F v The King

[2024] NZHC 227

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S) UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL

PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-74

[2024] NZHC 227

BETWEEN

F

Appellant

AND

THE KING

Respondent

Hearing:	16 February 2024
Appearances:	B Kilkelly for Appellant R Bates for Respondent
Judgment:	20 February 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 20 February 2023 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

F v R [2024] NZHC 227 [20 February 2024]

[1]    F was sentenced to a term of three years and seven months imprisonment by Judge Robinson after pleading guilty to a series of family violence-related charges in the Dunedin District Court. His appeal is brought on the basis the sentence was manifestly excessive.

Factual background

Assault on a child1

[2]    On an unknown date between 31 January 2022 and 1 May of that year, F was at home with his then five-year-old son, with whom he has shared custody. Also present was his then fiancé, who was to be the victim of later offending, and three other young children. F was angry as a result of an earlier argument with his fiancé when the son approached the fiancé and asked if she would be his girlfriend. F inexplicably became enraged and punched the child in the upper arm or the upper torso area causing him to lose his balance and fly backwards. The fiancé intervened and removed the child, who received no injuries.

Assault in a family relationship2 and strangulation3

[3]    On 27 February 2023, F and his wife were at a supermarket. They had a minor argument which continued in their vehicle while driving home. F punched his wife twice in the ear with sufficient force to cause her earrings to break. The vehicle came to a stop and F walked home. When he arrived at the address, the argument continued.

[4]    F grabbed his wife’s hair and pushed her to the ground. He dragged her approximately six metres through the lounge, on her back, down the hallway and into a bedroom. He punched her in the back of the head twice. After the victim rolled onto the bed, F grabbed her by the throat with two hands and applied pressure to her neck. She attempted to scream for help. He used one hand to cover her mouth and the other to apply pressure to her neck, compressing her airway. The force caused the victim to lift her torso as F continued to apply pressure in a downwards motion on her neck.

1      Crimes Act 1961, s 194(a) — maximum penalty of two years’ imprisonment.

2      Section 194A — maximum penalty of two years’ imprisonment.

3      Section 189A(b) — maximum penalty of seven years’ imprisonment.

[5]    The strangulation continued for not less than 10 seconds and caused the victim to lose the ability to speak and breathe. Her face changed colour and her tongue and lips turned blue. Her body went limp and she became incontinent. F threatened that, if she continued the argument, he would punch her again, and removed his weight. Fluid moved into her airway and she commenced vomiting. F then removed his clothing with the intention of having sexual intercourse with his wife but was not able to do so. He then left the property.

[6]    As a result of the initial punches delivered in the vehicle, the victim suffered tenderness, bruising and bleeding to her left ear. The strangulation resulted in her receiving bruises to her neck, buttocks and thighs. She had ongoing headaches, neck pain and difficulty breathing and swallowing. The victim experienced a change in her voice and difficulty walking or holding her balance.

Assault in a family relationship4

[7]    In the early hours of 5 March 2023, F and the victim returned home after attending his nightshift together. An argument developed between them and, fearing an assault, the victim retreated to the bedroom. She was pursued by F. She tripped on the rug, enabling him to grab her by the right shoulder and hold her on the bed. When she broke free and attempted to run away, he grabbed her around the chest. He slid his hand up to her throat and proceeded to slam her forcefully down onto the bed, which winded her. F then held his hand on her throat for no less than five seconds.

F’s arrest

[8]    The victim subsequently disclosed these events to associates who referred the matter to the police and formal action was taken. When interviewed about these violent offences, F admitted the strangulation and assaults. He advised he could not control his anger and “blacked out” when he got angry to the point he could no longer control himself.

4      Section 194A — maximum penalty of two years’ imprisonment.

Assault in a family relationship5

[9]    F first appeared before the District Court on 14 March 2023 and was bailed on conditions that included he was not to have contact with his wife. However, overnight on 19 and 20 March, when the victim was at work carrying out her duties for a security firm, she was confronted by F. When F started talking to her, she attempted to turn away from him. He hooked her around her neck and forcibly whipped her head and body around towards him. He spoke in an aggressive voice, demanding she go back to her vehicle with him. She was terrified and complied. They sat in the vehicle for approximately 10 minutes during which he shouted at her before she got out and walked away.

[10]   As a result of that assault, the victim received whiplash, her neck was sore on rotation, and she presented with scratch and finger marks on her neck.

