Paikea v Police HC Whangarei CRI 2010-488-53
[2010] NZHC 2181
•29 October 2010
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2010-488-53
DANIEL ERAMIHA PAIKEA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 28 October 2010
Appearances: R Bowden for the Appellant
M Smith and D Stevens for the Respondent
Judgment: 29 October 2010 at 3.30 pm
JUDGMENT OF WHITE J
This judgement was delivered by me on 29 October 2010 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 146, Whangarei 0140
Counsel: R Bowden, PO Box 1862, Whangarei 0140
PAIKEA V POLICE HC WHA CRI 2010-488-53 29 October 2010
[1] This is an appeal by Mr Paikea against a sentence of one year four months imprisonment, with standard and special conditions, imposed by District Court Judge T H Everitt in the District Court at Whangarei on 30 September 2010 on one charge of assault with intent to injure under s 193 of the Crimes Act 1961 for which the maximum sentence is three years imprisonment.
[2] Mr Paikea pleaded guilty to the charge.
[3] The background facts are set out in the District Court Judge’s sentencing notes:
[2] ... The facts make disturbing reading. They were arguing as brother and sister. He became enraged, lost his temper, grabbed his sister and threw her to the ground, hitting her a number of times about the head with his fists, and placing his hands around her throat he started to choke her. She struggled, she broke away and went to her neighbours. She suffered bruising to the side of her face, around her neck and suffered a few cuts to her head. An ambulance attended but she did not require any further particular treatment.
[4] The District Court Judge’s reasons for imposing a sentence of one year four months imprisonment were:
a) In terms of R v Taueki[1] the factors relating to the gravity and culpability of the offence were that the victim was a vulnerable and defenceless woman, she was Mr Paikea’s sister, the attack was to her head using fists and involved choking. Gratuitous violence was involved and these factors put the gravity and culpability at mid-range to high level.
[1] R v Taueki [2005] 3 NZLR 372 (CA).
b)Mr Paikea had an assault conviction in March 2010 arising from an incident in December 2009 which indicated that he resorted to violence.
c) Attacks on the throat are extremely dangerous.
d)In terms of R v Harris[2] the offending fell within band 2 because the injuries were moderate so that a sentence of up to two years imprisonment was justified.
[2] R v Harris [2008] NZCA 528.
e) As the guilty plea was not entered until 27 July 2010 Mr Paikea was entitled to a 20 per cent discount rounded to approximately five months in terms of R v Hessell.[3] This led to a sentence of one year and seven months’ imprisonment before consideration of the aggravating and mitigating circumstances personal to the offender.
[3] R v Hessell [2009] NZCA 450.
f) Taking into account a whanau meeting which enabled the complainant to move on and put the incident behind her, a further deduction of three months was appropriate.
g) A sentence of home detention imposed on 28 September 2010 for an excess alcohol offence was cancelled and replaced with the sentence of one year four months’ imprisonment.
h)Home detention was considered but declined because the deterrent aspect was insufficient for gross domestic violence of this nature.
[5] Mr Paikea’s grounds of appeal are:
a) The circumstances of his offending did not warrant imprisonment.
b)The District Court Judge in applying the sentencing bands in R v Harris did not take into account the fact that the offence charged here was a lesser offence.
c) On the facts, even if R v Harris was applicable, this would be offending in band 1 where a sentence less than imprisonment was an option.
d)Even on the end sentence arrived at by the District Court Judge, home detention should have been considered as an appropriate sentence, given that such a sentence (three months) was imposed on
28 September 2010.
[6] In support of the appeal Mr Bowden submitted:
a) The incident was not as serious as suggested in the District Court
Judge’s sentencing notes.
b)The District Court Judge should not have departed from the indication given by District Court Judge de Ridder on 27 July 2010 that on the vacation of Mr Paikea’s not guilty plea the sentence would be home detention. M Bowden acknowledged, however, that Judge de Ridder did not appear to have been aware of the excess alcohol offence when the indication was given.
c) The District Court Judge should not have departed from the home detention recommendation of the Probation Service which was aware of both offences.
d)The District Court Judge had given insufficient weight to the later victim impact statement.
e) R v Harris was not applicable to a charge under s 193 of the Crimes Act 1961 and justified a sentence of less than imprisonment because here there was little injury and few aggravating features and culpability might have been reflected in a less serious charge namely a charge under s 194 (male assaults female) or s 196 (common assault).
f) The District Court Judge was affected in his sentencing decision by the erroneous belief that Mr Paikea had misled the Court by failing to disclose the second charge when he was sentenced on the first charge.
[7] For the Police, Mr Smith submitted:
a) The Court considers an appeal against sentence under s 121(3) of the Summary Proceedings Act 1957. The Court may confirm the sentence or quash it and substitute another sentence but only if satisfied that the sentence imposed by the District Court was “clearly excessive”.
b)Under s 15A(1) of the Sentencing Act 2002 a sentence of home detention may be imposed only if the Court would otherwise sentence the offender to a short-term sentence of imprisonment.
c) It was appropriate for the District Court Judge in the present case to view the excess alcohol offence and the charge of assault with intent to injure together, in totality, to cancel the home detention sentence for the excess alcohol offence and to impose the sentence of one year four months’ imprisonment for both offences: s 85 of the Sentencing Act 2002. The District Court Judge was unaware of the second offence when he imposed the sentence of home detention for the excess alcohol offence.
d)There is also no suggestion that District Court Judge de Ridder was aware of the excess alcohol offence when he gave the indication on
27 July 2010 that the sentence for the charge of assault with intent to injure would also be home detention. Mr Paikea has not applied to set aside his guilty plea.
e) As noted in R v Harris at [8], there is a possibility of overcharging, but there is also a possibility of undercharging. Here the summary of facts, which supports the District Court Judge’s decision, shows that the complainant was in fact injured and that Mr Paikea might well have faced a charge under s 189(2) of the Crimes Act 1961.
f) In this case the sentence of imprisonment was appropriate taking into account the vulnerability of the victim and the injuries inflicted. The domestic nature of the incident and the victim’s plea should not reduce the seriousness of the conduct: Taueki at [33].
g) As required, the District Court Judge did consider the option of home detention (at [8] of his decision), but rejected it.
h)It has therefore not been shown that the sentence of one year four months’ imprisonment was “clearly excessive”. On the contrary, it correctly reflects the totality of the offending. A short term of imprisonment was available.
[8] In reply Mr Bowden submitted:
a) In considering the question of the totality of the offending, it was important to note that a period of three months’ home detention had been imposed by the District Court Judge for the excess alcohol offence which meant that there was nine months’ leeway available for the charge of assault with intent to injure.
b)Band 1 in Harris was appropriate because here there was little injury and no medical attention required.
c) He had no instructions from his client to seek to vacate his guilty plea or to seek a disputed facts hearing in respect of the summary of facts. His client was simply “very intoxicated”.
d)A sentence of home detention was appropriate in terms of s 15A of the Sentencing Act to 2002 because it had been recommended by two experienced probation officers.
[9] I do not accept Mr Bowden’s submission that the incident was not as serious as suggested in the District Court Judge’s sentencing notes. The summary of facts to which Mr Paikea pleaded guilty is accurately set out in the District Court Judge’s
notes at [2]. The summary of facts states that Mr Paikea grabbed his sister and threw her to the ground and that he hit her a number of times about the head with his fists. It also states that he placed his hands around her throat and started to choke her. The summary records that the complainant suffered bruising to the side of her face and around her neck and also suffered a few cuts about her head. An ambulance attended the scene, but she did not require medical attention.
[10] Nor do I accept the submission by Mr Bowden that the District Court Judge should not have departed from the indication given by District Court Judge de Ridder. As it appears that Judge de Ridder was not aware of the excess alcohol offence when the indication was given, little weight can be given to the indication in the context of considering the appropriate sentence for the totality of Mr Paikea’s offending.
[11] When considering the totality of the offending, the District Court Judge was entitled to cancel the sentence of home detention for the excess alcohol offence and impose the sentence of one year four months’ imprisonment for both offences.
[12] I do not accept the submission of Mr Bowden that the District Court Judge gave insufficient weight to the later victim impact statement. On the contrary, he referred to the whanau meeting and the complainant’s later statement in his sentencing notes at [7]. In any event, as Mr Smith pointed out, the Court of Appeal has held in Taueki at [33] that factors of this nature do not reduce the seriousness of the conduct.
[13] Mr Bowden is correct that whereas the maximum sentence in the present case is three years’ imprisonment, the maximum sentence in R v Harris was five years’ imprisonment. Both cases, however, involved attacks with intent to injure, Harris involving a series of attacks and a charge under s 189(2) of the Crimes Act 1961.
[14] In Harris the Court of Appeal was asked to distinguish the bands in Taueki because that case involved an offence carrying a maximum sentence of 14 years’ imprisonment. The Court in its judgment delivered by Ronald Young J said:
[7] The sentencing bands identified in Taueki were made by reference to the maximum available sentence of 14 years’ imprisonment for offending under s 188(1) of the Crimes Act 1961. Account must be made of the fact that in this case the maximum penalty was five years’ imprisonment. Counsel for the appellant submits that, after appropriate adjustment, the following sentencing bands result: band one: one – two years; band two: two years (or slightly less) – three and a half years; and band three: three – five years.
[8] This Court has previously warned against shrinking the Taueki bands in a mathematical exercise to reflect relative maximum penalties for different charges: R v Lambert CA456/05 4 April 2006 at [22]; R v Morrison [2007] NZCA 78 at [23]; R v D (CA253/2008) [2008] NZCA 267 at [43]. There is also the problem that some of the aggravating features identified in Taueki are likely to be relevant only to grievous bodily harm offending. As well, the wide range of offences which can be alleged in relation to moderately serious crimes of violence and the unexacting test for what constitutes an injury leaves a good deal of scope for prosecutorial discretion and the possibility of over-charging. For these reasons, simply shrinking the bands and applying slavishly the aggravating and mitigating features identified in Taueki may create difficulties for sentencing judges.
[9] It should also be kept in mind that in Taueki this Court saw the guidelines applying in this way:
[9] We propose to deal with the guidelines for sentences for serious violent offending at the outset, before dealing with the present appeals. We focus our attention on offences under s 188(1) of the Crimes Act (we will refer to these as “GHB offences” or “GHB offending”), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.
[10] An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:
•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).
[11] 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.
[15] Just as it was not appropriate simply to shrink the Taueki bands in a mathematical exercise to reflect relative maximum penalties for different charges so it is not appropriate to do so in respect of the bands in Harris. Bearing in mind that the “intent to injure” is the same for both charges under ss 189(2) and 193 and that the substantive difference between the two charges is that a charge under s 189(2) requires proof of actual bodily harm while for a charge under s 193 the intended
injury need not occur,[4] it seems to me that the bands in Harris are also generally
applicable to a charge under s 193, with a downwards adjustment to the upper end of band three to reflect the maximum sentence of three years’ imprisonment under that section.
[4] Adams on Criminal Law at CA:193-01.
[16] On this basis I am satisfied that the factors relating to the gravity and culpability of Mr Paikea’s offence, as identified by the District Court Judge, put the offence at the top end of band two so that a starting point of up to two years’ imprisonment could not be said to be outside the appropriate range. In the circumstances of Mr Paikea’s case it was not a disproportionately severe starting point.
[17] This then leaves for consideration Mr Bowden’s submission that the District Court Judge should not have departed from the Probation Service recommendation of home detention. In my view the District Court Judge was required to consider the totality of the offending and in doing so entitled to consider that home detention was not appropriate for a case of domestic violence of this nature.
[18] For these reasons I am therefore not satisfied that the sentence imposed by the District Court Judge was “clearly excessive”. The Judge’s decision could not be said to be wrong.
Result
[19] The appeal against sentence is dismissed.
D J White J
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