Manukailea v Police

[2014] NZHC 2647

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000173 [2014] NZHC 2647

BETWEEN

MATA'AFA MANUKAILEA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 October 2014
Counsel:	M M Wilkinson-Smith for the Appellant W R Potter for the Respondent
Judgment:	28 October 2014

JUDGMENT OF DUFFY J

[re Appeal Against Conviction and Sentence]

This judgment was delivered by Justice Duffy on 28 October 2014 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     M M Wilkinson-Smith for the Appellant

Solicitors:    Meredith Connell, Auckland

MANUKAILEA v POLICE [2014] NZHC 2647 [28 October 2014]

[1]      The appellant, Mata’afa Manukailea, appeals a sentence of three years and three   months’   imprisonment   imposed   by   Judge   Bouchier   in   the   Manukau District Court on 7 April 2014.1   Mr Manukailea had pleaded guilty to one charge of wounding with intent to cause grievous bodily harm, which attracts a maximum penalty of 14 years’ imprisonment.

Background

[2]      The appellant  and  his  co-defendant,  Sakisi  Manukailea,  are brothers  and worked together at Formstress Concrete in Waiuku.  On 25 May 2013, the brothers went on a fishing trip to Coromandel with several work colleagues.   They had all known each other for a number of years, and there was no previous animosity within the group.  That afternoon they went fishing and drank alcohol.  In the evening, they continued to socialise and drink alcohol at a local pub.

[3]      Tensions rose when the appellant observed a work colleague (the victim) bump into the appellant’s brother and spill beer over him.   The appellant and the victim were separated by their colleagues and, upon return to their hostel, they all continued to drink.  At this stage, the victim was heavily intoxicated and fell asleep on a couch.  While he slept, the appellant attacked the victim, striking the left side of his face with a bottle of beer, making contact with the victim’s face and neck.  Then the appellant punched the victim several times around the head.   The appellant’s brother observed the encounter and joined in, also punching the victim about the head.

[4]      Soon after, other work colleagues intervened and stopped the attack.   The victim woke up in an ambulance and did not remember the attack.   He suffered a blackened swollen eye, a laceration below the left eye, and a severed ear lobe, which was sliced open.  The police summary of facts also mentioned two lacerations to the neck area, but this is not supported by the relevant medical reports.  The respondent

accepts this.

1      R v Manukailea DC Manukau CRI-2013-057-001680, 7 April 2014.

[5]      In explanation for the attack, the appellant and his brother stated that they had consumed alcohol throughout the day and could not remember assaulting the victim. Subsequently, the appellant and his brother offered $10,000 in emotional harm reparation to the victim.

District Court decision

[6]     Judge Bouchier sentenced the appellant to three years, three months’ imprisonment.  The Judge referred to R v Taueki2 and considered that the Crown was correct in its submission that the offending was at the lower end of band two and attracted a starting point of five to six years.   From a starting point of five years’ imprisonment, she took the view that as well as the 25 per cent discount for the appellant’s early plea, he should receive a further 15 per cent discount for emotional harm reparation provided by himself and his brother to the victim.3

Grounds of appeal

[7]      The appellant advances three grounds of appeal:

(a)       There was a mathematical error when calculating the total discount

from the start point of five years’ imprisonment;

(b)      The start point should have been three to six months less; and

(c)       The Judge failed to provide an adequate discount for the appellant’s

previous good character and lack of convictions.

[8]      Section 250 of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed.   In any other

case, the Court must dismiss the appeal.4   The Court approaches sentence appeals in the manner described in Yorston v Police:5

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing, it must be shown that the Judge in the lower Court made an error, whether intrinsically, or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[9]      The Court will not intervene in circumstances where the end sentence is within the acceptable range, having regard to the principles and purposes of the Sentencing Act 2002.6

Mathematical error

[10]     The appellant submits that the Judge made an error in discounting 35 per cent from the starting point, when she had indicated that she would discount 40 per cent, being  the  sum  of  the  guilty plea  discount  of  25  per  cent  and  the  15  per  cent reparation discount.  If the Judge had discounted 40 per cent, the end sentence would have been three years’ imprisonment, not three years, three months’ imprisonment. The Crown agrees with this submission and does not oppose the appeal on this point.

[11]     In my view, while the Judge rounded up the end sentence, both the defence and  the  Crown  are  wrong.     Judge  Bouchier  made  no  mathematical  error  in calculating the discount.   As clarified by the Supreme Court in Hessell v R, the discount  provided  for  any  guilty  plea  is  the  last  step  in  determining  the  end

sentence.7    Although discounts for remorse are often coupled with the guilty plea

4      Criminal Procedure Act 2011, s 250(3).

5      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

6      Ripia v R [2011] NZCA 101 at [15].

7      Hessell v R [2010] NZSC 135 at [73]; and see R v Clifford [2011] NZCA 360, [2012] 1 NZLR

23 at [57]-[60].

discount, sentencing methodology requires that any other discount, such as for previous good character or reparation, is applied before that afforded for the guilty plea.

[12]     In  this  case,  Judge  Bouchier  considered  the  appellant  was  entitled  to  a discount of 15 per cent for reparation paid to the victim.   That left a provisional sentence of four years, three months.  From there, the appellant was further entitled to  a  discount  of  25  per  cent,  or  12.75  months,  bringing  the  end  sentence  to three years and 2.25 months.  While Judge Bouchier rounded up the end sentence by three weeks, she applied the same approach for the appellant’s brother.8  I do not consider that approach to be necessarily wrong in principle, and, in any event, a change in the end sentence amounting to three weeks would, in my view, amount to

tinkering.

[13]     For those reasons, I think both parties are wrong.  Judge Bouchier made no mathematical  error,  but  rather  applied  conventional  sentencing  methodology. Accordingly, the appeal on this point is dismissed.

Starting point

[14]     The appellant submits that the starting point of five years’ imprisonment was excessive.   Instead, a starting point of four years, six months to four years, nine months was appropriate.  In response, the Crown submits that the sentence imposed on the appellant was well within range.

[15]     Determination  of the starting point  for cases  of grievous  bodily harm  is guided by the tariff decision in R v Taueki and the bands therein:9

(a)       Band one: three to six years; (b)           Band two: five to 10 years; (c)          Band three: nine to 14 years.

[16]     In that case, the Court of Appeal stated that band two would be appropriate for offending which features two or three of the specified aggravating factors.10   The aggravating features of the appellant’s offending that were identified by the Crown are summarised at [5] of the Judge’s sentencing notes are:

(a)       Extreme violence, striking on the left side of the fact of the victim with a beer bottle and then punching him around the head by the first defendant, and the second defendant joining in and also punching around the head.

(b)       The second aggravating feature is the extent of harm, black and swollen eye, laceration below the left eye; two deep lacerations to the neck area, a severed ear lobe completely sliced open and losing feeling on the left side of the face.  The Crown have provided the Court with a victim impact statement which indicated that the complainant  felt  obviously  weary,  withdrawn  and  lost  trust  in people.

(c)       The use of weapons, using a beer bottle.

(d)       Vulnerability, he was intoxicated at the time and asleep when the attack occurred.

(e)       An attack to the head.  This is an aggravating feature, but the Court is warned against double counting this because of course the use of weapons and extreme violence to the head are also suggested to be aggravating features.

(f)       The sixth one is there were two persons attacking this person who was asleep and defenceless.

[17]     Having regard to a number of cases cited by the Crown and defence,11  the Judge concluded that the appellant’s offending fell at the bottom of band two in Taueki.12

Appellant’s submissions

[18]     On appeal, the defence submits that the appellant’s offending was on the cusp between grievous bodily harm and wounding with intent to injure, which attracts a maximum  period  of  imprisonment  of  seven  years.13      As  noted  in  R  v  Taueki,

“[a]lmost all GBH offences will involve a high degree of criminality (and significant

10 At [38].

11     Mori v Police [2013] NZHC 225, Peniamina v Police [2013] NZHC 855, R v Buttar [2008] NZCA 28.

injury to the victim) which will require the imposition of a term of imprisonment”.14

Counsel submits that the actual harm done to the victim was moderate, rather than extreme.

[19]     In support of that submission, counsel points to an error in the summary of facts.  Counsel has filed a report from the victim’s treating physician, who describes the lacerations to the neck as superficial rather than “deep”, as was reported.  Since the harm was moderate rather than extreme, in the context of a charge of grievous bodily harm counsel submits that it should not be counted as an aggravating factor because that harm is inherent in the offence.

[20]     Although it is accepted by counsel that the offending is aggravated by being an attack to the head, the use of the glass as a weapon, and the vulnerability of the victim, it is submitted that the former two factors overlap to some extent,15  and the following factors are relevant in assessing the defendant’s culpability:

(a)      The appellant struck one blow with the glass and, when it broke, he put it down and punched the victim using his fists.  His level of intent must be assessed against the fact that he did not continue to use the weapon;

(b)The victim was not isolated and the period of the attack was short- lived as a result;

(c)      The attack did not begin as a group attack.  The appellant’s brother joined in, but there is no evidence that this was anticipated or encouraged by the appellant; and

(d)      The resulting harm was moderate in the context of the charge.

