R v Kimiora
[2015] NZHC 1940
•14 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-011125 [2015] NZHC 1940
THE QUEEN
v
VINDRICK EVANS KIMIORA
Hearing: 14 August 2015 Appearances:
N R Webby for Crown
KAN Trotter for PrisonerJudgment:
14 August 2015
SENTENCING NOTES OF HINTON J
R v KIMIORA [2015] NZHC 1940 [14 August 2015]
Introduction
[1] Mr Kimiora you appear for sentence after being found guilty at trial of injuring with intent to injure pursuant to s 189(2) of the Crimes Act 1961. This offence has a maximum penalty of five years’ imprisonment.
[2] The jury found you not guilty of aggravated burglary and unlawful sexual connection by rape.
Facts
[3] You and the victim were in a domestic relationship for a number of years. At the time of the offending, it appeared that you had broken up but remained in contact. After an exchange of insults by text messaging on 28 October 2014, the victim “blacklisted” you so that you were no longer able to contact her from your cell phone.
[4] At around 2 o'clock on 29 October 2014, you went to the victim’s home address. You unlawfully entered the house and proceeded upstairs to the victim’s bedroom where she was sleeping. The victim awoke to find that you had both of your hands around her throat and were trying to strangling her. You continued to strangle her for a brief time, then stood up and placed your foot across her throat. You then kicked and punched the victim a number of times to the arms and legs. The victim suffered reasonably significant bruising as a result.
[5] I record at this stage that the Crown invited me to draw from the facts that you made a large number of phone calls to the victim’s phone, and that you broke into the house. I am not prepared to do so. I consider that to be speculative in light of the jury’s not guilty finding on the aggravated burglary charge.
Personal circumstances
[6] You are 29 years of age. You have convictions of a minor nature, mainly related to property and driving offences. This is your first conviction for violent- related offending. You had been in a relationship with the victim for approximately
five years. You have not made contact with her since the offending. You are currently employed as a plasterer, a position you have held for eight years. You have been advised that if you are sentenced to home detention, this may impact on or prevent you from being able to continue in this role.
[7] The pre-sentence report considered the factors that contribute to your offending as the use of violence and relationship difficulties. Alcohol use is not considered to be a contributing factor to your current or previous offending. The report writer was unable to explore the offending with you during the interview as you were advised by your lawyer not to discuss that.
[8] Having no previous history of violent offending, the pre-sentence report assessed you as posing a low risk of harm to others and having a low likelihood of re-offending. However, the report observed that this assessment was based on the limited information available as the offending was not discussed.
[9] The report recorded that you have consented to both community detention and home detention. However, you stated that you would prefer a sentence of home detention. The report noted that the victim resides close to the proposed home detention address but did not highlight this as a concern. Given that the offending related to domestic and relationship issues, the report recommended an appropriate stopping violence programme or counselling as part of the sentence.
[10] The proposed bail address was considered to be suitable. The occupant is your father who has consented to an electronically monitored sentence being served at that address. A sentence of home detention was recommended. The report considered that there is nothing to indicate that you would be unable to comply with any sentence imposed by the Court.
Victim impact statement
[11] The Crown advises that the victim has been consulted and has elected not to provide a victim impact statement.
Submissions
Crown submissions
[12] Mr Webby, for the Crown, cites Nuku v R1 as the guideline decision for this type of offending and submits the aggravating features of the offending are:
(a) Extent of violence and injury caused: he says the level of violence and the injury caused can be described as moderate. He says that the strangulation by placing a foot on the victim’s throat is a particularly concerning and sinister feature.
(b)Premeditation: Mr Webby says that the offending exhibits at least a mild degree of premeditation as at some point during the period from
12:27pm (the last of the unanswered calls on which the Crown relies) until the attack at approximately 2pm, you had decided to go and attack the victim. You assaulted the victim as she slept and not as a reaction to conduct on her part. It follows from the more limited view I take of the facts for purposes of sentencing that I do not consider I can make this finding for sentencing purposes.
(c) Vulnerability of the victim: in addition to the disparity of power, she was particularly vulnerable as she was asleep when first attacked.
(d)Home invasion: Courts have repeatedly emphasised the importance of recognising the sanctity of the home. The Crown say the present case involved an unlawful and forced entry into the victim’s home. Again, I do not consider I can make the finding of forced entry for sentencing purposes. I accept the entry was unlawful.
[13] Mr Webby submits that the offending falls at the cusp of Nuku bands two and three as he says at least three of the aggravating features in Taueki2 are present to
1 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
2 R v Taueki [2005] 3 NZLR 372 (CA).
varying degrees. On this basis, the Crown proposes a starting point of at least two
years’ imprisonment.
[14] The Crown does not seek an uplift for prior convictions as none were for violent offending. The Crown is not aware of any personal mitigating factors. Depending on the starting point adopted, this Court may have jurisdiction to sentence you to a term of home detention. Citing Fairbrother v R,3 Mr Webby notes that the sentencing judge must make a considered and principled choice between home detention and imprisonment and identify which of them better qualifies as the
least restrictive sentence, taking into account all the purposes of sentencing. [15] The Crown accepts that the pre-sentence report is neutral.
Defence submissions
[16] Mr Trotter agrees that Nuku applies and submits that the offending falls into the lower or middle range of band two of Nuku and that a starting point of 18 months to two years’ imprisonment is appropriate. He points out that the seriousness of each aggravating factor must be considered and that features that are only mildly aggravating may justify placing the offending in a lower band.
[17] In relation to aggravating features, Mr Trotter accepts that the level of violence was moderate but says that the attack was not significantly prolonged. Further, the victim’s injuries were not serious or long-lasting. He points out that the victim did not require any medical attention. He notes that there are some factual similarities between this case and Nuku where a starting point of three years was adopted for more serious offending.
[18] Mr Trotter submits that there are no relevant personal aggravating or mitigating factors and submits that a sentence of home detention is the most appropriate sentence in the circumstances and is sufficient to hold you accountable
for your offending.
3 Fairbrother v R [2013] NZCA 340 at [30].
Principles and purposes of sentencing
[19] In order to determine an appropriate sentence, the Court must take into account the relevant purposes provided for in s 7 of the Sentencing Act 2002. These include: the need to hold you accountable for the harm done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation and reintegration.
[20] Regarding the principles of sentencing under s 8 of the Sentencing Act, the Court must take into account the gravity of the offending, the seriousness of the type of offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences; and the need to impose the least restrictive outcome appropriate in the circumstances.
Setting a starting point
[21] There is a three-stage approach to sentencing. First, the appropriate starting point is set. Secondly, allowance is made for personal aggravating and mitigating factors; and finally, there is a discount for a guilty plea.4 In the presence case there is no guilty plea discount and it is accepted that no allowances are to be made for aggravating and mitigating factors.
Guideline judgment
[22] The Court of Appeal decision in Nuku is the guideline decision for this type of offending. Nuku provided bands applicable to offending under ss 189(2), 188(2) and 191(2) of the Crimes Act 1961. Each involves intent to injure, with starting points of five or seven years’ imprisonment. The Court saw Nuku as providing guidance on how Taueki can be adapted to apply to the lesser charges. Taueki is the
guideline judgment for grievous bodily harm.
4 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.
[23] The Nuku bands are:5
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.
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.
Band three: a starting point of two years up to the statutory maximum (either five or seven years) applying 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.
[24] Nuku emphasised that a sentencing judge needs not only to identify aggravating factors but also evaluate the seriousness of a particular factor. If a number of aggravating factors are present but only in a mild form that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also affect where an offence is positioned within a band.6
[25] The facts of Nuku I consider worse than the present facts so far as I have found them. Mr Nuku was sentenced for the more serious offence of wounding with intent to injure. The victim of Mr Nuku’s offending was his former partner. He unlawfully gained entry into the victim’s home through a window, kicked her about the head, body and legs. There were at least four kicks to the victim’s head and face area. The victim sustained bruising and swelling and was taken to the hospital where she had a head wound stapled closed. The Court of Appeal endorsed a starting point of three years’ imprisonment.
Relevant cases
[26] In Grace v Police,7 the facts are also slightly worse than the present case insofar as I have found the facts. The appellant came home intoxicated. He verbally
abused his partner and then backhanded her to the right of her forehead. She
5 Nuku, above n 1, at [38].
6 Nuku, above n 1, at [42].
7 Grace v Police [2014] NZHC 3045.
barricaded herself in another room but the appellant forced open the door and hit the victim on the top of her head. He then bit her forearm for about four seconds. The victim thought the appellant was going to tear the skin from her arm. The appellant only stopped the assault because their four young children began screaming. Venning J upheld a starting point of two years’ imprisonment for the lead injuring with intent to injure charge. The fact that the offending was a breach of a protection
order was taken into account in setting the starting point, a factor not present here.8
[27] In Carson v R,9 the appellant unsuccessfully appealed against sentence for one charge of injuring with intent to injure, four charges of assault with intent to injure, five charges of male assaults female, one charge of threatening to kill and one charge of threatening acts. The injuring charge involved punches to the breast, shoulder and arm resulting in moderate injuries. The charges of assault with intent to injure involved punches, strangulation with a scarf and pushing and kicking with steel capped boots. The offending all took place against the appellant’s domestic partner resulting in bruising, laceration, and extended pain.
[28] Although the sentencing Judge did not adopt a starting point for the lead offence of injuring with intent to injure, Woodhouse J indicated that a starting point of two years’ imprisonment, with an uplift to three years for the other offences, would easily be justified.
[29] In O’Docherty v Police,10 the victim was at home in bed when the appellant and two associates forced their way into the flat. A number of punches were thrown to the victim’s head and body, causing him to fall to the ground. While on the ground, he was kicked and stomped by the three attackers. On the injuring with intent to injure charge, Gendall J upheld a starting point of two years, six months’ imprisonment.11 The Judge considered the offending to fall squarely within band 3 of Nuku and took into account the fact that the appellant was not the principal
offender in setting the starting point. The aggravating factors the Judge identified on
8 At [15].
9 Carson v R HC Rotorua CRI-2011-463-23, 8 June 2011.
10 O'Docherty v Police [2014] NZHC 2312.
11 At [22].
appeal were premeditation, attacking the head, multiple attackers, home invasion and vigilante action.12
Analysis
[30] I consider the aggravating factors to be:
(a) Extent of violence and seriousness of injury: two types of violence were involved; punching and kicking, and strangulation. The act of placing a foot across the victim’s throat elevates the extent of violence that you were prepared to use. The effect on the victim would have been frightening. The injury suffered was moderate in seriousness. It did not involve hospitalisation or sustained harm. However, the risks associated with strangulation are very high and both legal and medical studies in recent years have begun to emphasise the importance of
strangulation in the context of responding to domestic violence.13
(b) Vulnerability of victim: the victim was particularly vulnerable not only because there was a disparity in size and strength, but also she was in bed asleep when she was attacked.
(c) Unlawful entry: this aggravating factor is recognised in [31] of Taueki and s 9(1)(b) of the Sentencing Act. Despite your being found not guilty on the charge of aggravated burglary, the unlawful entry is still relevant.
[31] Contrary to the Crown’s submissions, I do not consider unlawful entry or premeditation to be particularly aggravating factors. I have to treat the offending as impulsive and unplanned. The aggravating features of the extent of violence and vulnerability are present. The fact that you placed your foot on the victim’s neck, coupled with the combination of strangulation and punching, warrants recognition
and elevates the level of criminality.
12 At [20].
13 See Heather Douglas and Robin Fitzgerald “Strangulation, domestic violence and the legal response” [2014] 36 Sydney Law Review 231 at 232; cited in Waitai v R [2014] NZHC 2116 at [25].
[32] With two aggravating factors present and one in a milder form being that of the unlawful entry, your offending falls within the middle of Nuku band two.
[33] The offending is far less serious than O’Docherty v Police where a starting point of two and a half years was adopted. Here, there was one attacker, no attacks to the head and no vigilante action. In my view the offending is most akin to but slightly less than in Grace v Police where there was a starting point of two years’ imprisonment. There was no strangulation in that case but that is balanced in part against the fact that the offending occurred in the presence of children. The sentencing judge in Grace took into account the fact that the offending occurred while a protection order was in force in setting the starting point. Also in Grace the victim tried to barricade herself in the room and the appellant forced the door open. These are distinguishing factors from the present case.
[34] Weighing up all considerations I adopt a starting point of 20 months’
imprisonment.
Adjusting the starting point
[35] Both the Crown and defence accept that there are no personal aggravating and mitigating factors, and you are not entitled to a guilty plea discount. There are therefore no adjustments to be made to the 20 month term of imprisonment.
Home detention
[36] Twenty months’ imprisonment is a short term sentence as defined in s 4(1) of the Sentencing Act 2002 and the Parole Act 2002. Therefore, there is jurisdiction for this Court to consider a sentence of home detention.14
[37] Relevant sections of the Sentencing Act provide:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
14 Sentencing Act, s 15A.
(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A
…
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
[38] Home detention provides a real alternative to imprisonment.15 The Court of Appeal in R v Iosefa said that home detention “carries with it in considerable measure, the principles of deterrence and denunciation”.16 While home detention conditions may not be as onerous and restrictive as imprisonment, it in itself is a serious sentence which imposes major restrictions on liberty.17
[39] There are considerable benefits to home detention in certain cases. The Court of Appeal in R v Hill recognised that the advantages of home detention include low rates of re-conviction and positive support for offenders’ reintegration and rehabilitation.18
[40] Rather than imprisonment, I consider home detention to be the appropriate sentence in this case. I have taken into account the principle of imposing the least
15 R v Iosefa [2008] NZCA 453 at [41].
16 At [41].
17 R v Bisschop [2008] NZCA 229 at [19].
18 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].
restrictive outcome appropriate in the circumstances,19 and I have taken into account your conviction history. You have never been sentenced to a more restrictive sentence than community work, let alone imprisonment.
[41] The pre-sentence report assessed you as having a low risk of reoffending and a low risk of harm to others. I note that this assessment was slightly tentative, due to the fact that you did not discuss the offending during the interview. Nonetheless, I am satisfied that home detention satisfies all the purposes of sentencing in this case, including denunciation, deterrence and assisting in your rehabilitation and reintegration. You are also currently employed. In some cases, it has been possible to continue employment while on home detention. In my view it would be in the community’s interests for you to continue working. I also agree with the pre- sentence report-writer that you should attend a stopping violence programme or counselling.
[42] There is a general practice of calculating the term of home detention by halving the end point of imprisonment. This reflects the fact that a sentence of home detention must be served in full, whereas the statutory release date of a short term sentence of imprisonment is half that sentence.20 “Halving” the end point is not required as a matter of law.21 In this case, however, I consider halving 20 months’
imprisonment to ten months’ home detention is appropriate. [43] Please stand Mr Kimiora.
Sentence
[44] I sentence you for the offence of injuring with intent to injure, to ten months’ home detention. Mr Kimiora, the home detention is to be on all standard terms of home detention including the recommended special conditions as set out in the pre-
sentence report.
19 Sentencing Act, s 8(g).
20 Parole Act 2002, s 86(1).
21 R v Bisschop, above n 19, at [18]; see also S (CA801/10) v R [2011] NZCA 178 at [45].
[45] For clarity, you are to travel by direct means to the home detention address to arrive no later than noon today, and to await the arrival of the probation officer.
[46] Stand down please.
Hinton J
8
0