Saua v The Queen
[2021] NZHC 3330
•7 December 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-67
[2021] NZHC 3330
BETWEEN SAUA SAUA
Appellant
AND
THE QUEEN
Respondent
Hearing: 7 December 2021 Appearances:
M James for Appellant
J N Hamilton for Respondent
Judgment:
7 December 2021
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 7 December 2021 at 3 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Hamilton Legal, Hamilton
SAUA v R [2021] NZHC 3330 [7 December 2021]
[1] Mr Saua pleaded guilty to charges of the aggravated wounding and aggravated injuring of two police officers.1 The charges were laid in their aggravated form under s 191(1) of the Crimes Act 1961 because they related to an attack by Mr Saua on two police officers in order to facilitate his flight after they had attempted to arrest him.
[2] On 23 September 2021, Judge S R Clark sentenced Mr Saua to two years nine months imprisonment.2 Mr Saua appeals against sentence. He contends the Judge erred in law when he constructed the overall starting point for both charges.
The offending
[3] Mr Saua was suspended from driving on 4 April 2021. On the following day two police officers found him driving a motor vehicle. They stopped him and told him his car would be impounded for 28 days. He became agitated and retrieved a claw hammer and golf club from his vehicle. He threw these at the officers. He then took a baseball bat from his vehicle. When asked why he had the baseball bat in his vehicle he swore at the officers.
[4] The officers then told Mr Saua he was under arrest for being in possession of an offensive weapon. He responded by striking one of the officers, Constable Owen, in the head with the baseball bat. He did so with sufficient force to render the constable unconscious. The other officer, Constable Petch, then attempted to arrest Mr Saua. This resulted in a struggle during which Mr Saua used the bat to strike the constable twice in the back of the head, causing him to suffer momentary loss of vision.
[5] Mr Saua then took the opportunity to flee from the scene, although he stopped and waited a short distance away. When the officers recovered their senses they approached him and used tasers to effect an arrest.
[6] Constable Owen required hospitalisation for three days. He was then confined to bed rest for four weeks and was off work for two months. Not surprisingly, the incident has had significant psychological repercussions for him. He has sought
1 Crimes Act 1961, s 191(1)(c) and 191(2)(c).
2 R v Saua [2021] NZDC 19071.
counselling but the incident and resulting injury have significantly affected the way in which he now carries out his duties as a police officer.
[7] Constable Petch was not able to work for more than a month. He was also unable to drive for two weeks and has been required to attend several medical appointments. The incident has also had ongoing psychological consequences for him in terms of his employment.
The sentence
[8] The Judge took a global starting point of eight years six months imprisonment on both charges. He did not distinguish between the starting point adopted on the lead, or most serious, charge of aggravated wounding and any uplift to be applied for the lesser charge of aggravated injury.
[9] The Judge then applied a discount of 25 per cent to reflect early guilty pleas and a further discount of 25 per cent to reflect Mr Saua’s youth and previous good character. Mr Saua was just 17 years of age at the time of the offending.
[10] The Judge then allowed a further discount of 10 per cent to reflect prospects of rehabilitation and five per cent to reflect Mr Saua’s remorse. To the resulting discount of 65 per cent (or 66 months) the Judge applied a further reduction of three months to reflect restrictive bail conditions to which Mr Saua had been subject since April 2021. This resulted in the end sentence of two years nine months imprisonment.
The issue on appeal
[11] On Mr Saua’s behalf Ms James contends the Judge should not have added any uplift for the charge of aggravated injuring. She points out that s 18(1) of the Sentencing Act 2002 precluded the Judge from adding any uplift to reflect the lesser charge. Section 18 came into effect on 1 July 2019 and provides:
18 Limitation on imprisonment of person under 18 years
(1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time
of the commission of the offence, the offender was under the age of 18 years.
