TAHJ MAHALIA OLDHAM AND THE KING
[2024] NZCA 690
•19 December 2024 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA258/2024 |
| BETWEEN | TAHJ MAHALIA OLDHAM |
| AND | THE KING |
| Hearing: | 7 November 2024 |
Court: | Katz, Dunningham and Powell JJ |
Counsel: | V I Tava and R J Mogey for Appellant |
Judgment: | 19 December 2024 at 2.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
Following a District Court jury trial, Tahj Mahalia Oldham was found guilty of charges of suffocation and male assaults female. In addition, he pleaded guilty to a charge of unlawful possession of a firearm on the morning of the trial. The violence offending related to Mr Oldham assaulting and suffocating his pregnant partner on 20 July 2022. The firearm was discovered at his home three days later, during a police search.
Mr Oldham was sentenced to two years and seven months’ imprisonment by Judge Skellern.[1] He appeals his sentence on the ground that it is manifestly excessive. Specifically, he says that: the sentence starting point adopted for the lead charge of suffocation was too high; the uplifts for the male assaults female and firearm possession charges were excessive; and the Judge failed to provide adequate discounts for remorse, restorative justice, and the impact of imprisonment on his young child.
The offending
[1]R v Oldham [2024] NZDC 8791 [judgment under appeal] at [45].
In the early hours of one morning, Mr Oldham arrived at the victim’s home with two women. This upset the victim, as she found his actions rude and disrespectful. After the women left and Mr Oldham came to bed, the victim expressed her annoyance again, reiterating that his behaviour was inappropriate. At this point Mr Oldham “flipped out of nowhere and went mental and crazy”.[2] He accused the victim of planning to call the police and took her mobile phone to prevent her from doing so.[3]
[2]At [4].
[3]At [4].
Mr Oldham then spontaneously struck the victim with a backhanded blow to the face. She described this as being like a punch with a closed fist, delivered to the side of her face, which she referred to as a “blind shot”.[4] This forms the basis of the male assaults female charge.
[4]At [5].
When the victim told Mr Oldham she was leaving, he reacted by picking her up, throwing her onto the bed, and jumping on top of her.[5] He smothered her by covering her mouth with his hands and pressing down with his weight. He then put a pillow over her mouth and face and again pressed down on it with his weight, preventing the victim from breathing.[6] She described the force applied as “probably like a five” (presumably, out of 10) but sufficient to cause her to be concerned.[7] She told police she was scared and thought she was going to die. The duration of the suffocation, she said, was “not too long to go unconscious, so like just enough”.[8] These events form the basis of the strangulation charge.
[5]At [6].
[6]At [7].
[7]At [8].
[8]At [8].
As a result of the offending, the victim sustained puffy and swollen lips, a sore head, a lump on her head, and a light bruise on her face.[9]
[9]At [9].
The firearm charge arose out of a police search that took place three days later. The Judge summarised the firearm offending as follows:
[11] The facts relating to that charge are, on 23 July, police located you at your home address. You barricaded yourself in a bedroom, leaning against the door to try and prevent police access. You were subsequently arrested. In the same room was a revolver, which had its identifying features ground off. The revolver was modified and was loaded with 7.22 calibre bullets. When asked about it, you said: “Everyone’s at war these days. I’ll protect my family no matter what.”
District Court sentencing
We set out the Judge’s reasoning in relation to the specific issues on appeal in further detail below. By way of an initial overview, however, the sentence was constructed as follows:[10]
(a)a starting point of 28 months’ imprisonment was adopted for the lead charge of suffocation;
(b)the following uplifts were applied:
(i)four months for the male assaults female charge;
(ii)eight months for the firearm charge;
(iii)one month to reflect Mr Oldham’s prior convictions;[11] and
(c)total discounts of 25 per cent were then applied to reflect Mr Oldham’s engagement in a restorative justice process (and a significant payment he had made to the victim as part of that process); his remorse; and personal background factors.
[10]At [36]–[41].
[11] Mr Oldham has 43 prior convictions, including 11 for violent offences.
This resulted in an end sentence of 31 months’ imprisonment, which was imposed on the strangulation charge.[12] Shorter concurrent sentences were imposed on the charges of male assaults female (six months’ imprisonment) and unlawful possession of a firearm (eight months’ imprisonment).[13] The Judge noted that the end sentence was outside of the home detention range, and observed further that:
[43] In any event, this sort of offending necessarily, in my view, attracts something more than home detention to satisfy the purposes and principles of the Sentencing Act [2002].
