Kojeunikov v Police

[2013] NZHC 551

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-470-2 [2013] NZHC 551

ILYA OLEGOVICH KOJEUNIKOV

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 March 2013 (Heard at Rotorua)

Counsel:         D Malcolm for the Appellant

J J Rhodes for the Respondent

Judgment:      20 March 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr D Malcolm, MDR Legal Ltd, Solicitors, Rotorua

Mr J J Rhodes, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

KOJEUNIKOV V POLICE HC TAU CRI-2013-470-2 [20 March 2013]

[1]      This is an appeal against sentence following a guilty plea to one charge of assault with intent to injure.  The appellant was sentenced on 17 December 2012 to imprisonment for 1 year 9 months. An application for home detention was refused.

Contentions on appeal

[2]      There  are  two  principal  contentions  on  appeal  by  Mr  Malcolm  for  the appellant.

(a)      The  prison  sentence  is  manifestly  excessive.     This  is  directed primarily to a starting point of 2 years adopted by the Judge.

(b)Leave should have been granted for the appellant to apply for home detention.  It is a question of leave rather than an order for home detention because of some uncertainty as to the availability of a suitable residence.

The facts

[3]      The Judge summarised the facts of the assault as follows:

[2]       The circumstances of the offending are well known to you.   You went to the Greerton shopping centre and there was a verbal exchange between you and the other person as you were leaving the shopping centre in your vehicle.  You got out of your vehicle, confronted him, punched him in the head, knocking him to the ground, then proceeded to kick him and then you left the scene.  When spoken to by the police you admitted punching him and kicking him.

[4]      Some further facts need to be added.  The assault was preceded by a verbal altercation between the appellant’s partner on the one hand and the victim and people the victim was with on the other.  The appellant had gone with his partner and the partner’s adult son to the shopping centre.  The appellant and the son left the car. When they got back the verbal altercation was occurring.  This escalated after the appellant had got back into the car with his partner’s son and when they were about to drive away.   It is at this point that the appellant then got out of the car and

assaulted the victim as described.  It does seem that the victim’s companions left or backed-off, except that one of them may have pushed the appellant from behind. The appellant acknowledges there was a kick to the body and the head as the victim fell and that there was a further kick when he was on the ground.  It does not appear to be in issue that immediately following this the appellant withdrew, got back into the car and left.

[5]      It is also relevant that the appellant knows the victim because they met when both were serving a sentence of community work.  There was no animosity between them.  The relevance is that it is reasonable to draw, with caution, an inference that there would have been some aggression on the other side, although there is no evidence of physical aggression, apart from the push from some other person.  The Judge described the appellant’s actions as impulsive.  The submission from Mr Malcolm records instructions he had that the group in which the victim was had been drinking. The appellant also admits that he had been drinking.

[6]      The injuries were minor.   They are described in the summary of facts as

“swelling and minor abrasions to his forehead”.

Criminal history

[7]      The Judge described the appellant’s criminal history as follows:

[3]       You have got a bad record.  It now runs to some five pages.  A good deal of it is dishonesty but I note the second time you were before the Court was in 2002 on a charge of assault. The fourth time you are before the Court in 2003, charge of male assaults female.  In 2004 there are charges of breach of protection order.  In 2005 charges of resisting police.  Then there were a whole lot of dishonesty offences.   Another charge of breach of protection order in 2007.  There were a number of other types of offending during 2007 and 2008.  You were back before the Court on a charge of disorderly behaviour in 2010 and a charge of breach of protection order.  There were several of those in 2010.  There was an assault in November of 2011, for which you were sent to prison.

[8]      The prison sentence referred to by the Judge was for common assault which is noted in the criminal history as “domestic”.   There was also a sentence of 9 months imprisonment for manually assaulting a female in 2010.

Personal

[9]      The appellant is aged 31.  He came to New Zealand with his parents when aged 16.  He has had problems with alcohol and drugs and it seems to be accepted that these are contributing factors to his offending.

[10]     The pre-sentence report says: “assessed as high risk of harm to others due to

his history of violent offending and the impulsive nature of offences”.

[11]     The pre-sentence report also records the appellant’s advice: “he is sorry his victim was hurt and explained his actions were the result of an impulsive reaction to his perception that his partner was being threatened”.

The sentence

[12]     At the outset, following the summary of the offence recorded above, the Judge turned immediately to the appellant’s criminal history at paragraph [3], as also set out above.

[13]     The next consideration was not an assessment of the gravity of the offence but the question of home detention.   It is somewhat unusual that the question of home detention was considered at this point.  However, for reasons I will come to, it is unnecessary to review the considerations which led to the Judge’s conclusion at that point that home detention could not be considered.

[14]     After reviewing the gravity of the offence and reference to R v Harris1 and R

v Nuku2 the Judge said:

[14]      I am satisfied, on the basis of the applicable authorities and the statutory factors, that in these circumstances a sentence of imprisonment is required and nothing short of imprisonment could possibly be appropriate.

[15]     The  Judge  then  fixed  a  starting  point  of  2  years  imprisonment.    It  is reasonably apparent that counsel did not refer the Judge to any broadly comparable

1 R v Harris [2008] NZCA 528.

2 R v Nuku [1969] NZLR 343 (CA).

cases.  None are referred to in the sentencing notes, although I acknowledge the Judge’s experience.  The relevance of the point I make is the fact that counsel did not refer authorities to him.  The Judge then increased the starting point by 6 months to take account of the previous convictions and then reduced it by 9 months for the guilty plea.  I do note that the 9 months appears to be in excess of the maximum that could be allowed of 25%, but nothing turns on this.

Discussion

[16]    As noted above, the Judge referred to R v Harris which sets out bands for starting points for offending of this nature. These are as follows:

Band one: where there is little injury and few aggravating features and where the sentencing Judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than

imprisonment can be appropriate.3

Band  two:  where  the  injuries  are  moderate,  sentences  of  up  to  2  years

imprisonment can be justified.

Band three: for serious injury, sentences from 18 months up to the maximum of  5  years  can  be  justified  (subject  to  complying  with  s 8(c)(d)  of  the

Sentencing Act 2002).

[17]     The Judge said that he assessed the offending in this case as being within band one of Harris.  On that basis a starting point of 2 years would be clearly excessive.   However, other observations of the Judge suggest that he may in fact have then moved the offending beyond band one.

[18]     The level of injury, if that was the only focus, would appear to confine this offending to band one.  But other aggravating features do need to be considered. The

Judge said in that regard:

3 R v Taueki [2005] 3 NZLR 372 (CA) at [27].

[13]     The   aggravating   features   include,   obviously   actual   violence, attacking the man’s head and kicking him when he was on the ground.   I need to take into account the damage done and the harm resulting, which fortunately was not great.  There will be no ongoing injuries as a result of this.  The victim was clearly vulnerable when he was on the ground and was attacked by you and of course you have got that long and bad record that I have spoken about.  As against that you are entitled to credit for your guilty plea.

[19]     The Judge had earlier said:

[8]      That leaves me really to address the issue of not what the type of sentence should be but how long it should be.   I have asked your lawyer about that and he simply asked me not to take the maximum as a starting point.   He did not really explain why I should not, apart from general submission that the effects were not great. The difficulty with that is that the effects, which I accept were not great having had a look at the victim impact statement, nevertheless if the effects had been any worse you would have been charged with a much more serious offence and be facing a much longer sentence than you are today.

[20]     This approach appears to have been influential.  In my judgment it is not an appropriate way to assess matters.  The gravity of this offence must be assessed by what actually happened.  And having done that a starting point needs to be adopted by putting it at an appropriate point against the maximum penalty, which in this case is 3 years.  It must also be assessed without regard to the offender’s criminal history, if there is one.  However, in this case the Judge had considered the criminal history at the outset – that is to say, before assessing the gravity of the offence – and this does appear to have played a part in the assessment of a starting point.

[21]     This offending, taking account of all aggravating factors of the offence, but also putting it into the full context of the lead-up to the offence and its conclusion, in my judgment could not justify a starting point in excess of 12 to 15 months imprisonment.

