Latu v Police

[2017] NZHC 363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-00017

CRI-2017-404-00018 [2017] NZHC 363

BETWEEN

PULUNO MESUI LATU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 March 2017
Appearances:	P Pati for Appellant K Li for Respondent
Judgment:	7 March 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

7 March 2017 at 3.45 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, Manukau

Kayes, Fletcher, Walker, Crown Solicitors, Manukau

LATU v NEW ZEALAND POLICE [2017] NZHC 363 [7 March 2017]

[1]      Mr Latu was sentenced before Judge J Bergseng, in the Manukau District

Court on 21 December 2016, in relation to:

(a)       Three charges of male assaults female;

(b)      One charge of assault with intent to injure; (c) Two charges of injuring with intent to injure; (d)         Two charges of threatening to kill/do GBH; (e)           One charge of dangerous driving;  and

(f)       One charge of failing to stop.

[2]      The end sentence imposed was three years and five months’ imprisonment.

[3]      Mr  Latu  appeals  on  the  ground  that  the  end  sentence  was  manifestly excessive for the following reasons:

(a)       The Judge failed to appropriately take into account all the mitigating factors personal to Mr Latu;

(b)      The  least  restrictive  outcome  in  accordance  with  s 8(g)  of  the

Sentencing Act 2002 is a short term of  imprisonment;  and

(c)       Home detention is an appropriate alternative sentence.

[4]      The relevant facts are set out in paragraphs [4]–[10] of the judgment as follows:1

[4]       The summary of facts describes what took place between you and your then partner. You had been in a relationship with your partner for about six years as at February of this year.   Together you have a three year old daughter.  You were both 21 at the time.  Leading up to 17 February there had been a number of arguments between the two of you.   It was your

1      R v Latu [2016] NZDC 16408.

concern, it seems, about a lack of trust in the relationship.  On 17 February you and your partner argued over the telephone. Your partner told you that she did not want you to come home.  A short time later she saw you arrive. She ran out the back and waited a short time before she went back inside. She found that you were lying on the bed. She asked you to leave, you refused.   She walked out the front door. You jumped through a window, breaking it, to chase her.  You started to swear at her, you ordered her back into the house, she sought help from a neighbour however none was forthcoming.  She ended up back inside with you.  She walked out onto the small  deck  out  the  back  where  she  attempted  to  call  the  police.    You followed her, you grabbed the phone off her, you punched her to the face and she fell to the ground.  While she was on the ground you continued to punch her about the head and the face on multiple occasions with a closed fist. Those are the charges of male assaults female and assault with intent to injure.

[5]       You then put your hands around her neck and you strangled her. You did this to the point where she lost consciousness.   When she regained consciousness she found that she had lost control of her bladder. You were still punching her about the head.  You then dragged her by the neck into the garage and continued the assault. You punched her about the face and the arms then, on a second occasion you strangled her.  You chocked her until she blacked out again.  Those are the two charges of injuring with intent to injure.

[6]       When  she  came  around  for  the  second  time  you  held  a  pair  of scissors to her throat.  You told her to “shut up”, you told her that you were going to kill her.   You then held the scissors against her back while you dragged her to your car, telling her to get inside otherwise you would stab her. You then drove away with her.

[7]       In the course of driving you continued with the threats saying that you were going to take her somewhere where she would never be found and that you were going to kill her.  You said that if the police came you would drive into something and kill you both.

[8]       You were on the Southern Motorway heading south.  As you passed Papakura a member of the public was in the lane next to you.  He noted that your partner was in distress, she had to mouth the words “help me.”  As a result he called the police and continued to follow you.  As you approached Patumahoe a police car began to follow you.  That car activated its blue and red flashing lights, you pulled over.

[9]       The  police  officer  approached  you,  he  noticed  that  there  was someone in the vehicle with you under the cover of a blanket.   You were asked who was there, you said, “Just a mate.”  It was at that point that your partner jumped out of the car, she was screaming that you were going to kill her.  She began to run off. You tried to grab her as she jumped out. You then drove off. You did a 360 degree turn, the police officer had to take evasive action to get out of the way.  Capsicum spray was used as you drove past. A pursuit then began. The police attempted to stop you. You continued to accelerate away travelling over the speed limit.  The chase came to an end when road spikes were deployed.  You continued to drive until your tyres were completed destroyed.   It is at that point that you were arrested and taken into custody.

[10]     In terms of the injuries to your partner, in addition to her being rendered unconscious on two occasions there was bruising and grazing to her arms, she had cuts to the inside of her mouth, she had a swollen ear, she had lumps to her head, she had scratches, grazing, bruises to her face and neck. She found it hard to swallow.  She had ongoing headaches.

[5]      Prior to the sentencing in the District Court, the appellant had attended the Salvation Army Bridge Programme as well as some programmes in custody.  There had also been a Restorative Justice conference.  The guilty plea to the most serious charges was entered the Friday before the stand-by trial date.

[6]      The Judge adopted a starting point of four years’ imprisonment, uplifted by

12 months to reflect the totality of the offending, to 5 years.  He then allowed a 15 per cent discount to reflect the steps the appellant had taken towards rehabilitation. He allowed a discount of 2 months to reflect the appellant’s remorse, a further 10 per cent in respect of the guilty pleas, and a further discount of 3 months to reflect restrictive bail conditions. This resulted in an end sentence of three years and five months’ imprisonment.

[7]      Appellant counsel, Mr Pati, submits that this end sentence was manifestly excessive.  That the Judge had failed to properly take into account all the mitigating factors personal to Mr Latu.  As a result, the Court was precluded from considering home detention as an alternative sentence to a short term of imprisonment.  All this notwithstanding that counsel accepted the global starting point adopted by the Judge, the 10 per cent discount for the early guilty plea, the 3 month discount for the time spent on EM bail conditions.

[8]      Counsel argued that the two months’ discount for the level of remorse was insufficient.  That the Judge had wrongly weighed the timing of the guilty plea as a proper indication of remorse.  Rather, that a discount of six to eight months would be appropriate reflecting a real reconciliation and movement towards healing for her, the victim.  Counsel also argued that there had been an insufficient discount to reflect Mr Latu’s rehabilitative efforts and sought in turn a discount of 35 per cent, relying

on the judgment of the Court of Appeal in R v Hill2 and the decision of R v Persico.3

2      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

3      R v Persico [2016] NZHC 2303 at [14]–[21].

[9]      Counsel went through the efforts Mr Latu has undertaken to deal with the longstanding battle with illicit drug addiction by participating in the Salavation Army Bridge Programme, in engaging in relationship counselling with the Hamilton Therapy Centre and attempting to enter the Hamilton Abuse Intervention Project. Mr Pati also relied on Mr Latu’s relative youth (21 years) and the Court of Appeal

decision in Pouwhare v R.4    He also relied a decision of Thomas J in Vaeau v NZ

Police5  and a Court of Appeal decision in Tahuri v R6  where the Court upheld a discount of 18 months  from a starting point of eleven  years for  a 21  year old defendant with minor previous convictions who was found guilty of wounding with intent to cause grievous bodily harm.

[10]     Overall, counsel for the appellant submitted with appropriate discounts for youth, rehabilitation efforts, prospects and remorse, an end sentence in the vicinity of

24  months’ imprisonment  would  have been  appropriate and  thus  leading to  the

ability of the Court to consider home detention as a sentence.

[11]     I compliment Mr Pati for doing the best for his client in marshalling this argument.  But I have not been persuaded to an end sentence in the vicinity of 24 months, let alone the merit of home detention.  I am far from convinced that the end sentence was manifestly excessive.

[12]     The end sentence of home detention, coupled with 400 hours of community work is not the least restrictive outcome appropriate in the circumstances.  (That was the final sentence argued for by Mr Pati.)

[13]     Why?  In my view the stand-out facts in this case are the two strangulations of the victim, in both of which she lost consciousness.  She could have died.  This was a very serious assault.  While all the discounting factors relied upon by Mr Pati can be deployed, it is necessary for the Court to stand back and look at the final

result. The sentence has to be a just result applying the criteria in the Sentencing Act

4      Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

5      Vaeau v NZ Police [2015] NZHC 1972 at [49]–[55].

6      Tahuri v R [2013] NZCA 254 at [40]–[42].

2002.     Of  particular  relevance  are  three  paragraphs  of  the  Judge’s  decision,

paragraphs [32], [33] and the final paragraph, [45]:7

[32]     The factors that I see put this offending within band 3 is that the violence was extreme.  Serious injury did result.  It involved an attack to the head and your victim was vulnerable.  The strangulation was to the point of unconsciousness on two separate occasions, on the first occasion your victim lost control of her bladder and wet herself.  Despite being unconscious, you continued with the assault to her head, continuing to punch her so that when she came too that assault was continuing.

[33]      What the Law Commission said in its report on strangulation is that there  is  a  fine  line  between  fatal  and  non-fatal  strangulation.     The Commission noted that there is a danger inherent in strangulation. What is required is that the brain needs a continuous supply of oxygen.  Without that brain cells, which are not regenerative, malfunction and die.  That gives you an indication of the danger that strangulation to anyone poses.  There is a fine line between fatal and non-fatal strangulation.

…

[45]     Mr Latu, the sentence in my view correctly reflects the level of culpability in terms of what took place.  You have made significant steps in terms of trying to address what is in your background.  While you will be spending time in jail it is ultimately for your benefit that you do not lose hope and you keep in mind when you are released that you have made progress and you can continue to make progress, both in prison and once you are back in the community. You will be released on parole conditions and I would anticipate that those parole conditions will have as part of them conditions to help you address your offending related factors.  I simply ask for the benefit of yourself, your family, and your current partner that you keep that in mind.

[14]     I agree completely with the judgment of the District Court Judge.  In my view it is a careful, thorough and appropriate sentence, free from error.

[15]     The appeal is dismissed accordingly.

7      R v Latu, above n 1.