Houkamau v Police
[2019] NZHC 2743
•15 October 2019
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2019-416-15
[2019] NZHC 2743
BETWEEN DAVID MARSDEN HOUKAMAU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 October 2019 Counsel:
V L Thorpe for Appellant
L M Marshall for Respondent
Judgment:
15 October 2019
Reasons:
25 October 2019
JUDGMENT OF THOMAS J
[1] Mr Houkamau appeals against his sentence of seven and a half months’ home detention for strangulation1 and assault on a person in a family relationship,2 imposed on 22 August 2019 in the District Court at Ruatoria.3
[2] I gave a results judgment at the hearing on 15 October 2019.4 I quashed the sentence of home detention and substituted 250 hours’ community work and 12 months’ supervision. I now give my reasons.
1 Crimes Act 1961, s 189A; maximum penalty seven years’ imprisonment.
2 Section 194A; maximum penalty two years’ imprisonment.
3 Police v Houkamau [2019] NZDC 16637.
4 Houkamau v Police [2019] NZHC 2624.
HOUKAMAU v NEW ZEALAND POLICE [2019] NZHC 2743 [15 October 2019]
The offending
[3] Mr Houkamau had been in a relationship with the victim for about three years at the time of his offending, although they lived at different addresses.
[4] At about 1.00 am on 1 January 2019, Mr Houkamau was at his home address in Hicks Bay with the victim. They had been out drinking and celebrating New Year. Mr Houkamau began calling the victim offensive names and a verbal argument ensued.
[5] Mr Houkamau approached the victim, who was lying on a couch. He grabbed her by her clothing with both of his hands and shoved her out the front door of the house. He then punched her once in the forehead and began choking her by putting both his hands around her neck and squeezing. The victim tried unsuccessfully to pull his hands off her throat and was finding it difficult to breathe. She then asked him to let go of her throat. Mr Houkamau continued to choke the victim for a short period before shoving her back into the ground, causing her neck to hit the wooden edging around the garden.
[6] When interviewed by police, Mr Houkamau admitted choking the victim and said “he was just trying to shut her flippin’ mouth up”. He insisted the choking did not last longer than a minute.
[7] The victim received medical attention two days after the incident as her forehead, shoulder and throat were still sore.
Personal circumstances
[8] Mr Houkamau was 62 years old at the time of sentencing. He has recently been employed as a fencer. He has four historic convictions, two of which are for assault. The first assault occurred 35 years ago and the second occurred 25 years ago (when he was 37 years old). Mr Houkamau has never served a community-based sentence or a sentence of imprisonment. His earlier assaults resulted in a fine and an order to come up for sentence if called upon.
[9] Two pre-sentence reports were prepared for the purpose of sentencing. The first report explained Mr Houkamau has resided in Hicks Bay for most of his life and he has a high level of responsibility for taking care of his whānau, who also reside in this remote area. Mr Houkamau has responsibility for managing extensive whānau land and avidly engages in marae-based activities. Mr Houkamau has supportive relationships with his whānau that are a positive influence on him. He denied consuming illicit drugs and described his alcohol use as minimal, although he acknowledged that alcohol played a role in his offending.
[10] The probation officer recorded that Mr Houkamau and the victim remained together. Mr Houkamau acknowledged that his relationship with the victim was “volatile at times” and that his use of violence was unacceptable. He maintained the victim’s behaviour when using alcohol contributed to any volatility in the relationship. Mr Houkamau said he was highly motivated to engage in restorative justice.
[11] The probation officer noted Mr Houkamau had never received a rehabilitative sentence. Mr Houkamau had himself engaged with Tauawhi Men’s Group, which deals with family violence. The probation officer considered Mr Houkamau had the relevant supports in place from his immediate whānau to assist him with making better decisions in the future. The probation officer recommended a sentence of supervision with special conditions to undertake alcohol counselling and an approved family violence programme.
[12] The report noted that electronic monitoring was unavailable in the Hicks Bay area for technical reasons.
