Tai v Police

[2016] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-470-11 [2016] NZHC 874

BETWEEN

LEXTON JOE TAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

3 May 2016

(Heard at ROTORUA)

Appearances:

R Stevens for Appellant
N T C Batts for Respondent

Judgment:

3 May 2016

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 3 May 2016 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TAI v NEW ZEALAND POLICE [2016] NZHC 874 [3 May 2016]

[1]      Mr Tai pleaded guilty in the District Court to a charge of injuring with intent to injure.1     On 22 March 2016, Judge Bouchier sentenced him to two years four months imprisonment.2

[2]      Mr Tai appeals against conviction on the ground that the Judge erred in several respects when imposing sentence, and this has resulted in a sentence that is manifestly excessive.

Background

[3]      The charge was laid as a result of an incident that occurred on the morning of

10 January 2016.  The agreed summary of facts records that a social gathering had begun at a residential address in Tauranga the previous afternoon to celebrate the birthday of Mr Tai’s cousin.  The unveiling of Mr Tai’s grandmother had also taken place that day.

[4]      The party began early in the afternoon of 9 January and continued throughout the night.  At about 3 am the complainant arrived at the party in an intoxicated state. He did not know any of the other persons at the party other than his uncle, who had brought him to the address.

[5]      The complainant quickly fell out of favour with other persons at the party because of the manner in which he conducted himself.  Although members of his family attempted to persuade him to moderate his behaviour, he continued to act in an obnoxious manner to others at the party.  Matters came to ahead at about 7 am, when the complainant deliberately tipped over a table as he stood up to go the bathroom.  This resulted in a number of bottles and glasses that were on the table being broken.  The complainant then went outside and watched as his aunt began to clean up the mess he had made.  As she was doing this, the complainant said “Yeah

clean my shit up”.   This caused Mr Tai to become agitated at the complainant’s

1      Crimes Act 1961, s 189(2).

2      New Zealand Police v Tai [2016] NZDC 5358.

conduct.  Mr Tai’s cousin intervened, and told the complainant he needed to go and get some sleep.

[6]      At this point Mr Tai walked over to where the complainant and his cousin were talking.  The complainant then removed his penis from his pants and waved it at the six or so persons who remained in the room. As he did so he said “You can all suck my dick”.  The complainant then pointed his penis in the direction of his aunt and said “What, are you having a perv?”

[7]      Mr Tai responded to these remarks by punching the victim to the face with a closed right fist.  This caused the victim to begin to slide down the side of a vehicle he was leaning against.  As he did so, Mr Tai struck him a blow to the forehead with a glass spirit bottle. This caused a laceration to the top of the complainant’s head.

[8]      As the complainant continued to slump down the vehicle, Mr Tai punched him three more times to the head. Two other persons then grabbed Mr Tai and pulled him away from the complainant. They told him that what he had done was enough.

[9]      When the complainant attempted to push himself up onto his hands and knees, Mr Tai broke free from those who were holding him and kicked him in the mouth.  As the complainant fell onto his side, Mr Tai kicked him twice more in the body before being pulled away.

[10]     The summary of facts records that the complainant lost numerous teeth and suffered severe trauma to the inside of his mouth as a result of the kick.

[11]     When the police subsequently spoke to Mr Tai, he said he had been drinking alcohol on the evening of the incident and that he had also taken drugs.  As a result, he said he could not remember anything of the incident.

The sentence

[12]     Judge Bouchier acknowledged that the starting point for the sentence was to be selected having regard to the guideline judgment of the Court of Appeal in Nuku v

R.3    In that case the Court of Appeal suggested starting points for sentences to be imposed in respect of offences that involve wounding or injuring with intent to injure.  The Court confirmed that the starting point is to be determined having regard to the extent to which the aggravating factors listed in R v Taueki are present.4   The Judge considered that Mr Tai’s offending displayed up to five relevant aggravating factors.  These included the infliction of blows to the head and the use of a weapon in the form of a spirit bottle.  She also considered that the attack on the complainant involved extreme violence, and that it caused serious injury to the complainant.

