R v Moala

[2019] NZHC 758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-004682

[2019] NZHC 758

THE QUEEN

v

SIONE UIANE MOALA

Hearing:	9 April 2019
Appearances:	R McCoubrey for Crown E Priest for Defendant
Sentencing:	9 April 2019

SENTENCING NOTES OF WYLIE J

Solicitors:

Crown Solicitor, Auckland E Priest, Auckland

R v MOALA [2019] NZHC 758 [9 April 2019]

Introduction

[1]    Mr Moala, you appear for sentence today, having been convicted, following a jury trial, of causing grievous bodily harm with intent to injure. The maximum penalty for this offence is one of seven years’ imprisonment.1

[2]    You also pleaded guilty to one charge of fighting in a public place. The Crown seeks no additional penalty for this offending and suggests that you should be convicted and discharged in relation to that charge. This offending on its own does not warrant a sentence of imprisonment and it would be out of proportion to impose such a sentence, given that a sentence of imprisonment is inevitable for your primary offending. Accordingly, I enter a conviction against you in respect of that charge but discharge you in relation to it.

Second strike

[3]    Your conviction for causing grievous bodily harm with intent to injure is a stage two offence in terms of the three-strikes provisions contained in the Sentencing Act 2002. The term of imprisonment which I am about to impose on you will therefore be served in full without parole or early release.

[4]    When I entered the conviction against you following the trial, I gave you a second-strike warning. I did not then but now understand that you had already received a second-strike warning under s 86C of the Sentencing Act. That warning was given to you in the District Court at Auckland on 12 August 2016, when you were convicted of aggravated robbery. You were sentenced to a term of imprisonment of five years and nine months for that aggravated robbery on 16 September 2016. This was treated as a second-strike offence and you are currently serving the sentence imposed on you without parole.

[5]    The offending in respect of which you were convicted by me occurred before the second-strike warning was given in the District Court, and while you were on bail awaiting trial in the District Court. Even though the present conviction for causing

1      Crimes Act 1961, s 188(2).

grievous bodily harm with intent to injure was entered after the second strike warning was given in the District Court, the offending does not fall to be treated as a third strike offending. This is because the definition of the words “stage 2 offence” in the Sentencing Act refers to the date on which the offence was committed.2 At that time, you only had a first strike warning. In this regard, you are a lucky man. You have avoided the consequences of a third strike conviction, notwithstanding that you have committed three separate strike offences since the amendments to the legislation came into force in June 2010.

[6]    I also note that, on 23 May 2017, you were sentenced to a further cumulative sentence of 10 months’ imprisonment for obstructing the course of justice in relation to your aggravated robbery trial in the District Court. Your current term of imprisonment is thus six years and seven months. Your current statutory release date is 20 October 2022, and as I have already noted, you are not eligible for parole in relation to those sentences.

Relevant facts

[7]    In the early hours of the morning of Sunday 24 April 2016, the victim was with his cousin having a night in town. They made their way to the Fort Street area, and went to a bar and dance venue in Fort Lane. You were in the bar and you became involved in an argument with a female patron on the dance floor. The victim intervened to protect the female patron and there was a minor altercation between you and him. It ended with you being ejected from the bar.

[8]    Sometime later, the victim and his cousin left the bar. They walked down Fort Lane and turned left into Fort Street, heading towards Queen Street. They were intending to get a taxi home.

[9]    In the interim, you had been involved in something of a melee at the intersection of Fort Lane and Fort Street. There had been some pushing and shoving, until security guards became involved and the melee was broken up.

2      Sentencing Act, ss 86A and C.

[10]   You saw the victim and his cousin turn out of Fort Lane. You approached them from behind. You threw one punch at the victim’s head with a closed fist. The punch hit the victim, probably on the right side of his face. It stunned him. You initially backed away but then you came back and delivered a second and more forceful punch to the victim. It was described at the trial as being a loaded punch, thrown from the hip for maximum force. Again, it was to the victim’s head – this time to the left side. The victim collapsed to the ground. A security guard heard you yell out something along the lines of “that’s what you get boy” after you landed this second blow.

[11]   The victim was taken to hospital. He was suffering from concussion, extensive facial swelling, cuts and abrasions. It was discovered that his left eyeball had been punctured by one of your punches, and he subsequently lost his left eye.