Strangulation,6 assault in a family relationship (x 2),7 and intentional damage8

[11]   The previous incident was not immediately reported to police and, on 11 April, F arrived at the victim’s address in breach of his bail conditions. A verbal altercation developed between them regarding money. The victim attempted to put her child in a bedroom so as not to hear the argument. When doing so, F grabbed her by the hair with one hand and forcefully pushed her head around, which led her to believe she was about to be punched. He let her go and the child was allowed into the bedroom.

[12]   On returning to the kitchen, the victim told F that she had messaged a friend. He demanded the phone from her and, using a sledgehammer, smashed it to pieces. F then grabbed the victim by the neck and held her against a wall. He forcefully squeezed her neck, to the point she could not breathe. She described having a “heartbeat in her eyeballs”. The pressure applied was such that she was unable to control her bladder and urinated. She was trapped in a corner of the kitchen. In self- defence, she punched F in the face in an endeavour to have him let her go, and tried to

5      Section 194A — maximum penalty of two years’ imprisonment.

6      Section 189A(b) — maximum penalty of seven years’ imprisonment

7      Section 194A — maximum penalty of two years’ imprisonment.

8      Summary Offences Act 1981, s 11(1)(a) — maximum penalty of 3 months’ imprisonment and a fine of $2,000.

get away from him. He responded by picking her up, lifting her into the air and dumping her forcefully on the ground before walking away to the bedroom.

[13]   Fortunately, the police arrived at the address after being alerted by the victim’s associate and F was arrested for breaching his bail conditions. As a result of this incident, the victim suffered bruising to her neck and legs. She was particularly sore from having been dumped hard on the ground.

Sentence

[14]   After identifying the aggravating features of the offending and, in particular, those relating to the two strangulations which were taken as the lead offences, the sentencing Judge determined that the first strangulation charge (27 February 2023) warranted a starting point of 36 months’ imprisonment. That was uplifted by three months to recognise the preceding assault in the car that was delivered with particular force and to the head. In relation to the second strangulation offence (11 April 2023), a starting point of 39 months’ imprisonment was adopted.

[15]   A four-month starting point was applied for the assault on the child and a further nine-month starting point taken for the assault that occurred on 5 March, which it was noted had the hallmarks of a strangulation. In relation to the assault in a family relationship charge that occurred overnight on 19 March, when F accosted the victim when she was at work, a further six-month uplift was applied.

[16]   This series of starting points  and uplifts resulted in a provisional total of     97 months’ imprisonment which was adjusted  for  totality  to  a  starting  point  of 78 months’ imprisonment. Full credit (25 per cent) was afforded for prompt guilty pleas. Evidence of prior good character, remorse and matters outlined in a cultural report resulted in a combined further discount of 20 per cent. A series of concurrent sentences were imposed in respect of each individual charge that resulted in the effective final sentence of three years and seven months’ imprisonment.

Approach to appeal

[17]   An appeal against sentence will only succeed if the appeal court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 It is not open for the appeal court to intervene if the sentence is within the range that can properly be justified upon application of accepted sentencing principles.10 The Court will only intervene and substitute its own views if it finds the sentence the subject of the appeal is manifestly excessive and not one that cannot be justified by the relevant sentencing principles.11 The focus must be on the end sentence imposed, not its component parts.12

The appeal

[18]   The appeal is brought on the single ground that the starting points for the first set of offences, namely the 2022 assault on the child and the assault in a family relationship, and strangulation that occurred on 27 February 2023, were excessive. It was submitted the starting point for this group of offences should only have been in the vicinity of two years and four months’ imprisonment, and that the starting point adopted by the sentencing Judge of 43 months was outside the available range. In particular, it was argued the 36-month starting point for the first strangulation offence was excessive. No issue was taken with the other starting points adopted in respect of the balance of the offences, nor with the discounts applied for the various mitigating factors. Ultimately, it was argued that a sentence of no more than three years to three years and one month’s imprisonment ought to have been imposed.

Discussion

Judge’s reasons

[19]   Judge Robinson noted the particular seriousness of the strangulation charges. It was observed that it has been recognised that strangulation is an important risk factor for future fatal attacks by a perpetrator and is a uniquely effective form of intimidation,

9      Criminal Procedure Act 2011, s 250(2) and (3).

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

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

12     [Authorities]

coercion and control by an offender who, by their conduct, demonstrates that, if they do not get their way, they can kill. In relation to the first strangulation, that occurred on 27 February, which is the subject of this appeal, a number of aggravating features were noted as being present. First, there was the victim’s vulnerability, being a smaller person who was weaker than F. It was observed that there is an inherent vulnerability when a strong male attempts to exert control over a female.

