Durie v Police

[2023] NZHC 3497

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2023-454-000027

[2023] NZHC 3497

BETWEEN

TAMIHANA DURIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

29 November 2023

Appearances:

J A Younger for Appellant

K S Barber and N H Brown for Respondent

Judgment:

4 December 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 4 December 2023 at 2.41 pm

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Palmerston North

DURIE v POLICE [2023] NZHC 3497 [4 December 2023]

[1]    At the age of 33, Tamihana Durie had by March 2023 been in a family relationship with a woman for around 10 years. There had been 10 family harm incidents between them.

[2]    At around 3 am on 3 March 2023, Mr Durie and the woman were at a Palmerston North lodge. They engaged in a heated argument. Mr Durie assaulted the woman by grabbing her, pushing her onto a bed, and pulling her jacket collar across her throat restricting her breathing. Then Mr Durie threw the woman to the floor. And he grabbed her collar again, pulling it over her throat and restricting her breathing to the extent she momentarily lost consciousness.

[3]    Mr Durie pleaded guilty to charges of assault in a family relationship, and strangulation. On 7 September 2023, Mr Durie was sentenced in the Palmerston North District Court to a total of 21 and a half months’ imprisonment.1 He appeals to this Court against that sentence.

[4]    I must allow Mr Durie’s appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.2 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached. 3

[5]    Mr Durie’s argument is that his sentence is manifestly excessive, because the overall starting point for the offending was too high, the discount for personal factors of 15 per cent was inadequate, and as a short-term sentence of imprisonment it should have been converted to home detention.

1      Police v Durie [2023] NZDC 19697.

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

Was the overall starting point too high?

[6]    The sentencing chose to select an overall starting point for the entire episode of violence, noting that there were two incidents of strangulation covered by a single charge.4

[7]    In doing so, the Judge referred to the effects of Mr Durie’s offending, drawing from the victim impact statement. Mr Durie’s former partner says that since the offending she now suffers from post-traumatic stress disorder, insomnia, anxiety and depression. She feels she has to remind herself that Mr Durie cannot hurt her. Engaging with other people is extremely difficult.

[8]    The Judge rejected the  submissions  of both  prosecution and defence that  Mr Durie’s offending was at a low level. He referred to the action being deliberate, and was maintained for long enough and with sufficient intensity to cause unconsciousness. He referred to the two incidents of strangulation, accepting some degree of impulsivity with the first episode, but describing the second as “more measured and deliberate”.

[9]    Overall, the Judge selected a starting point of three years and three months’ imprisonment.

Shramka v R

[10]   In Shramka v R, the Court of Appeal took the opportunity, provided by that first occasion on which the Court dealt with sentencing for strangulation under s 189A of the Crimes Act 1961, to “provide a broader measure of guidance than usual on starting points for this offending”.5

[11]The Court referred to guideline decisions in other areas, such as Nuku v R,6

which deals with offending involving injuring or wounding. The Court observed that

4      The District Court file indicates that two discrete charging documents were effectively combined into one, when on 12 June 2023 one was withdrawn by leave and one was made the subject of a guilty plea with both incidents remaining in the agreed summary of facts.

5      Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [37].

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

the Law Commission drew upon the offence of wounding with intent to injure, with its seven-year maximum prison sentence, when commending that maximum for strangulation as a stand-alone offence. It observed that while strangulation may not leave any visible physical injury, enduring injury (as with much domestic violence offending) is more likely to be psychological, and often the intended effect.7

[12]   The Court set out a list of eight primary aggravating factors which may arise in cases of strangulation. However, it declined to suggest bands based on the number of factors present. The Court found it important to judge relativity by reference to examples given in guideline judgments, observing that the absence of an aggravating factor may be more significant than its presence, and that when present it is the intensity of the factor that requires careful assessment.8

[13]   The Court offered the circumstances of the offending in that case as an example of moderate level s 189A offending. There, an argument occurred while Mr Shramka was visiting his former partner at her home. Mr Shramka grabbed her by the neck with one hand, squeezing tightly, and maintaining his hold as he pushed her on to a bed. This continued for about half a minute, with the complainant almost passing out. She managed to get Mr Shramka off her and roll on to her stomach, at which point he punched her hard to the back of the head and then in the face. The incident left the complainant with scratches and red marks on her neck, swelling and bruising to her left eye, a laceration on her left cheek, a large welt on the left side of her head above her eye and bruising to the back of the head. She continued to be scared, struggled to sleep, kept a light on at night and constantly remained anxious.

