Puna v Police
[2022] NZHC 2123
•25 August 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2022-412-000016
[2022] NZHC 2123
BETWEEN RION ANARU PUNA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 August 2022 Appearances:
N M Graham for the Appellant M Brosnan for the Respondent
Judgment:
25 August 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 25 August 2022 at 10.15 am
Registrar/Deputy Registrar Date:
PUNA v NEW ZEALAND POLICE [2022] NZHC 2123 [25 August 2022]
Introduction
[1] Mr Rion Puna appeals a sentence of 11 months’ home detention and an order for reparation in the sum of $1,000 imposed in the District Court on 7 April 2022.1 This sentence was imposed for charges of injuring with intent to injure2 and unlawfully taking a motor vehicle.3
[2]Mr Puna appeals this sentence on the grounds that:
(a)there should have been a separate discount applied for his offer of reparation;
(b)the end sentence was manifestly excessive; and
(c)it should have more appropriately been a sentence of community detention and supervision.
Facts
[3] On 15 October 2021, Mr Puna and his co-defendant, Mr White, were at a tavern in Alexandra. The victim was serving alcohol at their table.
[4] During the night, Mr Puna and his associates insulted the victim. Out of concern for the victim, the bar manager stopped him from serving Mr Puna and his associates.
[5] Later that evening, the victim was driving the tavern’s courtesy coach. At approximately 11.45 pm the bar was closed and the defendants and other patrons from the tavern boarded the coach. The victim was unfamiliar with the area, so followed directions from some of the passengers.
[6] When all of the passengers aside from Mr Puna and his associates were dropped off, Mr Puna moved to the left front passenger’s seat. Someone started
1 Police v Puna [2022] NZDC 6175.
2 Crimes Act 1961, s 189(2). Maximum penalty of five years’ imprisonment.
3 Section 226(1). Maximum penalty of seven years’ imprisonment.
smoking inside the van. The victim asked that person not to smoke. A passenger then insulted the victim.
[7] The victim stopped the van. The victim exited the van, opened the sliding door and asked Mr Puna and his associates to get out of the van. They verbally abused the victim again.
[8] The victim returned to the driver’s seat and put the van into gear. Mr Puna got into the left front passenger seat and grabbed the victim’s hand. He asked where they were going. The victim said he was taking them back to the tavern. Mr Puna grabbed the victim’s left arm and pulled him towards him, insisting that the victim drive to their original destination instead. The victim refused and said he was feeling unsafe.
[9] Mr Puna then used his right arm to put the victim into a headlock and started choking him to the point where the victim could not breathe. Mr Puna squeezed his arm tighter around the victim’s neck and dragged the victim towards him, out of the left front passengers’ door and onto the ground. Once the victim was on the ground, Mr Puna put both hands around the victim’s throat and squeezed. The victim struggled to breathe. Mr Puna then punched him four or five times on the left side of his head.
[10] Two of Mr Puna’s associates exited the van and one kicked the victim on the right side of his ribs twice. Mr Puna continued choking the victim, who thought he was going to be rendered unconscious as a result. When the assault ended Mr Puna and his associates drove away in the van, leaving the victim alone.
[11] The victim suffered bruising on the left side of his face and left hip, a sore throat, pain in his ribs and a ruptured left ear drum. As a result, the victim has permanently lost hearing in his left ear.
[12] Mr Puna originally denied all offending, however later pleaded guilty to the charges.
District Court decision
[13] After setting out the facts of the offending and the injuries sustained by the victim, the Judge focused on the content of the presentence report. This recorded that Mr Puna was ashamed of his actions and was remorseful. Mr Puna presented with good insight towards his offending, understood violence is not a means for resolution and was highly motivated to rectify his wrongs. The presentence report also noted that Mr Puna does not have a criminal history and this behaviour appears to have been out of character for him.
[14] Mr Puna’s risk of reoffending and harm to others was assessed as low by the report writer, who ultimately recommended a sentence of community detention and supervision.