[13] The second pre-sentence report was provided to explore further the possibility of electronic monitoring. Mr Houkamau had proposed an alternative address in Gisborne, where his sister resided with three other members of their family. The address and occupants were assessed as suitable. A sentence of community detention and supervision was recommended.
Mr Houkamau and the victim
[14] A restorative justice conference took place. Mr Houkamau apologised to the victim, acknowledging that if he and the victim argued in the future, he would have to leave, even if it meant leaving his own house. The victim accepted his apology. Mr Houkamau undertook to continue to work with Tauawhi until his counselling was completed and that he would explore options for establishing a support team in the locality, including working with the local police.
[15] By the time of the restorative justice conference, Mr Houkamau had ceased using alcohol.
[16] In her victim impact statement, the victim discussed her feeling of helplessness during the offending because she was unable to defend herself, saying she was pretty frightened. She acknowledged that she would remain friends with Mr Houkamau but wanted him held accountable.
[17] The victim provided additional views through the Court victim advisor prior to sentencing. She said the Court process had been hard on both her and Mr Houkamau and that her mokopuna had missed having him around as they regard him as their papa. The victim is the main carer for her mother and described her difficulty in taking care of the things Mr Houkamau would usually do for her. Mr Houkamau usually helped a lot around her house, gathering wood and looking after her herd of cows. The victim said both her and her mother relied a lot on Mr Houkamau’s help so they were finding it hard to cope.
[18] The victim confirmed she wanted to continue a relationship with Mr Houkamau but wanted him to undergo counselling to address anger management, particularly when drinking. She confirmed she had no concerns for her safety and that she would not hesitate to call the police again in the future. She did not want a protection order.
District Court decision
[19] The Judge adopted the strangulation charge as the lead charge and was guided by the recent decision of Cooke J in Ackland v Police in setting the starting point.5 He considered Mr Houkamau’s offending was less serious than in Ackland v Police because the victim did not become unconsciousness and no children were involved. On the other hand, the offending took place within the home and occurred following an earlier assault. Overall the Judge considered the offending fell within the lower end of the second band in Ackland v Police. The Judge adopted a starting point of 24 months’ imprisonment to account for both charges, saying he was avoiding double counting the assault.
[20] The Judge allowed a four-month discount for remorse, saying the genuineness of Mr Houkamau’s remorse was reflected both in the pre-sentence report and his engagement in restorative justice. The Judge recorded Mr Houkamau participated fully at the conference and there appeared to be an acceptance of his apology. These factors were described as “significant”.
[21] The Judge allowed a full 25 per cent discount for the early guilty plea, resulting in an end sentence of 15 months’ imprisonment. He then converted that to a sentence of seven and a half months’ home detention. In reaching that conclusion, the Judge was persuaded Mr Houkamau’s high level of community and family support and his employment prospects meant he had strong prospects of successful rehabilitation. The Judge described Mr Houkamau as “essentially regarded highly by the local community”.
[22] The Judge acknowledged the sentence of home detention would create difficulties for Mr Houkamau in fulfilling his community responsibilities in the East Coast area but said a sentence of home detention was the least restrictive outcome. He emphasised the seriousness of the new strangulation offence and the need for deterrence and denunciation. The Judge did not accept a sentence of supervision and community work should be imposed.
5 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.
Approach on appeal
[23] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow an appeal against sentence if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. The discretion to vary a sentence is not unfettered and the appellate court does not embark upon the sentencing afresh. There must be an error vitiating the exercise of the original sentencing discretion. In short, the appellate court must proceed on an “error principle”.6 The focus is on whether the end sentence is within the acceptable range.
Grounds of appeal
[24] Mr Houkamau appealed against his convictions on several grounds, which can be distilled to four main points:
(a)a further discount of three or four months was available to recognise Mr Houkamau’s rehabilitative potential;
(b)the Judge ought to have applied the guilty plea discount additively rather than multiplicatively;
(c)the Judge failed to take into account the victim’s view when adopting a sentence of home detention; and
(d)the sentence was disproportionately severe and failed to account for Mr Houkamau’s whānau and community background because it required him to move away from his home in Hicks Bay.
[25] Mr Houkamau primarily sought a sentence of community work and supervision, but in the alternative a sentence of home detention without electronic monitoring at his home address in Hicks Bay.
[26] On the day prior to the appeal hearing, I requested that Mr Houkamau’s probation officer attend the appeal. The purpose of the request was to seek his views
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29] and [35].
as to whether home detention at Mr Houkamau’s Hicks Bay address could take place without electronic monitoring. It then transpired that the Hicks Bay address is now feasible for electronic monitoring, given recent changes to the GPS constellation in the area. On that basis, the respondent did not oppose Mr Houkamau serving home detention at his Hicks Bay address.
Fresh evidence
[27] Fresh evidence was provided to the Court by way of a medical certificate dated 2 October 2019 relating to Mr Houkamau. The doctor recorded a deterioration in Mr Houkamau’s mental health. This was attributed to his worry about being unable to care for his partner’s animals and his whānau property, his mother’s recent death and the fact of his brother suffering terminal cancer. Mr Houkamau was described as depressed and crying.
Starting point
[28] Mr Houkamau did not object to the starting point adopted by the Judge and the Crown submitted the starting point was appropriate.
[29] Both counsel relied on the recent High Court decision, also relied on by the Judge, of Ackland v Police.7 In that decision, Cooke J was mindful that the appeal then before him was the first High Court appeal from a decision of the District Court imposing a sentence for the relatively new charge of strangulation. He therefore sought to include some comments designed to be of general assistance to the District Court in the future. Cooke J traversed the background to the introduction of the new offence, noting the 2016 Law Commission report, Strangulation: The Case for a New Offence.8 The Commission noted two factors distinguish strangulation from other forms of family violence: it is an important risk factor for a future fatal attack by the perpetrator and characteristically leaves few marks or signs. The Commission described those factors as presenting unique challenges for the prosecution, contributing to the danger of strangulation being underestimated and perpetrators not
7 Ackland v Police, above n 5.
8 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).
being held appropriately accountable.9 The Commission proposed a new offence, reasoning that strangulation that did not result in visible injuries was often charged as “male assaults female” with a maximum penalty of two years’ imprisonment. That, in the Commission’s view, did not adequately reflect the seriousness of strangulation and led to its conclusion there was a gap in the current framework of offences and a specific offence was justified.10
[30] Having considered the Commission’s report as well as decisions on sentencing for other offences involving strangulation, Cooke J identified certain key factors relevant to the assessment of the seriousness of offending: strangulation in the context of a domestic or intimate relationship/vulnerability of the victim; threats, particularly threats to kill; loss of consciousness; multiple events; other violence/injury; significant impact on others; and breach of a protection order.
[31] Cooke J acknowledged this was a first attempt at identifying material considerations and was clearly capable of amendment or refinement. I do not disagree with the factors identified by Cooke J. I would, however, emphasise that, in respect of the first factor, strangulation in the context of a domestic or intimate relationship, the focus of the Commission’s report was on strangulation being used as a means of achieving coercion and control over the victim. That, it seems to me, is at the heart of the Commission’s report and the principal rationale for the new offence. Indeed, the Commission says:11
It is the terror that results from strangulation that is at the heart of this kind of criminal contact. That terror is likely to seriously affect all aspects of the victim’s life. In our view, the terror that results from this “worst class of case” is greater than the harm of a minor injury and at least equivalent to a serious physical injury.
[32] While recognising the complexity of the environments in which this sort of offending occurs and questioning whether tariff guidelines would be appropriate for this type of offending, Cooke J suggested three bands that could be of some assistance in sentencing. Essentially these involved offending at the lower end, with a starting point of six months to two years’ imprisonment; the mid-range with starting points of
9 At [1.3].
10 At [4.56].
11 At [5.44].
two to five years, and the highest range involving starting points of five to seven years’ imprisonment.12 Those bands are helpful but, as Cooke J stressed, it is not the number of the factors to which he referred that is important but the overall nature and culpability of the offending.13
[33] The purpose of my discussing Ackland v Police is to emphasise the importance of judges (and counsel) carefully considering the facts and context of the offending. Family violence is an extremely complex area and care is needed not to focus unduly, or only, on what might be described as key factors, falling into the trap of a somewhat mathematical approach to the exercise rather than a proper consideration of the subtleties of the offending. Indeed, the Commission’s report and rationale for the new offence highlights the subtleties that are often involved in coercive and controlling behaviour, of which strangulation often forms part.
