R v Poarau
[2016] NZHC 443
•15 March 2016
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-62 [2016] NZHC 443
BETWEEN THE QUEEN
Appellant
AND
MORRIS JUNIOR POARAU Respondent
Hearing: 15 March 2016 Counsel:
J E Mildenhall for Appellant
H S Edward for RespondentJudgment:
15 March 2016
JUDGMENT OF BREWER J
Solicitors: Crown Law (Wellington) for Appellant
Harry Edward Law (Rotorua) for Respondent
THE QUEEN v POARAU [2016] NZHC 443 [15 March 2016]
Introduction
[1] Mr Poarau was sentenced to nine months’ home detention in the Rotorua District Court, having pleaded guilty to wounding his teenage daughter with intent to cause her grievous bodily harm and assaulting her with intent to injure her.1 Those charges have maximum sentences of 14 years and three years’ imprisonment respectively.2
[2] The Crown appeals Mr Poarau’s sentence on the basis that it was manifestly inadequate. In particular, the Crown submits that the starting point adopted was too low and that excessive discounts were given for mitigating factors.
Factual background
[3] Mr Poarau’s victim was his 18 year old daughter, who was living with him at the time. On the evening of 9 April 2015, Mr Poarau found out that his daughter had been having a relationship with her uncle, Mr Poarau’s younger brother.
[4] Mr Poarau confronted the victim on the backdoor steps of their house. He punched her in the face, grabbed her by the hair and slapped her in the face with an open hand several times. He told her not to move, and then went and got a plank of wood about 1.5m long with nails protruding from the ends. He hit her hard over the head with the plank, three times. It broke in half on the third strike. Mr Poarau then continued to hit the victim repeatedly around the head with the length of wood, causing a large gash to her head which bled profusely.
[5] Mr Poarau then ordered the victim to go to his room. She did so, curling up in a ball on the floor. When he entered the bedroom he kicked at her head, which she deflected, causing him to kick her arms. Mr Poarau then went back outside where he used the hose to wash the blood away, before instructing the victim to go outside to be hosed down as well. After he hosed her down, he slapped her on the head again and told her she was lucky that he did not get a knife and stab her.
[6] The victim required hospital treatment. She suffered a large wound to her head, which required five stitches, as well as a swollen lip, lacerations to her mouth
1 R v Poarau [2015] NZDC 20156.
2 Crimes Act 1961, ss 188(1) and 193.
and tongue and a sore neck. She did not suffer any permanent injuries and reports in her victim impact statement that she was “back to normal” within a week or two.
District Court decision
[7] Mr Poarau was sentenced by Judge Cooper, in the District Court at Rotorua, on 7 October 2015.
[8] The Judge noted the scope of the victim’s injuries, and also that they did not have any long-term effects. He also noted Mr Poarau’s numerous convictions, including for violent behaviour. The Judge recorded that he had granted EM bail for the purpose of allowing a restorative justice conference, which had been successful, and that he had heard submissions from the family pastor and other family members about the extent to which the daughter’s behaviour had been very wrong in terms of Cook Islands culture. He recorded that Mr Poarau now accepted full responsibility for what he did and had apologised to his daughter. His daughter had forgiven him.
[9] The Judge noted that the pre-sentence report recommended imprisonment, and that the Crown also saw home detention as inappropriate in the circumstances of the case.
[10] In terms of the guideline judgment of R v Taueki (which relates to grievous bodily harm offending), the Judge identified the aggravating factors of the offending as being the scale of the offending, the use of a weapon, the attack to the head and the breach of trust in the father/daughter relationship. He also noted that the injuries were not significant or long-lasting. He categorised the offending as within band one of Taueki and adopted a starting point of three-and-a-half years’ imprisonment, which he uplifted by six months to account for the defendant’s previous convictions.
[11] The Judge then made a reduction of six months to take into account the cultural context of the case, under s 8(i) of the Sentencing Act. A further reduction of six months was attributed to the successful restorative justice outcome. This brought the sentence to one of three years’ imprisonment.
[12] The Judge then further reduced the sentence by one year (one-third of the sentence) to account for Mr Poarau’s guilty plea, and his remorse. That brought the sentence down to two years.
[13] A further reduction of one month was made to reflect the time spent by Mr Poarau on electronic bail. This brought the final sentence to one year 11 months, within the threshold for home detention.
