Rewa v Police

[2015] NZHC 2459

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000085 [2015] NZHC 2459

BETWEEN

CAMERON LEE REWA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 October 2015
Appearances:	C A Morgan for Appellant K B Bell for Crown
Judgment:	8 October 2015

JUDGMENT OF DUNNINGHAM J

[1]      Mr  Cameron  Rewa  appeals  his  sentence  of  one  year,  nine  months’ imprisonment imposed by Judge MacAskill for one charge of injuring with intent to injure,1 on the basis that the sentence was manifestly excessive.

Background facts

[2]      The facts which gave rise to this charge occurred in the early morning hours of 13 December 2014.  Mr Rewa was drinking with associates at the time and was heavily intoxicated.

[3]      At about 2.30 am, the 50 year old victim was walking on the opposite side of the road.  He yelled out to Mr Rewa, inquiring as to what bars were open.  Mr Rewa responded abusively, crossed the road, and punched the victim once in the face without warning.  The force of the blow rendered him unconscious and caused him

to fall to the ground and strike his head.

1      New Zealand Police v Rewa [2015] NZDC 15414.

[4]      The  victim  was  admitted  to  hospital,  where  he  received  treatment  for concussion, a fractured eye socket and a large laceration to the back of his head.  The laceration required  around 12 stitches.   Surgery was ultimately required for the fractured eye socket, involving the insertion of a titanium mesh.

Principles applying to appeal

[5]      Mr Rewa may appeal his sentence as of right.   Pursuant to s 250 of the

Criminal Procedure Act 2011, he must show that:

(a)       there was an error in the sentence (for any reason); and

(b)      a different sentence should be imposed.

[6]      The Court of Appeal has confirmed that an accepted ground of error is where the sentence is  “manifestly excessive”,  notwithstanding that  there is  no  express reference to this in s 250.2

The District Court sentencing

[7]      In  adopting  a  starting  point  of  two  years,  six  months’  imprisonment, Judge MacAskill considered the aggravating factors to be that it was an attack which took a vulnerable victim by surprise and the attack was completely unprovoked.  He noted that the fact that there was only one hit did not reduce culpability substantially, because he saw the objective of such street assaults was to “win” by incapacitating the victim by knocking him down.

[8]      No uplift for previous convictions was applied, but equally, despite a letter of apology to the victim, he did not consider that the remorse justified any reduction of sentence beyond that given for Mr Rewa’s guilty plea.  There was however an uplift of two months to account for the fact the offending occurring while Mr Rewa was already subject to a sentence.  From the adjusted figure of two years, eight months, a

discount  of  four  months  was  applied  to  recognise  Mr  Rewa’s  attempts  at

2      Tutakangahou v R [2014] NZCA 279.

rehabilitation, and then a further full 25 per cent discount was applied for the guilty plea reducing the sentence to imprisonment of one year and nine months.

[9]      Judge MacAskill did not consider any sentence less than imprisonment to be appropriate given the primacy of deterrence and denunciation.   As such, leave to convert to home detention was declined.

Pre sentence report

[10]     The  report  prepared  by  the  Department  of  Corrections  discloses  that Mr Rewa  was  then  demonstrating  good  compliance  with  standard  and  special conditions, and no barriers to compliance with a community-based sentence had been identified.  He had also attended programmes to address the base causes of his offending,  and  had  demonstrated  motivation  to  change.    A  sentence  of  home detention was recommended.

Discussion

[11]     In the defendant’s written submissions, counsel made two key points.  The first was that the starting point was excessive having regard to analogous cases. Second, the Judge erred in declining to sentence Mr Rewa to home detention, when such a sentence was open to him in light of s 16(1) of the Sentencing Act.

Starting point

[12]     In assessing the appropriateness of the starting point, counsel have referred to several cases.  The first, in Hall v R, involved an appeal against a sentence imposed on one charge each of injuring with intent to injure and assault with intent to injure.3

In that case the events took place at a bar.  Mr Hall, who was intoxicated, approached the victim and asked him if he wanted a “rumble”, which the victim declined. Mr Hall nonetheless punched the victim in the face, knocking off his glasses, and then proceeded to grab him by the shirt and punch him multiple times in the face. He and his associates also tackled the victim to the ground and began kicking him

about the body and head, even when the victim was unconscious.

3      Hall v R [2015] NZCA 249.

[13]     The  District  Court  took  a  starting  point  of  two  years,  six  months’ imprisonment.  On appeal, the Court of Appeal stated the starting point was open to the Judge and that a higher starting point could have been taken.

[14]     Elizalde v Police also involved an appeal against sentence in relation to a charge of injuring with intent to injure.4    Mr Elizalde was drinking at a bar in the early hours of one morning, when he took umbrage with the victim talking to a woman with whom Mr Elizalde “had a connection”.5     When the victim was not looking he punched him once in the side of the face with a closed fist.  This caused the victim to stumble back in shock.  When the victim was transferred to hospital, it was  discovered  his  jaw  was  broken  in  two  places  and  required  surgery  which involved numerous stitches and the insertion of three metal plates.

[15]     After assessing the features of the case, Asher J was of the view that the only seriously aggravating feature was the hard and unexpected punch, which inflicted “moderate injury”.  The starting point of two years, six months’ imprisonment taken in the District Court was substituted with a starting point of two years, one month’s imprisonment.  Asher J seems to have been influenced by the fact that there was no weapon and no repeat blows.

[16]     In Elizalde v Police, Asher J referred to two other cases, describing them in these terms:6

… I note that in Tiplady-Koroheke v R a two year starting point was accepted by the Court of Appeal where the appellant had punched the victim in the head at a party, and where four associates had joined in the assault, and when the victim was on the ground there was repeated kicking to the head and stomach. The victim suffered a broken eye socket and severe bruising. The culpability of that offending was higher than the present.

In Dean v Police, there was an unprovoked attack, pushing a victim in the back, punching him in the face and causing him to fall to the ground, and then  a  further  five  punches  to  the  victim's  face  and  a  stomping on  the victim's head. The victim lost consciousness for a period during the assault and suffered contusions to the eye, abrasions to the lips, face and head and a partial tear of the mouth. The starting point there was fixed at two years'

4      Elizalde v Police [2015] NZHC 959.

5 At [1].

6      At [19]–[20], citing Tiplady-Koroheke v R [2012] NZCA 477; Dean v Police [2014] NZHC

1542.

imprisonment.   That   offending   was   also   more   serious   than   that   of

Mr Elizalde.

[17]     Having regard to these cases, and the tariff decisions Nuku v R and R v Taukei,  I consider  that  the starting point  adopted is out of step with  analogous authorities.7     In my view, the offending is less serious than that in the Court of Appeal decision in Hall v R and comparable with that in the decision in Elizalde v Police.  While counsel for the respondent emphasised that, in Elizalde, the victim did not in fact fall to the ground, whereas in the present case, Mr Rewa knocked the victim unconscious, it seems to me that the injuries inflicted were similar, as was the manner in which the blow was struck.  I also note that in Elizalde, an attempt was

made to strike the victim again which was only stopped by a member of the public which was not the case here.

[18]     I therefore consider that the appropriate starting point, should be two years, one month’s imprisonment, which is consistent with the parties submissions in the District Court.

[19]     In light of this adjustment, I then follow the District Court Judge’s sentencing process.  The starting point of 25 months is adjusted by an uplift of two months to account for offending whilst subject to a sentence, and discounted by four months to account for Mr Rewa’s attempts at rehabilitation to reach an adjusted starting point of 23 months’ imprisonment.  With a full 25 per cent discount for his guilty plea, this would lead to a final sentence of 17 months’ imprisonment.

Home detention

[20]     As the sentence is reduced from 21 months to 17 months, I consider this is a sufficient  difference  to  be  satisfied  that  the  original  sentence  was  manifestly excessive and a different sentence should be imposed.  This means the question of

home detention is once more live.

7      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; Taueki v R [2005] 3 NZLR 372 (CA).

[21]     While I accept the respondent’s submission that the introduction of home detention has not removed a short term of imprisonment as a sentencing option,8 equally, as was said in Iosefa,9 I accept that home detention is a punitive and serious sentence in its own right.   Furthermore, there is a clear legislative policy to keep offenders in the community to the extent possible and to assist in their rehabilitation and reintegration into society.

[22]     Mr Rewa’s offending is clearly very serious and cannot be condoned.  Any sentence imposed must reflect this and recognise the harm to the victim.  But telling against imprisonment, in my view, are the following features:

(a)       Mr Rewa’s comparably youth at 25 years of age;

(b)the fact he has never before been convicted of a violence offence. The offending is clearly out of character;

(c)       his undoubted genuine rehabilitative efforts and motivation to change; (d)     the family support he has;

(e)      the fact he is regarded highly by his employer who considers him “a reliable team player with high work standards and a real asset to our company”;

(f)      the fact there appear to be no issues with compliance generally and that Mr Rewa has never before been sentenced to home detention.

[23]     Accordingly, this is a case where I consider that the least restrictive sentence that is possible to be imposed in all the circumstances, while still addressing the purposes of the Sentencing Act 2002, is a sentence of home detention.

[24]     However, I am advised from the bar that the address for home detention which was vetted in the pre-sentence report is no longer available.  An alternative

8      R v Stanton [2008] NZCA 370.

9      R v Iosefa [2008] NZCA 453.

address will need to be proposed before a sentence of home detention can be considered.

[25]     I therefore have decided to allow the appeal.  The sentence of imprisonment of one year, nine months is quashed and a sentence of imprisonment of one year, five months is substituted.  I also grant leave to apply to substitute the sentence with home detention once a suitable alternative address has been proposed.

[26]     If home detention is applied for, then it should be subject to the following special conditions under s 80C:

(a)       Mr Rewa is to attend and complete a programme to target alcohol abuse to the satisfaction of a probation officer;

(b)Mr Rewa is to work with a probation officer to address violence propensity to the satisfaction of a probation officer; and

(c)       Mr Rewa is not to consume or use any alcohol or illicit drugs

[27]     For the avoidance of doubt, the reparation aspect of the sentence remains intact.

Solicitors:

C A Morgan, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch