R v W
[2018] NZHC 117
•13 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-007842 [2018] NZHC 117
THE QUEEN
v
W
Hearing: 13 February 2018 Counsel:
FMT Culliney for Crown
JS Kovacevich for DefendantJudgment:
13 February 2018
SENTENCING REMARKS OF DOWNS J
Solicitors/Counsel:
Meredith Connell, Auckland. JS Kovacevich, Auckland.
R v W [2018] NZHC 117 [13 February 2018]
Preliminary issue
[1] Mr W, I must deal with a preliminary issue before sentencing you: whether charge 23 in relation to which you were found guilty is governed by the three strikes provision of the Sentencing Act 2002. This turns on when exactly you committed the offence because the charge straddled the commencement of the three strikes regime.
[2] Ms M’s evidence was that the offending occurred approximately six or seven months before she left Aranui Road. It was not contested Ms M left that property in December 2014. If correct, your offending occurred after the commencement date of the regime and you are subject to it. However, Ms M did not reference this offence to a significant event close in time, such as a birthday, anniversary or anything else particularly memorable. And, on her own evidence, her timing of it was something of an approximation. In these circumstances, I am not sure the offence occurred before the three strikes regime came into being. Therefore, I conclude you are not governed by that regime.
[3] Now sentencing itself.
Sentencing remarks
[4] Mr W, you were found guilty late last year of 38 charges in relation to your former partner and six children. You pleaded guilty to one charge during trial. All of this you will remember. All of the charges involve in some way serious violence. It is common ground I must impose a long term of imprisonment. The primary question is how long should the sentence be? A related question is whether I should impose a minimum period of imprisonment.
Charges
[5] Before addressing the facts, I must say something more about the charges. There are 39:
(a) Five of wounding with intent to injure. These charges included variance which alleged maiming or disfiguring. Each of the charges within this bracket is punishable by up to seven years’ imprisonment.
(b) Six of injuring with intent to injure.
(c) Twelve of assault with a weapon. Each of these and each of the six injuring charges is punishable by up to five years’ imprisonment.
(d) One of assault with intent to injure.
(e) Six of breaching a protection order. Each of these is punishable by up to three years’ imprisonment. So too the assault with intent to injure charge.
(f) Two of male assaults female.
(g)Five of assault on a child. Each of these and each of the male assaults female charges is punishable by up to two years’ imprisonment.
(h)Two of common assault, which is punishable by up to one year imprisonment.
[6] Some of the charges are representative, meaning they allege a pattern of conduct. Reference to the maximum penalty underscores the seriousness of your offending—and your situation.
Facts
[7] You met Ms M at the end of 1998. She was about to turn 21. Ms M left you at the end of 2014. She did so because you had been brutally violent to her for the entirety of your relationship.
[8] You repeatedly punched her to the head over many years, causing her to lose almost all her sight in one eye. She told you she was losing her sight because of your violence. You continued to punch her to the head.
[9] You broke several of Ms M’s teeth, again through punches to her face over many years.
[10] You often used weapons to assault her: metal vacuum cleaner poles, extension cords—whatever was to hand.
[11] In February 2001 or thereabouts, you wounded Ms M by hitting her to the head with a broomstick.
[12] Between 2000 and 2005 you broke her wrist with a wooden pole. It did not heal properly because you prevented her from getting medical help; she had to make her own splint. On another occasion in this same period, you hit her ear with a wooden post. It became infected. And is now visibly deformed.
[13] Between 2008 and 2010 you smashed a soup bowl across her face. The attack left Ms M with a scar to the jawline.
[14] On other occasions, you hit her head into a wall and used a piece of wood across her back.
[15] You would throw things at her too:
(a) A kettle of boiling water at her face. Ms M said this injury “wasn’t too bad” as she showered and changed immediately. But she was in pain for approximately two weeks. She said the burn was “really sore”.
(b)A hair brush at her face. The brush had a sharp point. In her own words it “split [her] head open” and left a scar to her forehead.
(c) A coffee mug. The coffee went down her front. And the mug split her nose leaving another scar to her face.
[16] Between 2010 and 2014 you drove into Ms M using a car as a weapon, wedging her between it and the garage wall. You sat in the car, watching her while she was in pain. She was pinned to the wall for approximately 10 minutes. You did nothing— other than look on.
[17] The remaining offences of violence in relation to Ms M highlight how you were violent to her from the beginning to the end of your relationship.
(a) In May 2000, Ms M was pregnant. You knew that. You were angry at her because she had been talking to another man. In her words, you slammed the car door into her stomach. She later developed serious stomach pain and miscarried. She went to hospital. She told the specialist what you had done. More about this later.
(b)Fast forward to 2014. Ms M was attending a hospitality course. She and others on it participated in a wine tasting session. When she came home you dragged her through the front door and repeatedly kicked and punched her. Ms M said this assault was “probably one of the top five hidings that I’d had from him”. She said, among other things, you kicked “the shit” out of her. The evidence was clear: you gave her a terrible sustained beating.
(c) In December 2014 you also attacked Ms M with a broom handle. You hit her with it repeatedly to her legs. She wore stockings the next day
to conceal her injuries.
[18] Unsurprisingly, Ms M was often covered with bruises, including to her face. As observed, she would attempt to conceal these with clothing. Or she would lie to others, saying her injuries were the product of accident.
[19] Now the children.
[20] You and Ms M have seven children. You were brutally violent to six of the seven; the seventh was sent to live in Australia. And, the violence only ended when the children were removed by Social Welfare officers in 2015.
[21] A is your eldest. The evidence is clear he bore the brunt of your worst violence in relation to the children. You would regularly hit him with a leather belt, vacuum cleaner pole, jug cord, and garden hose. You also regularly punched him to the face. And kicked him. On at least one occasion, you threw him down a flight of stairs. On another, you threw a metal tin at his head. On occasions, you threw him against the wall. Your violence against A began when he was approximately 10. As with the other children, it continued until 2015, when he was taken away. He was then 15.
[22] I will not recite in detail your violence against the other five children. It is sufficient to observe you frequently assaulted all of them with a leather belt, and you regularly slapped B, C, D and E to the face. You would also kick F and throw him against the wall. All children were then young. You assaulted F from the age of eight; B from the age of six; C from when she was four; D from the age of three; and E from when she was toddler. It follows your violence formed a regular feature of their lives from when they were particularly vulnerable. And it lasted five years until they were removed from you.
Aggravating features
[23] Your offending exhibits many aggravating features—things that make it worse:
(a) First, it involved different forms of serious and permanent injury to
Ms M. You caused her to lose teeth, and much of her vision in one eye. You disfigured an ear. You left other obvious scars on her face and body, all of which were apparent in the trial photographs. And, you caused her to miscarry when you struck her with a car door to the stomach.
[24] Mr Kovacevich contends the evidence does not establish you did so beyond reasonable doubt. However, this outcome is likely implicit to the verdict. And in any event, I am sure your offending caused Ms M to miscarry given:
(i) Dr Whineray’s expert evidence.
(ii) The level of force you employed.
(iii) The direct application of force to the stomach.
(iv)The temporal link between its application and Ms M’s miscarriage.
[25] To return to aggravating factors:
(a) Second, you frequently used weapons against both Ms M and your children—anything and everything appears to have been used.
(b)Third, you frequently attacked Ms M to the head, and on occasions your eldest son A too. You would regularly punch him to the head.
(c) Fourth, all your victims were vulnerable, albeit in different ways:
(i)Ms M was undoubtedly a battered woman. You exercised complete control over her until approximately 2014. With one or two exceptions, you would not allow her medical treatment.
(ii)Your children were obviously vulnerable through age. And defenceless.1
(d)Fifth, you breached all victims’ trust. As your partner, Ms M was entitled to expect your protection. Your children were entitled to expect that too. You abused their trust in being violent to them on an almost daily basis.
(e) Sixth, some of your offending had a sadistic thread. You would make the children collect weapons for you to use against their mother.
Sometimes they would pretend they could not find what you had called for. When you pinned Ms M to the garage wall with your car, you watched her for approximately 10 minutes. She was crying and swearing in pain. You watched on.
(f) Seventh, you exercised extreme control over your family. As I have noted, with one or two exceptions, you did not permit medical attention. You controlled Ms M’s bank card or cards. You would make her sit outside in the cold. While she was on a course, you called her at the same time every day. She had to answer, through threat of violence, even though she was in class. Ironically, this is one of the actions that led to your incarceration. You would not permit simple things such as the children playing outside with other children. They had to remain in the house. You also instructed the children to lie to the authorities about your violence.2 And to demean their mother. You would encourage at least one of the children to call her mother a “slut”. The children often saw you assault their mother, and their brothers and sisters. The result was a climate of fear and control in a household dominated by your violence.
(g) Eighth, some of your offending was in breach of a protection order:
Ms M obtained a protection order in 2007.
(h)Ninth, your offending continued unabated for 16 years. The significance of this feature cannot be overstated.
[26] For completeness, Ms M and the children did not make victim impact statements. They want nothing more to do with you or the criminal justice process. It is highly likely to the point of being almost certain they have suffered in ways you cannot imagine, do not accept—or both.
Starting point
[27] Identifying the correct starting point for your sentence has not been without difficulty because:
(a) Cases of this kind often involve the commission of an offence with a
14-year maximum penalty, with the result there is obvious “head room”
for the sentence. And, an obvious lead sentence.
(b)Your offending appears to be of unprecedented seriousness, at least given this mix of charges. The lawyers have helpfully referred me to various cases, but all of these involve less serious offending and shorter offence periods.3 To be clear, all of the cited cases involve serious violence—just less serious than yours. For example, one of the cases involved offending described by the Judge as “about as bad as it gets”.4
Sadly, there is always a worse case. And for the moment yours is it. To briefly recapitulate, you brutalised Ms M for 16 years, permanently disfiguring her in several ways. And, you brutalised your children for five years, including with weapons, when some of them were especially young and vulnerable.
[28] Given the aggravating features, some of the wounding offences in relation to Ms M each qualify for a starting point approaching the statutory maximum of seven years’ imprisonment.5 The same is true of the assault with a weapon charges in relation to the children, each of which carries a five-year maximum penalty.
[29] Consequently, the Crown contends the totality of your offending—meaning all of it—in relation to Ms M should attract a starting point of 11 or 12 years’ imprisonment. Mr Kovacevich contends the applicable starting point should be lower:
between eight and 10 years’ imprisonment.
3 See Maihi v R [2016] NZCA 205 and the cases discussed therein. And M v R [2010] NZCA 94.
4 Rasmussen v R [2011] NZCA 626.
5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[30] I have sympathy for the Crown submission given the number and nature of charges, the long list of aggravating features, and the extraordinary period over which you committed your offending. But bad as your offending is, I consider the case law does not support the Crown’s range. Rather, it implies the applicable range in relation to Ms M lies between nine and 10 years’ imprisonment.
[31] To be clear, this range is still significant. It appears to be unprecedented, at least for this mix of charges. But it is required having regard to the seriousness of your offending, the nature and number of aggravating factors, and the period over which you committed serious acts of violence.
[32] I agree with the Crown’s contention your offending against the children, in isolation, would warrant a starting point of at least five years’ imprisonment.
[33] Downward adjustment is then required to avoid a disproportionately severe sentence well into double figures. But against this must be balanced the corollary of the same sentencing principle: the need to ensure the sentence reflects the seriousness of the totality of the offending. I adopt a global starting point of 12 years’ imprisonment.
[34] The Crown also contends there should be an uplift for your criminal record. However, Ms M appears to have been the primary victim of your earlier offending, your breaches of the 2007 protection order form charges in themselves, and the same order aggravates your violence. Moreover, the offences then identified by the Police in relation to Ms M were only the tip of the iceberg. For these reasons, a discrete uplift for your record risks double-counting. So, I make none.
Personal circumstances: mitigating factors?
[35] You are 46 years old. You were born in Samoa and raised there by your grandparents. You describe being physically disciplined as a child. But you also say the violence was “not too much”. You have lived in New Zealand since you were 20. You have worked from time to time. Your employment record appears to be haphazard.
[36] You have been examined by a psychologist and psychiatrist. Nothing stands out from their reports.
[37] Your criminal history implies difficulty with alcohol and violence. You assaulted Ms M in 2008 and breached the (2007) protection order; she did not then tell Police of your other violence against her and the children. Your record also discloses two other convictions for assault, a conviction for assaulting Police, and a conviction for threatening behaviour. None of these offences attracted significant penalty. However, they confirm a predisposition for violence.
[38] When confronted by the Police in relation to these allegations, you made some admissions. But your stance then hardened: you pleaded guilty to one charge during trial but defended the balance.
[39] I find you lack remorse. You told the writer of the pre-sentence report the victims had been “brainwashed” into believing you had harmed them. I pause and note throughout my remarks thus far you have shaken your head. The pre-sentence report offers a glimpse into your thinking. You said you often became frustrated the children were not being properly cared for by your partner. This in turn required your “intervention”. There is a measure of consensus you do not pose high risk to the public. But that cannot be true in relation to your family.
[40] You made a point at trial of questioning your children. You often told them you loved them. Their responses were largely the same: you would say that, but your actions suggested otherwise. You also made a point of identifying aspects of domestic life you believed portrayed you in a good light. For example, you wanted them properly fed and clothed. These features are not mitigating. It rings hollow to say you wanted the best for the victims when you hit them on an almost daily basis.
[41] There are no mitigating factors.
Minimum period
[42] The Crown seeks a minimum period of imprisonment. It contends it should be
10 years on the basis your sentence ought to be much higher than that. I have already rejected that argument.
[43] A minimum period of imprisonment may be imposed when the Court is satisfied parole eligibility after one-third of the sentence would be insufficient in terms of accountability, denunciation, deterrence or public protection.
[44] Mr Kovacevich submits a minimum period is not required, and parole should be left in the ordinary way to the Parole Board.
[45] I am satisfied a minimum period is essentially mandated given the seriousness of your offending, which as observed, is unprecedented for charges of this mix. And, exceptionally bad on any calculus. Half of the term is the least I can impose in the circumstances.
[46] One final thing. The sentences I am going to impose include cumulative sentences. These are structured to reflect the adjustment I have already foreshadowed to avoid a grossly disproportionate sentence. As has been said many times, the end sentence rather than its mechanics is what matters.
[47] Mr W, please stand:
(a) On charge 3; a charge of maiming Ms M with intent to injure her; you are sentenced to a term of five and a half years’ imprisonment.
(b)On charge 8, a charge of injuring Ms M with intent to injure; you are sentenced to a cumulative term of three and a half years’ imprisonment.
(c) On charge 35, a charge of assault with a weapon in relation to your son
A; you are sentenced to a cumulative term of three years’ imprisonment.
[48] To avoid doubt, all three of these sentences are cumulative on each other. The result is an effective sentence of 12 years’ imprisonment.
[49] As to the balance:
(a) In relation to the remaining charges of wounding with intent to injure; I sentence you to a term of five years’ imprisonment.
(b) In relation to the remaining charges of injuring with intent to injure; I
sentence you to a term of three years’ imprisonment.
(c) In relation to the remaining assault with a weapon charges; I sentence you to three years’ imprisonment.
(d) The assault with intent to injure charge; 18 months’ imprisonment.
(e) The six breach of protection order charges; two years’ imprisonment.
(f) The two male assaults female charges; 18 months’ imprisonment.
(g) The five assault on a child charges; 18 months’ imprisonment.
(h) And the two common assault charges; six months’ imprisonment.
[50] All of these remaining sentences are concurrent.
[51] To recapitulate, the result is a sentence of 12 years’ imprisonment. There will be a minimum period of six years.
[52] You may stand down.
……………………………..
Downs J
2