[12]   As I have noted, you were found guilty of wounding with intent to injure. There was an alternative charge laid by the Crown – namely, causing grievous bodily harm with intent to cause grievous bodily harm. That is a more serious offence carrying a maximum sentence of 14 years’ imprisonment. The jury did not find you guilty of this charge. Again, you were, in my view, fortunate in this regard. I do of course sentence you on the basis of the jury’s finding.

Victim impact statement

[13]   The victim has discussed in his victim impact statement both the physical and the psychological impact your offending has had on him. He states that the psychological impact is even greater than the fact that he has lost an eye. Because he is now only partially sighted, he can no longer continue with the employment that he previously had. He is suffering from low self esteem and depression, because he is unable to provide for his family in the manner in which he once did. He needs to retrain and is unemployed in the interim. His sense of pride in himself as a man, as the family breadwinner, has suffered. He says that his family now lives from week to week, whereas they used to enjoy financial stability from his previous employment. He also notes that he has ongoing flashbacks of the attack from time to time.

Pre-sentence reports

[14]   I do not have a pre-sentence report as such. That is because at the time I entered the conviction and remanded you in custody for sentence, the Crown indicated that it might seek a sentence of preventive detention. As a result, I ordered, and have received, two reports from clinical psychologists – Mr van Rensburg and Dr Pillai. As a result, I have very much more information before me than would otherwise be the case.

[15]   You were born in Auckland, into a Tongan family. Your parents were not strong disciplinarians, but your eldest brother acted as a substitute parent and physically disciplined you. You resented this and as a result you became strong-willed and defiant in the face of authority. You were in CYFS’ care as an adolescent, and, on occasion, attempted self harm and suicide. You were expelled from school for being involved in a knife fight in the playground. You have said that you wanted to be feared and respected and that you wanted to relinquish a self perceived good boy image. At about the age of 15 you started your own gang, which developed a reputation for fighting with rival groups. That gang ultimately associated with the Crips gang, and you became a leader in that gang. Your lifestyle was one of violence, abusing alcohol and drugs, and employing robbery as a means of sustenance and as an outlet for your violent instincts. You honed your abilities in fighting and revelled in appearing fearless in the face of physical threats. You were fully prepared to use weapons.

[16]   Perhaps not surprisingly, you had difficulty holding down a job, because you could not accept the routine and discipline involved.

[17]   You were assessed by Mr van Rensburg as posing a high risk of violent reoffending, given your need to control situations in which you find yourself through intimidation and dominance. He did, however, observe that your antisocial attitudes have decreased in number and intensity in more recent times, and that the rehabilitation and treatment programmes available in the prison environment may reduce your tendency to reoffend. He noted that your current incarceration has been largely incident-free, and he was of the view that a determinate sentence, albeit a

lengthy one, served cumulatively on your current sentence, may produce rehabilitative and deterrence effects.

[18]   Dr Pillai was of broadly the same view as to your likelihood of reoffending. He also noted that you have recently demonstrated less pro-violent attitudes, and that your conduct in prison has improved. He considered that you have demonstrated an increased ability to abide directions from authority figures, that your behaviour has been more stable in recent times, and that your relationships with prison staff and other inmates have been pro-social. Dr Pillai saw you as being open to treatment and interventions and noted that you are willing to engage in rehabilitative programmes. He agreed that a determinate sentence, affording you the opportunity to attend drug and alcohol and violence prevention programmes within the Corrections Department framework, will provide you with rehabilitative opportunities. He was reluctant to recommend preventive detention until these avenues have been exhausted.

Criminal history

[19]   You have a formidable criminal record. Your current convictions represent your 49th and 50th convictions or notations for criminal offending; 13 of these are Youth Court notations, and the remainder followed once you became subject as an adult to the full force of the criminal justice system. Of your 35 previous adult convictions, 19 are for violent offending (including six aggravated robberies), 12 for property offences (including aggravated burglaries involving firearms), two for perverting the course of justice, one for resisting arrest and one for breach of home detention conditions.

