R v Ufi
[2023] NZHC 2953
•20 October 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-012-765
[2023] NZHC 2953
THE KING v
MOANA UFI
Hearing: 19 October 2023 Appearances:
R D Smith for the Crown
A Dawson for the Defendant
Judgment:
20 October 2023
SENTENCING REMARKS OF HARLAND J
[1] Mr Ufi, you appear before the Court for sentence today, having pleaded guilty to one charge of strangulation1 and one charge of assault with a weapon.2 The charges carry a maximum penalty of seven years’ imprisonment and five years’ imprisonment.
[2] There is a process I must go through when sentencing you. Both lawyers agree that the end result for you will be a sentence of imprisonment. The question is what that term of imprisonment should be. After I have outlined what you did, I will then adopt what we call a starting point for the term of imprisonment, which I consider properly reflects your offending.
1 Crimes Act 1961, s 189A; maximum penalty seven years’ imprisonment.
2 Section 202C; maximum penalty five years’ imprisonment.
R v UFI [2023] NZHC 2953 [20 October 2023]
[3] I will then consider and assess the personal matters that relate to you to see whether any reductions from the starting point are justified and this will lead me to the end sentence.
The offending
[4] I start by outlining your offending. You and the victim were both living at the same community housing facility in Dunedin and were known to each other. In the early hours of the morning on 11 May 2023, the victim asked to use your phone charger. You refused his request, so he cut the charger cord. You became angry and followed him into his room. You smashed his wooden clothing dresser and threw pieces of timber at him as he was sitting on his bed. The pieces hit him on his thigh and torso area.
[5] You both began to fight with each other. You were restrained from behind by [a support person]. And, if I can just say [to the support person], if you are here, I have made a suppression order in relation to you. While you were restrained, you kicked the victim in the chest before breaking free and cornering him between the couch and the bed. The victim was face down on the ground. You stood over him and used both hands to cover his nose. You then held him in a chokehold with your arm around his neck and the other hand pushing his head down. The victim became unconscious.
[6] You were pulled away by [the support person] but again broke free, this time hitting the victim in the back of the head with a piece of timber from the drawers as he lay unresponsive on the ground. You said you would stab him.
[7] In your interview with the Police, you stated you wanted to kill the victim because he broke your phone charger. You said you were surprised you did not do so when you choked him. You said you wanted to crack the victim’s head open, but the wood wasn’t strong enough. And you admitted to threatening to stab the victim.
The starting point
[8] The charge of strangulation is the lead charge. The Crown submits a starting point of four years’ imprisonment or more would be appropriate, but your lawyer submits it should be three and a half years’ imprisonment.
[9] The lawyers have provided me with cases to help me reach my decision about the starting point. Although there is no guideline sentencing decision for the offence of strangulation, I agree with them that Shramka v R3 and Nuku v R4 provide guidance.
[10] In your case, I consider there are several aggravating factors that need to be taken into account in setting the starting point.
[11] The first is that your victim was vulnerable. The fight between you had broken up and he was left lying face down on the ground. You attacked him while standing over him and from behind, first covering his nose with both hands to stop him breathing and then applying a chokehold.
[12] The second factor is the nature of the violence inflicted on the victim; he lost consciousness and you only stopped choking him when you were pulled off him. After that, when he was unresponsive, you struck him with a piece of timber. You told the Police that you were surprised you did not kill him while choking him and you acknowledged you only stopped because you were pulled away from him.
[13] The third factor concerns the threats you made after the assault; when you said you would stab the victim before you and he were finally separated and you told the Police that you still wanted to kill him when you were interviewed later on.
[14] I have considered the cases referred to me,5 and the case of Nuku is also relevant as a cross-check.
3 Shramka v R [2022] NZCA 299.
4 Nuku v R [2012] NZCA 584.
5 Jackson v Police [2023] NZHC 1100; Mullan v R [2023] NZHC 962; Lee v Police [2017] NZHC 2507.
[15] In relation to Nuku, and this is for the lawyers really, the aggravating factors apparent in your offending include the nature of the violence inflicted on the victim, the fact that his head was attacked and that the application of the chokehold also risked death or brain injury, and the victim was vulnerable. I am not persuaded that your offending was carried out in revenge but it certainly was an extreme response to the victim cutting your charger cord.
[16] In my view, your offending clearly falls within the moderate category of cases outlined in Shramka. This would typically result in a starting point of about three to four years. In terms of Nuku, your offending would fall at the upper end of band 2 or lower end of band 3.
[17] In relation to the cases cited to me, again for the lawyers, I consider Mullan v R to involve offending less serious than yours because your victim in your case was rendered unconscious. I also consider the offending in Jackson v Police to be less serious than what you did. I agree that the offending in Lee v Police is comparable to an extent, but your chokehold and the impact on the victim mean that the strangulation in your case was much worse than that which occurred in Lee. But, as well, I consider the starting point adopted in Lee to have been very generous to Mr Lee and, in my view, could have been considerably higher.
[18]Bearing in mind the aggravating factors and cases I have referred to, I adopt a
starting point of four years’ imprisonment on the strangulation charge.
Uplift
[19] There is then a need to consider and take into account the charge of assault with a weapon. As this was part and parcel of the violence you administered, it is appropriate to reflect it in the starting point by way of an uplift. Counsel for the Crown submitted a standalone sentence in excess of 12 months’ imprisonment would be justified but, on a totality basis, an uplift of six months would be appropriate. Your lawyer agrees. I consider this also should take into account that you were likely to have been subject, in fact you were subject, to post detention conditions at the time of this offending.
[20] Your use of a weapon to attack the victim’s head was very serious and could have resulted in severe injury. As well, the victim was in a vulnerable position and not able to defend himself. Your attack on him with wood from the smashed cabinet was cowardly. It followed the victim being rendered unconscious because of the strangulation that immediately went before. Having said that, I agree that an uplift of six months is appropriate.
End starting point
[21] So, that means the end starting point for you Mr Ufi is four years six months’ imprisonment.
Personal aggravating features
[22] But now I am going to turn to consider the matters that are personal to you before reaching the end sentence.
[23] You have an extensive criminal history. Your previous convictions include convictions for violence and threatening-type behaviour. These include convictions between 2017 and 2021 for common assault (family violence), possession of an offensive weapon, wilful damage (family violence), three convictions for threatening to kill or do grievous bodily harm, one conviction for speaking threateningly, another for assault and a charge of injuring with intent to injure. What is clear to me from your record is that your violent offending is getting worse. Your last conviction – injuring with intent to injure – resulted in you being sentenced to eight months’ home detention on 7 June 2022, together with standard and special post-detention conditions.
[24] Having referred to your previous convictions however, it is important not only to look at the nature of the convictions but the outcome that was imposed, as the outcome is a useful indicator of how serious that offending was. In terms of the physical assaults against others, you received a sentence of community work for your offending in May 2017 and a conviction and discharge in relation to the assault in February 2021. The charges of threatening to kill resulted in convictions and discharge, as did the conviction for speaking threateningly. By far the most serious
previous relevant conviction concerns the injuring with intent to injure charge, for which you were sentenced to eight months’ home detention in September 2021.
[25] I am persuaded that an uplift to reflect your prior convictions is required. Having said that, it must be proportionate and not punish you twice for offending in respect of sentences you have already served. I am satisfied that personal deterrence and, more particularly, the protection of the community is required, and an uplift will reflect this.
[26] The Crown submits an uplift of 10 per cent is appropriate, your lawyer submits five per cent. Because your previous convictions for violent offending are not extensive, I adopt five per cent.
Mitigation
[27] Mr Ufi, you pleaded guilty to the charges when the Crown agreed to amend them from attempted murder to the two charges now before the Court. The Crown accepts, and I agree, that your guilty pleas were entered at the first opportunity. This was a good thing. It was also noted that you were cooperative with the Police and admitted your offending without hesitation. A full credit of 25 per cent is justified.
[28] There are other personal mitigating factors. There is first the question of your mental health. And I have read carefully the report prepared by Dr Julie Norris, a forensic psychiatrist, who was commissioned to deal with your state of mind at the time of the offending.
[29] This report notes that, in 2021, you were diagnosed with schizophrenia in conjunction with alcohol and substance abuse disorders relating to cannabis and methamphetamine use. The report also noted that you met the criteria for an antisocial personality disorder. It appears that [the support person], who is a very big supporter of yours, reported to Dr Norris that he would notice a change in your behaviour in the few days before you received your anti-psychotic injection. However, you told Dr Norris that you had been using methamphetamine and cannabis regularly before your offending, and [the support person] also suspected that this was the case. Your drug
use has no doubt worsened your psychotic symptoms and challenging personality features.
[30] The Provision of Advice to Courts report (PAC report), dated 5 October 2023, also addresses your mental health issues. There is a suggestion following the report writer’s discussion with a North Mental Health Team professional that your violence is a choice rather than a behaviour as a result of your mental health.
[31] Although no s 27 report was provided, I agree with your lawyer that this was not necessary given the matters outlined in the s 38 report, the PAC report and the very helpful letter from [the support person]. Unfortunately, you have not had parental or family support for some time. You have only had access to housing because of the care and support provided by [the support person] and his church. It would appear you are disconnected from your culture because, it would seem, your mental health difficulties are not properly understood and, at times, your behaviour can be challenging.
[32] Your mental health issues make your everyday life very difficult and sometimes make it very challenging for those people trying to assist you. I place considerable weight on the fact that your offending happened within hours of when your next dose of medication was due when, as your lawyer submits and I accept, your behaviour would have been at its worst. It is hoped that the mental health authorities can consider what protective factors can be put in place to provide some sort of buffer or extra support for you at these times.
[33] Despite these things, a very concerning aspect of your offending is outlined in the PAC report. You told the PAC report writer that your offending felt “amazing, it was a rush and [you] felt stronger than [you] have ever felt”. This comment, while honest, highlights, in my view, the risk of your ongoing violence and the need for protection of the community.
[34] In respect of the mitigating features relating to your mental health and background, I adopt a deduction of 15 per cent.
End sentence
[35] From the overall starting point of four years six months (54 months in total), I deduct 40 per cent for mitigating factors. This results in an end sentence of two years eight months’ imprisonment, rounded down. I impose this end sentence in relation to the charge of strangulation, and a concurrent sentence of 18 months’ imprisonment for the assault with a weapon charge.
[36] There remains the question of whether a firearms prohibition order should be imposed. The Crown applies for one and you do not oppose. On the basis that there is agreement for such an order, I also impose a firearms prohibition order.
Result
[37]Mr Ufi, can you please stand up now. Thank you.
[38] In relation to the charge of strangulation, I sentence you to a term of two years eight months’ imprisonment. In relation to the charge of assault with a weapon, I sentence you to 18 months’ imprisonment. These terms will be served concurrently, which means that they will be served together.
[39]And I make, by consent, a firearms prohibition order.
[40]You can stand down now. Thank you.
Harland J
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