Mihinui v Police
[2018] NZHC 2705
•18 October 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-419-000042 [2018] NZHC 2705
BETWEEN SATRIANI MIHINUI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 October 2018 Appearances:
G Prentice for Appellant
A A R Pell for RespondentJudgment:
18 October 2018
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
MIHINUI v NEW ZEALAND POLICE [2018] NZHC 2705 [18 October 2018]
[1] Mr Mihinui pleaded guilty in the District Court to the following charges:
• 22 December 2017
Male assaults female – assault with intent to injure – assault with a weapon
• 26 December 2017
• Injuring with intent to injure
• 13 January 2018
• Assault with intent to injure
• 22 January 2015
• Male assaults female – intentional damage – assault with intent to injure –
assault on police (x 2)
[2] On 26 March 2018, Judge Cocurullo sentenced Mr Mihinui to an effective term of three years nine months imprisonment on all charges.1 Mr Mihinui appeals against sentence on the basis that the Judge erred in several respects when constructing the sentence, and these errors led to an end sentence that was manifestly excessive.
The charges
22 December 2017
[3] In the early hours of 22 December 2017, Mr Mihinui and his partner were at his partner’s mother’s address in Waitara. After they began to argue Mr Mihinui sat on top of his partner whilst she was lying on the bed. He then used his open left hand to push her face up against the wall. Whilst his partner was in this position, he placed his right hand around her throat and squeezed, thereby restricting her ability to breathe but leaving her with no lasting injury.
1 New Zealand Police v Mihinui [2018] NZDC 5734.
[4] Mr Mihinui and his partner then went outside the address. When his partner broke free from him, Mr Mihinui swung a piece of wood at her head. This glanced off her scalp, narrowly avoiding injury.
26 December 2017
[5] On this date, Mr Mihinui and his partner were together at an address in Hamilton, during which an argument again occurred Mr Mihinui grabbed an extension cord and wrapped it round his partner’s neck to the point where she could not breathe. She attempted to escape by scratching and hitting Mr Mihinui. He eventually loosened the cord to allow her to breathe. At that point he began apologising to his partner and kissing and hugging her. Shortly thereafter, however, he put the cord back around her neck and squeezed it tightly. On this occasion, his partner lost consciousness and eventually passed out. He did not loosen the cord until after she had lost consciousness and begun twitching.
13 January 2018
[6] On 13 January 2018, Mr Mihinui and his partner were in the garage of an address. Another argument ensued. Mr Mihinui began throwing clothing around the garage. He then walked up to his partner and punched her three times to the head with a clenched fist. After the third punch, his partner fell to the ground on her knees. He then continued to punch her in the head. Mr Mihinui concluded this episode with three final punches, the last of which connected with his partner’s nose, making it bleed. He then took her outside to a garden shed and locked her in the shed overnight.
22 January 2018
[7] On this date Mr Mihinui and his partner were at an address in Hamilton. Another argument arose, this time about whether or not a room should be tidied. He pushed his partner down the hallway and out to a shed, where he threw asthma inhalers at her. He then left her in the shed.
[8] The owner of the property had witnessed what was going on and told
Mr Mihinui she was calling the police. He then pursued her, and during the course of
the pursuit he picked up a metal-framed chair and threw it at her. He also threw a beer bottle at her. Neither missile found its mark. The police arrived at the address and saw Mr Mihinui shouting and running back into the house. They endeavoured to speak to him through a bedroom window and also asked to speak with his partner. Without warning, Mr Mihinui smashed the window directly in front of the police officers. Shards of glass flew over the officers. Mr Mihinui then armed himself with a chair and smashed another window, again sending glass over the officers. They received minor injuries as a result of these incidents. They were required to pepper-spray
Mr Mihinui in order to arrest and restrain him.
[9] When the police interviewed Mr Mihinui regarding the incident on
26 December 2017, he told them he had wanted to hurt his partner.
The Judge’s decision
[10] Not surprisingly, the Judge viewed the incidents that occurred on 26 December
2017 and 13 January 2018 as being extremely serious. In particular, the violence on
26 December 2017 proceeded to the point where the victim had lost consciousness and was at risk of asphyxiation. The Judge selected a starting point of 30 months imprisonment to reflect both incidents. The Judge said, however, that the offending on 26 December 2017 could easily attract a starting point of three years imprisonment, and the offending on 13 January would justify a starting point of two years imprisonment on a standalone basis.
[11] The Judge then added an uplift of 12 months to reflect the assaults that occurred on 22 December 2017. He considered this offending could easily attract a starting point of 18 months to two years imprisonment, but obviously applied totality principles. He added a further uplift of 15 months to reflect the offending against the four separate victims on 22 January 2018, although he considered a starting point for that offending on a standalone basis would be between 15 months and two years. This produced an end sentence of four years nine months before taking into account aggravating and mitigating factors personal to Mr Mihinui.
[12] The Judge applied an uplift of four months to reflect previous convictions for offending involving violence. He then added a further uplift of four months to reflect
the fact that Mr Mihinui had committed all of the offending after 22 December 2017 whilst on bail on charges arising out of the incident that occurred on that date. This produced a sentence of five years five months imprisonment before taking into account mitigating factors.
