Hounuku v Police
[2015] NZHC 2734
•5 November 2015
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 RespondentJudgment:
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 that a different sentence should be imposed.3 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.4
[8] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is of a type and within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective
end sentence rather than the process by which the sentence is reached.5
The appeal ground
[9] The appellant’s counsel, Ms Carson, does not challenge the starting point of
12 months’ imprisonment which she accepts is within the available range.6
[10] Ms Carson submits, however, that having adopted that starting point, Judge
Ingram was then required to consider whether a sentence of home detention was
3 Sentencing Act 2002, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].
4 At [33], [35].
5 Ripia v R [2011] NZCA 101 at [15].
6 R v Rivers & Nehua CA56/86 & CA57/86, 7 May 1986; R v Morgan CA160/97, 30 July 1997; R
v Hackell CA131/02, 10 October 2002; Taingahue v Police HC Wellington CRI 2009-485-75, 17
August 2009.
available. Counsel argued that when the purposes and principles of the Sentencing Act 2002 are taken into account, a sentence of home detention was available for the following reasons:
(a) Home detention would adequately address the sentencing purpose of specific and general deterrence.
(b) Mr Hounuku has no previous convictions for violence.
(c) Mr Hounuku has a limited history of breaching community-based sentences. The non-compliance is not so significant as to justify a conclusion that he would not be a suitable candidate for home detention.
(d)Mr Hounuku has strong family support, as evidenced by a very helpful letter from the appellant’s mother, which was before the Judge.
Discussion
[11] The principles to be applied on an appeal of this nature are well-established. When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community's safety.7
It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.8 The Court cannot impose a sentence of imprisonment unless it is satisfied:9
(a) that the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a
7 Sentencing Act 2002, s 16(1).
8 Section 8(g).
9 Section 16(1).
sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or to protect the community;
(b)that those purposes cannot be achieved by a sentence other than imprisonment; and
(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.
[12] Where the end sentence reached is a short-term of imprisonment, the Judge must decide whether to commute that sentence to one of home detention.10 But, as the Court of Appeal has said:11
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[13] The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the factors that really count.12
[14] I turn to consider the application of the statutory purposes and principles of
sentencing to Mr Hounuku’s case.
[15] The pre-sentence report indicates that Mr Hounuku displayed little remorse for his offending. It reports that Mr Hounuku said he hit his partner in order to “calm her down as she was very intoxicated” and that “she had hit him first”. The appellant minimised his actions and appears not to have taken responsibility for them. He did not exhibit any understanding of the effect that domestic violence offending can have on victims. The District Court Judge was, in my view, entitled to remain unconvinced that the purpose of inducing a sense of responsibility in the
appellant would be served by a sentence of home detention.
10 Section 15A(1)(b).
11 Fairbrother v R [2013] NZCA 340 at [30].
12 At [31].
[16] Ms Carson argues that the Judge erred in failing to call for a report on the availability of suitable arrangements for home detention. It would have been clear to the Judge at the time of sentencing, from the supportive letter written by the appellant’s mother, that accommodation and a supportive environment was available; but, in any event, a report would have been necessary only if the Court considered that home detention was an appropriate response to the offending. It is not uncommon for experienced judges to decline to call for a home detention assessment in a case where the judge considers it is unlikely such a sentence will be appropriate. It is important, of course, that where a judge remands a prisoner for sentence without calling for a home detention annex, that the judge retains an open mind at the sentencing hearing. But it is clear in this case that Judge Ingram did so, because he addressed the reasons why he declined to grant home detention at some length.
[17] As Judge Ingram identified, the assault involved violence meted out to a defenceless, vulnerable woman resulting in serious harm. He was entitled to conclude that the appellant must be held accountable for that offending and that a sentence of home detention would not be sufficient to denounce that type of conduct. Sentences of imprisonment for this type of offending are intended to send a clear message to men that violence of this kind against women will not be tolerated.
[18] I am satisfied also that the Judge properly took into account the appellant’s rehabilitative needs by way of the release conditions which he imposed on his sentence, including that the appellant should attend programmes for domestic violence and misuse of alcohol.
Decision
[19] Judge Ingram properly applied relevant sentencing purposes and principles in coming to his decision to reject home detention; there was no error in the Judge’s conclusion that imprisonment is the least restrictive sentence appropriate in the
circumstances.13
13 Sentencing Act 2002, s 8(g).
Result
[20] I dismiss the appeal.
……………………………….
Toogood J