R v Aholotu HC Auckland CRI 2010-004-13724
[2010] NZHC 1874
•15 October 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-004-013724
THE QUEEN
v
STANLEY AHOLOTU
Charge: Wounding with intent to cause grievous bodily harm
Plea: Guilty
Appearances: B Tantrum and S Locke for Crown
L Freyer for Prisoner
Sentenced: 15 October 2010
Five years’ imprisonment, minimum term three years four months.
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: L Freyer, Auckland
R V AHOLOTU HC AK CRI-2010-004-013724 15 October 2010
[1] Stanley Aholotu, you have pleaded guilty to and are for sentence on one count of wounding with intent to cause grievous bodily harm. The maximum sentence for that offence is 14 years’ imprisonment.
[2] The victim of your assault was your former partner and the mother of your two children.
[3] Although you were not living together at the time, in late December last year you were at her home. You were both drinking. In the early hours of the morning you began to argue with her over a relationship she said you were having with her sister. She ran from the bedroom to the kitchen as she did not want the argument to continue in front of the children. You pursued her to the kitchen and punched her in the mouth with such force that she fell to the floor. You then grabbed her hair, locked it in your hands and began spinning her around on the ground using her hair as leverage. While doing that you punched her a number of times about her face and eyes. You also kicked her in the back and face. At one point you hit her using a chair as a weapon. You hit her with such force that the chair broke. The victim was left lying on the floor. She pretended to be unconscious in the hope you would stop assaulting her. You then filled three cups of very hot, almost boiling water and poured them onto her head and body. Your young son came to his mother’s aid and you threatened him too.
[4] As a result of your actions the victim suffered a number of injuries, including swelling to her right eye, an inflamed sclera in the left eye, retinal detachment of her left eye, a three to four centimetre burn above her right eyebrow, which covered her forehead and scalp and which resulted in minor blistering, and burns to her right ear and neck and blistering to her right shoulder. The retinal detachment of her left eye led to impaired vision to that eye, and required surgery. Because she earlier had lost sight in her right eye, for a time during the assault she was blinded.
[5] Although you initially denied assaulting the victim you pleaded guilty after a number of appearances in the District Court on 27 May this year. Although you are only 24 years old, you have a number of previous convictions for serious violent
offending. As a result the District Court Judge declined jurisdiction to sentence you and the Crown submit that a sentence of preventive detention could be imposed by this Court.
[6] Ms Freyer has submitted on your behalf the Court should not impose a sentence of preventive detention but that an end sentence of about four years with a minimum non-parole period would be appropriate.
[7] I start by considering the appropriate sentence if a finite sentence of imprisonment is to be imposed. In considering the appropriate finite sentence the Court must have regard to the purposes and principles of the Sentencing Act. In this case the particularly relevant purposes Mr Aholotu are:
•to hold you accountable for the harm done to your victim and the community by your violence and by domestic violent offending;
•to promote in you a sentence of responsibility for and acknowledgement of that harm;
• to provide for the interests of the victim;
• to denounce your conduct and to deter you and others from committing similar offences; [8]
• to protect the community from violent offending.
In terms of the principles I have regard to:
•the gravity of your offending, including your culpability on this occasion;
• the seriousness of the offence as reflected by the maximum penalty of
14 years’ imprisonment;
• the desirability of consistency with other sentences in similar cases;
and
• the effect of the offending on the victim.
[9] In relation to the effect on the victim, the extent of the injuries I have described and her victim impact report make it clear that your assault on her on this occasion has had a significant and lasting effect on her. For weeks she only had blurred vision. As she had earlier lost the sight in her right eye, as I said, it must have been terrifying for her when she was told she needed an operation to reattach the retina to her left eye and there was no guarantee she would be able to see again. Since that first operation she has had to have at least two further operations. Her sight will never be perfect again. She lives in fear that any further blow, even a minor blow to her eye may detach the retina permanently leaving her totally blind. Also, as a result of your assault on her, the children were removed from her and were only recently returned.
[10] Your counsel has said that the victim has visited you in prison and that there is no enmity between you. That speaks large volumes for her forgiveness of you Mr Aholotu but it does not detract from the impact that your offending on this occasion has had on her.
[11] Your pre-sentence report discloses that you are the oldest of eight children. You left school in the third form without any formal qualifications. You have not had regular employment. You disclose a very harmful pattern of drinking and alcohol abuse. You are towards the upper end of the scale of problem drinking as assessed by the alcohol and drug screening tests. You also use cannabis from time to time. You can give no real explanation for your offending in this case. You accept the assault followed an argument between the two of you but you told the probation officer you have no real recollection of the chair incident. You do, however, say you took responsibility for your offending. Without doubt your offending in this case was contributed to by your abuse of alcohol. It is apparent that alcohol causes you to lose control and to act violently.
[12] The probation officer says that you pose a significant and ongoing risk to the safety of others reflected by your offending in this case and your history. To date you have failed to address the causes of your offending. The probation officer assessed you as having a low motivation and readiness to change.
[13] Your counsel took issue with a number of points the probation officer made but I accept on the information before the Court and your previous record the probation officer’s conclusions were justified.
[14] You are a young man but you have a very bad history of offending. You have two recent convictions for common assault from March 2009, two convictions of male assaults female from May 2008, an earlier conviction of assaulting a person with a blunt instrument in January 2007, assault with intent to injure and common assault in February 2005, and assault with intention to rob and aggravated robbery in May 2002, and assault with a blunt weapon in April 2002. You also have a variety of convictions for failure to comply with orders of the Court.
[15] The leading authority in terms of a starting point for offending of this nature is the Court of Appeal decision of R v Taueki.[1] I have also had regard to the recent Court of Appeal decision of Kauwhata v The Queen.[2] Your offending falls into band
1 of Taueki, which provides a range of three to six years. In Taueki the Court gave and discussed an example of domestic violent offending. Where it is impulsive and does not involve the use of a weapon and does not cause lasting injuries, but where the victim is vulnerable the Court of Appeal said a start point of four years was required. Where, however, there was premeditation or use of a weapon (but, again, no lasting injuries), a start point of perhaps five years or more would be appropriate. In your case Mr Aholotu, there are aggravating features. While I accept there was no premeditation you did use a weapon against the victim. You used a chair against her. You used it with such force that you broke it over her. You also attacked her head and face using your feet. You also deliberately poured the very hot water over her, hot enough to burn her or at least blister her skin. Further, the victim has been left her with a severe and lasting injury to her left eye, the effect of which is worse
because she is vulnerable because of the loss of sight to her right eye. Having regard to the authorities and to the circumstances of your offending in this case an appropriate start point would be five years three months.
[1] R v Taueki [2005] 3 NZLR 372.
[2] Kauwhata v The Queen [2010] NZCA 451.
[16] I am then required to consider your personal aggravating and mitigating factors. There are two particularly serious aggravating factors. The first is that at the date of this offending you were on bail before the Court for other offending. That of itself would support an uplift of six months’ imprisonment. Further, there must be an uplift for your previous violent offending. That offending discloses a marked propensity for violent offending against others, including females. On its own an uplift of up to a year for that would also be justified. However, I fix the total uplift, so as not to overly penalise you, at one year three months, which leads to a start point for sentence of six and a half years.
[17] I then take into account personal mitigating factors. Your counsel has referred to your remorse and your intention to change as you have stated to her, to the probation officer and in your letter. I have to say Mr Aholotu that actions speak louder than words. You have had a number of occasions on which you have been before the Court and you could have taken steps to change your behaviour. To date you have not done so. The major mitigating factor in your favour is your guilty plea. While it came some months after you were charged, I accept counsel’s submissions that there were negotiations before the plea was finally entered.
[18] In the circumstances and taking account of your guilty plea and all the other factors that I can properly take into account in your favour a reduction of between 20 and 25 per cent to the start point is appropriate. I accept that by your guilty plea you have acknowledged your offending and given effect to your stated remorse. I fix that deduction as 18 months which leaves an end sentence of five years.
[19] The issue for the Court is whether a sentence of five years’ imprisonment with a minimum non-parole period is sufficient to address the purposes and principles of the Act or whether your offending in this case, given your history of offending, is such that a sentence of preventive detention is required. In your case Mr Aholotu you meet the criteria for the imposition of a sentence of preventive
detention. I am satisfied, having regard to your previous convictions, the report of the probation officer and the psychologist and psychiatrist, that there is a risk you are likely to commit another violent offence on release.
[20] However, while the sentence of preventive detention is not a sentence of last resort, the Court must still be satisfied that it should be imposed. In considering whether to impose the sentence of preventive detention the Court is directed to have regard to:
• the pattern of serious offending disclosed by your history;
• the seriousness of harm to the community caused by your offending;
•information indicating a tendency to commit serious offences in the future;
•and the absence of or failure of efforts by you to address the cause or causes of the offending;
•and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.
[21] I have already discussed with you your previous bad history and the seriousness of the harm caused to the community by violence and particularly domestic violence.
[22] In forming a judgment on whether you are likely to offend in the future, and what can be done to reduce the risks of such offending I have been assisted by the reports of the psychiatrist and psychologist in particular. The psychiatrist Dr Fernandez is of the opinion that your risk of reoffending, should you be released within the next five years, without intervention, is almost certain. However, the psychiatrist also notes that you have not had previous psychological or psychiatric assessments and there has been no focus on your risk of future offending, despite your long history of criminal offending and convictions. You are currently at serious
risk of violent reoffending and your offences are related to a strong background of antisocial values, alcohol and substance abuse and very poor impulse control. However, as noted the psychiatrist makes the point that you have not had the opportunity to engage in appropriate courses and suggests that you probably have the potential to work towards a non violent way of life if given the opportunity to attend such courses while serving your prison sentence.
[23] The psychiatrist concludes that a violence prevention unit may be an answer towards you meeting your current needs while serving your sentence. Such a unit would provide the necessary therapeutic options that you require and such measures could significantly ameliorate the risk of your future offending if they are successful.
[24] The psychologist, Ms Visser concludes that you are likely to benefit from participation in intensive rehabilitative treatments to address your propensity for violence. Any change to your risk and progress made towards addressing your offending will require re-assessment following your treatment at a later stage. The psychologist concludes that a custodial sentence of a sufficient term to allow you to undertake intensive specialist treatment designed to address your offending and your offence related needs will ultimately ameliorate your potential risk of re-offending and suggests that may be a preferable option to a sentence of preventive detention in your case.
[25] I also take into account your relative youth and the observations of the Court of Appeal in the case of R v Pairama[3] that in cases not involving offenders suffering from psychotic or compulsive clinical conditions, maturity and the hard lessons of a substantial but finite term of imprisonment can modify behavioural patterns.
[3] R v Pairama CA216/97, 8 September 1997.
[26] While you were offered intervention some years ago that was at a time when you were very much younger and recently there does not seem to have been any concentrated effort to address the issues that you have.
[27] Mr Aholotu, please stand. Mr Aholotu I have found the decision as to whether a sentence of preventive detention is required in your case to be a difficult one.
[28] By a very narrow margin and particularly because you have not, in recent years, received a lengthy term of imprisonment for your violent offending I conclude that it is not necessary to sentence you to preventive detention on this occasion. The protection of the community can be addressed by a determinate and finite prison sentence combined with a minimum non-parole period in the expectation that you will be able to attend the courses that should be available to you in prison to address the reasons underlying your offending.
[29] On the charge of wounding with intent to cause grievous bodily harm, you are sentenced to imprisonment for five years.
[30] A minimum period of imprisonment is required to denounce your conduct, to deter you from committing similar offences and to protect the community. The minimum term required to address those factors in this case is a minimum term of two thirds, which will be three years four months.
[31] Mr Aholotu, if you are to change your ways you must take advantage of the programmes that will be available to you in prison. In particular I request the authorities to consider the availability of the Violence Prevention Unit for you.
Please stand down.
Venning J
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