Rawiri v Police
[2018] NZHC 1439
•14 June 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000023
[2018] NZHC 1439
BETWEEN AROKA RAWIRI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 June 2018 Appearances:
C G Nolan for Appellant
C J Bernhardt for Respondent
Judgment:
14 June 2018
ORAL JUDGMENT OF GENDALL J
[1] On 26 February 2018 Judge Saunders in the District Court sentenced the appellant Aroka Rawiri, along with a co-offender, to 13 months’ imprisonment after she pleaded guilty to assault with intent to injure. This is to be served cumulatively on the prison sentence of six years, 10 months the appellant is currently serving for kidnapping, aggravated burglary and robbery.
[2] The appellant appeals the sentence imposed by Judge Saunders on the basis that it is manifestly excessive.
[3] A preliminary issue arises here. While this offending occurred at Christchurch Women’s Prison, according to the Provision of Advice to Courts the appellant identifies as a man. Mr Nolan, counsel for the appellant, however, indicated to me at the outset of this hearing that for present purposes the appellant can be referred to
RAWIRI v NZ POLICE [2018] NZHC 1439 [14 June 2018]
using “she” or “her” pronouns. This judgment will therefore proceed on the basis that “she” and “her” pronouns are used. No disrespect is intended by this.
[4] Turning to the facts in this matter, the appellant, the co-offender and the victim were all sentenced prisoners in Wing 1 at Christchurch Women’s Prison. On 15 November 2017, the appellant and her co-offender entered the Wing 1 courtyard and directly approached the victim. After some animated conversation, the appellant turned and punched the victim with some force while both were seated. The victim and the appellant traded blows until the co-offender pulled the victim by the hair into the Unit lounge. The appellant then kneed and kicked the victim. This continued for some time until the victim broke away. As the victim started to leave the lounge the co-offender punched the victim to the face and continued with a flurry of punches and kicks until other prisoners came to the victim’s aid.
[5] The victim declined to make a complaint or to discuss the incident with police. She presented the following day, however, with a headache, bruising on both cheeks, lumps on her forehead, injuries to the side of her neck and soreness all over her body.
[6] Turning now to the District Court decision, Judge Saunders sentenced both the appellant and her co-offender at the same time. The maximum penalty for assault with intent to injure is three years’ imprisonment. With reference to the aggravating feature which Judge Saunders said was attacks by way of kicks and punches to the head, His Honour adopted a mid-range starting point of 18 months’ imprisonment.
[7] Judge Saunders then considered imposing an uplift for the appellant’s criminal history but declined to do so. His Honour expressed concern about the effect of an uplift on the time spent in custody, given both offenders are under strike warnings.
[8] After then giving a full 25 per cent credit for their early guilty pleas Judge Saunders sentenced both the appellant and her co-offender to 13 months’ imprisonment to be served cumulatively on their current sentences.
[9] Turning now to the principles to be applied on appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be
determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed and I refer to ss 250(2) and (3) of the Act.1 As the Court of Appeal stated in Tutakangahau,2 an appellate Court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is manifestly excessive and not justified by the relevant sentencing principles.
Submissions
Appellant’s submissions
[10] Turning now to the appellant’s submissions on this appeal, counsel for the appellant submits that the end sentence here is manifestly excessive as the starting point adopted was too high considering the circumstances of the offending and the relevant case law.
[11] Before me, Mr Nolan, counsel for the appellant, submitted that Judge Saunders erred here in deeming punches and kicks to the head as an aggravating factor when the summary of facts on which the appellant’s guilty plea was based did not include mention of this.
[12] Counsel contends that as the injuries sustained by the victim turned out to be relatively minor and the offending was not prolonged, the seriousness of the attack did not justify the sentence imposed.
[13] There is no guideline judgment for assault with intent to injure. Counsel referred me to a number of cases with similar facts to contrast the starting point of 18 months’ imprisonment adopted here.
1 Criminal Procedure Act 2011 ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[14] In Taingahue v Police,3 a Court of Appeal decision of 2014, Mr Taingahue punched his wife in the face while she was sitting in their car. She turned away and he punched her three or four more times in the back of the head before grabbing her by the hair and punching her several more times in the face. She got out of the car but he grabbed her by the hair again and pulled her to the ground before she managed to escape. The victim suffered cuts around the nose and eyes, a broken tooth, a sore neck and head pain. On appeal, the High Court substituted a starting point of 18 months’ imprisonment with one of 12 months.
[15] The next authority referred to me, Te Whata v Police,4 involved a situation where Mr Te Whata got into a drunken argument with an associate. The other man went to leave but was brought to the ground by Mr Te Whata striking him with a stiff arm. Standing over the victim, Mr Te Whata said “If I go down I’m going to kill you.” He pulled the victim’s jersey over his head and began kicking him about the head. He kicked him approximately 10 times before the victim escaped and contacted police. The victim suffered a broken nose. The High Court decreased the starting point for this offending from two years, six months to 15 months’ imprisonment.
[16] In Finiki v Police,5 a 2011 High Court decision, Mr Finiki assaulted his former partner while they were both in a car by punching her three or four times to the face and head area. The victim sustained a black eye, a possible broken nose and four chipped and broken teeth. The High Court, on appeal, rejected a starting point of 18 months’ imprisonment and substituted one of 15 months’ imprisonment.
[17] With these decisions in mind, accordingly, counsel for the appellant before me submitted that an appropriate starting point for the offending at hand is in the range of only 10 to 12 months’ imprisonment. After applying the appellant’s guilty plea an appropriate final sentence, according to Mr Nolan, would be a term of eight to 10 months’ imprisonment.
3 Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.
4 Te Whata v Police HC Auckland CRI-2011-404-135, 1 August 2011.
5 Finiki v Police HC Christchurch CRI-2011-409-38, 3 June 2011.
Respondent’s submissions
[18] Turning now to the respondent’s submissions advanced before me, Mr Bernhardt, for the Crown, submits in response, that the Judge was entitled to take attacks to the head as an aggravating feature of the offending here, even though it seems these were meted out by the appellant’s co-offender. Moreover, Mr Nolan says that Judge Saunders could have taken the fact that these incidents involved multiple attackers into account. Thus, the starting point he suggests was, in fact, a generous one.
[19] Counsel for the respondent referred to a 2013 High Court decision Mori v Police.6 In that case Ms Mori and her co-offender had been out drinking and on the way home made an unprovoked attack on a middle-aged woman they did not know. The co-offender began the attack and Ms Mori joined in, hitting the victim in the head and later punching her and kicking her until she fell to the ground. The victim was particularly vulnerable as she had recently had surgery. She suffered extensive bruising and abrasions and was traumatised by the attack. A starting point of 18 months’ imprisonment was upheld by the High Court on appeal.
[20] Counsel also referred to Kojeunikov v Police,7 a 2013 High Court decision. In that case Mr Kojeunikov had a verbal altercation with someone he knew in the parking lot of a shopping centre. The altercation escalated to Mr Kojeunikov punching the victim in the head, knocking him to the ground and then kicking him. The injuries were minor, including swelling and minor abrasions to the forehead. The High Court held the appropriate starting point was 12 months’ imprisonment.
[21] Before me, Mr Bernhardt submitted that the offending in the instant case was most similar to that which occurred in Mori.8 He suggested it was prolonged and involved multiple offenders. As such, Mr Bernhardt contended that no issue can be taken with the 18 months starting point.
6 Mori v Police [2013] NZHC 225.
7 Kojeunikov v Police [2013] NZHC 551.
8 Mori v Police, above n 6.
[22] Counsel further suggested that Judge Saunders would have been entitled to uplift the sentence for aggravating features personal to the appellant but was generous in deciding not to do so. The appellant does have a number of previous violent convictions and an uplift would have been warranted, given that she was subject to sentence at the time, according to Mr Bernhardt. The Judge was therefore lenient in not uplifting the sentence further.
[23] Finally, the Crown position is that the Judge was correct in not providing any further discount for totality. Where an offender is serving a sentence for separate serious offending, the application of the totality principle to the cumulative term imposed on serious offending while in prison is limited. And on that he referred me to the decision in R v Connelly.9
[24] Overall, the Crown position on this appeal, therefore, was that the end sentence imposed by Judge Saunders was within range and could not be regarded as manifestly excessive.
