Kururangi v Police

[2012] NZHC 3126

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-30 [2012] NZHC 3126

MICHAEL PAHIRUA KURURANGI

Appellant

v

NEW ZEALAND POLICE

Hearing:         22 November 2012

Counsel:         E J Forster for Appellant

N M Graham for Respondent

Judgment:      22 November 2012

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

[1]      Mr Kururangi was charged with and tried before a Judge alone in the District Court  with  injuring  with  intent  to  injure  and  threatening  to  kill  Ms Gillies,  his partner.  Both events were alleged to have occurred on the same day.  After hearing evidence the Judge in the District Court convicted Mr Kururangi on both charges. Mr Kururangi  gave evidence  at  the hearing.    He  accepted  he had  assaulted the complainant but said it was in self defence and denied that he had threatened to kill her.  The Judge rejected his evidence and accepted the evidence of the complainant.

He sentenced the appellant to two years, seven months’ imprisonment.

MICHAEL PAHIRUA KURURANGI V NEW ZEALAND POLICE HC NAP CRI 2012-441-30 [22 November

2012]

[2]      The appeal against conviction is based on the proposition that the Judge did not apply the correct onus and standard of proof where a defendant gives evidence. The appellant says the Judge did not illustrate that he had turned his mind to whether Mr Kururangi’s evidence was reasonably possible and thus had created a reasonable doubt.

[3]      With respect to sentence, the appellant says it is manifestly excessive.  An uplift of three months for additional “cruelty” was said to be a form of double counting from the start sentence and secondly, the uplift for previous convictions was too high, resulting in a manifestly excessive sentence.

[4]      I deal firstly with the appeal against conviction.

Appeal against conviction

[5]      The hearing of the evidence was completed late on 23 July 2012.  The Judge adjourned the case until the following morning and gave an oral judgment then.  The judgment contains an extensive analysis of the competing evidence of the complainant and defendant.   There was also some support for the complainant’s evidence from, the Police officers who attended at Mr Kururangi and Ms Gillies address, and other evidence.

[6]      One of the constables observed the complainant had a red eye and had been crying.   Further, Mr Kururangi after his arrest and when taken to the Police car shouted at Ms Gillies that she should stay at the address and not say anything.  As the Judge identified, this evidence clearly supported the evidence of Ms Gillies.

[7]      Ms Gillies was admitted to the hospital on the evening of the assault.   She had eye injuries and severe marking or bruising on her left arm.   Those injuries matched the assaults Ms Gillies complained of.

[8]      The Judge said there were completely different stories as to how the injuries occurred as between Ms Gillies and Mr Kururangi.   The Judge then identified in detail what each said.

[9]      The Judge then said:[1]

In dealing with this decision about whether I believe Mr Kururangi or not I have to say that, as I have put it, there were many times in his evidence where there some prevarication prompted by his need to go off on tangents and bring to his mind the factual detail which as I sat and listened to him appeared at times to be somewhat manufactured and made up.  I cannot say that I came to a view that I should believe him outright.  I do not consider that there was veracity or, more importantly in this case, cogency in what he was saying.  The notion, that Mrs Gillies, a woman at the age of 58, slight build, could be the aggressor that Mr Kururangi had to deal with in this very forceful way just does not gel in my mind and I have come to a conclusion in respect of this that I simply cannot accept what he says as being the truth.

[1] At [19].

[10]     The Judge, however, did not then simply convict the appellant.  He turned to the evidence of Ms Gillies and said he was satisfied that she was telling the truth about what happened.  He was, therefore, satisfied the prosecution had established its case.

[11]     Further, he said:[2]

I finish this with this comment.   If in fact I had determined Mr Kururangi was telling me the truth I would then have to consider his claim of self defence.   If indeed the circumstances as he honestly believed them to be were that Mrs Gillies was the aggressor and the attacker in this case and that he had a need then, given those circumstances, to act in defence of himself then  those  two  elements  are  important  elements  of  the  defence  of  self defence.  The prosecution would have to prove that he was not acting in self defence. The final element of self defence of course is that there has to be an assessment made by the trier of fact as to whether or not the force used was reasonable against the circumstances as the accused believed them to be. And in this case, even if I had accepted that Mr Kururangi said had occurred, I consider the smack to the face, the backhander to her face, would have been force being used that went well beyond what could have been seen as reasonable in the circumstances as he has said to have believed them to be. By that I simply mean, again, here he is as a reasonably solid individual using force that can be assessed by the injuries as I have noted them and that force, given the age and as I say slight build of Mrs Gillies, that would not have been reasonable on my assessment.  So I would not have dismissed the charges.

[2] At [23].

[12]     In rejecting Mr Kururangi’s evidence, the Judge inevitably concluded that there were no facts on which self defence could be raised.   But at para [23] he considered the position even if he had concluded Mr Kururangi’s evidence could

have been true.   In that situation the Judge would have found the prosecution had

proved beyond reasonable doubt that this was not a self defence case.   The force used, even given the circumstances that Mr Kururangi identified, would not have been objectively reasonable, the Judge said.

