R v Khan HC Rotorua CRI 2009-063-509

[2010] NZHC 1584

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-063-509

THE QUEEN

v

JOSEPH RONALD KHAN

Appearances: L Maynard for the Crown

AMM Schultz for the prisoner

Judgment:      13 August 2010

SENTENCING NOTES OF PRIESTLEY J

Counsel:

L Maynard, Gordon Pilditch, P O Box 740, Rotorua 3040. Fax: [phone]
Email: [email protected]

AMM Schultz, P O Box 2279, Rotorua 3040. Fax: [phone]. Email: [email protected]

R V KHAN HC ROT CRI-2009-063-509  13 August 2010

[1]      Joseph Ronald Kahn, I am to sentence you today on one charge of injuring with intent to cause grievous bodily harm, laid under s 189(1) of the Crimes Act

1961.   That charge carries with it a maximum penalty of 10 years imprisonment. You pleaded guilty to this charge in this court in March.  Prior to that you faced an indictment of three alternative counts which included attempted murder and threatening to kill.  Those counts were justified on the facts available to the police.  I appreciate, however, that for understandable forensic reasons you were not prepared to plead guilty to the more serious count of attempted murder at an earlier stage which  in  the  round  was  probably a  charge  which,  as  a  matter  of  prosecutorial discretion, need not have been laid.  In making that comment, however, I am not at all critical of the police or indeed the Crown.

[2]      Let me tell you this now Mr Kahn, if you had a track record of domestic violence, previous convictions for that, or previous convictions for violent offending, you would be going to jail.   Do you understand that?   I am, however, in all the circumstances minded to impose a lenient sentence on  you, being one of home detention.   I note that outcome is not opposed by either the Crown or your own counsel and for that reason my sentencing comments can be fairly short.

[3]      Your offending took place in January 2009.   Your wife, as part of her occupation, had formed an emotional attachment with another man, even though she was still living with you.  You, at a stage when you had some health problems, found this difficult to accept.   My own assessment is that inspired in large measure by sexual jealousy you became enraged.  When your wife came home you went into her room, began to abuse her verbally, got on top of her, pinned her down to the bed and then proceeded to choke her with your hands.  She became unconscious.  It would have been a terrifying experience for her.  She subsequently regained consciousness and you attempted to repeat your assault of her.  The next day you and she went off to the police station where you admitted that you had choked your victim.

[4]      I have heard today from your victim, your wife.  Fortunately for you she is supportive of you.   She has spoken at length to a dramatic and highly intricate drawing which she has made, being a mosaic type depiction of your head, which shows amongst other things your good side and your bad side, and reflects the

deteriorating influence on your character which your ill-health has had.  Your wife tells me that despite bail terms it would seem she has initiated contact with you.  She still values your relationship with her.  What the future holds for you both I do not know but your wife has asked me to impose on you a lenient sentence and as I understand her preferably no sentence at all.

[5]      I take it from that, that despite the terrifying experience you inflicted upon her, she has effectively forgiven you and wants the relationship, in some shape or form, to continue.

[6]      Although victims are not under our law in a position to dictate to courts the nature of sentences, courts are obliged to take into account the impact of offending on victims.  In this case the physical impact would have been of a few days duration. The long term emotional impact on your wife as it affects her relationship with you, appears to have been negligible.  You must realise Mr Kahn, if you hope to continue some form of meaningful relationship with your wife, what happened in January

2009 will always be in the back of her mind, as it is in the back of your mind and you will need to modify your thoughts, words and deeds accordingly.   Do you understand that?

[7]      Mr Kahn:  Yes.

[8]      You  do  have  some  previous  convictions.    These  relate  to  minor  drug offending, offences involving property and one firearms charge.   There is nothing sinister in that for the purposes of my sentencing you today.  I note you have never before been subjected to a sentence of imprisonment.

[9]      You are 56 years of age.  You have had problems with your heart which has resulted in a stent being placed into one of your blocked arteries.   Possible side effects of your medication at that time included moodiness and a quick temper.   I think your wife, your victim, is correct when she attributes in part your behaviour, in particular your enraged conduct that night, to your health.  Your current wife is your second.  You have adult children by your previous relationship.

[10]     There are a number of mitigating factors in your particular case.  You have displayed immediate remorse and some empathy with your victim.  You have both undertaken a restorative justice programme.  Your wife, as I have mentioned, does not want you to go to jail.  You have completed 22 sessions of a domestic violence programme.  The pre-sentence report does, however, point out, to some extent you are still trying to place some blame for the offending on your wife and although I can understand what triggered your attack on her that night, and she too I think understands that, that is no excuse.  So if you are going to put your own life and your relationship with your victim back on the rails you must put out of your mind entirely the fact that she may be in some way to blame.   That is destructive and corrosive and will get you nowhere.  Do you understand that?

[11]     Mr Kahn: Yes.

[12]     Sentencing Act purposes and principles are obvious in this particular case and I do not intend to waste time itemising them.  The real difficulty I have, if difficulty it is, is crafting a sentence which enables me to sentence you to home detention which is the desired outcome and which, as I have said, the Crown does not oppose.

[13]     I am bound to take into account the tariff case of R v Taueki.[1]   In particular, as both counsel have pointed out to me, I have regard to this assault being one in a domestic violence context.   I have read and considered the dicta contained in R v Taueki, [37](b) ([36] – [41]) and also to the Court of Appeal judgment of R v Brown.[2]   Mr Maynard is correct when he points out that, in terms of Taueki [37](b), a start point of four years would be justified. In terms of the Taueki bands, and particularly having regard to the fact that Taueki was dealing with offending under s 188, whereas I have before me a charge under s 189(1), and steering well clear of trying to impose some strict mathematical reductions, there can be no serious quarrel with the proposition that your offending falls into Taueki band 1 which would justify a start point between three and six years.

[1] R v Taueki [2005] 3 NZLR 372.

[2] R v Brown [2009] NZCA 288.

[14]     I am satisfied that in all the circumstances an appropriate start point for your would be one of four years imprisonment.  However, I intend to reduce that to have regard for first of all the mitigating factor of your immediate and ongoing remorse, secondly the fact that you acknowledged the strangulation of your wife, even though there  were  legitimate  reasons  perhaps  for  you  resisting  the  serious  charge  of attempted murder from the outset.  You went to the police station the next day.  You have voluntarily undergone a domestic violence course.  You have participated in the restorative justice programme.  You have been subjected to restrictive bail terms and have not breached your bail.  I note that the terms of your bail have been extended since the time of your offending in January 2009.  Without difficulty I factor in those mitigating factors to come from the four year start point to an adjusted start point of three years.  I am also prepared to give you a full one third discount in terms of R v

Hessell,[3]  which  again  the  Crown  does  not  oppose,  which  brings  me  to  an  end

sentence of two years.   Jurisdictionally that two year end sentence justifies me in imposing a sentence of home detention on you.  That is what I intend to do.

[3] R v Hessell [2010] 2 NZLR 298.

[15]     Stand up at this point please.

[16]     Having regard also, without double counting, to the restrictive bail terms and to the difficulties which undoubtedly being bailed on remand would have caused you, your whanau, and your victim, since January 2009, I intend to impose on you a sentence of home detention of nine months.

1.You are to travel directly from this court to 44 Ngongotaha Road, Ngongataha, to await the arrival there of a probation officer and security officer.  You are to reside at that address for the duration of your sentence.

2.        You are not during that period to consume alcohol or illicit drugs.

3.        You are to report to your probation officer as directed.

4.You are to undertake any programmes your probation officer may direct, such programmes, in terms of my direction, to be to assist you in controlling your temper, being aware of the ongoing effects of your offending, and designed to restore you to a full and active life in the community as soon as possible.

5.If necessary, and your probation officer directs, you are to attend any alcohol and drug assessment programmes.

6.I see no useful purpose in a prohibition on your associating with your victim.   Nonetheless, such association with your victim must be on such terms as your probation officer directs.  I do, however, observe, to guide the probation officer, that some controlled restoration of your relationship with your wife, if that is what she wants, should be appropriate.

7.Finally I urge the probation service to find you some form of useful employment so you can return to an active working life, sooner rather than later.   Despite your health problems a man of your age and abilities sitting around at home on a sickness benefit is not to be encouraged.   It is my hope you can enter the workforce, assisted in that regard by your probation officer.

[17]     So that is the sentence.  You go to 44 Ngongotaha Road.  If you blow it or breach those conditions you will be locked up.  Do you understand that?

[18]     Mr Kahn:      Yes.

[19]     And you will be in a very serious situation if you indulge in assaulting any female again, your partner or otherwise.

[20]     Stand down.

.......................................… Priestley J