Kohunui v The Queen

[2005] NZCA 258

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/05

THE QUEEN

v

HARI GEORGE KOHUNUI

Hearing:18 October 2005

Court:Chambers, Potter and Doogue JJ

Counsel:P H H Tomlinson for Appellant

M F Laracy for Crown

Judgment:1 November 2005 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS

(Given by Potter J)

Introduction

[1]       Hari George Kohunui appeals against a sentence of three years imprisonment imposed by Judge Lovell-Smith following his guilty plea to a charge of injuring with intent to cause grievous bodily harm under s 189(1) Crimes Act 1961. 

[2]       The appeal is brought on the ground that the sentence imposed is manifestly excessive.  It is submitted for Mr Kohunui that this arises from two aspects:

a)The starting point of four years taken by the sentencing Judge was too high; and

b)There was insufficient discount for the mitigating factors including a guilty plea which it was submitted was entered at the earliest opportunity.

[3]       The Crown submits that the starting point of four years was available to the sentencing Judge although at the high end of the available range.  Further, that the discount of approximately 25% was ample for the mitigating factors including the guilty plea.

Factual background

[4]       At about 1 a.m. on 16 July 2004 the victim was sitting in a parked motor vehicle in the Waiuku Library car park.  The appellant and an associate were driving north on King Street.  They drove into the library car park and parked their vehicle alongside the victim.  The appellant got out of the driver’s seat and approached the victim who was seated in his vehicle.  The appellant opened the door of the victim’s vehicle and began abusing him before embarking on a prolonged assault by continuously punching the victim about the head and body.  Numerous punches were made to the facial area. 

[5]       The appellant’s associate also got out of the vehicle in which they had been travelling and approached the victim.   He punched the victim twice before removing the ignition keys.  He then removed a guitar from the rear of the vehicle and struck the victim in the rear of the head with it.  He removed a number of items from the vehicle while the appellant was attacking the victim.

[6]       While this was going on the appellant continued to assault the victim, kicking him about the body before forcibly pulling him from his vehicle.  The victim managed to break free and ran for help.  The appellant and his associate drove around for a short time in an attempt to locate the victim.  The appellant yelled out:

Find him and fucking kill him.

Sentencing

[7]       The Judge outlined the undisputed facts as above except she referred to the assault extending over a 20 minute period, although it appears that by agreement that fact had been deleted from a later amended summary of facts.  The Judge referred to the victim impact statement which records that as the result of the assault the victim was hospitalised at Middlemore Hospital.  He suffered severe bruising and swelling to both arms, head and face.  He also received a cut to his right ear and his right knee was bruised.  He stated that as he was pulled out of the car he was pulled by the hair and quite a bit of hair was pulled out.  The Judge noted that fortunately the victim had suffered no permanent physical injury but she accepted that the emotional harm which resulted from the incident might well last with him for a considerable period of time.

[8]       The Judge stated that the pre-sentence report for the appellant was an encouraging one.  It referred to the appellant as a 23 year old man in a long-term relationship, with a child; that he had a good job and an excellent reference from his employer who still wished to offer him employment. 

[9]       There were relevant previous convictions in the District Court, for common assault and disorderly behaviour (two), and previous appearances in the Youth Court, including for assault with intent to injure, male assaults female, common assault (two) and assault with a blunt instrument.

[10]     The Judge referred to submissions that the reason behind the appellant’s offending was that he had become angered by what he perceived to be unwelcome attentions directed by the victim towards a young family member, coupled with excess consumption of alcohol that had caused the appellant to completely lose all self-control. 

[11]     She noted the early plea of guilty, apologies to the victim, that the appellant’s remorse was genuine and that he had the support of his wider family, his partner, and his employer.

[12]     The Judge said that on the authority of R v Hereora [1986] 2 NZLR 164 a sentence in the range of three to five years imprisonment was indicated. She referred to the aggravating features as being the use of actual violence including numerous punches to the facial area as well as kicks to the body, physical and emotional harm suffered by the victim, an element of premeditation (although not at a high level) and the previous conviction for violence. She took a starting point of four years and imposed a sentence of three years which she considered was the least sentence she could impose in the circumstances. She also ordered that the appellant pay half the reparation of $1190 on the basis of an offer he had made. (We are advised by the appellant’s counsel that no reparation has been paid because the appellant has been in custody since sentencing).

