Smith v Police
[2023] NZHC 2479
•5 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-38
[2023] NZHC 2479
BETWEEN JAPHETH PHILLIP SMITH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 August 2023 Appearances:
Z S Meehan for the Appellant
H M L Farquhar for the Respondent
Judgment:
5 September 2023
JUDGMENT OF HARLAND J
Introduction
[1] Japheth Smith appeals the sentence of three years’ imprisonment imposed by Judge Tompkins on 23 June 2023.1 Mr Smith appeared before the Court for sentence in respect of five Crown charges, having pleaded guilty to two charges of male assaults female,2 one charge of assault with a weapon,3 one charge of carrying an imitation firearm4 and one representative charge of breaching a protection order.5 In addition, the sentence incorporated the appellant’s conviction following a separate Judge-alone trial where he was convicted of two charges of assault with a person in a family relationship and two charges of wilful damage.6
1 R v Smith [2023] NZDC 12983.
2 Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
3 Section 202C; maximum penalty five years’ imprisonment.
4 Arms Act 1983, s 46; maximum penalty one years’ imprisonment.
5 Family Violence Act 2018, ss 90(b), 112(1)(a); maximum penalty three years’ imprisonment.
6 New Zealand Police v Smith [2022] NZDC 26186.
SMITH v POLICE [2023] NZHC 2479 [5 September 2023]
[2] Mr Meehan, appearing for the appellant, submitted the starting point for assault with a weapon was too high, as was the uplift for the Police charges and imitation firearm offending. Mr Meehan also contends the Judge erred by not allowing a deduction to reflect the appellant’s background.
[3] The Crown opposes the appeal, submitting the overall sentence was not manifestly excessive.
Principles on appeal
[4] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7
[5] As the Court of Appeal mentioned in Tutakangahau v R, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
The offending
[6] The appellant had been in a relationship with the victim for around six years. They are the parents of two young children aged one and three years old at the time of the 2022 offending.
2021 offending
[7] In early 2021, the appellant and the victim were at home. An argument developed. The appellant pushed the victim by shoving her neck area with his hand. He grabbed her by the hair, punched her in the forehead, demanded her phone and then
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
broke it. As the victim drove away from the address, the appellant kicked her car and threw rocks at it. This is the offending in respect of which the appellant was found guilty of two charges of assault with a person in a family relationship and two charges of wilful damage following his Judge-alone trial before Judge Hobbs. The charges that followed this offending were referred to during this appeal as the Police charges.
[8] On 5 February 2022, a final protection order was issued against the appellant by the Family Court. At that time, the appellant was already bound by bail conditions not to contact the victim or enter Wellington.
2022 episode one
[9]On 9 August 2022, the victim arrived at the appellant’s aunt’s home around
12.20 am. The appellant had asked her to bring their children there. When they arrived, the victim put the children to bed in the spare room. The appellant and his cousin arrived at the address one hour later. When the appellant’s cousin left, he began to accuse the victim of cheating on him.
[10] At one point, when questioning the victim, the appellant put his hand down the front of his pants and pulled out something which the victim through was a gun. The Summary of Facts records that the object was black with a long barrel and looked similar to but larger than a Police pistol. The victim said she had not seen this gun before. After taking out the object, the appellant then put it back in his pants.
[11] After a few hours of questioning, the children woke up so the victim got them out of bed, gave them breakfast and entertained them for a few hours. At around midday, having fed the children again and put them down for a nap, the victim went back into the living room where the appellant began questioning her again. This lasted some time. At some point the appellant back-handed the victim, bent down and leant close to her and began yelling. He then backed away. The victim walked towards the door in order to leave. As she did so, the appellant rushed over to block her exit.
[12] The appellant then struck the victim in the mouth. She fell backwards into the doors behind her and onto the ground. When the victim said she was leaving, the appellant told her she was “not fucking going anywhere”, before lunging at her with a
raised fist but not following through with a full punch. The victim curled up to protect herself. The appellant locked the door and dragged her back to the living room.
[13] The children awoke sometime later. The victim fed them dinner and put them back to bed. The appellant’s aunt then came home.
[14] The victim managed to leave the address the next morning, on 10 August 2022, after the appellant and his aunt had left.
2022 episode two
[15] At around 4 pm on 11 August 2022, the appellant phoned the victim and asked her to bring the children back to the same address. The victim reluctantly agreed to do so. When she arrived, the appellant again locked the door. The victim went and lay down in a bedroom while the appellant spent some time with the children. After about 10 minutes, he went into the bedroom and, again, accused her of sleeping with an associate of his.
[16] The appellant picked up a wooden flat-sided object and used it to strike the victim twice over the top of her head, with the second strike breaking the object in two. He then punched her with a closed fist to the left side of her face, ribs and upper left leg.
[17] The appellant took the victim’s phone and eftpos card, but left the address when the children began to cry. The victim took the children and ran from the address, through a neighbouring park to a nearby sports club, where a member of the public called the Police.
[18] As a result of this assault, the victim received severe bruising to her jaw, causing a significant and observable lump to form.
[19]This offending occurred while the appellant was on bail for the 2021 offending.
The judgment under appeal
[20] After reciting the facts, the Judge referred to the appellant’s substantial history of offending, noting that his criminal history list ran to some 10 pages and included convictions for drug use, violent, dishonesty and compliance-based offending.10
[21] He then referred to the pre-sentence report writer’s assessment that the appellant was a medium risk of harm to others,11 and the fact that the appellant has had two protection orders made against him in respect of two different partners.
[22] The Judge next referred to the impact on the victim,12 recording that the victim was unable to continue reading her victim impact statement in Court with the result that the balance of it was read by the victim advisor. The Judge referred to the victim’s statement as speaking eloquently of the disastrous effect which the appellant’s violence had on both her and their now four year old son.
[23] The Judge then referred to counsel’s differing submissions about the starting point and uplifts he should adopt. The Judge noted counsel for the appellant’s acceptance that substance abuse was not directly and causatively linked to the offending. The Judge also referred to the appellant’s exposure to family violence as a child, which he considered, at least partially, explained what he expressed as “the overall approach of violent control which is evident in this offending”.13
[24] The Judge then adopted a starting point of three years’ imprisonment on the charge of assault with a weapon. He said:
[23] … This offending occurred after a substantial history of interpersonal violence against the victim was a significant assault on the victim using a wooden weapon with sufficient force as on the second strike to cause it to break and then followed by punches with a closed fist to the head, ribs and her upper left leg.
[24] As with the earlier offending this offending was followed by the seizing of the victim’s cellphone and her bank card and their destruction as the caption summary records this offending caused the victim and her children to
10 R v Smith, above n 1, at [11].
11 The Judge’s sentencing notes refer to only the victim as being at risk of harm at [12], although having considered the pre-sentence report, this is simply a slip.
12 At [13]-[17].
13 At [22].
flee from the address before slipping down a muddy bank and running to a nearby sports club where a member of the public called police.
[25] The traumatic effect both on the victim and on the young children is undoubted and will be long lasting.
[25] The Judge then adopted an uplift of eight months, as had been suggested by the Crown to reflect the Police charges heard before Judge Hobbs and the possession of the imitation firearm, with a further and final uplift of four months to what the Judge referred to as the appellant’s “very substantial history of family violence and firearms offending together with the offending on bail”.14
[26] The Judge then adopted a full 25 per cent to reflect the appellant’s guilty pleas on the Crown charges, given that they were entered after a number of the charges were amended or withdrawn. He also ordered the appellant to pay $2,800 by way of reparation. He did not allow any further deductions for mitigating matters. Relevant to this appeal, no deduction was provided to reflect the appellant’s experience of violence as a child.
Discussion
[27]The key issues on appeal are:
(a) whether the starting point adopted for the lead offending was appropriate in terms of Nuku v R15 and whether it should have included the imitation firearm offending;
(b) whether the uplift for the Police charges should be reduced; and
(c) whether a further discount of between 10 to 15 per cent was justified to reflect the appellant’s background.
[28] There can be no doubt that the lead offence was the assault with a weapon, but it is also clear that the remaining assaults against the victim on 9 and 11 August 2022 required assessment as part of the adopted starting point.
14 R v Smith, above n 1, at [27].
15 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[29] In terms of R v Taueki16 factors, both incidents involved attacks to the head, there was the use of a weapon which was struck with such force that on the second strike it broke and the victim was vulnerable. As well, arguably there was a significant abuse of trust, especially when one considers the presence of the children during the assault with the weapon. Three Taueki factors are therefore engaged. The offending falls squarely at the top end of band 2 or band 3 of Nuku v R and, in my view, the starting point adopted by the Judge of three years’ imprisonment on the lead charge is unimpeachable. It is well within range.
[30] Still v Police involved somewhat similar offending in that the defendant faced five charges spread over four separate events, involving violence against his partner.17 However, the defendant there expressed remorse, the offending was notably less violent and aggressive and there was no firearm charge. The defendant received an end-sentence of 18 months’ imprisonment off a 28 month starting point, undisturbed on appeal.
[31] I distinguish Wharepapa v R on the grounds that that case involved one incident as opposed to three here.18 I note Goodman v R where the Court of Appeal stated that sentences of between two and three years’ imprisonment for domestic violence offending are “not uncommon”, further noting that a single charge of male assaults female may lead to a term of imprisonment between two and 12 months.19
[32] The appellant does not challenge the uplift of four months’ imprisonment to reflect his previous convictions and offending on bail. However, he submits that the uplift of two months’ imprisonment to mark the possession of the imitation firearm charge and the six months to recognise the Police charges (the 2021 offending) was not warranted and should have been encompassed in the three year starting point.
[33] In my view, the uplifts adopted by the Judge to reflect the offending encompassed by the Police charges was entirely orthodox and potentially at the lower end of the available range. The two month uplift adopted for the possession of the
16 R v Taueki [2005] 3 NZLR 372.
17 Still v Police [2019] NZHC 2730.
18 Wharepapa v R [2021] NZHC 1011.
19 Goodman v R [2016] NZCA 64 at [12].
imitation firearm was also entirely appropriate, given that it undoubtedly set the scene for what was to come. It was intimidatory and designed, in my view, to instil fear in the victim and coerce her into compliance. Whether this was dealt with as an uplift or as part of the starting point is moot but the fact the Judge chose to separately identify the seriousness of the imitation firearm by an uplift is also, in my view, unimpeachable.
[34] After consideration of Still, Wharepapa, Nuku and Goodman, I am not convinced that the end sentence was manifestly excessive. The overall starting point of four years’ imprisonment was, in my view, within range and justified.
[35] In terms of deductions, I agree however that a further deduction ought to have been applied to reflect the appellant’s history and experience of violence as a child. The Judge recognised this in para [22] of his sentencing notes but did not revisit it further. I consider this was an oversight.
[36] Although the report provided was not technically referred to as a report under s 27 of the Sentencing Act 2002 the appellant’s experience of violence as a child was included in the alcohol and drug report and, as noted by Whata J in Solicitor-General v Heta, evidence of deprivation and social disadvantage “need not be elaborate”.20 I note the report is not independently corroborated but the Crown takes no issue with this and accepts that some discount would be appropriate. I agree that a small discount was required. In my view, five per cent (roughly two and a half months) would have been appropriate.
[37] If the further discount is to be applied, that would result in the end sentence for the appellant being reduced to 33 and a half months,21 but it must also be recognised that the discount for the guilty pleas also encompassed the Police charges in respect of which no such discount would have applied. The question then remains as to whether the sentence can be said to be manifestly excessive.
[38] Stepping back and considering these matters in the round, I am not persuaded that the end sentence was manifestly excessive. Though, cumulatively, the sentence
20 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50]
21 The total discount would have been 30% instead of 25%, with 30% of 48 being 14.4, that would create an end sentence of 33.6 months, or 33 and a half months rounded down.
is at the upper end of what was available, this was violent and intimidatory offending. When the level of violence and lack of remorse is accounted for, as well as the fact Mr Smith was sentenced for two sets of offending over three occasions, the end sentence of three years’ imprisonment cannot be considered excessive.
Result
[39]The appeal is dismissed.
Harland J
Solicitors:
Public Defence Service, Wellington Luke Cunningham Clere, Wellington.
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