T v Police
[2024] NZHC 1859
•9 July 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 203 AND S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000036
[2024] NZHC 1859
BETWEEN “T”
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 July 2024 Appearances:
C S Taylor for Appellant
C H B Megala for Respondent
Judgment:
9 July 2024
Reissued:
7 August 2024
JUDGMENT OF ANDERSON J
This judgment was reissued by me on 7 August 2024 at 3.00 pm.
……………………..
Registrar/Deputy Registrar
Solicitors:
Marsden Woods Inskip Smith, Crown Solicitor, Whangarei
“T” v NEW ZEALAND POLICE [2024] NZHC 1859 [9 July 2024]
Introduction
[1] Mr T (the appellant)1 pleaded guilty to charges of strangulation,2 assault with a weapon,3 assault with intent to injure4 and assault on a person in a family relationship.5 Judge P Rzepecky sentenced him to 25 months’ imprisonment.6
[2] Mr T appeals his sentence on the grounds that the Judge erred in imposing an uplift of 10 per cent (3.6 months) for his previous convictions. He submits that this uplift resulted in a manifestly excessive sentence that placed him out of the range where home detention could be considered.
[3] The respondent submits the uplift was well within the available range and the overall sentence was not manifestly excessive.
Approach on appeal
[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.7 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.8
[5] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. Nor will it artificially tailor a sentence to bring it within the range where home detention is available.9
1 The appellant’s name has been anonymised throughout this judgment, despite it not being suppressed, because identifying the appellant by name would risk breaching the complainant’s protections under ss 203 and 204 of the Criminal Procedure Act 2011 due to the nature of the offending and his relationship with the complainant. See H v R [2019] NZSC 69, j[2019] 1 NZLR 675 at [54]-[58].
2 Crimes Act 1961, s 189A(b).
3 Section 202C.
4 Section 193.
5 Section 194A.
6 Police v T [2024] NZDC 8972.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
9 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [35] citing R v Edwards [2006] 3 NZLR 180 (CA) at [24].
[6] The focus is on the end result rather than the process by which the sentence was reached.10 In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).11
The offending
[7] Mr T and the victim have been in an on and off relationship for 11 years. They have three young children who were present at the time of the offending.
[8] On 5 November 2023 a verbal altercation occurred between Mr T and the victim. He jumped onto the bed where she was sitting and punched her in the left leg. He then grabbed her by her shirt and pulled her around the bedroom before shoving her. She fell face down onto the floor. Mr T then stomped hard on her back causing the victim to expel air and feel out of breath.
[9] Mr T then used one hand to grab the victim’s throat and the other to cover her mouth. He pulled her backwards so her upper body was lifted off the floor. The victim was unable to breathe for five seconds. Mr T then grabbed the victim’s hair on the back of her head and slammed her face into the ground two or three times. She suffered head injuries and vomited almost instantly.
[10] Mr T left the address briefly and the victim called the Police. He then returned and approached the victim with a large kitchen knife. The victim retreated and fell backwards. Mr T held the knife about five to 10 centimetres away from the victim and made stabbing motions towards her. He said “I will stab you in the face” and words to the effect of “from now on you will do what I say”.
District Court decision
[11] The Judge imposed an end sentence of 25 months’ imprisonment constructed as follows:
10 Tutakangahau v R, above n 8, at [36].
11 At [36].
(a)A starting point of 36 months’ imprisonment acknowledging that the lead offence of strangulation represented “the very highest level and perhaps the most dangerous violence that can befall a victim of domestic abuse”.12
(b)An uplift of 10 per cent for previous family violence offending.13
(c)Discounts of 40 per cent being 15 per cent for personal circumstances and 25 per cent for guilty plea.14
[12] Even were the sentence less than 24 months the Judge was of the view that home detention would be inappropriate due to the seriousness of the offending and the unsuitability of the proposed address.15
[13] While Mr T submits the starting point was stern, he accepts that it was within the available range. He accepts all aspects of the sentence to be correct other than the 10 per cent uplift.
Uplift for previous convictions
[14] Section 9(1)(j) of the Sentencing Act 2002 requires the court to consider, as an aggravating factor, the previous convictions of an offender. An uplift for previous convictions may be warranted if the convictions indicate a tendency to commit the particular type of offence for which the offender is before the court.16
[15] The courts have also applied uplifts for previous convictions where those convictions bear upon character and culpability or because of a need to protect society by the imposition of a deterrent sentence.17 Such an uplift must be proportionate to the sentence imposed for the previous offending and starting point of the subject
12 Police v T, above n 6, at [12].
13 At [15].
14 At [15].
15 At [17].
16 Jones v R [2021] NZCA 402 at [33].
17 Reedy v Police [2015] NZHC 1069 at [19].
offending.18 Uplifts greater than the sentence imposed are unlikely to be proportionate.19
[16] An uplift for previous offending is an aggravating factor personal to the offender. As such, these uplifts are incorporated at the second stage of sentencing and should be applied to the adjusted starting point.20
[17] The Judge applied the uplift of 10 per cent for Mr T’s two previous convictions of assault and assault on a child (his five-year-old son). Both occurred in 2022. Mr T pulled his son’s ear with force causing him to cry. This was observed by the victim of the assault charge who told Mr T to stop. Mr T said he was the father and could do what he wanted before throwing a pair of socks at the elderly victim’s throat, who was standing one metre away. The act of throwing the socks formed the charge of assault. For those convictions Mr T was sentenced to one year of supervision. The facts underlying these previous convictions were not before the Judge.
Submissions
[18] Mr Taylor submits that Mr T’s convictions did not justify an uplift of 3.6 months’ imprisonment. He submits that no uplift was justified on the basis that the previous convictions were irrelevant or alternatively that the uplift should be reduced for proportionality.
[19]Mr Taylor refers to the Judge’s statement that:21
You have previous convictions and I note that there are five for family violence, including assault with intent to injure and another charge of strangulation. Sorry, Mr T, there is only one assault on a child. The other four are the ones you are appearing for in front of me today.
[20] He submits that the Judge had come to 10 per cent on the assumption mis-stated in the first part of this passage, which the Judge ought then to have reflected in no, or a lower, uplift when reaching his conclusions. He further notes that the Judge failed
18 Webb v R [2022] NZCA 137 at [27] citing R v Ward [1976] 1 NZLR 588 (CA) at 590.
19 At [27] citing Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41].
20 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
21 Police v T, above n 6, at [7].
to engage in an analysis as to why a 10 per cent uplift was justified and that there is a real risk that the 10 per cent was imposed taking into account the convictions that formed the subject offending.
[21] Mr Megala for the Police submits that the uplift was entirely justified. He submits that the convictions bear upon Mr T’s character and are an indication of a predilection to offend in a specific way, namely family violence offending and defaulting to violence when there is disagreement.
[22]As to proportionality, Mr Megala relies on the comments of Dunningham J in
Reedy v Police that:22
… there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).
[23] The Police say that in light of the uplifts applied in Shramka v R,23 Taputoro v R,24 and Clark v Police25 the uplift of 10 per cent here was stern but not excessive. I discuss these cases below.
[24] The Police highlight that Mr T would have only just completed his sentence of supervision for the previous offending a mere three-and-a-half months before the present offending which elevates his culpability. Mr Megala submits that Mr T’s previous convictions are serious, particularly the assault on a child given the vulnerability of the victim and abuse of trust. He submits that Mr T has exhibited an escalation in violence towards family and has not learned from the sentence of supervision imposed. The Police submit that the sentence therefore must reflect the principles of deterrence, denunciation and accountability which is achieved by the uplift.
22 Reedy v Police, above n 17, at [19(d)] (footnote omitted).
23 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.
24 Taputoro v R [2024] NZHC 179.
25 Clark v Police [2024] NZHC 331.
[25] The Police submit that when stepping back, the sentence imposed was not manifestly excessive. Mr Megala points to Edwards v Police where this Court upheld a sentence of 25 months’ imprisonment for one representative charge of strangulation.26 He submits the offending in Edwards was less serious than in this case as here there are the added aggravating features of the prolonged beating, assault with a weapon and the instance with the knife.
Discussion
[26] I do not accept Mr Taylor’s submission that Mr T’s previous convictions were irrelevant. Some uplift for Mr T’s previous convictions, particularly the assault on his son, is appropriate to reflect both deterrence and risk.27 That Mr T committed a family violence offence a mere three-and-a-half months after completing his sentence of supervision for his previous convictions demonstrates the need for deterrence.28
[27] I would be speculating to conclude from the sentencing notes that the 10 per cent uplift was arrived at by the Judge by including the offending that formed the subject offending. Nonetheless, in my view the uplift of 10 per cent was too high. While each case turns on its own facts, a review of comparable cases suggests an uplift of five per cent would have been appropriate.
[28] In Orchard v R the Court of Appeal held that an uplift of no more than two months’ imprisonment was appropriate to reflect Mr Orchard’s previous breach of a protection order when being sentenced for five charges including wounding with intent to cause grievous bodily harm to his wife and breaching a protection order.29 The uplift of two months’ represented approximately four per cent of the 42-month starting point.
[29] Similarly, in R v Meno Wylie J held that an uplift of four per cent (two months) to a starting point of 48 months’ imprisonment would have been appropriate to
26 Edwards v Police [2023] NZHC 2825.
27 Orchard v R, above n 19, at [41].
28 Taitapanui v R [2021] NZCA 161 at [32].
29 Orchard v R, above n 19, at [5] and [42].
recognise Mr Meno’s five previous convictions for assault and contraventions of protection orders when sentencing for similar family violence offending.30
[30] Although the Police relied on Taputoro, Shramka and Clark I do not consider they support a 10 per cent uplift in this case.
[31] In Taputoro an uplift of only five per cent was applied to account for previous convictions with far more similarities to the subject offending than the present case. In that case some of Ms Taputoro’s previous convictions were against the same complainant as the subject offending and involved similar use of weapons.
[32] Similarly, Shramka involved a three month, or approximately eight per cent, uplift for offending including previous breaches of a protection order against the victim of the subject offending. The connection between the previous convictions and subject offending was therefore demonstrably more significant.
[33] That both Taputoro and Shramka applied uplifts of less than 10 per cent supports that the uplift applied here was too high.
[34] While a 14 per cent uplift was applied in Clark v Police, Mr Clark had an extensive criminal history including for violent and family offending. He had previously been sentenced to imprisonment for assault on a person in a family relationship, assaulting a child and breach of protection order.31 Mr T’s previous convictions are nowhere near this extensive or serious.
[35] In my view an uplift of five per cent would have been appropriate to recognise Mr T’s previous convictions and achieve the deterrence and denunciation required. Applying a straight application of arithmetic this reduction to five per cent would bring the sentence down to 23 months and mean that the appellant would be eligible for home detention if the District Court considered that appropriate.
30 R v Meno [2022] NZHC 1062.
31 Clark v Police, above n 25, at [10].
Manifestly excessive?
[36] However, I must now consider whether the sentence imposed was manifestly excessive. The focus is on the correctness of the end result rather than the process.32
[37] Having regard to the gravity of the offending, and considering the adjustments then applied, I accept the Police’s submission that stepping back, the sentence imposed was not manifestly excessive. In particular, I accept the Police’s submission that the starting point of 36 months for the total offending could readily have been higher.33 The associated offending involved a prolonged beating immediately prior to the strangulation, grabbing the victim by the hair and slamming her face into the ground.
[38] This was then followed by an assault with a large kitchen knife and accompanying threats. The attack occurred after 12 previous family harm incidents and after a Police Safety Order had been served on the appellant the evening before. The couple’s three young children were present at the time of the incident.
[39] In my view the end sentence of 25 months’ imprisonment imposed should not be disturbed.
Result
[40]Appeal dismissed.
Anderson J
32 Tutakangahau v R, above n 8, at [36]; and Taylor v R [2020] NZCA 584 at [24].
33 See Shramka v R, above n 23; and Edwards v Police, above n 26.
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