Hohua v Police

[2018] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2018-485-70

[2018] NZHC 3175

BETWEEN

DAVID HARLEY HOHUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 November 2018
Counsel:	B A Crowley and Z Meehan for appellant M A Shaw for respondent
Judgment:	4 December 2018

RESERVED JUDGMENT OF DOBSON J

[1]    On 20 August 2018, the appellant (Mr Hohua) was sentenced in the District Court at Hutt Valley on a range of convictions for burglary, receiving, failing to answer bail, assault with a weapon and male assaults female, breaches of intensive supervision, possession of cannabis and a drug-related utensil, dangerous driving, aggravated failing to stop and driving whilst forbidden.

[2]    The end sentence was 27 months’ imprisonment. Mr Hohua has appealed against the sentence on the ground that the Judge adopted too high a starting point for one group of domestic violence offences, which resulted in the end sentence being manifestly excessive.

HOHUA v POLICE [2018] NZHC 3175 [4 December 2018]

The circumstances of the offending

[3]    In November 2017, Mr Hohua was on electronically monitored (EM) bail for dishonesty offending for which he had earlier been charged and remanded. He was also  serving  a  community  detention  sentence.  In  the  course  of  an  argument, Mr Hohua’s partner threatened to pull out the electric cord of the phone unit that monitored his EM bail device. She then duly carried out that threat.

[4]    Mr Hohua’s response was  to  throw  the  GPS  phone  unit  related  to  his EM bracelet at his partner. The phone bounced on her head and hit the stomach of a second victim, his partner’s sister, who was pregnant. Mr Hohua then grabbed his partner and dragged her by the hair, pulling her hair back violently so she was on her knees, and repeatedly punched her in the head. In the course of this attack, when drawing his arm back he elbowed the second victim in the stomach. He then kicked his partner twice in the head, resulting in a split to the back of her head. The second victim was referred to and monitored at a maternity ward.

[5]    The domestic violence resulted in two charges of assault with a weapon. On arrest, Mr Hohua was remanded in custody, with the result that the community detention sentence was suspended. He was subsequently granted bail, enabling him to resume the community detention sentence.

[6]    One of the assault with a weapon charges was subsequently amended to male assaults female. In February 2018, Mr Hohua entered guilty pleas to all of his outstanding charges.

[7]    For reasons not attributable to Mr Hohua, his sentencing on these charges was delayed until 20 August 2018. By then, he had been charged on 6 August 2018 with further domestic violence offending, plus driving offences and possession of a class C drug and utensils. At the time of the sentencing on 20 August 2018 to which this appeal relates, he had pleaded not guilty to those further charges. They were subsequently resolved on 5 November 2018 when he was sentenced to a further term of four months’ imprisonment that was to be served concurrently with the prison sentence imposed on 20 August 2018.

The sentencing decision

[8]    In setting a starting point, Judge Black focused on the domestic violence charges as the most serious. The Judge adopted a starting point of 18 months’ imprisonment for the charge of assault with a weapon. He found that it fell within band two of Nuku v R,1 and identified four aggravating factors from the list in R v Taueki.2 Those aggravating factors were the use of a weapon, attack to the head, pre- meditation and vulnerability of the victim where a breach of trust was involved. It is this aspect of the sentencing analysis that is challenged on appeal.

[9]    Treating the burglary and other dishonesty convictions as sufficiently different offending to warrant a cumulative sentence, the Judge nominated a starting point of 16 months’ imprisonment cumulatively for a daytime residential burglary.

[10]   The Judge then calculated uplifts of one month each for male assaults female, unlawfully being in an enclosed yard, breach of intensive supervision, and the drug and driving offending. That provided an overall starting point for all the offending of 38 months’ imprisonment.

[11]   On the  totality  principle,  the  Judge  then  reduced  the  total  sentence  to  31 months, then added two months for the extent of previous convictions. The Judge noted that a further uplift could have been warranted for the offending having occurred whilst on bail awaiting sentence on other matters, but he declined to do so in the interests of totality. From that end point of 33 months, the Judge gave a credit for guilty pleas of 20 per cent or six months, resulting in the end sentence of 27 months’ imprisonment.

Arguments on appeal

[12]   Mr Meehan, who presented the submissions for Mr Hohua, argued that the  18 month starting point for assault with a weapon was too high. He submitted that Nuku requires not only an acknowledgement of the number of aggravating features, but an assessment of the seriousness with which each of them is present. Here, the

1      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

2      R v Taueki [2005] 3 NZLR 372 (CA).

throwing of the phone after Mr Hohua had been provoked by his partner arguably should not have been treated as an aggravating feature because the seriousness of the way in which the phone was used was sufficiently captured in the more serious form of the charge that was laid. In short, throwing the phone could not be likened to hitting a victim with a weapon such as a hammer, stick or bottle.