Finally, she said that the complainant “could be considered” to be vulnerable because he was drunk at the time of Mr Tai’s attack.  The existence of these factors persuaded the Judge to select a starting point of three years imprisonment.

[13]     The Judge applied an uplift of three months to reflect the aggravating factor of Mr Tai’s numerous previous convictions for offences involving violence.   She then applied a discount of eight months, or 25 per cent, to reflect Mr Tai’s guilty plea.  Mr Tai had originally been charged with wounding with intent to injure, but had pleaded guilty as soon as the prosecution amended the charge to one of injuring with intent to injure.   This produced the end sentence of two years four months imprisonment.

[14]     The Judge rejected a submission by Mr Tai’s counsel that sentencing should be adjourned to enable enquiries to be made to determine whether Mr Tai might benefit  from  rehabilitative  therapy designed  to  address  his  obvious  tendency to become involved in violent acts.  Provided further mitigating factors were identified, Mr Tai’s counsel had submitted that this could be completed in the course of a sentence of home detention.   The Judge took the view that any sentence short of imprisonment would be inappropriate, and that rehabilitative factors needed to be taken into account by the Parole Board.

Grounds of appeal

[15]     Mr Stevens advances four grounds of appeal on Mr Tai’s behalf:

3      Nuku v R [2012] NZCA 584.

4      R v Taueki [2005] 3 NZLR 372 (CA).

(a)       The Judge adopted a starting point that was too high.

(b)      The Judge erred  in  failing to  take into  account  the complainant’s

conduct in fixing the starting point.

(c)       The Judge erred in failing to apply a discount in respect of remorse displayed by Mr Tai.

(d)      A sentence of home detention would have been appropriate.

Was the starting point too high?

[16]     Mr  Stevens  contends  that  Mr Tai’s  offending  only displayed  two  of  the factors identified in Taueki.  These were the use of the bottle as a weapon and the infliction of blows to the head.  Mr Stevens disputed the Judge’s description of the violence as being extreme, and challenged the Judge’s conclusion that it had resulted in serious injury to the complainant. Mr Stevens also submitted that the Judge had erred in describing the complainant as a vulnerable person.

[17]     On any view of the facts, however, Mr Tai launched a sustained attack on the complainant that involved serious violence.  It involved repeated blows to the head and body, and the use of a weapon.   It also caused significant injury to the complainant.  In Nuku, the Court of Appeal indicated that a starting point of up to three years imprisonment was appropriate in cases involving three or fewer of the aggravating factors identified in Taueki.  Viewed as a whole, and putting aside the issue of the vulnerability of the victim, I consider that the seriousness of Mr Tai’s conduct placed the starting point selected by the Judge clearly within the available range in terms of Nuku.  This ground of appeal fails as a result.

Did the Judge err in failing to take into account the conduct of the victim in setting the starting point?

[18]     Section 9(2)(c) of the Sentencing Act 2002 requires the court to take into account the conduct of a victim as a mitigating factor.  It is now well recognised that

provocative acts by a victim may be taken into account in fixing the starting point for violent offending.  In Taueki, the Court of Appeal observed:5

[32]   Matters which may be seen as leading to lower starting points are:

(a)     Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[19]     In the present case the Judge rightly described the complainant’s actions as being “disgraceful”, but did not adjust the starting point to take that factor into account.  Mr Stevens submits that the actions of the victim clearly precipitated the attack, and that the Judge ought to have recognised this in fixing the starting point. He submits that the starting point ought to have been reduced by ten to 15 per cent to reflect this factor.   The Crown submits that the complainant’s  conduct  was not sufficient  to fit  within the circumstances  anticipated by the Court  of Appeal  in Taueki.

[20]     I disagree with the Crown’s assessment.   I consider that the complainant’s actions were plainly provocative.   They were extraordinarily disrespectful and abusive to all persons present at the address, and in particular the complainant’s aunt. The  conduct  amounted,  in  my view,  to  “serious  provocation”  as  that  term  was intended to be used in Taueki.   It was also clearly an operative cause of Mr Tai attacking the complainant.

