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 the public got in-between the pair but stepped back as the defendant took a step towards him with a closed fist.

[5]   As the victim regained consciousness and was trying to sit up against a fence, the defendant stomped hard on her head using the bottom of his heel.

[6]  The defendant left the address in a vehicle. The victim was left with a split to her bottom lip and a large bump on her forehead. She was taken to Whanganui Hospital for her injuries but left before receiving treatment.

District Court decision

[4]                 The Judge adopted a starting point of three years’ imprisonment. In doing so, he applied Band 3 in Nuku v R,7 the tariff decision for domestic offending. He took into account the following aggravating factors:8

6      Above, n 1.

7      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

8      At [4], quoting from his sentencing indication given on 4 August 2023 at [13] and [14].

(a)The offending involved attacks to the head that caused the victim to lose consciousness.

(b)The victim was particularly vulnerable because she was unconscious and prone on the ground when Mr Haenga stomped on her head.

(c)Considerable force was used, as indicated by the victim’s injuries and loss of consciousness.

(d)Children were present and were exposed to the violence.

(e)The offending was prolonged by the additional gratuitous violence present, namely the stomp.

[5]                 The Judge uplifted the start point by three months on account of Mr Haenga’s criminal history which, he said, demonstrated that Mr Haenga had a propensity to be violent towards women with whom he was in a relationship.9

[6]                 The Judge applied several discounts to reach the end sentence: a 20 per cent discount (7.8 months) for Mr Haenga’s guilty plea; a five month discount (12.8 per cent) to take account of Mr Haenga’s time (455 days) on restrictive bail, where he was subject to a 24-hour curfew; and a five per cent discount for Mr Haenga’s personal circumstances.

[7]                 The Judge discussed a provision of advice to courts report (PAC report). He drew the following information from the report:10

(a)The report writer found there to be a moderate risk of Mr Haenga reoffending and a moderate to high risk of him causing harm to others.

(b)Mr Haenga had spent time living on the streets between the ages of 11 and 14 and had spent time in foster care.

(c)Mr Haenga had been exposed to violence as a child, having been beaten by his father and witnessed his father hurting his mother.

(d)Mr Haenga had issues with alcohol and, to an extent, blamed some of his offending on that.

9      At [4], quoting from his sentencing indication given on 4 August 2023 at [15] and [16].

10     At [9]–[12].

[8]                 The Judge said that it was difficult from the terms of the report, to assess    Mr Haenga’s remorse:11

Albeit you say it is never okay to assault women, when you were asked specifically about remorse it seemed more so that you were apologising to your current partner and suggesting that had you not come down to Whanganui and left her, that this offending would not have occurred. In saying that, you do say you would like to apologise to the victim.

[9]                 The Judge then considered the personal circumstances which might give rise to a discount:12

… I find the following:

(a)In terms of remorse, that is hard to gauge as I said. The passages within the pre-sentence report do not really set out any genuine remorse for the violence that you have inflicted on the victim. To an extent, there seems to be a minimisation of that violence, certainly you say you do not recall some of the more serious aspects of it.

(b)In terms of your background, I accept that you have and were exposed to violence when you were younger. I temper that to an extent because it is self-reported. That said, from your self-reporting I have no doubt that violence was, for a period of time, a normal part of your childhood.

(c)In terms of your drinking and its relevance to this offending, I do not find there to be any connection which would warrant a deduction.

[10]He gave the five per cent discount “based on the background factors”.

Grounds of appeal

[11]             The appeal is focused on two discrete points. There is no challenge to the starting point adopted by the Judge, or to the uplift on the starting point for aggravating features of the offending. And there is no challenge to the discounts given by the Judge for Mr Haenga’s guilty plea or for the time that he spent on bail.

[12]The two issues advanced are these:

(a)Did the Judge fail to take into account, or take into account insufficiently, Mr Haenga’s personal circumstances such that a greater discount should have been made available?

11 At [12].

12 At [14].

(b)Did the Judge err in failing to allow a discount for Mr Haenga’s remorse and, if so, what should that discount be?

[13]             It is submitted for Mr Haenga that a 7.5 per cent discount should have been allowed for his personal circumstances.   Those  circumstances, it is said, include   Mr Haenga having been subject to sexual abuse as a child, his dislocation from his whānau as a child, his alcohol and cannabis problems and his mental health problems. The five per cent discount awarded is said to be inappropriate.

[14]             It is submitted for Mr Haenga that the Judge erred in finding that it was difficult to assess remorse from the pre-sentence report and in not applying a discount. It is said that a five per cent discount should be available to recognise his remorse.

[15]             The Crown opposes the appeal on both counts, saying that a five per cent discount to recognise Mr Haenga’s personal circumstances was within the Judge’s discretion and that no error was made on the Judge’s part in finding that Mr Haenga was not remorseful.

Approach on appeal

[16]             Under s 250 of the Criminal Procedure Act, the Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed. Otherwise, the Court must dismiss the appeal.

[17]             In most cases, the appeal court will not intervene unless the sentence is manifestly excessive and not justified by the relevant sentencing principles. Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.13

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

Discussion of the issues

Personal circumstances

[18]             While the Judge acknowledged that Mr Haenga had suffered hardship from violence in his upbringing and awarded a five per cent discount for that, it is said that the factors mentioned in [13] above needed to be accounted for also.

[19]The PAC report contains the following entry:

Mr Haenga said that he suffered sexual abuse when he was “very young”. He could not recall how long he endured the abuse.

[20]             That is the only information on the topic. Equally, the information available on Mr Haenga’s dislocation from his whānau as a child is limited. There is reference in the PAC report to Mr Haenga spending “a lot of time living on the streets” and to being “in and out of foster care”. There is reference to him having some happy memories of his time in foster care while, on the other hand, there is a reference to him feeling like he “was the slave” when living with his parents and suffering abuse at  the  hands  of  his  father.  The  report  contains  very  little  information  about  Mr Haenga’s mental health.