[14]   The Court found the case to engage four aggravating factors: vulnerability; a breach of protection order arising upon Mr Shramka refusing to leave, having previously been visiting by consent; aggravated violence; and enduring psychological harm to the victim. Those factors informed the Court’s preferred starting point of three years’ imprisonment, it observing that “[h]ad home invasion been involved, and [had]

7      Shramka, above n 5, at [41].

8 At [44].

the attack… resulted in unconsciousness, a starting point of four years or more would have been justified.”9

Mr Durie’s position

[15]   For Mr Durie, Ms Younger seeks to distinguish the present case from the three-year starting point adopted in Shramka for the moderate level s 198A offending seen in that case. Ms Younger notes that in that case there was significant other accompanying violence and the presence of a protection order.  And in this case,   Ms Younger submits there is no victim vulnerability, aggravated violence or enduring victim harm, each of which if present would quality as aggravating factors.

[16]   Ms Younger relies instead for the purposes of comparison on a number of other decisions of the senior courts.

Discussion

[17]I do not accept that Shramka may be distinguished as suggested.

[18]   First, the Court in Shramka described “vulnerability” as “concern[ing] the physical or psychological disparity between the offender and the victim”.10 And it expressly based its finding of vulnerability in that case upon its view that physical disparity was demonstrated by the victim “almost pass[ing] out before managing to break free”.11 Here, the summary of facts confirms the victim was unable to prevent herself actually passing out momentarily. Plainly, there must have been a physical disparity between Mr Durie and the woman he was able successfully to strangle by her jacket collar. She was vulnerable to him.

[19]   Second, the aggravating factor of “aggravated violence” described in Shramka was described more fully as “repeated or extended strangulation, in particular where loss of consciousness arises… (or) loss of bodily function”.12 Although the Court’s three-year starting point for the strangulation incorporated associated violence such as

9 At [53].

10     At [42(c)].

11 At [50].

12     At [42(e)].

the punch to the face, it did not include the “hard punch to the back of the head” which was the essence of a separately charged breach of protection order and was therefore made the subject of a separate uplift. More importantly, the Court expressly based its finding there was aggravated violence on the strangulation having lasted “in the order of 30 seconds, nearly resulting in unconsciousness”.13 Here, the summary of facts does not comment on the length of time taken to achieve the victim’s momentary loss of consciousness. But as the sentencing Judge observed, there were two distinct acts of strangulation, each of which were charged (and upon plea admitted) as deliberate, rather than merely reckless, impediments to breathing. In my view, “aggravated violence” in terms of Shamka was present in this case.

[20]   Third, the Court in Shramka noted that “enduring consequences (psychological or physical) are an aggravating factor, recognising the terror strangulation causes its victims”.14 I have already outlined the effect of the offending, drawn from the victim impact statement. It clearly amounts to enduring, and significant, psychological harm.

[21]   This leaves the differences that do remain between Shramka and this case: the clear additional violence in the form of a punch to the face, and the breach of the protection order in Shramka; and the modest additional violence in the form of the throw to the floor which was charged as a distinct assault, the background of 10 family violence callouts, and the actual, albeit momentary, unconsciousness in this case.

[22]   I note the Court’s observation in Shramka that a starting point of four years or more would have been justified had home invasion been involved and unconsciousness resulted. In my view, the starting point of three years and three months’ imprisonment selected in this case was perhaps at the top of the available range, but given the victim’s momentary unconsciousness was not in error.

[23]   In forming this view, I am not greatly assisted  by the other cases to which  Ms Younger refers.15 In each of these cases, the appellate senior court was either not

13 At [50].

14 At [42(g)].

15 Riley v R [2023] NZHC 124; Mullan v Police [2023] NZHC 962; Williams v R [2022] NZHC 2583 Barnett v Police [2022] NZHC 2662; Edwards v Police [2023] NZHC 2825; Hopa v R [2023] NZCA 320; and R v Ripia [2023] NZHC 1731.

invited to review the starting point for strangulation, or found that the starting point adopted in the court below was not excessive. The greater guidance is provided by the Court of Appeal’s judgment in Shramka. If there is a divergence between the application of principle suggested by that case and the practice being adopted in the District Court, the District Court practice should adjust.

Was the discount for personal factors inadequate?

[24]   Turning to Mr Durie’s personal circumstances, the sentencing Judge referred to a pre-sentence report confirming Mr Durie’s moderate risk of further offending notwithstanding  a  degree  of  insight  into  his  behaviour,  and  a  report  from     Dr Jarrod Gilbert and associates provided by way of cultural background. The Judge took note from the latter report of Mr Durie’s exposure as a young person to violence, and his occasional suffering from it. Also Mr Durie’s exposure to alcohol at a very early stage, cannabis from his twenties, and recently methamphetamine. The Judge agreed there was a nexus to the offending, albeit an indirect one.

