Lameko v Police

[2018] NZHC 1838

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-179

[2018] NZHC 1838

BETWEEN

HENRY LAMEKO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 July 2018
Appearances:	J Grainger and S Papp for Appellant H Reid for Respondent
Judgment:	23 July 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

LAMEKO v NEW ZEALAND POLICE [2018] NZHC 1838 [23 July 2018]

[1]    Mr Lameka pleaded guilty in the District Court to charges of assault with a weapon,1 assaulting a female2 and assault with intent to injure.3 On 4 May 2018, Judge Treston  sentenced  him  to  three  years  imprisonment  on  those  charges.4  Mr Lameko appeals against sentence on the basis that the Judge erred in fact and principle, and thereby imposed a sentence that was manifestly excessive.

The charges

[2]    The charges were  laid  as  a  result  of  two  separate  incidents  involving  Mr Lameko and his partner. The first of these occurred on 7 September 2017. A summary of facts prepared in relation to this incident records that Mr Lameko and his partner had been in a relationship for about ten years. They had been residing together in a sleepout at the rear of Mr Lameko’s parents’ house. They do not have any children together, but have children from previous relationships.

[3]    The summary records that on the afternoon of 7 September 2017 Mr Lameko became aggressive and began insulting his partner. He threw a clothing basket at his partner’s head whilst verbally abusing her. He then punched her twice on the head followed by two kicks to the head. Mr Lameko then picked up a nearby vacuum cleaner tube and used it to strike his partner on the head and right shoulder. He then pulled a light tube from the ceiling and hit his partner over the head with it. When his partner endeavoured to leave the property, he followed her and began yelling at her. When Mr Lameko’s partner said she was going to call the police, he ran up to her and punched her twice on the head. As a result, his partner fell to the ground and he then dragged her back to the sleepout where they were living.

[4]    Mr Lameko’s partner sustained a bruise to her right shoulder from this incident, as well as bruises to her knee occasioned by being dragged up the driveway. This incident gave rise to a representative charge of assault with a weapon and a charge of assaulting a female.

1 Crimes Act 1960, s 202C.

2 Crimes Act 1960, s 194(b).

3 Crimes Act 1960, s 193.

4      New Zealand Police v Lameko [2018] NZDC 8772.

[5]    The second incident occurred on 24 November 2017 whilst Mr Lameko was on bail in relation to the charges laid in relation to the earlier incident. On this occasion Mr Lameko and his partner again got into an argument on the side of the road. This escalated to the point where Mr Lameko was abusing his partner and calling her a bitch. When she walked away from him he continued to yell at her, and to tell her to get back in his vehicle. He then got out of his vehicle and grabbed his partner by her clothing. He dragged her back to his vehicle whilst verbally abusing her. As his partner raised her hands over her head to protect herself, Mr Lameko punched and kicked her.

[6]    Mr Lameko’s partner was then able to get away. He chased her and yelled abuse at her. He then got into his vehicle and followed her, whilst still yelling abuse at her through the window. He then went back to his home address, where the police located him. The police laid a charge of assault with intent to injure as a result of this incident.

The Judge’s decision

[7]    It is difficult to follow the exact nature of the Judge’s sentencing structure because he did not follow the usual Taueki approach.5 The essence of his reasoning, however, is contained in the following passage of his decision:6

[16] I deal with you in this way in date order. On 7 September 2017, the assault with a weapon, you are sentenced to imprisonment for two years and assault on a female one year. It is my view that the overall starting point should be in the vicinity of four years for this bracket of offending. On the second assault on 23 November 2017 which was assault with intent to injure, two years’ imprisonment and that two years’ imprisonment will be added to the one year I have already imposed in relation to charge 2433. So the sentence I today impose is for a sentence of imprisonment of three years, allowing you full credit for the pleas of guilty.

Grounds of appeal

[8]    On Mr Lameko’s behalf, Mr Grainger submits the Judge erred factually in relation to a significant issue mentioned in the summary of facts relating to the first incident. In addition, he submits that the Judge erred in principle by selecting a global

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

6      New Zealand Police v Lameko, above n 4.

starting point of four years imprisonment on all charges. Mr Grainger contends this was too high, and caused the end sentence to be manifestly excessive.

