Police v Vuetaki
[2016] NZHC 2515
•20 October 2016
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2016-476-000009 [2016] NZHC 2515
BETWEEN NEW ZEALAND POLICE
Appellant
AND
JONE NAYALOGA VUETAKI Respondent
Hearing: 18 October 2016 Appearances:
M A Beattie for Appellant
J B Lovely for RespondentJudgment:
20 October 2016
JUDGMENT OF GENDALL J
Introduction
[1] The New Zealand Police, the appellant here, appeal against a sentencing decision delivered in the District Court at Timaru by Judge Maze on 2 August 2016. In this decision addressing one count of male assaults female and one count of common assault, the respondent, Mr Vuetaki, was sentenced to 130 hours’ community work. The appellant appeals this decision on the basis outlined in the Notice of Appeal that “there is an error in the sentence imposed on conviction and a different sentence should be imposed”. Essentially, the appellant is suggesting here that either the sentence is manifestly inadequate, or that some significant error of principle was made by the sentencing Judge.
Background
[2] Turning to the facts which culminated in the respondent’s offending here, at about 8pm on 2 November 2015, the respondent and his wife, the victim, were at
their home. An argument developed over alleged infidelity by the respondent. The
NEW ZEALAND POLICE v VUETAKI [2016] NZHC 2515 [20 October 2016]
victim was holding their nine month old daughter at the time. The respondent reacted by forcefully pushing a wooden highchair over which struck the victim’s feet.
[3] The respondent then advanced on the victim and began yelling at her while she was still holding their child. The respondent raised his right hand and slapped the victim hard on her left cheek and ear, which caused an ongoing hearing problem for the victim for some time.
[4] He then forcefully grabbed their daughter from the victim, which caused her to fall down to the ground. The victim got up and walked away from the respondent. The responded reacted by clipping her on the back of her head with his open hand.
[5] The victim continued into the bathroom where they continued to argue, with the respondent calling her derogatory names. The victim reacted by slapping him once on his face and he responded by also slapping her left cheek. They continued to argue for a period of time and when he left the address with their child, she called the Police. However, the respondent came back soon after and the victim terminated the call.
[6] They again continued arguing for some time until the victim walked out of the house and the respondent followed. The respondent grabbed her by her left wrist and pushed her into some bushes, pinning her there by holding his arm around her. The respondent held her like that for a short period of time and only released her after she stated that she accepted his apology.
[7] When they got back home together, their child was crying and the defendant picked her up to comfort her. Again, as the victim walked past him, he clipped her on the back of her head, before putting the child to bed.
District Court Sentencing
[8] In sentencing, Judge Maze refused an application for discharge without conviction, acknowledging the fact that in this case a conviction was not out of all proportion to the gravity of the offence committed. The Judge then proceeded to
impose the sentence of 130 hours’ community service, although minimal reasoning was given beyond her broad comment that she accepted the fact that the conviction “has already cost [the respondent] dear”.
Jurisdiction
[9] Section 246 of the Criminal Procedure Act 2011 (the Act) confers a right on the prosecutor to appeal against a sentence imposed with the approval of the Solicitor General. Consent was given in this case on 29 August 2016. Pursuant to s 250 of the Act, this appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should result. If either element is not satisfied, the appeal court must dismiss the appeal.
Discussion
[10] There is no doubt in my view that in this case the appellant’s appeal against sentence is a finely balanced one. In R v Wilson, the Court of Appeal set out the relevant matters to be considered in determining whether or not a sentence was manifestly inadequate.1 The Court there said:2
Whether a sentence can be said to be manifestly inadequate turns firstly on the maximum sentence for the particular offence; then on a consideration of comparable sentences, to the extent that those are considered to be appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case.
[11] A brief survey of a range of cases involving convictions on charges of male assaults female suggests that sentences in these cases have often been to a short term of imprisonment between about five and nine months. As examples of this, first in Wawatai v Police, the offender was drunk and punched his partner in the face during an argument. A family member took him outside but he returned and attempted to land further punches. In that case in this Court Courtney J held:3
Mr McGuigan, for the Crown, accepted that the starting point taken by the Judge was outside the usual range for such offending. Although there is no guideline judgment for this type of offending, there are some comparable
1 R v Wilson [2004] 3 NZLR 606 (CA).
2 At [41].
3 Wawatai v Police [2015] NZHC 406 at [4].
cases which are of assistance, principally Grayson v NZ Police,4
R v Reihana,5 Mann v Police6 and Williams v Police.7 These cases took
starting points of between five and nine months’ imprisonment for offending that was broadly comparable though, as counsel acknowledged, it is difficult to find a case that is exactly comparable. Looking at the circumstances of this case against the comparator cases I consider that a starting point of seven months would have been appropriate.
[12] Secondly, in Poata v Police, a starting point of six months’ imprisonment was upheld on appeal on a charge of male assaults female involving punches to the victim’s abdomen.8 The offender’s significant criminal history it seems had been incorporated into the starting point, but the Court in that case still held that “an end point of six months is unimpeachable in light of the cases”.9
[13] Thirdly, in Yeo v Police, a 19 year old defendant grabbed his girlfriend around her throat and held her head in his lap while driving.10 He pulled her hair, ripped her shirt, and punched her once in the face. He had no history of violent offending. On appeal, the starting point was set at eight months’ imprisonment. An end sentence of five months was imposed and leave was granted to apply for home detention.