Analysis
[25] Turning now to my analysis in this matter, the appellant’s submissions give rise to two main arguments. The first, is that the Judge was wrong to treat both co- offenders here alike when sentencing them and, the second, is that the appellant’s sentence was manifestly excessive compared with similar cases.
[26] In his decision in the District Court Judge Saunders applied his judgment equally to both offenders. The appellant’s major submission appears to be that, because the summary of facts only references the appellant’s co-offender as striking the victim to the head and not the appellant, attacks to the head should not have been an aggravating factor in the appellant’s offending. The appellant relied, too, on that summary of facts when she made her decision to plead guilty. Thus, the two co- offenders, it is said, should have been dealt with separately. In my view, there is substance in this argument.
9 R v Connelly [2010] NZCA 52.
[27] Next, I note particularly that the summary of facts does not specify where on her body the appellant struck the victim. It records that the appellant punched the victim with a forceful right punch, traded blows with the victim and later kneed and kicked the victim. However, the two co-offenders were clearly working together with a common purpose. The appellant does not appear to have made any attempt to stop her co-offender when she began attacking the victim’s head and face. Without a clearer delineation in roles between the two co-offenders it is arguable that it is not appropriate to allow the appellant a more lenient sentence on only a strict reading of the summary of facts. However, in my view, this argument is a finely balanced one.
[28] Turning to the second point at issue, which is whether the starting point adopted by Judge Saunders was too high relative to other decisions of this and other courts, it does appear to me that the 18 months’ starting point adopted is at the upper end of the spectrum here for similar offending. The injuries sustained by the victim in this case were relatively minor in the overall scheme of things. While the actual injuries sustained are not determinative of the gravity of an offence, they are important in determining the level of violence involved, and I refer to Kojeunikov10 with respect to that.
[29] Only one of the cases referred to me by counsel here appeared to involve multiple offenders. This was Mori11 in which an 18 months starting point was upheld. However, whether a wholly unprovoked violent attack on a vulnerable stranger in the middle of the night is equivalent to a fight between inmates, in my view, is somewhat questionable. The Court of Appeal held in Tryselaar v R,12 a 2012 decision:
Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response.
[30] Notwithstanding this, however, I remain to be convinced that the assault here demands the same level of reprobation as the offending in Mori did. I see the offending here in a more similar class to that which occurred in Taingahue.13 An extended family
10 Kojeunikov v Police, above n 7.
11 Mori v Police, above n 6.
12 Tryselaar v R [2012] NZCA 353 at [18].
13 Taingahue v Police, above n 3.
violence attack focused on the head with slightly more serious injuries might be seen as having either a similar or perhaps even a more serious level of aggravating features as an extended prison attack with two co-offenders. Comparisons in this area are always difficult, however.
[31] Nevertheless, as such I consider that in this case a starting point of 12 months’ imprisonment would have been appropriate. Although perhaps this is at the lower end of the available range, in my view, the learned District Court Judge erred by not adopting a starting point at this level. With a full 25 per cent credit for the early guilty plea, that would take the final sentence to one of nine months’ imprisonment.
[32] With that said, it is true that it was open for the Judge to uplift the starting point for the appellant’s offending history, which he did not do. Judge Saunders gave his reason for not doing so as “both of [the offenders] are under strike warnings and that will have some impact, I believe, on the time you spend in custody”. Although this was perhaps generous in the circumstances here, I am satisfied that no uplifting for offending history is necessarily required.
[33] There was no challenge to Judge Saunders’ decision for this sentence to be served cumulatively on the appellant’s existing sentence.
Conclusion
[34] In conclusion, I hold that this appeal therefore must be allowed. This is only on the basis that the starting point was too high with regard to comparable cases. The final sentence imposed in the District Court of 13 months’ imprisonment is quashed. A sentence of nine months’ imprisonment to be served cumulatively on the appellant’s existing sentence is imposed in its place.
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Gendall J
Solicitors:
Anselm Williams, Barrister, Christchurch Raymond Donnelly & Co, Christchurch
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