[21]     Mr Tai’s response was, however, completely disproportionate to the level of the provocation offered.   In particular, the kick to the mouth could rightly be described as gratuitous given the fact that the complainant had by that stage been incapacitated by earlier blows.  I therefore consider that any reduction to the starting point would necessarily be modest.  I do not consider that a reduction of greater than

three months would be justified.

5      R v Taueki, above n 4.

Did the Judge err in failing to apply a discount to reflect Mr Tai’s remorse?

[22]     Mr Tai expressed remorse to the probation officer who prepared the probation report,  and  also  offered  to  attend  a  restorative  justice  conference  with  the complainant.   This  did  not  eventuate,  because  the complainant  did  not  wish  to participate in such a conference.

[23]     The Judge dealt with this issue as follows:6

[27]      As  far  as  remorse  is  concerned,  as  I  have  mentioned,  remorse described in R v Hessell [2009] NZCA 450 must be extraordinary remorse, and the remorse which is evident here is not in my view in that category.

[24]     Mr Stevens argues that Mr Tai had demonstrated genuine remorse and that s 9(2)(f) of the Sentencing Act 2002 required the Judge to take it into account in a discrete manner.

[25]     Whether or not remorse should be the subject of a discrete discount is very much a matter for assessment by the sentencing Judge.7     In some cases tangible indications of remorse will be sufficient to require a discount to be given.  In other cases they will not.

[26]     I do not consider that Mr Tai’s expressions of remorse were such that the Judge was necessarily required to give Mr Tai credit for them.  This ground of appeal fails as a result.

Was the sentence manifestly excessive?

[27]     It is now necessary to consider whether the Judge’s omission to provide a discount in respect of the complainant’s provocative conduct resulted in an end sentence that was manifestly excessive.  In considering this issue the approach that the  Judge  took  in  relation  to  the  aggravating  factors  personal  to  Mr  Tai  is  of

relevance.

6      New Zealand Police v Tai, above n

7      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [57]; Cox v R [2013] NZCA 194, at [22];

R v Duncan [2009] NZCA 408, at [22].

[28]     As recorded above, the Judge applied an uplift of three months, or slightly less  than  ten  per  cent,  to  reflect  Mr  Tai’s  previous  convictions  for  offending involving violence.   The Judge correctly described this as “a very modest uplift” because Mr Tai has several convictions for common assault, as well as two previous convictions for assault with intent to injure.   He has previously been sentenced to terms of imprisonment in respect of these.

[29]     Importantly, however, the Judge did not apply any uplift to reflect the fact that at the time of the offending Mr Tai was serving a sentence of six  months community detention imposed on 26 November 2015, just six weeks before the present offending.  That sentence was imposed on a charge of being in possession of an offensive weapon.   Mr Tai was also subject to uncompleted sentences of community work and supervision imposed on the same date.

[30]     The conditions imposed in respect of the sentence of community detention presumably required Mr Tai to observe an electronically monitored curfew at his address during evening hours.   It is also likely that he was subject to express conditions prohibiting him from consuming alcohol and/or drugs.  I infer that Mr Tai must have obtained permission from his probation officer to be absent from his home address on the night of 9 January 2016.   There is no prospect, however, that he would have been given a dispensation from the conditions prohibiting him from consuming alcohol and drugs.  He obviously breached both of those conditions on the night of the offending.

[31]     The  fact  that  Mr  Tai  was  prepared  to  become  involved  in  such  serious offending whilst he was still serving a sentence of community detention on a charge of being in possession of an offensive weapon is an aggravating factor that warranted recognition.  I do not accept Mr Stevens’ submission that it would warrant an uplift of no more than one months imprisonment.  I consider it would have warranted an uplift of at least three months.  This balances out the credit that Mr Tai ought to have received in respect of the conduct of the complainant.  It also persuades me that the end  sentence  of  two  years  four  months  imprisonment  cannot  be  regarded  as excessive.

Result

[32]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Tauranga