Ruru v The Queen

[2004] NZCA 202

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/04

THE QUEEN

v

SIMON NITA RURU

Hearing:19 August 2004

Coram:O'Regan J
Randerson J
Doogue J

Appearances:  P J Kaye for Appellant

D P H Jones for Crown

Judgment:30 August 2004 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       The appellant was found guilty of one count of assault with intent to injure and another of injuring with intent to injure.  The victim was his de facto partner.  He was acquitted on seven other charges arising from events on the day of the assaults and the following day.  He was sentenced in the Manakau District Court to two years imprisonment and given leave to apply for home detention.  He now appeals to this Court against this sentence.

The facts

[2]       On 11 January 2003 the appellant was watching a one-day cricket match at Eden Park, Auckland, with the victim, who was his de facto partner at the time.  The appellant had been drinking since 1.30 pm that day.  As they were travelling home from the cricket at approximately 9.00 pm, the appellant and the victim got into a dispute.  The victim pulled the car over and stopped.  She eventually got out of the car, and was told by the appellant to walk home.  As she had recently had surgery to her knee, the victim was using a crutch at the time, but the appellant retained it in the car and left her without it. 

[3]       When the victim arrived home at approximately 9.30 pm, having obtained a ride from someone else, the appellant met her in the drive and approached her with his arms open.  He said this was intended to indicate a desire for reconciliation.  The victim walked past him.  The appellant responded by engaging the victim in a headlock, holding her so she was disabled.  In the course of the melee that followed, the appellant bit the victim’s forehead.  The force left teeth marks on her head that the victim said could still be made out two weeks after the offending occurred.  In addition to the marks left by the bite, the victim suffered a bruised left eye, a bruised and swollen left jaw and other bruises to the neck and chest area, sore ribs and a tender right wrist.  Some of these injuries may have been the subject matter of other charges for which the appellant was found not guilty, and the sentencing Judge was cognisant of this possibility.

[4]       Following the assault the appellant ordered the victim to go inside the house.  The victim complied and begged the appellant not to hurt her.  Once inside the house the appellant began crying and said he was going to kill himself.  The appellant then left the house and went to his vehicle, at which point the victim went to a neighbour’s address where she called the police.

District Court sentencing

[5]       The sentencing Judge, Judge Johnson, noted that he needed to tread carefully in deciding what could and could not be taken account of in sentencing because the appellant had been acquitted on a number of counts in the indictment.  He made this point again in relation to the injuries the victim sustained.  Counsel for the appellant, Mr Kaye, accepted that the Judge had undertaken both exercises fairly.

[6]       The Judge noted that the victim was much smaller than the appellant.  She had suffered an injury to her wrist prior to the offending, and had had another injury that, although in the repair stage, was quite dehabilitating and necessitated the use of a crutch.  This was the result of the knee surgery to which we have already referred.

[7]       The Judge commented that, while the appellant had accepted that he was technically guilty of an offence, he did not appear to have engaged in the reality that his conduct went well beyond anything that could be justified.  The appellant had maintained at trial that he merely restrained the complainant for the purposes of controlling her, and the Judge took the view that this belief indicated a lack of remorse.

[8]       The Judge referred to the purposes and principles of the sentencing making specific comments in respect of the seriousness of the offence and the impact of the offending on the victim.  He emphasised that the charges were serious, the hurt was serious and that the violence was serious, and that the victim was frightened after the offence of running into the appellant again.

[9]       The Judge acknowledged, however, that the appellant did not have any previous convictions and had a good work history and family background.  The Judge commented that he would be careful not to minimise the offending, because it was in the context of a domestic relationship, or exaggerate it, because the appellant had worked as a policeman and law enforcement officer.

[10]     The Judge noted the Crown’s submission that the starting point, before taking account of aggravating and mitigating factors, should be three and a half to four years imprisonment.  He also considered defence counsel’s submission that, in light of the decision of this Court in R v Stephens CA272/01 6 December 2001, this starting point was too high.  The Crown advocated a final sentence in the range of two and a half to three years imprisonment.  Defence counsel urged the Judge to consider the probation officer’s suggestion of community work, or a sentence under two years imprisonment with leave to apply for home detention and deferral.

[11]     The Judge took the view that, given the seriousness of the offence, the only appropriate sentence in this case was one of imprisonment.  He said the starting point and end point for the sentence should be the same.  It was offending to a vulnerable person, the Judge said, who should have been able to look to the appellant as a protector, not as an attacker.  On the other hand the appellant is a first offender, and this it seems “cancelled out” the aggravating factor just mentioned.  The Judge imposed a sentence of two years imprisonment.

[12]     The Judge granted the appellant leave to apply for home detention on the basis that it is often beneficial for first offenders.

