Takau v Police

[2017] NZHC 2300

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-104

[2017] NZHC 2300

BETWEEN

ATUNAISA TUITUPOU TAKAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 September 2017

Appearances:

A T Takau (Appellant in person) P A Norman for Respondent

S I Guy for Probation Services

Judgment:

22 September 2017

(ORAL) JUDGMENT OF NICHOLAS DAVIDSON J

Background to offending

[1]                   The appellant, Mr Takau,  was sentenced to eight months home detention at   [    ] with 200 hours community work and an order that he pay reparation of $1,000 to each of two victims on one charge of injuring with intent to injure and one charge of assault with intent to injure.1 He was ordered to pay $1,000 reparation to each of the two victims. The sentence imposed followed a sentencing indication without the Probation Officer having made sentencing recommendations.

[2]Mr Takau appeals this sentence, saying the Judge erred in fact and in law.

1      Police v Takau [2017] NZDC 16260.

TAKAU v NEW ZEALAND POLICE [2017] NZHC 2300 [22 September 2017]

[3]                   He represented himself on appeal, but was represented by counsel when he was sentenced.

[4]                   The sentencing remarks of the District Court Judge must be read in the context of the sentencing indication that was given to the appellant. Mr Takau was drinking at a pub with two work colleagues and became agitated. He says he was deeply insulted by comments about his religious beliefs and other personal insults. Whatever the reason, one of the victims took his jug of beer and tipped it down the drain. He punched that colleague to the ground and then punched the other to the ground. He kicked the second colleague in the head while on the ground and then punched and kicked the first victim. One victim received swelling to the head and neck and the other a broken cheek bone and a fractured eye socket. He said he was defending himself as one of his colleagues threatened to hit him over the head with a beer jug. It would appear from the pre sentence report that Mr Takau conceded that the incident had more to do with his anger than self defence.

[5]                   The Judge in the sentencing indication referred to the Court of Appeal guidance in R v Nuku, and the bands of offending.2 The aggravating features here were the serious injuries caused to one of the victims, the attacks to the head, the vulnerability of the victims, and repeated assault.

[6]                   There was no premeditation but there was a degree of provocation in the sense that there was agitation between Mr Takau and the victims. The Judge assessed the offending as falling within the top end of band two, or the bottom end of band three of Nuku, and that a starting point of three years imprisonment was appropriate, reduced by 10 per cent for his good record, and 20 per cent for his guilty plea and remorse. This led the Judge to consider home detention. On the basis of a positive pre-sentence report, and a suitable home detention address, that was the sentence imposed with the additional elements of community work and reparation.

[7]                   The appellant offered to pay reparation, and this was a factor in reduction of the sentence.

2      Nuku v R [2012] NZCA 584.

Principles on appeal

[8]                   The appellant appeals as of right, but the Court will only allow an appeal if satisfied that there is an error in the sentence, and that an alternative sentence should be imposed.3 An appeal court will not simply substitute its own views of the appropriate sentence. The sentence must be manifestly excessive or inappropriate, given that sentencing is, in essence, discretionary. The focus on appeal is the sentence imposed, rather than the process by which the sentence was reached.4

Analysis

[9]                   When this matter was first called on appeal, I indicated I did not consider that the sentence could in any way be regarded as inappropriate as excessive. No error whatsoever is disclosed. The only way in which the appeal might have traction is that the appellant’s home detention address was unavailable, thus undermining the sentence itself.

[10]               The sentencing remarks did not identify the risk that there may be no suitable address available.

[11]               This  possibility  was  reflected  in  the  Minute  issued  by  the  Court  of     14 September 2017. Ms Norman for the Crown and Ms Guy from Probation Services were asked to enquire if the appellant’s home address was unavailable if the appellant could not work for his employer. That raised the question of whether there was an alternative address.

[12]               Alternatively, the question was whether his employment could only be accommodated by community detention, and community work. The appellant had served one month and 20 days of home detention as at 14 September 2017.

[13]               Apart from this issue, the appellant’s submission is that he wants to go back to Tonga to be with his wife and children, and the appellant told the Probation Officer

3      Criminal Procedure Act, s 250.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

that he has a drilling business there which would fall into bankruptcy should he not return, given stringent financing arrangements.

[14]               The sentence imposed was clearly within range, and I consider it to be very much on the light side. Imprisonment here was a real possibility. The appeal could only succeed if the sentencing judge was aware that home detention was impracticable, and it was thought by this court that some alternative sentence would suffice. If there is in fact no suitable address, then the sentence must be re-addressed on appeal.

[15]               I have now been advised by Ms Norman with a report by and Ms van Voorst and Ms Guy that Mr Takau can serve the sentence imposed, at the address given, and he will not lose his work, although there are difficulties in monitoring and reporting. Ms Norman submits there are no grounds for appeal as Mr Takau can serve out his sentence as the Judge contemplated. I agree. He is fortunate to have his employer standing by him but it shows he was the personal and work attributes which will allow him to get on with his work and personal life, and put this serious and out of character offending behind him.

Disposition

[16]The appeal is dismissed.

……………………………………………….

Nicholas Davidson J

Solicitors:

Raymond Donnelly & Co., Christchurch Mr Takau (appellant)

Ms Shelley Guy, Probation

S Van Voorst, Community Corrections