Hotu v Police

[2013] NZHC 229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000244 [2013] NZHC 229

HONE HOTU

v

NEW ZEALAND POLICE

Hearing:         18 February 2013

Counsel:         A Rasheed for the Appellant

K Snelgar for the Respondent

Judgment:      18 February 2013

JUDGMENT OF WOOLFORD J

Solicitors:

A a Rasheed, Auckland Defence Chambers, PO Box 97-057, Manukau City, Auckland. Crown Solicitor, Auckland.

HOTU V POLICE HC AK CRI-2012-404-000244 [18 February 2013]

Introduction

[1]      On  9  July  2012,  Mr  Hone  Hotu,  the  appellant,  pleaded  guilty  and  was sentenced  to  a  total  of  two  years  four  months’ imprisonment  on  the  following charges in the District Court:1

Offence  Section / Act            Maximum penalty

2 x Common assault          Summary Offences

Act 1981, s 9

6 months’ imprisonment,

$4000 fine

Threatening to kill            Crimes Act 1961, s

306(1)(a)

7 years’ imprisonment

Male assaults female          Crimes Act 1961, s

194(b)

2 years’ imprisonment

Assault with a weapon (knife)     Crimes Act 1961, s

202C

5 years’ imprisonment

Breach of a protection order      Domestic Violence

Act 1995, ss

19(1)(a) and

49(1)(a)

2 years’ imprisonment

2 x breach of conditions of supervision

Sentencing Act

2002, s 70(a)

3  months’  imprisonment,

$1000 fine.

Facts

[2]      On 16 October 2011, Mr Hotu saw a 15 year old youth walking through a reserve near Mr Hotu’s address.  Mr Hotu objected to the youth wearing a red t-shirt and approached him and asked him to remove the t-shirt.  As the youth complied, Mr Hotu punched him several times, causing him to fall on the ground.  Mr Hotu then kicked the youth while he was on the ground.   The youth received swelling above his right eye and scratches on his back.  This gave rise to one of the common assault charges.

[3]      The rest of the offending occurred on 9 December 2011.  On 8 March 2010 a protection order had been issued against Mr Hotu, which named Mr Hotu’s mother as the protected person.

[4]      On Friday 9 December 2011, Mr Hotu, his mother (who was four and half months’ pregnant at the time) and his partner (who was 8 months’ pregnant at the time),  were  at  an  address  in  Manurewa  along  with  two  other  family members. Mr Hotu was drinking alcohol with his mother and the two other family members.

[5]      Mr Hotu walked into a bedroom where his partner was lying on the bed.  He began yelling and swearing at her.  Mr Hotu then punched his partner a number of times in the head and face.  He also threw a cellphone and bag at his partner, both of which missed.

[6]      Mr Hotu’s partner left the room and went outside.  Mr Hotu walked into the kitchen, uplifted a knife and went outside to his partner.  He placed the knife under her throat and said “I’ll kill you and your family” several times.  His partner pushed Mr Hotu away.

[7]      Mr Hotu’s partner then went inside to the lounge.  Mr Hotu walked up to her and punched her in the head three times.  She then sat on the couch.  Mr Hotu again walked up to her.   He kicked her twice and punched her once in the head.   His partner turned away to protect her face and pregnant stomach and Mr Hotu kicked her in the back.  His partner then stood up and went to leave the lounge but Mr Hotu kicked her several times in the lower legs.  Mr Hotu then punched her approximately six times in the head.

[8]      Mr Hotu’s mother then walked into the lounge and tried to prevent Mr Hotu assaulting his partner.  Mr Hotu pushed his mother to the ground.

[9]      As a result of the assault, Mr Hotu’s partner received sustained bruising and swelling to her left cheek and behind her left ear, swelling to her forearm and bruising to her right calf muscle.  Mr Hotu’s mother received no injuries.

District Court decision

[10]     On 22 March 2012, Judge Bouchier gave Mr Hotu a sentencing indication.2

A starting point of 22 months imprisonment was identified for the lead offence of assault with a weapon, with a discount for the guilty plea bringing it down to 18 months imprisonment.  There would be no cumulative sentence and, accordingly, for the breach of supervision Mr Hotu would be convicted and discharged.   The total sentence given in the indication was therefore one of 18 months’ imprisonment.