[15] The Judge accepted Mr Puna had reflected on his actions and acknowledged his line of employment was one in which drinking is part of the culture.
[16] The Judge identified Nuku v R and R v Taueki as the guideline judgments in relation to the injuring with intent to injure charge.4
[17] The Judge referred to the prosecution submission that there were six Taueki aggravating factors which would justify a starting point of 36 months’ imprisonment for the lead charge of injuring with intent. An uplift of 12 months in relation to unlawfully taking a motor vehicle was also submitted by the prosecution. Allowing a full discount for Mr Puna’s guilty plea, this resulted in an end sentence of 34 months’ imprisonment.
[18] Conversely, defence counsel submitted there were only three or four Taueki aggravating factors and a starting point of roughly two and a half years was appropriate for the charge of injuring with intent, with a six-month uplift for the unlawful taking of the vehicle. Defence counsel submitted Mr Puna should receive a 25 per cent discount for his guilty plea, 10 per cent for his previous character and rehabilitative prospect, and a further discrete discount for his remorse and offer of reparation.
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).
[19] The Judge found there were three to four aggravating factors, grouping some of the more minor factors together. These aggravating factors were the use of relatively serious violence (including strangulation); an attack to the head; the injuries sustained by the victim; and the fact Mr Puna was part of a group that had insulted the victim throughout the evening, therefore creating a degree of vulnerability in the victim.
[20] The Judge did not accept this offending constituted a hate crime, as he considered its genesis lay in the victim’s refusal to drive the men home rather than an objection to the victim’s ethnicity. Similarly, the Judge did not accept the offending was for the purpose of facilitating a crime, as taking the motor vehicle was an unintended consequence.
[21] With reference to Nuku, the Judge found this offending straddled bands two and three, with an appropriate starting point of 28 months’ imprisonment for the charge of injuring with intent. This was uplifted by six months for the unlawfully taking a motor vehicle charge, leading to 34 months’ imprisonment as a global starting point.
[22] Mr Puna received a full discount for his guilty plea and a further 10 per cent for his remorse, favourable criminal history and the fact this offending was out of character, totalling a 35 per cent discount. This resulted in an end sentence of 24 months’ imprisonment.
[23] In considering whether to impose an electronically monitored sentence, the Judge noted he needed to balance the purposes and principles of the Sentencing Act 2002, especially the need for accountability, deterrence, denunciation and rehabilitation. The Judge emphasised to Mr Puna the seriousness of his offending, but also recognised that prison would not facilitate rehabilitation. Mr Puna’s lack of criminal history, the uncharacteristic nature of this offending and his willingness to undertake whatever is required by way of sentence, were factors the Judge considered in determining an electronically monitored sentence was appropriate.
[24] The Judge explicitly rejected the presentence report’s recommendation of community detention and supervision as it “simply does not appropriately respond to
this offending”.5 He imposed a sentence of 11 months’ home detention and ordered
$1,000 by way of reparation.
Principles on appeal
[25] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7 A Court will not interfere where the sentence is within range and accords with accepted sentencing principles.8
Submissions
Appellant’s submissions
[26] No issue was taken with the starting point adopted by the Judge, instead Ms Graham emphasised that Mr Puna, at age 30, had no prior convictions and had pleaded guilty at the first available opportunity. She also provided multiple character references from Mr Puna’s family, employers, and co-workers to demonstrate Mr Puna’s “impeccable previous character”. Ms Graham submitted the fact this was Mr Puna’s first appearance in court and his previous good character should, by themselves, attract a discrete discount of 10 per cent.
[27] Ms Graham submitted Mr Puna was remorseful, having wished to engage in restorative justice and offering $1,000 by way of emotional harm reparation to the victim to be paid immediately. Ms Graham submitted the Judge erred by not recognising Mr Puna’s offer of reparation as a mitigating feature. She said the Judge did not refer to this offer being made during the sentencing decision. Ms Graham submitted this demonstrates that the offer of reparation was not factored in by the
5 At [30].
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
sentencing Judge, and a separate and distinct discount should have been applied by the Judge.