[34] Returning then to the offending in the present appeal. In setting the starting point, the Judge noted that the offending took place in the home and the offending followed an earlier assault. That first comment requires some qualification. The offending took place in Mr Houkamau’s home, but the victim did not live there. Indeed, it does not appear to be in dispute that part of Mr Houkamau’s frustration concerned the fact that the victim would not leave his home.
[35] The Judge then described the offending as falling within the lower end of the second band in Ackland v Police. Equally, it could have been described as the upper end of the lowest band. This, to my mind, demonstrates the way in which banding can be subject to manipulation. By characterising the offending as in the middle of three bands, the assessment of the seriousness of the offending is inevitably perceived as higher. This, then, contributes to the way in which arguments are presented on appeal, the case is used as a precedent and matters such as the commutation of a nominal starting point into the end sentence are influenced. All of these observations are
12 I agree with Cooke J that strangulation cases involving more serious offending, such as that under ss 188 or 189 of the Crimes Act 1961, will continue to provide assistance in assessing starting points. The increasing awareness of the adverse effects of strangulation and the context in which it often occurs will also assist in informing starting points.
13 Akland v Police, above n 5, at [31].
intended to emphasise the care with which these types of analyses should be undertaken.
[36] Standing back, I accept that a starting point of two years, although it could be considered stern, was available to the Judge and cannot be considered an error.
Discount for rehabilitative potential
[37] Ms Thorpe, counsel for Mr Houkamau, submitted the Judge took into account Mr Houkamau’s rehabilitative potential when considering whether to impose a sentence of home detention instead of a sentence of imprisonment but failed to take those same factors into account in mitigation. Those factors included Mr Houkamau’s high level of support amongst his whānau and community, his prospects of employment and his whānau and community responsibilities.
[38] Ms Marshall, for the Crown, addressed this submission together with the guilty plea discount, taking the position the overall discount of nine months was well within range, so the end sentence was not manifestly excessive.
[39] I agree that, although the Judge turned his mind to Mr Houkamau’s personal circumstances, this was in the context of assessing whether home detention was the appropriate sentence (as opposed to imprisonment) rather than whether there should be any further discount for mitigating factors. There was certainly scope for the Judge to provide a further discount for rehabilitative potential. In particular, Mr Houkamau self-referred to anger management counselling and had given up alcohol. The courts have consistently upheld the ability of sentencing judges to make allowances for rehabilitative potential where that is demonstrated by positive actions.14
[40] In addition to rehabilitative prospects, I consider that Mr Houkamau’s contribution to his whānau/community and the last 25 years of his life having been offence free are matters which could also have been taken into account in mitigation. That is, Mr Houkamau is a man clearly valued by his community and who contributes significantly to it.
14 See, for instance, Mallett v R [2014] NZCA 39; and Kerr v R [2017] NZCA 498.
[41] The result is that there were additional discounts in the region of four months that were available to Mr Houkamau but which were not taken into account. In those circumstances, there was an error.
Guilty plea discount
[42] Ms Thorpe’s submission on this ground relied on the decision of Simon France J in Reweti v R.15 She submitted the Supreme Court’s decision in Hessell v R does not mandate the use of the typical three-stage approach to sentencing.16 She argued s 8(g) of the Sentencing Act 2002, which requires the Court to impose the least restrictive outcome that is appropriate in the circumstances, supports the general adoption of additive discounts for guilty pleas as opposed to multiplicative discounts.
[43] While Ms Thorpe correctly pointed out that consistency in sentencing could equally be achieved if judges consistently applied the guilty plea discount additively, the simple fact is that is not how it is currently done in the vast majority of cases. A wholesale change in approach of the kind Ms Thorpe advocates for would require higher appellate direction than this Court can provide. Unless that occurs, the approach adopted in Reweti v R is properly reserved for use in exceptional cases where it is warranted to achieve a particular purpose. Haphazard adoption of the Reweti v R approach risks the introduction of systemic inconsistency into sentencing.17
[44] Furthermore, the Reweti v R approach has recently been considered in R (CA217/18) v R, where the Court of Appeal saw “no reason to depart from the conventional Hessell methodology, which has more recently been endorsed by [the Court of Appeal] in R v Clifford”.18
[45] Accordingly, the Judge did not err in the way he applied Mr Houkamau’s guilty plea discount.
15 Reweti v R [2018] NZHC 809.
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
17 Sentencing Act 2002, s 8(e); and Hessell v R, above n 16, at [11].
18 R (CA217/18) [2018] NZCA 582, citing R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
Failure to take into account the victim’s views
[46] The victim’s views are outlined above. Ms Thorpe submitted the Judge ought to have taken the victim’s views into account when determining the appropriate type of sentencing for Mr Houkamau. She referred to s 8(f) of the Sentencing Act, which requires the sentencing judge to “take into account any information provided to the court concerning the effect of the offending on the victim”.
[47] The difficulties described by the victim to the Victims Advisor are effects of the sentence, not effects of the offending. The effects of the offending, which were relevant to assessing the length of the sentence, are properly limited to those described in the victim impact statement. The consequences identified by the victim are, however, highly relevant to determining the type of sentence Mr Houkamau should serve.
[48] In Iona v R, the Court of Appeal confirmed a victim’s views as to the appropriate sentence are not determinative, although they may be considered as one of a number of factors.19 The sentencing exercise involves a wider dimension than simply the position as between the victim and the offender.20
[49] In saying that, however, to my mind, the views of the victim in this case need to be given serious consideration. Family violence is an extremely complicated and nuanced area. It would be counterproductive were victims discouraged from reporting family violence because the sentence imposed on the offender has effectively made their life worse rather than better. These comments are, of course, subject to the primary obligation of the Court to protect the safety of the victim and the purposes and principles of sentencing. Importantly, there was no indication the victim in this case had been coerced to express the view she did or that she in any way felt pressured to express that view.
[50] In this case, the victim has made it clear that she intends to continue in a relationship with Mr Houkamau, her primary hope is that he receives counselling to
19 Iona v R CA416/02 at [23].
20 R v Clotworthy (1998) 15 CRNZ 651 (CA) at 659.
ensure this type of offending is not repeated and that she (and her mother) depend upon Mr Houkamau for help. To deprive her of that help effectively punishes her, the victim. This is also relevant to the next ground of appeal.
Requirement to move away from Hicks Bay
[51] In addition to the difficulties faced by the victim, as noted above, Mr Houkamau is struggling with living away from his community in Hicks Bay. Ms Thorpe advanced two submissions as to why the sentencing Judge was required to take this factor into account when deciding to impose a sentence of home detention, which could not be served in Hicks Bay. First, she argued Mr Houkamau’s particular circumstances meant the sentence would be disproportionately severe because it would require him to live outside his community.21 Secondly, she argued the Judge failed to take into account Mr Houkamau’s personal, whānau, community and cultural background, namely his strong connection with the Hicks Bay community.22
[52] In Gao v R, the Court of Appeal accepted that “the effects of dislocation from family and culture may result in a sentence being disproportionately severe on a foreign national”.23 Clearly the severity of dislocation suffered by a foreign national in a New Zealand prison is an order of magnitude greater than the dislocation affecting Mr Houkamau, who is living with his sister, only two hours’ drive from his home. In saying that, however, again context must be considered. When an offender comes from a rural community with limited public transport options and when he and his whānau might be in relatively straitened financial circumstances, the effects of even a small distance of dislocation can be severe. They should at least be considered.
