Paraone v Police

[2016] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2016-404-295 [2016] NZHC 2549

BETWEEN

POA PARAONE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	25 October 2016
Counsel:	V Heather for Appellant C Piho for Respondent
Judgment:	25 October 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

V Heather, Auckland

PARAONE v NEW ZEALAND POLICE [2016] NZHC 2549 [25 October 2016]

The appeal

[1]      Mr Paraone appeals against an effective term of two years and three months’ imprisonment.1     That sentence was passed by Judge Wharepouri, in the District Court at Manukau, on 9 September 2016.  The three offences on which Mr Paraone was sentenced were assault with intent to injure, threatening to kill and breach of a protection order.

Facts

[2]      The guilty verdicts on the basis of which sentence was passed arose out of findings made by the Judge during the course of a defended hearing in the District Court  at  Papakura  on  6  July  2016.2      The  Judge  described  the  essence  of  the

prosecution  case3   as  being  that  the  complainant  was  subjected  to  a  prolonged

domestic incident, during the course of which she was assaulted a number of times. The most serious assault was said to have been that which took place outside the dwelling house of her property.   It involved the use of a dog chain which was wrapped around her neck.  She was dragged a short distance in that manner.

[3]      Judge Wharepouri accepted the evidence of the complainant in preference to that of Mr Paraone.  Indeed, he referred to the latter’s evidence as lacking “a certain air of realism”.4

[4]      In his sentencing remarks of 9 September 2016, the Judge described the background facts in this way:5

[2]       . . . the complainant gave evidence of her ordeal.  The evidence of the complainant was accepted by the Court in its entirety.  Her evidence in the round was that on 27 February 2016 she went to a friend’s address together  with  you  to  celebrate  her  birthday.    While  at  that  address  an argument started between you and her which saw the two of you leave that address and return to your shared home.   You thought she was being unfaithful to you.   It is during the course of the car journey that the complainant says that the assault began.  It continued upon arrival at your home and involved you pushing her head down at one point onto the oven.

1      Police v Paraone [2016] NZDC 17526.

2      Police v Paraone [2016] NZDC 12610.

3 Ibid, at para [2].

4      Ibid, at paras [21] and [23].

5      Police v Paraone [2016] NZDC 17526.

It was not clear from her evidence whether she suffered any significant injury from that assault apart from soreness to the back of her head.

[3]       You then grabbed her by the singlet and began to push and pull her from the kitchen to the bedroom down a hallway.  Once in the bedroom you the pushed her onto the bed and your argument as to her sexual fidelity continued.  She denied that she was having a relationship with anyone else apart from you and persuaded you that the two of you should confront the person you suspect ted her to be sleeping with.  As you exited the house you then pushed her a further time with some force into a vehicle that was parked on the property.

[4]       Whilst  outside  you  wrapped  a  dog  chain  around  her  neck  and secured the other end of the chain to her ankle.  You then pulled her a short distance by that chain.   As a result of that assault she suffered s3everal grazes to her back.

[5]       The complainant then feigned unconsciousness.  She says that you fetched a bucket of water and poured it over her.  When you gave evidence you claimed that you did this so as to revive her.  I have doubts about that.  I have a strong suspicion that that was nothing more than a further effort on your part to degrade and humiliate her.  In any event I am prepared to regard that act as one of an attempt to revive her because it is in line with her evidence that she was feigning unconsciousness.  But that concession on my part does not detract from your prior behaviour which involved an element of cruelty.

[6]       Your offending is further aggravated y the fact that during the course of your assaults on her person, you made a number of threats to kill her and at the relevant time the victim was a beneficiary of a protection order.  Your offending is also aggravated by a number of  factors such as the use of weapons on your part, namely the dog chain, the attack to her head and the cruelty in which you treated her as I have previously referred to.  This was not a brief assault.  It was a prolonged affair.

[7]       I make it clear that the offending on your part was without any level of provocation whatsoever.  Here is nothing about the victim’s conduct on the night which could have possibly justified this sort of behaviour towards her.

Sentencing in the District Court

[5]      Judge Wharepouri took the view that the lead offence for sentencing purposes was the charge of assault with intent to injure.  Applying the guidance given by the Court of Appeal in Nuku v R,6 he took the view that a starting point for sentence on that charge of 18 months should be taken.   He applied Band 2 of Nuku,7  which

identifies a starting point of up to three years imprisonment where three or fewer of

6      Nuku v R [2012] NZCA 584, (2012) 26 CRNZ 106.

7      Iid, at para [38](b).

the aggravating factors listed in the grievous bodily harm guideline judgment in R v

Taueki8 are present.

[6]      It appears from the Judge’s findings that the use of the dog chain was seen as the use of a weapon.   The attack to the head and the cruelty with which the complainant was treated was regarded as aggravating the assault.   Although the Judge did not expressly refer to this, the Court of Appeal, in Taueki,9  made it clear that  the  fact  that  violence  occurs  in  a  domestic  setting  does  not  reduce  its seriousness.  Indeed, it can be seen as an aggravating factor because the vulnerability

of a victim is one of the aggravating factors identified in Taueki.

[7]      After identifying the starting point by reference to those circumstances, the

Judge continued:10

[13]      I take the following position.  In relation to the lead charge of assault with intent to injure the sentence starting point is 18 months’ imprisonment. I uplift that by six months to reflect the totality of your offending which includes the threats to kill and the breach of the protection order.  I apply a further  uplift  of  three  months  for  your  previous  convictions.    The  end nominal starting point then is 27 months’ imprisonment before I go on to consider any discounts available to you.

Analysis

[8]      The issue on appeal is whether the uplift of six months to reflect the totality of the offending was within range.  Mr Heather, for Mr Paraone, submitted that the Judge had, in effect, applied cumulative sentences in a situation whether sentencing on the charges of threatening to kill and breaching the protection order ought to have been imposed concurrently.  No challenge is made to the additional uplift of three months to reflect a personal aggravating factor arising out of Mr Paraone’s previous convictions.

[9]      In my view, the methodology adopted by the Judge is not something on which I need to dwell.  The powers of this Court on a first appeal against sentence

are set out in s 250 of the Criminal Procedure Act 2011.  Section 250(2) states that

8      R v Taueki [2005] 3 NZLR 372 (CA) at paras [31] and [33]..

9 Ibid, at para [33].

10     Police v Paraone [2016] NZDC 17526 at para [13].

the “Court must allow the appeal if for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed”.  For there to be error it must be established that the sentence was manifestly excessive.  It is the end sentence that is under consideration, not the methodology by which it is reached.11

[10]     In my view, the Judge was well within range in setting a starting point of 18 months imprisonment, based on the charge of assault with intent to injure. The uplift of six months was needed to reflect the seriousness inherent in the breach of a protection order and the threats to kill.   The former is a Court order designed to protect a vulnerable person from another.  The essence of the crime of threatening to

kill is making a threat which is intended to be taken seriously.12    That occurred on

three occasions.   In my view, an uplift of six months to reflect those additional factors was within range and the end sentence cannot be impugned.

Result

[11]     In the circumstances, and there being no challenge to the lack of any credit given by way of mitigating factors, I consider that the Judge imposed a sentence that is not susceptible to review on appeal.

[12]     For that reason, the appeal against sentence is dismissed.

P R Heath J

11     Tutakangahau v R [2014] 3 NZLR 482(CA) at para [36].

12     R v Meek [1981] 1 NZLR 499 (CA) at 502–503.