[14] The Judge concluded that nine months’ home detention was appropriate to reflect the healing that had occurred within the family, which made home detention more constructive than jail, as well as the fact that Mr Poarau had spent four months in custody on remand which was the equivalent of an eight month home detention sentence.
Approach on appeal
[15] This appeal is brought by the Crown, under s 246 of the Criminal Procedure Act 2011. Section 250(2) of the Criminal Procedure Act states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.3
[16] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.4 Further, despite s 250 making no express reference to “manifestly excessive” or “manifestly inadequate”, this principle is “well-engrained” in the Court’s approach to sentence appeals.5
[17] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:6
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of
additional material submitted to the appeal Court.
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 At [33], [35].
6 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[18] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive or inadequate is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.7
[19] While these principles apply equally to Crown appeals as well as appeals by defendants, it is well established that on Crown appeals an appellate Court should only increase a sentence to the lowest end of the applicable range, not to the level it would have imposed if sentencing afresh.8
Setting the starting point
[20] The Crown has submitted that the starting point adopted by the Judge was too low, by a significant margin. The Crown notes the presence of several aggravating features in terms of the guidelines set out by the Court of Appeal in R v Taueki.9
With reference to the description of domestic assault offences in Taueki band one, and case law,10 the Crown submitted that the correct starting point was on the cusp of bands one and two of Taueki and that the absolute minimum starting point was one of five years’ imprisonment.
[21] Counsel for Mr Poarau, on the other hand, submitted that the starting point adopted was within the sentencing range open to the Judge, albeit he accepted that it was at the lower end of the acceptable range. In oral submissions this morning, Mr Edward accepts the Crown’s submission that five years’ imprisonment was a proper minimum starting point applicable to the violence used by Mr Poarau.
[22] Wounding with intent is clearly the lead charge for sentencing purposes. I do not propose any uplift for the assault charge, as the events leading to the assault
charge form part of the overall context of the offending. All of the key aggravating
7 Ripia v R [2011] NZCA 101 at [15].
8 Sipa v R (2006) 22 CRNZ 978 (SC) at [9].
9 R v Taueki [2005] 3 NZLR 372 (CA).
10 R v Williams [2009] NZCA 55; Rautahi v R [2011] NZCA 351.
factors that have been identified appear to form part of the wounding charge. In my view, the relevant aggravating factors are these:
(a) Extreme violence: The violence in this case was quite prolonged, given that Mr Poarau continued beating his daughter after he had ordered her to go inside the house. There was an ongoing course of conduct, not simply a spontaneous outburst. Further, hitting the victim so hard on the head with a plank of wood (with nails in it) that the plank broke indicates the level of force behind the blows. While the assault was not at the highest end of the “extreme violence” scale, the violence was of considerable force and duration, rendering this an aggravating feature.
(b)Use of a weapon: A plank of wood with nails sticking out of it is a serious weapon, although obviously not as “lethal” as a knife or firearm. However, as noted in Taueki, objects like clubs or baseball bats, which are arguably similar to a plank, can cause significant and permanent injury especially when aimed at the head. The use of a weapon in this case appears to have been opportunistic (grabbed off a nearby firewood pile) rather than planned.
(c) Attacking the head: Mr Poarau deliberately targeted the victim’s head a number of times, both outside using the wooden plank and inside by attempting to kick her in the head. This is a further aggravating feature.
(d)Breach of trust/vulnerability of the victim: The victim was Mr Poarau’s teenage daughter, aged 18 at the time of the offending. Mr Poarau was clearly in a position of power and trust over her, as evidenced by her compliance with his demands during the attack, rather than making any attempt to escape or defend herself. The attack also occurred in the family home, where the victim, who had had a difficult upbringing, should have been entitled to feel safe.
[23] In Taueki, the Court of Appeal commented that where none of the identified aggravating factors are present, a starting point at the bottom end of band one (three to six years) would normally be called for. Where one or more aggravating factors is present, a higher starting point is required.11 The Judge’s three-and-a-half year starting point assesses this offending as just above the bottom of band one.
[24] The Court of Appeal gave the following further guidance in Taueki:
Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of 4 years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps 5 years or more.
[25] While this is a domestic assault by an offender on his teenage daughter rather than his spouse, the same principles apply in my view. Mr Poarau’s daughter was arguably even more vulnerable due to the domestic context than a spouse or partner would have been, given her youth and the degree of Mr Poarau’s power and authority over her (as evidenced by her compliant behaviour during the assault).
