Kuhtz v Police
[2013] NZHC 111
•7 February 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2012-419-73 [2013] NZHC 111
BETWEEN JASON KUHTZ Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 7 February 2013
Counsel: M B J Curran for Appellant
J E Tarrant for Respondent
Judgment: 7 February 2013
(ORAL) JUDGMENT OF KATZ J
Solicitors: Crown Solicitor, Hamilton – [email protected]
Copy to:` M B J Curran, Hamilton – [email protected]
KUHTZ V NEW ZEALAND POLICE HC HAM CRI-2012-419-73 [7 February 2013]
Introduction
[1] Jason Kuhtz appeals against a sentence of 23 months imprisonment imposed by Judge Connell in the District Court at Thames following his pleas of guilty to charges of threatening to kill (x2); intentional damage; assault with a weapon and assault with intent to injure.
[2] Mr Kuhtz appeals on the following grounds:
(a) full credit was not given for his guilty pleas;
(b)the totality principle was either not considered or was incorrectly applied; and
(c) his remorse was not taken into account.
Facts
[3] The offending occurred on two separate occasions. The first offending occurred in February 2012 while the second series of offences took place in June
2012.
[4] The facts in relation to the February offending were as follows. Mr Kuhtz and his partner, the complainant, were at their home address. Mr Kuhtz became loud, abusive and aggressive when the complainant tried to pack a bag to leave. He pushed her down on to the bed and retrieved a swordfish sword which he then pushed down on to her throat. Mr Kuhtz’s son went into the bedroom and tried to pull the sword up off the complainant’s neck.
[5] The complainant managed to get away to the kitchen. Mr Kuhtz followed and pushed the complainant down on to the ground. He put his foot on to head and stated: “I’m going to kill you. I could kill you and snap your neck”. Again the complainant managed to get away to the car with her two year old son who was
crying and upset. Mr Kuhtz’s own son was very scared the incident could have turned out worse, had he not intervened.
[6] The subsequent offending occurred in June 2012. In particular on 16 June
2012, Mr Kuhtz was at a hotel in Thames with his partner, who is again the complainant. Both Mr Kuhtz and the complainant had consumed a considerable quantity of alcohol throughout the day.
[7] Mr Kuhtz became angry and left when he was refused service due to his level of intoxication. He then travelled to the complainant’s home. On entering, he kicked and smashed a flat screen television and smashed a glass pane door to the dining room. Mr Kuhtz then left the address, but kicked a Mitsubishi vehicle belonging to the complainant as he departed. This caused dents to two panels.
[8] At approximately 6 a.m, Mr Kuhtz returned to the address, entered through the front door, and found the complainant asleep in bed. He began abusing her, punching her on the leg and buttock several times before dragging her to the side of the room. He smashed her head into the wall several times while choking her. While the complainant was screaming, Mr Kuhtz kicked and smashed a hole in the wall. Mr Kuhtz then dragged the complainant into the lounge, smashed several items in the lounge and threatened to kill her. He continued to yell at the complainant and began to throw bottles at her. Mr Kuhtz then left.
[9] Police attended the address at 6.30 a.m. When spoken to by Police, Mr Kuhtz could not recall anything from the night, apart from being intoxicated.
District Court
[10] The Judge set out the summary of facts, then turned to Mr Kuhtz’s personal circumstances. He took into account the four previous convictions of male assaults female and the Probation Officer’s report which indicated that Mr Kuhtz was at the high risk of harming others. He acknowledged Mr Kuhtz’s remorse and said he would give him some credit in respect of that.
[11] The Judge noted that Mr Kuhtz’s major problem was alcohol which made him a danger to the community. Taking into account Mr Kuhtz’s risk to others and the need to denounce the conduct, the Judge determined that a custodial sentence should be imposed.
[12] Judge Connell then structured the sentence in this way:
(a) On the charge of assault with intent to injure (June 2012) the Judge took a starting point of 12 months, uplifted by 3 months to account for previous convictions and discounted by 2 months to reflect the guilty plea. This left an end sentence of 13 months’ imprisonment (which the Judge considered lenient).
(b)On the intentional damage charge (June 2012) a concurrent 4 month sentence was imposed (5 months less 1 month for guilty plea).
(c) On the threatening to kill charge (June 2012) a concurrent 4 month sentence was imposed (5 months less 1 month for guilty plea).
(d)On the threatening to kill charge (February 2012) the Judge took into account Mr Kuhtze’s previous domestic violence convictions and set a starting point of 10 months. A 3-month discount (30 per cent) was then given for the guilty plea. The end sentence was 7 months, to be served cumulatively.
(e) On the assault with a weapon charge (February 2012) the Judge used a starting point of 10 months then deducted 3 months for the guilty plea, reducing the sentence to 7 months, to be served cumulatively.
(f) Finally, to reflect totality, the Judge further reduced the assault with a weapon sentence by a further 4 months, leaving an end cumulative sentence on that charge of 3 months’ imprisonment.
[13] The combined cumulative sentences resulted in a final total sentence for all offending of 23 months’ imprisonment. Rehabilitation and release conditions were also imposed.
Ground one – Judge failed to give full credit for guilty plea
[14] Mr Kuhtz first appeared on 18 June 2012 and it appears he pleaded guilty at some point in August, apparently at his second appearance. As confirmed by the Supreme Court in Hessell v R1 the maximum discount for a guilty plea is 25 per cent.
[15] The Judge did not apply exactly the same guilty plea discount in relation to each charge, with some discounts being below 25 per cent and it would appear two being above 25 percent, namely 30 per cent. This was presumably in part to reflect rounding.
