R v Tau'Atevalu

[2014] NZHC 2770

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-10053 [2014] NZHC 2770

THE QUEEN

v

WALTER TAU'ATEVALU

Hearing:	7 November 2014
Appearances:	R McCoubrey for Crown G Newell for Defendant
Sentence:	7 November 2014

SENTENCING REMARKS OF LANG J

R v TAU'ATEVALU [2014] NZHC 2770 [7 November 2014]

[1]      Mr Tau’atevalu, you appear for sentence today having pleaded guilty to a charge of causing grievous bodily harm with intent to do so and assaulting your wife. The maximum penalty for the most serious charge that of causing grievous bodily harm with intent to do so is 14 years imprisonment.  The maximum sentence on the other charge is six months imprisonment.

[2]      I heard all of the facts that gave rise to these charges at your trial.   You offered to plead guilty at an early stage to the charge for which you appear for sentence today, but the Crown proceeded with a charge of attempted murder against you. The jury found you not guilty on that charge.

Background

[3]      The charges follow your attendance at a sporting function on the evening of

7 September 2013 at a sports arena in South Auckland.   You were attending that event with your estranged wife to celebrate the end of year prize-giving for a rugby league club with which you were both involved.  During the course of the evening it is clear that you became angry about interaction you perceived to be taking place between your wife and another man. You accosted her about this verbally during the evening.  At about 11 pm you insisted that she leave with you, and that you would take her home in her vehicle.

[4]      It is quite clear from the evidence that she did not want to leave with you. She  had  made  her  own  plans  to  be  with  her  friends  that  evening,  but  at  your insistence and with physical aggression by you, she was bundled into her vehicle.  It is also clear that there was some physical violence at this point, in the sense of you attempting to hit her or punch her round the face.   This was observed by a good friend of hers, who insisted on getting into the car in the front seat with your wife. You then began driving the vehicle away.

[5]      Within 40 or 50 metres, however, you stopped the vehicle and got out.  At this point your wife tried to get out and run away, but you prevented her from escaping.  She then got back into the vehicle and you began punching her about the face.   You also persuaded the friend at about this point that she should leave the vehicle. You then drove the vehicle away from the sporting arena.

[6]      The friend who had got out of the car saw a police car arrive, and alerted the police officer in that vehicle to the fact that you had assaulted your wife and driven her away.  The police officer was Sergeant Tate, your ultimate victim that night.  He then followed you out of the sports arena and left onto Te Irirangi Drive.  He then followed you left into Sandrine Avenue, where he activated his red and blue flashing lights and siren.  You pulled your vehicle over and immediately told you wife that she was not to say anything to the police officer about what had happened earlier. You told her if that if the police officer asked about what had happened at the sports arena, she was to say that somebody else had hit her.  You also threatened that you would cause her serious injury in front of the officer if she attempted to tell him what had happened.

[7]      After  your  vehicle  stopped,  you  got  out  and  walked  towards  the  police officer, who had also got out of his vehicle.  He told you to wait where you were whilst he spoke to your wife.   He then went over to the passenger door of your vehicle, where he spoke to your wife through the window.   From the outset, you attempted to intervene and wanted to know why the officer was asking questions of your wife.  Very shortly after that, I am satisfied that you struck the officer a forceful blow about the face.  This was observed by your wife, who described it as a strong uppercut.  This immediately caused the officer to fall off balance and you then used both fists to punch the officer about the face.  This was observed by your wife, who said that by that stage the officer appeared lifeless and slumped to the ground.

[8]      You said in a later DVD interview that you reacted to being pepper-sprayed by the police, and your counsel advanced this submission at trial.  Although your wife could not definitely exclude that occurring, she did not see it happening and, on the evidence, I take the view that it did not.  The only real evidence to support it is the fact that you said that you had been pepper-sprayed in your interview, and when the officer’s can of pepper-spray was later examined there was some pepper-spray that had been used from it.   It is not known, however, when the canister was last used.  I take the view, having heard the evidence, that you reacted angrily to the fact that Sergeant Tate wished to speak to your wife about what had happened and that you decided to stop the interview occurring by using your fists.

[9]      Your attack on the officer did not stop there.  The evidence makes it clear that you then stomped and kicked the officer in and about the head and neck area whilst he was on the ground.   This was observed by a number of people, including a neighbour who saw the end of the event, and also the friend who had alerted the police.  She and two others had travelled in a vehicle in pursuit of the police vehicle. They got out of their vehicle and discovered the attack on the police officer in full progress.  One of that group of women intervened and pushed you away.

[10]     The incident ended after these women came to the scene and neighbours called the police, as did your wife who used the officer’s radio. Your wife then drove off and a short time later the police arrived.   It was immediately obvious that the officer was in a very seriously injured state.  The photographs taken of the officer at the hospital indicate that his face was barely recognisable through the bruising and the injuries that you had suffered.