[21]     Counsel refers to the Court of Appeal’s recent decision in Boote v R as instructive.16      In  that  case,  the Court  upheld  a starting point  of four  years, six

14     R v Taueki, above n 2 at [27].

15     Flavell v R [2011] NZCA 361 at [22].

months’ imprisonment.  The appellant and victim had engaged in a minor push and shove with the victim in a bar before hostilities escalated.   Without warning, the appellant picked up a bottle of beer and struck the victim in the face in an impulsive manner.  The blow caused significant damage to the victim’s face, requiring multiple stitches and a “massive” permanent scar.17

Crown’s submissions

[22]     The Crown submits that the starting point of five years was within range.  As to the applicability of Boote, counsel submits that the offending was quite different, being a single strike with a bottle to the face of a fellow bar patron with whom the offender had been scuffling, rather than a sustained assault on a victim who was asleep and defenceless.

[23]     As to the submission that the Court should not double count the use of weapons and  attacking of the victim’s head as  independent aggravating  factors, following the approach in Flavell v R, the Crown submits that Flavell v R is distinct from the present offending.  Here, the appellant both struck the victim with a beer bottle and then began punching him in the head.  As they were separate events, the Judge was correct to treat them as independently aggravating factors in setting the appropriate start point.

[24]     The Crown accepts that there was an error in the summary of facts as to the seriousness of the appellant’s injuries, but submits that the injuries were nevertheless sufficient to justify the start point imposed.   The injury to the victim’s earlobe required sutures and now has the appearance of being overlapped.  The facts justified the charge of grievous bodily harm, given the unprovoked and gratuitous nature of the violence inflicted upon the victim.

Discussion

[25]     I accept that there was an error in the summary of facts, and that weighs towards a sentence below that set by the Judge.   I also accept that this was not a

17 At [10].

premeditated group attack, but rather involved the appellant’s brother joining in unrequested on the melee.   However, in all the circumstances, I consider that the starting point of five years’ imprisonment was within the acceptable range.

[26]     The appellant submits the facts of this case are on par with those in Boote, in that the level of harm was less, but the victim was more vulnerable in the present case and, on review, those factors balance out.  In my view, the vulnerability of the victim in this case was a serious aggravating factor that does not balance out in the manner described.  In Boote, the appellant impulsively attacked the victim in a bar, after minimal provocation, using a weapon.  The offending was towards the top end

of band one in Taueki. 18    Although the actual harm inflicted on the victim in this

case was less than in Boote, the nature of the attack, being an attack on a victim who was asleep and heavily intoxicated, places the offending in a different category to that in Boote.  Further, the victim was a workmate of the appellant for many years, and they were on the annual work fishing trip in circumstances where he was entitled to trust his colleagues not to attack him while he slept.  He had no warning of the attack and had no chance to defend himself.  There was little to no provocation.

[27]     As to the issue of whether the attack with the beer bottle and the additional attack to the head could be considered as independent aggravating factors, I consider the Crown is correct, subject to the possible inconsistency in saying that a sustained attack with a beer bottle was less serious than an attack with a beer bottle that de- escalated to punching with fists.   The bands set out in Taueki are to be applied

flexibly.19    Taking  a  holistic  approach  to  those  two  factors,  treating  them  as

indicative of a sustained attack, still suffices to justify the Judge’s discretion to place the appellant’s conduct towards the bottom end of band two.  That is particularly the case when considered in context with the victim’s vulnerability and the harm he suffered.

[28]     For those reasons, I consider that the appeal on this second point should be dismissed.

18     Boote v R, above n 16 at [25].

19     R v Taueki, above n 2 at [42].

Good character discount

[29]     The appellant submits that he was entitled to a discount for good character, and the Judge failed to provide one.   The Crown’s position is that the Judge recognised and provided for the appellant’s good character in setting the starting point and in providing a 15 per cent discount for emotional harm reparation.

[30]     The Judge clearly was aware of the appellant’s previous good character.  She refers to the letters of support at [19] of her judgment.  However, I do not think the Crown is right in its submission that the discount for emotional harm reparation included recognition that the appellant was a hard-working man who supported a family.  At [24] of the judgment the Judge states:

Then considering the start points, accepting also that there are no further aggravating features to be taken into account.   The mitigating features in respect of each of the defendants are the guilty pleas for which they must receive the proper 25 per cent discount, and what I accept for them as men who are working in labouring positions with families that they support, each of them with a wife or a partner who does not work, that they have made an enormous effort to provide a very significant sum as emotional harm reparation to the complainant in this matter.  So I recognise that.