Submissions

[20]   As I have noted, the Crown initially indicated that it proposed to seek a sentence of preventive detention. Having received the two health assessors’ reports, it now accepts that a finite sentence is more appropriate. It suggests a starting point of between three and four years’ imprisonment, with no discount to recognise the fact that you will have to serve your sentence without parole and no discounts for personal factors. It suggests an uplift of six months because the offence was committed whilst you were on bail, and to take into account your previous convictions. It submits that

this sentence should be imposed cumulatively on your present sentence and argues that the resulting total sentence will not be disproportionately severe, having regard to the gravity of your offending. It suggests that a total sentence of this length will enable you to complete the rehabilitative programmes referred to in the health assessors’ reports, which are considered necessary to reduce the likelihood of you reoffending.

[21]   Ms Priest, on your behalf, accepted that a finite cumulative sentence of imprisonment is appropriate, arguing that it is the least restrictive outcome in your circumstances. She also submitted that it is the best option to recognise the purposes of rehabilitation and reintegration, while accepting that it is necessary to hold you accountable, to denounce your conduct and to promote in you a sense of responsibility. She submitted that a starting point of two years and six months’ imprisonment is appropriate; that that starting point should be reduced to around 12 – 15 months for totality, accepting that it will be served cumulatively on your existing sentence; that there should be a modest uplift of three months to recognise that the offending was committed whilst you were on bail; that your personal circumstances justify a modest discount, and the fact that you will have to serve the sentence without parole also justifies a further discount. She submitted that a finite cumulative sentence of 12 – 14 months’ imprisonment is appropriate.

Purposes and principles of sentencing

[22]   In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences.

[23]   I also note that your security classification has changed as a result of the present offending. You were reassessed as a low to medium security prisoner prior to your conviction, but you have been reassessed to high security classification pending sentencing. Once you have been sentenced, an event based classification can be completed. The documentation obtained from Auckland prison on your behalf records that you are employed in the unit as a dayroom you were employed in the unit as a dayroom cleaner, and more recently as a laundry man. You have proved to be reliable in that role, and the prison records state that you are compliant with staff and prison rules. Once you are sentenced, your classification will be reduced to low to medium, and it seems that you will be transferred to Springhill Prison, where you will be able to undertake substantive rehabilitation programmes for the first time.

Analysis

Starting point

[24]   The tariff case for wounding with intent to injure is Nuku v R.3 It adopts and comments on guidelines for serious violent offending set out in another Court of Appeal case – R v Taueki,4 – to other forms of violent offending, including causing grievous bodily harm with intent to injure, and it provides various sentencing bands for such offending. Each sentencing band has its own suggested term of imprisonment.

[25]   In my judgment, there were a number of aggravating features to your offending. First, the attack was unprovoked. It was some time after the initial very minor altercation in the bar between you and the victim. Secondly, the attack was to the victim’s head. It was also more than a one-off punch. You delivered two significant blows. Thirdly, there is the harm to the victim. There was very significant injury indeed. He has lost an eye. Fourthly, the victim was vulnerable at the time – not in the traditional sense, but rather because he was punched from behind. He was unaware of your pending attack, and he had no opportunity to defend himself or to cover up to try and prevent injury.

3      Nuku v R [2012] NZCA 584.

4      Taueki v R [2005] 3 NZLR 372 (CA).

[26]   I need to evaluate the seriousness of each of these aggravating features. Here, the unprovoked nature of the attack was a modest aggravating feature. The harm caused was very serious and it was a direct and possible consequence from the violence inflicted. Similarly, the fact that the attack was to the head is a serious aggravation. The victim’s vulnerability is also an aggravating feature, but only to a modest degree, and it runs together with the first aggravating feature, that the attack was unprovoked.

[27]   In my judgment, your offending falls either at the top end of band two, discussed in Nuku, or at the bottom end of band three. Both call for a starting point sentence of between two to three years’ imprisonment.

[28]   In my judgment, your offending justifies a starting point of three years’ imprisonment. In taking this as my starting point, I have taken into account the authorities referred to me by counsel.5 The case I found of most assistance was Wynd v R.6 That case involved a charge of wounding with intent to injure. The offender took offence to an exchange that occurred earlier in the night between him and a workmate. The offender awaited outside a bar and attacked the victim when he exited. He kicked the victim in the head and then proceeded to punch him in the head and face. The offender rubbed a beer bottle in the victim’s face. There were four aggravating factors, premeditation, serious violence, attack to the head and the use of a weapon. A starting point of two years and nine months’ imprisonment was adopted. In my judgment, your offending was similar to but more serious than that in Wynd, primarily because the injuries to the victim in your case were much more significant, and as I have noted, they were consistent with the violence you used. For this reason, I have adopted a starting point of three years’ imprisonment.

5      R v Ponga [2014] NZHC 677 – one punch – broken jaw – band two offending – starting point of two years and two months’ imprisonment; Lyttelton v R [2018] NZCA 243 – victim shot in thigh

– damage to femoral artery – starting point of five years’ imprisonment; Melrose v R [2018] NZHC 1961– 15 minute attack, multiple punches to the face, kick to head and stomach, liver lacerations, rib fractures and bruising – starting point of five years’ imprisonment; Sheppard v R [2013] NZCA 639 – bouncer stabbed with small screwdriver – starting point of two and half years’ imprisonment; R v Rowe [2011] DCR 538 – victim stabbed with broken bottle, significant scarring – starting point of two and a half years’ imprisonment; Hetherington v Police [2015] NZHC 1829 – attack from behind, number of punches, attack with bottle, victim received gashes to head – starting point of 18 months’ imprisonment; Grimshaw-Jones v R [2010] NZCA 490 – two charges of wounding with reckless disregard and one of male assaults female, knife used, victim received significant scarring – starting point of two years and eight months’ imprisonment.

6      Wynd v R [2013] NZHC 1270.

Totality

[29]   As a general rule, where each offence is a separate transaction and unrelated to other offences in time, subject matter or modus operandi, a cumulative sentence will be considered preferable.7 Section 85(2) of the Sentencing Act, however, states that if cumulative sentences of imprisonment are to be imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[30]   Ms Priest submitted that I should sentence you on the present charge as if you were being sentenced at the same time as the sentence was imposed for the aggravated robbery. It was argued that the present charge would have resulted in a relatively moderate cumulative uplift from the starting point for the aggravated robbery, had you been sentenced to all offending on the one occasion.

[31]   I disagree. You were on bail awaiting sentence for the aggravated robbery when you committed the offending in respect of which you appear today. The offences were wholly unconnected.8 Each victim of unrelated offending must feel that the offending against them has been separately and appropriately recognised.9 In my judgment, no totality adjustment is required in your case as the end sentence is not wholly out of proportion to the gravity of your overall offending.

Personal circumstances

[32]I now turn to your personal circumstances.

[33]   First, you were on bail at the time of the present offending for the aggravated robbery. I do not however uplift my starting point to account for this factor. I have already taken it into account in my totality assessment, and to add an uplift for this factor would result in double counting.

7      Sentencing Act 2002, s 84(1).

8      Cf Haywood v R [2015] NZCA 551, where methamphetamine dependence resulted in the Court concluding that various offences, although separate and distinct, were nevertheless part of a connected sequence of events. In my judgment, there is no such nexus in the present case.

9      R v Mwai [1995] 3 NZLR 149 at [8]; R v Hall CA 412/05, 17 May 2006.

[34]   Secondly, there is your criminal history. As I have noted, you have an appalling criminal history, much of it for violence related offending. Section 9(1)(j) of the Sentencing Act requires me to take this into account. However, a sentence should not be increased merely because of a previous conviction or convictions, unless they say something about an offender’s character and his or her possible response to the sentence to be imposed. Here, your criminal history says a lot about your distain for the criminal justice system and authority in general. I uplift my starting point by three months to allow for your previous offending, and what it says about you.

[35]I am not aware of any personal mitigating factors.

[36]   Ms Priest noted that you were 25 at the time of the offending. This does not entitle you to a discount for youth. I acknowledge your background – essentially that you had a difficult upbringing and that you were involved with antisocial young people and gangs from an early age. I accept that these factors contributed to your willingness to resort to violent and impulsive behaviour, but I do not consider that a discount is appropriate to recognise these matters. Nothing about your background bears directly on the attack in respect of which I am sentencing you.

Second-strike

[37]   Previously, this Court has held that the fact that the sentence will be served without parole is not a relevant consideration when determining the length of a determinate sentence.10 In Barnes v R,11 the Court of Appeal made it clear that in most cases, a second-strike offender’s ineligibility for parole should not be taken into account in sentencing for second strike offences. However, the Court also noted that Parliament must have intended that sentencing Judges would not impose sentences that are disproportionately severe or manifestly unjust. The Court of Appeal said that that is the case despite the absence of a provision making an exception for manifest injustice in the relevant section in the Sentencing Act.12 The Court considered that that conclusion is in accordance with the right affirmed under s 9 of the New Zealand

10     Palagi v Police [2015] NZHC 1832; R v Wereta [2015] NZHC 2683; Shears v R [2016] NZHC 2353.

11     Barnes v R [2018] NZCA 42.

12     Sentencing Act 2002, s 86C.

Bill of Rights Act 1990. The Court held that s 8(h) of the Sentencing Act continues to apply even in a stage two sentence evaluation.

[38]   Section 8(h) requires me to consider whether there are any particular circumstances that would make an otherwise appropriate sentence disproportionately severe or manifestly unjust.

[39]   Ms Priest put it to me that you have more recently demonstrated significant potential for rehabilitation. It was argued that your rehabilitation and subsequent reintegration into society is of significant importance. She argued that you are very much at the cross-roads, and that even a slightly reduced sentence will avoid an otherwise crushing sentence and help incentivise you to rehabilitate at an early date.

[40]   I agree with her. Nothing in s 86C of the Sentencing Act requires me to ignore the potential utility in adopting a somewhat reduced overall sentence to recognise the impact prolonged detention might have on your rehabilitative prospects. In my judgment, nine months can properly be deducted to take into account that the sentence I am imposing on you will be served without parole. You will still be facing a significant sentence and reducing it to this extent to recognise your recent changes in behaviour will hopefully incentivise you to further rehabilitative efforts. Allowing a modest discount should not imperil the rehabilitative prospects discussed by both  Mr van Rensburg and Dr Pillai.

Preventive detention

[41]   I have considered whether a sentence of preventive detention should be imposed.

[42]   I agree with the Crown that such sentence would, in your circumstances, be inappropriate. The offending of which you have been found guilty is a relatively low level offence, and normally lower level offences do not attract preventive detention, unless there is a sufficiently significant and ongoing risk of serious harm. To impose a sentence of preventive detention in such circumstances requires truly exceptional

circumstances involving persistent and knowing behaviour accompanied by cumulatively serious harm.13

[43]   I accept the health assessors’ reports and note that both recommend a lengthy determinate sentence, rather than preventive detention. Both record that you are ready and willing to engage in rehabilitation. You are still young, and I agree with Ms Priest that your rehabilitation and reintegration into society are of significant importance. I acknowledge that you have largely remained out of trouble while you have been in prison, that you have removed yourself from your gang associates and that you have expressed desire to engage in treatment to address your offending. You have done more than simply express a willingness to rehabilitate. You have been working in the prison laundry. In that role you have a privileged and trusted position. You are out of your cell during the day, and you are able to move freely in the wing alongside corrections officers. They have reported that you are compliant with staff and prison rules and that you have proven yourself as being a reliable person to whom laundry duties can be entrusted.

[44]   I am satisfied that a lengthy finite sentence is preferable to preventive detention in your case, and that such sentence will enable you to better address the risk of reoffending that you currently pose.

Sentence

[45]Mr Moala, will you please stand.

[46]   In respect of the offence of causing grievous bodily harm with intent to injure, I sentence you to a term of imprisonment of two years and six months. That sentence is to be served cumulatively upon the sentences imposed on you on 16 September 2016 for aggravated robbery, and on 23 May 2017 for perverting the course of justice. You are to serve the full term of the sentence, without parole or early release.

[47]   Mr Moala, you have started to turn your life around and you have expressed a willingness to rehabilitate yourself. The sentence which I am imposing on you is, in

13     R v Chase [2017] NZHC 244; R v Ranger [2014] NZHC 2583; R v Parahi [2005] 3 NZLR 356 (CA) at [78]-[86].

my view, consistent with the principles of denunciation and deterrence. It is also of sufficient length to enable you to undertake the substantive rehabilitative programmes that will be offered to you and to get ready to return to a life in the community. I trust you will take full advantage of those programmes and of the opportunities that will be offered to you.

[48]You may stand down.

Wylie J