Koloamatangi v Police

[2012] NZHC 763

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000082 [2012] NZHC 763

BETWEEN  SITALEKI LANGI KOLOAMATANGI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 April 2012

Appearances: J Scott for Appellant

R Savage for Respondent

Judgment:      24 April 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Public Defence Service, Auckland (J Scott) Crown Solicitor, Auckland

KOLOAMATANGI V NEW ZEALAND POLICE HC AK CRI-2012-404-000082 [24 April 2012]

[1]      The appellant Mr Koloamatangi, pleaded guilty to one charge of injuring by an unlawful act.   On 28 February 2012 he was sentenced by Judge Wade in the District Court at Auckland to imprisonment for 12 months.  He appeals against that sentence on the basis it is clearly excessive.

[2]      The  complainant  is  a  40  year  old  male.    On  the  evening  the  offending occurred he was drinking at a nightclub on Karangahape Road.  The appellant was also at the same nightclub.  In the early hours of the morning he left the club and was having a cigarette outside.   While the appellant was outside the nightclub he was approached by the victim who was apparently seeking some sort of sexual encounter with the appellant.  The appellant declined the offer.  The two talked for a time.  The appellant asked the victim for a smoke.  The victim walked away, then returned and propositioned the appellant again.  The appellant became angry and turned and hit the complainant once to the chin.   As a result of the blow the complainant fell backwards and hit his head on the pavement.  The complainant was seriously injured as a result of the incident.  He required extensive medical intervention to save his life as he had received a cracked skull.  He has spent a number of weeks in hospital and his rehabilitation is ongoing.

[3]      The  appellant  sought  a  sentencing  indication  from  Judge Wade.    On  26

September the Judge indicated that an appropriate start point for the offending would be 15 months’ imprisonment and, allowing for a guilty plea, he would propose to reduce that by 25 per cent.   He said if the sentence were to remain one of imprisonment he would indicate a sentence would not exceed 12 months’ imprisonment but in any event he would go on and consider home detention or community detention and that he would ask for a restorative justice conference if the victim were prepared to follow it through.   The Judge called for the appropriate reports.

[4]      Unfortunately,  thereafter  the  appellant  did  not  help  himself  in  that  he breached his conditions of bail on several occasions and initially failed to respond to contact from the Probation Service to enable the pre-sentence reports to be prepared.

[5]      When the Judge sentenced the appellant he said in response to the submission that the appellant was genuinely remorseful that it was insufficient for a prisoner to write a letter of regret and automatically assume that would result in the Judge concluding  they were  truly remorseful.   The  Judge  said  he  was  looking  at  the appellant’s behaviour since the offence was committed.  The Judge considered that far from showing any remorse the bail breaches were relevant as was the failure to keep appointments with the Probation Service.  He concluded that the remorse was not genuine. While he noted there was some positive signs in the pre-sentence report in his view that was “all too little too late”.  He considered home detention was not suitable and imposed a sentence of 12 months saying that in doing so:

I stand by the indication I gave you last time that, giving you discount for all the matters I considered relevant in my sentencing indication, the final sentence would not exceed 12 months’ imprisonment.

[6]      The issue for the Court on this appeal is whether the final sentence of 12 months’ imprisonment  is  clearly  excessive.    Ms  Scott  realistically  accepts  that because of his failure to comply with his bail conditions and failure to attend for the preparation of the pre-sentence report the appellant lost the opportunity of having home detention considered as an appropriate sentence.  Nevertheless she submitted that the Judge failed to take account of two important mitigating factors, namely remorse and the appellant’s age.  At the time of the offending the appellant was just

20 years old.  She also noted that applying a reduction of 25 per cent to 15 months would have led to a final term less than 12 months’ imprisonment.  She argued for a sentence of 10 months’ imprisonment.

[7]      Ms Savage submitted the Judge was  entitled to take the view he did in relation to remorse and that, while young at the age of 20, the appellant was not a youth.  Having regard to the authorities she referred to in R v Howes;[1]   New Zealand Police v Thompson and Thompson,[2] (which was also referred to by Judge Wade), and

[1] R v Howes CA428/99, 16 December 1999.

[2] New Zealand Police v Thompson and Thompson DC Kaikohe CRI-2008-027-001212 and CRI-2008-027-001869, 13 February 2009.

Schlegel v New Zealand Police[3] she submitted it could not be said the end sentence

[3] Schlegel v New Zealand Police HC Auckland A98/00, 11 July 2000.

was clearly excessive.

[8]      I am grateful to both counsel for their focused and thoughtful submissions in relation to this matter.

[9]      On my review of the material before the Court I have come to the view that the end sentence of 12 months can, in this case, be said to be clearly excessive in all the circumstances and that the appeal should be allowed.  I have come to that view for the following reasons.

[10]     There were two potential mitigating factors which required consideration. The first was remorse and the second was the age of the appellant.   In relation to remorse while I acknowledge the Judge’s concern at the appellant’s failure to comply with his bail conditions the consequence of that to the appellant was that he lost the opportunity for home detention as a realistic sentence.  Against that, the letter on the file from the complainant is perhaps rather more insightful than is often seen. As Ms Savage properly pointed out there are aspects of it in which the appellant may be seeking to downplay his offending.  But, given the steps the appellant took and that were referred to in the pre-sentence report, namely that he was willing to address his offending  and  attend  Intervention  for  Alcohol  Use  and  Anger,  that  he  had successfully completed a drug and alcohol programme whilst awaiting sentence and that he was motivated to address his offending and attend other programmes that may be necessary to do so, the Judge may, with respect, have been a little cynical in rejecting the submission the appellant was genuinely remorseful in this case.

[11]     Further,  in  relation  to  the  appellant’s  age,  while  the  Judge  said  he  took account of all mitigating factors as he had referred to in the sentencing indication, the sentencing indication only referred to a reduction for the guilty plea and did not specifically  or  expressly  address  the  issue  of  the  appellant’s  age.     I  accept immediately Ms Savage’s submission that at some point age will not be so relevant but in this case the appellant was just 20 at the time of the offending.  It could well be said that age was relevant.  The act of punching the complainant was the act of an immature or young man, an impulsive act, which is likely to have been immediately regretted.   The appellant’s youth, relative young age, combined with the positive features of the pre-sentence report do give rise to hope that he can be rehabilitated and, as such, a sentence of imprisonment may have a harsher effect on him.

[12]     Given all of those factors I am satisfied that a reduction was required for age, albeit modest and that the Judge failed to give such a reduction.

[13]     Ms Savage also properly accepted that there seemed to be a minor issue about the 25 per cent reduction from the 15 months period.  Taking all those factors into account and applying a reduction to the 15 month starting point, to take account of remorse and age and then applying the 25 per cent reduction for the guilty plea, I agree with Ms Scott’s assessment that the end result of 10 months is the appropriate answer.

[14]     In the circumstances of the difference between 12 months and 10 months of two months in this case can properly be described as clearly excessive. The appeal is allowed to that extent. The sentence of imprisonment of 12 months is quashed and is

replaced by a sentence of imprisonment of 10 months.

Venning J