Kihi v Police

[2017] NZHC 2883

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-64 [2017] NZHC 2883

BETWEEN

ADAM POUWHERO JOHN KIHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 November 2017
Counsel:	A J Hamblett for Appellant M Dillon for Respondent
Judgment:	23 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 23 November 2017 at 12.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Solicitor, Hamilton

KIHI v POLICE [2017] NZHC 2883 [23 November 2017]

[1]      Mr Kihi pleaded guilty to charges of breach of protection order,1 assault of a child,2  wilful damage,3  male assaults female4  and assault with a weapon.5    He was sentenced to 18 months’ imprisonment.6   He now appeals against that sentence.

Background

[2]      Mr Kihi was at home with his partner of 20 years and one of their sons. He became angry with his partner. In the process of trying to strike her, he hit his son. Matters escalated. He punched his partner in the head and then struck her five times with a hair straightener. She suffered a cut to her head and some numbness. Mr Kihi has six previous convictions for violence and four for breaching a protection order. The previous conviction for breach of protection order and domestic violence in 2016 attracted a sentence of three months’ imprisonment.

The sentence

[3]      Judge  P R  Connell  summarises  the  facts  of  the  offending  and  refers  to

Mr Kihi’s history of offending. In then formulating sentence, the Judge:

(a)      Examines  whether  Mr  Kihi  could  be  suitable  to  take  part  in  the Hamilton Abuse Intervention Programme (HAIP) but notes there were difficulties in identifying a suitable address.

(b)Refers to  expressions of concern raised by the Probation Service, reflecting the opinions expressed by Oranga Tamariki about the children and how they may be exposed to violence if Mr Kihi is given a non-custodial sentence of home detention.

(c)       Concludes there must be a term of imprisonment, though noting Mr

Kihi’s partner did not want him to go to jail and that it is preferable he be given the opportunity to take part in HAIP.

1      Domestic Violence Act 1995, s 49.

2      Crimes Act 1961, s 194(a).

3      Summary Offences Act 1981, s 11(1)(a).

4      Crimes Act 1961, s 194(b).

5      Section 202C.

6      Police v Kihi [2017] NZDC 18269.

(d)Acknowledges the victim’s expression that she still loves Mr Kihi and that they are in a good relationship.

[4]      On the lead charge, assault with a weapon (the hair straightener), the Judge adopts a starting point of 18 months.  He then applies an uplift for the other offences, of nine months, resulting in a global starting point of 27 months.  Credit is given for guilty plea, though Judge Connell notes it was at a late stage. He, nevertheless, applies a discount of nine months, reducing the sentence to 18 months’ imprisonment on the lead charge.  He then imposes concurrent sentences of six months’ imprisonment for each of the male assaults female, breach of protection order and assault on a child charges.  He discharges Mr Kihi on the wilful damage charge. Special conditions on release are imposed, including that Mr Kihi complete HAIP.

Jurisdiction

[5]      Appeals against sentence by defendants are available as of right under s 244 of the Criminal Procedure Act 2011. They must be determined in accordance with s 250 of the Act. The Court should only intervene and substitute its own view of sentence if there is an error in the sentence and a different sentence should be imposed.   A manifestly excessive sentence remains a paradigm example of appealable error.7

Argument

[6]      Mr Hamblett, for Mr Kihi, contends:

(a)       the Judge should have adjourned the sentencing so that another home detention address could be assessed;

(b)      a  starting  point  of  27  months’ imprisonment  was  too  high  and  a

sentence of 18 months’ imprisonment was manifestly excessive;

(c)       the Judge stated the 18 month sentence for assault with a weapon was the lead sentence and Mr Kihi would be sentenced to nine months on

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

the remaining charges concurrently but, in fact, they were imposed cumulatively, producing a starting point of 27 months;

(d)Mr Kihi and the victim wanted a restorative meeting but that did not happen; and

(e)       Mr Kihi pleaded guilty early and wrote sincere letters of remorse and apology, but the Judge did not address the issue of remorse.

[7]      Instead, he submits Mr Kihi’s offending is comparable to the offending in Hurinui v R8 and Tamihana v R,9 in which sentences of 18 and 13 months’ imprisonment were handed down respectively.   By reference to Nuku v R,10  Mr Hamblett submits the present offending falls into band one and possibly band two, with starting points ranging from a sentence of less than imprisonment to three years’ imprisonment available. Following that methodology, and correcting the errors identified, he submits a starting point of nine months and an end sentence of seven and a half months’ imprisonment was instead appropriate.

[8]      Alternatively, he submits Mr Kihi should be granted leave to apply for home detention if a suitable address is identified.

Assessment

[9]      As appellate courts have often said, in reviewing a sentence it is not the exact method by which the sentence is arrived at that is important; it is whether the sentence overall is manifestly excessive.11   The present offending is serious domestic violence offending. Given the repeat breaches of protections orders, combined with serious domestic violence, a substantial starting point is to be expected. In Tetau v Police for example, a two year starting point was adopted for two breaches of protection orders, some minor assault offending and obstructing police.12 This starting point reflected

that the offending represented Mr Tetau’s eleventh breach. This was uplifted by nine

8      Hurinui v R [2014] NZCA 290.

9      Tamihana v R [2015] NZCA 169.

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

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     Tetau v Police [2015] NZHC 1284.

months in recognition of the fact Mr Tetau was subject to a sentence at the time of his most recent offending. On appeal Mander J acknowledged the nine month uplift involved a degree of double counting, and consequently reduced the end sentence by three months.13  In comparison to Mr Kihi, while Mr Tetau’s offending was more egregious in terms of breach of protection orders, the domestic violence was considerably less serious.

[10]     In my view, while a starting point of 27 months is comparatively high, it is not out of range. Nevertheless, it is not clear whether the Judge had in mind a cumulative approach. He stated:

[17]     There will be an uplift to take account of all other offences. The assault, the breach of the protection order, the assault on the child and that uplift must be substantial. It is nine months because of the numbers of those charges but at least I am dealing with it on a concurrent way. …

[11]     Finally, the failure to expressly consider remorse is an error, though it is clear the Judge deliberated very carefully on an alternative approach, involving HAIP, which to my mind reflects due consideration of Mr Kihi’s personal circumstances, amenability to rehabilitation and the victim’s wishes. In any event, given this unusual combination of factors I will examine the sentence afresh to test the appropriateness of the end sentence.

[12]     First, the repeat breaches of protection orders, in combination with domestic violence to his partner and child, are serious matters. A two year combined starting point is appropriate. Alternatively expressed, a combined 12 month starting point for the violent offending and a 12 month starting point for the protection order breaches would be within the range of available starting points for this type of offending.14 It also accords with the need to denounce and deter repeat behaviour of this kind.

[13]     Second, Mr Kihi’s history of domestic violence, including recent domestic violence which attracted a three month term of imprisonment, warrants an uplift. But

13 At [47].

14     I refer to Apineru v Police [2014] NZHC 1969, Palmer v Police [2015] NZHC 143, Mitchell v R [2013] NZCA 583, (2013) FRNZ 498 and Toko v Police [2012] 1900, all discussed in Tetau v Police [2015] NZHC 1284.

I think this is offset by the third factor, namely, Mr Kihi’s sincere expressions of remorse and the restorative wishes of the victim.

[14]     Finally, a discount of 25 per cent for the guilty pleas must be applied.

[15]     In the result, I arrive at a sentence of 18 months’ imprisonment.  This accords with the outcome reached in the District Court (which is explained by the fact the Judge appears to have miscalculated the guilty plea discount).

Leave to apply for home detention

[16]     Lastly, I turn to consider Mr Hamblett’s complaints that the Judge should have considered an alternative address to enable Mr Kihi to participate in HAIP or as a minimum granted leave to apply for home detention. In this regard, Mr Hamblett refers to s 80I of the Sentencing Act 2002 which states:

80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1)      This section applies if—

(a)       a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)       at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)       At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[17]     There are two parts to this complaint. The first part deals with the adjournment. I do not consider the Judge erred in not granting one. It was well within his discretion to decline any adjournment for finality reasons.

[18]     But in relation to the second part, it does not appear s 80I was brought to the Judge’s attention. This is important because the Judge appeared to be willing to accommodate an alternative course for Mr Kihi had a suitable address been available,

no doubt mindful of the importance of his rehabilitation. The following passages of his sentence illustrate this point:

[10]      When you first came before me I considered that you might have been someone suitable to undergo the process of the Pathways Court.  What I had an interest in was seeing if you would take part in the HAIP programme, receive the assistance that refuge were offering.  Assessments were received suggesting that you are someone who could be helped, might be able to take part in those programmes. I considered that I might, rather than send you back to jail, do something about trying to get you out of this cycle of physical abuse and breaching of the protection orders and get you into a non-custodial home detention sentence.

[11]     The difficulty has arisen that your address that you offer for that purpose is one where children live.  I have a report this morning from the Probation Service (because we remanded it for this purpose) to look at whether or not those children would in fact be safe within this household if you went back to it on a sentence of home detention.  In short, I can simply say to you and I think you know through counsel that indeed the Probation Service are concerned because of the opinions expressed by Oranga Tamariki that expressions of concern about the children and how they might be exposed to violence.

[19]     There is a related matter. No application was made pursuant to s 27 of the Sentencing Act to enable evidence to be given on Mr Kihi’s personal, cultural or whānau background that might be relevant to,  among other things, any cultural processes available to address his propensity for violence, support he might receive from whānau, or possible alternative sentences. For my part, this is a case demanding careful consideration of these matters.

[20]     In combination, I consider the requirement to identify the least restrictive sentencing option was not properly exercised. Given the obligation to grant leave to apply for home detention if it is suitable but for availability of an address, the failure to consider that potential manifests an appealable error. In saying this I make no criticism of the Judge. As noted, the significance of ss 27 and 80I was not brought to his attention.

[21]     As to relief, Mr Kihi has already served five months. I consider some urgency is required. Rather than referring the matter back to the District Court, I allow the appeal and  grant leave to Mr Kihi to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, if an appropriate address is found. I also consider that in the event an application is made, a s 27 report

should be provided by counsel for Mr Kihi addressing the matters set out in that section.

Outcome

[22]     The appeal is allowed in part.

[23]     Leave is granted to Mr Kihi, pursuant to s 80I, to apply for cancellation of his sentence of imprisonment and substitution of a sentence of home detention, if an appropriate address is found.