Silao v Police

[2014] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000354 [2014] NZHC 3303

BETWEEN

PETERO SILAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Appearances:	B Murphy for the Appellant L M Mills for the Respondent
Judgment:	18 December 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 December 2014 at 11.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

SILAO v POLICE [2014] NZHC 3303 [18 December 2014]

Introduction

[1]      On 5 September 2014, the appellant, Mr Silao, was sentenced to 15 months’ imprisonment on one charge of assault using a blunt instrument as a weapon under s 202C of the Crimes Act 1961 by Her Honour Judge L Tremewan.   Mr Silao had pleaded guilty to the charge.

[2]      The maximum penalty available in respect of a charge under s 202C is five

years’ imprisonment.

[3]      Mr Silao has appealed against the sentence imposed on him.

Relevant Facts

[4]      The summary of facts, to which Mr Silao pleaded guilty, records that he was at his home on 13 July 2014.  The victim, Mr Silao’s daughter, arrived at the address. She had been out for the night.  A verbal argument ensued between Mr Silao and the victim.  The argument became very heated.  Mr Silao picked up an iron and hit the victim on her back.  He then started pulling the victim’s hair.  The victim received a scratch on the right side of her face.   She had to be taken to hospital for medical attention.

[5]      When Mr Silao was spoken to by the police, he stated that he gave the victim “a hiding” for coming home late, not answering her phone, and not replying to his text messages.

[6]      Mr Silao made his first appearance on 14 July 2014.  He pleaded guilty at his second appearance in the family violence list on 16 July 2014 – only two days later. He was not represented at the time, but he confirmed to the Court that he wished to enter a guilty plea nevertheless.

[7]      Mr Silao appeared on 5 September 2014 for sentence.  He was represented at the sentencing hearing by assigned counsel from the Public Defence Service.

Judge Tremewan’s Sentencing Notes

[8]      Judge Tremewan detailed the nature of Mr Silao’s offending.   She noted a submission made on Mr Silao’s behalf that he and his wife were upset and worried about their daughter, because she had not come home when she was supposed to. The Judge, however, noted that the fact that Mr Silao was angry, upset, or worried, was no excuse for the assault which he perpetrated on his daughter.  She referred to the victim impact statement in which the daughter said that Mr Silao had “given her a hiding”.  She noted that the victim had to go to hospital to make sure that no bones were broken, and that she was fearful of the fact that Mr Silao might attack her again.

[9]      Judge Tremewan then turned to Mr Silao’s list of previous convictions, and

noted  that  it  was  a  very  concerning  history.     She  noted  that  he  had  some

37 convictions, a number of which were for violence-related offending, and that he had a number of convictions for breaching court orders.  She noted that Mr Silao had previously been imprisoned, although not for an offence involving violence.   She expressed the view that Mr Silao was clearly somebody who posed a risk to his family, and,  indeed, to  other people in the community.   She noted that he had completed one programme, a Pacific Island Safety and Prevention Programme, but that he had still not changed his ways.   The Judge noted that Mr Silao had been attending a rehabilitation course, but that the facilitator had reported that his participation “had been lacking”.  She noted that the probation officer’s report was also negative.

[10]     The Judge referred to the principles of sentencing, including the need to hold Mr Silao accountable for what he had done, and the need to denounce his conduct. She observed that the offending involved a breach of his duty of care to his children, and that she had to take into account the victim’s interests.

[11]     Judge Tremewan adopted a starting point of 20 months’ imprisonment.  She noted that any possibility of a credit for attending the rehabilitation programme was negated by the uplift that the court could impose for his criminal history.   She declined  to  either  uplift  the  sentence,  or  to  reduce  it.    She  did,  however,  give

Mr Silao credit for his guilty plea.  She gave him a 25 percent discount, resulting in a final sentence of 15 months’ imprisonment.  Standard and special release conditions were imposed.

[12]     Judge  Tremewan  declined  Mr Silao  leave  to  apply  for  an  electronically monitored sentence.   She considered that, given his history of offending, and his complete lack of remorse, that nothing less than a sentence of imprisonment should be available to him.

Submissions

[13]     Ms Murphy, appearing on Mr Silao’s behalf, submitted that the sentence was excessive, and that it was not the least restrictive option available to the Court.  She referred to Mr Silao’s personal characteristics, and submitted that he now accepts that his offending was totally unacceptable, and that he was deeply remorseful for his actions.  She submitted that Mr Silao became a father at a relatively young age, and that he was ill equipped to deal with the demands of parenthood.  She argued that Mr Silao now feels that he will benefit hugely by fully engaging in appropriate counselling services.