Was the starting point for the suffocation offending too high?
[12]At [45].
[13]At [44].
In 2018, Parliament created a stand-alone offence of strangulation or suffocation, which is set out in s 189A of the Crimes Act 1961:
189A Strangulation or suffocation
Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:
(a) blocking that other person’s nose, mouth, or both:
(b)applying pressure on, or to, that other person’s throat, neck, or both.
District Court sentencing
The Judge took suffocation as the lead offence for sentencing purposes. She identified the aggravating factors as being the victim's vulnerability and Mr Oldham's three prior convictions for similar strangulation or suffocation offences (albeit committed before the introduction of the specific strangulation/suffocation offence).[14] In setting the starting point at 28 months’ imprisonment, the Judge did not factor in the preceding violence that formed the basis of the male assaults female charge, as that was addressed through a separate sentencing uplift.[15]
Appellant’s submissions
[14]At [35]. Section 189A of the Crimes Act 1961 was added in December 2018, by s 24 of the Family Violence (Amendments) Act 2018.
[15]At [35]–[36].
Ms Mogey, for Mr Oldham, submitted that a starting point of 24 months’ imprisonment would be more appropriate. With reference to this Court’s decision in Shramka v R, Ms Mogey submitted that Mr Oldham’s offending falls into the “lower level” of suffocation offending, which is described in Shramka as “more transitory” with “less enduring” harm.[16] Here, Ms Mogey submitted, no enduring physical harm was caused as a result of the application of pressure to the complainant’s neck.
[16]Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [54].
Ms Mogey submitted that two aggravating factors were present — namely the complainant’s vulnerability and Mr Oldham’s history of family violence (including three incidents of strangulation or suffocation). The intensity of the history of family violence was submitted as moderate. Ms Mogey noted that Shramka emphasises the importance of assessing the severity of each factor, not just its presence.[17]
Discussion
[17]At [44].
In Shramka, this Court identified various aggravating factors for strangulation or suffocation offending.[18] The two key aggravating factors that are present here are vulnerability of the victim and a history of strangulation offending. We also see harm to the victim and the fact that the offending occurred in the victim’s own home as aggravating factors, but at a lower level of intensity, as we explain below.
[18]At [42].
The victim was particularly vulnerable due to her pregnancy. Her physical vulnerability was also heightened due to the disparity in size and strength between her and Mr Oldham. The victim was physically overpowered by Mr Oldham and was unable to seek help, due to Mr Oldham taking her mobile phone.
Mr Oldham has three previous convictions for offending that involved strangulation or suffocation. As this Court explained in Shramka, recognising a prior history of strangulation offending as an aggravating factor recognises the particular risk of strangulation as a precursor to a future fatal attack, and also recognises that there is a pronounced risk of fatality where strangulation is repeated.[19]
[19]At [18] and [42(b)].
Enduring harm to the victim is one of the aggravating factors identified in Shramka.[20] This Court referred extensively to the Law Commission’s 2016 report Strangulation: The Case for a New Offence.[21] In that report, the Commission noted that strangulation can leave a devastating psychological impact on victims, notwithstanding the act itself characteristically leaves few marks or signs.[22] This psychological impact is what makes strangulation a “uniquely effective form of intimidation, coercion and control”.[23] Further, a real part of the harm suffered by victims is the terror accompanying the belief they will die.[24] “It is the terror that results from strangulation that is at the heart of this kind of criminal conduct.”[25]
[20]At [42(g)].
[21]Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).
[22]At [1.2]–[1.3].
[23]At [1.2].
[24]At [3.19].
[25]At [5.44].
In this case, the strangulation did not result in enduring physical harm to the victim, as Ms Mogey noted. However, as noted above, the enduring harm associated with strangulation offending tends to be more psychological than physical, arising out of the terror suffered by victims during an episode of strangulation or suffocation. Here, the victim told police that she was scared and thought she was going to die. The duration of the suffocation, she said, was “not too long to go unconscious, so like just enough”.[26] The victim’s victim impact statement is also consistent with her experiencing some degree of ongoing emotional and psychological harm due to Mr Oldham’s violence towards her. Although the primary harm caused by the offending here was the terror the victim would have experienced while being suffocated, and fearing she might die, we also accept that there is likely some degree of ongoing psychological harm.
[26]Judgment under appeal, above n 1, at [8].