[14] Fourthly, in Grayson v Police11 this involved a defence appeal against sentence imposed on charges of male assaults female, careless driving and intentional damage. The defendant had been at the home of his ex-partner, an argument developed and he slapped her once in the face. He returned to the address later that night and smashed several windows. On appeal to this Court, it was held that:
The appropriate starting point would have been in the vicinity of eight months’ imprisonment with an allowance of three months for mitigating factors, taken globally.
[15] On the other hand, it is true too that there have also been cases of male assaults female where the penalty imposed was community service and not
4 Grayson v NZ Police HC Hamilton CRI-2006-419-31, 6 April 2006.
5 R v Reihana CA 143/03, 26 June 2003
6 Mann v Police [2012] NZHC 2613
7 Williams v Police [2014] NZHC 3255.
8 Poata v Police HC Rotorua CRI-2010-470-23, 3 July 2010.
9 At [23].
10 Yeo v Police HC Auckland Cri-2006-404-283, 8 September 2006.
11 Grayson v Police HC Hamilton [2006-419-31, 6 April 2006.
imprisonment. In one of these, Penrose v Police, the defendant was convicted on one charge of male assaults female and one charge of speaking threateningly in relation to offending said to be of a domestic nature.12 In that case, during an argument, the appellant took the victim by the throat and said “watch yourself, you don’t want to mess with me, I could snap your neck.” The defendant applied force to the area beneath her chin for 20 to 30 seconds. Witnesses to these events testified that the victim was “on her tippy toes” and looked terrified, with her eyes “getting bulgey” and her face red.
[16] The defendant in that case was sentenced to 150 hours’ community service. The Judge in the District Court held that these offences were at the bottom of the scale of seriousness, with no injury caused to the victim and the whole event having taken place in a short period of time. The sentence was upheld in this Court, although the court warned that all domestic violence is serious and is not to be tolerated or euphemised.
[17] And, the final case I wish to refer to is Ballantyne v Police, where the offender pushed a female neighbour in the chest then punched her in the head.13 He then punched her husband two or three times in the head. The man suffered bruising and a painful jaw for 10 days. In the High Court on appeal, Harrison J described the sentence of 220 hours’ community work imposed as “merciful” but he upheld it. His Honour noted that had the offender not been 56 years old and with previous good
character, a sentence of imprisonment would have been more appropriate.
[18] In the case before me, the maximum sentence on the charge of male assaults female is two years’ imprisonment and on the charge of common assault it is one year imprisonment.
[19] In sentencing or otherwise dealing with the appellant here, I bear in mind that the Court must take into account any particular circumstance of the offender, which
would mean that a sentence otherwise appropriate would be disproportionately
12 Penrose v Police [2013] NZHC 2757.
13 Ballantyne v Police [2012] NZHC 2014.
severe.14 The Court must also impose the least restrictive outcome appropriate in the circumstances.
[20] While violence of any kind, and particularly violence against a vulnerable partner in a family setting, must not be tolerated, sentences imposed are to reflect the totality of the offending and the culpability of the offender. In reaching her decision in the District Court Judge Maze acknowledged that this was repeat offending against the same complainant. The respondent otherwise, it seems, has a good record. In her decision Judge Maze accepted that the respondent’s offending was at the lower end and she took into account the consequences to the respondent of being liable to being deported and separated from his son as a result of the conviction. The appellant, it seems, because of the conviction has lost his job at Silver Fern Farms and has had his immigration status amended so that he is in effect an overstayer in New Zealand.
[21] With all these matters in mind, as I see the position, this case has certain similarities to the circumstances that prevailed in Penrose and, although that case did involve other charges, Grayson. The outcome in those cases was somewhat different but overall in the case before me I am satisfied that the merciful approach taken in both Ballantyne and Penrose and to an extent mirrored by Judge Maze in her sentencing exercise here was not inappropriate. I find therefore, but only by a reasonably fine margin, that it was within the Judge’s discretion to impose the
130 hours’ community work sentence for the respondent’s offending. I agree with counsel for the respondent that this was indeed a “merciful” sentence to use the words of Harrison J in Ballantyne but I am of the view that it was within reasonable sentencing parameters open to Judge Maze and was not manifestly inadequate. No error in the sentence imposed here has been made out.
[22] I simply note too in passing that, had the respondent received a short sentence of imprisonment rather than community work it seems he could not have sought home detention as he did not have a home to go to. It seems also that in any event he
is to be deported back to Fiji as a result of this conviction and must leave his child,
14 Sentencing Act 2002, s 8.
previous employment and adopted country. All this may be seen as significant deterrence and denunciation here.
Result
[23] For all the reasons outlined above, the appeal is dismissed.
...................................................
Gendall J
Solicitors:
Crown Solicitor, Timaru
RSM Law, Timaru
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