[11]   However, written on the “Record Hearing Sheet” attached to the first information is recorded: “Sentence Indication given not accepted but G pleas entered anyway”.

[12]     The sentencing Judge, Judge McAuslan, thought that the charge in respect of the 15 year old youth was undercharged.  The victim was only 15 and Mr Hotu was apparently not alone because the youth, in his victim impact statement, talks about “guys” coming out of nowhere.  The youth said that Mr Hotu set his t-shirt on fire.

[13]     Judge McAuslan referred to the victim impact statements from Mr Hotu’s mother and partner.  His mother had to go to hospital to get checked out, but luckily there were no problems with the baby.

[14]     Judge McAuslan noted that Mr Hotu was only 20 years of age and had already accumulated a sizeable list of convictions.  The Judge said that alcohol was the catalyst for this offending and noted that a community alcohol and drug programme completed by Mr Hotu in 2009 had had no lasting benefit.  She noted that Mr Hotu often relapsed into heavy drinking and struggled to manage his anger and alcohol use.

[15]     Judge McAuslan said the s 9 assault on the youth “must be at the top of the range for that kind of offending”.  Judge McAuslan took the assault with a weapon as the lead offence and adopted an uplifted starting point of 2 years’ imprisonment

(which also reflected the threatening to kill and other matters which were part and parcel of that one episode).  This starting point was uplifted to two years six months’ imprisonment to reflect the totality of the offending.  There was then a further uplift of three months’ imprisonment to reflect the breach of supervision charges, which were to be concurrent on the other sentences.  This took the sentence up to one of two  years  nine  months’  imprisonment.    The  Judge  then  gave  a  discount  for Mr Hotu’s guilty plea, but noted that it was not at a particularly early stage.

[16]     A final sentence of two years three months’ imprisonment was imposed on the assault with a weapon charge, and then one months’ imprisonment for the breach of supervision charges, which were cumulative on the other offending.  This gave an end sentence of two years four months’ imprisonment.

Grounds of Appeal

[17]     The  appellant  appeals  his  sentence  on  the  grounds  that  it  is  manifestly excessive  because  the  Judge  failed  to  allow  time  to  collate  all  the  necessary evidence.

Psychological report

[18]     I have now received a helpful psychological report dated 14 February 2013 from a registered Educational Psychologist.  It discloses the presence of a learning disability, which obviously affected Mr Hotu, cognitively and behaviourally, at the time of the offences. The psychologist said:

Mr Hotu’s learning disabilities affect him in every day life functioning and he has difficulties at self-management and making choices in respect of the tasks and activities he currently chooses to engage in.  His efforts to engage in formal learning tasks and environments would often end, without success, thus contributing to low motivation, lack of self-esteem and socialisation skills.  As such, his options in respect of employment, recreation and social interaction appear limited.

[19]     The psychologist also concluded that Mr Hotu has had a relatively lengthy history of drug and alcohol abuse, which is likely to have negatively impacted on his

brain development and contributed to the already pre-existing learning problems and emotional difficulties.

[20]     The psychologist makes a number of useful recommendations which may provide some tangible support for Mr Hotu in his quest to be reintegrated with his family and to achieve his personal goals.

Appeal against Sentence

[21]     An appeal against sentence is a general appeal which shall be by way of rehearing.   Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[22]     The approach to be taken to appeals under s 121(3) were set out in Yorston v

Police where the Court said: 3

(a)       There  must  be  an  error  vitiating  the  lower  Court’s  original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[23]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar,4 which deals with the proper approach to be taken by an appellate court in general appeals,

to indicate that decision was intended to apply in appeals against sentence: see D v

Police5 and Wright v Police.6

[24]     In R v MacCulloch, the Court of Appeal said:7

This Court has said on numerous occasions, for example, in R v Peters (CA

12/03, 14 May 2003), the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather

than  the  process  by  which  it  is  reached.  In  this  case  we  consider  it

appropriate to approach the matter on the basis of whether or not the lead sentences for the individual categories of offending considered by the Judge

are manifestly excessive, and then to consider whether the ultimate sentence

offended against the totality principle.

