Nahi v Police

[2012] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000026 [2012] NZHC 2025

BETWEEN  MICHAEL TIKI NAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 August 2012

Counsel:         J C Hannam for Appellant

S A Law for Respondent

Judgment:      15 August 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      Mr Nahi appeals sentences imposed in the District Court at New Plymouth following his pleas of guilty to:

(1)       one charge of injuring with intent to injure (s 193 of the Crimes Act

1961);  and

(2)       one  charge  of  disorderly  behaviour  (s  4(1)(a)  of  the  Summary

Offences Act 1981).

[2]      In the District Court the following sentences were imposed upon Mr Nahi:

(1)One year and nine months’ imprisonment in relation to the charge of injuring with intent to injure;  and

NAHI V NEW ZEALAND POLICE HC NWP CRI-2012-443-000026 [15 August 2012]

(2)Conviction  and  discharge  in  relation  to  the  disorderly  behaviour charge.

The offending

[3]      The events leading to the charges can be succinctly summarised:

(1)Mr Nahi was drinking with the sister of his sister-in-law, Ms Fairley, at her home.  Mr Nahi became heavily intoxicated.

(2)After an argument with the victim, Mr Nahi pushed her onto a bed and used both hands to choke her and restrict her breathing.

(3)It is unclear how long Mr Nahi held the victim around her neck, however, all the victim could remember was waking up in her sister’s presence.    By  this  stage  Mr  Nahi  had  left  the  premises.    The sentencing Judge inferred that the victim lost consciousness for a short time.

(4)Mr Nahi went to his home.  When the police arrived he stood on the driveway yelling and swearing in full view of a number of children.

(5)The victim suffered bruising to her neck, a sore throat, a sore right eye and a lump on her head.

Appeals against sentence

[4]      This Court’s jurisdiction to hear and determine this appeal is derived from s 121 of the Summary Proceedings Act 1957.  In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).

[5]      In  R  v  Monkman,  the  Court  of  Appeal  explained  the  term  “manifestly excessive” in the following terms:[1]

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[1] R v Monkman CA445/02, 3 March 2003 at [6].

[6]      When  considering  if  the  sentence  imposed  by  the  District  Court  was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal recently observed in Ripia v R:[2]

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

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.   The route by which the judge reached that outcome  will be relevant to the analysis, but seldom in itself pivotal.

The District Court judgment

[7]      In his sentencing decision the District Court Judge:

(1)       fully set out the facts admitted by the appellant; (2)     recognised that the appellant was 18 years old;

(3)       referred to the appellant’s criminal record which included his four previous convictions for male assaults female (two in 2002 and two in

2004) and his two previous convictions for common assault (in 2008 and 2009).  The District Court Judge also noted the 26 instances in which  the  police  had  been  called  to  attend  domestic  violence

incidents involving Mr Nahi since 2001;

(4)recognised  the  appellant’s  expression  of  remorse  for  conduct  he described as “unforgivable” and noted Mr Nahi’s attendance at Drug and Alcohol counselling prior to the offending;

(5)       assessed that Mr Nahi’s case fell within band two of R v Harris[3]

[3] R v Harris [2008] NZCA 528 at [10].

bands in relation to the injuring with intent to injure charge; (6)        recorded the aggravating factors constituted:

(a)       an attack to the head; (b)           premeditation;

(c)       the victim’s loss of consciousness;  and

(d)      the vulnerability of the victim.

(7)      adopted a starting point of one year 10 months imprisonment;

(8)       increased  the starting point  by a further  six  months  to  reflect

Mr Nahi’s history of violent offending;

(9)gave Mr Nahi credit for his early guilty pleas.  This resulted in a sentence of one year nine months;

(10)did not consider home detention was viable because the appellant refused to consent to an assessment for electronic monitoring.

Appeal

[8]      In this Court Mr Nahi submits that the sentence imposed by the District Court

Judge was manifestly excessive.

[9]      The guideline judgment for violent offences where the mens rea and actus reus coincide is the Court of Appeal’s decision in R v Harris.[4]    The assessment of culpability will logically commence with an assessment of the injuries sustained by the victim.  The Court of Appeal prescribed three bands which graduate according to the seriousness of the injuries sustained by the victim, and the presence of other aggravating features:[5]

[4] R v Harris [2008] NZCA 528 at [10].

