Moata'ane v Crown Law Office

[2019] NZHC 1872

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-77

[2019] NZHC 1872

BETWEEN

VINCENT MOATA’ANE

Appellant

AND

CROWN LAW OFFICE

Respondent

Hearing:

1 August 2019

Counsel:

P D Watts for Appellant

M McClenaghan for Crown

Judgment:

2 August 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 31 May 2019, the appellant, Mr Moata’ane was sentenced by Judge Couch in the Christchurch District Court to two years and three months’ imprisonment on the charge of wounding with intent to injure.1

[2]    He appeals his sentence on the ground that the Judge made an error of law by not taking into account the positive outcome of a restorative justice conference between him and the victim. Accordingly, the sentence is said to be manifestly excessive.

1      New Zealand Police v Moataane [2019] NZDC 10500; Crimes Act 1961, s 188(2), maximum penalty seven years’ imprisonment.

MOATA’ANE v CROWN LAW OFFICE [2019] NZHC 1872 [2 August 2019]

[3]    The Crown opposes the appeal, submitting that the Judge did not err and that the overall sentence was within range and adequately reflected the culpability and criminality of the offending.

Factual background

[4]    The appellant and the victim were previously in a relationship and have a one- year-old child together but had been separated for three months and were living at separate addresses. The victim also has a four-year-old son from a previous relationship.

[5]    On the evening of 28 July 2018, the victim was at home. She had arranged for Mr Moata’ane to visit that night, but he did not arrive. She went to sleep in the early hours of the following morning.

[6]    At approximately 5.00 am on 29 July 2018, Mr Moata’ane went to the victim’s address, entering the house through an unlocked door and going to her bedroom. Having looked at the victim’s cell phone and discovered that she had been in communication with another male, Mr Moata’ane became angry and woke her by yelling at her. He punched her repeatedly to the face and body.

[7]    Mr Moata’ane then started to strangle the victim with his hands around her throat, only stopping briefly when she dug her fingernails into his arms. He then started to strangle her again, but with more pressure, leaning on his hands which were around her neck. She lost control of her bladder, wetting herself, and then lost consciousness.

[8]    When the victim regained consciousness, she was on the floor of the bedroom. Her four-year-old son entered the room and she pleaded with Mr Moata’ane to let her take him back to bed. He ignored this request, however, punching and kicking the victim while she was curled on the floor.

[9]    The victim tried to crawl up onto the bed and Mr Moata’ane started strangling her from behind. She started to gag and foam at the mouth and could feel “things

popping” in her face. Mr Moata’ane eventually stopped when the victim again lost consciousness.

[10]   The victim was treated at Christchurch Hospital. As a result of the assault, the victim received widespread petechial haemorrhages (small broken blood vessels) from her neck upwards, over her face, eyelids and eardrums. She had extensive subconjunctival haemorrhages (blood over the whites of her eyes from burst blood vessels) and swollen lips, with bruising and small lacerations to the inner surface of her lips. She also had bruising and swelling over the left side of her jaw, a large bruise over the back of her left forearm and a large bruise over her right shoulder.

District Court decision

[11]   The Judge observed that he had previously given a sentence indication, having been provided with detailed information at that time, including a s 27 cultural report which he had found useful.2

[12]   It was noted that the charge, as originally laid, had been amended, but that the violence inflicted had been extreme:

[3] The charge against the defendant was originally  laid  as  causing grievous bodily harm within [sic] intent to cause grievous bodily harm. The willingness of the Crown to reduce that charge to one under s 188(2) of the Crimes Act 1961 represents a very substantial concession made in the interests of a resolution of the matter without the need to put the victim through what would have been a harrowing trial. I use that adjective because the violence inflicted on the victim by the defendant in this case was extreme. I set that out in my sentence indication and adopted the words that Judge Callaghan had earlier used in his bail decision that this was a, “Near death event.”

[13]He continued:

[4] In my sentence indication I adopted a starting point of four years’ imprisonment, but I made the observation that, had I been sentencing on the original charge, it would have been higher. I then allowed substantial discounts for personal factors and, in particular, the defendant’s relatively young age, the fact that he had no criminal history and then his cultural background. I was informed about the latter by the s 27 report. I reduced the sentence from the starting point by 10 months on account of those three factors. That is a little over 20 percent. I then reduced the sentence by a further 25 percent if a guilty plea was entered. That was, of course, a reduction

2      New Zealand Police v Moataane, above n 1, at [1]-[2].

at the upper level of the range which the Court of Appeal has said is reasonably available in these cases. I did so notwithstanding that, in terms of the Court of Appeal guidelines, a more appropriate reduction would have been of the order of 15 to 20 percent as the defendant had earlier pleaded not guilty and the matter had then been considerably prolonged.

