Enoka v The Queen
[2012] NZCA 435
•25 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA74/2012 [2012] NZCA 435 |
| BETWEEN MALCOLM LEON ENOKA |
| AND THE QUEEN |
| Hearing: 10 September 2012 |
| Court: Arnold, Priestley and Ronald Young JJ |
| Counsel: A M Dooney for Appellant |
| Judgment: 25 September 2012 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of four years, nine months’ imprisonment imposed in the District Court is quashed and a sentence of four years, three months’ imprisonment is substituted.
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REASONS OF THE COURT
(Given by Arnold J)
Introduction
Following a jury trial before Judge D G Harvey, the appellant, Mr Enoka, was convicted of two counts of male assaults female, three counts of breaching a protection order, one count of injuring with intent to injure, one count of assault with intent to injure and four counts of accessing a computer system for a dishonest purpose. He was sentenced to imprisonment for a term of four years, nine months.[1] He now appeals against both conviction and sentence.
Factual background
[1] R v Enoka DC Whangarei CRI-2010-011-785, 19 January 2012.
Mr Enoka and the complainant had been in an “on again/off again” relationship for about four years. They had one child. In addition, the complainant had been living with her three children from a previous relationship. In March 2009, the Family Court issued a protection order against Mr Enoka in respect of the complainant and her children. This resulted from Mr Enoka’s frequent use of violence against the complainant, especially after he had been drinking.
The offending with which this appeal is concerned occurred at three times: in November 2010, December 2010 and February 2011. We deal with each in turn.
November 2010 incident
Two charges arose from the November 2010 incident, one of assault with intent to injure and another of breach of the protection order. At this stage, Mr Enoka and the complainant were not living together. While Mr Enoka was at the complainant’s house, he read some text messages on her mobile phone. He became angry when he came across one from a man with whom he knew the complainant had had a brief liaison. An argument developed and the complainant asked Mr Enoka to leave. Because his car was not working, the complainant offered to drive Mr Enoka to his home. He accepted and they left in the car, together with their young son.
The argument continued in the car, to the point that the complainant became concerned for her safety and asked Mr Enoka to get out and walk the last part of the way to his house. When Mr Enoka refused, the complainant got out of the car. Mr Enoka followed and they continued to argue, until Mr Enoka put his hands around the complainant’s neck and squeezed. The complainant had difficulty breathing and thought Mr Enoka was about to kill her. However, she managed to break away and run off. Mr Enoka started to follow her in the car, but stopped, left the car, took their son and walked the rest of the way to his house.
December 2010 incident
At the time of the December 2010 incident, Mr Enoka and the complainant were living together at the complainant’s house. Mr Enoka had three relatives round to visit. They were drinking. The complainant cooked dinner and then received a telephone call from her mother. Her three oldest children were watching a movie in a bedroom. While the complainant was on the phone, Mr Enoka went to the bedroom and remonstrated with the children for making too much noise. The complainant ended the telephone call and told Mr Enoka that he was being unfair and that it was his relatives who were making too much noise rather than the children.
Mr Enoka objected to the complainant’s remarks. He pushed her, causing her to fall over, and punched her. One of the children tried to intervene, but Mr Enoka pushed the child away, so that she hit her head against a wall. As the complainant stood up and attempted to walk past Mr Enoka, he grabbed her and, with his arm under her chin, lent back, lifting her off the ground. The complainant broke free, ran to the telephone and dialled 111. Mr Enoka knocked the telephone out of the complainant’s hand and pulled the cord out of the wall. He then picked the complainant up, placed her on a chair and said he wanted to talk. He pushed her onto the chair with such force that the chair and the complainant fell over. A short while later, the police arrived.
This incident gave rise to two charges of male assaults female, one charge of injuring with intent and one charge of breaching a protection order.
