DIJON-JACOB MATATUA RIVERS AND NEW ZEALAND POLICE

[2024] NZHC 2847

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-000020

[2024] NZHC 2847

BETWEEN

DIJON-JACOB MATATUA RIVERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 September 2024
Counsel:	S J Zindel and A N Sacheun for Appellant S K O’Donoghue for Respondent
Judgment:	1 October 2024

JUDGMENT OF BOLDT J

[1]    Mr Dijon-Jacob Rivers pleaded guilty in the Nelson District Court to two charges of strangulation and one of assaulting a person in  a  family  relationship.1  On 2 July 2024, Judge A A Zohrab sentenced him to two years and two months’ imprisonment.2 Mr Rivers appeals against his sentence.

[2]    Mr Rivers challenges the starting point the Judge selected. He also submits the Judge extended insufficient credit for his plea of guilty, should not have imposed a three-month uplift for his previous offending, and should have given a greater discount in light of the background factors identified in his s 27 report.

1      Crimes Act 1961, ss 189A and 194A. Maximum penalties of seven years’ imprisonment and two years’ imprisonment respectively.

2      Police v Rivers [2024] NZDC 15191.

RIVERS v NEW ZEALAND POLICE [2024] NZHC 2847 [1 October 2024]

Background

[3]    Mr Rivers and the victim had been in a relationship for around a fortnight when Mr Rivers first assaulted her. The summary of facts records that in the evening of 19 June 2023, the victim and Mr Rivers were on the forecourt of a service station. They began to argue. Mr Rivers put the victim into a choke hold from behind, restricting her breathing for a few seconds. He then released her. The argument continued, and Mr Rivers pushed the victim, causing her to trip on a kerb and fall to the ground. After she got up, he grabbed her by the neck with one hand and squeezed, causing her to lose consciousness and fall to the ground again.

[4]    When the victim regained consciousness, the appellant was standing over her apologising, but it appears any contrition was short-lived. He tried to push her into the boot of the vehicle, then held her and told her to “get in the fucking car”.

[5]    The second incident occurred ten days later, on 29 June 2023, when Mr Rivers and the victim were together in his room. They began to argue, and Mr Rivers grabbed the victim’s throat. She had to elbow him to escape. He then put her into a headlock, again restricting her breathing. He said “people like you get silenced.”

[6]    The victim sustained bruising and soreness to her neck and bruises to her legs. She is understandably terrified of Mr Rivers. Her victim impact statement, made shortly after the offending, spoke of her ongoing nightmares involving Mr Rivers, though an updated report for sentencing noted she was improving with the help of counselling. The victim also revealed she had been pregnant at the time of the offending, and that she later suffered a miscarriage. She said she is still suffering from trauma and anxiety, and is still fearful of Mr Rivers.

[7]    The  appellant  was  due  to  stand  trial  in  the  Nelson  District  Court  on  28 March 2024. He initially faced four charges of strangulation, two of assaulting a person in a family relationship and one of threatening to kill. After a last-minute

negotiation with the prosecution, two of the strangulation charges, one of the assault charges and the charge of threatening to kill were withdrawn.3

[8]    Mr Rivers is 29. He has a lengthy criminal history. The pre-sentence report recorded that he had accrued 45 convictions since he left the jurisdiction of the  Youth Court, including robbery, injuring with intent, common assault, assault with intent to injure and threatening to kill. Much of his violent offending occurred in a domestic context.

[9]    Despite the guilty pleas, Mr Rivers denies aspects of the offending. In particular, he advised the writer of the pre-sentence report that he continues to deny the strangulation.

[10]   Mr Rivers’ pre-sentence report disclosed difficulties with impulse control, a sense of entitlement and a propensity towards violence. The report assessed his risk of general and violent reoffending as high. It appears he poses a particular danger to women with whom he is in an intimate relationship.

Section 27 report

[11]   Mr Rivers was born in Paraparaumu and had an unstable upbringing. He had lived in over 15 homes by the time he turned 13. His father left when Mr Rivers was a baby, and he was abused by a close family member over a lengthy period. He said he was the victim of multiple episodes of strangulation as a child, and it appears violence was a continual part of his life.