[14]   Taking into account mitigating factors, the sentence was reduced from four years to two years and three months. The Judge noted that he had been urged to reduce the sentence further and said:3

I acknowledge that it is a mitigating factor that the defendant has participated in a constructive restorative justice meeting. I also have regard to the other supporting material which has been provided since I gave the sentence indication.

[15]He concluded:

[6] Standing back and looking at the matter in totality, however, I do not consider that any further reduction is warranted from the indication of two years and three months that I gave. I think that the decision of the Crown to agree to the very substantial reduction in the seriousness of the charge and the reductions that I made on account of mitigating factors in my sentence, are appropriate to include also the further mitigating factors which have been raised today. I, therefore, confirm my sentence indication by way of a sentence today of two years’ and three months’ imprisonment.

Approach to appeal

[16]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5

Relevant law

[17]   Section 8 of the Sentencing Act 2002 (the Act) has made it mandatory for the Court to consider any outcomes of restorative justice, relevantly providing as follows:

3 At [5].

4      Tutakangahau v R [2014] NZCA 279.

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

1. Principles of sentencing or otherwise dealing with offenders

   In sentencing or otherwise dealing with an offender the court—

   …

   (j)must take into account any outcomes of restorative justice processes  that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).

   [18]Section 10 of the Act relevantly provides:

10 Court must take into account offer,  agreement,  response,  or measure to make amends

(1)In sentencing or otherwise dealing with an offender the court must take into account—

(a)any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim:

(b)any agreement between the offender and the victim as to how the offender may remedy the wrong, loss, or damage caused by the offender or ensure that the offending will not continue or recur:

(c)the response of the offender or the offender’s family, whanau, or family group to the offending:

(d)any measures taken or proposed to be taken by the offender or the family, whanau, or family group of the offender to—

(i)make compensation to any victim of the offending or family, whanau, or family group of the victim; or

(ii)apologise to any victim of the offending or family, whanau, or family group of the victim; or

(iii)otherwise make good the harm that has occurred:

(e)any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.

(2)In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—

(a)whether or not it was genuine and capable of fulfilment; and

(b)whether or not it has been accepted by the victim as expiating or mitigating the wrong.

(3)If a court determines that, despite an offer, agreement, response, measure, or action referred to in subsection (1), it is appropriate to impose a sentence, it must take that offer, agreement, response, measure, or action into account when determining the appropriate sentence for the offender.

Submissions for Mr Moata’ane

[19]   Counsel for Mr Moata’ane, Mr Watts, correctly contends that there were a number of positive outcomes from the restorative justice conference. Mr Moata’ane’s expressions of remorse were well received by the victim. He undertook to ensure his family did not blame her for his imprisonment and, once released, to continue with the stopping violence programme he had been attending while in prison. The victim said she no longer felt scared of Mr Moata’ane and did not want him to be in prison. They both discussed how to best promote the interests of their children in the future, such discussions continuing since the conference, with the victim visiting Mr Moata’ane in prison, both alone and with their child.

[20]   Mr Watts submits that, although the Judge acknowledged that Mr Moata’ane’s participation in the restorative justice conference was a mitigating factor, he did not canvas in any detail its outcome or the victim’s views. He argues that s 10 is prescriptive as to what the Court must take into account, including any offers of amends, any measures taken or proposed to be taken to, among other things, apologise to the victim or make good the harm that has occurred. Mr Watts submits that, while the Judge was not required to mention in detail every outcome of the conference, s 10 requires a more detailed analysis of the outcomes and what, if anything, they are worth by way of discount, and the Judge failed to take into account the positive outcomes of the conference.

[21]   If, however, this Court determines that the Judge did take the restorative justice conference into account, Mr Watts contends that the issue then becomes whether he was justified in refusing to award Mr Moata’ane a further discount. Although one of the reasons given for refusing a further discount was that the Crown had made a considerable concession by amending the charge from s 188(1) of the Crimes Act 1961 to s 188(2), Mr Watts submits this was not a substantial concession.

