Houkamau v Police - [2019] NZHC 2743

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2743
Decision Date: 15 October 2019

CaseChat Overview and Summary

The appeal in Houkamau v Police was brought by Mr Houkamau against the sentence imposed by the District Court. Mr Houkamau had been sentenced to seven and a half months’ home detention for strangulation and assault on a person in a family relationship. The District Court had considered Mr Houkamau's rehabilitative potential in sentencing, but the High Court found that the sentence should have been further discounted for Mr Houkamau's rehabilitative prospects, his community and family background, and the victim's views. The High Court allowed the appeal, quashed the sentence of home detention, and substituted a sentence of 250 hours of community work and 12 months of supervision. The Court found that a sentence of home detention would be disproportionately severe and would not meet the purposes and principles of sentencing. Instead, a sentence of community work and supervision would 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 would also meet the concerns and needs of the victim.

The High Court found that there were additional discounts in the region of four months that were available to Mr Houkamau but which were not taken into account. The Court found that the District Court had considered 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. The Court found that the District Court had also failed to take into account the victim's views when determining the appropriate type of sentencing for Mr Houkamau. The Court found that the victim's views were highly relevant to determining the type of sentence Mr Houkamau should serve. The Court found that the District Court had also failed to take into account Mr Houkamau's personal, whānau, community, and cultural background, namely his strong connection with the Hicks Bay community. The Court found that this was a relevant consideration in this case when the pre-sentence report, restorative justice report, and the District Court all recognised Mr Houkamau's strong rehabilitative motivation and prospects. The Court found that the sentence of home detention would be disproportionately severe and would not meet the purposes and principles of sentencing. Instead, a sentence of community work and supervision would 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 would also meet the concerns and needs of the victim.

Orders