[20]   Secondly, there was the extent of the violence, which included the victim being dragged by her hair, punched in the back of her head, rolled onto her bed and grabbed by her throat with two hands and subjected to vertical pressure. The Judge considered the way the strangulation was carried out was designed to exert maximum force and was done for an extended period. The victim suffered hypoxia, went limp, her face changed colour and she was incontinent. It has previously been recognised by this Court that loss of control of the bladder is an indicator of a near fatal strangulation.13 The Judge considered that the nature of the strangulation gave rise to a more culpable intention on the part of F.

[21]   Other aspects of this offending were also highlighted by the sentencing Judge. These included the threat of further violence and F removing his clothing with the intention of having sexual intercourse with the victim. The Judge considered this was evidence of a further attempt to demonstrate coercion and control. It was noted that enduring harm had been caused to the victim, who described the impact upon her as crippling.

Appellant submissions

[22]   In challenging the starting point adopted by the District Court for this first group of offences, Mr Kilkelly referred to the leading sentencing authority of Shramka v R.14 In that case, a number of aggravating features of strangulation offending were identified. These include premeditation, the vulnerability of a victim, the presence of a home invasion or breach of a protection order, aggravated violence, threats to kill,

13     T v Police [2019] NZHC 3375, [2020] 2 NZLR 270.

14     Shramka v R [2022] NZCA 299.

and enduring harm to the victim and associated persons, in addition to whether there is any history of strangulation or prior very serious family violence.15

[23]   Reliance was placed on a decision of this Court, Jackson v Police,16 where three aggravating factors were identified as accompanying the strangulation, namely, vulnerability, breach of a protection order and harm to associated persons. The presence of those features justified a starting point of no more than two years and three months’ imprisonment. It was submitted that other sentencing decisions referred to in Jackson indicated starting points of no more than between 24 and 28 months’ imprisonment for what was argued to be similar offending to the present case, and arguably worse violence. In two of those cases injuries were inflicted, including damage to the eyes and multiple rib fractures.17

[24]   Mr Kilkelly submitted that the first strangulation committed by F involved only two of the aggravating factors identified in Shramka, namely, vulnerability of the victim and aggravated violence, which he argued should have resulted in a starting point of two years and which, when coupled with a four-month uplift for the assault on the child, ought not to have resulted in a starting point of more than 28 months’ imprisonment. No issue was taken to the sentencing Court’s approach in respect of the second strangulation and other violent offending, which it was noted included home invasion and repeat offending while F was on bail and in breach of its terms. Nor, as previously mentioned, was any dispute taken to the sentencing Court’s approach to matters of mitigation.

Crown’s response

[25]   The Crown argued that, in addition to victim vulnerability and the extent of the violence, two further aggravating features were present. These were identified as being the threats made to the victim and the enduring harm she has suffered from her traumatic experience, which goes beyond the physical injuries sustained and extends to the psychological harm she has suffered. It was argued the presence of these four

15 At [42].

16 Jackson v Police [2023] NZHC 1100.

17 Mullan v Police [2023] NZHC 962; Schell v Police and Chief Executive of the Department of Corrections [2023] NZHC 636; Ngataki v Police [2022] NZHC 1952 at [5]; and Williams v Police [2022] NZHC 2583 at [2]–[5].

aggravating factors put the strangulation in the category of moderate offending, as identified by the Court of Appeal in Shramka, which could properly attract a starting point of three years’ imprisonment.

Analysis

[26]   Focusing on the guidance provided by Shramka, it is worthwhile observing that the Court of Appeal in that case re-emphasised that sentencing is an evaluative exercise and that guideline judgments should not be applied in a mechanistic way. When an aggravating factor is present, its intensity needs to be taken into account. In particular, the nature of the violence deployed and the harm caused will require careful assessment.18 The features of the offending in the individual case must be examined in order to establish a starting point which properly reflects the culpability of the offending. In Shramka, the Court of Appeal declined to set bands by reference to the number of aggravating factors engaged.19 Instead, two examples were provided as reference points for comparison in future sentencing.

[27]   In relation to the highest level of strangulation offending, the Court of Appeal referred to the example provided by the Law Commission as an exemplar of the “worst case” or band of offending:20

An example of the worst class of strangulation within scope would feature the hallmarks of coercive or controlling behaviour and the terror we have identified. For example, a perpetrator enters the victim's home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.