[31]    Considered in context, the Judge’s reference to the appellant’s personal circumstances was to emphasise the significance of the emotional harm reparation provided by the appellant and his brother, rather than to discount specifically for personal factors as well.  Further, the Judge gave no discount for remorse.

[32]     The circumstances of this appeal warrant separate discounts for reparation, remorse and good character: see s 10, s 9(2)(f) and s 9(2)(g) of the Sentencing Act.

[33]     I consider that the Judge was right insofar as she adopted a discount of 15 per cent for emotional harm reparation.   The appellant and his brother have paid reparation of $10,000 to the victim.   This is a significant sum of money.   This is particularly so, given that both the appellant and his brother are manual workers, and so they are unlikely to have high incomes.  Following the incident, the appellant lost his  employment  with  Formstress.    He  had  worked  there  for  seven  years.    In July 2013  he  obtained  employment  with  ConcreTec,  which  is  another  concrete contracting company.   The Judge noted that the appellant had worked long hours

with ConcreTec in order to make the reparation payment.  For the appellant and his brother, on their salaries, payment of $10,000 would be a real hardship, particularly as the appellant has five children and is soon to have a sixth child.   Against this background, I consider the payment of $10,000 to be extraordinary.

[34]     I also  consider that this level of payment  for emotional harm reparation demonstrates genuine, deeply felt remorse and regret for the offending, of the type that was seen in Hessell v R, to merit separate recognition: see [63]-64].   Such remorse and regret is, therefore, a separate factor that was overlooked by the Judge. I consider that the appellant was entitled to a discount of five percent for remorse and regret for his offending.

[35]     I agree with the appellant that the Judge did not provide a discount for the appellant’s  good  character.  I have  read  the  appellant’s  character  references  and letters of support.  The appellant is married.  He has proven to be a good father and a reliable and trustworthy employee.  In the short space of time since July 2013 when he commenced work with ConcreTec, he has impressed his employer, who provided him with a good character reference.  There are no previous convictions to his name. He is 39 years of age and, in my view, deserves credit for the good behaviour that he has displayed up to the time of the offending.  His attempts to address the causes of his offending, by attending a number of sessions with the Anglican Trust for Women and Children for anger and alcohol related treatment, are, in my view a further testament to his  good  character.   The rest of the letters  of support  suggest the appellant to be a caring and valued friend.  The pre-sentence report records that his family considers the offending to be completely out of character, which is consistent with his previous unblemished record.

[36]     Good character as a mitigating factor of offending is provided for by s 9(2)(g) of the Sentencing Act and has been recognised by the Court of Appeal.20    In my view, the appellant was entitled to a discount for his previous good character, and the Judge erred in not specifically addressing that fact.  Against that, however, the size

of the discount must be limited, given the starting point chosen by the Judge, the

20     R v Howe [1982] 1 NZLR 618 (CA), R v Findlay [2007] NZCA 552, Davidson v R [2011] NZCA 356, Manawaiti v R [2013] NZCA 88.

other   discounts   for   personal   mitigating   factors,   and   in   order   to   achieve proportionality in the end sentence.  I consider a nominal discount of five per cent for previous good character should apply.

[37]     This brings the total discount for personal mitigating factors to 25 per cent. This is higher than what is usually given for those factors.   However, I see the appellant’s circumstances as somewhat unique, and this requires and deserves proper recognition from the Court.  When this discount is subtracted from the starting point of five years’ imprisonment, it results in a provisional end sentence of three years, nine months’ imprisonment.

[38]     The appellant was given the full 25 per cent discount for his guilty plea.  That was appropriate.  After applying the full discount available for the appellant’s guilty plea, the end result, rounding down, is a sentence of two years, nine months’ imprisonment.   When that is compared to the sentence of three years and three months’ imprisonment that was imposed by the Judge, it shows the sentence to be manifestly excessive.

[39]     For those reasons, I consider the appeal should be allowed, and a sentence of two years, nine months’ imprisonment should be substituted for the sentence of three years, three months’ imprisonment.

Result

[40]     The sentence of three years, three months’ imprisonment is quashed.   In

substitution, the appellant is sentenced to two years, nine months’ imprisonment.

Duffy J