[12]   Mr Rivers effectively left school at 13. An attempt to study at Whitireia Polytech appears to have begun promisingly, but was derailed when his sister became extremely unwell. He has offended regularly, and the report estimates he has spent

3      Two of the original charges — one of assault, one of strangulation — arose from further (alleged) incidents said to have taken place between the attacks Mr Rivers admitted. Those charges, and the allegations underpinning them, were withdrawn entirely. The allegations underpinning the other withdrawn charges remained in the agreed summary, and formed part of the overall narrative. For example, the attack at the service station originally gave rise to two discrete charges of strangulation and two of assault; those charges were consolidated into one of strangulation and another of assault. Similarly, the discrete charge of threatening to kill during the second attack was withdrawn, but the threat remained in the agreed summary, and was properly regarded as an aggravating factor at sentencing.

around seven and a half years of his life in custody. He volunteered that he remains highly volatile and inclined towards violence while in prison.

[13]   Mr Rivers has been surrounded by drugs and alcohol throughout his life. He suffers from attention deficit hyperactivity disorder, and may also suffer from post- traumatic stress disorder. He agrees he has a “very big anger problem” and appreciates his need for counselling. He expressed a number of positive aspirations too, including wanting “to be around [his] family, have more kids, start a business [and] buy a house.”

District Court sentencing

[14]   After setting out the facts, the Judge referred to the Court of Appeal’s decision in Shramka v R. In that case the Court of Appeal gave detailed consideration to sentencing levels for strangulation, which remains a relatively new offence.4

[15]   The Judge adopted a global starting point of three years’ imprisonment.5 He imposed an uplift of three months in recognition of Mr Rivers’ previous convictions, applied a discount of 15  per  cent  for  Mr  Rivers’ late  guilty  plea  and  a  further 20 per cent for his personal background.6 After the adjustments, the Judge settled on a final sentence of 26 months’ imprisonment.7 The Judge noted Mr Rivers had been in custody for a long time, and would now be eligible for parole.8

The appeal

[16]   Mr Sacheun, on behalf of Mr Rivers, identified five grounds of appeal. First, he challenged the starting point selected by the Judge. The sole basis of that challenge is that Mr Rivers sought a sentence indication in September 2023. The Judge indicated a starting point of 54 months’ imprisonment — or four and a half years — and added that Mr Rivers would  receive  a  full  25  per  cent  discount  for  his  guilty  plea.  Mr Sacheun argued that the effective halving of the number of charges before the

4      Shramka v R [2022] NZCA 299, [2023] 3 NZLR 348.

5      Police v Rivers, above n 2, at [11].

6      At [12]–[13].

7 At [16].

8 At [15].

Court when Mr Rivers was sentenced should have resulted in something closer to a halving of the starting point.

[17]   I can dispose of that submission immediately. Mr Rivers rejected the sentence indication. Having done so it was neither use nor ornament. The sentencing Judge’s task was to assess the seriousness of the offending before the Court, which incorporated much of the conduct that underpinned the withdrawn charges. There is no automatic correlation between the number of charges a defendant faces and the appropriate global starting point; it is the seriousness of the offending that matters.

[18]   Second, Mr Sacheun challenged the Judge’s decision to extend only 15 per cent credit in recognition of his plea of guilty. He acknowledged that was the discount  Mr Rivers had sought at sentencing, but now submits it was inadequate. In light of Mr Rivers’ position at sentencing, and the Supreme Court’s remarks in Hessell v R, Mr Sacheun accepted the Judge was not obliged to offer Mr Rivers a full 25 per cent discount, but maintained that 15 per cent was inadequate.9

[19]   Third, Mr Sacheun challenged the Judge’s decision to impose a three-month uplift in recognition of Mr Rivers’ previous convictions. He submitted the present offending occurred nearly four years after Mr Rivers’ most recent family harm conviction, and accordingly the uplift of three months was excessive.

[20]   Fourth, Mr Sacheun argued Mr Rivers was not given any opportunity to participate in restorative justice with the victim. He said Mr Rivers instructed that he would have been willing to do so if that were possible.

[21]   Finally, Mr Sacheun argued the 20 per cent discount in recognition of the background matters disclosed in the s 27 report was inadequate. He noted that in Solicitor General v Heta, Whata J had dismissed an appeal in which the Crown contended that a 30 per cent discount in recognition of a defendant’s heavily disadvantaged background was excessive.10 Mr Sacheun submitted that a 30 per cent discount would have been appropriate in this case.

9      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].

10     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 431.

[22]   Ms O’Donoghue, on behalf of the Crown, supported the Judge’s approach. She noted the numerous aggravating features associated with the offending, including the fact the first incident involved a brazen assault on the victim in public at a petrol station. She submitted the global three-year starting point was consistent with the Court of Appeal’s guidance in Shramka and cannot be said to be manifestly excessive. Similarly, she submitted the 15 per cent discount for the guilty pleas was appropriate given the appellant maintained his denial until the morning of trial. Ms O’Donoghue noted that while the change in plea spared the victim the ordeal of giving evidence, its last-minute nature meant the victim still endured eight months of stress and anxiety at the prospect of doing so.

[23]   Similarly, Ms O’Donoghue submitted the three-month uplift for Mr Rivers’ previous convictions was unremarkable. He had a long list of convictions for violent offending, many of which occurred in the context of an intimate relationship.

[24]   Ms O’Donoghue submitted there is no evidence that Mr Rivers had any desire to participate in a restorative justice process with the victim. Restorative justice is, in any event, inappropriate given Mr Rivers’ continued denial of the most serious aspects of the offending, and the victim’s ongoing fear of him. Finally, Ms O’Donoghue submitted the 20 per cent discount for Mr Rivers’ background, as identified in the s 27 report, was well within the available range.

Approach

[25]    The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed only if the sentence was manifestly excessive, represented a material error of principle, or if there are exceptional circumstances.11

[26]   My focus is on the sentence the Judge imposed; it does not particularly matter how he constructed it as long as the final sentence was reasonably available. If the same

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

outcome could have been reached by a different route, the sentence will not be manifestly excessive.

R v Shramka

[27]   The standalone offence of “strangulation or suffocation” is a relatively recent addition to the Crimes Act 1961.12 It carries a maximum penalty of seven years’ imprisonment. The Court of Appeal discussed the appropriate approach to sentencing for the new offence in Shramka.

[28]   In Shramka, the appellant visited the home of his then-partner. They argued and she asked him to leave, but he refused. She tried unsuccessfully to call the Police. Mr Shramka grabbed her by the neck and squeezed tightly for about half a minute. The victim almost passed out, but managed to push him away. He responded by punching her hard in the back of the head.

[29]   The Court of Appeal began by canvassing the background to the new provision, noting the high correlation between domestic homicide and prior incidents of strangulation.13 It noted that suffocation also carries a profound psychological impact for victims, though it often leaves relatively few marks or signs.

[30]   The Court quoted the Law Commission’s assessment that strangulation is a “uniquely effective form of intimidation, coercion and control.”14 It observed that while an abuser who strangles his victim may not intend to kill, the act of strangulation provides a clear and practical demonstration that he can do so if he wishes.

[31]   In Shramka the Court identified three categories of s 189A offending. It observed that the appropriate categorisation will often depend on the presence and severity of eight common aggravating features, namely:15

12     Section 189A came into force on 3 December 2018.

13     Shramka v R, above n 4, at [19]–[21]. The Court noted that 71 per cent of family violence homicide cases also disclose a history of strangulation, often on multiple occasions.

14     Te Aka Matua o te Ture | Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.2].

15 At [42].

(a)premeditation;

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

(c)the vulnerability of the victim;

(d)the fact the offending occurred as part of a home invasion or in breach of a protection order;

(e)the presence of aggravated violence;

(f)any threats to kill;

(g)any enduring harm to the victim; and

(h)any harm inflicted upon associated persons.

[32]   The Court cautioned against adopting an over-mathematical or mechanistic approach. It emphasised that sentencing is an evaluative exercise and that it is important to determine relativity by reference to (actual or theoretical) examples given in guideline judgments, rather than simply by adding up aggravating factors.16 The objective, in all cases, is to establish a starting point which properly reflects the culpability inherent in the offending.

[33]   The most serious of the three sentencing bands is exemplified by a home invasion, followed by strangulation which leads to the victim struggling for breath, losing consciousness and perhaps becoming incontinent. The Court noted that example would engage six of the aggravating features it identified, and that a starting point of five and a half or six years’ imprisonment would be appropriate.17

[34]   The Court observed that in cases of moderate strangulation, such as Shramka itself, a starting point of around three years may be appropriate.18 Shramka engaged four of the relevant aggravating features. Finally, for lower-level strangulation

16     At [43]–[44].

17     At [46]–[49].

18     At [50]–[53].

offending, where the attack is transitory and the harm less enduring, a starting point perhaps as low as two years might be appropriate.19

Discussion

[35]   The fatal flaw in the present appeal is my firm conclusion that the three-year starting point adopted by the Judge was too low. The first attack at the service station engaged several of the aggravating features the Court of Appeal identified in Shramka. Mr Rivers has a history of serious domestic violence. The victim was undoubtedly vulnerable and the violence was significantly aggravated by her loss of consciousness. She has suffered enduring harm.