[25]   For these personal factors and for Mr Durie’s indication of desire to rehabilitate, the  Judge  applied  a  discount  from  the  adjusted  starting  point  of  15 per cent.

[26]   The Judge further applied discounts of 25 per cent for Mr Durie’s early guilty pleas and five per cent for his expressions of remorse, apparent desire to rehabilitate (seemingly double-counted) and openness to restorative justice.

Mr Durie’s position

[27]   Ms Younger accepts the discounts for guilty pleas, and for remorse and rehabilitative/restorative inclination. But she submits that the 15 per cent discount for personal background was inadequate. Ms Younger refers to cases where a 20 per cent discount for personal background was permitted, including:

(a)in Pene v R, where a “very similar background” saw the High Court increase the discount for an appellant’s background from 15 to 20 per cent; 16 and

(b)in Kolofale v R, where an appellant had been diagnosed with ADHD but his mother declined medication for cultural reasons, and the Court of Appeal found the sentencing Judge rightly to have viewed the effect of ADHD as a significant feature informing the 20 per cent discount.17

[28]    Ms Younger submits that in Mr Durie’s case, his violent offending is linked to his childhood subjection to and witnessing of violence. She submits his childhood also featured exposure to alcohol, methamphetamine, and other drugs, and that this evolved into addiction issues “at a very young age”. And that Mr Durie may have undiagnosed ADHD.

Discussion

[29]   The s 27 report does not suggest Mr Durie’s addiction issues commenced at a very young age. It describes him reporting that he did not use the drugs his family did, and that he started smoking a lot of drugs and a consuming a lot of alcohol “around my early 20s, mid-20s”. He adds that his offending occurred while under the influence of methamphetamine, but that he has not taken that drug since.

[30]   And on the possibility of ADHD, the report states Mr Durie suspects he has traits but no formal diagnosis, and that he “would likely benefit from formal assessment”. The circumstances in Kolofale were quite different.

[31]   In Pene, Radich J observed that discounts for cultural and other background matters  personal  to  offenders  are  common.18  While  the  first  instance  Judge’s  15 per cent discount was “at the lower end but within range”, Radich J found it appropriate to apply a 20 per cent discount in the circumstances of that case. Doing

16     Pene v R [2023] NZHC 1234.

17     Kolofale v R [2022] NZCA 74.

18     Pene v R, above n 14.

so meant that the combination of that and other discounts applied on appeal resulted in the appellant’s immediate release.

[32]   But in Pene, a diagnosis of anxiety and substance addition was found to explain the appellant’s chaotic living circumstances, and that deprivation explained his limited life options, poor coping skills and other criminogenic circumstances. I do not consider Mr Durie’s difficult background to be as severe.

[33]   Overall, the 15 per cent discount applied to recognise Mr Durie’s background was appropriate.

Should the sentence have been converted to home detention?

[34]   Upon application of the above discounts, the sentencing Judge arrived at an end sentence of 21 and a half months’ imprisonment.

[35]   The Judge then declined to commute that short-term sentence of imprisonment to home detention, observing that the seriousness of the charge made home detention unavailable, and imprisonment the least restrictive outcome that could be imposed. Although  not  recorded  in  his  Honour’s  sentencing  notes,  I  understand  from  Ms Younger that the decision may have been informed by concern that the proposed home detention address was unsuitable.

Mr Durie’s position

[36]   Mr Durie had been remanded in custody for a substantial period prior to his guilty plea and sentencing. His sentence expiry date is 23 January 2024.

[37]   Ms Younger submits that Mr Durie’s sentence should have been converted to home detention as the best way for Mr Durie to transition back into the community. He would have started rehabilitative programmes while under the oversight of the Probation Service and subject to a level of geographic restriction.

Discussion

[38]   There is nothing in the Sentencing Act to suggest a presumption for or against commutation.19 The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. In R v D, it was observed that it could be very difficult in a marginal case to articulate reasons for preferring one approach to another.20 In cases where the purposes of sentencing, such as denunciation, deterrence and the provision of assistance with rehabilitation and reintegration, might sometimes point in opposing directions, the sentencing Judge is called upon to assess whether home detention can adequately respond to the seriousness of the offending.21

[39]   In the circumstances of this case, where Mr Durie’s sentence will expire in the near future, I do not find there was an error in the Judge’s decision such that a different sentence should be imposed. Mr Durie will remain subject to post-release conditions supporting his transition back into the community upon his release in January 2024.

Result

[40]Mr Durie’s appeal is dismissed.

Johnstone J

19     Palmer v R [2016] NZCA 541 at [19]

20     R v D (CA253/08) [2008] NZCA 254 at [66].

21     Palmer v R, above n 19.