[13] Mr Mihinui is only 19 years of age. The Judge applied a discount of five months to reflect that factor and a further discount of 15 months, or 25 per cent, to reflect guilty pleas. This produced the end sentence of three years nine months imprisonment.
The appeal
[14] Mr Prentice advances several arguments on Mr Mihinui’s behalf. He accepts that the starting point the Judge selected in relation to the offending that occurred on
26 December 2017 was appropriate. He also accepts the Judge acted in a generous manner by including within that starting point the offending that occurred on
13 January 2018. He submitted that the latter would warrant a starting point of no more than 12 months on a standalone basis.
[15] Mr Prentice contends the offending that occurred on 22 December 2017 warranted a starting point on a standalone basis of between 15 and 18 months imprisonment having regard to authorities such as Teka.2 He submits, however, that the Judge seriously overestimated the culpability inherent in the offending that occurred on 22 January 2018. He points out that the charges relating to the police officers carried maximum sentences of just six months imprisonment. He also points out that the offending against the owner of the property was of a relatively minor nature, and consisted of throwing missiles that did not find their mark. He submits that all of those charges would justify a starting point of no more than six to eight imprisonment, viewed on a standalone basis. As a result, he submits that the uplift of
15 months applied by the Judge to reflect this offending was excessive.
Decision
[16] It became apparent during argument that Mr Prentice was approaching matters on a charge by charge basis and, where he considered it appropriate, he challenged the uplifts applied by the Judge to the starting point selected on the charge relating to the offending that occurred on 26 December 2017 and 13 January 2018. The offending on 26 December 2017 was undoubtedly serious and could easily have attracted a starting point in excess of two years six months imprisonment on a standalone basis. It involved the strangulation of the victim on two separate occasions, with her losing consciousness on the second occasion. Mr Mihinui is extremely fortunate that he is not facing more serious charges as a result of that incident.
[17] The appropriate manner in which to apply totality principles, however, is to ascertain the sentences that would be appropriate viewing charges on a standalone basis. The Court is then required to stand back and consider whether the end sentence thereby produced is out of all proportion to the overall culpability of the offending.3
Several factors may be relevant in this regard. These may include the fact that the offending is persistent, or has continued after the offender has been arrested and granted bail.
Starting point
[18] I do not propose to analyse the starting points Mr Prentice suggests in relation to each set of charges. I consider, however, that his suggestion of a starting point of
12 months imprisonment in relation to the offending on 13 January 2018 is misplaced. That was very serious offending, both in terms of violence and also the callous manner in which Mr Mihinui locked his partner in the shed overnight after punching her on numerous occasions. I consider the starting point of 15 months selected by the Judge on those charges to be well within the available range on a standalone basis.
[19] Even on Mr Prentice’s calculations, however, the end sentence would be between five years three months imprisonment and five years eight months
imprisonment. This means he is forced to argue that a reduction to four years nine months imprisonment did not sufficiently take into account totality principles.
[20] I consider several factors about the overall offending place the Judge’s starting point well within the available range. First, it involved repeated and serious offending against the same victim. Secondly, three of the four incidents occurred after Mr Mihinui had been arrested and granted bail in relation to the offending that occurred on 22 December 2017. Even taking into account totality principles, I cannot say that an end starting point of four years nine months imprisonment is out of all proportion to the overall gravity of Mr Mihinui’s offending. It follows that the challenge to the starting point must fail.
Uplift for previous convictions
[21] Mr Prentice accepted that an uplift of four months was within the available range to reflect the fact that much of the offending had occurred whilst Mr Mihinui was on bail. He submitted, however, that an uplift of four months to reflect previous convictions was excessive. He pointed out that Mr Mihinui does not have a significant criminal history. He has convictions for wilful damage and common assault (x 2), all committed in a family violence context, on 28 December 2015. Mr Mihinui received a sentence of supervision on those charges. On 10 March 2016, he was in possession of an offensive weapon, and also committed the offence of wilful damage. Then on
12 May 2016 he committed two offences of assault with a blunt instrument. He received a sentence of three months imprisonment on those charges. Mr Prentice points out that the Judge applied an overall uplift to reflect previous convictions that was greater than the sentence Mr Mihinui was required to serve in relation to those charges. He submits that this was excessive.
[22] Even if it is arguable that the overall uplift for previous convictions is slightly outside the available range, that possibility is balanced by the fact that the Judge could easily have applied a greater uplift to reflect the fact that much of the offending occurred whilst Mr Mihinui was on bail. Furthermore, I consider the sentence on the charges relating to the incident that occurred on 26 December 2017 was at the very bottom of the available range given the seriousness of that offending. I consider these
factors cancel out any suggestion Mr Mihinui may have received an excessive sentence by virtue of the uplift the Judge applied for previous convictions.
Result
[23] It follows that the end sentence of three years nine months imprisonment on all charges cannot be regarded as manifestly excessive. The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Hamilton
Public Defence Service, Hamilton
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