[14]     Ms  Murphy  referred  me  to  the  purposes  and  principles  of  sentencing, including the obligation under s 8(g) to impose the least restrictive outcome that is appropriate in the circumstances, and the general desirability set out in s 16(1) of the Act,  of  keeping  offenders  in  the  community  as  far  as  that  is  practicable,  and consonant with the safety of the community.

[15]     While conceding that the pre-sentence report was not positive, Ms Murphy submitted  that  there  are  mitigating  features  relevant  to  Mr Silao,  including  the willingness that he has now expressed to engage in counselling, and the continuing support he receives from his wife and children.   She submitted that a sentence of approximately 12 months would have been appropriate and that the Court should have then gone on to consider an electronically-monitored sentence; such as home detention.  She argued that such a sentence would have met the principle of imposing the least restrictive outcome.

[16]     Mr  Mills,  for  the  Crown,  submitted  that  the  starting  point  adopted  by Judge Tremewan was appropriate.  He argued that the Judge took into account the aggravating  and  mitigating  factors  personal  to  Mr Silao,  and  that  in  light  of Mr Silao’s personal circumstances and history, that Judge Tremewan was entitled to refuse him leave for home detention.  He argued that there was no material error in the sentence imposed by Judge Tremewan.

Analysis

[17]     This is an appeal pursuant to s 250(2) of the Criminal Procedure Act 2011. Relevantly, s 250(2) provides as follows:

250     First appeal court to determine appeal

…

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

…

[18]     An appeal can only succeed if an appellant can point to an error,  either intrinsic to the Judge’s reasoning or as a result of additional material submitted on the appeal, which compels the conclusion that the sentence imposed by the court below contains an error, and that a different sentence should have been imposed. Unless there is a material error in the sentence, for example, if it is manifestly excessive, wrong in principle, or incorrectly calculated, then the  appellate court

should not intervene.1   The focus is on the end sentence, and whether it is within the

available range, rather than the process by which it was reached.2

[19]     Before considering the merits of the appeal, I note that Mr Silao has filed an affidavit in support of the appeal.

[20]     This Court has the power, if it thinks it necessary or expedient in the interest of justice to do so, to receive evidence from any witness, including an appellant for the purpose of an appeal.3

[21]     I have read Mr Silao’s affidavit.  It does not put forward any material which was not, or could not, have been before Judge Tremewan at sentencing.  Rather, the affidavit conveys the strong impression that Mr Silao has finally appreciated the predicament he now finds himself in, and that he is belatedly endeavouring to amend his ways and to make promises that he will endeavour to rehabilitate himself.  There is nothing fresh in the affidavit.  It is not necessary or expedient to admit it in the interests of justice.  I decline to do so.

[22]     I now turn to consider the offending itself and the sentence imposed.

[23]     Here, in my judgment, Mr Silao’s offending was relatively serious offending of its kind.  He assaulted his daughter with an iron, in the course of an argument.  He also pulled her hair.   Mr Silao may well have been  frustrated at his  daughter’s behaviour, but that does not justify the violence he meted out to her.  He initiated the violence.  There is no suggestion that his daughter retaliated.  She received a scratch to the right-hand side of her face, and she had to go to hospital to ensure that no bones were broken.  Further, Mr Silao is the victim’s father.  She was 17 years’ old at the time of the offending, still living with her mother, father and siblings.  Mr Silao’s daughter was entitled to feel safe in her father’s presence.   He abused her trust in him.  It is also a matter of concern that a weapon was used in the assault.  I accept that that is part of the offence with which Mr Silao was charged.  Nevertheless, the fact that an iron, which is a relatively heavy instrument, was used in the assault on the victim, is concerning.

[24]     I have endeavoured to find comparable cases.  I note the decision in Rapana v R,4 where this Court upheld a sentence of 19 months’ imprisonment for assault with a large bolt  that  caused  a cut  requiring stitches,  but  only after the sentence of intensive supervision initially imposed had been breached.

[25]     Ms  Murphy  referred  me  to  R  v  Matafeo.5      In  that  case,  the  appellants appealed a sentence of two years and nine months’ imprisonment on charges of assault with a weapon and assault.  The appellants had pleaded guilty to inflicting severe beatings on their then 13-year-old adopted daughter, using hands, shoes and brooms.  The assaults had continued over a period of some 10 months, and the child had been injured in the process.  She had suffered long-term physical abuse.  The sentences were reduced on appeal to terms of imprisonment of two years each.

