Kohu v Police

[2013] NZHC 944

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2013-443-000014 [2013] NZHC 944

PETER THOMAS KOHU

v

NEW ZEALAND POLICE

Hearing:         30 April 2013 (via AVL) Counsel:        N R Harding for Accused

S A Law for Crown

Judgment:      2 May 2013

JUDGMENT OF SIMON FRANCE J

[1]      Mr Kohu   appeals   an    overall   sentence   of   12 months   imposed   on

16 January 2013.[1]

[1] Police v Kohu DC Hawera CRI 2012-021-000916, 16 January 2013, Judge Roberts.

Facts

[2]      This case involves domestic violence.  By way of background, Police had in the preceding years been called to 11 domestic incidents at the home Mr Kohu shares with his partner and their four children.   None, however, had resulted in charges. Mr Kohu is 25 years old, and has a significant offending history, although only one common assault charge in 2004.  Several of the offences involve drink driving, and their  almost  inevitable  progeny  of  driving  while  disqualified.    There  are  also

numerous lower level property offences.

[3]      The  first  of  the  incidents  resulting  in  the  present  charges  occurred  on

26 September 2012.    Mr Kohu’s  partner  returned  home  to  be  greeted  with  an accusation of sleeping around.   In the course of the ensuing argument Mr Kohu pressed his clenched fist against his partner’s forehead, and shoved her.

[4]      Then  on  5 November 2012,  whilst  on  bail  for  the  preceding  incident,  in breach  of  those  conditions  but  seemingly  without  objection  from  his  partner, Mr Kohu  was  at  home.    Alcohol  was  being  consumed,  a  common  feature  in Mr Kohu’s offending.  Also present was his de facto mother-in-law who had been living with the couple for about six months, along with her partner.   It seems this arrangement was a source of stress.

[5]      For   reasons   not   disclosed,   Mr Kohu   started   to   search   a   jacket   his mother-in-law had brought to the house.   This led to a verbal altercation, which Mr Kohu’s partner momentarily quelled.   However, yelling “I am going to smash you b...h”, Mr Kohu ran into the room where his mother-in-law was.  He punched her above the eye causing her to fall to the bed.  He then shut the door, trapping her in and others out.   He then punched her again to the nose and mouth causing a bloody nose.  His mother-in-law screamed and Mr Kohu ran from the house.

[6]      His partner located him outside.   Mr Kohu approached her and used both hands to slap her simultaneously on either side of her face, causing her to stagger. He accused her of not supporting him, and went inside.  His partner rang the Police, at which point Mr Kohu left.

[7]      Mr Kohu was arrested. After discussions, he pleaded guilty to: (a)     common assault for the first incident;

(b)      assault with intent to injure her for the second incident; (c)     common assault for the slapping assault on his partner.

Sentencing

[8]      The  pre-sentence  report  identified  alcohol  as  a  key  contributing  factor. Mr Kohu was assessed as a medium risk of re-offending.   Letters were filed by Mr Kohu and his partner.  Mr Kohu’s partner expressed regret for the situation, and explained the various stresses the couple, who have been together since they were

15, had been under.  She described the offending as out of character.  She expressed hopes for their future and noted Mr Kohu was undertaking counselling.   Mr Kohu expresses what appears to be genuine remorse, and a degree of insight.  Since being jailed he has found faith and sees that as a strength for the future.  It is fair to observe neither letter appears to have regard to the fact that the Police had been called to the property so often in the past.

[9]      The Judge took a 12 month starting point for all the offending; he added four months for the fact that the main offending was committed on bail, and involved the same complainant.  He then reduced the sentence by four months for a guilty plea discount  (25 per cent)  leaving  a  final  sentence  of  12 months.    The  aggravating factors identified were assaults to the head, a not trifling injury, multiple victims and a breach of trust.

Sentence appeal

[10]     Mr Harding focuses on the 12 month starting point.  He disputes that punches to the head satisfy the R v Taueki factor of assaults to the head,[2]  noting the case referred to a severe beating or kicking causing head injuries.  However, that sentence is in the context of equating such conduct to assault with a weapon.  As for multiple victims, Mr Harding submits this is in effect double counting because the charging reflects that there are multiple victims.  However, this submission appears to ignore

that the 12 month starting point is a global figure for all offending, so multiple

victims is rightly identified as a relevant consideration.

[2] R v Taueki [2005] 3 NZLR 372.

[11]     Mr Harding contends for an eight month starting point and a two month uplift.  The uplift should not have contained any component for the fact that it was the same complainant since that was captured, it is submitted, by a separate two month concurrent sentence.

Decision

[12]     There is no guideline or tariff judgment concerning a charge under s 193 of the Crimes Act 1961.  The recent Court of Appeal decision in R v Nuku looked at more serious conduct – injuring and wounding – but committed with the same mental state as here – an intent to injure.[3]    Three bands were recognised against offences carrying starting points of five or seven years:

[3] R v Nuku [2012] NZCA 584.

(a)       non  imprisonment  where  the  violence  is  relatively  low,  and  the culpability could have been caught by a less serious charge;

(b)      up to three years for three or fewer aggravating factors; (c)     two years up to the maximum for more serious cases.

[13]     The  Court  emphasises  that  the  seriousness  of  each  factor  needs  to  be considered, as does the need to take an overview of the offending.

[14]     Mr Harding submitted the first band also included starting points of up to

12 months.  He accepted there is nothing on the face of the case to suggest this is so. And, in any event in terms of this case, that would be the band into which the sentencing was placed.

[15]     I do accept an aspect of Mr Harding’s submission to the extent that I consider that two punches to the head in a bedroom where the victim falls on the bed is at the lesser end of the Taueki concept of attacks to the head.  That is not to minimise what was a disgraceful assault on a middle aged woman, but each case needs to be placed in its correct context.

[16]     That said, I do not consider 12 months to be a concern.  Domestic violence is a scourge and sentences towards the upper end of a range are appropriate.  While no doubt the offending was a product of built up stresses, it consisted of an initial unprovoked punch to a defenceless middle aged woman, followed by closing the door to the room and directly punching her again in the face.  Jail was inevitable and

11–12 months available, especially given that starting point includes the two assaults on his partner, the second of which was again unprovoked, nasty and insulting.

[17]     As for the uplift, it is in my view at the upper limit given it is one third of the starting point, but I do not see a basis to disturb it on appeal.  Mr Kohu was not only on bail but in breach of a specific bail condition by being present at the house.  As for the same victim component, to the extent it was reflected in the uplift it is not separately punished by a concurrent sentence.

[18]     The appeal is dismissed.

Simon France J

Solicitors:

N R Harding, Partner, Thomson O’Neil & Co, Eltham, email:  [email protected]
S A Law, Crown Solicitor, C & L Legal, New Plymouth, email:  [email protected]