Pekepo v Police

[2017] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000159 [2017] NZHC 1108

BETWEEN

KAHURANGI PEKEPO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 May 2017
Appearances:	J C Harder for Appellant RNT Thompson for Respondent
Judgment:	26 May 2017

ORAL JUDGMENT OF GILBERT J

Counsel/Solicitors:

Justin Harder, Barrister, Auckland

Meredith Connell, Auckland

PEKEPO v NEW ZEALAND POLICE [2017] NZHC 1108 [26 May 2017]

Introduction

[1]      Mr Pekepo has pleaded guilty to two charges of assault with intent to injure and one charge of male assaults female.   These offences were all committed on

4 February 2017.  The victim is Mr Pekepo’s wife and the offending was a serious and prolonged attack.   It involved three instances of strangulation with the victim being unable to breathe, multiple punches to her head and face using a closed fist and kicks to her thigh and the back of her head while she lay on the floor in the foetal position.  The victim sustained a number of injuries including bumps on the back of her head, swelling on her forehead, two black eyes, a small cut under her right eye, lacerations to the inside of her mouth and a chipped front tooth.

[2]      Mr Pekepo is due to be sentenced on 7 June 2017.

[3]      On 12 May 2017, Mr Pekepo sought a variation to the terms of his bail so that he could resume contact with the victim with her consent.   Judge Sinclair declined that application for the reasons summarised in the following paragraphs of her judgment:

[5]       … While I commend the efforts you have made to address your anger and relationship issues (I hear you have been attending counselling and an anger management programme) I am not satisfied that relaxing the non association clause further at this stage is appropriate.  Sentencing is set down for early June – so reasonably soon – and I consider the non- association  clause  in  its  present  form should  remain  until  sentencing  to address any further risk of re-offending.

[6]       Notwithstanding  the  complainant’s  comments  expressed  in  her victim impact statement, the complainant’s views are not determinative.  My responsibility is wider than that.  I have a responsibility to ensure her welfare and safety.

[7]       I have received emails which suggest that you have already been seeing the complainant outside the terms of your conditions of bail, and in fact that there is some suggestion you have been living with each other on the instigation of the complainant. The Court is not required to acquiesce, or condone in fact, what has been taking place in breach of present bail conditions.

[8]       The offending before the Court in my view is serious involving serious domestic violence including strangulation, which is a red flag to the Court for any further potential serious violence.

[9]       In my view a starting point of imprisonment is inevitable, with a possible end point other than a term of imprisonment.  But while I hear that

you are engaging with counselling, that counselling should continue until sentencing, when the sentencing Judge will be able to apply the appropriate sentence. So for that reason I am not prepared to grant the variation at this stage.

Grounds of appeal

[4]      Mr Pekepo appeals on the grounds that the Judge failed to give proper weight to  the  views  of  the  victim,  placed  too  much  weight  on  the  seriousness  of  the offending and made errors of fact about bail compliance.

Decision

[5]      The victim wrote a letter to the presiding Judge dated 3 May 2017 stating that she and the defendant have attended five sessions of relationship counselling and would be attending a two and a half day counselling workshop the following week. This workshop is designed to strengthen marriages, resolve conflict and provide practical assistance to enable couples to move forward in their relationship in a positive way.   The victim stated that the defendant has been attending a Living Without Violence programme and she has noticed the positive impact this has had on him.  She states that she no longer has any safety concerns and wants the restrictions on  contact  in  the bail conditions  removed altogether,  but  on  the basis that  any resumed contact is to be with her consent.

[6]      While it is commendable that the defendant has accepted responsibility for his offending and taken positive steps to address his anger management issues, the programme of counselling has not yet been completed.  Given the seriousness of the violence, which was potentially life-threatening, it was wholly appropriate for the Judge to take a cautious approach and allow the counselling that is designed to mitigate the risk of this offending recurring to take its course before permitting full contact to resume.  Despite the understandable and encouraging views of the victim, I agree with the Judge that the present bail conditions should be maintained until sentencing.  These conditions allow the defendant and the victim to have contact in a safe environment, in the course of their ongoing counselling.

[7]      Sentencing  is  to  occur  in  less  than  two  weeks,  on  7 June  2017.    The sentencing  Judge  will  have  much  more  complete  information  to  enable  an appropriate and just sentencing outcome to be determined.

Result

[8]      The Judge having made no appealable error, the appeal is dismissed.

M A Gilbert J