Decision

Factual error

[9]    Counsel for the respondent agrees the Judge erred in his sentencing remarks in stating that Mr Lameko’s partner had been taken to hospital as a result of the incident that occurred on 7 September 2017. The summary of facts prepared in relation to that incident records it was Mr Lameko who was taken to hospital by ambulance for medical treatment on that date. It transpires that this was for a stomach ulcer that had nothing to do with the incident that occurred on 7 September. Mr Grainger submits the Judge may have been influenced by this mistake of fact in setting the starting point in relation to the charges flowing from the incident on 7 September.

[10]   I place little weight on this submission because the Judge only referred to the issue once, and I do not see any indication that he placed any weight on it in setting the global starting point. I regard it as being a neutral factor in the Judge’s reasoning process.

The sentence

[11]   Given the manner in which the Judge approached the sentencing exercise, it has been necessary for counsel to endeavour to reconstruct the sentence using a Taueki approach. This sets a starting point for the charges and then adds uplifts for aggravating factors before applying discounts to reflect mitigating factors.

The offending on 7 September 2017

[12]   For the respondent, Ms Reid submits the offending on 7 September 2017 warranted a starting point of between two and two and a half years imprisonment. She points out that it involved the use of no fewer than three separate weapons to strike the victim’s head and shoulder. In addition, Mr Lameko directed both kicks and punches to his partner’s head. These caused the injuries referred to in the summary of facts. Ms Reid also points to the fact that Mr Lameko pursued his partner and further

assaulted her before dragging her back to her address. He thereby detained her against her will in circumstances where she was trying to get away from him in order to seek help.

[13]   Mr Grainger submits that the first set of offending warranted a starting point of no more than 12 months imprisonment. He points out that the use of weapons is inherent in the charge of assault with a weapon. In addition, he submits that the injuries suffered by the victim as a result of the first incident appear to have been relatively minor.

[14]   I consider the combination of aggravating circumstances relied by the respondent places the starting point for the charges arising from the 7 September incident well above the level suggested by Mr Grainger. A starting point of 12 months imprisonment would not begin to reflect the nature of the offending that occurred on that date. I consider the use of multiple weapons, coupled with kicks and punches to the head, justifies a starting point of at least two years imprisonment.

The offending on 24 November 2017

[15]   The Crown submits the starting point for the charge arising out of the second incident should be in the vicinity of nine to 12 months. Mr Grainger submits the starting point should be no greater than nine months. Given that counsel are in broad agreement regarding the range, I accept that the starting point should have been around nine months.

Uplifts

[16]   Both counsel agree there needed to be uplifts to reflect aggravating factors personal to Mr Lameko. These include the fact that he has previous convictions from 2010 when he assaulted his partner, the same victim as in the present case, in a similar manner to the assaults leading to the present charges. Mr Grainger points out, however, that Mr Lameko received a sentence of community work in relation to the charges arising out of the 2010 offending so they cannot have been particularly serious. He submits the Court needs to adopt a proportionate approach when adding any uplift to the sentences imposed on the present charges.

[17]   I consider the fact that Mr Lameko has previous convictions for similar offending against the same victim is significant, but I do not consider an uplift of more than four months could be justified to reflect that factor.

[18]   Both counsel also agree that an uplift needs to be applied in relation to the second incident to reflect the fact that Mr Lameko was on bail in relation to the earlier incident when he assaulted his partner on 24 November 2017.

[19]   Again, the approach needs to be proportionate. I do not consider an uplift of more than two months could be justified to reflect the offending whilst on bail. These factors produce an overall uplift of six months to the initial starting point of two years nine months. This results in a sentence of three years three months imprisonment.

Discount for guilty pleas

[20]   It is then necessary to apply a discount of 25 per cent to reflect guilty pleas. This reduces the sentence by ten months. As a result, the end sentence using a Taueki approach is one of two years five months imprisonment. It follows that, by an independent route, I have concluded the sentence the Judge imposed was manifestly excessive. An end sentence of around two years five months imprisonment would have been appropriate.

Result

[21]   The appeal is allowed. The concurrent sentences of two years and one year imprisonment imposed on the charges relating to the incident on 7 September 2017 are not disturbed. On the charge of assault with intent to injure, I quash the sentence of two years imprisonment. In its place, I substitute a sentence of five months imprisonment. That sentence is to be cumulative on the sentence imposed on the charge of assault with a weapon.

[22]   This means Mr Lameko will be required to serve an effective sentence of two years five months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland