Finiki v Police HC Christchurch CRI-2011-409-000038

[2011] NZHC 564

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000038

BETWEEN  GRAEME PENI FINIKI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 June 2011

Appearances: R Burnside for Appellant

N M Robson for Crown

Judgment:      3 June 2011

JUDGMENT OF THE COURT

Solicitors:           Crown Solicitor, Christchurch

Copy to:            R J Burnside, PO Box 33390, Christchurch  [email protected]

FINIKI V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000038 3 June 2011

[1]      The appellant pleaded guilty to charges of assault with a blunt instrument, assault with intent to injure and intentional damage.   He was sentenced by Judge Callaghan in the District Court at Christchurch to 20 months’ imprisonment on the charge of assault with intent to injure and nine months concurrently on the other charges.

[2]      The appellant and the complainant were previously in a relationship.   The relationship ended on 30 September 2010 when the appellant asked the complainant to leave.  The next day the complainant returned to the property with another man. The appellant armed himself with a baseball bat and told the complainant and her associate to leave the property.   He then struck her to the right shoulder with the baseball bat.   It is accepted that he struck her lightly.   The complainant did not sustain any lasting injury but was left sore.  The appellant then took the baseball bat to all but one of the complainant’s car windows and the right head light smashing them.

[3]      The  appellant  was  charged  with  assault  with  a  weapon  and  intentional damage.   Whilst on bail in relation to those charges, the more serious incident occurred.  On 6 November the complainant asked the appellant to accompany her to a relative’s funeral.   While in the car the appellant assaulted the complainant by punching  her  three  or  four  times  to  the  face  and  head  area.    The  complainant sustained a black left eye, a possible broken nose and four chipped and broken teeth. I interpolate here that during the course of reading the victim impact statement the complainant suggested that she had in fact sustained two black eyes, a broken nose, a fractured eye socket and seven broken teeth.

[4]      The appellant had pleaded  guilty to the summary of facts, including the injuries set out in that summary.  He was entitled to be sentenced on that basis.  If the Crown intended to rely on the suggestion that the injuries were more serious as the victim purported to disclose in the course of the sentencing exercise, then that of course would require an amendment to the summary of facts and possibly a disputed fact hearing.

Sentencing decision

[5]      I note the Judge referred to the victim’s comments about her injuries and also the suggestion that she suffered from epilepsy as a result of the incident.   While noting that there was no medical evidence to say that the epileptic fits were caused by the assault the Judge said that if that was the case it would be an aggravating feature.

[6]      In sentencing the appellant the Judge took as the lead charge the assault with intent to injure.   The maximum penalty is three years’ imprisonment.   Given the extent of the injuries and the attack to the head the Judge took a start point of 18 months.   He then took as an aggravating feature the fact the offending occurred whilst on bail and uplifted the start point by two months.   He then considered a sentence of nine months’ imprisonment would be warranted for the first incident but, bearing in mind the need to take account of the totality principle, reduced his overall starting point to 26 months.  He then reduced that by two months to take account of the appellant’s personal circumstances.   The pre-sentence report disclosed the appellant had sustained a serious head injury in a motor bike accident in about 1995 and had experienced volatile moods since and irritability since then.

[7]      The Judge then provided a further four month reduction for the guilty pleas noting they had not been entered at the earliest possible opportunity.  That led to the effective end sentence of 20 months.

[8]      In support of the appeal Ms Burnside submitted that the Judge had erred by fixing a manifestly excessive start point of 18 months for the assault with intent to injure and had compounded that by adding on nine months for the other offending before considering a reduction for totality so that the end sentence was manifestly excessive.  She also suggested a greater discount could have been given for the early guilty plea on the second offence.

[9]      There is no tariff decision for offending of this nature.   However, in R v McRoy[1] the Court of Appeal noted the ascending scale of offences and punishments for violence under the Crimes Act 1961 from common assault under s 196 with its one year maximum through various other permutations of assault with increasing sentences.  Assault with intent to injure under s 193 has a three year maximum.  In McRoy the Court considered that in taking a start point of two and a half years’

imprisonment against the maximum of three years the Judge had taken a starting point higher than was justifiable.   In that case the victim had been thrown to the ground and punched and kicked by a number of assailants.  The appellant had played a lesser role in the offending.

[1] R v McRoy CA261/06, 12 October 2006.

[10]     In the present case the Judge’s starting point of 18 months for the assault on the  complainant  which  left  her  with,  on  the  summary  of  facts,  a  black  eye,  a suspected broken nose and four broken or chipped teeth, can be seen to be on the high side having regard to authorities including R v Rivers and Nehua,[2] R v Mogan,[3]

R v Hackell[4] and the case of Taingahue v New Zealand Police.[5]   In the latter case the

appellant hit his wife in the face while they were in the car as she tried to turn away. He punched her a further three or four times in the back of the head before grabbing her by the hair and punching her several times in the face.  She suffered cuts around the nose and eyes, a broken tooth, sore neck and a pain in her head from having her hair pulled.   Miller J considered the appropriate start point, having regard to the authorities that I have referred to, was one of 12 months’ imprisonment.  He rejected a starting point of 18 months as too high.

[2] R v Rivers and Nehua CA56/86 CA 57/86, 7 May 1986.

[3] R v Mogan CA 160/97, 30 July 1997.

[4] R v Hackell CA131/02, 10 October 2002.

[5] Taingahue v New Zealand Police HC Wellington CRI-2009-484-75, 17 August 2009.

[11]     Having regard to the authorities and the circumstances of this case 18 months was too high for the start point for the assault with intent to injure.  I consider a start point of 14 months to be appropriate.   The two month uplift was justified having regard to the fact the offending occurred whilst the appellant was on bail.  The Judge was also quite right to take account of the other earlier incident in fixing the totality

of the offending, but again given the nature of that offending and the fact it was

accepted the assault was limited to a light touch on the shoulder with the bat, a sentence  of  no  more  than  eight  months’ imprisonment  was  appropriate  for  that offending, including the damage to the car.

[12]     That leads to a sentence of 24 months for a start point, but having regard to the need to take account of the totality that could be reduced to 21 months.

[13]     From the 21 months a further reduction of two months for the personal circumstances  as  was  recognised  by  the  Judge  is  appropriate.    I  then  apply  a reduction of a further four months (as fixed by the Judge) for the guilty plea. That leads to an end sentence of 15 months.

[14]     The difference between 20 months fixed by the Judge and 15 that I have arrived at by the above process is material.  In the circumstances it has to be said 20 months was manifestly excessive.   The appeal is allowed.   The sentence of 20 months’ imprisonment is quashed and replaced by a sentence of 15 months’ imprisonment on the lead charge.  On the other charges the sentence of nine months concurrently are quashed and replaced with sentences of eight months in each case.

The order for reparation is unaffected.

Venning J