Pihema v The the Queen

[2022] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2022-483-9

[2022] NZHC 1730

BETWEEN

JAMIE WILLIAM PIHEMA

Appellant

AND

THE QUEEN

Respondent

Hearing:	19 July 2022
Counsel:	J H Waugh for Appellant J Liu for Crown
Judgment:	19 July 2022

JUDGMENT OF MALLON J

Introduction

[1]                  The appellant pleaded guilty to and was convicted of sexual violation by unlawful sexual connection with a female over 16,1 assault of a person in a family relationship (representative),2 wilful damage3 and destruction of a travel document.4 He was sentenced in the District Court to 27 months and two weeks’ imprisonment.5

[2]                  He appeals this sentence. He contends his sentence was manifestly excessive because the Judge allowed an inadequate discount for the personal circumstances set out in a s 27 cultural report. He says a discount of 20 per cent rather than 10 per cent

1      Crimes Act 1961, ss 128(1)(b) and 128B (maximum period of imprisonment of 20 years; category 3 offence).

2      Section 194A (maximum period of imprisonment of two years; category 3 offence).

3      Summary Offences Act 1961, s 11(1)(a) (maximum period of imprisonment of three months or

$2,000 fine; category 2 offence).

4      Passport Act 1992, s 31(2) (maximum period of imprisonment of two years; category 2 offence).

5      R v Pihema [2022] NZDC 8550. He was ordered to pay reparation of $391 to the victim in relation to the wilful damage charge. A protection order was also made.

PIHEMA v R [2022] NZHC 1730 [19 July 2022]

ought to have been allowed and this would have brought the end sentence into a range where a rehabilitative sentence could have been imposed.

[3]                  The respondent submits the sentence was within the range available to the sentencing Judge. It says a 10 per cent discount was appropriate. The respondent also says that if a higher discount ought to have been imposed, this was balanced out by the generous guilty plea and remorse discounts that were given and, standing back, the end sentence was within range.

Summary of facts

[4]                  The representative assault charge related to incidents between March and April 2021 when the appellant was in a relationship with the victim. On one occasion the appellant backhanded on the victim’s face causing a cut to her eyebrow, a sore nose and damage to her sunglasses. Later the same day, he punched her in the right eye and chin causing a black eye and bruising on her chin. On another occasion, he ran after her, put her in a headlock and bit her hand when she tried to get away.

[5]                  The charges of wilful damage and destroying a travel document concerned the same period. The appellant smashed two cell phones belonging to the victim. He also cut out pages of her passport so that it was unusable and messaged her to tell her he had done so.

[6]                  The lead charge of sexual violation concerned an incident in April 2021. The appellant and the victim consumed drugs and alcohol. They were parked in a car by the river when the appellant became aggressive. He instructed her to give him oral sex. He then inserted his fingers into her vagina. She did not consent to this digital penetration but did not communicate this due to the appellant’s aggressive behaviour. He fell asleep and she began to lose consciousness. He later drove them to McDonald’s and when he stopped she got out of the vehicle and ran to bystanders. The appellant was arrested soon after.

Personal circumstances

[7]                  The appellant was 36 years old at the time of the offending. He has an extensive conviction history. Predominantly these are for driving, drugs and dishonesty offending. More relevantly, in November 2019 he was subject to a sentence of intensive supervision for one year and three months for offending that included strangulation (family violence), injuring with intent (family violence), and driving with excess breath alcohol. He also has a 2014 conviction for family assaults female (family violence) and for domestic assault in 2007 and 2008. He has breached court release conditions and community work several times. At the time of at least some of the offending he was on bail for drug and driving related offending and remained subject to the intensive supervision sentence.

[8]                  The pre-sentence report writer referred to the appellant’s conviction history and his age and considered that he posed a high risk of harm and a high risk of reoffending. The writer found it difficult to assess the appellant’s remorse as he alternated between deep self-reflection to making concerning remarks about the victim. The main remark of this nature was to refer to the victim as “a crack whore

… like all women in Whanganui”. He thought the victim consented to the sexual activity and explained the physical violence as arising to stop the victim from self- harming.

[9]                  The s 27 report described a difficult childhood. His parents drank a lot and his father was associated with the Mongrel Mob and had spent a lot of time in jail. There was violence in the household – his mother or someone would get hidings at parties at the house and his father regularly inflicted violence on him. He was also subjected to sexual abuse from a young age at the hands of others. He described the family home as worse than the movie “Once were Warriors”. He often went to school without lunch, did not learn to read and write, was diagnosed with ADHD and is dyslexic. He became a “street kid” because that was better than being at home. He drank alcohol, took drugs and stole money when he was hungry. Later the drugs he consumed included methamphetamine and heroin.