[25]     I agree with the District Court Judge that the charge of assault with a weapon should be taken as the lead offence.   Looking at comparative cases, Paterson v Police involved an appeal from an effective sentence of two years three months’ imprisonment for assault with a weapon, assaulting with intent to injure, possession of an offensive weapon and contravention of a protection order.8

[26]     The assault with a weapon charge arose out of a domestic dispute where the appellant, in the course of a heated argument, deliberately went and took a knife from his home and held that knife while he proceeded to argue and struggle with the victim. The victim was, at the time, holding a three year old child.

[27]     Justice Asher said the fact that a weapon was used cannot be given particular weight because the use of a weapon is an essential part of the charge, but the fact that a large knife was the weapon was a relevant factor.9     He also noted there was no contact between the knife and the victim, but there was the possibility of accidental

injury.  He said:10

[25]      ... Threatening gestures with a weapon, holding the weapon against a victim’s body or actual wounding are all matters that will increase the culpability of the defendant in ascending amounts. None of these features were present in this offending.

5      D v Police HC Tauranga CRI-2008-470-22, 9 September 2008.

6      Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009.

7      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

8      Paterson v Police HC Hamilton CRI-2009-419-35, 12 June 2009.

9 At [19].

10 At [25].

[28]     Justice Asher considered that the appropriate starting point for the assault

with a weapon charge was 12 months’ imprisonment.

[29]     In Leatherby v Police,11   the appellant appealed a sentence of 12 months’ imprisonment for assault with a weapon, namely a butcher’s knife.  The offending occurred when the appellant, whilst heavily intoxicated, walked straight up to the victim and struck him once of the side of the head with the knife.   The victim suffered a 1.5 cm cut above his left eye which bled profusely.  At sentencing, the District  Court  Judge  adopted  a  starting  point  of  18  months’ imprisonment.  On appeal, Miller J quashed the sentence imposed and said the starting point should have been 9 months’ imprisonment with a final sentence of 6 months’ imprisonment.

[30]     In  Mann  v  Police,12    the  appellant  appealed  an  effective  sentence  of

15 months’  imprisonment  for  assault  with  a  weapon  (for  which  he  received

9 months’ imprisonment), threatening to kill, male assaults female and breach of a protection order.   The assault with a weapon charge arose when the appellant’s partner awoke one morning to find the appellant rubbing a butcher’s knife up and down her neck.  When she asked him what he was doing he said he was going to kill her and the other adults in the house.  No starting point was identified either by the sentencing Judge or on appeal, nor what discount the mitigating factors attracted. Frater J said that the mitigating factors would be the appellant’s guilty plea, lack of prior convictions for violent offending, limited intellectual ability, his psychiatric state at the time of the offending, the absence of injury and the lack of complaint.  In dismissing the appeal, Frater J said that the sentence of 9 months’ imprisonment was at the outer end of the sentencing range, but was not clearly excessive.

[31]     In  R  v  Lee,13   the  appellant  appealed  his  effective  sentence  of  two  years

6 months’ imprisonment, part of which were charges of assault with a weapon and threatening to kill for which he was sentenced to 15 months’ imprisonment (the other charges being burglary and arson).  The former charges arose when the victim was asleep on a mattress and the appellant demanded sex.   The victim refused so the

appellant went to the kitchen and returned with a large butcher’s knife.  He straddled the victim while she was on the mattress so she could not move.  He waved the knife in front of her face, verbally abusing her and telling her that if she rang the police he would use the knife.  The threatening to kill incident arose a few days later when the appellant became verbally abusive and told the victim “I feel like killing you”.  The assault with a weapon and threatening to kill charges were treated as moderate to serious by the sentencing Judge, who adopted a starting point of 18 months imprisonment before deducting three months for a guilty plea.  The Court of Appeal upheld the sentence.

[32]     I consider that this offending is similar to that in Lee, Mann and Paterson. The offending here involved an actual touching of the knife to the neck, as in Mann, but there do not appear to be the same mitigating features as there were in that case. The present case is comparable to Lee in that it involved a threat to kill as well. However, I would consider that the present assault with a weapon is more serious than in Lee.  I would therefore adopt a starting point of 15 months’ imprisonment.

