Nathan v Police
[2018] NZHC 1740
•13 July 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHECRI-2018-419-000016 [2018] NZHC 1740
BETWEEN PERE NATHAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 July 2018 Appearances:
J Tarrant for the Appellant M Dillon for the Respondent
Judgment:
13 July 2018
ORAL JUDGMENT OF POWELL J
[Appeal against Sentence]
Solicitors:
Grantham Law, Hamilton Almao Douch, Hamilton
Counsel:
J Tarrant, Hamilton
NATHAN v NEW ZEALAND POLICE [2018] NZHC 1740 [13 July 2018]
[1] Pere Nathan pleaded guilty to a number of serious domestic violence charges. The first group of charges to which he pleaded took place in December 2016. After having accepted a sentence indication and pleading guilty to those charges he then committed further offences in January 2018 prior to having been sentenced on the first set of charges. In total Mr Nathan was sentenced to a total term of two years and nine months’ imprisonment.1 He appeals against the sentence imposed, and in particular the sentence imposed in respect of the December 2016 offences on the basis that the sentencing Judge, his Honour Judge Connell, gave an insufficient credit for Mr Nathan’s guilty plea to those offences.
Background
[2] The December 2016 offending commenced when on Wednesday 7 December, Mr Nathan’s partner the complainant arrived at her home. Although she and Mr Nathan had been in a relationship for about six years and have five children together, they did not habitually live at the same address. As the complainant arrived, she saw Mr Nathan angrily awaiting her in the driveway.
[3] Mr Nathan forced the complainant into the back of the car and drove her to her mother’s address. There he tried to drag her out and punched her in the face approximately 20 times. She tried to block these punches without success, and lost consciousness for an unknown amount of time.
[4] Mr Nathan then drove the complainant around various locations before stopping and punching her a further ten or so times in the face. Again the complainant tried to shield her face, but Mr Nathan pulled her hand away to get a clean punch to her face. After punching her, he attempted to drag her out of the car to force her to walk home. For this offending he was charged with injuring with intent to injure2 and assault with intent to injure.3
1 Police v Nathan [2018] NZDC 4717.
2 Crimes Act 1961, s 189(2). The maximum penalty is five years’ imprisonment.
3 Section 193. The maximum penalty is three years’ imprisonment.
[5] As a result of this attack, the complainant suffered a black eye and bruising and, as noted, lost consciousness during the first assault.
[6] Four days later, on Sunday 11 December, the complainant left her phone powered off and went to sleep. Mr Nathan turned it on and read her messages. What he saw must have enraged him as he woke the complainant up, accused her of cheating and threw her onto the floor. Fearful, the complainant ran to her bedroom and tried to close the door.
[7] Mr Nathan forced his way in, splitting the door frame in the process. He kicked the complainant in the head and stomach, causing her to slump onto the floor where he stomped on her head.
[8] The complainant managed to escape from the bedroom but slipped on the wet kitchen floor. Mr Nathan kicked her while she was down, four times in total, with three blows to the side of the head. The complainant pretended to be knocked out so that Mr Nathan would stop kicking her. He did, and she escaped out the back door to the neighbour’s house. From there she called the Police. Mr Nathan was subsequently charged with assault with intent to injure and wilful damage.4
[9] The complainant suffered grazes to both legs, a swollen knee and lost a toe nail in the second assault.
[10] Having been charged with these offences Mr Nathan was given a sentencing indication by his Honour Judge Fraser in April 2017, which involved a starting point of between three years and three years and three months’ imprisonment and a full guilty plea discount. His Honour also indicated a further discount would be available if Mr Nathan continued to work with the Hamilton Abuse Intervention Project (“HAIP”) and he added that this could result in a term of home detention rather than imprisonment.
4 Summary Offences Act 1981, s 11(1)(a). The maximum penalty is three months’ imprisonment or a $2,000 fine.
[11] Mr Nathan accepted Judge Fraser’s sentence indication, pleaded guilty and subsequently completed the HAIP course.
[12] While still apparently completing the HAIP course and awaiting sentencing on the December 2016 offending, on 30 January 2018 the mother and sister of Mr Nathan’s partner arrived at his address having been called there by Mr Nathan’s partner.
[13] Apparently Mr Nathan walked up to his partner’s mother and punched her on the right-hand side of her face with a closed fist. He then kicked the mirror of the passenger side of the car, which broke. For this offending Mr Nathan was charged with male assaults female5 and wilful damage.
The Sentencing Decision
[14] In sentencing Mr Nathan Judge Connell acknowledged that he had completed his HAIP course, which took some 25 weeks, and commended him for his commitment. But he added:6
[T]he whole purpose and idea of that course was to try and assist you in controlling your temper, controlling your desire to hit people and hopefully that course ended with you, to some degree, being rehabilitated.
The sadness of it today, because I do think it is sad, is you are now back before the Court with two extra charges … That looks like you are just back doing the same old, same old …
[15] His Honour said that but for the second set of offending he might have considered a sentence of home detention. His Honour stated that given the further offending, he was not bound by Judge Fraser’s sentencing indication (which was conditional on completing the HAIP course without further incident). Judge Connell went on to fix a starting point for two years for the injuring with intent to injure charge, with an uplift of one year for both the assault with intent to injure charges from 7 and 11 December; while noting that each offence would itself have warranted a significant starting point of imprisonment he had “in effect[made] the uplifts concurrent”.7
5 Crimes Act 1961, s 194(b). The maximum penalty is two years’ imprisonment.
6 Police v Nathan, above n 1, at [1]-[2].
7 At [13].
[16] His Honour then acknowledged Mr Nathan’s lack of recent convictions, and the completion of the HAIP course. He also noted Mr Nathan was participating in a parenting course, and had various letters of support. He turned to consider discounts, and advised:8
I do consider here should be a marked acknowledgment of what you did with [HAIP]. I am going to reduce that three years’ imprisonment to two years and nine months because of the three month credit I give you for completing the course and then there will be a discount of four months on that. That takes you to a total of two years and five months.
[17] The exact rationale for the four month discount is not clear, but I agree with both Ms Tarrant and Mr Dillon that it is best understood as a guilty plea discount.
[18] Judge Connell then turned to consider the second set of offending, which he considered should be dealt with separately and which is not challenged in the appeal before me. Having determined a starting point and uplifting for Mr Nathan’s prior convictions, allowing a 20 per cent discount for the guilty plea and deducting a further month for totality he reached an end sentence of four months on the January 2018 offending to be served cumulatively with the sentence for the December 2016 offences.
[19] As a result his Honour imposed a sentence of two years and nine months’ imprisonment in total for both sets of offences
Approach to appeal
[20] This is a first appeal against sentence. Section 250(2) of the Criminal Procedure Act 2011 (“CPA”) provides that the appeal must be allowed if the court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.9
[21] It is well established that whether a sentence imposed is manifestly excessive,10 will depend on the sentence imposed, rather than the process by which it was
8 At [14].
9 Criminal Procedure Act 2011, s 250(2).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
reached.11 Where the sentence is within a range that can properly be justified by accepted sentencing principles, the appellate court will not disturb the sentence imposed.12
Ground of appeal
[22] As noted there is only one ground of appeal in this case: that Judge Connell gave insufficient credit for Mr Nathan’s guilty plea and therefore arrived at a manifestly excessive end sentence. No issue has otherwise been taken with the starting point, the discount given for HAIP participation, or, as noted, the sentence imposed on the second set of offending.
Was the guilty plea discount insufficient?
[23] As I have noted, it appears that the four-month discount provided by Judge Connell on the December 2016 offending was intended as a guilty plea discount. This equates to approximately a 12 per cent discount; or about half the maximum available.
[24] There is no question that Judge Connell was not bound by the full guilty plea discount indicated by Judge Fraser.13 However, as Mr Dillon concedes, a full 25 per cent discount was available. Mr Nathan was charged in December 2016 and convictions were entered in April 2017. At that time, as is evident from Judge Fraser’s sentence indication, a full guilty plea discount was still available, and Ms Tarrant submits it was an important factor in Mr Nathan accepting that indication. Importantly no reason was given by Judge Connell as to why a full sentence would have been departed from.
[25] I therefore agree with Ms Tarrant that his Honour erred by not applying a 25 per cent discount for Mr Nathan’s guilty plea.
11 At [36].
12 Larkin v Ministry of Social Development [1015] NZHC 680.
13 Criminal Procedure Act 2011, s 116(3).
Did the error result in a manifestly excessive sentence?
[26] All things being equal, a 25 per cent (or eight month) discount would have resulted in an end sentence of 25 months or two years and one month on that first set of offending, compared to the 29 months or two years and five months imposed by Judge Connell for the December 2016 offences.
[27] Mr Dillon accepts that the four month difference is significant but submits a different sentence should not be imposed given what he described was perhaps a lenient approach taken by Judge Connell in fixing a starting point for the December 2016 offences. In his written submissions, Mr Dillon submitted that an uplift as high as 18 months for the two assault with intent to injure charges was within range and given the error, a reconsideration of the approach taken to sentencing was required.
[28] There is no doubt that stern starting points for this sort of offending are common. I note the decision in Toko v R, where the Court of Appeal endorsed a starting point of three years and four months for one charge of injuring with intent to injure, four charges of male assaults female, and one charge of threatening to kill.14 Seven months of this starting point was an uplift for the threat to kill however. The Court agreed with the Judge this was serious enough to justify a stern uplift, but in any event commented the uplift was simply the method the Judge used to achieve a sentence reflecting the totality of the offending.
[29] Although I therefore accept Mr Dillon’s submission that a higher starting point was notionally available to Judge Connell in sentencing Mr Nathan, in my view this submission overlooks two matters of particular relevance in this case.
[30] First, it ignores the fact that it was not just Judge Connell who concluded that a two year starting point on the lead offending was appropriate and a one to one year three month was appropriate for the other two assault charges. Instead, as noted, Judge Fraser also reached very similar conclusions on starting point to Judge Connell in respect of the December 2016 offending, albeit for slightly different reasons. The fact
14 Toko v R [2017] NZCA 460.
that two very experienced District Court Judges agreed on the approach is to my mind significant.
[31] Secondly, as Ms Tarrant submitted, the starting point in relation to the December 2016 offending was in fact within the range of what Mr Nathan had pleaded guilty to and while, as Judge Connell noted, Mr Nathan could not expect the end sentence to reflect the sentence indication following his January 2018 offending there was no reason to depart from the starting point given in the sentence indication as this should not and was not affected by the January 2018 offending.
[32] In those circumstances, as I discussed with Mr Dillon at the hearing, I consider it would be artificial and inappropriate to depart significantly from the starting point imposed by Judge Connell for the same reasons as it is appropriate to give Mr Nathan full credit for his guilty plea.
[33] I therefore conclude that in respect of the December 2016 offending the sentence imposed was manifestly excessive given it did not reflect the full discount for a guilty plea that Mr Nathan could reasonably have expected to have been granted.
Decision
[34]The appeal against sentence is therefore allowed.
[35] A sentence of two years and five months’ imprisonment imposed in the District Court in respect of the December 2016 offending on the charges of injuring with intent to injure, the two charges of assault with intent to injure, and the charge of wilful damage should be substituted for a sentence of two years and one month’s imprisonment.
[36] The sentence of four months’ imprisonment imposed in the District Court on the January 2018 charges of male assaults female and wilful damage is unchanged and is to be served cumulatively with the sentence for the December 2016 offending, making an end sentence of two years and five months imprisonment.
Powell J