[11]     When the doctors examined the officer, they found a raft of injuries.  These included several broken bones about the head and neck area.  These include a broken cheek bone, jaw bone, nose and also the orbital bones around the eye-socket.  Two of the most significant injuries in my view were fractures of the hyoid bone and the larynx.  The doctor who gave evidence at trial said that the larynx could only have been broken by being rammed forcefully against the cervical spine.  He said that that could only occur from a forceful blow using a blunt object from directly in front.  He took the view that it must have been a forceful punch to the front of the throat, or else a stomp or kick.   This would have had the effect of compressing the larynx against the cervical spine and thereby fracturing it.

[12]     Those injuries are significant for two reasons.   First, they demonstrate the force that you were using at the time.   Secondly, they produced life-threatening injuries to the officer, because they meant that he was at risk of having his airway obstructed to the point where he would no longer be able to breathe.

[13]     What was also discovered at the hospital was that the officer had suffered injury to his brain.   This took the form of subarachnoid haemorrhage or bleeding within the layers covering the brain.  Thankfully, this was not sufficiently severe that

it required surgical intervention, but it was nevertheless serious and was undoubtedly caused by either the punches or the stomps to the head.  One or more of these must have caused the officer’s brain to move within his skull and become bruised against the walls of the skull.   This injury in particular is the one that has provided the officer with lasting effects.

[14]     You were arrested soon after the incident.  You immediately acknowledged your involvement.  In a lengthy DVD interview you accepted that you had assaulted the officer and that you had kicked and punched him about the head and neck areas. You expressed remorse during that interview for what you had done.

Sentencing Act 2002

[15]     In  any case involving the use of severe violence  such as  this,  issues of deterrence and denunciation are to the forefront when it comes to sentencing.  There is a very real need in cases such as this to hold the offender accountable for his or her actions.  There is an added factor here, and that is that you attacked a police officer whilst he was carrying out his lawful duties.  You did so in what I consider to be a wholly cowardly manner, and it produced devastating results for the officer.

[16]     I  have  received  and  read  very  measured  victim  impact  statements  from Sergeant Tate and his partner.  In addition, you have heard this morning his partner read out her victim impact statement to the Court.

[17]     The impact on these two people of your offending cannot be overestimated. First, there was the discovery of the physical trauma that the officer had suffered. That was a matter of great shock to the officer’s partner when she came to the hospital and saw him.  Then there was the lengthy period of rehabilitation that the officer was required to undertake following his initially hospitalisation.   He now suffers memory loss and, in particular, has no memory of the incident itself or the period of time surrounding it. Although the physical injuries have healed, the effects of the  brain  injury still  make their mark  and  undoubtedly will  do  so for some considerable time to come.

[18]     This has had a drastic effect on both him and his partner.  He has been unable to return to his career as a frontline police officer.  Indeed, his partner, who was also a serving police officer, has also been forced to withdraw from that area of work, which she formerly enjoyed.   They have had to go through the trauma of rehabilitation when the officer has learned to cope with everyday life.  It is virtually certain that the effects of the brain injury are going to be long-lasting.   The psychologist who assisted in the preparation of the victim impact statement says that your victim remains at risk of not being able to fully participate in his former career as a frontline police officer.

[19]     Mr Tau’atevalu, your offending sends ripples well beyond the immediate victims of your offending.  They send a message of concern to the police force as a whole.   Police officer who attend incidents like this late at night are vulnerable. They have no immediate backup if things go wrong.  They have no way of knowing just how incidents will develop.  They are entitled to the fullest protection of the law when things like this happen.  Police officers have to know that the courts will stand behind the Crown when it brings charges such as this, and people are found guilty of such serious offending that has had such devastating impact.

Starting point

[20]     It is important, however, that I impose sentence according to principle, and counsel are agreed regarding the principles that I need to apply in your case.  They are governed by a decision of the Court of Appeal called R v Taueki,1  in which the Court identified different bands of seriousness for offending involving the infliction of grievous bodily harm with intent to do so.   In that case, the Court of Appeal identified aggravating factors that will guide the Court to setting a starting point for

the sentence to be imposed.

[21]     In your case counsel are agreed regarding the various aggravating factors. First, there is the fact that very serious violence was used - not one, but many punches and kicks and stomps.   Secondly, the offending has caused very serious

physical harm to the officer and emotional harm to his immediate family.  Thirdly,

1      R v Taueki [2005] 3 NZLR 372.

the offending involved repeated blows to the head, a particularly vulnerable part of the body.   All of those factors are identified as individual aggravating factors in Taueki. The Court has to be careful, however, that it does not double-count the effect of those factors.  As the circumstances of the present case indicate, they run together to produce the end result.  Nevertheless, all three must be factored into the sentence that is imposed.

[22]     In addition, there is the very serious aggravating factor that you assaulted a serving police officer carrying out his lawful duty, and the lawful duty that he was carrying out that night was the protection of your wife.

[23]     Having regard to these criteria, the Crown submits that your offending falls towards the top end of Band 2 in Taueki, or towards the bottom end of Band 3 and warrants a starting point of nine to ten years imprisonment.  Band 2 carries a starting point of five to ten years imprisonment, whilst Band 3 mandates a starting point of between nine and 14 years imprisonment.  Obviously, as the bands suggest, there can be a degree of overlap between them.  Your counsel submits that an overall starting point of approximately eight years imprisonment would be appropriate.

[24]     Having regard to the aggravating factors I have identified, I consider that a starting point of nine years imprisonment is appropriate in relation to the charge of causing grievous bodily harm with intent to do so.  To that, I propose to add an uplift to reflect the fact that in addition that night you assaulted your wife at the sporting complex.  Ordinarily, the punching of your wife would carry a prison term of around six months.   Having regard to totality principles, however, I propose to apply an uplift of three months to reflect that factor.

[25]     This means that I am left with a starting point of nine years three months imprisonment before taking into account aggravating and mitigating factors personal to you.

Aggravating factors

[26]     You have a number of previous convictions, including some for violence. The most significant of these is a conviction on two charges of injuring with intent to

cause grievous bodily harm.  On those charges, you received a sentence of two years imprisonment.   That offending occurred, however, in 1996, which is many years before this incident.

[27]     The Court is entitled to apply an uplift to reflect previous convictions where it demonstrates that an offender has failed to learn by previous convictions and renewed offending is made more serious by that fact.  The Crown has not sought an uplift, however, and given the historic nature of those convictions, I do not propose to apply any uplift.

Mitigating factors

[28]     It is now necessary to consider the extent by which I should reduce the sentence by virtue of mitigating factors personal to you.

[29]     Your counsel submits that I should have regard to two mitigating factors. The first  of these is  that,  from  the outset  following  your  arrest,  you  expressed remorse for what you had done and that has continued to the present day.   The second is the fact that, at a very early stage, you offered to plead guilty to the charge for which you are for sentence today.

[30]     The Crown accepts that there is nothing to suggest that your expressions of remorse  are  anything  but  genuine,  particularly  as  they were  expressed  virtually immediately after the event.  You have also written letters prior to sentencing today expressing your remorse to your victim and seeking forgiveness.

[31]     The Court is entitled to have regard to remorse as a mitigating factor when it is satisfied that it is genuine.   It often strikes situations where offenders express remorse immediately before being sentenced, but have not done so prior to that point.   In that type of situation, the Court can readily regard the expressions of remorse with a degree of scepticism.

[32]     In your case, however, given the fact that you made expressions of remorse from the very outset, I am prepared to give concrete recognition to that factor.   I propose to reduce the sentence by six months to reflect that factor.

[33]     You are also, as the Crown recognises, entitled to credit for the fact that you have entered guilty pleas to the charges and that you expressed a willingness to do so at an early stage.  The Crown accepts that, for that reason, you should be entitled to a discount of 25 per cent.  I propose to make an allowance of two years three months to reflect that factor.  This leaves me with an end sentence of six years six months imprisonment.

Minimum term

[34]     The only real issue in dispute is whether I should impose a minimum term of imprisonment. The Court has the power to impose a minimum term of imprisonment in any case where a sentence of more than two years imprisonment is being imposed. It can only do so, however, when it is satisfied that the usual parole provisions are insufficient to recognise principles of denunciation, deterrence and the need to hold

the offender accountable for his or her actions.2   The protection of the community is

another factor that can be taken into account under this head.

[35]     In  the  ordinary course  of  events,  you  would  be  eligible  for  parole  after serving just two years two months of your sentence.   I consider that would be manifestly inadequate to reflect the factors to which I have referred.  In my view, all of them are engaged.  Issues of deterrence, denunciation and the need to hold you accountable are very much to the forefront in your case.  I also consider that your obvious issues with anger mean that there is an element of a need to protect the community  in  the  future  from  you.    For  that  reason,  I  am  satisfied  that  it  is appropriate to impose a minimum term of imprisonment and that, as the Crown suggests, it should be 50 per cent of the sentence that I will be imposing.

Sentence

[36]     On the charge of causing grievous bodily harm with intent to do so, you are sentenced to six years six months imprisonment.   On the charge of male assaults female, you are sentenced to two months imprisonment.  Those sentences are to be

served concurrently with each other.

2      Sentencing Act 2002, s 86(2).

[37]     In addition, I make an order under s 86(1) of the Sentencing Act 2002 that you are to serve a minimum term of imprisonment on the charge of causing grievous bodily harm with intent to do so of three years three months imprisonment.

[38]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
G Newell, Auckland