[13]     To return to the appeal.   The complaint is that the Judge did not expressly undertake the tripartite direction.  The tripartite direction is often given by Judges to juries to explain the effect of a defendant giving evidence at trial.  It is an attempt to illustrate that even if the accused’s evidence might only reasonably be true on the crucial points (assuming a denial) they should acquit because they would have a reasonable doubt.  It also is a method by which a jury can be reminded that even if they reject a defendant’s evidence, they need to be satisfied they are sure of the Crown case before they can convict.

[14]     Here, the Judge made it clear that he did not accept what Mr Kururangi was saying was truthful.  In those circumstances, as I have noted, there would have been no facts on which self defence could have been raised.  A Judge in a summary trial does not have to go through the tripartite direction to him or herself.  It is sufficient if the Judge makes  it  clear as  the Judge did  here,  that  he  rejects  the defendant’s evidence  as  truthful.     As  the  Judge  said  he  simply  could  not  accept  what Mr Kururangi had said was the truth.

[15]     But in this case there was more.   The Judge went on and considered the position if Mr Kururangi’s evidence had been accepted by him either as truthful or it was a reasonable possibility that it was truthful.   Even in those circumstances the Judge   was   satisfied   that   the   Crown   had   disproved   self   defence   because Mr Kururangi’s assaults were not a reasonable reaction in the circumstances.   No criticism can be made of this thorough analysis by the Judge.

[16]     For the reasons given the appeal against conviction will be dismissed.

Appeal against sentence

[17]     In addition to the two charges of injuring with intent and threatening to kill, the Judge also sentenced the appellant on a charge of being found without reasonable

excuse in a building.  The violence involved the appellant punching the complainant in the face causing an injury to her eye requiring a short period of hospitalisation and serious bruising to the complainant’s arms.

[18]     The Judge stressed the appellant’s previous convictions.  Fourteen were for previous  assaults,  the  last  being  in  November 2011  when  the  appellant  was imprisoned for one year and ten months for assault with intent to injure with regard to the same victim.   The Judge noted that the appellant’s violence appeared to be escalating as the years went by.

[19]     In the circumstances the Judge considered the proper starting point was two years’ imprisonment which he uplifted by three months for what he described as the element  of  cruelty  in  the  offence.    He  added  six  months  for  the  appellant’s convictions to total two years and nine months’ imprisonment.  He reduced the start sentence by two months for the appellant’s letter of remorse.  There were concurrent prison sentences for threatening to kill and being found without reasonable excuse in the yard.

[20]     The appellant says that neither the uplifts for cruelty or previous convictions were appropriate.

[21]     I agree with counsel that it would have been more appropriate for the Judge to have taken into account any particular cruelty he identified on the facts of the case in the start sentence.  There is an awkwardness in identifying a start sentence based on the facts which is intended to take into account all of the relevant mitigating and aggravating  features  of  the  offending  itself,  and  then  add  further  periods  for additional aggravating features also relating to the facts.   And so the question is whether two years and three months as a start sentence was excessive and more fundamentally whether the final sentence of two years and seven months’ imprisonment overall was excessive?

[22]     The offending here was a medium level of seriousness.  The assault caused a moderate serious injury to the eye.   It involved a punch by a much larger and stronger man to a small woman at her head no doubt designed to do maximum damage.  It also involved serious bruising to the woman’s arms.

[23]     The other aggravating features relating to the offending seemed to me to be the fact that the appellant tried to convince the complainant not to say anything to the Police and the fact that he also threatened to kill her.  In any context a threat to kill is serious and in a domestic context, especially serious.  A start sentence of about two years’ imprisonment in the circumstances could easily have been justified for that overall offending.

[24]     A substantial uplift for the appellant’s past offending was justified.  As the Judge  noted,  the  appellant  was  sentenced  to  imprisonment  for  22 months  in February 2011.    The  assault  related  to  the  same  complainant.    This  offending occurred barely 14 months later, well within the one year, ten month imprisonment sentence.   Presumably it would have occurred a few months after Mr Kururangi’s release from prison.

[25]     In  addition, Mr Kururangi has  a record of assaults  especially seriously a record  of  assaults  on  woman.    In  those  circumstances  a  substantial  uplift  for offending while still subject to a sentence of imprisonment, and repetitive offending against woman, was more than justified.   The uplift of six months’ imprisonment with respect to a two year sentence is substantial but in this case on the facts is justified in my view.

[26]     The Judge gave a two month reduction for remorse.  I would not have given any reduction for remorse.   Mr Kururangi is well beyond sentence reductions for remorse simply based on writing a letter to the Judge.   His remorse can best be shown by stopping offending.  Further, it is difficult to see that Mr Kururangi was remorseful when he pleaded not guilty and claimed he was acting in self defence when he punched the complainant.   His lack of remorse is also reflected in this appeal.

[27]     It can be seen, therefore, that although I might have made up the sentence slightly differently than the sentencing Judge, the sentence of two years and seven months’ imprisonment was well within the range available and could not be said to be manifestly excessive.

[28]     For the reasons given the appeal against sentence will be dismissed.

Ronald Young J

Solicitors:

E J Forster, Barrister, Hastings, email:  [email protected]
N M Graham, Elvidge & Partners, Napier, email:  [email protected]