R v Ianuali CA286/06

[2006] NZCA 525

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/06

THE QUEEN

v

TELEKE IANUALI

Hearing:         23 November 2006

Court:            Arnold, Baragwanath and Ronald Young JJ Counsel:  S B Edwards and M J Inwood for Crown

P Surridge for Respondent

Judgment:      14 December 2006         at 10.30 am

JUDGMENT OF THE COURT

A        Application for leave to appeal granted.

B        Appeal dismissed.

REASONS OF THE COURT

(Given by Baragwanath J)

[1]      The  Solicitor-General  applies  for  leave  to  appeal  against  sentences  of imprisonment imposed on the respondent by Judge Davidson in the District Court.

One was a sentence of 15 months imprisonment on one count of injuring a woman

R V IANUALI CA CA286/06  14 December 2006

with  intent  to  cause  grievous  bodily  harm;  the  other  a  concurrent  sentence  of six months for assault by a male on a second female. Leave was granted to the respondent to apply for home detention. The Judge imposed as special release conditions, to expire six months after the sentence expiry date, that the respondent undertake such drug and alcohol counselling and such psychological counselling by Catholic Social Services as might be directed by his probation officer.

Background facts

[2]      The  respondent  was  aged  17  years  at  the  time  of  the  offending  in January 2005.  He had been brought up in Tokelau where he had led a very sheltered life before coming to New Zealand to live with his family a few months before the offending.  He is probably of low intellect although language limitations may have affected the assessment.

[3]      The respondent had been at a party where he had been attacked and his nose had been broken.

[4]      After he left the party with the two female victims the respondent suddenly punched out at one of them, jumping on top of her and punching her repeatedly on the  head.     Her  friend,  the  second  victim,  tried  unsuccessfully  to  intervene. The first victim   managed   to   free   herself   during   her   friend’s   intervention. The respondent  reacted by punching both of  his  fists  through  glass  door  panes, which cut his arms deeply causing heavy bleeding.  He then jumped on to the first victim again and resumed the assault, largely targeting her head area.  This was with sufficient force to break her nose.   She ran off and the respondent chased her. He caught her and dragged her down from the upstairs of the house by the hair with sufficient force to pull out clumps of it.  Downstairs he continued to punch her to her head and upper body.  She had no footwear and had to walk through some of the broken glass which cut her feet.  The second victim intervened but the respondent punched her to the ground.  He chased the first victim again, caught her, punching her yet again to the upper body and caused her eventually to lose consciousness. He struck her head with his knee and held her in a choker hold.  He rubbed his groin against  her  groin  over  her  clothing,  said  he  was  going  to  kill  her  and  spoke

indecently to her.  He removed her clothing above her waist.  He continued to punch her  and  pulled  her  by  the  hair.     The police   then   arrived   and   intervened. The respondent admitted assaulting the women but denied making comments of a sexual nature.

[5]      The first victim suffered very serious injuries including a broken nose, black eyes, bruising and swelling to her upper body and had cuts to her forehead with associated  swelling  and  stiffness.    The  other  victim  sustained  lesser  injuries. The victim  impact  statements  showed  that  both  victims  had  been  significantly affected, both physically and  emotionally.    The  first,  as  a  result  of  her  serious injuries,  has  continuing  pain,  discomfort  and  restrictions  in  her  every  day  life. She has undergone surgery on her nose.  She felt that she was going to be the victim of very serious injury, perhaps even leading to her death.  The incident has changed her life.  A psychological report and a medical report are to similar effect.

[6]      There were two specialists’ reports before the Judge.  The first, by a clinical psychologist  Mr  Bell,  was  the  outcome  of  a  psychological  assessment  under s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, ordered to determine whether the respondent had suffered a traumatic brain injury when he was assaulted and, if so, what impact that might have had on the offending.  Having read the relevant background material Mr Bell (with others) undertook eight hours of interviews and psychological testing with the respondent.  His report is detailed and lengthy.  He concluded that it was possible that the respondent was suffering from the  neuropsychological  consequences  of  head  injury,  as  well  as  an  emotional disorder.   He said that in view of the cultural overlay he could not determine the relative contributions of these to the offending with any certainty.

[7]      The second was that of Mr Graham Martin, a neurosurgeon, who reviewed the  evidence  of  the  evening’s  events  and  referred  to  the  evidence  that  the respondent’s nose was broken.  He concluded that it was at that point the appellant acted irrationally.  Mr Martin stated:

Out of the blue, Mr Ianuali attacked one of the two women, then the other.

He punched two panes of glass out of the front door, and cut both arms, then later punched a car repeatedly.

[8]      Mr Martin  considered  that  it  was  almost  certain  that  the  respondent  had suffered some degree of concussion especially since he had no memory of the details of the assault upon him and his nose was most likely broken.   He recounted the phenomenon  that  it  is  possible  for  rugby players,  soccer  players  and  boxers  to function physically but not mentally for an hour or two after concussion.  They may carry on with vigorous physical activity, but with little discrimination of the purpose and suitability of their actions, lacking proper self-control, forethought and planning.

The Judge’s approach to sentencing

[9]      We accept Mr Surridge’s submission that the Judge took exemplary care in constructing the sentence under appeal.   There were successive adjournments to enable necessary reports to be obtained.

[10]     The Judge did not accept the Crown’s submission that the starting point should be a sentence in the range of four to six years imprisonment.  He adopted a starting point of three years.  He stated:

[15]      By way of mitigation I take into account you[r] plea of guilty and the fact that you have no previous convictions.  I take into account, obviously, your age.  I accept that at the time of this offending you were culturally and socially  naïve  and  immature;  that  your  culpability  must  be  somewhat reduced because of your concussion and associated use of alcohol and cannabis.   I accept that your family are significantly dependent on you. I note you have been willing to engage in a restorative justice type approach to the case.   You have genuine remorse.   You are willing to address any issues that might have caused you to become involved in the offending. You have the support of a social services agency whose report I have read.

…

[20]…I must give you credit for the mitigating features that I have already described.   Principally those mitigating features are your pleas of guilty, your lack of previous convictions, your age, the reduced culpability arising from your concussion which I accept as a distinct possibility and the destructive effect that a sentence of imprisonment will have on your family arrangements.  When I give you credit for all of those mitigating features, it seems to me that the appropriate penalty to be imposed upon you is imprisonment of 15 months.

As to home detention he said:

[23]…  I believe home detention leave for you is appropriate.   You come from a strong family.  You come from a culture where family is central to everyday life.   I believe there is every reason to believe that in your case leave to apply for home detention is appropriate.  I therefore grant you leave.

He imposed the special conditions already recited.

Discussion

[11]     It is now conventional at sentence first to appraise the nature and character of the offending without reference to aggravating and mitigating factors personal to the offender.  The Crown submitted that the sentencing Judge failed properly to apply the guidelines in R v Taueki [2005] 3 NZLR 372 (CA). The Judge described the attack as:

[14]…  a  prolonged  assault.    As  far  as  one  of  the  complainants  was concerned it was quite brutal and savage.  It was persistent.  There does not appear to be any real provocation and the assault has elements of gratuity. One  of  the  victims  suffered  serious  injuries  and  both  victims  have  had serious long-term effects.  Attacking any person to the head area carries an ever present risk of very serious injury.

The Crown submitted that the number and seriousness of the Taueki aggravating features placed the respondent’s offending at the upper end of band 1  (three to six years) or at the lower end of band 2 (five to ten years) by reason of its prolonged and persistent nature (it continued for around forty minutes) and its gravity.

[12]     We accept the Crown’s submission that on the initial objective assessment of the  offending  a  starting  point  of  four  to  six years  imprisonment  would  be appropriate.        In    closely    similar    circumstances    in    R v Ulu    CA373/96

17 February 1997 this Court endorsed a starting point of five to five and a half years. It follows that the Judge’s stated starting point of three years was too low.

[13]     But  what  ultimately  matters  is  not  the  manner  in  which  a  sentence  is constructed but its ultimate result.  Section 9(2) of the Sentencing Act 2002 requires the  Court  to  take  into  account  the  age  of  the  offender,  that  the  offender  has diminished  intellectual  capacity,  whether  and  when  the  offender  pleaded  guilty,

remorse and good character.   The section does not however deal with diminished responsibility resulting from (in this case) concussion.  In R v Bridger [2003] 1

NZLR 636 (CA) a full Court stated:

[42]      This Court has recognised the  need to  make…  a  reduction in  a number of cases which were recently reviewed in R v Tuia (Court of Appeal, CA  312/02,  27  November  2002).  In  R  v  Nilsson  (Court  of  Appeal, CA 552/99,  27  July  2000),  which  involved  an  appellant  with  a  bipolar affective disorder, it was noted that a just balance has to be struck between denunciation of violence, acknowledgement of the grievous effects on the victim, recognition of reduced culpability of the appellant and the public interest, in terms of safety, of the appellant’s being helped, by supervision and  deterrence,  to  keep  on  medication.  In  Tuia  at  para  [22]  the  Court observed that reduced culpability is a factor which ought to receive specific acknowledgement; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires recognition.

[14]     If one adopts the Crown’s lower starting point of four years there must be an immediate credit of no less than a year for the plea of guilty.

[15]     Next,  the  respondent  falls  squarely  within  the  following  statement  of principle in R v Mako [2000] 2 NZLR 170 at [66]:

…where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence.

[16]     We    have    the    advantage   of   a    decision    of    the   Parole Board   dated

16 November 2006 directing that the respondent be released on home detention.  The

Board states:

Mr Ianuali is a 19 year old Tokelauan-born first offender with English very much a second language.  He has issues with violence, cultural adjustment, and substance-abuse.    Home detention would help him with that. Notwithstanding his difficulties with English he has already done quite well on the prison Focus programme.  Any culturally-appropriate treatment gains on   home   detention   would   be   complemented   by   Tokelauan-speaker Hapa Ahalemo from Catholic Support Services.  Prison has nothing more to offer Mr Ianuali than confinement.  There is nothing to suggest he would do other than comply with home detention and take full advantage of what it has to offer.  His offending is serious but he has had some four months in prison to absorb a hard lesson and have justice done to his victim.

Against that background, with appropriate conditions, the Board is satisfied

Mr Ianuali poses no undue risk on home detention and, in other respects,

should now be given the opportunity to deal with his issues in a way best destined to keep him out of trouble in future.

[17]     Responding to that decision Crown counsel responsibly abandoned an initial submission that a sentence of two and a half to three years imprisonment should be imposed.  Instead they contended for a term of two years imprisonment so that home detention could continue, albeit for a longer period than the term imposed by the Judge.

[18]     The elusive factor in the sentencing exercise is discerning to what extent this sudden attack by the respondent who had previously and has subsequently behaved in exemplary fashion was attributable to concussion rather than to the release of inhibition by alcohol.  A complicating factor is that the respondent was considerably affected by drink which by s 9(3) of the Sentencing Act must be disregarded as a mitigating   factor.   The   ultimate   sentence   of   15 months   imprisonment   was undoubtedly merciful but, as the Parole Board has said, the respondent has absorbed a hard lesson in prison and justice has been done to his major victim.  The carefully constructed special release conditions must be taken into account as a component of the sentence.

[19]     In these circumstances we do not consider that the Solicitor-General has established that the sentence is manifestly inadequate.   This highly fact-specific sentence can provide no precedent authority.  We have concluded that the facts are sufficiently  unusual  to  justify  what,  while  certainly  merciful,  is  a  carefully considered response to the competing needs of denunciation, deterrence, and importantly rehabilitation of a young man whose offending has been influenced to a significant extent by the concussion for which he is not morally to blame.

[20]     The application for leave to appeal is granted, but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington