Hepi v Police

[2013] NZHC 2690

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-29 [2013] NZHC 2690

BETWEEN

ANGELA MILLY HEPI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 October 2013
Counsel:	WT Nabney for Appellant JJ Rhodes for Respondent
Judgment:	16 October 2013

JUDGMENT OF BREWER J

Solicitors/Counsel:             WT Nabney (Tauranga) for Appellant

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

HEPI v POLICE [2013] NZHC 2690 [16 October 2013]

[1] Ms Hepi appeals her sentence of three years’ imprisonment handed down against her in  the  District  Court  at  Tauranga  on  6  September  2013  by  Judge IB Thomas. The sentence was in response to a charge set out in the information to which the appellant pleaded guilty of wounding with reckless disregard for the safety of others.  This is an offence pursuant to s 188(2) of the Crimes Act 1961 and carries a maximum term of imprisonment of seven years.

[2] The fact situation to which the District Court Judge had to have regard can be summarised shortly.

[3] The appellant and her partner of 16 years had had a tempestuous domestic relationship. On the evening in question, they were again arguing. The partner had his back to the appellant. Without warning, the appellant picked up a 33 cm long carving knife, walked up behind him and stabbed him in the right side of his neck. Upon being stabbed, her partner turned towards the appellant and received another wound on his left hand. The appellant then left the address. The partner was airlifted to hospital for treatment.

[4] The injury received by the partner to his neck is described as a 1.5 cm horizontal laceration deep to fascia, paraspinal muscles; branch of right occipital artery, actively bleeding with 100% division. There was a laceration to the left hand which required repair of the left superficial radial nerve.

[5]    The pre-sentence report identified that the appellant is a mature woman of 47 years. She has a limited history of previous offending which is restricted to driving offences. In reality, she is a first time offender. The compiler of the pre- sentence report assessed the likelihood of the appellant re-offending as being low. The report cited her evident remorse and steps that she was taking to address her problem with alcohol. The report also mentioned that she had suffered  from postnatal depression. Today, Mr Nabney for the appellant tells me that the materials before the District Court Judge were 18 months old insofar as the postnatal depression is concerned. None of the material linked the postnatal depression to the attack by the appellant on her partner.

[6] The pre-sentence report recommended home detention. It was noted that the appellant has the care of two very young children.

[7] The appellant’s partner, Mr Wairepo, expressed his views in his victim impact statement. He reports on his injuries but he does not want the family relationship to be shattered. He says:

For me the best thing that could come out of this would be individual counselling for myself and partner, with a move towards couple and family counselling.

I don’t want to let this incident affect our family any more than it already has.

My relationship with my partner and children is a priority of my life.

For me, I would like the Judge to consider a sentence involving counselling and family support. I want our family to be together but I realise we need help to achieve this.

In sentencing my partner, the Judge will be sentencing me and my whole family.

[8] I come now to the nub of this appeal. At the sentencing, the District Court Judge and counsel for the Crown and the appellant considered that the well known case of R v Nuku applied to the present situation.1 Therefore, the contest between the parties centred on which band of Nuku the factual circumstances fitted. The District Court Judge considered that he was required to take a starting point of five years’ imprisonment. He then reduced that sentence by 40%.  This discount was made up of 25% for the early guilty plea, 5% to take account of the appellant’s remorse and previous good character, and 10% to take account of her history of depression and

also the turbulent domestic history. It was on this basis that the end sentence of three years’ imprisonment was reached.

[9] In the written submissions filed on this appeal, Mr Nabney for the appellant again addresses the bands in Nuku and argues that the District Court Judge adopted too high a starting point and failed in particular to give sufficient discount for the factor of postnatal depression. The submissions by the respondent incorrectly identified the charge under consideration as wounding with intent to injure.   The

1       R v Nuku [2013] 2 NZLR 39; (2012) 26 CRNZ 106.

submissions  then  addressed  the  appropriate  place  of  the  case  within  the  Nuku

framework.

[10] Initially, the appellant was charged with wounding with intent  to  cause grievous bodily harm. This was a charge under s 188(1) of the Crimes Act and it carries a maximum term of imprisonment of 14 years. However, due to a plea bargain, the Police reduced the charge to one under s 188(2) of the Crimes Act. Had the Police charged wounding with intent to injure under that section, the manner in which the sentencing in the District Court was conducted would have been appropriate. If that had been the charge then the submissions by counsel on this appeal would also have been appropriate.

[11] But the Police did not charge wounding with intent to injure. Instead, the charge was wounding with reckless disregard. That has a very different element of intent. This is recognised by the Court of Appeal in Nuku. At [37] of the judgment, the Court of Appeal states that it will replace an earlier decision of the Court (Harris) with guidance which will be applicable, inter alia, to offending under s 188(2). However, in footnote 39 which follows that decision, the Court of Appeal states:

Other  considerations  are  likely  to  arise  where  the  mens  rea  is  reckless disregard for the safety of others, so we do not comment on those cases.

[12] The point is this. The gravamen of a charge of wounding with reckless disregard to the safety of others is that the offender must be taken to have had an actual and conscious appreciation of the danger of her actions to the safety of others and with that actual and conscious appreciation proceeded with her actions regardless of the risk to the safety of others. Therefore, I have to approach this appeal on the basis that the appellant did not have an actual intention to wound her partner.

[13] There are cases which address the offence with which the appellant has been charged. They are different in their facts, as is usually the case, but they do show the range which the Courts have adopted. There are two recent cases which, in my view, are perhaps of lesser seriousness than the present case because no weapon was used.

In Macdonald v Police,2 the appellant punched the victim in the head and was charged with wounding with reckless disregard for safety. The blow could have been lethal. The victim was knocked unconscious and left with a fractured skull, a blown eardrum and a brain haemorrhage. Priestley J upheld the District Court Judge’s starting point of two-and-a-half years. He noted that the appellant was drunk, was in breach of a parole condition prohibiting him from drinking alcohol, the assault was unprovoked, the victim was vulnerable, and the blow had been to the victim’s head and caused serious injuries.

[14] In Brooking v Police,3 the appellant was punching his partner when the victim tried to intervene. The appellant then punched the victim in the face, causing her to partially lose consciousness. Her eye was lacerated, her glasses smashed, and she sustained abrasions and bruising to her left forearm. The appellant was charged with wounding with reckless disregard for safety. The District Court Judge chose a starting point of two years four months. Fogarty J, on appeal, considered that a starting point of two years would be appropriate but he did not disturb the sentence.

[15]  I now look at two cases which I think are more serious than the present one. In Grimshaw-Jones v R,4 the appellant was convicted on two counts of wounding with reckless disregard and one count of male assaults female. In response to an alleged attack on his girlfriend, the appellant slapped the female victim across the face. He then cut her jugular vein with a switch knife which required three stitches and inflicted a 10 cm cut across her neck. He also attacked a male who received a cut along his jaw which was 11 cm long and 2 cm deep and required 24 stitches. The

Judge settled on a starting  point of two years eight months. He identified as aggravating features the fact a weapon was used and taken to the scene, that the attacks were to the victims’ heads and that there was a degree of premeditation. The Court of Appeal described this starting point as “by no means excessive”. I take it to be an outlier and that the starting point was at the lowest end of the range available.

2       Macdonald v Police [2012] NZHC 1767.

3       Brooking v Police [2012] NZHC 3219.

4       Grimshaw-Jones v R [2010] NZCA 490.

[16] In Middlemiss v Police,5 the appellant was convicted of causing grievous bodily harm with reckless disregard. At a party, the appellant became  hostile towards her former partner, the victim, for flirting. She picked up a boning knife from a table and drove it into the victim’s stomach. He required surgery for a perforated bowel and was hospitalised for three weeks. The sentencing Judge noted three aggravating factors – the seriousness of the injury; use of a lethal weapon; and offending in a domestic situation. He settled on a starting point of three years. This starting point was upheld on appeal.

[17]   Coming to this case, I consider that the degree of recklessness must be taken to be very high. There was a deliberate approach to the victim with a knife which had been picked up for the purpose of whatever it was that the appellant intended. The use to which she put the knife was very dangerous and resulted in significant injury. The partner suffered not one but two injuries. A period of hospitalisation was required. Standing back and looking at the overall circumstances of the case, I consider that a start point of three years’ imprisonment is justified.

[18] I now turn to the mitigating factors personal to the appellant. First, I cannot elevate the appellant’s postnatal depression to the extent that Mr Nabney submits. There have been cases where mental health issues, particularly depression, have had a major mitigating effect on sentences. But they have been situations where there has been an identified causal link between the mental health difficulty and the offending. No such link has been raised in this case.6

[19] Overall, it seems to me that the 40% discount that the District Court Judge gave for the personal factors and the early plea of guilty to the amended charge is not only realistic but generous. I will adopt it. Applying the 40% discount to the starting point of three years’ imprisonment yields an end sentence of one year and 10 months.

[20] I now have to consider whether, as recommended in the pre-sentence report, a sentence of home detention should be substituted for the short term of imprisonment

5       Middlemiss v Police HC Dunedin CRI-2009-412-38, 11 February 2010.

6       In contrast to the situation in this case: E v R [2010] NZCA 13; R v Dick [2001] BCL 800 (CA);

R v Gordon CA276/04, 16 December 2004.

which I would otherwise impose. I have come to the conclusion that home detention is appropriate. My reasons are:

(a)The attack by the appellant on her partner is accepted to have been out of character. I treat her as effectively a first offender.

(b)There is no doubt that the appellant is genuinely remorseful and that she is seeking counselling to address underlying problems.

(c)The appellant is the mother of two young children who need her care and guidance.

(d)The victim, Mr Wairepo, is very keen to see his family unit preserved. His wishes in a situation like this should be given effect if possible.

(e)A sentence of home detention is not an easy option devoid of denunciation and deterrence.

[21] I am advised by Mr Nabney that the address identified in the pre-sentence report is still available. One snag is that it is the family home and it is still occupied by Mr Wairepo. However, Mr Wairepo is in Court and has advised Mr Nabney that he is able to vacate the address forthwith. Obviously it would not be wise for Mr Wairepo to continue to occupy the house at which his partner is serving a term of home detention.

[22] I allow the appeal. The sentence of three years’ imprisonment is quashed. I substitute a sentence of 10 months’ home detention to take into account the fact that the appellant has been in custody since 6 September 2013. The following conditions will apply to the sentence of home detention:

(a)The sentence will not commence until the Police have confirmed to the authorities holding the appellant in custody that Mr Wairepo has moved out of the home detention address.

(b)Upon her release, the appellant is to travel directly to 8 Doncaster Drive, Papamoa and await the arrival of a probation officer and a security officer.

(c)The appellant is to reside at 8 Doncaster Drive, Papamoa for the duration of her sentence.

(d)The appellant is not to purchase, possess or consume alcohol and/or illicit drugs for the duration of the term of home detention.

(e)The appellant is to undertake such family and/or parental responsibilities as negotiated with and approved by a probation officer.

(f)The appellant is to report to a probation officer as directed.

(g)The appellant is to undertake alcohol and other drug assessment and complete any recommended counselling or treatment for abuse of alcohol and other drugs to the satisfaction of the probation officer and programme provider.

(h)If required by a probation officer, the appellant is to undertake a pre- programme interview and complete any Departmental programme, subject to availability, to the satisfaction of the probation officer and programme facilitator.

(i)The appellant is to attend and complete any such counselling / programme / treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.

[23]     A post-detention condition will apply as follows:

(a)The appellant will undertake and complete any  remaining rehabilitative programme, counselling, treatment and maintenance follow-up programme as directed by the probation officer.

Brewer J