In Shramka, the appellant’s offending was found to be an example of “moderate level” s 189A offending. The facts of his offending were as follows:
[3] … Mr Shramka visited C at her home, with her permission. An argument ensued and C told Mr Shramka to leave. He refused. C wanted to call 111 but Mr Shramka had hidden her phone in his pocket. When C tried to get her phone back, Mr Shramka grabbed her by the neck with one hand, squeezing tightly. He maintained his hold as he pushed C onto a bed, obstructing her breathing. This continued for about half a minute. C almost passed out. She struggled against Mr Shramka, kicked out and managed to get him off her and push him backwards. She rolled onto her stomach, at which point Mr Shramka punched her hard to the back of the head. As C reached for her phone, which had fallen onto the ground, he punched her in the face.
[4] … C continues to be scared, struggles to sleep, needs to have a light on during the night, and remains in a state of constant nervous anxiety.
On appeal, this Court found that the appropriate starting point for the strangulation offending in Shramka was three years’ imprisonment.[27] (This excluded the punch to the back of the head, which was the subject of a separate uplift). The aggravating factors were identified as: the victim’s vulnerability (physical disparity); breach of a protection order albeit not at the point of entry (Mr Shramka had been invited to visit the victim, but then refused to leave); aggravated violence (strangulation of 30 seconds, nearly resulting in unconsciousness); and enduring psychological harm to the victim.[28]
[27]Shramka v R, above n 16, at [52].
[28]At [50].
This Court did not provide a worked example of “lower level” s 189A offending in Shramka but, with reference to the facts of that case, stated that:[29]
… had the strangulation been more transitory, and the harm less enduring, a lesser sentence would have applied — perhaps as low as two years. Such offending might be regarded as “lower level” offending, for which an eventual sentence of home detention may be available …
[29]At [54].
The facts of Mr Oldham’s offending share several similarities with Mr Shramka’s offending. In both cases the offenders took the victim’s phone, preventing them from calling for help. The offending occurred in the victim’s own home and, in both cases, the intensity and duration of the suffocation caused the victims to fear for their lives. The victim in Shramka appears to have suffered a higher level of enduring psychological harm (nervous anxiety, sleep difficulties). The offending in Shramka was also in breach of a protection order (albeit Mr Shramka had been invited to the victim’s home). On the other hand, Mr Oldham has a concerning history of family violence, including previous incidents of strangulation/suffocation. In addition, the victim here was more vulnerable, due to her pregnancy.
Overall, it is our view that Mr Oldham’s offending was less severe than that of Mr Shramka, but not by a large margin. Accordingly, the Judge did not err in finding that the severity of Mr Oldham’s offending lay somewhere between Mr Shramka’s “moderate level” offending (warranting a starting point of three years’ imprisonment) and more transitory and less harmful lower level offending which might “perhaps” result in a sentence starting point “as low as two years”.[30] We would assess Mr Oldham’s offending as closer to moderate level strangulation offending than lower level offending. Accordingly, the starting point of 28 months adopted by the Judge was, if anything, on the lenient side.
Were the uplifts for other charges appropriate?
District Court sentencing
[30]At [54].
The Judge uplifted Mr Oldham’s sentence by four months in respect of the male assaults female charge, to reflect the severity of the violence involved (an unprovoked punch to the victim’s face, delivered with full force, catching the victim off-guard).[31]
[31]Judgment under appeal, above n 1, at [36].
A further uplift of eight months’ imprisonment was applied in respect of Mr Oldham’s possession of a loaded firearm. The Judge noted that the firearm was modified (its identifying features had been removed), loaded, and readily accessible.[32] This raised concerns about its potential use for criminal purposes.
Appellant’s submissions
[32]At [36].
Ms Mogey submitted that an uplift of no more than two months would be appropriate for the male assaults female charge, taking into account totality. An uplift of no more than two months would also be warranted for the unlawful possession of a firearm. She noted that the firearm was found separately in the appellant’s bedroom after his arrest, and it was not directly connected to the lead offending (suffocation) or used to facilitate it.
Discussion
We address the appropriate uplift for the male assaults female charge first. The Crown referred to Hopa v R, where a similar act of violence involving multiple punches resulted in an eight-month uplift,[33] and Samuel v R, where an intentional punch to the head led to a six-month uplift.[34] The Crown submitted that the four‑month uplift in this case was, if anything, restrained, given the vulnerability of the victim and the targeting of the head, which increased the risk of harm.
[33]Hopa v R [2023] NZCA 320 at [13].
[34]Samuel v R [2012] NZCA 376 at [16].