[36]   The humiliation associated with the attack taking place in full view of the public, the fact it involved two separate episodes of strangulation, and Mr Rivers’ angry and abusive response immediately afterwards all aggravate the offending further. Mr Sacheun accepted that the first incident on its own could have sustained a starting point of two and a half years. Given the victim’s loss of consciousness, the presence of two episodes of strangulation and the additional violence and verbal abuse that accompanied the attack, I would not have regarded a starting point of three and a half years as excessive.

[37]   The second attack was less serious, though the fact Mr Rivers strangled the victim again compounds his overall culpability. In addition to the terror inflicted by a repeat episode of strangulation, Mr Rivers followed the physical assaults with an implicit but unmistakeable threat to kill. Mr Sacheun accepted that a cumulative starting point of at least a further year would have been available (encompassing the manual strangulation, the headlock and the threat to kill).

[38]   I consider an overall starting point of at least four years should have been adopted. Mr Rivers’ offending comprised two separate attacks several days apart. In both cases, Mr Rivers strangled the victim twice. The offending included numerous condign aggravating factors, most notably the victim’s loss of consciousness on the service station forecourt, her vulnerability, the breach of trust always inherent in

19 At [54].

domestic violence, the threat to kill, the incidental violence and abuse, and the fear and psychological trauma the victim suffers to this day.

[39]   In light of that conclusion, the appeal falls away. I do not consider the Judge made any error in his adjustments to the starting point. But, given a higher starting point could, and in my view should, have been imposed, there can be no suggestion, even making a greater allowance for some of the mitigating factors, that the final sentence was manifestly excessive.

[40]   Dealing briefly with Mr Sacheun’s specific criticisms. The 15 per cent discount for a plea of guilty, entered on the morning of trial, was comfortably available to the Judge, despite some charges having been withdrawn at the last minute.

[41]   Assessment of the appropriate discount for a plea of guilty is an intensely discretionary exercise. Mr Sacheun acknowledged the remarks of the Supreme Court in Hessell v R, which confirmed that a reduction in charges may, of itself, represent a substantial benefit to a defendant and that a full discount in those circumstances may result in a sentence that does not properly reflect the offending.20

[42]   Similarly, there can be no criticism of the Judge’s decision to uplift Mr Rivers’ sentence by three months in light of his lengthy criminal history, and in particular his serious history of family (and non-family) violence. It is plain that earlier sentences, custodial or otherwise, have not operated as an effective deterrent. It is inevitable that future violence will require ever increasing uplifts, both to indicate the inevitable consequences of further offending and to protect the public.

[43]   As to the submission the Judge should have extended a 30 per cent discount for Mr Rivers’ harrowing personal background, the Court of Appeal has confirmed that discounts at that level are rare, and will often be regarded as excessive. Even a 20 per cent discount is generally regarded as generous.21 The credit to be extended for a defendant’s background — like other personal mitigating factors — remains a discretionary exercise. A Court, in determining the level of credit to be given, must

20     Hessell v R, above n 9, at [62].

21     See McCaslin-Whitehead v R [2023] NZCA 259 at [49]–[59].

still consider all the circumstances of the offence and the offender.22 The 20 per cent discount afforded by the Judge was undoubtedly open to him.

[44]   I accept Ms O’Donoghue’s submissions regarding Mr Rivers’ recent assertion that he wishes to participate in restorative justice. Even if he were sincere, his ongoing denial of the strangulations, despite his pleas, makes restorative justice impossible. The victim remains terrified of him.

[45]   It follows there can be no suggestion Mr Rivers’ sentence was manifestly excessive. Indeed, I consider it should have been longer. Even taking into account the mitigation available to him, an end sentence of three years’ imprisonment would have been amply justified. It follows the appeal against sentence must fail.

Result

[46]The appeal is dismissed.

Boldt J

Solicitors:

Zindels, Nelson for Appellant

Crown Solicitor, Nelson for Respondent

22     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at fn 105. The Court, in noting how offending may temper a discount in light of repetitive offending, said:

In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.