[22]     In this regard counsel have referred me to some other cases and I have noted a few others.  These are broadly similar, or in some cases more serious, in relation to the facts of the offence.  These cases are: Taingahau;4  Finiki;5  Te Whata;6  Tiplady- Koroheke;7 Ross;8 Luff-Pycroft;9 and Teka.10

[23]     Mr Rhodes, for the respondent, after reference to the first four cases, and with particular emphasis on Tiplady-Koroheke submitted that the starting point would be

15 to 18 months.  In the course of the hearing Mr Rhodes submitted that it certainly should not be less than 12 months.  For the appellant, Mr Malcolm submitted that the starting point should be 9 to 12 months. As already made apparent I do consider that

9 months is too low.  Having said that it is also relevant to observe that a difference of 3 months, in relative terms, is not insignificant.

[24]     There are aggravating features of this offence, such as the assault to the head and the kicks and including the kicking on the ground, but the relative significance of these sorts of things needs to be assessed and weighed in the full factual context. The Judge at one point described the assault as one of “brutality”.11     An attack cannot be categorised as one of brutality simply because there was a kick when the man was on the ground.  The actual injuries sustained are not determinative of a starting point – they are not determinative of the gravity of an offence – but they are obviously important as a means to determining the level of violence from the particular act.  Putting that in different terms, the actual injuries are relevant to an

assessment of the gravity of the intent which is part of the offence.

[25]     There is no excuse for the appellant’s acts, but this was a fairly minor assault

in the street following some provocation and an assault which was over in a moment.

4 Taingahau v Police HC Wellington CRI-2009-485-75, 17 August 2009.

5 Finiki v Police HC Christchurch CRI-2011-409-38, 3 June 2011.
6 Te Whata v Police HC Christchurch CRI-2011-409-38, 3 June 2011.

7 Tiplady-Koroheke v R [2012] NZCA 477.
8 Ross v R [2010] NZCA 306.
9 Luff-Pycroft v R [2012] NZCA 107.
10 Teka v Police HC Auckland CRI-2009-404-254, 7 September 2009.

11 At [7].

[26]     Having regard to all of these considerations, in my judgment the starting point should be 12 months.  There must be an uplift for previous offences, and Mr Malcolm  acknowledges  that.    The  uplift,  however,  must  be  proportional  to  the starting point, amongst other things.  Mr Rhodes responsibly acknowledged that if there is a reasonably substantial reduction in the starting point from that adopted by the Judge the uplift in this case should be around 3 months.  I agree.  That would take the sentence to 15 months imprisonment.  It is not in issue that the appellant is entitled to a full reduction for the guilty plea.  Rounding the calculation up a small amount in the appellant’s favour, that produces an end sentence of 11 months imprisonment.

Home detention

[27]    There remains the question of an application for leave to apply for home detention.  I am satisfied that the underlying reasons for the Judge’s exercise of his discretion on this point justified the conclusion he reached to decline the applications relating to home detention.  And although it is not an unfettered discretion it is nevertheless  a  discretion  to  be  exercised  in  assessing  the  appropriate  type  of sentence.

[28]     There are two further considerations which have arisen since the appellant was sentenced.  One is the outcome of this appeal on the prison sentence.  Although it substantially reduces the length of a prison sentence and this would, in general, point more strongly towards home detention, it also means that the remaining time in prison is significantly reduced.  The appellant has already spent 3 months in custody. The other consideration is a matter which Mr Malcolm quite properly brought to my attention.  This is that the appellant has recently been transferred to Paremoremo Prison  so  that  he  can  undertake  a  course  and  counselling  available  there  for substance and alcohol abuse.  These are problems identified as underpinning his criminal behaviour.  He has not responded to assistance that has been made available to him in the past outside of prison.  It does appear important that this assistance is now continued.  This in my judgment is a further factor that can properly be taken into account in declining an application for leave to apply for home detention.

Result

[29]     The  sentence  is  quashed  and  a  sentence  of  11  months  imprisonment  is substituted. The release conditions imposed in the District Court are to apply.

[30]     The application for leave to apply for home detention is declined.

Woodhouse J