In our view a four-month uplift was within range, given the level of force involved, and that the punch was delivered “blind” to the victim’s head,[35] catching her off guard and unable to attempt to defend herself.
[35]Judgment under appeal, above n 1, at [5].
As for the eight-month uplift for the firearm offending, we accept the Crown submission that if the firearm offending had been sentenced on its own, a higher starting point would have been appropriate. For example, in Campbell v R, this Court observed that possession of a single firearm without mitigating factors generally called for a starting range of two to three years.[36] Here, Mr Oldham’s firearm was loaded, modified, and easily accessible, significantly increasing the risk of harm it posed and the seriousness of the offending.[37] An eight-month uplift was justified, taking into account totality.
Should a discount have been given to reflect the impact of imprisonment on the appellant’s child?
[36]Campbell v R [2022] NZCA 579 at [18].
[37]See Torea v R [2011] NZCA 96.
This issue is not addressed in the Judge’s sentencing notes. It is not clear whether such a discount was sought at sentencing.
Appellant’s submissions
Ms Mogey submitted that a discount should have been granted at sentencing to reflect the impact of Mr Oldham being imprisoned on his newborn child. She submitted that a discount of approximately five per cent would be appropriate to reflect this factor. However, as an application for electronically monitored (EM) bail to enable Mr Oldham to bond with the baby was declined, Mr Oldham has not therefore yet had a chance to establish a relationship with the child. Nevertheless, Ms Mogey submitted, contact between babies and their parents is important. Mr Oldham wants to have the opportunity moving forwards to be present in his child’s life.
Discussion
The issue of when a sentence discount is appropriate to a reflect the effect a sentence of imprisonment may have on an offender’s child (or children) was recently addressed by the Supreme Court in Philip v R.[38] The issue has also been addressed by this Court in several decisions including Sweeney v R,[39] Ah Tong v R,[40] and C (CA153/2023) v Police.[41]
[38]Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
[39]Sweeney v R [2023] NZCA 417 .
[40]Ah Tong v R [2024] NZCA 144.
[41]C (CA153/2023) v Police [2024] NZCA 136.
In Philip, the Supreme Court observed that granting such discounts aligns with sections 8(h) and 8(i) of the Sentencing Act.[42] Those subsections require the court to take into account:
(h)… any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i)… the offender’s personal, family [and] whanau ... background in imposing a sentence … with a partly or wholly rehabilitative purpose…
[42]Philip v R, above n 38, at [52].
The Court observed in Philip that recognising the importance of a child’s familial relationships in sentencing is also supported by the United Nations Convention on the Rights of the Child.[43] Accordingly, discounts recognising the impact of a sentence of imprisonment on an offender’s children should not be regarded as “rare” or confined solely to situations where the offender is the primary caregiver. Rather, “[w]hat is required is a consideration of all of the relevant circumstances which must include the child’s interests.”[44] The Court stated further that:[45]
Those interests include, as our reference to the [United Nations Convention on the Rights of the Child] indicates, the importance for children of growing up in a familial environment. We accept that there may be other factors in this consideration which take primacy including, by way of example, issues of inter-familial violence; an absence of remorse and/or lack of any rehabilitative steps, but those factors are not relevant here.
[43]At [52], citing Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
[44]Philip v R, above n 38, at [56].
[45]At [56] (footnotes omitted).
On the particular facts of Philip, the Court found that a discrete discount was warranted to account for the impact of Mr Philip’s imprisonment on his young child. Mr Philip had played a significant role in his child’s life and there was expert evidence that the child had “a secure attachment” to him.[46] There was also evidence that there was a very close relationship between Mr Philip’s rehabilitation and his relationship with his child.[47]
[46]At [53].
[47]At [54].
In Sweeney v R, this Court determined that expert evidence was not necessary to conclude that the interests of Mr Sweeney’s children justified a sentencing discount.[48] In that case, Mr Sweeney had assumed full-time responsibility for his four and six-year-old children, following the death of their mother in a car accident.[49]
[48]Sweeney v R, above n 39, at [27]. Information about Mr Sweeney’s care for his children was available in the pre-sentence report, a cultural report provided to the Court pursuant to s 27 of the Sentencing Act 2002, and correspondence from Mr Sweeney and others provided to the Court.
[49]At [24].
In Philip v R and C v Police, there was direct evidence (including expert psychological evidence) to show incarceration would have significant impact on the appellant’s child.[50] In C v Police and Sweeney v R, the appellants were primary caregivers. In all cases, the children concerned clearly had a significant attachment to the incarcerated parent. There is no evidence of any such attachment here. Mr Oldham does not have an existing secure and supportive attachment to the child.
[50]Philip v R, above n 38, at [53]; and C (CA153/2023) v Police, above n 41 at [40]–[41].
We further note that the child’s mother is the victim of Mr Oldham’s offending and has apparently now ended her relationship with him. Mr Oldham suffocated and assaulted her while she was pregnant with the child, potentially putting the child at risk. Mr Oldham has a concerning history of family violence. It cannot therefore simply be assumed that his presence in the child’s life will be entirely beneficial.
In the overall circumstances, we are not persuaded that the Judge erred in not discounting Mr Oldham’s sentence to account for the impact of Mr Oldham’s imprisonment on his infant child.
Were adequate discounts given?
District Court sentencing
Mr Oldham participated in a restorative justice meeting with the victim. He made a reparation payment of $10,000 to her, being funds he had received from a Ara Poutama Aotearoa | Department of Corrections settlement. The Judge accepted that this was an acknowledgment that the victim had suffered harm and that Mr Oldham wanted to put that right. In addition, the Judge noted the programmes Mr Oldham had undertaken in prison while on remand. A 10 per cent discount was awarded to reflect these matters.[51]
[51]Judgment under appeal, above n 1, at [39].
The Judge also had regard to a report prepared pursuant to s 27 of the Sentencing Act, which detailed Mr Oldham’s background, including that he had experienced violence as a child and that one of his parents suffered from a serious addiction. The Judge noted that Mr Oldham had, at some point, been in state care and had entered the prison system at an early age.[52] She considered there was a direct nexus between Mr Oldham’s background and addiction and his offending. A 15 per cent sentence discount was provided to reflect this.[53]
Appellant’s submissions
[52]At [37].
[53]At [38].
Ms Mogey submitted that the 10 per cent discount for Mr Oldham’s involvement in the restorative justice process was inadequate, particularly given the significant payment he had made to the victim. Further, his rehabilitative efforts in prison (including the completion of 12 workbooks prior to sentencing) warranted a discrete five per cent discount. Finally, she submitted that the appropriate discount for the personal background factors outlined in the s 27 report would be 20 per cent, rather than 15 per cent.
Discussion
As is often the case with family violence offending, the relationship between Mr Oldham and the victim is clearly complex. On the one hand, she has expressed some fear of Mr Oldham. On the other hand, she has supported him throughout the criminal justice process. She was declared a hostile witness at trial and was present in Court at sentencing to support him.[54] We were advised by Ms Mogey, from the bar, that the relationship has recently ended. However, the restorative justice process and (more particularly) the $10,000 reparation payment, must be viewed in the context of a relationship that was ongoing at the time, which puts it in a somewhat different category to a compensatory payment made by an offender to a complete stranger. Here, Mr Oldham made the payment to his then partner, who was pregnant with his child at the time. As Ms Mogey acknowledged, the aim of the payment (at least in part) appears to have been to provide financial support to Mr Oldham’s partner and child in circumstances where it was envisaged that he could well be incarcerated and his (then) partner would be raising their infant child on her own without any support from Mr Oldham during that period.
[54]At [3] and [14].
Nevertheless, even taking into account this context, the $10,000 reparation payment to the victim is highly commendable and worthy of recognition at sentencing. It does not, however, appear to be strongly indicative of genuine remorse. Any claim to such remorse is somewhat undermined by Mr Oldham’s minimisation of his actions to report writers. For example, he described the assault as a slap rather than a punch and claimed he merely “impeded” the victim’s breathing without intending suffocation. He downplayed the severity of his actions and disputed aspects of the police summary. Similarly, while it is commendable that Mr Oldham undertook some programmes while on remand, this must be seen against a long history of family violence offending. It was appropriately considered together with Mr Oldham’s restorative justice efforts and does not warrant a discrete uplift.
Overall, it is our view that the 10 per cent discount the Judge afforded for Mr Oldham’s restorative justice efforts and the programmes he undertook in prison was appropriate.
Similarly, the 15 per cent discount afforded for the matters set out in the s 27 report appropriately reflected the extent to which Mr Oldham’s culpability was reduced due to his personal background and addiction issues. In respect of the latter, we note that Mr Oldham’s methamphetamine use does not appear to have a close causal nexus to his violent attack on the victim. The causal nexus is closer, however, to other aspects of Mr Oldham’s personal background set out in the s 27 report and is appropriately reflected in the 15 per cent discount.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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