R v Moengaroa

[2007] NZCA 425

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/07
[2007] NZCA 425

THE QUEEN

v

JARROD THOMAS HEMI MOENGAROA

Hearing:19 September 2007

Court:Ellen France, John Hansen and Wild JJ

Counsel:D R La Hood and C J Boshier for Crown

J P Temm for Respondent

Judgment:28 September 2007 at 11.30 am

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED BUT THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]       The Solicitor applies for leave to appeal against the sentence of three and a half years imprisonment imposed on Mr Moengaroa by Judge Cooper in the District Court at Rotorua on 7 June.

[2]       Mr Moengaroa had been found guilty by a jury of injuring his former female partner with intent to cause her grievous bodily harm.

[3]       The Solicitor contends that:

·     The Judge’s five year sentencing start point was too low, in that it did not reflect Mr Moengaroa’s overall culpability, and the 33 per cent discount the Judge allowed was too high.

·     The Judge erred in taking provocation into account as a mitigating factor.  The Judge could not have been satisfied “that there was serious provocation which was an operative cause of the violence inflicted by [Mr Moengaroa], and which remained an operative cause throughout the commission of the offence”, as required by R v Taueki [2005] 3 NZLR 372 at [32(a)] (CA).

[4]       The result, submits the Solicitor, was a sentence that is manifestly inadequate.  The Solicitor contends there are strong policy reasons in the context of domestic violence that require this Court to reject the Judge’s approach.

Background

[5]       This is most accurately taken from Judge Cooper’s sentencing remarks, as he presided over the trial:

[2]       The facts which emerged at your trial were that on the 17^th of December 2005, the complainant, who was your former partner, was at your home.  Her daughter and her partner were also present.  The evening started off in a convivial way, but a fair amount of alcohol was consumed, particularly by the complainant and her daughter.  There was an argument and ultimately you yourself were the subject of some pushing and shoving and kicking from the complainant and her daughter.  You had asked them to leave but they didn’t.  Ultimately the complainant’s daughter did leave, leaving the complainant and you alone at the house.  She was still antagonistic towards you at the time her daughter and her partner left, but after they left, there was then a sustained and violent attack by you on the complainant.

[3]       That attack included you punching her and kicking her in the head.  It included kicking her while she was defenceless on the floor.  It included assaulting her while she was going in and out of consciousness and kicking her to the head while you were holding her hair.  The complainant recalls going in and out of consciousness and at one point you were demanding of her to say that what was happening was her fault and when she did as you demanded, you punched her again.  This attack continued over a period of about 20 minutes to half an hour.

[4]       She suffered considerable injury.  She was rendered unconscious.  She had extensive fractures around her eye socket and cheek bones extending down to the base of her skull.  She had bruising and swelling to her face and head and other parts of her body.  She spent six days in hospital before she was released to attend a specialist out-patient clinic at Waikato Hospital.

The Judge’s approach

[6]       The Judge listed four aggravating factors which he considered placed this violence in band two of this Court’s guideline judgment in Taueki:

·     Extreme violence.

·     Serious injury.

·     Attack to the victim’s head.

·     Complainant vulnerable when lying defenceless on the floor.

[7]       Band two of Taueki suggests sentencing start points in the range of five to eight years imprisonment.  The Judge then mentioned two mitigating factors.  The first was provocation.  Because the Solicitor challenges the Judge’s approach to provocation we set out what the Judge said (DC ROT CRI-2005-063-3273 7 June 2007):

[7]       What I do take into account in your favour is that, to some extent, there was provocation which led to this.  The Crown submits that that provocation could not be seen as an operative factor in the assault and not operative in the continuation of the assault, but it is clear, from all I have heard about your character and personality, that you are not a person who could be said to be given to excessive violence and something must have happened to trigger this uncontrollable rage.  So to some extent I take into account the provocation that led up to this that I have already described, but that has to be tempered by the fact that this was a sustained attack over a period of some 20 to 30 minutes and in that situation, the provocation that was involved has to be seen as having a limiting effect, if you like, as the assault against the complainant progressed.

[8]       The second mitigating factor was the very substantial family and community support that Mr Moengaroa had.  The Judge commented:

[7]       …  Mr Te Whare was right when he said that that type of support is an important factor when one considers your rehabilitation and reintegration into the community.

Mr Te Whare was kaumatua from Mr Moengaroa’s home town of Reparoa.  He addressed the Court in support of Mr Moengaroa before the Judge passed sentence.

[9]       On the basis of the aggravating and mitigating factors the Judge placed the case in the mid range of Taueki band two.  He said:

[13]     …  I note that an appropriate adjustment has to be made because we are dealing with a case involving injury and not causing grievous bodily harm.  Were it not for the mitigating factors of the provocation and the substantial family support that you have, the sentence in this case would have been five (5) years imprisonment.  Giving you credit for those factors, the sentence that I now impose upon you is one of three and a half (3½) years imprisonment.