…
[12] Ms James referred me in this context to the recent decision of the Court of Appeal in Diaz v R.3 In that case the Court of Appeal confirmed that, where s 18 applies, a sentencing court is precluded from providing an uplift to reflect lesser charges.4 The Court observed:
[32] However we consider that the uplift for the injuring with intent to injure charge was precluded by s 18 of the Sentencing Act. The amendment to this provision was not drawn to the Judge's attention at sentencing. The amended provision applied to the sentencing of Mr Diaz on its face. He was entitled to be sentenced by reference to the amended provision, by virtue of s 6 of the Sentencing Act and s 25(g) of NZBORA. It would be inconsistent with the policy underpinning s 18 for the Court to uplift a sentence of imprisonment by reference to a charge which, pursuant to s 18, could not itself result in a sentence of imprisonment. Such an uplift would result in the young person spending (additional) time in prison as a result of the less serious charge: the very thing that s 18 is intended to preclude.
[13] The factual matrix in the present case is effectively the same as that in Diaz. Given Mr Saua’s age when he committed the present offences s 18 prohibited the Judge from adding any uplift to reflect the lesser charge of aggravated injuring. However, the Judge took that charge into account when fixing a global starting point of eight years six months imprisonment on both charges. In doing so he breached the prohibition contained in s 18. The Judge acknowledged this in a minute issued on 4 October 2021 after he learned of the statements of principle contained in Diaz. Neither counsel had referred that decision to him at sentencing.
[14] On the Crown’s behalf Ms Hamilton acknowledges that the Judge fell into error in the present case by applying an uplift for the lesser charge. She contends, however, that this does not mean the end sentence was manifestly excessive. She argues that the lead charge of aggravated wounding justified a starting point of at least eight years six months imprisonment on a standalone basis having regard to its aggravating factors. Ms Hamilton also contends the discounts the Judge applied were very
3 Diaz v R [2021] NZCA 426.
4 At [32].
generous. She therefore argues that the end sentence of two years nine months imprisonment cannot be regarded as manifestly excessive.
Decision
The starting point on the charge of aggravated wounding
[15] This charge obviously had several aggravating features of the type identified in the guideline judgment of the Court of Appeal in R v Taueki.5 That case related to the offence of intentionally causing grievous bodily harm but the Court acknowledged that the principles it enunciated would also be relevant to cases such as the present where charges are laid under s 191(1) of the Crimes Act 1962.6
[16] In the present case the offending involved the use of a baseball bat to inflict a significant blow to Constable Owen’s head. In Taueki, the Court of Appeal noted that a baseball bat can cause significant and permanent injury, particularly when aimed at the head.7 This was said to be a serious aggravating factor. I also accept Ms Hamilton’s submission that the incident cannot realistically be described as brief because it extended over several minutes during which Mr Saua displayed a consistently hostile attitude towards the two officers.
[17] Secondly, the victim of the assault was a law enforcement officer engaged in carrying out his official duties. The Court of Appeal noted in Taueki that this was a serious additional aggravating factor.8 Thirdly, Constable Owen suffered a serious injury notwithstanding the fact that he only received a single blow from the bat.
[18] Both counsel agree the offending falls within band 2 identified in Taueki.9 This calls for a starting point of between five and ten years imprisonment. However, it needs to be borne in mind that Taueki was primarily designed to provide guidelines for starting points to be applied to persons convicted of causing grievous bodily harm with intent to do so. A person can be convicted on a charge of aggravated wounding
5 R v Taueki [2005] 3 NZLR 372 (CA) at [31].
6 At [9].
7 At [31(d)].
8 At [31(l)].
9 At [34].
without having any intention to cause grievous bodily harm. That is why this Court has observed that Taueki must be “applied with caution” in cases where the charge does not require an intention to cause grievous bodily harm.10
[19] In the present case Mr Saua swung the baseball bat directly at the officer’s head with sufficient force to fracture his skull and immediately render him unconscious. In those circumstances I consider he must have had an intention to cause the officer very significant, if not really serious, bodily injury. Less caution is therefore required in applying Taueki to Mr Saua’s offending than may be necessary in other cases where charges are laid under s 191(1).
[20] On Mr Saua’s behalf Ms James contends the offending falls at the lower end of the band and justified a starting point of no greater than five to six years imprisonment. The Crown contends it falls towards the upper end of the band and justified a starting point of at least eight and a half years imprisonment.
