Pou Te Rata v Police
[2024] NZHC 821
•23 April 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000010
[2024] NZHC 821
TRIESTE POU TE RATA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 16 April 2024 Appearances:
C Taylor for the Appellant
A J Goodwin for the Respondent
Judgment:
23 April 2024
JUDGMENT OF WHATA J
Solicitors/Counsel:
C Taylor, Whangarei
Marsden Woods Inskip Smith, Whangarei
POU TE RATA v POLICE [2024] NZHC 821 [23 April 2024]
[1] Mr Pou Te Rata was sentenced to 25 months’ imprisonment for nine charges relating to two episodes of partner violence. He appeals that sentence.
Facts of offending
First incident
[2] On the 25 June 2023, Mr Pou Te Rata was at his family home. He was in an angry mood because the victim’s car would not start and he was yelling to tell her to fix the car before he smashes it. He then threatened to smash her face in and kill her. He got angrier picking up a chair and started hitting the bonnet, the boot and car doors with it. He then walked over to the victim and grabbed her by the jacket as she tried to get away from him. He punched her at the back of the head at least twice with a closed fist. He then kicked her to the left side of body causing her to hit a fence about a metre away. When the victim hit the fence, it was the only thing to stop her falling to the ground. She suffered bruising and swelling as a result.
[3] Mr Pou Te Rata breached his release conditions by associating with the victim and he was actively avoiding Police because of another incident where he threatened to kill the victim, assaulted her, and damaged her vehicle.
Second incident
[4] At about 5.30 pm on 9 July 2023, Mr Pou Te Rata was at the address in Rūākaka. Police contacted the victim via phone to check on her welfare. Mr Pou Te Rata stood over the victim listening to the conversation and with a closed fist in her face directed her to say that she was fine and not with him.
[5] Later that night Mr Pou Te Rata became angry and accused the victim of being a nark. He stood over her while she was sitting on a couch with a pair of scissors in her hand and threatened to stab her. The victim was really scared and thought he was going to kill her.
[6] The next morning Mr Pou Te Rata was still angry and when the victim told him they needed to break up, he picked up a wooden table leg and hit her on the lower left
leg hard. A short time later the victim went outside to get washing off the line. Mr Pou Te Rata accused her of calling the police. She told him that he had her phone making him angrier. He picked up the wooden table leg again and hit her hard across the back and shoulders. The defendant also picked up a black handled chef’s knife and told the victim if she tried to leave he would stab her. He stood in the doorway with the knife in his hand and told her to leave while blocking her exit.
[7] The victim managed to get away and ran onto the road. Mr Pou Te Rata followed her and threw her onto the ground in a neighbouring driveway. Getting on top of the victim using both hands holding her down he grabbed and squeezed her face and head hard. Mr Pou Te Rata then said to the victim if you leave I am going to kill myself. He let her up but followed her down the road telling her that he was going to kill himself if she left. She eventually went back to the address with him.
[8] Police arrived a short time later. He resisted arrest, barged into the police officer and ran from the address. He was later found at another address, where he then climbed through a window to try to avoid arrest. He again violently resisted police and a police dog was used to subdue him.
[9] The victim received bruising to her face, head, left leg, back and shoulders. She was in quite a lot of pain and was finding it hard to move.
District Court Sentencing
[10] Judge Rzepecky adopted a starting point for the two assault offences of 24 months in prison.1 This was uplifted by 12 months for threatening to do grievous bodily harm, resisting arrest, wilful damage and breach of release conditions. A further two months was added in relation to Corrections prosecutions. This resulted in a combined starting point for all offending of 38 months.
[11] The Judge applied a 10 per cent uplift for Mr Pou Te Rata’s previous violent offending. He then offset this with a 10 per cent discount for background factors. A further discount of five per cent was adopted for Mr Pou Te Rata’s willingness to
1 Police v Pou Te Rata DC Whangārei CRI-2023-088-001470, 1 February 2024 at [21].
participate in counselling and completed courses. No discount was provided for remorse. After a discount of 25 per cent for his guilty plea, an end sentence of 25 months in prison was imposed.
