Haeata v Police

[2019] NZHC 3268

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-2539

[2019] NZHC 3268

IN THE MATTER

of Section 200 of the Criminal Procedure Act 2011

BETWEEN

RENEE CHAZ HAEATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 December 2019
Appearances:	R J Bayer for the Appellant N I Burt for the Respondent
Judgment:	11 December 2019

JUDGMENT OF COOKE J

[1]    On 6 November 2019 Mr Haeata was sentenced by Judge Tompkins in the District Court at Hutt Valley to 18 months’ imprisonment for one charge of assault with intent to injure following the entry of a guilty plea.1 The sentence was to be served cumulatively with an existing term of imprisonment of seven years for sexual offending.

[2]    Mr Haeata appeals his sentence on the grounds the starting point adopted by the District Court Judge was too high and that the end sentence was manifestly excessive. The Crown acknowledges the starting point adopted by the Judge was at the higher end of the available range, but given the aggravating features of the offending submits the starting point was appropriate.

1      New Zealand Police v Haeta [2019] NZDC 22101, Crimes Act 1961, s 193, maximum penalty three years’ imprisonment.

HAEATA v NEW ZEALAND POLICE [2019] NZHC 3268 [11 December 2019]

Factual background

[3]    Mr Haeata was serving a sentence at Rimutaka Prison when the incident occurred. At the time of the offending he was only 20 years old. The victim is a Corrections officer.

[4]    At approximately 1.30 pm on 6 January 2019 Mr Haeata was on the ground floor of Rimutaka prison. Two Corrections officers were moving property belonging to Mr Haeata’s cellmate from their shared cell to another. Mr Haeata ran upstairs and attempted to prevent the officers from moving the property. The victim intervened and tried to take the property back from the defendant. It is apparent a scuffle ensued. The victim called out for help. Mr Haeata then took out a makeshift weapon from his pocket — a sock with two pool balls placed inside it. He began to swing the sock around aggressively. He advanced towards the victim and forcefully struck the victim on the head with the sock. The officers deployed pepper spray and Mr Haeata was restrained by other Corrections staff.

[5]    The victim has explained the impact upon him in a victim impact statement, including the continuing effects the assault have had upon him.

District Court decision

[6]    After outlining the facts, the Judge noted the decision was governed by the decision in R v Nuku. He considered the following features of the offending aggravated: that there was an element of premeditation because Mr Haeata chose to arm himself with the makeshift weapon; the attack was to the head, and the attack was on a prison officer in the course of fulfilling their duties. The Judge considered those factors placed the offending in the second band, and adopted a starting point of two years’ imprisonment. After discounting 25 per cent for entry of guilty plea, that calculated to an end sentence of 18 months’ imprisonment.

Approach to appeal

[7]    This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the 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.

[8]    A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.2 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.3

Analysis

[9]    Ms Bayer for Mr Haeata submits the Judge erred in applying the Nuku bands without adjusting the starting point to reflect the fact that Mr Haeata was charged with assault with intent to injure.

[10]   Nuku v R provides guidance as to the application of R v Taueki to lesser charges where the offending involves an intent to injure.4 The Court of Appeal stated that the decision was applicable to offending under ss 189(2), 188(2) and 191(2) where the offending involves intent to injure. The Court set out the following sentencing bands:5

Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31]     of Taueki are present.

Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will

2      B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].

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

4      Nuku v R [2012] NZCA 584, [2013] NZFLR 39; and R v Taueki [2005] NZCA 174, [2005] 3 NZLR

372.

5      Nuku v R, above n 4, at [38].

generally require a starting point within band three, even if there are few other aggravating features.

[11]   The Court of Appeal stated that the decision was applicable to offending under ss 189(2) (injuring with intent to injure), 188(2) (wounding with intent to injure) and 191(2) (injuring with intent to facilitate commission of a crime).6 The Court of Appeal in Tamihana v R held that the principles discussed in Nuku are helpful in sentencing under s 193 as the offence involves the same mental element.7 That was notwithstanding Nuku focuses on different offences with higher maximum sentences.8 Section 193 attracts a maximum penalty of three years’ imprisonment. The offences identified in Nuku attract maximum penalties ranging from five to seven years’ imprisonment.

[12]   Recent High Court decisions have noted that when Nuku is applied to offences under s 193 allowance must be made to reflect the shorter maximum period of imprisonment for assault with intent to injure.9 Most recently in Howes v Police Jagose J discussed the approach to sentencing bands for s 193:

[10] …. In essence, where there are few aggravating factors or only low- level violence, a non-custodial sentence may be appropriate. Three or fewer aggravating factors would attract a start point no higher than about 45% of the maximum sentence; three or more in serious combination would require a start point from about 30% “and up”.

[13]   In Taueki the Court of Appeal cautioned against adopting a “mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty”.10 So whilst some adjustment to the sentencing bands is necessary to reflect the lower maximum penalty, a flexible approach is appropriate.

[14]   I accept that the District Court Judge applied the Nuku bands without addressing how those bands should be applied when the lesser charge of assault with

6 At [37].

7      Tamihana v R [2015] NZCA 169 at [16].

8 At [16].

9      Merrill v New Zealand Police [2016] NZHC 2140 at [25]; and Howes v New Zealand Police

[2019] NZHC 1841.

10     R v Taueki, above n 4, at [8], citing R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison

[2007] NZCA 78 at [23]; and R v D (CA253/08) [2008] NZCA 267 at [43].

intent to injure was involved. This means that it is important to address whether the starting point was inappropriate for this type of offending. The ultimate question is whether the starting point, and therefore the end sentence was manifestly excessive, rather than the precise process by which it was reached.

[15]   Ms Bayer submits a starting point in the range of 9 to 12 months was appropriate (approximately at the start of band two of Nuku). She submits there were three aggravating features of the offending: use of a weapon; assault on a prison officer, and attack to the head. Ms Burt for the Crown submits the offending sits at the upper end of band two and close to band three. She identifies six aggravating features: attack to the head; serious injury; a degree of premeditation; use of a weapon; the fact the attack only ceased when the appellant was sprayed with pepper spray and restrained, and assault on a public official.

[16]   In common with the District Court Judge, in my view Mr Haeata’s offending falls in band two of the bands set out in Nuku. The offending involved the following Taueki aggravating factors:

(a)Attacking the head: Mr Haeata aimed and swung the makeshift weapon at the victim’s head. I also note that the attack caused injury, albeit not such that would warrant them being treated as a separate aggravating factor.

(b)Use of a weapon: The weapon used was two pool balls in a sock. That is a blunt and heavy instrument which can cause serious damage when aimed at the head. The summary of facts records Mr Haeata began to swing while standing approximately one meter away from the victim before advancing towards him and striking him on the head, indicating a significant degree of force was used.

(c)Public official victim: The victim was a prison officer who was attacked in the course of carrying out his duties. That is a serious additional aggravating factor.11

11     R v Taueki, above n 4, at [31](l).

[17]   While not a Taueki factor, I also consider it aggravating that the offending occurred while Mr Haeata was serving a sentence of imprisonment.12 The fact that Mr Haeata was carrying the weapon with him also indicates a degree of premeditation towards violence. He was also pepper sprayed to prevent continuation of the assault. Although each of these last two factors by themselves may not be independent aggravating factors, they both add to the seriousness of the offence.

[18]   In supporting the sentence Ms Burt relied on Gillies v R where the offender was charged with injuring with intent to injure, and assault.13 The injuring charge arose from an incident in custody. The offender was angry he was unable to have a phone call at the time requested and hit a clipboard out of a prison officer’s hands. He then punched the officer twice in the head, causing him to fall unconscious and collapse to the ground. The District Court adopted a three year starting point. The decision was upheld on appeal.

[19]   Ms Bayer relied on other cases which she said demonstrated that the starting point, and end sentence was manifestly excessive. In Kepu v Police there had been a serious assault of an inmate by fellow inmates, including the defendant, which had involved stabbing and the charge of wounding with intent to injure.14 A starting point of 15 months had been adopted, although the High Court described that as lenient. In Tamihana v R itself a starting point of 18 months in relation to an assault with intent to injure in a bar involving kicking and punches to the head was held to be manifestly excessive and 12 months was substituted.15

[20]   The fact that Mr Haeaka’s offending involved a makeshift weapon, attacks to the head, and that the assault was on a prison officer are significant aggravating factors. But the offending in Kepu v Police seems to me to be decidedly more serious, although it could have warranted a higher starting point. In the circumstances of this case an 18 months starting point would have been appropriate.

12 Lake v R [2017] NZCA 39 at [7]; Tryselaar v R [2012] NZCA 353 at [18]; Pulete v R  [2013] NZCA 216 at [28]; Karetu v R [2013] NZCA 408 at [18]–[19]; and Kepu v R [2011] NZCA 104 at [18]–[19].

13     Gillies v R [2014] NZCA 115.

14     Kepu v Police [2016] NZHC 2410.

15     Tamihana v R, above n 7.

[21]   There is a further factor in assessing whether the sentence was manifestly excessive. At the time of the offending Mr Haeata was only 20 years of age, and his offending appears to have had an impulsive element. In addition the sentence will need to be cumulative, and adds to an already long sentence being served by a young person. In those circumstances a modest discount of approximately 10 per cent for youth may have been appropriate.16 Taking into account the 25 per cent discount for the guilty plea, and an additional discount for youth of that order, it seems to me that a total end sentence of 12 months’ imprisonment was appropriate.

[22]   In these circumstances a sentence of 18 months’ imprisonment was manifestly excessive. Accordingly the appeal is allowed and a sentence of 18 months’ imprisonment is substituted with a sentence of 12 months’ imprisonment to be served cumulatively on Mr Haeata’s existing sentence of imprisonment.

Cooke J

Solicitors:

Thomas Dewar Sziranyi Letter, Lower Hutt for Appellant Crown Law, Wellington for Respondent

16     See Rolleston v R [2018] NZCA 611.