[21] The Crown has identified cases where an attack on a police officer by a single assailant has resulted in a starting point of eight years imprisonment being adopted. In R v Harvey, for example a starting point of 10 years imprisonment was selected where the offender struck a police officer a single blow in the back of the head with a tomahawk.11 As in the present case the blow fractured the officer’s skull. It also led to other injuries more severe than those suffered by Constable Owen.
[22] I do not consider a starting point within the range suggested by Ms James to be realistic having regard to the aggravating features of Mr Saua’s offending. However, I consider the starting point of eight years six months imprisonment suggested by the Crown to be slightly high. In my view the overall culpability of the offending against Constable Owen falls slightly above the middle of band 2 identified in Taueki. I therefore consider it justified a starting point of eight years imprisonment on a standalone basis.
10 Neilson v New Zealand Police [2015] NZHC 2502 at [37].
11 For example R v Harvey [2017] NZHC 3069.
Was the sentence manifestly excessive?
[23] The Judge applied discounts amounting to approximately 67 per cent of the starting point. That may, on one view, be regarded as generous. However, there can be no quarrel with the discount of 25 per cent adopted in relation to the early guilty pleas. Likewise, I did not take Ms Hamilton to argue with a discount of 25 per cent to reflect Mr Saua’s youth and previous good character. I note that the Court of Appeal applied a discount of 30 per cent for these factors in Diaz.12 Like Mr Saua, the appellant in that case was 17 years of age at the time of the offending.
[24] Ms Hamilton suggested that any discount for rehabilitative prospects was already reflected in the discount given for youth and previous good character. She relied for this submission on observations made by the Court of Appeal in Churchward v R.13 In that case the Court of Appeal noted that youth may be relevant to sentencing because young persons have greater capacity for rehabilitation than adult offenders.14
[25] However, capacity for rehabilitation may be distinguished from actual steps taken towards rehabilitation. For this reason a discount to reflect youth does not preclude a further discount to reflect steps taken by the offender towards that end. There was material before the Judge to confirm Mr Saua had developed considerable rapport with his parents, his church and the wider community since the offending occurred. I therefore consider it is difficult to argue with the discount of 10 per cent the Judge applied to reflect rehabilitative efforts. Although the offender in Diaz appears to have undertaken greater rehabilitative efforts, the Court of Appeal allowed a discount of 20 per cent the reflect this factor.15
[26] Ms Hamilton says the Judge erred in applying a discount of five per cent for remorse because the material available at sentencing does not reflect true or genuine remorse by Mr Saua. Rather, the pre-sentence report states that the offending was triggered by the fact that the police officers were acting in a racist manner towards him after they stopped his vehicle. However, there are several references in the pre-
12 Diaz v R, above n 3, at [40]
13 Churchward v R [2011] NZCA 531, (2011) CRNZ 426.
14 At [77].
15 Diaz v R, above n 3, at [44].
sentence report to expressions of remorse and Mr Saua also offered to attend a restorative justice conference with his victims. I do not consider the Judge can be criticised for applying a discount of five per cent to reflect this factor. Again, I note that the Court of Appeal applied a discount of 7.5 per cent to reflect remorse in Diaz. Finally, the discount of three months to reflect the fact that Mr Saua was subject to restrictive bail conditions for six months is perhaps generous but results from the “rounding up” of a discount of 2.4 months. I therefore do not consider it can be said that the Judge applied discounts that were overly generous to Mr Saua.
[27] Applying the same level of discounts proportionately to the revised starting point of eight years imprisonment results in a reduction of five years five months. This produces an end sentence of two years seven months imprisonment. The end sentence the Judge imposed was just two months longer than this. It can therefore be argued that the end sentence was not manifestly excessive and that any interference with it amounts to “tinkering”. However, having regard to Mr Saua’s age and the fact that the end sentence was the result of an error of law I consider it appropriate to intervene.
Result
[28] The appeal against sentence is allowed. The sentence of two years nine months imprisonment imposed on the charge of aggravated wounding is quashed. In its place I substitute a sentence of two years seven months imprisonment. The concurrent sentence of 18 months imprisonment on the charge of aggravated injuring is quashed. Mr Saua is convicted and discharged on that charge.
Lang
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4
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