[26] Band two of Taueki runs from five to 10 years, and encompasses serious offending with three or more aggravating features or where the combination of features is particularly grave. The example given is of a premeditated domestic assault, involving serious and long-lasting injury, to be at the higher end if a weapon was used.
[27] In this case, although there is no evidence of premeditation, this was serious offending involving three or more aggravating factors, with some at a grave level. It is clearly outside of the lower end of band one, and could be considered at the higher end of band one or low to mid-end of band two. This is consistent with the remarks in Taueki that an impulsive domestic attack using a weapon could expect five years
or more.12
11 At [36].
12 This point was re-emphasised in R v Williams, above n 10, at [20].
[28] The Crown submitted that R v Williams (five year starting point) and Rautahi v R (five years six months starting point) are broadly comparable and demonstrate the need for a higher starting point. I accept that submission, although obviously no two cases are ever identical.
[29] I accept the Crown submission that a review of comparable case law and, more importantly, reference to Taueki itself, indicates that a starting point of three- and-a-half years’ imprisonment was manifestly inadequate in all the circumstances. Rather, given the number of aggravating factors, including in particular the severity of the assault, a starting point of between five years and five years and six months’ imprisonment would have been appropriate. Given that this is a Crown appeal, I take the lower end of that range, five years’ imprisonment, as being the appropriate starting point.
Adjustments to the starting point
[30] Mr Poarau’s criminal history indicates an established pattern of violent behaviour, particularly against women. He has 15 previous convictions for violence, amongst other convictions, dating back to 1996. He has seven convictions for breaches of protection orders. Mr Poarau’s most recent conviction before the current offending was for assault with intent to injure in February 2014. The Judge’s six month uplift for Mr Poarau’s previous convictions was clearly appropriate, and could have been higher, given that background in light of his pattern of assault and other violent behaviour over time.
[31] As for the discounts for personal mitigating factors, although these are generally matters of discretion for the sentencing Judge, that discretion is not unlimited. In R v Vailea, the Court of Appeal commented:13
… as was observed in R v Fate, “in appropriate circumstances” extending mercy to an offender is “a legitimate function of the criminal justice system”. This Court in R v Ngeru stated, however, that while an appellate court “will respect” the exercise of mercy, the discretion is not unfettered and “the sentence ultimately imposed must take into account the interests of society in ensuring in appropriate cases that, notwithstanding the promptings of mercy, the sentence will still reflect the seriousness of the crime”. The
13 R v Vailea [2010] NZCA 67 at [14] (footnotes omitted).
authorities make it clear that there must a basis for the approach taken and it follows that the matters on which the judge relies ought to be articulated clearly.
[32] The Crown submits that the deductions that were applied for mitigating factors were excessive and, to an extent, duplicative. In essence the Crown submits that the approach to discounts taken constituted an artificial and inappropriate tailoring of the sentencing process, aimed at getting the end sentence within the home detention range.
[33] The specific mitigating factors identified by the Judge were the “cultural context”, the successful restorative justice conference, remorse, time spent on EM bail, and a guilty plea discount. I will consider each in turn.
Cultural context of the offending
[34] The Judge reduced the sentence by six months to take into account the cultural context of the case, pursuant to s 8(i) of the Sentencing Act, which provides that the Court “must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose”.
[35] It appears to have been submitted to the Judge by the family pastor and other family members that a relationship between an uncle and a niece was offensive in Cook Islands culture. It was not suggested, however, that a violent response to the discovery of such a relationship was culturally acceptable or appropriate. On the contrary, it is evident from the restorative justice conference report that violence in such circumstances is seen as culturally unacceptable.
[36] The basis for the cultural discount appears to be, in essence, that Mr Poarau was so affronted to discover the improper relationship, which was deeply offensive to him culturally, that he spontaneously lost his self-control and responded in a way that was entirely unacceptable, either in Cook Islands culture or in New Zealand culture more generally.
[37] Although the term ‘provocation’ was not mentioned, the cultural context
analysis is very similar to a finding that the victim’s behaviour “provoked”
Mr Poarau, due in part to his particular cultural background. In a provocation context the Court of Appeal has held that a relevant factor is assessing “whether the response was proportionate to the nature, duration and gravity of the provocation”.14
In this case, such a standard is clearly not met.