[26]     Although Mr Mills suggested that I could draw a comparison with cases involving violent offending with intent to injure, for example, Nuku v R,6  I do not consider that such offending is comparable.   Injuring with intent requires that the offender intended to injure the victim.  In my view, injuring with intent to injure is a more serious charge than that which Mr Silao faced.

[27]     I  have  considered  various  cases  where  offenders  were  sentenced  for assaulting a child with a weapon – in each of these cases, the child was younger than the victim in the present case, but the sentences imposed were significantly less than that which was imposed on Mr Silao.7

[28]     Considering these cases as best as I am able to do so, in my view, the starting point adopted by Judge Tremewan of 20 months’ imprisonment was too high.  The injuries to the victim were worse than those in the assaulting children cases which I have set out above, but the victim was also less vulnerable than the children involved

in those cases.  The injury the victim suffered was less serious than that which the

5      R v Matafeo CA 222/96, 223/96, 11 September 1996.

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

7      See J v Police HC Christchurch CRI-2008-409-187, 18 December 2008.   French J upheld a sentence of a $1,000 fine and $130 in court costs, in a case where the appellant had struck his daughter twice with a leather belt.  In Hendry v Police [2012] NZHC 3581, Clifford J described

the sentence of two months’ home detention as an appropriately stern view of an assault that

involved slapping a two year old hard enough to leave a handprint on his face.  In I v Police [2013] NZHC 2925, Venning J upheld a sentence of 100 hours’ community work, and nine months’ supervision for what was described as a moderately serious assault on a four-year-old child. Conversely, in Tere v Police, [2012] NZHC 174, Duffy J held that a starting point of

18 months’ imprisonment for an assault by striking a child repeatedly with a pillow on an

11 month  old  was  excessive.    His  Honour  adopted  a  starting  point  of  between  nine  and

10 months’ imprisonment.  Conversely, in S (CA 810/2010) v R [2011] NZCA 178, the Court of Appeal approved a starting point of 18 months’ imprisonment in a case where an offender had slapped, kicked and struck with a belt, five children who were in her care.

victim suffered in Rapana v R.  In my view, a more appropriate starting point would

have been one of 12 months’ imprisonment.

[29]     In my judgment, however, Mr Silao’s extensive criminal history justified an

increase in that starting point.  He has an appalling criminal record, going back to

1992. A number of the offences with which he has been convicted involve the use of violence.  There are a number of convictions for assault, including three convictions for assaulting a child, and three convictions for assaulting a person with a blunt instrument.  He has been sentenced to intensive supervision on a number of those charges.    In  my view,  an  uplift  of  three  months  was  required  to  recognise  his criminal history, and in particular, his history of violent offending involving children.

[30]     I  disagree  with  Judge  Tremewan  that  Mr Silao  should  be  entitled  to  a discount for turning up to the rehabilitation programme.   It is clear that Mr Silao treated that programme with contempt.   He did not think that he had anything to learn from it.  He did not participate in any meaningful way, and he seemed to have considered that it was a waste of time.  Mr Silao’s efforts were desultory, and in my view, he was not entitled to any credit for turning up at the rehabilitation programme. He has now changed his mind in this regard, but in my view, this decision has come too late.

[31]     I accept Judge Tremewan’s finding that Mr Silao is entitled to a full discount for his very early guilty plea.  The appropriate discount is 25 percent of the sentence which would otherwise have been imposed.   This equates to 16 weeks, say four months.

[32]     Accordingly, in my view, the appropriate sentence to impose was one of

11 months’ imprisonment.

[33]     In my judgment, Judge Tremewan erred by adopting a starting point which was too high, and by offsetting against the uplift which should have been imposed for Mr Silao’s criminal record, the fact that he had attended an anger management course.

[34]     Judge  Tremewan  declined  to  grant  Mr Silao  leave  to  apply  for  home detention.  In my view, she was correct in this regard.  Mr Silao had refused to sign the electronic monitoring agreement, so no assessment for electronic monitoring had been carried out by the probation service.  Further, in my view, Judge Tremewan was correct to decline Mr Silao leave to apply for home detention under s 80I of the Sentencing Act 2002.   His offending history, his failure to respond to earlier community-based sentences, and his lack of remorse, clearly required that he serve a sentence of imprisonment.

[35]     The appeal is allowed in part.  Mr Silao’s sentence is reduced to a sentence of

11 months’ imprisonment.  In all other respects, Judge Tremewan’s decision stands

and the appeal is declined.

Wylie J