Submissions for the appellant

[13]     Mr Tomlinson submitted that the starting point was too high.  He submitted that in basing her starting point in the three to five year range on the authority of Hereora, the Judge failed to take into account that the maximum sentence for this offending was ten years, whereas Hereora was concerned with an offence carrying a maximum sentence of 14 years.  Counsel referred to the fact that in her sentencing notes the Judge said of the starting point “[it] can be less than the Crown has submitted of four to five years”, but then adopted four years as her starting point.  He submitted that the authority of R v Taueki [2005] 3 NZLR 372 now governs sentencing for this type of offending and that pursuant to Taueki the starting point would be two to four years or thereabouts.  However, counsel acknowledged before the Court that this sentencing took place prior to the judgment in Taueki becoming available.

[14]     It was also submitted that the Judge’s reference to:

Quite a bit of his hair … pulled out

was a reference to the victim impact statement and was not part of the summary of facts on which the guilty plea was entered.

[15]     It was further submitted that insufficient account was taken of the appellant’s personal circumstances and his offer of reparation which it was submitted was “genuine and substantial”. 

[16]     Counsel submitted that an appropriate sentence would have been in the vicinity of two years or perhaps a little less and that home detention should have been considered.

Crown submissions

[17]     The Crown accepted that reference to the attack “lasting some 20 minutes” had been deleted from the summary of facts, but submitted that reference to this fact by the sentencing Judge was of no substance, as this was plainly a deliberate and extended assault which the summary of facts, accepted for sentencing purposes, referred to as “prolonged”, an apt description.  The reference to the hair having been pulled out was in the victim impact statement and the Judge accurately referred to it in that context.

[18]     Counsel submitted that by way of guidance, Hereora was appropriate and that this offending falls into the 3-5 year range which commonly captures impulsive acts of violence involving the use of a weapon or intent to inflict serious injury.  It was submitted that the difference in the maximum penalty does not make Hereora irrelevant, though it may require adjustment in the case of a less serious offence, and that the nature of the offending should receive the primary emphasis rather than the focus being the precise nature of the charge.  It was submitted that a starting point in the 3-5 year range was in principle available to the Judge and that the same range is reached if Taueki is relied upon. 

[19]     Counsel noted that Taueki applies to cases of serious violent offending and is not limited to offending under s 188(1).  Band 1 in Taueki of 3-6 years is specified in the judgment as appropriate for offending involving violence at the lower end of the spectrum of grievous bodily harm offences.  It was submitted that taking into account the difference in maximum penalty between s 189(1) and s 188(1), while a starting point of six years at the upper end of Band 1 in Taueki would be inappropriate for an assault under s 189(1), a starting point of up to five years remains available.

[20]     The Crown’s submissions referred to the aggravating features of this offending:

·     Prolonged, unprovoked violence inflicted with a specific intent to cause harm following which the offenders pursued the terrified victim.

·     Many of the blows landed by the appellant were directed at the victim’s head.

·     The two offenders acted in concert.  Both went to the victim’s car.  Both assaulted him.

·     There were aspects of vigilante/revenge from the appellant’s perspective and a degree of premeditation.

·     The appellant has one conviction for common assault in the District Court and five assault notations in the Youth Court.

[21]     The Crown submitted that the reduction of 25% was ample to reflect the mitigating features including the guilty plea which the Crown accepted was entered at the first opportunity after the indictment was amended to include a lesser charge than originally.  It was submitted that the appellant’s personal circumstances warrant no further discount: he is not a first offender and has had previous opportunities to prove his commitment to his job and his family and to resolve his alcohol problems.

Conclusions

[22]     The starting point of four years adopted by the sentencing Judge was open to her, though at the higher end of the available range.  While Hereora was the authority taken as a reference point for sentencing, the subsequent judgment in Taueki confirms that the starting point adopted by the sentencing Judge was consistent with Band 1.  In Taueki the Court specifically noted that where one or more aggravating factors is present a higher starting point than that at the bottom end of Band 1 would be required.  This was the situation here where there were a number of aggravating factors correctly identified by the sentencing Judge.

[23]     No criticism can be levelled at the discount of 25%.  The discount is a matter within the discretion of the sentencing Judge.  It appropriately took account of the early guilty plea.  It was not appropriate for the Judge to place significance on the offer of reparation when this was not carried into effect and there were no arrangements for payment.  Nor could the Judge provide any significant credit in relation to personal circumstances.  As the Crown pointed out, the appellant was not a first offender and, despite his comparatively young age of 23 years, had previously been given several opportunities to address the root causes of his offending, which appear to be substantially alcohol related.

[24]     Ultimately, however, the only question for us is whether the sentence of three years imprisonment imposed was manifestly excessive as outside the sentencing range legitimately available to the sentencing Judge.  Having regard to all the circumstances of this case the answer to that question here, must be “no”.

Outcome of the appeal

[25]     The appeal is dismissed.

Solicitors:

Peter HH Tomlinson, Auckland for Appellant
Crown Law Office, Wellington