[38] As Heath J observed in R v Mason, “Such matters [being the influence of tikanga Maori in sentencing] are relevant to the sentencing process but they cannot drive it. The community, as a whole, also has an interest in seeing that the Courts respond appropriately and consistently to the offending of people who commit similar offences.”15
[39] In the present case, I have no doubt that the relationship between the victim and her uncle may have been seen as culturally offensive. Indeed many, if not most, cultures would frown on a relationship between an uncle and his teenage niece, although one would expect the greatest blame in such circumstances to be directed to an adult uncle rather than his relatively vulnerable teenage niece. However, even if the victim entered into a culturally inappropriate relationship, there is no suggestion that Mr Poarau’s extremely violent response was in any way a culturally appropriate or acceptable response. The material before me indicates to the contrary, namely that the violence he exhibited towards his daughter was culturally unacceptable. Overall Mr Poarau’s criminal history (and pre-sentence report) indicate that his violent behaviour on this occasion was not driven by cultural factors. Rather, he appears to be a man with serious anger management issues. He has a history of violent and controlling behaviour towards the women in his life and an associated disregard for Court orders aimed at their protection.
[40] There is also considerable force in the Crown submission that allowing a sentencing discount for cultural factors in this case would be tantamount to saying that a person’s cultural background can excuse (at least in part) violence toward women. New Zealand is a multi-cultural society. Many New Zealand citizens and residents originate from cultural backgrounds whose attitudes to some members of
society (including in particular women and children) may not be fully aligned with
14 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [62].
15 R v Mason [2012] NZHC 1849 at [40].
broader societal values and norms, as expressed in our laws. But everyone in New Zealand must comply with New Zealand law, regardless of any differing cultural beliefs they may hold. A particularly cautious approach has to be taken to applying sentencing discounts for cultural factors in the context of violent offending against women or children, or any other vulnerable members of society. Such persons are entitled to the full protection of the law. In my view this is not a case where a discount for cultural factors can be justified.
Successful restorative justice conference/remorse
[41] The Judge applied a further six month discount to reflect Mr Poarau’s engagement in a successful restorative justice process and, in addition, gave a full discount for remorse, resulting in a combined one-third discount. The Crown submits that this was excessive and amounted to double-counting, as Mr Poarau’s remorse only developed as a result of the restorative justice process. Counsel for Mr Poarau submitted, on the other hand, that the two discounts related to discrete, albeit inter-related issues. I conclude that it was not open to the Judge, in the exercise of his discretion, to apply separate discounts for these factors.
[42] Pursuant to s 10 of the Sentencing Act, the Court must take into account restorative justice outcomes for sentencing purposes, including offers to make amends or apologies to the victim, if the Court views them as genuine. It is, therefore, helpful to first briefly review the information before the Court relating to the restorative justice process, as well as the broader issue of remorse.
[43] On 5 September 2015, Mr Poarau attended a Court-referred restorative justice conference. The report of that conference states that Mr Poarau acknowledged his wrongdoing and apologised to his daughter. The report also notes that violence is unacceptable in Cook Island culture and needed to be rectified through the restoration of “turanga” to the victim and perpetrator. Mr Poarau’s letter of apology to his daughter is annexed to the report. She accepted his apology and forgave him.
[44] It is, therefore, somewhat surprising that when Mr Poarau was interviewed by a probation officer only a month later (on 5 October 2015), for the purposes of preparing a pre-sentence report, he disputed the summary of facts. Indeed he
informed the report-writer that he had been “forced” to plead guilty by his lawyer. I note, however, that there has been no application to vacate his guilty plea. Based on the various comments he made to his probation officer, Mr Poarau was assessed as showing little insight into his offending, and being dismissive of its severity. The report-writer also noted his seven convictions for breach of protection orders and recommended imprisonment.
[45] I note that although some previous cases can possibly be read as applying separate discounts for a successful restorative justice process being completed and for expressed remorse,16 the more usual approach is for expressions of remorse made within a restorative justice process to form part of an assessment of whether any remorse discount is justified. Adams on Criminal Law refers to an offender’s engagement in restorative justice process as being recognised by a reduction in sentence “as an indication of genuine remorse”.17
[46] Providing an additional discount for a successful restorative justice conference is relatively unusual. However, where an offender takes other measures or remedial action as part of the process, or makes offers of amends, there could legitimately be a separate discount to recognise that “added” effort within the restorative justice process. But that is not the case here.