[16] Counsel for Mr Khutz took particular exception to the discount applied in relation to the assault with intent to injure charge. It was submitted that if a guilty plea discount of 25 per cent had been applied, the sentence for that offending would have been reduced by almost four months rather than two months.
[17] Given the multiple offending, the matter must be viewed in the round. The guilty plea discount available is a matter of judicial discretion and timing is not the only relevant consideration. A Judge is also entitled to take other matters into account such as the strength of the Crown case. Although the overall guilty plea credit provided by the Judge was less than 25 per cent, the matter was ultimately one for judicial discretion. I am not satisfied that the Judge erred in the exercise of his discretion in such a way as to warrant the intervention of an appellate court.
Ground two – totality principle
[18] The relevant sections are ss 84 and 85 of the Sentencing Act 2002. The key principles regarding totality have been summarised by the Court of Appeal in R v
Xie.2
1 Hessell v R [2011] 1 NZLR 607.
[19] In this case the Judge specifically referred to the principle of totality in his sentencing decision, so this was not matter that was overlooked at sentencing. The issue therefore is whether he correctly applied the relevant principles.
[20] The approach taken by the Judge was cumulative as between the separate February and July incidents. In my view this was the appropriate approach given that the offending was separate in time and that the Court of Appeal has made clear that “bulk discounts” for repeated violence against the same victim are not appropriate. I refer to the Court of Appeal decision in R v Clark3 in which the Court noted that:
Those who inflict serious violence upon females, whether partners or not, at different times and different places cannot expect as a general course for sentences of imprisonment to be concurrent. A “concession” for multiple offending cannot be expected by such offenders. In addition, it may be a proper ground for making a sentence cumulative if it was committed after the grant of bail … [Of] course, the totality principle requires that the effect of the sentence not be out of proportion to the overall culpability of the offender, but established authority is clear that the total principle is not able to count for bulk offending.
[21] The Judge also in my view correctly approached sentencing for the three related offences occurring in June on a concurrent basis. However, he erred in my view in sentencing the two related February offences on a cumulative basis. As with the June offending they should have been treated concurrently. If this approach had been taken (concurrent within each incident, cumulative between the two incidents) the overall sentence would have been reduced by three months. I propose to allow the appeal to that extent.
Ground 3 - Remorse
[22] Following the Supreme Court’s decision in Hessell,4 remorse is a separate consideration from the guilty plea. If a “proper and robust evaluation of all the circumstances”5 demonstrates genuine remorse, then the Judge may afford a separate
discount. The Court observed in Hessell that:
2 R v Xie [2007] 2 NZLR 240.
3 R v Clark CA128/06, 6 June 2006 at [14].
4 Hessell v R [2011] 1 NZLR 607.
5 Ibid, at [64].
Remorse is not necessary shown simply by pleading guilty. Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. When remorse is shown by the defendant in such a way, sentencing credits should properly be given from that for the plea.
[23] At [5] of the District Court’s judgment it was stated that:
The way I have to deal with this now is to impose a custodial sentence. I do so because the probation officer’s report tells me that you are someone who is at high risk of harming others and although you certainly express remorse and I will give you some credit in respect of that, your problem is alcohol.
[24] Although the Judge indicated he would give some credit for remorse he did not explicitly do this as a separately identifiable discount in his sentencing calculations. It is possible that the Judge may have had remorse in mind at the time he set the relevant starting point or purported to adjust the totality, although he did not expressly refer to it.
[25] It is apparent however that, given the Judge’s comments elsewhere in his decision any discount for remorse would have to be very much at the lower end of the scale. The Judge was clearly sceptical as to the genuineness of the remorse expressed and Mr Kuhtz’s willingness to change and address his underlying issues. For example at [2] the Judge stated:
… in the past you have offended in this same way and you have been given now about three or four opportunities, as I look at your list of previous convictions, to do something about this problem. Supervision has been given to you. Conditions on release from prison have been given to you with the idea of trying to assist you and you do not take a blind bit of notice. To me that is the real seriousness of this problem, you are not someone who can taken any notice of help that is offered to you.
And at [4]:
I accept your letter. You acknowledge you have a problem. You say you need treatment but you see this is what? Number three, four times? You have had previous convictions as I have looked at your list. Four of them,
2001, 2003, then July 2010, October 2011. Those last two were given community work and this sentence of supervision and as I put it to you there
was no notice taken of that at all.
[26] These facts raise real doubts as to the genuineness of any remorse and the extent to which a discount was justified. At the very least it would be hard to justify any remorse discount for the February offending given that Mr Kuhtz was again violent to his partner only a few months later. In addition Mr Kuhtz had previously been sentenced for similar offending towards his partner. As the Judge noted, he had been provided with many opportunities to rehabilitate himself.
[27] Although a very small discount for remorse could possibly have been justified, in my view the failure to provide expressly for such a discount does not warrant interference by an appellate court. Standing back and considering the overall sentence against the culpability of the offending, taking into account the three month adjustment I propose to make, it is clearly well within the acceptable range.
Result
[28] In my view the Judge did err in sentencing the two February offences on a cumulative as opposed to a concurrent basis, albeit the impact of any error was relatively minor given the adjustment which was made for totality. Nevertheless, I have been persuaded that the end sentence of 23 months imprisonment should be reduced to 20 months on the basis that the two February charges should be sentenced concurrently rather than cumulatively. The other grounds of appeal fail.
[29] The appeal is accordingly allowed to that extent and a total end sentence of
20 months imprisonment is substituted for the sentence of 23 months imprisonment imposed in the District Court.
Katz J
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