February 2011 incidents
In February 2011, while on bail awaiting trial in relation to the November and December 2011 incidents, Mr Enoka accessed the bank accounts of the complainant and three of her children. He withdrew $990 from the complainant’s account and $700 from the accounts of each of the three children, for a total of $3090. This resulted in four charges of accessing a computer system for a dishonest purpose and one count of breach of a protection order (the unauthorised withdrawals were alleged to constitute psychological abuse).
Basis for conviction appeal
The only ground of appeal advanced on behalf of the appellant was that at a pre-trial hearing Judge D J McDonald had wrongly admitted certain propensity evidence.[2] That evidence was police summaries of fact and informations relating to Mr Enoka’s 11 previous convictions for protection order breaches in respect of the complainant, covering the period 2008–2009. These incidents involved Mr Enoka going to the complainant’s house, often while drunk, becoming verbally and/or physically abusive towards her and refusing to leave when asked.
[2] R v Enoka DC Whangarei CRI-2010-011-785, 21 November 2011.
Mr Dooney raised two principal points on behalf of the appellant:
(a)First, he submitted that the separation of time between the current and previous offending was too great for the evidence to show any relevant propensity.
(b)Second, he submitted that the evidence was unfairly prejudicial because it would have resulted in the jury effectively pre-determining the charges. Directions from the trial Judge could not counteract the unfairly prejudicial effect of the propensity evidence and enable the jury to undertake an objective analysis of the remaining evidence.
Mr Dooney submitted that there was a miscarriage of justice as a result of the wrongful admission of the propensity evidence.
Discussion: conviction appeal
We consider that Judge McDonald was right to admit the evidence of Mr Enoka’s previous convictions for protection order breaches as propensity evidence.
Mr Enoka’s defence to the charges arising from the November 2010 and December 2010 incidents was to deny that he had used or threatened any force against the complainant. The complainant’s credibility was, therefore, the critical issue in the trial.[3] Between 12 July 2008 and 19 August 2009, Mr Enoka had accumulated 11 convictions for breaching protection orders in respect of the complainant. There were, then, a significant number of incidents showing a tendency on Mr Enoka’s part to breach protection orders in respect of the complainant and to use force and/or threats of force against her, particularly when he had been drinking.[4] The previous incidents were very similar in nature to the incidents at issue and were directed at the same complainant.[5] Despite Mr Dooney’s submissions, they were closely linked in time to the present offending.[6] The previous offending occurred in 2008 and 2009; the current offending occurred predominantly in late 2010. This is not a significant gap in time, especially given that Mr Enoka was serving a sentence of one year’s intensive supervision from 19 August 2009 and presumably had limited opportunity to offend in this way in that period. As the Crown noted, propensity evidence has been admitted in cases where there were much longer time gaps between the previous and current offending.[7] All these considerations point to admissibility.
[3] Evidence Act 2006, s 43(2).
[4] Section 43(3)(a).
[5] Section 43(3)(c).
[6] Section 43(3)(b).
[7] See, for example, R v Khan [2010] NZCA 510 and Cooper v R [2010] NZCA 422.
We agree with Mr Dooney that the admission of the propensity evidence would have been prejudicial to Mr Enoka. But that is the nature of propensity evidence. Section 43(1) directs attention not to prejudicial effect but to unfair prejudicial effect. Here the propensity evidence was strong – Mr Enoka had persistently breached the protection order in respect of the complainant and her children. To guard against the risk that the jury might reason that the appellant was guilty simply because he had regularly acted in a similar fashion in the past, the Judge needed to give an appropriate direction. That is what he did. Accordingly, we do not accept that there is any unfair prejudice in the present case.
For these reasons, we dismiss the appeal against conviction.
Basis for sentence appeal
The Judge imposed separate sentences in relation to the three sets of offending:
(a)In relation to the November 2010 incident, he adopted a starting point of 18 months’ imprisonment for the assault with intent to injure charge, but taking the breach of protection order charge into account. The Judge then applied an uplift of six months’ imprisonment to take account of Mr Enoka’s previous offending against this complainant. There were no mitigating factors in relation to this offending.