[13]   Mr Meehan also criticised the Judge for treating pre-meditation as an aggravating factor. The initial assault was certainly spontaneous and the only aspect that might involve a modest extent of pre-meditation was when Mr Hohua pulled the victim back inside the property when she was attempting to leave.

[14]   From the summary of events available, it does appear as if the successive aspects of the assault were conducted in the heat of the moment. Even pulling the victim back into the property seems likely to have been a snap decision on Mr Hohua’s part. Accordingly, I accept that pre-mediation is not an aggravating factor that could be given any material weight. The Judge did describe this factor as “a degree of pre- meditation”, but this was countered in his identifying four aggravating factors from Taueki. I do not consider that the narrative of events justifies attributing pre- meditation to an extent that aggravates the seriousness of the domestic violence.

[15]   Mr Meehan invited comparison with four other appeals where he characterised the level and circumstances of the domestic violence as being as serious, or more serious, than on the facts here. In those cases, starting points upheld or imposed on appeal ranged from 12 to 16 months’ imprisonment.3 Mr Meehan was realistic in acknowledging that Mr Hohua could not expect a substantial reduction in his end sentence. He submitted that the starting point for the domestic violence offending should come down to 12 to 14 months’ imprisonment (that is, by four to six months) or below.

[16]   For the respondent, Mr Shaw ranked the present offending as relatively more serious when compared with the features Mr Meehan had identified in the appeal judgments he cited. In particular, where Mr Meehan classified the offending in Harris

3      Mohib v Police [2017] NZHC 123; Edmondson v Police [2015] NZHC 3184; Harris v R [2017] NZHC 1404; and Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.

v R as being as serious, or more serious, than in the present case, Mr Shaw contended that the offending in Harris was less serious than in the present case.4

[17]   In considering appeals from sentencings involving domestic violence offending, the task in accurately calibrating the relative seriousness in one case when compared with a range of other sentencings can be challenging. There are, sadly, a large number of sentencings for such offending from which to choose. Accurately identifying a starting point in a range between, say, 14 and 20 months’ imprisonment may well be influenced by the terms in which sentencing notes reflect the tone of a summary of facts or, having presided at trial, the sentencing judge’s impression of the defendant’s conduct. Notwithstanding the risks in doing so, an important consideration on sentence appeals for this type of offending is the attempt to maintain consistency between starting points for offending of comparable levels of seriousness.

[18]   Harris involved an altercation between Ms Harris, who was a visitor in the premises where the attack occurred, and her host, who had provided an EFTPOS card which was declined when Ms Harris attempted to use it. She grabbed the victim by the hair, punched her five times in the head, and pushed the victim over which caused her to hit her head on a table. Ms Harris then kicked the victim six times in the head before calling her son into the room, who also kicked the victim in the head. Although it was not a case of domestic violence, I accept Mr Meehan’s submission that in assessing the relative seriousness, that is not a material distinction.

[19]   I agree with Mr Meehan that the offending here cannot be ranked as materially more serious than that in Harris. On appeal in Harris, Woolford J described the offending as gratuitous and serious, exacerbated by the presence of multiple offenders but being unplanned and not prolonged. He reduced the starting point from 22 months’ imprisonment to 16 months.

[20]   In Edmondson v Police,5 Peters J substituted a starting point of 18 months’ imprisonment with 14 months for domestic violence offending where the intoxicated defendant arrived at the victim’s house uninvited, pulled the victim’s hair and elbowed

4      Harris v R, above n 3.

5      Edmondson v Police, above n 3.

her in the eye with some force. Mr Edmondson went to the kitchen, returned with a knife and threatened to cut the victim’s throat if she called Police. She did call the Police, he bent her fingers back, then retrieved a carving fork from the kitchen and stabbed her in the lip.

[21]   Counsel disagreed on how the offending in Edmondson should be ranked, when compared with Mr Hohua’s violence. Mr Meehan treated Edmondson as more serious; Mr Shaw treated Mr Hohua’s offending as more serious. The comparison illustrates how difficult the evaluation of relevant features can be. The violence in Edmondson was pre-meditated and the two weapons involved were far more likely to cause serious harm. The gravity of the actual violence, however, was less, although a split to the back of the head and a cut lip are both material injuries. Mr Hohua’s offending is marginally more serious because it was prolonged and involved kicks to the head.

[22]   In Taingahue v Police,6 Miller J reduced the starting point from 18 months’ imprisonment to 12 months for assault with intent to injure. The offending comprised Mr Taingahue punching his wife in the face whilst they both sat in the car, punching her in the back of the head three times when she turned away, grabbing her hair and punching her several more times in the face. He then followed her out of the car, again grabbing her by the hair and pulling her to the ground. I consider this offending to be slightly less serious, mostly due to the presence of kicking in Mr Hohua’s case. I note that in Taingahue the charge was different and there was no weapon, but do not consider these matters materially alter the assessment of similarity.

[23]   In Mohib v Police,7 the defendant slapped the victim while watching a film and threatened that he would “finish this after the movie”. He subsequently made good on the threat by retrieving a hammer from another room and repeatedly hitting the victim with it in the head, arms and legs, during which time she begged for her life. That offending attracted a 15 month starting point, with a three month uplift for the initial slap. That sentence was not altered on appeal. That offending involved far more serious use of a weapon, and a meaningful extent of pre-meditation. Taken overall, it

6      Taingahue v Police, above n 3.

7      Mohib v Police, above n 3.

could be seen as slightly more serious, so that the present offending would attract a margin less than 18 months.

[24]   In ranking the seriousness of the domestic violence offending in Mr Hohua’s case, I accept that a starting point of 16 months’ imprisonment would have been sufficient and would fit within the comparison that can be made of the relative seriousness in those other cases.

[25]   Mr Meehan did not challenge any of the other components of the final starting point as constructed by the Judge. That approach is reasonable and there do not appear to be valid grounds for criticism. Accordingly, the challenge would result in a reduced total starting point from 38 to 36 months’ imprisonment.

[26]   In applying the totality principle, the Judge had made a reduction of seven months from his starting point of 38 months. Considering a reduction for the totality principle is governed by s 85(2) of the Sentencing Act 2002, which provides:

85        Court to consider totality of offending

…

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[27]   Such reductions involve an evaluative consideration of the gravity of the overall offending. If the length of one of the sentences to be served cumulatively is reduced, the same level of reduction for totality cannot automatically apply without reconsidering the gravity of the overall offending.

[28]   Mr Meehan accepted a fresh evaluative assessment would be required if he made out the appropriateness of a lower starting point for the domestic violence offending. On one view, if the Judge had erred in setting a starting point for the domestic violence offending, then it should be recognised that the Judge’s assessment of the appropriate totality reduction was also in error by the extent to which he attributed an excessive starting point for the domestic violence offending.

[29]   The appeal has real significance for Mr Hohua because a reduction of three or more months in the end sentence would bring the term to 24 months or less, which would constitute a short sentence of imprisonment. At that level, Mr Hohua would qualify for automatic release after serving one half of the sentence, rather than, as is presently the case, being dependent on an assessment of entitlement to parole.

[30]   In this case I do consider that it is appropriate to maintain the same extent of reduction for totality. That reduces the end sentence from 27 months to 25 months’ imprisonment. Such an outcome does not meet the aim of achieving a sentence of short duration. Further, it raises the question as to whether a reduction of two months in a sentence of 27 months should be ordered when it may be vulnerable to criticism as tinkering with a carefully constructed and relatively complex sentencing exercise that confronted the Judge.

[31]   In the end, I am satisfied that the appeal should succeed to the extent of reducing the component of the  sentence  for  the  domestic  violence  from  18  to  16 months’ imprisonment, and thereafter with all the same additions and reductions that were adopted by the sentencing Judge. Having constructed the sentences on the basis of cumulative terms for the burglary and other dishonesty offending, the Judge imposed a sentence of two years and three months’ imprisonment on the lead charge of assault with a weapon, with all  other sentences,  including that  for burglary of  16 months’ imprisonment, to be served concurrently.

[32]   Given that manner of dealing with it, the only alteration that is required is to quash the sentence of two years and three months’ imprisonment for assault with a weapon and substitute it with a sentence of two years and one month’s imprisonment. The sentences for all the remaining convictions are unchanged and all the sentences remain to be served concurrently.

[33]   By way of postscript, I note my discussion with counsel during the hearing about the possible relevance of the length of the sentence, which has been the subject of this appeal, to the District Court’s subsequent imposition of a further term of four months’ imprisonment, to be served concurrently. I am satisfied that the length of the sentence that has now been successfully appealed was not relevant to the outcome in

the subsequent sentencing.    That circumstance does not assume any relevance in resolving the present appeal.

Dobson J

Solicitors:

Public Defence Service, Wellington for appellant Crown Solicitor, Wellington for respondent