[53] The purpose of s 8(h) of the Sentencing Act is not to require a lesser sentence because of the personal, family, whānau, community and cultural background of the offender. That provision is squarely focused on how “a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose” should accommodate the offender’s background. That is a relevant consideration in this case when the pre-sentence report, restorative justice report and the Judge all recognised
21 Sentencing Act 2002, s 8(h).
22 Section 8(i).
23 Gao v R [2019] NZCA 69 at [21].
Mr Houkamau’s strong rehabilitative motivation and prospects. Mr Houkamau’s community and whānau circumstances are clearly integral to this and should have been taken into account.
[54] In any event, as noted above, by the time the appeal was heard, electronic monitoring was feasible at Mr Houkamau’s Hicks Bay home address. For that reason, when reassessing the sentence, I will not take the requirement to move from Hicks Bay into account.
What is the appropriate sentence?
[55] The Judge was satisfied that a sentence of home detention was the least restrictive outcome in the context of the very serious offence of strangulation.
[56] Mr Houkamau has served approximately six weeks of his home detention sentence in Gisborne. As noted, the Court has been provided with evidence that Mr Houkamau’s removal from his community has had a considerable effect on him, including on his mental health. I am in no doubt it has hindered his rehabilitation and, as discussed, caused hardship to the victim.
[57] Now that electronic monitoring is available at Hicks Bay, the question is whether the amended sentence should be served by home detention at that address. With the additional discounts which I have concluded should have been allowed, the resulting nominal sentence of 12 months’ imprisonment would equate to six months of home detention. Mr Houkamau has already served one and a half months in Gisborne. This leaves a nominal sentence of four and a half months’ home detention remaining.
[58] I was considerably assisted by the presence of Mr Houkamau’s probation officer at the appeal hearing. He advised me that it would be very difficult for a home detention sentence to accommodate Mr Houkamau’s work on his whānau’s land as well as assistance to the victim. He suggested a sentence of community detention might be appropriate. In my view, however, that does not accord with the guidance on the use of a sentence of community detention in the circumstances of this particular
case.24 Furthermore, I have concerns whether restricting Mr Houkamau to his home address when he is still in the relationship with the victim, in the circumstances of the offending, is appropriate. That is, the offending occurred when the victim refused to leave Mr Houkamau’s address. He has now realised that, in that situation, he himself should leave his home address. It would be counterproductive to impose on him a sentence that would prevent that.
[59] I am mindful of the hierarchy of sentencing.25 In sentencing, the Court must impose the least restrictive outcome. Community based sentences of community work and supervision are lower in the hierarchy than intensive supervision and community detention, and home detention. But those sentences do serve a deterrent and denunciation purpose. A sentence of community work, particularly a lengthy one, is a significant sentence. It requires ongoing commitment from an offender, as well as giving a positive return to the community.
[60] In the present case, Ms Marshall responsibly accepted that the hierarchy is not divorced from reality and that the Court was required to take a holistic approach to ensure the purposes and principles of sentencing were met. She accepted that, while the offending was clearly serious, the best interests of the community and the victim could be met by a sentence other than home detention.
[61] I regard this case as something of an outlier although, in saying that, it simply serves to demonstrate that each case and each offender must be considered in their particular circumstances. Having been offence free for the last 25 years, significantly contributing to his local community and whānau and to the wellbeing of the victim, I am satisfied that the purposes and principles of sentencing are met by a lengthy term of community work and supervision. This will enable Mr Houkamau to contribute to the community, be held accountable, and be rehabilitated while sending a clear message of denunciation and deterrence to his own community. It will also meet the concerns and needs of the victim.
24 Sentencing Act 2002, s 69C.
25 Section 10A.
Result
[62] For these reasons, the appeal was allowed. The sentence of home detention was quashed and replaced by a sentence of 250 hours of community work and 12 months’ supervision. The conditions of supervision are those recommended in the pre-sentence report dated 26 April 2019, that is to attend and complete any required alcohol and drug counselling and an appropriate family violence programme.
Thomas J
Solicitors:
Crown Solicitor’s Office, Gisborne
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