(b) In relation to the December 2010 incident, the Judge treated the injuring with intent to injure charge as the lead offence. Factoring in the other offences arising out of this incident, the Judge adopted a starting point of two years’ imprisonment. Again, there were no mitigating factors.
(c)In relation to the February 2011 incident, the Judge adopted a starting point of nine months imprisonment. Again, there were no mitigating factors.
In the circumstances, the Judge considered that the sentences should be cumulative, so that the end sentence was four years, nine months’ imprisonment.
Discussion: sentence appeal
Although at the sentencing hearing before Judge Harvey there was a dispute as to whether the Judge should impose concurrent or cumulative sentences, Mr Dooney did not seek to argue before us that cumulative sentences were inappropriate in the circumstances. He accepted, rightly in our view, that this was a case where the Court needed to take account of the various sets of offending by imposing cumulative sentences. The essential point made by Mr Dooney was that, overall, four years, nine months’ imprisonment was a manifestly excessive end sentence for this sequence of offending and for this offender. He submitted that an appropriate end sentence was three years, seven months’ imprisonment.
We consider that the Judge’s analysis of the sentences to be imposed for the offending arising from each incident cannot be faulted. However, when imposing cumulative sentences the sentencing Judge must stand back and look at the resulting sentence from a totality perspective to ensure that it is not “wholly out of proportion to the gravity of the overall offending”.[8] As this Court said in R v Xie, “[t]he fundamental tenet of the totality principle is that the final sentence must reflect ‘the totality of the offending’”.[9] The Court referred to the guidelines provided in ss 84 and 85 of the Sentencing Act 2006 and said that they “do not have the effect of trumping the central principle of sentencing for multiple offending, namely that the total sentence must represent the overall criminality of the offending and the offender”.[10]
[8] Sentencing Act 2006, s 85(2).
[9] R v Xie [2007] 2 NZLR 240 (CA) at [16].
[10] At [18].
We consider that, having regard to the offending at issue and the circumstances of the offender, the end sentence of four years, nine months’ imprisonment is manifestly excessive. Mr Enoka’s conduct towards the complainant was serious and the way he applied force to her throat must have been particularly frightening for her, particularly as she was, physically, much smaller than him. And there has, of course, been a worrying pattern of this type of behaviour, associated with the consumption of alcohol.
However, despite the fact that Mr Enoka’s conduct was physically dangerous and psychologically intimidating, it did not cause the complainant any significant physical injury beyond some bruising. Moreover, Mr Enoka has not previously been sentenced to a term of imprisonment and appears at last (aged in his late 40s) to have come to realise the impact of his behaviour on the complainant and her children. He wrote a letter to the Judge prior to sentencing expressing his remorse for what had happened. The Judge said:
The pre-sentence report gives me some background information about you. It details your previous offending and as I have already said it indicates that you feel very little remorse for this offending. Your letter would tend to suggest that you are now starting to realise what you have done. I am sure that part of it is sorrow for the position that you find yourself in, but I am prepared to take a somewhat more generous view and accept that you now realise that there is a great deal of work for you to do to ensure that you do not offend in this way again.
Despite the generous view of the letter that the Judge said he was prepared to take, it does not appear to have been reflected in the sentence ultimately imposed.
While the Judge did refer to the totality principle in the context of fixing a starting point, the sentencing notes do not indicate that, having calculated the sentences for the three incidents, the Judge stood back and asked himself whether the end sentence that resulted appropriately represented the overall criminality of the offending and the offender. That may be explained by the way that the argument unfolded before him, focussing as it did on the concurrent/cumulative issue. Looking at the matter overall in light of the considerations mentioned above, we are satisfied that the sentence imposed was manifestly excessive and consider that the end sentence should be reduced by six months, to a term of four years, three months’ imprisonment.
Decision
The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of four years, nine months’ imprisonment is quashed and a sentence of four years, three months’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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