Taingahue v Police

[2015] NZHC 1688

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-14 [2015] NZHC 1688

BETWEEN

TAU TAINGAHUE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 July 2015
Counsel:	I D Miller for Appellant E J Riddell for Respondent
Judgment:	21 July 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4 pm on the 21st day of July 2015

Solicitors:           City Legal, Nelson, for Appellant

Crown Solicitor, Nelson, for Respondent

TAINGAHUE v NEW ZEALAND POLICE [2015] NZHC 1688 [21 July 2015]

[1]      Mr Taingahue appeals against the sentence imposed upon him following his pleas of guilty to one charge of assault with intent to injure1  and one charge of breaching a protection order by committing acts of violence against a protected person.2   Both charges relate to an incident in the early hours of 22 April 2015, when he assaulted his former partner.

[2]      The Police summary of facts describes the assault in the following terms:

The Defendant slammed the Victim onto the bed and punched her in the face multiple times.  He kicked her repeatedly around her chest and hip area.  He continued to beat her viciously for 10 to 15 minutes while stating that the Victim deserved  it.    The Victim escaped  the  house  and  waved  down  a passing motorist before reporting the incident to Police. The Victim received severe bruising to the face, back and sides.   She was visibly struggling to walk.  She was taken to Nelson Hospital to receive treatment.

[3]      For reasons that will become apparent it is relevant to note at the outset that:

(a)      On 3 April 2013 Mr Taingahue was convicted of a charge of assault with intent to injure and sentenced to 11 months’ imprisonment.  The complainant was his (now former) partner;

(b)On 2 December 2014 Mr Taingahue was convicted on charges of male assaults female and common assault and sentenced to six months’ supervision and 240 hours community work.  Again, the complainant was his former partner.

Sentencing in the District Court

[4]      Judge  Zohrab  sentenced  Mr  Taingahue  to  21  months’ imprisonment,  on

26 May 2015.3

[5]      In reaching that end sentence, the Judge:

1      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

2      Domestic Violence Act 1995, s 19, s 49(1)(a) and s 49(3).   Maximum penalty three years’

imprisonment.

3      Police v Taingahue [2015] NZDC 9559.

(a)       adopted a starting point of 16 months’ imprisonment on the assault

with intent to injure charge;4

(b)      added six months’ imprisonment for the breach of protection order

charge;

(c)       subtracted two months for totality;

(d)      uplifted by six months to reflect Mr Taingahue’s prior offending;

(e)       gave a discount of five months for the early guilty plea.

Grounds of appeal

[6]      For Mr Taingahue, Mr Miller raised two grounds of appeal.  Essentially he submitted that:

(a)       the uplift of six months (or 30 per cent of the sentence) for prior convictions was excessive;

(b)a full 25 per cent discount should have been afforded to Mr Taingahue because he pleaded guilty at the first opportunity.

[7]      No challenge is made to the starting point adopted.  But Mr Miller submitted that the end sentence of 21 months’ imprisonment was manifestly excessive and that an end sentence of somewhere between 18 and 19 months would be appropriate.

Approach to sentence appeals

[8]      Under the Criminal Procedure Act 2011, an appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should have been imposed.5    The Court of

Appeal has affirmed that the introduction of the Act was not intended to change the

4      In doing so, the judge considered the recent Court of Appeal decision in Tamihana v R [2015]

NZCA 169 and identified the aggravating features relevant in Mr Taingahue’s case.

5      Section 250(2).

way that courts approach a sentence appeal.6   Thus the focus is to be on whether the end sentence is within the available range, rather than on the process by which it was reached.7

Crown position

[9]      The Crown acknowledged that it seems that Judge Zohrab may have intended to apply a “full” 25 per cent discount for Mr Taingahue’s early guilty plea but by some mathematical error did not do so.  But Ms Riddell nonetheless submitted that the end sentence could not be said to be manifestly excessive and should stand. More specifically, she submitted that:

(a)      the   Judge   adopted   a   relatively   lenient   starting   point   in   the circumstances;

(b)the six month uplift for past offending was appropriate in the circumstances of this case;

(c)      The Judge did not, in any event, take account of a further aggravating factor, namely that Mr Taingahue was still serving a sentence of supervision when the offending occurred.

Discussion

[10]     The strongest point for Mr Taingahue relates to the six month uplift for previous offending which, on its face, seems severe in the context of a starting point of 20 months’ imprisonment.    In that respect I also necessarily accept Mr Miller’s submission that, faced on appeal with an uplift of similar proportions in relation to

offending of a similar kind, the Court of Appeal in Tamihana v R said:8

In the circumstances of this case, we consider the six month uplift to a starting point of 18 months was disproportionate. It had the effect of re- punishing Mr Tamihana for earlier offending. That is wrong in principle. An uplift of three months would have been justified, primarily as a deterrent

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

7 At [36].

8      Above n 4, at [28]

given Mr Tamihana's proclivity for this type of offending, and to send a message to Mr Tamihana and others in similar circumstances.

[11]     As this passage makes clear, however, the particular circumstances of an otherwise broadly similar case may warrant a different conclusion.   And in the present circumstances, I accept Ms Riddell’s submission that here, the uplift of six months was warranted, for the reasons that follow.

[12]     I begin by noting that three reasons are commonly given for the practice of increasing a sentence on account of previous offending.  First, the fact of previous convictions may indicate a greater level of culpability, which is particularly likely if previous offending is recent or where the defendant is still serving a sentence.9

Secondly, previous convictions can indicate a greater need for deterrence.   And thirdly, a pattern of offending can be a good predictor of reoffending.  On the other hand, the Courts have emphasised the need for caution and to avoid an uplift effectively becoming a second sentence for the earlier offending.10

[13]     I consider that all those factors are engaged here.  Mr Taingahue’s criminal history involves very recent convictions for violence in relation to the same victim for which he received what both Judge Zohrab and I regard as a relatively lenient sentence (community work and supervision).   There is a very clear basis for concluding that Mr Taingahue is likely to reoffend against her and an equally clear need to deter him from doing so.  Moreover, I consider that his culpability is, indeed, increased because the present offences were committed while he remained subject to a sentence of supervision (in relation to offending against the same victim).

[14]     Nor do I consider that grounds exist for separately revisiting the guilty plea discount.   While it is not disputed that Mr Taingahue did plead guilty at the very earliest opportunity, the Supreme Court in R v Hessell made it clear that that is not the only consideration at play.11    And in the present case, it seems to me that one such further consideration (although not referred to by the learned District Court

Judge) was that the likelihood of conviction was strong.    Moreover, to reduce the

9      See R v Lefupa (1997) 15 CRNZ 262 (CA) at 265.

10     For completeness I note that in Coombs v Crown Law [2015] NZHC 584, a six month uplift

from the starting point of 18 months’ imprisonment was not overturned on appeal.

11     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [60], [65], [70] and [74].

end sentence by merely one and a half months to reflect the full discount would be tinkering.

[15]     It necessarily follows from the above discussion that there is no basis upon which I could conclude that the end sentence imposed on Mr Taingahue was manifestly excessive.   My conclusion in that regard is fortified by the outcome in other similar cases referred to in Ms Riddell’s submissions.12

[16]     The appeal is dismissed accordingly.

“Rebecca Ellis J”

12     In  particular  Coombs  v  Crown  Law,  above  n  10,where  an  end  sentence  of  two  years’ imprisonment on a charge of assault with intent to injure (starting point of 18 months) was upheld on appeal, and Tenboom v Police HC Hamilton CRI-20017-419-15, 7 February 2007 where a sentence of two years and four months was upheld on a charge of assault with intent to injure committed while on bail.