Hounuku v Police - [2015] NZHC 2734

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-39 [2015] NZHC 2734

BETWEEN
WADE HOUNUKU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 November 2015

Appearances:

HJ Carson and PJA Buckle for Appellant
M Dillon for Respondent

Judgment:

5 November 2015

ORAL JUDGMENT OF TOOGOOD J

HOUNUKU v NEW ZEALAND POLICE [2015] NZHC 2734 [5 November 2015]

[1] The appellant, Wade Hounuku, appeals against a sentence of nine months’

imprisonment imposed by Judge Thomas Ingram in the Hamilton District Court on

17 September 2015,1 following the appellant’s guilty plea to a charge of assault with

intent to injure.2

[2] Mr Hounuku appeals the sentence on the basis that the Judge erred in not properly considering whether a sentence of home detention was appropriate. The essence of Ms Carson’s submissions on his behalf is that the Judge predetermined the outcome, namely, that home detention would not be an appropriate sentence, before hearing full submissions on sentence and receiving a pre-sentence report.

Facts

[3] At approximately 3:00 am on 21 June 2015, the appellant and his partner were at a family address on Jebson Place, Hamilton. Both had attended an unveiling and both had consumed a large amount of alcohol. They began to argue about their relationship, an argument which quickly escalated into a physical fight. Mr Hounuku’s partner then left to walk home, but the appellant followed her.

[4] When the appellant and his partner were on Old Farm Road in Hamilton East, the appellant punched his partner three times in the face and kneed her once in the stomach. Witnesses observed his actions and intervened, which gave time for Mr Hounuku’s partner to call the Police.

[5] As a result of the assault, the victim received a bleeding nose, severe bruising to her arms and head, two damaged front teeth and a cut to the inside of her cheek. She also had a split lip and severe swelling around her mouth. By any account, this was a serious assault involving more than one blow and not simply being an immediate reaction. The Judge was entitled to consider that the seriousness of the assault was aggravated by the fact that the appellant followed his partner before
attacking her.

1 New Zealand Police v Hounuku [2015] NZDC 18813.
2 Crimes Act 1961, s 193. The offence carries a maximum sentence of three years’ imprisonment.

[6] Judge Ingram adopted a starting point of 12 months’ imprisonment. He gave Mr Hounuku a reduction of three months for his guilty plea. The Judge found that there were no other factors justifying a reduction in the sentence. The Judge held that this was not an appropriate case for a sentence of home detention having regard to the nature of the offence, the circumstances in which it occurred and the fact that it involved domestic violence.

Approach on appeal

[7] An appeal against sentence must be allowed if the Court is satisfied that there has been an error in the sentence imposed for any reason and…

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: [2015] NZHC 2734
Decision Date: 5 November 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hounuku v Police (Hounuku v New Zealand Police [2015] NZHC 2734) was heard and decided on 5 November 2015. The appellant, Wade Hounuku, appealed a nine-month imprisonment sentence imposed by Judge Thomas Ingram in the Hamilton District Court on 17 September 2015, following Hounuku’s guilty plea to a charge of assault with intent to injure. The primary contention in the appeal was that Judge Ingram erred by not adequately considering the appropriateness of home detention as an alternative to imprisonment.

The legal issues revolved around whether the sentencing judge erred in not properly considering the suitability of home detention. The appellant’s counsel argued that home detention could adequately address the purposes of specific and general deterrence, given Hounuku’s lack of prior convictions for violence, limited history of breaching community-based sentences, and strong family support. The Court had to determine whether the Judge properly applied the statutory purposes and principles of sentencing, particularly the principle of choosing the least restrictive sentence that is appropriate in the circumstances.

The Court found that Judge Ingram correctly applied the sentencing principles and purposes in deciding that imprisonment was the least restrictive and appropriate sentence. The Court concluded that the Judge was entitled to remain unconvinced that home detention would serve the purpose of inducing a sense of responsibility in Hounuku, given his lack of remorse and minimization of the offence. The Court further noted that the nature and seriousness of the assault, involving violence against a vulnerable woman, justified a sentence intended to denounce such conduct and protect the community.

Judge Toogood dismissed the appeal, affirming that the sentence imposed by Judge Ingram was justified and did not constitute a manifest error.

Orders