[13]     The Judge did not find any special reasons justifying deferral of the commencement of the sentence pending consideration of the appellant’s application for home detention.  He said the fact that the appellant was a serving policeman would not suffice.  The Judge made several comments about the appellant’s personality, stating that he was emotionally unstable, manipulative and attention seeking.  Considerable emphasis was given to the appellant’s lack of remorse and inability to appreciate the wrongfulness of his actions. 

R v Stephens

[14]     The focus of the submissions from both parties was the decision of this Court in R v Stephens.  In that case, Mr Stephens had been convicted of injuring his female partner with intent to injure her.  He had faced another six charges involving the same complainant, four of which were alleged sexual offences, but had been acquitted on those counts.  He was sentenced to a term of imprisonment of two years and nine months in the High Court, but that was reduced to two years by this Court.  Leave to apply for home detention was declined. 

[15]     In the present case, the sentencing Judge had considered the Stephens case, as well as other, less relevant, cases cited to him.  Eventually he imposed the same sentence as in Stephens, although leave to apply for home detention was granted in this case, in contrast to the Stephens case, where leave was declined.

[16]     Counsel agreed that there were a number of similarities between this case and Stephens.  In particular:

(a)       The appellant in this case was a servicing police officer at the time of the offending, as Mr Stephens had been at the time of his offending;

(b)The victim was the female partner of the offender in both cases;

(c)The victim was considerably smaller than the offender in both cases;

(d)        The victim was entitled to regard the offender as a protector in both cases;

(e)        The offender had martial arts expertise in both cases;

(f)         The assaults in both cases were serious, leaving visible and lasting injuries on the face of the victim;

(g)        Both the appellant and Mr Stephens were first offenders at the time of the commission of the offences.

Submissions and discussion

[17]     On behalf of the appellant, Mr Kaye submitted that there were a number of reasons to distinguish the present case from R v Stephens, and that the sentencing Judge ought to have imposed a shorter term of imprisonment than was imposed by this Court in Stephens.  He relied in particular on two matters.

[18]     The first was the seriousness of the offending.  Mr Kaye submitted that the injuries inflicted on the victim in the present case were less severe, and the assault was less serious, than in the Stephens case.  He said that the assault in this case arose from a single incident whereas the offending in the Stephens case was repeated offending. 

[19]     We do not accept that any meaningful distinction can be made between the two cases on either count.  Both cases involved serious injury to the complainant, and the offending in Stephens could not be regarded as “repeated”.

[20]     The second matter raised by Mr Kaye was the offenders’ histories.  In the Stephens case, Mr Stephens had been convicted of a drug offence while he was on bail for the assault on his partner.  Mr Kaye said that this meant that he was not treated as a first offender, because he had already been sentenced for the drug offending at the time of his sentencing for the injuring charge. 

[21]     Again we reject this distinction: Mr Stephens was, and was recognised as, a first offender at the time of the injuring offence.  The fact he had offended later meant he could not claim an otherwise unblemished record at sentencing, but does not appear to have been a major factor in the determination of his appeal against the sentence on the injuring charge.

[22]     Counsel for the Crown, Mr Jones argued that there were three distinctions which were unfavourable to the appellant between this case and the Stephens case. 

[23]     First, Mr Jones pointed out that the victim in this case was even more vulnerable than Mr Stephens’ victim because she had an injured wrist and had recently had an operation on her knee, and therefore was using a crutch for mobility.  We accept that submission.

[24]     Secondly, Mr Jones argued that here was genuine remorse shown by the offender in the Stephens case, which could not be said in the present case.  We do not accept that: the Court in Stephens noted an absence of remorse in that case too.

[25]     Thirdly, Mr Jones said that there was a high motivation to change in the Stephens case, which again was absent in the present case.  We accept the distinction, but do not attribute to it the same significance that Mr Jones did.

[26]     As the above discussion shows, the submissions of counsel involved a very detailed analysis of the points of similarity and points of difference between this case and the Stephens case.  But a comparison of the fine details of cases is very unlikely to assist an appellate court, the function of which is to review sentences which are manifestly excessive or inadequate or wrong in principle.  Micro examination does not inform that process.

[27]     In the present case, the exercise in which this Court is engaged is to determine whether the sentence imposed was manifestly excessive.  In our view the appellant has not demonstrated that a sentence which is the same as that imposed in the Stephens case is inappropriate, let alone excessive.  While minor points of distinction can be drawn between the two cases, the points of distinction are not all favourable to the appellant.  Looked at overall, the two cases are broadly equivalent to each other.  The Judge was entitled to see the offending in this case, and the circumstances of the appellant, as broadly equivalent to the Stephens case, and the sentence which he imposed was clearly within the range of sentences available to him.

Result

[28]     In those circumstances, we do not accept that there are any grounds to interfere with the sentence imposed by Judge Johnson, and we therefore dismiss the appeal.

Solicitors:
Crown Solicitors, Auckland