[47] In Shirley, a six month discount had been given for the remorse shown by the appellant at a restorative justice conference.18 On appeal it was submitted that the discount for remorse and the positive outcome of the restorative justice conference was inadequate. The Court of Appeal rejected that submission and commented that:
[24] We therefore conclude that the discount provided by the Judge cannot in any way be seen as being inadequate. As this Court has previously held, the positive outcome of a restorative justice conference must be balanced against other sentencing principles. In R v Buttar [2008] NZCA 28 this Court noted:
16 See, for example McGregor v Police HC New Plymouth CRI-2011-443-31, 26 August 2011, where although a holistic 40 per cent discount was given for all mitigating factors, White J remarked that he thought the successful restorative justice process as well as the offender’s remorse and steps taken to address her problems should be considered mitigating factors.
17 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf edition, Westlaw) at [SA10.03].
18 R v Shirley [2009] NZCA 216.
[27] While recognising the benefits associated with the restorative justice process, the Sentencing Act requires a firm response from the Court to incidents of serious violence, particularly those involving the use of weapons. In such circumstances, as the Judge recognised, the Court cannot lose sight of the significance of the statutory purposes of denunciation and deterrence”.
[25] We think that proposition is particularly relevant in cases involving violent offending within families.
[48] In my view, those observations are particularly apt in this case.
[49] It is clear that the restorative justice process resulted in a degree of reconciliation within the family and an expression of tangible remorse, in the form of an apology letter from Mr Poarau to his daughter. That letter, and the restorative justice process report, is relied on as evidence of remorse. Indeed it appears to be the only evidence relied on as evidence of remorse. In my view, on the facts of this case there can be no justification for a discount for participation in the successful restorative justice process in addition to the remorse discount. Mr Poarau essentially received a double discount. The outcome of the restorative justice process is appropriately taken into account in the context of assessing whether Mr Poarau was genuinely remorseful for his violent attack on his daughter. A separate and additional six month discount for his involvement in the process, and its successful outcome, cannot be justified.
[50] Mr Poarau received the maximum 33 per cent discount for his guilty plea and remorse. Of this, 25 per cent is attributable to his guilty plea and eight per cent to his remorse. I consider that Mr Poarau was extremely fortunate to receive a full remorse discount given his comments to his probation officer only a month later. The views he expressed at the time seriously call into question the genuineness of his remorse and indicated an alarming lack of insight into the seriousness of his offending. Instead, they seem very consistent with his record of breaches of protection orders and violence against women. Nevertheless, given that this is a Crown appeal and I must err on the generous side, I will not interfere with the maximum remorse discount that has been allocated.
EM bail discount
[51] The Crown did not challenge the one month discount that was provided in relation to restrictive EM bail conditions.
Guilty plea discount
[52] The guilty plea discount given is also not contested. A 25 per cent discount is appropriate in the circumstances, as Mr Poarau pleaded guilty at the first available opportunity.
Summary and conclusion
[53] Undertaking the sentencing exercise afresh, I have concluded that the lowest appropriate starting point was five years’ imprisonment. That should be adjusted upwards by six months to account for Mr Poarau’s criminal history, particularly his history of violent offending. That brings the sentence to five years six months’ imprisonment. A discount of one-third is then appropriate, being the maximum discount available for remorse and Mr Poarau’s guilty plea. This results in an end sentence of three years and eight months’ imprisonment. A further one month should be given for the EM bail regime. The final sentence being three years and seven months’ imprisonment. It necessarily follows that the sentence that was imposed was manifestly inadequate.
Result
[54] The appeal is allowed. The sentence of nine months’ home detention imposed in the District Court is quashed.
[55] I have to give Mr Poarau credit for the five months he has spent on home detention. I will give seven months credit since home detention is not as onerous as imprisonment. I take into account the submission of Mr Edward that given the period of time Mr Poarau has spent on home detention, it would be wrong to now impose a sentence of imprisonment. However, I accept the Crown’s submission that what has been shown here is that the sentence of home detention was in error and so it must be corrected.
[56] Therefore, I substitute a sentence of three years’ imprisonment for the
quashed sentence of home detention.
[57] Mr Poarau is in Court. He is to surrender himself to the custody of the Police immediately.
[58] I do not know whether he came to Court prepared for the possibility of the substitution of a sentence of imprisonment. If he was unprepared for such a sentence, I direct that he be held in custody in the Court premises for a reasonable period of time to enable his family to deliver to him any personal effects he might
need before commencing his sentence of imprisonment.
Brewer J
0
8
0