Ford v Police
[2024] NZHC 873
•11 April 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-12
[2024] NZHC 873
BETWEEN TUA WONDI FORD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 April 2024 Appearances:
T Walsh for the Appellant
L Glaser for the Respondent
Judgment:
11 April 2024
Reissued:
7 May 2024
ORAL JUDGMENT OF BECROFT J
[As to appeal against sentence]
Solicitors/Counsel:
Hamilton Legal, Hamilton
G Walsh, Barrister, Hamilton
FORD v NEW ZEALAND POLICE [2024] NZHC [873] [11 April 2024]
The appeal
[1] Tua Ford pleaded guilty to three family violence-related charges, all involving the same victim. There was a charge of assault on a person in a family relationship.1 Then later in the same day, another charge of assault on a person in a family relationship,2 and a charge of indecent assault.3
[2] Mr Ford appeals against the end sentence of two years three months’ imprisonment imposed by Judge AIM Tompkins in the Hamilton District Court on 27 February 2024.
[3] The grounds for the appeal, succinctly and persuasively advanced by Mr Walsh are two-fold:
(a)firstly, that the Judge’s starting point was too high, which has consequently led to an end sentence that is manifestly excessive; and
(b)secondly, that there was insufficient allowance for Mr Ford’s guilty plea.
Facts
[4] The facts reveal a nasty set of incidents. Mr Ford has been in an “on-and-off again”, and sometimes volatile, relationship with the victim [REDACTED]. The couple have [REDACTED] children. He has been violent towards the victim previously.
[5]At the time of this incident, they lived apart [REDACTED].
[6] After falling asleep one Saturday evening, the victim, who was alone at her home address, was awoken at about 3.00 am the next morning when Mr Ford walked into her bedroom. He tried to hug her and attempted to take off her pants by pulling
1 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
2 Section 194A; maximum penalty two years’ imprisonment.
3 Section 135; maximum penalty seven years’ imprisonment.
them down from her waist. The victim repeated that he was to “get out” as she was tired and she “did not want to”. Mr Ford then grabbed the victim’s trousers with both hands and pulled all three of her pants down exposing her underwear. His intentions were plain.
[7] Angered by her response, Mr Ford grabbed the victim by the leg, pulled her off the bed and onto the floor, standing over her. He then hit her hard to the face with an open hand and full force. I have seen pictures of the victim’s mouth and gum and there is a significant internal laceration.
[8] The victim got to her feet and Mr Ford punched her in the arms, stomach, and thigh with a closed fist—using a “right-left, right-left” punching combination. Mr Ford then followed the victim, picked her up and slammed her on the floor as she attempted to walk away. This caused her to suffer a medical event, suspected to be an epileptic seizure. An ambulance was called, and the victim was taken to Waikato Hospital.
[9] While in hospital, Mr Ford continued to poke the victim in the face— attempting to wake her. Mr Ford then proceeded to rub the victim’s genitals over her pants and demanded that he have sexual intercourse with her. She declined. Hospital staff became concerned, and the police were phoned. Mr Ford was arrested and removed from the hospital.
Previous convictions
[10] It is worth noting, with respect to Mr Ford, that he is no stranger to this type of offending. Indeed, since 2006, he has 25 separate convictions for violence-related offending in what appear to be 17 separate incidents—12 of which are specifically described or annotated as being family violence offending.
[11] In December 2022, for instance, he was convicted of assault with intent to injure and threatening to kill, apparently in respect of this same victim. He was, at that stage, sentenced to imprisonment.
[12] It would be realistic to observe that there has been regular, patterned and repeat family and domestic violence-related offending for the last 15–18 years. It is also fair to observe that Mr Ford has simply “not been getting the message”.
[13] Mr Walsh is candid in his acceptance that an end sentence of fulltime imprisonment is inevitable. He simply contends that the end sentence of 27 months is manifestly excessive.
District Court sentencing
[14] Judge Tompkins’ sentencing was succinct. He identified a starting point of 24 months’ imprisonment for both charges of assault. He emphasised the aggravating features of victim vulnerability especially given the admitted disparity in strength, size, and height. And that the first assault was serious and sustained. The Judge had regard to the fact that Mr Ford had at least three previous violent convictions which relate to the same victim. I infer that his Honour had regard to that offending in arriving at the 24 months’ starting point, although he did not mention it.
[15] The Judge applied a three-month credit of 12.5 per cent for the guilty plea, resulting in an end point of 21 months’ imprisonment. He then added a cumulative six months’ term of imprisonment for the indecent assault, resulting in an end sentence of 27 months’ imprisonment.
Approach on appeal
[16] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[17]In any other case, the Court must dismiss the appeal.4
[18] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:5
[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.
[19] The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau v R:6
It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[20] Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.
[21] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.7 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.8
Sentence construction
[22] It is accepted by the Crown that this was not what might be called a copybook sentence construction by the learned Judge. I mean no criticism when I say that. The
4 Criminal Procedure Act 2011, s 250(3).
5 Campbell v R [2022] NZCA 579 (footnotes omitted).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
7 R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].
8 Polyanszky v R [2011] NZCA 4 at [17].
sentencing must be understood as taking place in the context of a busy District Court list.
[23] It is accepted that the totality principle applies. That is unquestionable. The difficulty with the Judge’s construction is that he has subtracted the 12.5 per cent for the guilty pleas from only the two assault charges. He has then uplifted the sentence by a further six months for the indecent assault charge, but that separate term of imprisonment did not have the guilty plea applied to it.
[24] Also, it would have been preferable, in the interests of transparency, for the Judge to make a specific uplift for the previous convictions rather than (as I infer) having factored them into the general starting point for the two assault charges.
[25] It has also emerged during argument that Mr Ford was on bail at the time of this offending for a violence-related offence, which was resolved with a subsequent guilty plea to a lesser common assault charge. This was apparently unknown to the sentencing Judge.
[26] Given those concerns, I accept that the sentencing process should be approached afresh. Mr Walsh has persuasively convinced me that this step is necessary.
“Starting point” too high?
[27] As for the first assault charge, it was clearly serious. It involved a full force hit to the victim’s face from a man who is described as “significantly bigger and stronger” than what I understand to be the relatively diminutive victim.9 Four punches with full force were then applied. If that were not bad enough, Mr Ford has then slammed the victim onto the floor before she has suffered a serious medical event.
9 The comments in the pre-sentence report dated 27 January 2024 are agreed to accurately describe this imbalance. [REDACTED].
[28] There are no tariff cases for male assault female. Cases that have been referred to me in argument include, by Mr Walsh, Hopa v R and Kelly v R,10, and by Ms Glaser, for the Crown, particularly the case of Bolton v Police, and Edwards v Police.11 All those cases show that every case is fact specific, depends on its own circumstances, and there are a variety of different permutations of aggravating features.
[29] The short answer here is that I agree with Ms Glaser that when the first assault is considered, a starting point of about 15 months must have been appropriate. Mr Walsh, indeed, advanced a 14-month starting point.
[30] The second assault at the hospital was nowhere near the serious end of the range, but it was unnecessary in respect of someone who was recovering from a medical event and unjustified, even if it was to “wake her up”. A further three months or so, (Mr Walsh said two months), is justified. That would make a sentence of 18 months or so for the two assault charges.
[31] There must be a discrete, cumulative sentence for the indecent assault charge. Here the victim could legitimately have expected safety, comfort and peace while recovering in hospital. Instead, Mr Ford treated her with disregard and appeared intent on furthering his own sexual desires already evidenced (and rejected) by his behaviour back at the victim’s house.
[32] Those factors aggravate what would otherwise have been an indecent assault towards the moderate or lower end of the scale. In my view, applying the totality principle, at least a further six months was justified. That would have resulted in a 24 month “starting point”. This was less than the Judge imposed, but by using what counsel agreed was the correct approach, the end sentence, as I will discuss, is still very similar.
10 Hopa v R [2023] NZCA 320, and Kelly v R [2018] NZCA 347.
11 Bolton v Police [2016] NZHC 1297, and Edwards v Police [2019] NZHC 932.
Guilty plea allowance
[33] As to the guilty plea allowance, it is worth noting the offending occurred on 29 July 2023. There was a first Court appearance on 31 July 2023. There was a case review hearing on 26 September 2023. On 25 October 2023, a defended hearing date was set for January 2024. At some stage during this period, pragmatic negotiations took place whereby the charges against Mr Ford were significantly reduced. One indecent assault charge was withdrawn. On 28 November 2023, he entered guilty pleas to these amended charges.12
[34] Mr Walsh was most responsible in accepting that he could not claim a full discount given the length of time before guilty pleas were entered but, nevertheless, submitted a 20 per cent reduction was justified.
[35] In all the circumstances, in my view, on appeal, the most that could be allowed would be 15 per cent. If that figure is deducted from the 24-month starting point, it equates to 3.6 months, at which point I would be prepared to round down to 20 months.13
End sentence
[36] That is not the end of the matter because there should be uplifts both for the very significant previous offending and the fact that this offending took place while on bail for violent offending. On appeal, in particular, those uplifts should be modest.
[37] Ms Glaser advocated for six months for the previous convictions, effectively 25 per cent from the starting point plus a further, at least three months, for the offending while on bail. Unsurprisingly, Mr Walsh advocated for a much more modest level, perhaps of three months for the previous convictions. It is fair to say that he had not even realised that there had been offending on bail. Neither had the police and neither was that matter put before the Judge. But it cannot be ignored on appeal.
12 Agreement was reached as to that course of action on 8 November 2023.
13 Rather than set the allowance at 20.4 months, in fairness to Mr Ford, it should be two years.
[38] Taking what is a restrained approach, a combined uplift for both those factors of about six months would be appropriate. This could be comprised of four months for the very significant previous conviction and two months for the offending while on bail. That would result in an end sentence of 26 months’ imprisonment, as opposed to the 27 months imposed by the Judge. On Ms Glaser’s approach, the sentence should have been higher. She advocated for a final sentence of 28 months, comprising a 20- month sentence uplifted by eight months.
[39] In undertaking this exercise, I observe that it could be approached in different ways—with a higher or lower starting point for the violent offending, and then a higher or lower starting point for the indecent assault. As this is an appeal, it is preferable to take starting points that are moderate. And “totality” must be reflected. Whatever the individual permutations, a 24-month starting point for the three offences is perfectly justified.
[40] The short answer is all this goes to show that, when the usual sentencing methodology is applied, the result is generally similar to the end sentence applied by the Judge. For me to reduce it by one or two months, or even increase it for that matter, would simply be “tinkering”. In saying that, I do not underestimate the effect of even a month’s less imprisonment on a defendant. But, here, the sentence imposed on Mr Ford, as I stand back and look at it as a whole, is not manifestly excessive. Ms Glaser described it as “stern but within the range available to the learned Judge”. I accept that assessment. It follows that I do not accept Mr Walsh’s careful submission that this sentence was simply beyond any reasonable range. Nor do I accept that the end sentence should have been about 18 months.
Conclusion
[41] This was significant, serious offending in respect of a vulnerable woman which at least caused indirectly her hospitalisation—where two further offences were committed, by a man who has had a patterned, systematic, and regular resort to serious domestic violence for at least 15 years, most recently all involving this very victim. There was a need for a strong deterrent sentence which emphasised denunciation and accountability. Violence in the context of intimate family relationships is always
totally unacceptable. It must be taken seriously, and in my view, there are no grounds here to suggest the Judge was in error or that the sentence was manifestly excessive.
[42]I therefore conclude that this appeal must be and is dismissed.
Becroft J
0
7
0