZCA 244 at [17]; and Tawhara v Police [2015] NZHC 2246 at [31].

9      Referring to Nuku v R, above n 5, at [37].

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

11     Section 250(3).

Judge’s reasoning, or as a result of further information submitted on appeal — that is material to the exercise of the lower court’s sentencing discretion.12

[9]                  The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in the Court’s approach to sentencing appeals.13 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.14

Discussion

[10]I explained in Howes:15

There is no guideline judgment for the offence of assault with intent to injure under s 193 of the Crimes Act 1961. But, in Tamihana, the Court of Appeal found the approach adopted in the Nuku guideline judgment16 — of three bands, by reference to aggravating factors — “helpful in sentencing for offending contrary to s 193”.17 In essence, where there are few aggravating factors or only low-level violence, a non-custodial sentence may be appropriate.

[11]              I do not accept there were few aggravating factors or only low-level violence in Mr Patena’s offending. To the contrary — beyond his non-spontaneous and sustained attack to the victim’s head, in the presence of the victim’s wife and on a public street with risk of collateral injury or worse, all as the Judge recognised —  Mr Patena’s offending additionally arose in culmination of archetypal ‘road rage’, as I explained in Howes,18 itself a significant aggravating factor. The Judge’s two-year starting point here may be thought generous.19

12 Khon v R [2024] NZCA 354 at [13], referring to R v Shipton [2007] 2 NZLR 218 (CA) at [138]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].

13 Tutakangahau v R, above n 12, at [33] and [35].

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

15     Howes v New Zealand Police, above n 5, at [10].

16     Nuku v R, above n 5.

17     Tamihana v R, above n 12, at [16].

18 Howes v New Zealand Police, above n 5, at [12], referring to Devery v New Zealand Police [2013] NZHC 264 at [18].

19 Comparably at [12], referring to two years and nine months’ starting points in Gibson v New Zealand Police [2012] NZHC 315 and Stirling v New Zealand Police HC Nelson CRI 2011-442- 0037, 8 December 2011.

[12]              Neither do I accept the Judge failed to have regard for other than a custodial sentence. From discussion with Mr Patena and his partner, the probation officer’s pre-sentence report directly raised a non-custodial sentence for the Judge’s consideration. The Judge rejected the recommendation both expressly as “inadequate” in the aggravated circumstances of Mr Patena’s offending,20 and inferentially as inappropriate at least in circumstances of Mr Patena’s reported lack of remorse and racially motivated victim blaming maintained some 15 months after the offending,21 as well as expressly if to Mr Patena’s home in circumstances of family violence.22

[13]              Although Mr Patena’s lack of any material criminal history is a relevant factor, so too is his volunteered and corroborated family violence history. So the Judge had a basis not to consider Mr Patena’s offending his unprecedented resort to violence.

[14]              The question then comes to if the Judge erred by failing to impose a less restrictive sentence than imprisonment, having regard for “the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”, and being satisfied sentencing’s relevant purposes “cannot be achieved by a sentence other than imprisonment” and no other sentence would be consistent with the application of sentencing’s principles.23 There is no presumption for or against commutation from custodial to non-custodial sentences, which decision calls for case-by-case exercise of judgement against sentencing’s principles and purposes, and in which “the margin of appreciation extended to sentencing judges when it comes to decisions such as deciding between imprisonment and home detention is usually significant”.24

[15]              As in Howes,25 I accept the Judge had a basis — in the self-entitled nature of Mr Patena’s offending and subsequent attitude, suggesting deterrence and protection of the public were important factors — on which to consider the purposes and principles of sentencing would not be met by a non-custodial sentence.

20     R v Patena, above n 1, at [10].

21 At [6].

22 At [7].

23     Sentencing Act, s 16.

24     L v R [2023] NZCA 144 at [85], referring to Palmer v R [2016] NZCA 541 at [19].

25     Howes v New Zealand Police, above n 5, at [14].

[16]The Judge did not err. The sentence is not manifestly excessive.

Result

[17]The appeal was dismissed.

—Jagose J