Reihana v Police

[2020] NZHC 1786

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-57

[2020] NZHC 1786

BETWEEN

MARK PETER BENNY MAIKA REIHANA
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 July 2020 (Heard at Tauranga)
Appearances:	R E Nabney for the appellant S J Revell for the respondent
Judgment:	22 July 2020

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

R E and W T Nabney, Barristers, Tauranga Pollett Legal, Crown Solicitor, Tauranga

REIHANA v NEW ZEALAND POLICE [2020] NZHC 1786 [22 July 2020]

What happened?

[1]    On 7 August 2019, Mr Mark Reihana, aged 38, had been in a relationship with his partner for about two years. She was 12 weeks pregnant. That day, he became angry trying to get belongings out of a jammed wardrobe door. He followed his partner into the kitchen and kicked the dining table over. He picked up a table leg which had broken off and threw it at his partner, hitting her lower leg and leaving a large red mark on her shin. She managed to get outside. As he left, Mr Reihana told her “you just wait bitch I’m gonna fucking kill you.” Throughout the day, he texted her saying “Touch my shit bitch and I’ll kick your head in” and “Fuck you, your dead bitch” and “fuck off bitch you wonder why I want to smash your face in”. The next morning, his partner found him asleep on the couch and, after another argument, called the Police and asked him to leave. Before leaving he said “you wait, I’m gonna get you, I’m gonna kill you.”

[2]    On 14 February 2020, Mr Reihana was on bail with conditions not to associate with, or have any contact, with his partner. Yet he turned up at her address and took her and her children, including the baby they have together, for a drive. After dropping off her older children at kindergarten, Mr Reihana got into an argument with his partner. He told her he was going to smash her head in and that she had it coming. He yelled at her and called her abusive names.

[3]    Mr Reihana pleaded guilty to assault with a weapon, threatening to kill and wilful damage in relation to the August 2019 offending and speaking threateningly in February 2020. These offences are punishable by maximum sentences of imprisonment of five years, seven years, three months and three months’ respectively. Mr Reihana has a significant criminal history dating back to 1999. Before the present offending, he had been convicted of five violent offences in the last five years, including for male assaults female and common assault. There had been two recorded previous family harm incidents between Mr Reihana and his partner before these incidents.

[4]    On 12 June 2020, in the Tauranga District Court, Judge T R Ingram sentenced Mr Reihana to one year and eight months’ imprisonment.1 He set a starting point of 15 months for the lead charge and uplifted that by six months for prior convictions.2 He uplifted it by two months for the February 2020 offending while on bail and gave a discount of three months for the guilty plea, noting it had not been entered promptly.3

Submissions

[5]    Mrs Nabney, for Mr Reihana, submits the starting point for the August 2019 offending was too high because there were not three aggravating features. She submits there was no attack to the head, no pre-meditation and only fleeting use of a weapon, causing much less serious injury which was not an aggravating factor. She acknowledges the vulnerability due to pregnancy. She submits the starting point for all those 2019 offences should have been no more than six to nine months. She submits the uplift of 40 per cent for previous offences was not proportionate and it should not have exceeded two months. She submits the two-month uplift for the February 2020 offence was excessive and one month was required, at most. She submits, overall, a sentence around eight months or in the range of seven and a half to 10 months would have been appropriate and the 20-month sentence was manifestly excessive. She submits rehabilitation can take place in the community.

[6]    Mr Revell, for the Crown, submits the Judge did not materially err and the correct sentence was imposed. He submits there were three aggravating factors to the assault with a weapon: use of a weapon, victim vulnerability (being 12 weeks pregnant) and injuries  and  cited  other  cases.4  He  submits  the  starting  point  of 15 months for all of the August 2019 offences, the six months uplift for previous relevant and recent offending, and the two month cumulative sentence for the February 2020 offending were all “stern, but within range”. He acknowledges issue can be taken with the overall elements of the sentence but is up to me to stand back and examine the end sentence overall in totality.

1      New Zealand Police v Reihana [2020] NZDC 10976.

2 At [5].

3 At [7].

4      Mohib v New Zealand Police [2017] NZHC 123; Edmonson v Police [2015] NZHC 3184; Barrett v Police [2014] NZHC 1259.

Should Mr Reihana’s appeal succeed?

[7]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. My focus is on whether the end sentence is within the available range. There is no tariff case for assault with a weapon, but factors from R v Taueki and Nuku v R can be taken into account.5

[8]    Any family violence is serious. But the cases cited by Mr Revell involved appreciably more prolonged and serious assaults with more serious weapons; a hammer, a carving fork and an aluminium baseball bat in family violence contexts. The starting points in those cases, for assault with a weapon, were 15, 14 and 12 months respectively. I agree with Mrs Nabney that the use of a weapon was relatively fleeting, was not pre-meditated and the injuries not particularly serious. But, being 12 weeks pregnant, the victim was particularly vulnerable. I would set a starting point of nine months for the assault with a weapon charge and uplift it by three months for threatening to kill and wilful damage, so a starting point of 12 months for the August 2019 offending. I consider the 15-month starting point adopted in the District Court was an error.

[9]    I also consider the 40 per cent uplift, of six months, for previous convictions to be disproportionate. The convictions are relevant and some are recent. But I would uplift the 12-month starting point by three months for the  previous  convictions.  The uplift of two months for the February 2020 offending while on bail for offending against the victim, with a condition not to associate with her and in the presence of their baby, is within range. The discount of three months for the guilty plea is not challenged. But, following Moses v R, in the Court of Appeal recently, it must now be a discount from the starting point.6

5      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372; Nuku v R [2012] NZCA 584, [2013] 2 NZLR

39.

6      Moses v R [2020] NZCA 296.

[10]   Accordingly, I uphold the appeal. I set aside the sentence of one year and eight months’ imprisonment imposed by the District Court, and impose instead a sentence of one year and two months’ imprisonment.

Palmer J

Postscript: After I delivered the above judgment, my attention was drawn to the fact that the Judge made directions for special release conditions to apply, after the sentence expiry date, as per a pre-sentence report. For the avoidance of doubt, that aspect of the District Court’s decision remains intact.