[10]              The appellant told the s 27 report writer that he wanted to go to a rehabilitation facility and an anger management course. He was not sure if the victim would have the opportunity to participate in a restorative meeting with the victim but would welcome the chance to apologise to her. He described his behaviour as disgusting and inexcusable. He described himself as being angry all his life and as having taken out his anger at his father on others.

[11]              The appellant also wrote a letter to the sentencing judge apologising to the victim and to the court and promising to use his sentence to better his behaviour.

District Court

[12]              The Judge adopted a two year starting point for the sexual violation (regarding it as falling at the bottom end of band 1 of R v AM).6 He uplifted that by nine months for the assault charge and by three months for the wilful damage and travel document charges. This meant an adjusted starting point of three years’ imprisonment.

[13]              The Judge considered than an uplift of six months’ imprisonment (or 16 per cent) was appropriate because of the appellant’s conviction history and the fact that the offending occurred while the appellant was on bail for other offending and while he was still subject to intensive supervision.

[14]              The Judge allowed a 25 per cent discount for the appellant’s guilty plea. The guilty plea had been entered three days before the start of the jury trial on the charges. For that reason the Crown had proposed a 15 per cent discount. However, in allowing the 25 per cent discount, the Judge took into account that the pleas were entered immediately once a number of charges were withdrawn and the summary of facts amended and the guilty pleas took a “huge weight” off the victim. Additionally, as defence counsel submitted, the jury trial was originally scheduled for next year and the resolution discussions took place promptly once the trial date was brought forward.

6      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[15]              The Judge allowed a five per cent discount for the appellant’s remorse. He had earlier referred to the s 27 report as recording “what the Court reads as a sincere and genuine expression of remorse and regret” for the offending.7

[16]              The Judge allowed a 10 per cent discount for the “social and cultural factors” in the s 27 report. He described this as:8

… reveal[ing] a significant level in [the appellant’s] upbringing and general background of deprivation, abuse of various kinds at the hands of various family members and a life of hardship which I have no doubt are linked to the offending.

[17]              This meant a total 40 per cent discount for mitigating factors. Less the 16 per cent uplift for personal aggravating factors, this meant an end sentence of two years, three months and two weeks’ imprisonment.

Assessment

[18]              The appellant submits that the intergenerational systemic and personal deprivation he has suffered provides a direct and significant causal nexus to his offending. Additionally, he says the cultural report showed insight and remorse and this supported a rehabilitative sentence as appropriate. He submits a 20 per cent discount should have been given for the matters in the report and that he then could have been given a rehabilitative sentence to address the trauma he has suffered and which has led to his repeated offending.

[19]              The respondent refers to cases where discounts of between 9.5 to 15 per cent have been allowed.9 It makes the point that the level of discount is fact dependent. It submits that that Judge did not err by allowing a 10 per cent discount given the seriousness of the offending, the appellant’s history and his continued high risk of reoffending. The respondent further submits that even if 10 per cent was insufficient for the s 27 matters, it was offset by the generous discounts for the appellant’s guilty

7      R v Pihema [2022] NZDC 8550 at [20].

8 At [21].

9      Waikato-Tuhega v R [2021] NZCA 503 (15 per cent discount); Aramoana v R [2021] NZCA 558 (10 per cent discount); King v R [2020] NZCA 446 (9.5 per cent discount); and Whittaker v R [2020] NZCA 241 (9.5 per cent discount).

plea and remorse. The respondent submits that a guilty plea discount of 10 to 20 per cent would have been more appropriate and a discount for remorse was not warranted.

[20]              Possibly some judges would have allowed a lesser discount for the guilty plea. However the 25 per cent discount was available for the reasons the Judge gave. The five per cent discount for remorse might not have been available if the only information before the Judge about this had been the Corrections pre-sentence report. The Judge allowed the five per cent discount because of the remorse indicated in the s 27 report. When that five per cent is combined with the 10 per cent for the personal deprivation the appellant has suffered, the discount for all the matters in the cultural report is within range. A more generous discount for s 27 factors with a view to imposing a rehabilitative sentence might have been available had the appellant not already had the benefit of rehabilitative sentences. As noted above, this offending took place when the appellant was subject to intensive supervision. He has also previously received community sentences as well as short-term imprisonment sentences. His offending has continued despite these sentences. I am satisfied that the end sentence was within range for these reasons.

Result

[21]The appeal against sentence is dismissed.

Mallon J