[28]   That example was identified as illustrating many aggravating factors, but the Court of Appeal continued to emphasise the need for a qualitative assessment, rather than “simple factor-counting”.21 It was suggested that a starting point of five and a half years’ imprisonment would be appropriate for a case of this type.

18     Shramka v R, above n 14, at [44].

19     As it had in R v Taueki [2005] 3 NZLR 372 (CA) and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

20 At [46].

21 At [49].

[29]   In addressing the category of moderate strangulation offending in respect of which a starting point of three years’ imprisonment was suggested as being appropriate, the Court stated:22

We take the present case as an example of moderate level s 189A offending. Without diminishing the violence in the present case, it is somewhat removed from the extremity of the Law Commission's example. We note that it engages four aggravating factors: (c) — vulnerability (the parties' physical disparity demonstrated by the fact the victim almost passed out before managing to break free), (d) — breach of protection order (but not at the point of entry; it arose from Mr Shramka refusing to leave after visiting by invitation), (e) — aggravated violence (being in the order of 30 seconds, nearly resulting in unconsciousness), and (g) — enduring psychological harm to the victim.

[30]   As was stressed by Mr Kilkelly, this first episode of strangulation by F, in contrast to what occurred later, did not involve a home invasion or the breach of a court order designed to protect the victim. But as emphasised by Mr Bates, on behalf of the Crown, the aggravated violence that was present was severe, involving, as it did, the near loss of consciousness and the victim losing control of her bladder. The strangulation itself was very serious. It is difficult to assess the extent to which enduring psychological harm to the victim can be apportioned to this particular instance of offending given the further episodes of violence, and it would be artificial to attempt to do so. However, this offending clearly contributed to the harmful effects suffered by the victim and is properly to be regarded as an aggravating feature to be taken into account when assessing this particular offending.

[31]   I doubt whether the Crown’s contention that the aggravating feature of threats qualifies as a relevant aggravating feature in this instance. The Court of Appeal identified threats to kill as a specific aggravating feature because of the continued resonance such threats may have and their coercive nature. That said, however, the victim in this case was threatened with further assaults and, as found by the sentencing Judge, F’s behaviour in removing his clothing with a view to having sexual intercourse with the victim, were all actions that manifested his intention to exert power and control.

22     Shramka v R, above n 14, at [50].

[32]   There is also the extensive violence to which the victim was subjected as a prelude to the strangulation which occurred at the address. This involved the victim being grabbed by her hair and dragged through the lounge on her back and then down the hallway into the bedroom, where she was twice punched in the back of the head. These assaults were part of an ongoing course of violence that culminated in the strangulation which needed to be factored into the appropriate sentence for that charge.

Decision

[33]   On balance, I consider the sentencing Judge was correct to classify the first strangulation episode as falling into the category of “moderate offending” of the type described in Shramka. The offending has a number of the hallmarks of the example sourced from the Law Commission which was cited in that case as illustrating offending of the highest level. In particular, there is the physiological impact of the strangulation that resulted in the victim being unable to breath, incontinent and hypoxic. In the Law Commission example reference is made to the constant fear held by the victim for her security and life as a result of the strangulation. That is highlighted in that example by reference to the home invasion aspect of the offending. However, it is also present in the current case, with the victim reporting that F said to her that there will never be an ending of the relationship — that it will never end — and, as a result, her heightened ongoing concern for the protection of herself and her son.

[34]   Overall, having regard to the guidance provided in Shramka and the sentencing decisions relied upon by Mr Kilkelly, I accept the three-year starting point for the first strangulation offence may, on a stand-alone basis, have erred on the excessive side. However, any concern is allayed when regard is had to the relatively modest uplift of three months for the assaults that occurred earlier in the motor vehicle and the additional four months for the entirely discrete offending that involved the assault on the child. Moreover, I do not consider any error arising from an excessive starting point for the first strangulation charge has resulted in the overall final sentence being manifestly excessive.

[35]   A considerable reduction of 19 months’ imprisonment was made by the Judge for totality which he recognised was perhaps “slightly lenient”. I agree. Having regard to the combination of charges that involved a series of discrete episodes of family violence, of which two, including, importantly, the second strangulation, occurred while F was on bail in breach of explicit conditions not to have contact with the victim, any error relating to one particular component of the sentence was not materially significant. Having regard to the effective overall sentence, I am unable to conclude that a different sentence should be substituted. It follows the appeal must be dismissed.

Result

[36]The appeal is dismissed.

Solicitors:
Crown Solicitor, Dunedin