Ngahuru v Police

[2019] NZHC 869

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-18

[2019] NZHC 869

BETWEEN

ADAM NGAHURU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 April 2019

Appearances:

C Lee for Appellant

K A Courteney for Respondent

Judgment:

17 April 2019

JUDGMENT OF COOKE J

[1]    The appellant has been convicted of two counts of male assaults female, four counts of wilful damage, one count of assaulting police, one count of possession of cannabis and one of failing to answer District Court bail. He was sentenced to 25 months’ imprisonment by Judge O’Driscoll on 16 January 2019.1 Mr Ngahuru appeals that sentence on the grounds that both the starting points and end sentence are manifestly excessive.

Facts

[2]    The offences relate to a number of events. The cannabis offending occurred on 4 April 2018, when the appellant was standing in the middle of a road and yelling at traffic. He was arrested for disorderly behaviour and cannabis was found in his possession.

1      Police v Ngahru [2019] NZDC 558.

NGAHURU v NEW ZEALAND POLICE [2019] NZHC 869 [17 April 2019]

[3]    On 22 April 2018 an incident occurred which resulted in one offence of male assaults female, two of intentional damage and one of assaulting police. The appellant arrived at his mother’s address and asked her for money. When she asked him to leave, he slapped her on the face. Fearing for her safety, she phoned the police. The appellant then kicked her television, damaging the screen. When the police arrived he resisted them, refused to get into a police car and kicked out at the police. Once in the car he spat blood and saliva at a police officer, which landed on his arm. He spat blood and saliva onto another officer’s shoulder and side of his face.

[4]    Most of the remaining offences relate to offending that occurred throughout May 2018 against the appellant’s partner. There had been eight reported family harm incidents between the two of them since December 2017. At the start of May the appellant and victim were upstairs at the victim’s home address, and an argument took place. The victim ran to the bathroom and locked the door. The appellant started screaming at her to unlock the door, banging and kicking it with full force until he smashed it open. The bathroom door hinge and lock were smashed. The victim opened the bedroom window to yell out to the neighbours for help.

[5]    The same week there was another argument and the victim ran to the toilet, locking the door behind her. The appellant banged on the door until he smashed through it and pulled the victim into the doorway. He told the victim it was her fault he had broken the door and she should not have shut it when he wanted to talk to her. The toilet door was ripped off the frame and the lock was damaged.

[6]    On 28 May the appellant and victim were talking on the bed at the victim’s address. The appellant became agitated so the victim moved to the edge of the bed with her legs hanging over the side. The appellant got up on the bed and as the victim went to place her feet on the ground to stand up, he pushed her hard in the lower back. This made the victim lose her balance, throwing her into the door frame. She went straight down and her face hit against the bottom of the door frame on the left side of her temple. She was unable to put her arms out to stop the fall and her right wrist was caught under her chest, causing that wrist to break. The victim had to take five and a half weeks off work.

[7]The final offence was a breach of bail on 26 June 2018.

District Court decision

[8]    Judge O’Driscoll began by considering the aggravating factors of the offending. He noted that the violent offending occurred while the appellant was on bail for previous offending. The appellant was also under a sentence of supervision at the time. There were two victims. He also considered the appellant’s previous convictions for violence: male assaults female in March 2018, male assaults female in 2014, assault in 2013, and threatening to kill, wounding and assault on a child in 2009.

[9]    The Judge took into account the appellant’s guilty plea as a mitigating factor. He noted the appellant’s anger problems, alcohol and drug use and hearing difficulties, but found these did not justify the appellant’s actions in using force against others.

[10]   The Judge considered the pertinent principles of sentencing to be accountability and deterrence and highlighted that he was required to impose the least restrictive sentence. He considered the appropriate starting point was a sentence of imprisonment and dealt with each set of offending individually.

[11]   In respect of the April offending, involving male assaults female, assaulting police and intentional damage, the Judge decided to take a starting point of 12 months. He accepted that the slap on the face was not at the higher end of the scale but considered totality important. He then reduced the starting point to nine months for that charge, presumably for the guilty plea, though this was not stated. Further concurrent sentences were given of four months for assaulting police and two months for intentional damage, making an effective sentence of nine months for that set of offending.

[12]   For the May offending, involving male assaults female and wilful damage charges, the Judge took a 12 month starting point on a totality basis. He uplifted this by three months because it occurred while the appellant was on bail, and a further three months to take into account previous offending. That 18 month sentence was then reduced by four months for the appellant’s guilty plea. Concurrent sentences of two months were given for the wilful damage charges. This set of offending therefore

resulted in an effective sentence of 14 months. The Judge considered this should be cumulative on the nine months, because it involved different victims, different offending and different occasions.

[13]   The Judge imposed a further one month for the cannabis offending and one month for the breach of bail, cumulatively. He stated this did not breach the totality principle taking into account the different sets of charges, the violent offending while on bail and subject to sentence, and the appellant’s list of previous convictions. The end sentence imposed was therefore 25 months’ imprisonment.

Principles on appeal

[14]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus is on the sentence ultimately imposed rather than the process by which it is reached.5

Appellant’s submissions

[15]   Ms Lee, for the appellant, submits that the District Court Judge erred in adopting too high a starting point for each of the male assaults female charges. On the first, against the appellant’s mother, Ms Lee submits that the appellant is apologetic and admits he reacted poorly. She contends that the victim did not suffer any lasting or visible injuries from the slap, and therefore the offending should be at the lowest end of the spectrum. Ms Lee notes that the Judge justified this starting point because

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

5      Tutakangahau v R, above n 3, at [36]

there were also assaults on police, but submits that these occurred because the appellant felt the police were unjustified in their arrest actions and used excessive force to get him in the patrol car. She submits that a starting point of six to nine months would have been appropriate.

[16]   Ms Lee also takes issue with the starting point of 12 months adopted for the second male assaults female charge, taking into account the circumstances of the offending and the mitigating factors as stated in the victim’s affidavit. The victim deposes it was not a full force shove, and she only fell in the way she did and suffered such a serious injury because of an unfortunate combination of factors. Once the appellant realised the extent of the injury, he was immediately concerned and took the victim to hospital, where he made frank admissions to staff about what had happened. Ms Lee submits the appellant’s culpability is greatly lowered when considering his intent, the steps taken to assist the victim and the unforeseeable extent of the injury. She submits that a starting point of nine months would have been appropriate.

[17]   In regard to the cannabis charge, Ms Lee submits it involved a small amount (2.36 g) and is the appellant’s first conviction for drug offending. She contends a conviction and discharge should have been imposed for this charge.

[18]   Finally, Ms Lee submits that with regard to the totality principle, 25 months’ imprisonment is out of proportion to the gravity of the offending and the appellant’s culpability. She submits that if the appellant is successful on any grounds of appeal,  a difference of even a month or so would have a significant effect and would therefore not be “tinkering”.

[19]   If this appeal results in the imposition of a short-term sentence, the appellant does not seek leave to apply for home detention due to lack of supportive accommodation.

Respondent’s submissions

[20]   Ms Courteney, for the respondent, submits that the starting points adopted by the Judge were global starting points taking into account multiple offences, and were not adopted solely on the male assaults female charges. Given the other offences

involved, including assaulting police in the April offending and breaking down two doors in the May offending, she submits that the starting points adopted were within range.

[21]   Ms Courteney further submits that it was appropriate for the Judge to impose cumulative sentences for the two separate incidents of offending against different victims. She contends that cumulative sentences for the cannabis charge and failing to appear charge were also appropriate as the offending was different in kind and unconnected. She notes that the Judge did consider the totality principle and deemed it to be satisfied.

Analysis

[22]   As indicated, the focus on appeal is the ultimate end sentence rather than the particular process by which it is reached.6 The ultimate question is whether the ultimate term of imprisonment of 25 months is manifestly excessive for this offending to which the appellant has pleaded guilty.

[23]   In my view there can be no criticism of the District Court to impose two sets of cumulative sentences in the way that he did. The charges he grouped together were logical, and recognised the need to account for the difference in the type of offending. Although they both involved domestic violence against family members or partners, and were within a month of each other, they were nevertheless distinct occasions of offending.

[24]   I see greater force in the challenge to the starting point for each set of offending, and the criticism of the overall level of the sentence. Ms Lee’s submissions drew attention to decisions that are broadly comparable to the present offending. In particular:

(a)In R v Reihana the appellant had punched the complainant once very hard in the eye splitting her eyebrow, and temporarily affecting her eye sight.7 A starting point of 10 months’ imprisonment was adopted by the

6      Tutakangahau v R, above n 3.

7      R v Reihana, CA143/03, 3 July 2013.

District Court, with the aggravating and mitigating circumstances then cancelling each other out. The Court of Appeal said:

[43] There is no tariff for this offence. The circumstances of its commission and of offenders can vary greatly. Nonetheless we have reviewed a number of decisions of this Court in relation to the offence of assault on a female including R v Rennie CA281/91, decision 9 September 1991; R v Morris CA89/94, 25 May 1994; R v Baldwin CA518/95, 4 December 1995 and R v Nixon CA87/01, 19 June 2001 in which sentences of three months imprisonment, twelve months supervision, two months imprisonment and twelve months imprisonment (with leave to apply for home detention) were either upheld or substituted on appeal. The case of Nixon concerned a domestic assault which culminated in the complainant being kicked and injured as a result. The appellant had previous convictions. We are satisfied that the present sentence is beyond the range of penalties generally imposed for this offence.

The Court held that the sentence was manifestly excessive, and halved it to a to a term of five months’ imprisonment with leave to apply for home detention.

(b)In Wallace v R the appellant had assaulted his partner by punching her numerous times with both fists about her upper and lower legs with considerable violence.8 The next day in a further incident he pushed her over on three occasions. In the following month he then punched her about the right had side of her head on a further occasion. The Court of Appeal concluded that the starting point of 15 months was within the available range.

(c)In Hadfield v Police the appellant grabbed his partner around the throat.9 He then chased after her, picked her up from behind and threw her to the ground. Two months later they had a further argument when he spat at her, slapped her across the right cheek and grabbed her by the hand spraining her thumb. The High Court agreed the starting point of three months’ imprisonment for the first incident, and a starting point of six months’ imprisonment for the second incident were entirely appropriate and in line with the authorities. There was other offending

8      Wallace v R [2012] NZCA 546.

9      Hadfield v Police [2012] NZHC 2363.

justifying a further uplift of three months, with deductions of three months for the guilty plea leading to an end sentence of nine months’ imprisonment. The appeal was allowed in relation to other matters not presently relevant.

[25]   I consider the two sets of offences against that background. Here a starting point of 12 months’ imprisonment was adopted for each set of offending.

[26]   In my view the adoption of the 12 month point for the second set of offences in May 2018 was within range. This set of offending involved three occasions, with significant damage and threat of violence on the first two occasions, and the last occasion involving an assault in which broke the victim’s wrist, as well as her hitting her head. The Judge was entitled to adopt a 12 month starting point for this escalating domestic violence involving the same victim. I otherwise agree with the Judge’s approach to the sentence for this offending ultimately leading to a sentence of 14 months.

[27]   I do not think the same can be said of the first set of offending on 22 April 2018. Whilst the appellant slapped his mother at this stage, this is not the same kind of serious escalating domestic violence. I recognise that it was accompanied by his damaging her television, and that he also effectively resisted arrest committing further damage and an assault when the police arrived. But an overall starting point of 12 months’ imprisonment seems to me to be excessive. It also seems wrong to treat the starting point for the first set of offending as the same as the second, as the second is plainly more serious. It seems to me that a starting point of four months’ imprisonment for the assault, increased to six months for the wilful damage and assaulting police offences would be more appropriate. For that offending there should be then a discount for the guilty plea. An ultimate end sentence on this offending of four months’ imprisonment is more appropriate.

[28]   The District Court Judge also increased the ultimate sentence by one month for the possession of cannabis offending, and a further one month for the breach of bail offending. In effect this results in the sentence being imposed for four separate sets of offending notwithstanding that it was a single spree of offences. Whilst such sentences

might normally be appropriate for these two further offences, given the totality principle it seems to me that an overall sentence of 20 months is still excessive notwithstanding the reduction already made. It seems to me that an overall end sentence of 18 months’ imprisonment is appropriate. Accordingly I conclude that the additional two months so imposed for this offending should also be served concurrently.

[29]Leave to apply for home detention has not been sought.

[30]   Accordingly, the appeal is allowed and a sentence of 18 months’ imprisonment will be imposed.

Cooke J

Solicitors:

Public Defence Service, Christchurch Crown Solicitor, Christchurch