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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 944
Decision Date: 2 May 2013

CaseChat Overview and Summary

Kohu v Police is an appeal by the defendant against a sentence of 12 months imposed by the District Court. The case involved domestic violence incidents that occurred in September and November 2012, with the defendant pleading guilty to multiple charges of assault. The District Court considered various aggravating factors, including the defendant's significant offending history, alcohol as a contributing factor, and multiple victims. The court took a 12-month starting point for all the offending and added four months for the fact that the main offending was committed on bail and involved the same complainant. The sentence was then reduced by four months for a guilty plea discount, resulting in a final sentence of 12 months.

The appeal centred on the starting point of 12 months and the factors that led to the uplift. The defence argued that the punches to the head did not satisfy the R v Taueki factor of assaults to the head, and that multiple victims were effectively double-counted. However, the court held that the 12-month starting point was appropriate, given the nature of the offences and the need to take an overview of the offending. The court also considered the uplift to be at the upper limit but did not see a basis to disturb it on appeal.

The Court of Appeal dismissed the appeal, stating that the sentence was appropriate given the seriousness of the offences and the need for appropriate sentencing for domestic violence. The court emphasised the importance of considering the seriousness of each factor and taking an overview of the offending. The appeal was ultimately dismissed, and the 12-month sentence was upheld.

Orders