Threshold for appeal
[12] I may allow the appeal against sentence if I find the Judge materially erred, including by imposing a sentence that was manifestly excessive.
Submissions on appeal
[13]Mr Taylor, for Mr Pou Te Rata, submits:
(a)The cumulative starting point of 38 months was manifestly excessive having regard to the starting points adopted in similar cases, including Mann v Police,2 Nelson v Police,3 Thompson v Police4 and Taingahue v Police.5
(b)A starting point in the region of 18 to 20 months for the lead offences would better reflect Mr Pou Te Rata’s culpability.
(c)Mr Pou Te Rata’s appalling upbringing warranted greater recognition, in the order of 15-20 per cent.
(d)An end sentence of 25 months, with one month reduction for totality was wrong in principle.
[14] Mr Goodwin for the Police submits that the starting point sentence was not manifestly excessive and if anything, a higher sentence could be justified. The overall starting point incorporated offences over two separate dates and included aggravating features including multiple threats to kill or cause grievous bodily harm and sustained domestic violence. The present facts are more serious than the facts in Nelson v Police
2 Mann v Police [2012] NZHC 2613.
3 Nelson v Police [2019] NZHC 2114.
4 Thompson v Police [2017] NZHC 3039.
5 Taingahue v Police [2015] NZHC 1688.
where a starting point of 24 months for the violent offending with a three-month uplift for the remainder of the offending was found to be within range. The uplift of sentence by 10 per cent or 3.8 months for the Mr Pou Te Rata was generous, noting by way of comparison the uplift of six months in Jackson v Police for breach of a protection order. Turning to discounts, the 25 per cent discount for guilty plea was also generous as was the net 15 per cent discount for background factors. Mr Goodwin also submits, citing Carroll v Police,6 that Mr Pou Te Rata’s offending was not purely instinctive, having just committed similar offending for which he received a 15 per cent discount. Mr Goodwin submits this must cast some doubt on his agency and therefore entitlement to a substantial discount for background factors.
Assessment
Starting point
[15] I do not consider that the starting point was excessive. This was serious family violence offending with multiple aggravating factors. A starting point for the lead offending, comprising an assault with intent to injure and assault with a weapon, of 24 months was within range.7 A combined uplift of 14 months for threats to kill, wilful damage, threat to cause grievous bodily and resisting arrest, together with the breach of release conditions, was also within range. These aggravating factors reveal the full extent of the violent intimidation that the victim was subjected too. It is more serious either in nature or scale than the offending in Mann v Police,8 Nelson v Police,9 Thompson v Police10 and Taingahue v Police:11
(a)Mann involved two incidents of violence, but without the multiple aggravating ancillary offending present in this case. Notably, the starting point in that case of 25 months for the two assaults, upheld on appeal, is comparable to the starting point for the lead offending in this case.
6 Carroll v Police [2023] NZHC 3293.
7 Above n 3.
8 Above n 2.
9 Above n 3.
10 Above n 4.
11 Above n 5.
(b)Nelson involved only a single incident of albeit more serious physical violence (a kick to and stomping on the victim’s head). The starting point of 24 months for this single incident was held on appeal to be easily within range.
(c)Thompson involved a single strike to the head with a chair. The 24- month starting point for this single incident was upheld on appeal.
(d)Taingahue involved a single incident of violence, involving multiple blows to the body. A starting point of 16 months on an assault charge, together with six months for breach of protection order, reduced by two months for totality was upheld on appeal.
[16] Stepping back and having regard to the principle of totality,12 I accept that a cumulative starting point of 38 months is stern, but I am satisfied that it was in range having regard to the seriousness of this offending in nature, gravity and scale. In this regard, the offending is comparable to the offending in Carroll. In that case Carroll was charged with assault with a weapon, assault on a person in a family relationship, nine offences for breach of protection order (two involving violence), one offence of resisting arrest and one offence of breaching release conditions. A starting point of 24 months on the assault and three breaches of protection order was adopted. This was uplifted by 18 months for the six subsequent breaches of protection order. The effective starting point of 42 months was upheld on appeal.13
[17] While aspects of Carroll might be said to be more serious, the endorsement of the 42-month starting point reflects the Court’s concerns about family violence. I cannot improve in this regard on the following observations of Palmer J in Carroll which in my view apply with equal force in this case:14
(a)The offending, involving violence and intimidation, occurred in the complainant’s own home, where, if anywhere, she should have been able to expect to feel safe.
12 Sentencing Act 2002, s 85. See R v Dodd [2013] NZCA 270 at [32]–[33].
13 Above n 6 at [17], the Court noted that the resulting global starting point of four years was within range.
14 Above n 6 at [12].
...
(c)The multiple incidents of family harm, in the context of a violent and abusive relationship, creates a cumulative effect that often manifests in a complainant living in a constant state of fear or intimidation. That is clearly so here. It involves psychological injuries.
(d)The manifestations of an abuser’s exercise of power and control over an intimate partner victim, such as her isolation and deprivation from assistance, exacerbate her fear. Mr Carroll’s theft of the complainant’s family harm alarm is a good example.
(footnotes omitted)
Discount for childhood deprivation
[18] As Mr Taylor accurately submitted, Mr Pou Te Rata’s upbringing was appalling. His childhood and adolescence were marked by physical abuse and an attempted suicide at eight, the loss of his father at age 11,15 foster care, sexual abuse by State carers, drug abuse from a young age including methamphetamine addiction, institutionalisation – from State care to prison, and gravitation towards gangs. All of this reflects an underlying systemic and structural deprivation and disadvantage evident in some Māori communities, another relevant factor to be weighed.16 It is also evident that he has started to take steps to address the deep-rooted harm caused by this deprivation; harm that has plainly affected his decision making and ability to connect and engage in a pro-social way. For example, while in custody on remand, he attended a Te Hononga Hou Taria te Wa course and has signalled a desire to actively engage in rehabilitation courses directed at redressing the factors that drive his violent offending.
[19] The central issue on appeal is whether the combined discount of 15 per cent afforded by the Judge to reflect this childhood deprivation and his willingness to engage in rehabilitation services is adequate. I am in no doubt that this upbringing, and the harm caused by it, is a major underlying cause of his offending.17 Deprived
15 Mr Pou Te Rata was removed from the care of his biological mother at around four months old and taken in by his grandparents. He referred to his grandfather as his father. He received beatings by his grandmother with fists, belts and jug cords. He did not report abuse at the hands of his grandfather, but Child, Youth and Family Services (CYFS) records report that his grandfather stabbed him in the neck in 2003 when he was about 10.
16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [122]–[126].
17 For discussion about linkage between childhood deprivation and criminality see Berkland above n 16 at [116]-[119]. Dr Jarrod Gilbert noted in the section 27 report, research has found that one in five, sometimes as high as one in three, children who had been in state care went on to serve a custodial sentence. For Māori children the rate of custodial sentences was found to be even higher
of whanaungatanga and institutionalised from a young age, Mr Pou Te Rata has not been afforded the basic manaakitanga and nurturing afforded, as of right, to most children for a significant period of his childhood.18 As the PAC report observes, this was “obviously damaging for him”. It follows that his relative culpability is markedly less than those who have not had to suffer such a depauperate upbringing.19 Furthermore, the potential for rehabilitation addressing the harm caused by and the symptoms of childhood deprivation is just as important. This is especially significant given Mr Pou Te Rata’s willingness to address the deep-rooted harm caused by this deprivation.
[20] In Berkland, the Supreme Court afforded a 10 per cent discount for background and a further 10 per cent discount for rehabilitation to Mr Berkland even though the offending was very serious – he was “the right-hand man” to the leader of a very large methamphetamine operation. While it is difficult to compare life experiences, Mr Pou Te Rata’s deprived upbringing was comparable to Mr Berklands’, whose upbringing was marked by derivation, violence and drug abuse. It appears that Mr Berkland had made greater strides towards rehabilitation than Mr Pou Te Rata, but it is reasonable to infer from the available material that Mr Pou Te Rata is heading, finally, in the right direction.
[21] There are however strong countervailing considerations. Mr Pou Te Rata is a repeat family violence offender, with at least 17 prior convictions for family violence or related offending. As the Judge noted, this is “deep-seated” continuing behaviour. He was on release conditions for similar family violence offending when this violence occurred. It would have been available to the Judge to moderate the level of discount for this factor, provided that this best served the purposes and principles of sentencing.
when compared to non-Māori. They were found four to seven times more likely to receive a custodial sentence than non-Māori who experienced state care. Overall, children who had been in state care were found to be five to nine times more likely to be incarcerated over children who had not been in state care.
18 In tikanga, uprooting a child like this is a major hara or violation, immortalised in the well-known whakatauki: Hutia te rito o te harakeke, kei whea te kōmako e ko? Ki mai ki ahau, he aha te mea nui o te ao? Māku e kī atu: he tanagata, he tangata, he tangata. If you remove the heart of the flax bush, from where will the Bellbird sing? If you ask me, what is the most important thing in the world? I will say to you: it is people, it is people, it is people. This whakatauki speaks to the fundamental importance of keeping children with their whanau.
19 Berkland above n 16 at [117].
[22] In this regard, I record my concern at any suggestion of a formulaic approach to this exercise. Mr Goodwin placed considerable emphasis on the approach to the discount for background factors based on reduced agency in Carroll. In that case,
Palmer J noted that:20
[29] If some level of discount was justified for Mr Carroll’s reduced agency because of his background, it should have been at a rate that was lesser than his previous discount, to reflect the heightened need to denounce his conduct, and to protect the community, and to recognise the lower likelihood of rehabilitation. A discount in the range of zero to eight per cent may have been appropriate.
[23] But as Mr Goodwin acknowledged, Palmer J was not attempting here to provide a form of discounting tariff based on reduced agency. It was no more than an observation based on the facts of that case. Had there been any suggestion otherwise, as I indicated to Counsel, a full review of the Court of Appeal decisions relating to discounts for repeat offenders would have been necessary. Rather the key consideration is whether, having regard to the specific facts of the offender, and the nature of the offending, a discount is warranted and set at such a level that best serves all the sentencing purposes and principles. As the Supreme Court said in Berkland:21
In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.
[24] Returning to the present case, the Judge, appropriately, uplifted Mr Pou Te Rata’s sentence by 10 per cent to reflect his prior repeat offending. To my mind this factor could potentially be double counted by also reducing the discount for Mr Pou Te Rata’s background and rehabilitation. They speak to the same underlying cause, dynamic and effect. Whether the point has been reached where both a significant uplift and reduced discount is justified is a matter of careful judgement on clear supporting facts. Notably, no such uplift was handed down in Carroll.
20 Above n 6.
21 Above n 16, at [94], n 105.
[25] On that basis a discount of 20 per cent for childhood deprivation and rehabilitative potential was available to the Judge. But does this mean the end sentence was manifestly excessive? I am mindful of the guidance afforded by the Supreme Court in Berkland:22
[112] Finally, it is appropriate to acknowledge that background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community-based sentence.
[26] The effect of the 20 per cent combined discount is meaningful in this case. It takes the end sentence from 25 months to 23 months and therefore brings into frame the potential for a sentence of home detention. But as Mr Goodwin says, the discount for guilty plea was generous given that the guilty plea was not made for several months after arrest – a discount of only 20 per cent could easily have been applied. The countervailing factors mentioned above also militate against an unduly generous approach to Mr Pou Te Rata. He is still a poor candidate for home detention. The position may have been different had the background information showed a long term commitment to change.
[27] In the result, therefore, I cannot say that the Judge erred in his assessment or that the sentence is manifestly excessive.
[28]The appeal is dismissed.
Whata J
22 Above n 16.
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