[22]   Mr Watts  notes that, if this offending had happened after the inclusion of      s 189A of the Crimes Act, which is a specific offence directed at strangulation, this would have been the appropriate section under which to charge Mr Moata’ane. Section 189A has a maximum sentence of seven  years’ imprisonment, the same as   s 188(2). He argues that part of the rationale for introducing s 189A was that, although impeding breath can lead to a near death experience, often there are no serious physical injuries to the victim and the injuries the victim does sustain do not support the more serious assault charges such as those in s 188(1) and (2).6 He submitted that was the case here, with most of the injuries the victim sustained being extensive bruising, apart from some superficial abrasions to one of her cheeks and lips.

[23]   Although he acknowledges that Mr  Moata’ane’s  offending  was  serious,  Mr Watts submits that the more appropriate charge would have been either assault with intent to injure,7 injuring with intent,8 or, had it been enacted at the time of his offending, s 189A of the Crimes Act. In other words, while the maximum penalty of seven years’ imprisonment under s 188(2) of the Crimes Act is within range for the level of seriousness of Mr Moata’ane’s offending, the Crown’s concessions to amend the charge was not, as the Judge suggests, a considerable one.

[24]   Mr Watts also argues that Mr Moata’ane was entitled to the maximum discount of 25 per cent for his guilty plea (which was the discount awarded by the Judge), but suggests that the discount of 20 per cent for his youth, good character and personal circumstance, as outlined in the s 27 cultural report, was inadequate when compared with the 30 per cent awarded to a similar defendant by the Court of Appeal.9

[25]   Accordingly, Mr Watts submits that, as Mr Moata’ane’s expression of remorse was well received by the victim at the restorative justice conference, he should have received a five per cent discount for this alone, along with a further 10 per cent for its other positive outcomes. Reliance is placed on R v Heta, in which a 10 per cent

6      Ackland v Police [2019] NZHC 312 at [18] and [25].

7      Crimes Act, s 193; maximum penalty three years’ imprisonment.

8      Section 189(2); maximum penalty five years’ imprisonment.

9      T v R [2019] NZCA 213.

discount was awarded for remorse and the positive outcomes of a restorative justice conference for violent offending that also took place in a domestic context.10

Respondent’s submissions

[26]   Counsel for the respondent, Mr McClenaghan, submits that the starting point, whilst within range, could be considered lenient when considering the aggravating features and seriousness of the offending. He points out that the Judge, having identified five aggravating features in the offending, stated that the case was within band 3 of Taueki.11 However, this being an intent to injure charge as opposed to a grievous bodily harm charge, the Nuku bands should have been used, of which band 3 (where there are three or more of the aggravating features set out in Taueki present and the combinations of those features is particularly serious) has a starting point of two years to the statutory maximum.12

[27]   Mr McClenaghan argues that the offending here, which involved three episodes of strangulation during which the victim was twice rendered unconscious, could be considered among the most serious cases of non-fatal strangulation. He refers to the Court of Appeal decision of Lufe v R, in which there were two episodes of strangulation, during which the victim, who was six months pregnant at the time, lost consciousness once.13 While a starting point of four years’ imprisonment was adopted on the injuring with intent to cause grievous bodily harm charge, on appeal it was noted that a starting point of five years’ imprisonment or longer could be readily justified.

[28]   Mr Watts submitted that the present case could not properly be compared with Lufe v R emphasising that the victim in that case was six months pregnant at the time of the assault and that Mr Lufe had previously been convicted of assaulting the victim. However, this case had its own aggravating features not present in Lufe. There were three episodes of strangulation, two of which rendered the victim unconscious (as opposed to two episodes, and one rendering the victim unconscious in Lufe). As well

10     R v Heta [2018] NZHC 2453.

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

12     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

13     Lufe v R [2018] NZCA 327.

as the strangulation, Mr Moata’ane kicked and punched the victim as she lay curled on the floor between episodes of strangulation. This, and the third episode of strangulation were witnessed by the victim’s four-year-old son who had entered the room, with Mr Moata’ane ignoring the victim’s pleas that she be allowed to take him back to his bedroom.

[29]   The District Court Judge who considered the bail application and the sentencing Judge both described the victim as having a near death experience at the hands of Mr Moata’ane. That description is accurate and there is no doubt that this was a very serious assault.

[30]   Given the seriousness of the offending in the present case, Mr McClenaghan submits that it was open to the Judge to adopt a starting point in the range of five years’ imprisonment or above and this arguably lenient starting point of four years’ imprisonment needs to be taken into account when considering the merit of the appellant’s submission that the end sentence is manifestly excessive.

[31]   As to the restorative justice conference, Mr McClenaghan states that it is clear from the sentencing notes that the Judge took Mr Moata’ane’s participation into account when sentencing him, expressly acknowledging that such participation can be treated as a mitigating factor.14 However, when “looking at the matter in totality”, he decided no further reduction was warranted as the Crown had agreed to reduce the charge and reductions previously indicated for personal mitigating factors appropriately included the further mitigating factors raised at the sentencing hearing.

[32]   In terms of the discounts, Mr McClenaghan acknowledges that it was open to the Judge to provide some additional discount for remorse and participation in the restorative justice process, given that Mr Moata’ane demonstrated real and genuine remorse. While Mr McClenaghan accepts that, where there is tangible evidence of genuine remorse, a discount of around five to eight per cent may be appropriate,15 he submits that the Judge’s generous discount for the guilty plea offsets, to an extent, any

14     New Zealand Police v Moataane, above n 1, at [5]-[6].

15     See, for example, McArthur v R [2013] NZCA 600 at [13]-[14]; Rowles v R [2016] NZCA 208 at [18]; Watene v R [2014] NZCA 381 at [18]; Poi v R [2015] NZCA 300 at [7].

potential discount for remorse and/or participation in the restorative justice conference. The plea was entered after a sentence indication on a lesser charge at case review hearing, some seven months after the offending; it was not entered at the first possible opportunity and the Judge noted that he was providing a 25 per cent discount notwithstanding that a more apt discount, in line with the Court of Appeal guideline, would have been around 15-20 per cent.

[33]   Therefore, Mr McClenaghan submits that the discount of 25 per cent for the guilty plea and the 20 per cent for personal mitigating features was fair and had the capacity to include within it a discount for remorse and participation in the restorative justice process. Standing back and looking at the final sentence, Mr McClenaghan submits that the end sentence of two years and three months’ imprisonment was appropriate and within range, taking into account the seriousness of the offending, which involved multiple incidents of strangulation in a domestic setting resulting in unconsciousness and moderate injury.

Analysis

[34]   It is my view that the Judge adopted a starting point that was lenient. This was extremely serious offending and could easily have resulted in a fatal outcome. There were other serious aggravating features as set out in [4] of Judge Couch’s decision. I would have adopted a starting point of five years’ imprisonment.

[35]   In amending the charge, the Crown did make a considerable concession. Although, if this offending had occurred after s 189A had been enacted, that section would have been the appropriate one under which to charge Mr Moata’ane, at the time, offending of this nature could warrant a charge of injuring with intent to cause grievous bodily harm, as was the charge in Lufe v R.16 As I stated above, this was offending of a serious nature, and could easily have justified a charge under s 188(1).

[36]   As to the restorative justice conference, while the Judge could arguably have given more acknowledgement of its positive outcomes, he was not required to go through each s 10(1) consideration in his decision. Mr Moata’ane’s participation was

16     Lufe v R, above n 13.

noted, as was it having been a constructive conference. The Judge indicated it was a mitigating factor, but concluded that it did not warrant further reduction, as he had already given substantial reductions. The Judge clearly did meet the mandatory obligation on him of considering the outcome of the restorative justice process. The real issue is whether or not he was justified in not adjusting the overall sentence as a result.

[37]   There was a reduction of 25 per cent for the guilty plea, which was generous as Mr Moata’ane did not plead guilty at the first available opportunity, and reductions of around 20 per cent for youth, lack of criminal history, and cultural background. Although higher discounts can be given, this was not outside the range available. However, a discount of 15 per cent for remorse and participation in the restorative justice conference on top of this would, in my view, have been excessive in the circumstances.

[38]   However, if I were to give discounts of 25 percent for guilty plea, along with 30 per cent for other mitigating factors, including youth, good character, personal circumstances and participation in the restorative justice conference, a total discount of 55 per cent, given that it is my view that a starting point of five years’ imprisonment would have been more appropriate, I nevertheless arrive at an end sentence of two years and three months’ imprisonment. Therefore, while I would have approached the sentencing exercise in a different way, starting at a higher point, giving a lesser discount for the guilty plea and giving a separate discount for the positive participation in restorative justice, it cannot be said that the sentence imposed was manifestly excessive.

Result

[39]For the reasons given above, the appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor’s office, Christchurch for Crown

Counsel:

P D Watts, Barrister, Rangiora for Appellant