Joseph Nigel Wayne Haenga v The King - [2023] NZHC 3744

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2023-483-000020

[2023] NZHC 3744

BETWEEN
JOSEPH NIGEL WAYNE HAENGA

Appellant

AND

THE KING

Respondent

Hearing: 14 December 2023

Counsel:

M J Taylor-Cyphers for Appellant J C H Liu for Respondent

Judgment:

19 December 2023

JUDGMENT OF RADICH J

[1] Mr Haenga was sentenced to 25 months’ imprisonment by Judge Marinovich on the following charges:1
(a)one charge of injuring with intent to injure;2

(b)one charge of assault with intent to injure;3 and

(c)one charge of assaulting a person in a family relationship.4

[2] He appeals from the sentence imposed, saying that the Judge accounted insufficiently for his personal circumstances in assessing mitigating factors and concluded wrongly that he had not demonstrated remorse.5 If the sentence was to be

1      R v Haenga [2023] NZDC 24719.
2      Crimes Act 1961, s 189(2) (maximum period of imprisonment of five years).
3      Crimes Act, s 193 (maximum period of imprisonment of three years).
4      Crimes Act, s 194A (maximum period of imprisonment of two years).
5      No issue is taken with the starting point fixed by the Judge or with discounts given for Mr Haenga’s guilty plea and for time spent on restrictive bail.

HAENGA v R [2023] NZHC 3744 [19 December 2023]

reduced, so that it becomes a short-term sentence of imprisonment, Mr Haenga seeks to apply for home detention on an electronically monitored basis.

What happened?

[3] In the sentencing decision, the Judge summarised the facts of the offending in the following way:6
[2] I have a summary of facts for the purpose of sentence indication and that summary tells me this. That the defendant and complainant were in a relationship in 2009/2010. Around the beginning of 2022, they rekindled their relationship. The victim has three children aged from two to 11 years of age. The defendant is the father of the eldest child. The children were present at the time of the offending.

[3] At around 5.15 pm on Tuesday 8 March 2022, the defendant was on the front lawn of the victim’s residential address in Whanganui. The defendant ripped a pram away from the victim and threw it towards the road causing a member of the public to stop his vehicle and get out to help. The defendant was heard shouting at the victim and he was heard saying words to the effect of: “I’ll smash you over” to the victim. He then proceeded to punch the victim in the face with a closed fist. The defendant went to hit the victim a second time; however, the member of the public managed to grab the victim and push the defendant away.

[4] The defendant then went inside the address to retrieve some items which the victim tried to take off him. The defendant stepped towards the victim and punched her three times hard in the face knocking the victim to the ground, splitting her lip open and knocking her unconscious. The member of…

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: [2023] NZHC 3744
Decision Date: 19 December 2023

CaseChat Overview and Summary

Joseph Nigel Wayne Haenga appealed against the sentence of 25 months’ imprisonment imposed by the District Court for charges of injuring with intent to injure, assault with intent to injure, and assaulting a person in a family relationship. The appeal focused on whether the sentencing Judge inadequately considered Haenga's personal circumstances and erred in not applying a discount for his remorse. The Court of Appeal had to determine whether the Judge's assessment of mitigating factors was materially flawed and whether a different sentence should be imposed.

The appeal court first examined whether the Judge's five per cent discount for personal circumstances was justified. Haenga argued that factors such as sexual abuse, dislocation from his whānau, alcohol and cannabis issues, and mental health problems warranted a greater discount. However, the court found that the evidence and information available in the pre-sentence report were insufficient to draw conclusions about the causal connection between these factors and the offending. The court noted that while some background factors, such as exposure to violence during childhood, were acknowledged, there was no clear link to Haenga's violent behavior. Additionally, there was no evidence to establish a connection between Haenga's alcohol consumption and his offending. Therefore, the court concluded that the Judge was within his discretion to set the discount at five per cent.

Secondly, the court addressed whether the Judge erred in finding that Haenga had not demonstrated genuine remorse. Haenga's counsel argued that his willingness to engage in restorative justice and a Stopping Family Violence programme should have warranted a discount for remorse. However, the court found that the Judge was entitled to conclude that Haenga's limited expressions of regret did not meet the onus of proving genuine remorse. The court emphasized that while willingness to engage in restorative justice could be a factor, it was not sufficient on its own to establish genuine remorse.

In conclusion, the Court of Appeal dismissed the appeal, finding that the Judge's assessment of mitigating factors was not materially flawed and that a different sentence was not warranted. The sentence of 25 months’ imprisonment was upheld.

Orders