[21]             The respondent makes the point that the PAC report was the only pre-sentence report available to the Judge. No reports, or other forms of information, were made available through s 27 of the Sentencing Act 2002. Ms Taylor-Cyphers makes the point, quite correctly, that a s 27 report is not essential to justify a discount for personal and cultural background in a case such as this. She refers to Mau v R in which the Court, in the absence of a s 27 report, was prepared to infer the existence of a nexus between the offending in that case and the significant economic and cultural depravation that the defendant reported as having experienced during his upbringing. However, the Court was not prepared to infer the existence of a nexus between other personal circumstances advanced for the defendant and the offending without further evidence.14

14     Mau v R [2021] NZCA 106 at [31]–[33].

[22]             While, in Mau, the Court was prepared to accept a causal connection based upon self-reporting, it cannot support a proposition that the Court is bound to accept self-reported factors. That is apparent from the fact that the Court could not find a basis to accept some of the self-reported background factors in that case.

[23]             The necessary causal connection between a relevant background factor and the offending is central to the consideration of this issue.15 The difficulty is that there is not in my view sufficient evidence or information about the causal connection between any of the factors advanced and the offending to enable either a conclusion or at least an inference to be drawn. It is said for Mr Haenga that, in the highly charged situation in which the offending occurred, he reacted angrily and in a wholly inappropriate way. It is said that “he snapped” and that his upbringing made that all the more likely to occur. However, there is an absence of both sufficient underlying information into and about connecting factors to enable a further discount to be considered to take account of early sexual abuse, dislocation from whānau or mental health problems.

[24]             I turn now to consider Mr Haenga’s use of alcohol and cannabis. While, as the Crown points out, the Court cannot treat the voluntary consumption of alcohol at the time of offending as a mitigating factor,16 alcohol addiction issues may be considered in mitigation if there is an established causative link between an offender’s addiction and the offending.17

[25]             As the Supreme Court said in Berkland v R, a causative link can be established where addiction helps to explain why an offender has come to offend in some rational way.18 The difficulty here is that there is no evidence available to enable a conclusion to be drawn about any connection between Mr Haenga’s drinking issues and his violent behaviours. That is what sets this case apart from those in which alcohol addiction has been accepted as a mitigating factor.19 Accordingly, the Judge was entitled to find that there was no connection between Mr Haenga’s consumption of alcohol and his

15   The need for that causal connection is explained in  Berkland v R  [2022] NZSC 143, [2022] 1 NZLR 509 at [122]–[126]; see also Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159] and [162].

16     Sentencing Act 2002, s 9(3).

17     Wheeler v R [2017] NZCA 193 at [13]; Matthews v R [2019] NZCA 208 at [7].

18     Berkland v R, above n 15.

19     See, for example, Hughes v R [2022] NZHC 2835.

offending. Equally, there is no information to enable a conclusion to be drawn about a connection between Mr Haenga’s cannabis use and the offending, either in combination with drinking issues or in and of itself.

[26]             The Crown has said that, in any event, this is a case in which the gravity of the offending and the need for a deterrent sentence outweighs the prospect of taking potential additional mitigating factors into account.20 The offending here is particularly serious, as is Mr Haenga’s criminal history. However, the circumstances are such that it does not mean, in my view, that Mr Haenga’s personal circumstances should not be taken into account. But, for the reasons I have given, I do not see the Judge as having made a material error in setting the discount for Mr Haenga’s personal circumstances at five per cent.

Remorse

[27]             It is said for Mr Haenga that the Judge concluded wrongly that he had not demonstrated remorse.  It  is  said  that  the  Judge  ought  to  have  accounted  for  Mr Haenga’s willingness to engage in restorative justice and in a Stopping Family Violence programme.

[28]             Where a defendant demonstrates remorse, assessed by a proper and robust evaluation of all of the circumstances, a sentencing Judge should grant a separate discount.21 However, whether remorse is genuine is a question of fact and judgment.

The defendant bears the onus.22

[29]             The Judge was, in my view, perfectly entitled to find that Mr Haenga had not demonstrated that his remorse was genuine. As the Judge said, Mr Haenga’s first response, when asked about remorse, was to express regret in relation to his current partner. When prompted to say something about remorse towards the victim, he did say that he “would apologise” to her and that he was open to attending restorative

20     R v Gordon [2009] NZCA 145; Ross v R [2014] NZCA 272; Davidson v R [2020] NZCA 230 at [33].

21     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

22     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

justice. Limited comments of that nature are not enough to enable me to conclude that Mr Haenga has discharged his onus here.

[30]             Ms Taylor-Cyphers has referred to the Court of Appeal in Toko v R as having held that a five per cent discount for remorse was appropriate because the defendant was willing to engage in restorative justice.23 However, in that case, while the Court left a five per cent discount for a willingness to engage in restorative justice undisturbed, it did not comment on the discount itself as it was not the subject of the appeal.

[31]             Reference has been made also to R v Whaanga.24 However, that was a first instance sentencing decision in which a willingness to engage in restorative justice was one factor supporting a conclusion that remorse was genuine. The conclusions that I have reached in [29] above do not enable me to draw the same conclusions here. Accordingly, I find there to have been no error on the Judge’s part under this head.

Conclusion

[32]For the reasons I have given, the appeal is declined.

Radich J

Solicitors/Counsel:

M J Taylor-Cyphers, Auckland for Appellant Crown Solicitor, Whanganui for Respondent

23     Toko v R [2017] NZCA 460.

24     R v Whaanga [2020] NZHC 1318.