Kahika v Police

[2015] NZHC 1262

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-0047 [2015] NZHC 1262

JUNIOR KAHIKA

v

NEW ZEALAND POLICE

Hearing:	2 June 2015
Appearances:	R Phillip for the Appellant F Cleary for the Respondent
Date:	2 June 2015

JUDGMENT OF THOMAS J

RE APPEAL AGAINST SENTENCE

KAHIKA v NEW ZEALAND POLICE [2015] NZHC 1262 [2 June 2015]

Introduction

[1]      Mr Kahika was sentenced at the District Court in Hastings to two years and one month’s imprisonment.   He was sentenced after having pleaded guilty to representative charges of male assaults female, assault with intent to injure and breach of protection order.

[2]      He appeals on the basis that the end sentence was manifestly excessive.

Summary of facts

[3]      Mr  Kahika  is  the  ex-partner  of  the  victim  in  this  matter.    They  were previously in a relationship for approximately 10 years and have two children together.

[4]      In 2008, a final protection order was granted in the Hastings Family Court in respect of the victim and her two children.  Mr Kahika was the respondent.

[5]      The circumstances of the offending relate to events which took place between Friday 18 April 2014 through to the following Saturday 26 April.  At the time, Mr Kahika was subject to a condition not to associate with the complainant as part of his prison release conditions.  There was contact between the respondent and the victim on the Friday to organise Mr Kahika having access to the children over Easter.  The victim dropped them off and then returned to her home.

[6]      At around 2 pm that afternoon, Mr Kahika turned up at the victim’s house. He did not have the children with him.  She had friends there so he left.  He came back a short time later once the friends had left.

[7]      Later that evening, he and the victim were sitting around the victim’s bed. He stood up.  He approached the victim and slapped his hand over her mouth.  He then covered her mouth with his hand, one finger covering her nose so she could not breathe properly.  She fell backwards onto the bed.  Mr Kahika knelt over her.  She was fighting, kicking and slapping trying to stop Mr Kahika and trying to get his

hand off her mouth.  While this was going on, he swore at her and abused her.  She stopped fighting, hoping it would encourage him to stop.  He eventually did.

[8]      She got off the bed and walked towards the kitchen, grabbed her phone and took it into the bathroom and locked the door.   He then jumped over the wall between the toilet and the bathroom.  There is a metre high gap  between the wall and the ceiling.  He then grabbed the victim by the hair, wrapped his hand around her hair and pulled her close, again whispering abusive terms and telling her to ‘shut the fuck up”.  He said he would let her go if she stopped screaming.  She did.

[9]      She ran out of the bathroom and into one of the children’s bedroom, trying to escape from the window.   Mr Kahika grabbed her by her hair again, pulled her backwards causing her to fall to the floor, and again, began abusing her.  He grabbed her arm and pulled her out of the room into the bedroom.  She tried to run away.  He then grabbed her by the throat and lifted her off the ground onto the bed.  The victim started screaming again.  Mr Kahika then “bear hugged” her, forcing her own fists to press against her breasts, digging into her breast bone area.   She thought he was going to kill her.  She curled up into a ball and started crying.  He then laughed.

[10]     The victim estimated the assault continued for about one hour.  Eventually, he picked her off the floor and said “sorry” and that he “didn’t want to go back to jail again”.  He put her to bed.  She fell asleep.  When she woke a few hours later, he looked at her and said “fucken hell what did you do to yourself”, as though he had not done anything.

[11]     As a result of the assaults, the victim had bruises on her neck, chest, legs and arms.  He told her to wear dark glasses, long shirts and pants, so that no one could see her bruises.  Mr Kahika stayed with the victim from Friday 18 April to Saturday

26 April 2014, during which he continued to call her abusive names.

[12]     On 25 April 2014, the children were brought back home.  While the appellant was at the home, he verbally abused the victim in front of the two children.   He finally left the victim’s address and she called the Police.

Pre-sentence report

[13]     The pre-sentence report notes Mr Kahika’s acknowledgement that he seemed, once again, “to be going back to prison for the same thing”.   The report writer referred to the physical and emotional harm which had been inflicted upon the victim and Mr Kahika’s previous 24 family violence incidents.  Mr Kahika told the report writer that “she is as bad as he is” and they are both to blame.  Mr Kahika said that he has in the past attempted to move on to a new relationship but it was difficult as he and the victim have children together.

District Court decision

[14]     Mr Kahika pleaded guilty on the morning he was to stand trial on these and other charges.   Those other charges included kidnapping, injuring with intent to injure and threatening to kill. The other charges were withdrawn.

[15]     The maximum penalties are three years’ imprisonment for both assault with intent to injure and breach of protection order and two years’ imprisonment for male assaults female.