[28] Ms Graham also submitted the Judge erred by not considering the recommended combination of sentence, being community detention and supervision, as an appropriate response to the offending. She accepted that whether commutation of a sentence is appropriate is an exercise of judgment by the sentencing court considering the statutory principles and purposes of sentencing.9 However, Ms Graham submitted that other than a brief statement that the recommendation does not appropriately respond to the offending, there was no express consideration of any other principles and purposes of sentencing by the Judge. Ms Graham submitted relevant factors to this consideration would have been that this was Mr Puna’s first time in court, he has stable and solid family and employment, and he demonstrates insight into the causes of the offending. For these reasons, Ms Graham submitted a combined sentence of community detention and supervision was the least restrictive outcome.
Respondent’s submissions
[29]Ms Brosnan conceded Mr Puna should be treated as a first-time offender.
[30] Although no issue had been raised with the starting point on appeal, Ms Brosnan submitted the starting point reached by the Judge was sound, if not lenient. She set out the sentencing bands in Nuku and submitted the injuring with intent to injure charge could have attracted a starting point in the vicinity of two and a half to three years, as opposed to the 28 months’ imprisonment the Judge reached. This was based on the submission that the aggravating factors of an attack to the head and multiple assailants were of significant weight, and more weight could have been placed on the victim’s vulnerability given the nature of the surprise attack.10
[31] As to the discounts applied by the Judge, Ms Brosnan submitted that a failure to separately quantify a personal mitigating factor does not automatically result in an
9 Citing Palmer v R [2016] NZCA 541 at [18]–[19].
10 Citing Graham v R [2011] NZCA 131 at [14] as authority to support the proposition that a victim who is subject to a surprise attack is a vulnerable victim.
error.11 Ms Brosnan submitted the Judge did not err by allowing a 10 per cent discount for Mr Puna’s previous good character and remorse. She acknowledged Mr Puna appeared remorseful during his interview with the presentence report writer but submitted there is a clear need for genuine remorse to be evidenced rather than asserted.12 Ms Brosnan submitted remorse is closely intertwined with an offer for reparation, and as such there was no requirement for the Judge to allow a separate and distinct credit for Mr Puna’s offer, especially without any further evidence of remorse such as an apology letter.
[32] However, Ms Brosnan submitted that if the Court was minded to award Mr Puna a discrete discount for his remorse then no more than 5 per cent credit ought to be afforded to him. If this discount were allowed, Ms Brosnan submitted the end sentence would still be in range.13
[33] Ms Brosnan submitted it was appropriate for the Judge to impose a sentence of home detention despite the recommendation in the presentence report.
[34] Ms Brosnan accepted the Judge did not expressly describe all of the purposes and principles of sentencing in the Sentencing Act but submitted that this cannot be expected of District Court Judges, especially during a busy list court. Ms Brosnan submitted the Judge was alive to the relevant considerations, namely Mr Puna’s personal circumstances and the purposes and principles of sentencing. She noted the Judge placed significant weight on Mr Puna’s capacity for rehabilitation, but also highlighted deterrence and denunciation as sentencing principles.
[35] Ms Brosnan submitted this offending was serious, involving multiple attackers, an attack to the head and a vulnerable victim who was subject to a surprise attack from an unfamiliar assailant. In these circumstances, Ms Brosnan submitted it was open to the Judge to impose a sentence of imprisonment. However, Ms Brosnan noted the Judge considered the seriousness of the offending could be tempered by Mr Puna’s greater capacity for rehabilitation. Accordingly, the Judge found a sentence of home
11 Citing Fugle v R [2022] NZCA 124 at [9].
12 Hessell v R [2010] NZSC 135.
13 Citing Bull v Police [2019] NZHC 1720 at [21].
detention to be the least restrictive outcome that was appropriate in the circumstances. Ms Brosnan echoed the Judge’s comment that a sentence of community detention and supervision would not reflect the seriousness and gravity of the offending.
Analysis
Starting point
[36] The case of Nuku provided guidance in setting the starting point for an offence of injuring with intent to injure.14 With reference to the aggravating factors established in Taueki, the Court of Appeal established the following bands for this type of offending:15
(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[37] The aggravating factors in Taueki that were raised by counsel here were the serious injuries, attacks to the head, vulnerability of the victim, facilitation of a crime, the commission of a hate crime and multiple attackers.16 In terms of which factors are present here to a significant degree, I accept the Judge’s reasoning in concluding Mr Puna’s offending was not a hate crime nor an act carried out to facilitate a crime.
[38] Both in terms of the bands in Nuku and with reference to comparative cases, it is clear the starting point adopted by the Judge in relation to the injuring with intent
14 Nuku v R, above n 4.
15 At [38].
16 R v Taueki, above n 4.
charge was within range, and it may have been permissible for the Judge to adopt a higher starting point here.17
[39] I note the six-month uplift applied by the Judge for the charge of unlawfully taking a motor vehicle was not challenged. I consider it was appropriate.18
Discounts
[40] Mr Puna was appropriately awarded a full 25 per cent discount for his early guilty plea.
[41] The limited contention here is whether a 10 per cent discount should have been awarded solely for Mr Puna’s previous good character and clean record, with a further discrete discount provided for Mr Puna’s offer of reparation and remorse.
[42] Although there may have been leeway for a further discount relating to Mr Puna’s previous good character and remorse given the strength of his character references, I consider this would only be in the range of an additional five per cent and thus any increase in this discount would amount to tinkering.
The appropriate sentence
[43] Determining what sentence to impose involves an exercise of judgment while considering the principles and purposes of the Sentencing Act 2002.
[44] The Judge was clearly alive to all of the relevant factors in this case, including Mr Puna’s personal circumstances and the need for accountability, deterrence, denunciation and rehabilitation. I accept he did not set out all of the purposes and principles of sentencing individually, but this cannot be required of a judge in a busy list court. The Judge did make explicit reference to the general purposes and principles of sentencing, then selected the ones that were relevant here.19
17 See Scanlan v Police [2021] NZHC 2071; White v R [2021] NZHC 2079; Dean v Police [2014] NZHC 1542; Solomon v R [2019] NZHC 2916; and Burton v Police [2017] NZHC 664.
18 Before the District Court, counsel had referenced Allport v Police [2019] NZHC 1306; and Epere v Police [2019] NZHC 336.
19 Police v Puna, above n 1, at [26].
[45] On appeal, many of the issues raised concerning the sentence of home detention relate to Mr Puna’s employment. According to the presentence report, Mr Puna has been employed as a shearer since the age of 15 and has since travelled both nationally and internationally for his work, winning awards for his efforts. If it were not for the sentence of home detention it is likely he would have recently travelled to the United States.
[46] On 7 April 2022 Mr Puna advised counsel the main shear work had finished due to the weather in Hawkes Bay, and he had since picked up work at a cool store from 6 pm to 4 am.
[47] It is evident from the character references from Mr Puna’s previous employers that he will be supported in returning to his chosen form of employment when the season allows. Although employment is an important consideration in terms of an offender’s ability to rehabilitate, it is clear Mr Puna has employment available to him at the conclusion of his sentence and this is not a determinative factor.
[48] As the Judge stated, this offending was of a serious nature. Counsel have not referenced any cases in which a sentence of less than home detention has been imposed for such an offence.
[49] Here, it is clear the Judge made his decision to commute 24 months’ imprisonment to home detention due to Mr Puna’s rehabilitative prospects. However, once this need for rehabilitation is balanced with the need for accountability, denunciation and deterrence, I agree with the Judge that a sentence of community work and supervision would not be appropriate. The attack involved strangulation and blows to the victim’s head. The attack has had lasting detrimental physical and psychological effects on the victim.
[50] The least restrictive outcome here was a sentence of home detention. The sentence was not manifestly excessive and I find the Judge did not err.
Result
[51]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Dunedin CC:
N Graham, Napier
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