Starting point too low

[10]     By reference to four sentencing decisions, the Solicitor submits the lowest sentencing start point available to the Judge was six years imprisonment:

·     Taueki itself, where this Court upheld a starting point of eight years and a final sentence of six years imprisonment for violence on a female partner.  Although the attack was less sustained than that here, it had occurred after Mr Taueki invaded his former partner’s home in the early hours of the morning.  He then used a vacuum cleaner pipe as a weapon in an attack which was witnessed by the 14 year old son of Mr Taueki and the victim, and was diverted to the victim’s father when he and other family members arrived from a nearby house.

·     R v Edwards CA390/05 CA391/05 7 December 2005, involving serious street violence with the same aggravating factors as are present here attracting a starting point in the five year range.

·     R v Roycroft CA312/01 4 September 2002, a five year sentencing start point reduced by 20 per cent for a guilty plea to an assault with a motor vehicle causing a broken ankle, fingers and incapacitation for almost three months.

·     R v Barrett HC HAM S53/96 26 September 1996, in which Hammond J in the course of passing sentence observed  “the range today, given the attitudes which our Courts now take to serious cases of domestic violence, is not uncommonly in the 3 to 6 year range”: at 4.

[11]     The Solicitor accepts that the Judge was correct to place this case in Taueki band two.  There is no need to reiterate what this Court said in R v Edwards, R v Hocking CA241/06 18 September 2006 and R v Lambert CA456/05 4 April 2006 about adjusting the Taueki guidelines for lesser offences such as the one involved here.  Suffice it to say that it involves taking into account all the circumstances of the offending including (and perhaps particularly) the offender’s intent, the degree of violence, the circumstances in which the violence was used, the seriousness of the injuries and their consequences for the victim. 

[12]     The Judge did not indicate how he had adjusted Taueki band two to reflect the lower sentencing maximum of 10 years imprisonment applicable here (as against 14 years in Taueki).  However, Mr Temm informed us that the Judge and counsel had agreed that the appropriate range was two and a half to six years imprisonment.  That accords with the Judge’s comment that he regarded the case as “in the mid range” of the adjusted sentencing band, and the five year starting point he adopted.

[13]     As the Judge noted, the intent here was the same as in Taueki:  to inflict grievous bodily harm.  It was the level of injury that was lower.  Fortunately, the victim did not sustain really serious or permanent injury.  However, given that Mr Moengaroa intended to inflict really serious injury, and given the sustained nature of his attack on the victim (it lasted 20 to 30 minutes), we think the Judge’s five year starting point was too low.  We say that without regard to provocation, to which we now turn. 

Provocation

[14]     We have set out in [3] the nub of the Crown’s submission, and in [7] the Judge’s acceptance that there was provocation here.  Based on the Judge’s sentencing notes, the provocation comprised:

·     The complainant and her daughter pushing, shoving and kicking Mr Moengaroa.

·     Their refusal to go after Mr Moengaroa asked them both to leave.

·     Eventually, the victim’s daughter and her partner leaving, but the victim herself staying.

·     The victim remaining antagonistic toward Mr Moengaroa.

[15]     Mr Temm, who was defence counsel at trial, sought to elaborate on these points.  He said that the evidence was that, after repeatedly asking the three guests to leave, Mr Moengaroa retired to bed.  Subsequently, the victim and her daughter attacked Mr Moengaroa in his bed in the manner described.  At that stage he did not retaliate.  On a sentence appeal such as this, we think the proper course is to restrict ourselves to the Judge’s summary of the facts. 

[16]     The Judge took account of provocation as a mitigating factor:

[13]     …  Were it not for the mitigating factors of the provocation and the substantial family support that you have, the sentence in this case would have been five (5) years imprisonment.

[17]     Having found that the offending was provoked, the Judge ought to have treated the provocation as a factor reducing his sentencing starting point, rather than a mitigating factor:  Taueki at [32]. However, our concern on this appeal is with the end sentence, not the Judge’s means of arriving at it.

[18]     We think that it was open to the Judge, having presided over the trial, to find there was serious provocation which was an operative cause of the violence.  That provocation must have diminished as Mr Moengaroa’s sustained attack went on, to the point where it ceased to be an operative cause.  Mr Temm informed us that by the time the police arrived the violence had ceased.

[19]     We think the Judge ought to have factored in the provocation to reduce a six year starting point to five years.

[20] The Judge was then entitled further to reduce the sentence to reflect the favourable report and references he had about Mr Moengaroa, and the substantial family and whanau support for him. There was also the factor that Mr Moengaroa’s two previous convictions for violence in 1997 and 2002 were “relatively minor”: at [5]. We think the appropriate further reduction was six months, at most 12 months, reducing the end sentence to four years imprisonment.

[21]     The sentence under appeal is three and a half years imprisonment.

[22]     A Solicitor’s appeal lies to correct significant sentencing errors: R v Pue [1974] 2 NZLR 392 at 393 (CA). A sentence of three and a half years cannot be said to be manifestly inadequate, if the appropriate minimum is four years imprisonment.

[23]     Accordingly, the Solicitor’s application for leave is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington