Rautahi v R
[2011] NZCA 351
•28 July 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA78/2011 [2011] NZCA 351 |
| BETWEEN TYRONE RAUTAHI |
| AND THE QUEEN |
| Hearing: 27 June 2011 |
| Court: Wild, Rodney Hansen and MacKenzie JJ |
| Counsel: Appellant by written submissions |
| Judgment: 28 July 2011 at 2.15 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant appeals against a sentence of six years imprisonment imposed by Judge MacAskill in the District Court at Invercargill following his conviction at trial on two counts of threatening to kill and one count of wounding with intent to cause grievous bodily harm. The appellant initially appealed against both conviction and sentence. He advised by letter that he wished to drop his appeal against conviction. Notice of abandonment was received on 26 May 2011. The appellant also confirmed that he did not wish to attend Court when the appeal was heard, and would rely on his written submissions.
Facts
The charges arose from two incidents, on 8 May and 5 June 2009. The victim was the appellant’s wife, whom he was separated from but staying overnight with on 8 May. At about 2am the victim received a text message on her mobile phone. The appellant reacted in an agitated manner and the victim told him to leave the property. He went to the kitchen and got a small handled axe. He began smashing furniture in the lounge. He pushed and punched the victim and verbally abused her. The victim’s eight year old daughter saw her father with the axe from where she sat alone and crying in her bedroom. The incident continued for about an hour and a half until the appellant demanded that the victim drive him to his home, which she did, leaving her eight year old daughter home alone. In the car the appellant smashed her cellphone and told her never to contact him again.
On Friday 5 June the victim was at home with her teenage son and two of his friends when the appellant came and knocked at the front door. When she answered it she found him agitated and angry and yelling at her. He grabbed her by the arm and urged her into the master bedroom. He then went to the lounge and yelled at the son and friends. There was a verbal confrontation between the appellant and his son which stopped when the victim intervened. The son left the property, and when the victim’s eight year old daughter and friend arrived the victim sent them away. The appellant remained at the house with the victim. He repeatedly punched her about the head using both fists, continuing to punch after she had fallen to the floor. He picked up a piece of firewood and ran towards the victim threatening to kill her. He hit her with the firewood several times, causing open wounds to her head and fingers. The victim called an ambulance and her parents arrived and the appellant left the property.
The Judge’s sentencing
The Judge described the facts in some detail. He described the case against the appellant at trial as overwhelming. He commented on the appellant’s conduct of his defence, which involved attacking the victim’s character at every opportunity, with any pretext, and endeavouring to humiliate and embarrass her. The Judge described the aggravating features of the offending, relating particularly to the incident on 5 June. First, the victim was vulnerable and became more so when the appellant calculatedly sent the son and his friends away. Second, the victim’s wounds were serious (the Judge described the appellant as fortunate that they were not more serious or even fatal). Third, the appellant’s very serious violence. Fourth, the use of the weapon in the form of a block of firewood. Fifth, his attack was to the victim’s head.
As to personal aggravating factors, the Judge noted that the appellant is a recidivist offender who has received numerous sentences of imprisonment, including for violent offending, although he noted that it was 20 years since the last appearance for serious violence and 15 years since the last very serious offence. He noted that the pre-sentence report writer advised that the appellant did not regard himself as a repeat violent offender who might benefit from a violence prevention programme, and that the appellant was therefore not prepared to address the issues underlying his serious violent offending.
As to personal mitigating factors, the Judge agreed with the appellant’s assessment of himself as a talented man with potentially a great deal to offer to the community. He complimented the appellant on the presentation of his plea in mitigation which had resulted in the prosecutor realistically acknowledging that the Crown’s starting point for sentencing might be a little high.
The Judge assessed the offending as being at the lower end of band 2 in R v Taueki.[1] In doing so he acknowledged the appellant’s submission that the injuries were less serious than those in some other cases. He described factors saving the appellant from a higher starting point as being a lack of premeditation and the degree of seriousness of the injuries. He adopted a starting point of five and a half years which he uplifted by six months on account of the appellant’s record. There were no mitigating factors so that the total sentence was one of six years. He imposed a minimum period of imprisonment of three years.
Submissions
[1] R v Taueki [2005] 3 NZLR 372 (CA).
In his submissions, the appellant refers to four cases which he submits support his submission that the sentence was excessive. He refers to the three years imposed on Mr Glass in R v McCulloch.[2] He refers also to the five years imposed in R v Williams,[3] and says that the Crown had agreed at his sentencing that his conduct was nowhere near as violent as Mr Williams’. He also refers to R v Ormsby,[4] and R v Fulton.[5] He submits that his sentence is manifestly excessive compared to all these other sentences.
[2] R v McCulloch HC Invercargill CRI-2009-025-4683, 3 December 2010.
[3] R v Williams [2009] NZCA 55.
[4] R v Ormsby HC Napier CRI-2003-020-5950, 29 October 2004.
[5] R v Fulton DC Invercargill CRI-2009-025-729, 11 November 2009.
He further submits that the victim had claimed that she had some 18 stitches in her fingers whereas the appellant produced a statement from the attending doctor that she had received five stitches. The Judge had commented on this, saying that he did not think the victim was trying to deceive the Court. The appellant submits that this shows bias in favour of the victim. He submits that the number of stitches was important in sentencing. He submits that there was no medical evidence and too much weight was given to the victim’s statements as to the extent of her injuries.
He further submits that it was unfair that he was sentenced for all three alleged blows to the head when there was only one injury to the victim’s head. He submits that he had asked the Judge to consider that there were fewer than three blows. He submits that the Judge admitted a letter from the victim, attached to the victim impact statement, and that this was unfair as he did not have a chance to read it prior to sentencing. The appellant also says that he has very severe reservations concerning his probation report and the statement that he has an “extensive violent offending history”. He challenges that statement on the basis that his last assault prior to this offending was nearly 20 years ago. As to the comments in the report about the violence prevention unit at Rimutaka, he submits that since being sentenced he has been assessed and does not fit into any category to make him eligible for the Rimutaka violence prevention unit. He submits that, for three reasons, his sentence of six years is manifestly excessive.
Counsel for the Crown submits that having regard to Taueki the sentence imposed was clearly within the range available. Counsel submits that, while the Judge imposed concurrent sentences for the two incidents, it would have been open to him to have imposed a cumulative sentence for the June offending albeit for a lesser term having regard to the totality principle.
Discussion
The appellant’s submissions give rise to three issues which it is necessary to address:
(a)The appropriateness of the starting point, particularly having regard to the cases to which Mr Rautahi has referred;
(b)The way the impact on the victim was addressed in the sentencing process; and
(c)The uplift for previous convictions.
(a) Starting point
The Judge said that he did not attempt to analyse the sentencing precedents advanced by the appellant, or the Crown. Each case must depend on its own facts and a sentencing court should be guided by decisions of the Court of Appeal.
The Judge was correct in that approach. However, in view of the appellant’s reliance on the decisions to which he referred, some comment on them is appropriate.
In McCulloch, there were multiple offenders involved in a serious attack on the victim using a hammer and an axe as well as physical violence. The Judge had opted for a starting point of seven years for the principal offender. For Mr Glass, on whose sentence Mr Rautahi relies, the Judge described his culpability for the purpose of sentencing as being the providing of both the axe and a measure of encouragement, and having accompanied the group to the address. He was not involved in the physical attack, disassociated himself once they had arrived at the address and did not provide any encouragement at that point. The Judge adopted a starting point of three and a half years for Mr Glass. In those circumstances, we do not think that Mr Glass’ sentence provides a proper basis for comparison.
Williams was a Solicitor-General’s appeal against a sentence of three and a half years where the victim was struck several times to the head with a nine inch iron bar causing cuts and abrasions and concussion requiring hospitalisation. We accept the appellant’s submission that that offending was more serious than the appellant’s. The Court disagreed with the sentencing Judge’s starting point near the bottom of band 1 of Taueki and held that a starting point either at the top of band 1 or the bottom of band 2, within the range of five to six years, was indicated. The sentence of three and a half years was held to be contrary to principle and manifestly inadequate. A sentence of five years was substituted. The usual practice on a Solicitor-General’s appeal is to increase the sentence only to the bottom of the available range. The starting point in the range of five to six years in that case, is to be compared with the starting point of five and a half years in this case.
In Fulton, the sentencing Judge adopted a starting point of six and a half years’ imprisonment where the offender struck the victim in the head once with an aluminium baseball bat and also struck the left side of the body when the victim was on the ground. The victim suffered a fractured skull, bleeding to the brain and bruising to the back. That was clearly more serious offending than the present case, where a starting point of five years six months was adopted.
In Ormsby, a sentence of preventive detention was imposed. The sentencing Judge indicated that a starting point of nine years would have been appropriate. We do not find assistance from that case in determining a comparable sentence.
We have dealt with these cases at some length because of the appellant’s reliance on them. We must also examine the approach that the Judge adopted. He noted the aggravating features of the offending as we have summarised them in [4]. He concluded that he should start at the lower end of band 2 of Taueki. The type of domestic assault which falls in band 2 is described at [39](c) of Taueki.
Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.
That may be compared with the type of domestic assault which falls within band 1, described in [37](b):
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 four 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 five years or more.
In this case, the incident on 5 June was premeditated, in that the appellant had gone to visit the victim in an agitated state. It involved the use of a weapon. It involved injury which required surgical attention, even at the lower end submitted by the appellant. Further, the earlier incident on 8 May needed to be taken into account in assessing the totality of the offending. This offending fell within band 2, as the Judge held. Starting points for that band are in the range of five to ten years. Even if the case were treated as falling within band 1, the more serious incident on 5 June had a degree of premeditation, and the use of a weapon, which could lead to a starting point of perhaps five years or more. An addition of six months for the 8 May incident would be justified, to reflect the totality of the offending.
For these reasons, we consider that the starting point was within the available range.
(b) The effect on the victim
Mr Rautahi submits that the Judge placed undue weight on the victim’s description of her injuries in the victim impact statement. She said that she received a 15 centimetre split in her scalp which was eight centimetres deep and needed to be stapled together using 11 staples. She said that two fingers on her right hand required eight to nine stitches each. He also submits that it is unfair that he was sentenced for all three alleged blows to the head as he said that it was proved that one hit was to the hand.
As to the number of staples required to the cuts, the Judge relied upon the medical reports. He noted that the appellant disputed the number of staples required for the cut to the head, and that the fingers of the right hand required five butterfly closures rather than the eight or nine mentioned by the victim. He did not regard those differences as being of any significance. Any error by the victim in reporting the number of stitches was therefore not material to the Judge’s sentencing process.
As trial judge, the Judge was entitled to form the view that he did as to the number of blows. He said that the appellant forcibly hit the victim over the head with the piece of fire wood three times. The Crown case was that three blows were aimed at the head, and that the victim was using her hands to protect her head. In those circumstances, it was not material, in fixing the starting point, whether the victim did succeed in protecting her head from one of the blows. There is no indication of any bias in favour of the victim, or against the appellant, as he asserts.
(c) Previous convictions
In imposing an uplift of six months on account of the appellant’s offending record the Judge said:[6]
As to aggravating factors relating to you personally. You are a recidivist offender. Your record dates back to the Youth Court in 1982 and to the District Court in 1984. Most of your serious offences are burglaries, but your record includes assaults, male assaults female, and threatening behaviour. You have received numerous sentences of imprisonment, including imprisonment for violence. However, I take into account some time has passed, 20 years was the figure you suggested a moment ago, since you last appeared for serious violence, and 15 years since the last very serious offence.
[6] R v Rautahi DC Invercargill CRI-2009-025-002287, 24 January 2011 at [10].
Previous convictions are a relevant aggravating factor, which the Court must take into account to the extent applicable, under s 9(1)(j) of the Sentencing Act 2002:
(1)In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
…
(j)the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.
The sentencing Court must reconcile two potentially competing principles: the principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other. Section 9(1)(j) is a statutory reflection of a longstanding principle of sentencing. In R v Filo, this Court said:[7]
… Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at 597:
… the previous convictions of a prisoner may indicate a prediliction (sic) to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.
[7] R v Filo [2007] NZCA 20 at [21]-[22].
In this case, as the Judge noted, the relevant previous offending was not recent. There were several convictions for assaults of various types, over the period 1984 to 1991. We consider that the age of that offending is such that no uplift for the protective purpose referred to in R v Casey[8] was appropriate. The other offending is extensive, but unrelated in type. As the Judge said, most of the serious offences are burglaries. It extends across the full 26 year period of the appellant’s adult life. We consider that it does justify a limited uplift to reflect the appellant’s character. The extent of the uplift must be constrained by the need to avoid punishing again for previous offending. The Judge imposed an uplift of six months. We consider that that is at the upper end of the available range for uplift. We are not persuaded that it has resulted in a sentence which is manifestly excessive.
Result
[8] R v Casey [1931] NZLR 594 (CA).
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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