[16]     The District Court Judge adopted a starting point of 18 months’ imprisonment on what he treated as the lead offence, assault with intent to injure.  He uplifted the sentence by six months to take into account the charges of male assaults female and breach of protection order.  That led to a starting point, in respect of all charges, of two years’ imprisonment.

[17]     The Judge then uplifted the starting point by six months to take into account Mr Kahika’s previous convictions describing his conviction history as “appalling” and saying, “it is quite clear that [he] has not been learning from the sentences that [have] been imposed in the past for this type of offending.”

[18]     As I say, the plea was on the morning of the trial.1   The Judge took the view that Mr Kahika was entitled to a discount of 15 per cent for his guilty plea in light of

the fact that the victim would not have to undergo the ordeal of giving evidence.

1      Although I note that counsel for Mr Kahikha has said that his intention to plead guilty to the

[19]     The end sentence was two years’ and one month’s imprisonment, with two years imposed on the charge of assault with intent to injure, 12 months on male assaults female and six months on breach of the protection order.

Appellant’s submissions

[20]     Mr Philip appears for Mr Kahika today.  In his submission, the Judge erred in determining the starting point on the charge of assault with intent to injure and the uplift.   The end starting point was too high and the end sentence was manifestly excessive, in his submission.

[21]     Mr Philip refers to a number of cases, which he says demonstrate that the Judge adopted a higher starting point on the charge of assault with intent to injure than the authorities to which he refers.  He says those cases demonstrate violence on a greater scale than the present case but yet the starting points were equal to or lower than those adopted by the Judge in this case.

[22]     In particular, he notes that the offending did not involve punches to the face or body, strangulation, or kicks to the head or body.  In his submission, the proper starting point in respect of the charge of assault with intent to injure was 12 to 16 months’ imprisonment.

[23]     Furthermore,  he  says  the  uplift  to  take  into  account  the  totality  of  the offending was in error.  Because the offending was part of a single event related in time, subject matter and behaviour, the uplift was excessive and manifestly so, in his submission.  Rather, the offending should have been treated as what he described as a one “job lot”.

[24]     Mr Philip does, however, concede an uplift for the breach of the protection order was appropriate, perhaps within the range of two to three months.

[25]     In  Mr  Philips’ submission,  once  the  15  per  cent  discount  is  taken  into

account, which he says is a proper discount given the other charges which were

lower charge of male assaults female was known to the Crown as early as May 2014.

withdrawn, the end sentence should have been in the range of 20 or 21 months’

imprisonment.

Respondent’s submissions

[26]     Ms Cleary, for the Police, submits there was no error in the Judge’s approach. Although  the  offending  did  not  involve  punches,  kicks  or  strangulation,  in Ms Cleary’s submission, that does not automatically reduce the seriousness of the offending.  It was highly physical, involving the victim being pulled by the hair with force enough to cause her to fall over, being lifted from the ground by the throat, thrown on the bed, and forcing the victim’s own fists into her chest by squeezing her.

[27]     In Ms Cleary’s submission, the Court of Appeal decision of Nuku v R is of guidance, although of course, it deals with more serious offending than this case.2

By adjusting the application of Nuku, a starting point of 18 months’ is appropriate, in her submission.  The aggravating factors are the attack to the head, the vulnerability of the victim, and the prolonged assault.

[28]     Ms Cleary relies on one of the cases referred by Mr Philip, Rewita v R.3   She says the offending in this case was just as serious as that of Rewita.   In her submission, the offending in this case involved a more prolonged attack and with a higher degree of physical and psychological abuse.  She also discusses the case of Lusty v R which, in her submission, is of no assistance to the Court today because there was nothing particular said by the Court of Appeal about starting points in cases of this type.4

[29]     In Ms Cleary’s submission, the Judge’s uplift of six months to reflect the other offending was also appropriate, particularly given the breach of protection order.  Furthermore, the discount for the guilty plea was a generous one and, in Ms Cleary’s submission, a discount of 10 per cent could certainly have been viewed as

the appropriate level in the circumstances.

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

3      Rewita v R [2013] NZHC 2175.

4      Lusty v R [2012] NZCA 275.

Approach to appeals

[30]     Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:

(a)       for any reason there is an error in the sentence imposed ; and

(b)      a different sentence should be imposed.

[31]     In any other case, the Court must dismiss the appeal.5

[32]     The Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given rather than the process by which the sentence is reached.6

Analysis

Was the starting point outside of the available range?

[33]     There is no tariff case dealing with sentences on the charge of assault with intent to injure.  The bands in Nuku v R are of guidance, although that case involved wounding with intent to injure.  This Court has emphasised that Nuku should not be applied directly and without adaptation.7   Reliance on Nuku must therefore not result in a starting point which is out of kilter with other sentences for this type of offending.8   Nuku sets outs three bands of offending and refers to the aggravating features identified in Taueki.9

[34]     In this case, the aggravating features include attacks to the head (Mr Kahika placed his hand over the victim’s mouth and  covered her nose making it difficult for

the victim to breath; he later lifted her by the throat); the vulnerability of the victim

5      Criminal Procedure Act 2011, s 250(3).

6      Ripia v R [2011] NZCA 101 at [15].

7      See, for example, Hannay v Police [2014] NZHC 2015.

8      Waitohi v R [2014] NZCA 614 at [18].

9      Above n 1, at [34] – [35]. See also R v Taueki [2005] 3 NZLR 372 (CA) at [31].

(she was alone in her own home and covered by the protection order);10   the duration of the offending; the pursuit of the victim (Mr Kahika climbed over a wall to gain access to her and continue the assault when she had locked herself in the bathroom); and the detention of the victim (Mr Kahika prevented her from escaping via the window and continued the assault).

[35]     The essence of Mr Philip’s submission is that the attacks were not sufficiently serious to warrant the starting point which was adopted.  The case did not involve any punches to the face or body, strangulation, or kicks to the body or head.   In my assessment, however, the aggravating features detailed above and the extent of the

victim’s bruising demonstrates the seriousness of the offending.11

[36]     Sentencing is an evaluative exercise rather than a formulaic one.   In any event,  the  overall  question  is  whether  the  sentence  imposed  was  manifestly excessive.

[37]     I have considered the cases to which Mr Philip refers.   In my assessment, they do not show that the starting point adopted in this case was excessive.   The present case has the same overlay of violence and vulnerability which characterises the response taken by the courts in the other cases cited by Mr Phillip.  The case of Rewita v R, for example, was a domestic violence case involving a charge of assault with intent to injure and breaches of protection orders.  The offences included the appellant pulling the victim to the ground, slapping her with an open hand, punching and kicking her.   The High Court Judge upheld the sentence of the District Court Judge.  The facts are broadly similar to that in this case.  Although Mr Kahika did not punch the victim, he pulled her by the hair, grabbed her by the throat, pulled her

from the ground and threw her onto the bed.  He prevented her from escaping on two

10     The Court of Appeal in Taueki, above n 9, said breach of a protection order in favour of the victim is an aggravating factor.

11     This can be distinguished from the facts in Tamihana v R [2015] NZCA 169, for example, where a starting point of 18 months’ imprisonment was held to be manifestly excessive and should have been 12 months. In that case, the appellant and an associate were outside a bar. Following an argument, the appellant’s associate punched the victim to the face with a closed fist and

knocked him to the ground, and then kicked him while he was defenceless.  The appellant then

kicked the victim once to the head, while he was lying on the ground.  The Court was of the view that the case was comparable to band two of Nuku, although the offending was not at the higher end of such offending.   Unlike the present case, Tamihana did not involve domestic violence.  The assault by the appellant was a one-off kick to the head, and the overall offending was of a short duration.

occasions, one when she tried to distance herself by locking herself in the bathroom and the other when she was trying to climb out of the window.  I am not satisfied that the starting point, in respect of the assault with intent to injure, was out of kilter.

[38]     The uplift of six months for the totality was also, in my assessment, entirely warranted in the circumstances particularly given that the breach of protection order involved as it did not only the offending against the victim but also the breach so far as behaviour in front of the children was concerned.  Indeed, in my view, the breach of protection order could be considered the lead offence.

[39]     However, it is not for this Court to tinker with sentences or to alter them unless it feels the sentence imposed is contrary to both principle and conscience.

[40]     The Judge in this case, did not take the “job lot” approach suggested by Mr Phillip.  However, if one stands back and looks at the totality of the offending, I am not satisfied that an overall starting point of two years is manifestly excessive. The charges are representative charges, covering offending of quite some duration. Mr Kahika assaulted the victim intending to injure her.  She was kept in the house and prevented from escaping while a protection order was in force.  Injuries from an assault are not the only consideration in sentencing.   So as I say, two years’ imprisonment as an overall starting point was entirely appropriate.

Previous convictions

[41]     The Judge uplifted the sentence by six months to reflect previous convictions. Mr Kahika has a concerning criminal history, in particular in relation to this type of offending.   On my count, there are nine previous convictions for breaching a protection order and I gather they all involve the same victim.

[42]     The most recent conviction was in February 2014.  Mr Kahika was sentenced on a breach of protection order and domestic assault to six months’ imprisonment subject to release conditions.   He has two convictions for breaching those release conditions.   He was subject to release conditions not to associate with the victim when this offending occurred.

[43]     In  these  circumstances,  an  uplift  of  six  months  cannot  be  considered excessive.

[44]     I take into account what counsel has said regarding the 15 per cent discount and take that no further.

Result

[45]     For the reasons given, I am not satisfied that the sentence was manifestly excessive and the appeal is dismissed.

Thomas J