[33]     That starting point would then need to be uplifted to reflect the totality of the offending.   This in itself involved relatively serious offending on three vulnerable (two pregnant, one aged only 15) persons.   An uplift of 7 months would be appropriate. This gives an uplifted starting point of 22 months’ imprisonment.

[34]     There must then be an uplift to reflect Mr Hotu’s personal history.  He is only

20 years of age.  He has a number of relevant prior convictions for violence:

Charge  Date  Outcome

3 x male assaults female     24 June 2010 (1 x); 31

July 2009 (2 x)

2 months’ imprisonment;

3 months’ imprisonment

Possession of an offensive weapon

Behaving threateningly

(with a weapon)

2 x assault with a blunt instrument

23 December 2009        5 months’ imprisonment

23 December 2009        3 months’ imprisonment

31 July 2009            3 months’ imprisonment

[35]     Given this history, an uplift of 6 months’ imprisonment is appropriate.  This

increases the sentence to 28 months’ imprisonment.

[36]     Mr Hotu pleaded guilty to the charges.  In the District Court he received a six month discount for his guilty plea, or 18 per cent.  The Judge said that the plea was not at a particularly early stage in the proceedings.  At [3] of the sentence indication decision, Judge Bouchier noted the pleas were not entered early as, by 22 March

2012, the matter had been before the Court since October 2011.

[37]     It appears Mr Hotu pleaded guilty on 22 March 2012.  The charges were laid on 17 October 2011, with the date of first hearing being 19 October 2011.  The plea of guilty was therefore entered some five months later.   An 18 per cent discount would thus be quite generous, and, I would think, at the outer limit which could reasonably be imposed after such a time.

[38]     I would be more inclined to give a lesser discount of around 15 per cent; this would reduce the sentence to 24 months’ imprisonment.

[39]     The only additional mitigating factor is Mr Hotu’s age and psychological history.   Mr Hotu was aged 19 at the time of the offending.   No discount for age seems to have been applied in the District Court.  The leading decision on a discount for youth is the Court of Appeal’s decision in Churchward v R which lists the reasons that a discount for youth might be allowed in cases, and includes considerations that

will influence the recognition of a discount in any particular case.  The five reasons that the Court identified were:14

(a)      Evidence  of  neurological  differences  between  young  people  and adults that may make young people more impressionable and impulsive. This is certainly borne out by the psychological report;

(b)The negative effects of long terms of confinement on young people including a tendency of longer sentences to bear more heavily upon them;

(c)      A greater ability to be successfully rehabilitated and reintegrated into the community and in this regard, I hope that the psychological report will be of substantial benefit to Mr Hotu upon his release;

(d)The fact that youthful offending is often a short lived compunction with the offender “growing out” of a tendency to offend; and

(e)      The fact that criminal convictions at a younger stage in a person’s life may  have  a  disproportionate  and  telling  effect  on  their  future prospects.

[40]     However, the Court in Churchward also said at [84]:

As was noted in R v Rapira, however, where the offending is grave, the scope  to  take  account  of youth  may  be  greatly circumscribed.15   This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and in general.

[41]     In  this  case,  although  the  offending  may  have  been  impulsive,  it  was nevertheless serious offending.   I think that Mr Hotu is entitled to a reduction of

10 per cent on account of his youth and the psychological factors identified in the

report. This reduces the sentence to 21 months’ imprisonment.

14     Churchward v R (2011) 25 CRNZ 446 (CA) at [76]-[92].

[42]     The District Court Judge imposed an additional cumulative sentence of one month on the breach of supervision charges.  The maximum penalty for these was

3 months’ imprisonment.   I agree that these should be treated cumulatively and

would also impose a sentence of one month’s imprisonment.

Conclusion

[43]     This gives an end sentence of 22 months’ imprisonment.  The final sentence imposed by the District  Court  Judge was  28  months’ imprisonment.   This  is  a difference of 21  per cent.    I am,  therefore,  of  the view  that  the District  Court sentence was manifestly excessive and allow the appeal.

[44]     The sentence of 2 years three months’ imprisonment for the lead offence of assault with a weapon is quashed and replaced with a sentence of 21 months’ imprisonment. The total sentence is therefore one of 22 months’ imprisonment.

……………………………….

Woolford J