Kawhena v Police

[2014] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000015 [2014] NZHC 908

SIDNEY JUNIOR KAWHENA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	5 May 2014
Appearances:	M Dorset for the Appellant A D Hill for the Respondent
Judgment:	6 May 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by  on 6 May 2014 at 10:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

KAWHENA v NEW ZEALAND POLICE [2014] NZHC 908 [6 May 2014]

[1]      Mr Kawhena pleaded guilty in the District Court to one charge of assaulting a child aged 13.

[2]      On 17 March 2014, he was sentenced to four months’ home detention with supervision for a period of nine months and with the special conditions contained in the Provisions of Advice of Courts, namely to attend and complete such counselling/programme/treatment to address identified offending behaviour as may be directed by the Probation Officer and to the satisfaction of the Probation Officer and programme provider.  Mr Kawhena now appeals that sentence contending that the sentence imposed was manifestly excessive, was arrived at wrongly and that the conditions were imposed without proper reasoning.

Facts

Summary

[3]      The facts giving rise to the charge are set out in the agreed summary of facts.

[4]      This discloses that the victim was the appellant’s 13 year old daughter.  She and the defendant began to argue with the result that the defendant struck the victim in the face with both fists approximately five times.  He then kicked her in the upper leg area about the same number of times.   As a result of the assault, the victim received bruising to the right side of her face and a blackened right eye.

[5]      In explanation to the Police, the defendant stated his daughter had become abusive and invited him to beat her.

Pre-sentence report

[6]      In the Department of Corrections’ Provision of Advice to Courts (“PAC”), the appellant is assessed as having a moderate likelihood of re-offending due to his age and criminal history.  The risk of harm he poses to the community is also assessed as moderate.  The report records that assessment is mostly due to his violent propensity, identified as a contributing factor in this offending, along with misuse of alcohol. The appellant reported that on the day of the offending he had consumed 10 bottles of beer prior to the incident.   The report writer observed that the appellant was

somewhat nonchalant about the assault, describing the blows as being delivered by slaps rather than punches.  Of concern is the observation it took some “coaching” before Mr Kawhena accepted that his actions were wrong and indicated any level of remorse.

Victim

[7]      The victim impact statement records that while the victim does not appear to be concerned about retribution, she is “a bit scared” of the appellant after what happened.  She observed what she believed was drugs, alcohol and anger made her father do what he did.   She reports no ongoing or enduring effects of the assault, although she does note she remains “a bit angry about what happened”.

The sentencing decision and appeal

[8]      The sentencing Judge, in my view appropriately, flatly rejected the Probation Officer’s recommendation of a sentence of supervision coupled with community work.    He  specifically  expressed  concern  about  the  appellant’s  lack  of  victim empathy or remorse.   He did not attempt to resolve the conflict of whether the injuries were caused by punches or slaps. As he put it:

The fact of the matter is she finished up with a black eye.

[9]      Ms Dorset, who appeared for the appellant in the District Court, advised she explained  the effect  of  s 24  of the Sentencing Act  2002  and,  in  particular,  the availability of a disputed facts hearing for the Court to determine whether the blows were delivered in the form of open hand slaps or fists.  The appellant is reported as wishing to get the sentencing process behind him.  This is understandable especially as such a hearing would necessarily have required the complainant to attend as a witness against her father.

[10]     For the same reasons  as  the sentencing Judge,  I regard it  as  immaterial whether the blows were delivered with a fist or by a slap.  The material aspect is the injuries, the number of blows delivered and the target of those blows.

[11]     The Judge referred to the long list of previous convictions, mostly for drugs and alcohol noting a somewhat aged conviction for violence.  Although the Judge referred to only one violent offence in 1985 (domestic assault), I note a further violent conviction in 1987 for fighting in a public place.  However, I accept these convictions are nearly 30 years old and I place no weight on them for the purpose of the present exercise.

[12]     What concerns me and plainly troubled the Judge is the appellant’s lack of empathy and remorse evidenced by the nonchalant affect observed by the Probation Officer.

[13]     Furthermore, the multiple blows, whether punches or slaps, directed both to

the victim’s head and body takes this case out of the single blow scenario.

[14]     I am also concerned, as was the Judge, by the breach of trust implicit in the offending which s 9A(2) of the Sentencing Act 2002 (“the Act”) is directed to.

[15]     The closest case on its facts I have found is Hendry v Police1.  Although the victim there was the appellant’s five year old grandson and therefore a good deal younger than the present victim the assault involved a single slap with an open hand with sufficient force to leave a print mark on the victim’s face.  In Hendry there was also a background of alcohol consumption.

[16]     In Hendry, Clifford J observed that a sentence of imprisonment would not be excessive because the actions were beyond “a considered discipline”.   Ultimately, the appeal was allowed and a sentence of 100 hours community service and six month’s supervision was substituted.   However, it is noteworthy that his Honour commented that without the personal circumstances which made home detention difficult on the particular facts of that case, he would have allowed the appeal on the basis that an uplift of three months for prior convictions was excessive and replaced

it with a sentence of six weeks’ home detention.

1 Hendry v Police [2012] NZHC 3581.

[17]     The present offending is a good deal more serious than in Hendry, not only in terms of the assault itself, but also the resulting injuries to the victim.

[18]     Although it is difficult to be specific, I agree with the Crown, that the Judge’s starting point is likely to have been in the vicinity of 10 to 12 months’ imprisonment with a three to four month discount for the guilty pleas.

[19]   For offending of this type where the maximum penalty is two years’ imprisonment, I regard such a starting point as manifestly excessive.  Against the background of Hendry, a starting point of six months’ imprisonment would have been appropriate.  This takes into account the aggravating factors set out in s 9A(2) of the Act relating to violence against children under 14 years.

[20]     While Mr Kawhena’s long and dismal list of previous convictions do not, in my view, warrant an uplift, neither do they justify him receiving any credit for good character.

[21]     The only matter of mitigation is the appellant’s plea of guilty.  It appears that the appellant’s first appearance was on 16 January 2014 when he was remanded without  plea  to  5  February  2014.    On  that  date,  he  was  further  remanded  to

13 February 2014 when, it seems, he pleaded guilty.  Assuming this chronology is correct, he is entitled to a full early plea discount which I assess at 25% leaving an end sentence of four and a half months’ imprisonment.

[22]     I agree with the Judge that a sentence of home detention is appropriate.   I

note the victim no longer resides with the appellant.

[23]     In the circumstances, I regard a sentence of nine weeks’ home detention should be imposed.

[24]     The  concerns  of  the  Probation  Officer  around  the  appellant’s  violent propensity and history of drug and alcohol abuse justified of the post detention conditions. They should remain.

[25]     It was raised whether the sentencing Judge had jurisdiction to also impose a sentence of supervision combined with home detention.  I was referred to s 19(4) of the Act. This appears to make it plain the sentence of supervision should not have been imposed. Accordingly, that sentence is quashed for want of jurisdiction.

Result

[26]     The appeal against sentence is allowed.   A sentence of nine weeks’ home detention is substituted with the post detention conditions contained in the Provision

of Advice to Courts remaining. The sentence of supervision is quashed.

Moore J

Solicitors:

M Dorset, Rotorua

Crown Solicitor, Rotorua