[5] At [10]-[11].

Band one:   where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate:  Taueki at [27];

Band two:   where the injuries are moderate, sentences of up to two years’

imprisonment can be justified;

Band  three:    for  serious  injury,  sentences  from  18  months  up  to  the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on  the  seriousness  of  the  conduct  and  the  criminality  involved.    Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

[10]     In this case a starting point of one year ten months’ imprisonment places the offending in the upper end of band two.  Counsel for the appellant submits that the injuries sustained by the victim in this case were not severe enough to place this offending near the top of band two, and instead a starting point of between 12-15 months would have been appropriate.

[11]     In Ross v R,[6] the Court of Appeal considered that a starting point at the top of band two would indicate the most severe injuries that could be categorised as moderate.  The victim in that case suffered more severe injuries than in the present case, with bruising and grazing to the head and eyes, and an open wound at the base of his ear.  The Court of Appeal stated that it could not be categorised as the most severe “moderate” injuries, and should not attract a two year starting point without

other aggravating features.[7]

[6] Ross v R [2010] NZCA 306.

[7] At [17].

[12]     In Luff-Pycroft v R,[8] the victim suffered bruises to the face and fractured tooth enamel after three separate incidents of domestic violence.  The attacks included two separate attempts to strangle the victim, two threats to kill her and himself while brandishing a knife, and several biting and kicking injuries to the victim’s face and body.   A starting point of two years was adopted and uplifted by four months to accommodate the other charges and the continuing nature of the violence.  An end sentence of 18 months’ imprisonment was imposed, and substituted for six months’ home detention by the Court of Appeal.

[8] Luff-Pycroft v R [2012] NZCA 107.

[13]     In Paikea v Police,[9] an assault with intent to injure charge was laid in similar circumstances as the present:  the offender, after drinking heavily, grabbed his sister and threw her to the ground, hit her head with his fists a number of times and attempted to choke her.  The victim suffered bruising to her face and neck.  White J described the conduct as upper band two and the starting point of two years’ imprisonment was upheld.

[9] Paikea v Police HC Whangarei CRI-2010-488-53, 29 October 2010.

[14]   In Teka v Police,[10] Venning J allowed an appeal against 18 months’ imprisonment for assault with intent to injure and imposed 14 months’ imprisonment instead.  The offending in Teka involved the victim being thrown to the floor and strangled.  The only injury suffered by the victim was a sore throat.  Venning J stated that sentences between nine and 12 months are often imposed for this offending, however, higher sentences are appropriate for those who suffer lasting effects. Venning J, however, conceded that Teka was a serious assault with an attack to the throat in a domestic setting and warranted a starting point of 15 months’ imprisonment.  The appellant had a considerable criminal history which warranted a six months uplift.

Analysis

[10] Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009.

[15]     Ms Law for the Crown very responsibly accepts that in this case the starting point adopted by the District Court Judge was too high.  In my assessment a starting

point of 16 months would have been more consistent with the authorities to which I have referred, particularly Teka v Police.  A starting point of 16 months would also more appropriately reflect  the principles  of sentencing  which  the District  Court Judge was aiming to achieve.  Like the District Court Judge, I would add six months to the starting point to reflect Mr Nahi’s previous convictions and then deduct five and a half months to reflect the fact that Mr Nahi pleaded guilty at the earliest opportunity.   The end result is that I would impose a sentence of 16½ months’ imprisonment.

Home detention

[16]     Prior  to  sentencing  Mr  Nahi  refused  to  consent  to  an  assessment  for electronic monitoring.   He is purported to have said that he did not want to be “leashed like a dog”.  He subsequently disputed having made that statement.  In this Court Mr Hannam, counsel for Mr Nahi has advised that Mr Nahi no longer wishes to pursue the option of serving a sentence of home detention.  In the circumstances of this case that is both a realistic and appropriate stance for him to take.

Conclusion

[17]     Mr Nahi’s appeal is allowed.

[18]     The sentence imposed by the District Court is quashed.  A sentence of 16½

months’ imprisonment is imposed.

D B Collins J

Solicitors:

Hannam & Co Lawyers, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent