Takerei v Police

[2014] NZHC 3360

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-032 [2014] NZHC 3360

DARRYL HOTU TAKEREI

v

NEW ZEALAND POLICE

Hearing:	16 December 2014
Appearances:	B Sweetman for the Crown J Woodcock for the Crown
Judgment:	16 December 2014

JUDGMENT OF THOMAS J

Solicitors:

C&M Legal, New Plymouth.

Counsel:

J Woodcock, New Plymouth.

TAKEREI v NEW ZEALAND POLICE [2014] NZHC 3360 [16 December 2014]

Introduction

[1]      On  11  November  2014  Mr  Darryl  Takerei  was  sentenced  at  the  New Plymouth District Court to two years’ imprisonment on one charge of injuring with intent to injure and a concurrent sentence of one year’s imprisonment for assault with intent to injure.  Mr Takerei was also convicted and discharged for one count of carelessly using a motor vehicle causing injury.

[2]      Mr Takerei appeals against his sentence of imprisonment as being manifestly excessive.  He submits that home detention was an appropriate sentence.

Background facts

[3]      On 28 September 2014 at 1.35 am, Mr Takerei and another were drinking in bars in town.  Mr Takerei made a comment to one victim about a tattoo.  A verbal altercation followed.  In an attempt to prevent a fight, the victim of the injuring with intent to injure, Mr Larsen, stood between Mr Takerei and the victim of the assault with intent to injure, Mr Stewart.

[4]      Mr Takerei delivered two punches, both of which connected with Mr Larsen’s face and jaw.   Mr Larsen was rendered unconscious and fell backward onto the pavement.  He was unconscious before he hit the ground and had no opportunity to break his fall.

[5]      Mr Takerei then threw punches at Mr Stewart.  A struggle occurred and Mr Takerei and Mr Stewart ended up on the ground.  Mr Takerei’s associate joined in the attack.

[6]      Mr Takerei got to his feet and kicked Mr Stewart in the head and face, before continuing to throw punches.  Mr Stewart got to his feet and was pushed back to the ground.  Mr Takerei walked off with his associate and they high fived one another.

[7]      Mr Larsen was unconscious for five minutes.   He was taken to hospital, where he underwent a CT scan.  He did not sustain a brain injury.

District Court sentencing

[8]      The Judge canvassed the pre-sentence report, which recommends a sentence of community detention, community work and reparation.   The Judge considered that Mr Takarei had a real problem with alcohol, that he presented as remorseful and had made an offer of reparation.

[9]      The Judge considered that it was to Mr Takarei’s credit that he had been employed by a business and worked in New Plymouth for a number of years.  He noted that the report writer mentioned that community detention would enable him to retain his employment.

[10]     The Judge then considered the victim impact statements, and noted that one victim had to take time off work and that the offending had precipitated a relapse of his depression.   The second victim did not suffer any injuries except for a minor graze.

[11]     The Judge recognised the guideline decision of Nuku v R, which addressed the adjustment to the grievous bodily harm tariff decision of R v Taueki for cases where  the  offender  has  been  found  guilty of  injuring  with  intent.1      The  Judge considered that Mr Takarei was looking for a fight on the night and the blows were unprovoked.   He found the following aggravating factors to be present: extreme violence and serious injury, premeditation and multiple attackers.   He placed the offending in band two, which accommodates offending where three or fewer factors are present, with sentences of up to three years.   He considered the appropriate

starting point on the lead charge to be two years’ imprisonment.   He uplifted the sentence by eight months for the assault with intent to injure charge.   He then discounted the sentence by eight months for an early guilty plea.

[12]     The final sentence was therefore two years’ imprisonment on the charge of

injuring with intent injure and 12 months’ imprisonment to be served concurrently on

the assault with intent charge.

1      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 and R v Taueki [2005] 3 NZLR 372, (2005) 21

CRNZ 769 (CA).

[13]     The  Judge  then  stated  that  he  would  not  allow  home  detention  for  the following reasons:

[16]… The offending is serious.  To sentence you otherwise would send the wrong message.  Those engaging in incidents of elevated violence within the CBD after taking on excess liquor can expect imprisonment sentences in the absence of peculiar circumstances.   You have really learnt nothing.   Two years earlier you were last before the Court on an elevated act of violence. You must have been on notice even at that time that you were liable to imprisonment.

[17]  You  have  indicated  also  that  were  you  to  be  sentenced  to  home detention your employment would be compromised and if somehow your sentence of home detention would exceed prison, how that can be I am unsure, you would prefer imprisonment.   A transposed sentence of home detention would be in the region of 12 months, it is a long time indeed.  That in general terms is the same sentence length you would serve on the two years’ sentence I have imposed.

[18] Finally and pivotally, you were not deterred by that previous sentence and elevation in the ordinary course of events must flow.

Approach to appeal

[14]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)     for any reason, there is an error in the sentence imposed on conviction; and

(b)     a different sentence should be imposed.

[15]     In any other case, the Court must dismiss the appeal.2

[16]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.3     Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s

approach to sentence appeals.4

2      Criminal Procedure Act 2011, s 250(3).

3      Tutakangahau v R [2014] NZCA 279 at [26]-[27].

4 At [35].

[17]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton where the Court said:5

(a)     There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)     It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[18]    The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6

Submissions and discussion

Starting point

[19]     Counsel for Mr Takerei, Ms Woodcock, contends that the starting point of two years was manifestly excessive.  She says that the aggravated feature of extreme violence should be considered as part and parcel of the charge and that the violence involved cannot be considered prolonged.   Furthermore, the sentencing Judge was wrong to regard the offending as premeditated, she submits. Rather, the offending is better characterised as impulsive.  While Mr Takerei’s associate was present, he was only charged in respect of punching one victim.   The evidence does not reflect a concerted group attack but rather, Mr Takerei assaulting the victims and the co-

offender stepping in briefly and opportunistically and throwing a couple of punches.

5      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

6      Ripia v R [2011] NZCA 101 at [15].

[20]     In Ms Woodcock’s submission the offending should be placed in band one of Nuku.  She referred to the case of Graham v Police, an appeal against a sentence of two years’ imprisonment on a charge of assault with intent to injure.7   However, the offending in Graham, in respect of assault with intent to injure attracts a maximum penalty of three years’ imprisonment, as opposed to the lead charge in this case, which carries a maximum sentence of five years’ imprisonment.

[21]     In Ms Woodcock’s submission a global starting point of 24 months would be

appropriate and would reflect the assaults on both victims.

[22]     The Crown’s approach is that while the methodology of the sentencing Judge might be open to some criticism the end result cannot be considered manifestly excessive.

[23]     I have considered analogous cases.

[24]     In Dean v Police Mr Dean had been drinking in a bar.8    He approached the victim.  Unprovoked, he pushed the victim in the back.  He punched the victim in the back and then punched him in the face, causing the victim to fall to the ground.  Mr Dean then delivered a further five punches to the victim’s face and stomped on his head.  The victim lost consciousness for a period and suffered a contusion to his eye, abrasions to his lips, face and head, and a partial tear to the mouth.   The starting point of two years’ imprisonment was not disturbed on appeal.

[25]     In Bennett v R Mr Bennett was convicted on two counts of injuring with intent to injure and one of assault with intent to injure.9    After a party Mr Bennett had  attended  had  broken  up,  a  group  of  party  goers  were  standing  around  the victim’s vehicle.  One of the group urinated on the vehicle and a verbal altercation occurred.    Mr  Bennett  punched  the victim  in  the head,  and  his  four  associates (including his father) then joined in the attack.   The victim was knocked to the ground where he was repeatedly kicked in the head and stomach by Mr Bennett and

his father.  He suffered a broken eye socket and severe bruising.  The Judge took a

7      Graham v Police [2014] NZHC 2112.

8      Dean v Police [2014] NZHC 1542.

9      Bennett v R [2012] NZCA 173.

starting point of two years’ imprisonment for Mr Bennett in relation to the first victim of this offending.  The Court of Appeal upheld this starting point, commenting that the cowardly and vicious assault could have attracted a higher one.  An uplift of nine months was made in respect of harm to  the other victims.   That was not disturbed by the Court of Appeal which commented that the starting point was generous.

[26]     In Neho v R Mr Neho appealed against his sentence of two years and six months’ imprisonment on one count of injuring with intent to injure.10    The victim had been sitting and talking to another man.  Mr Neho and an associate approached him and Mr Neho abused him and attempted to grab his tobacco and beer.  There was a struggle but Mr Neho was pulled away by the man who had been speaking to the victim.  That man assaulted Mr Neho and left.  Mr Neho returned to the victim and punched him in the eye.  They fell to the ground and Mr Neho punched him 10-

12 times, causing him to temporarily lose consciousness.   The Judge had taken a starting point of two years.  The Court of Appeal considered that was open to the Judge and the appeal was dismissed.

[27]     Although I accept that the violence itself is an integral aspect of the charge, I am satisfied that two of the aggravating factors discussed in Nuku apply, and those are the attack to the head and the harm of the victim being knocked unconsciousness immediately and falling to the pavement.

[28]     Based on the cases and that analysis I am satisfied that the two year starting point was well within range.

Uplift

[29]     The  defence  refers  to  the  case  of  Tiplady-Koroheke  v  R.11   In  this  case, however, I am satisfied that the offending which included punches and a kick to the

head means that the uplift of eight months was within range.

10     Neho v R [2010] NZCA 8.

11     Tiplady-Koroheke v R [2012] NZCA 477.

[30]     Overall, then, I consider two years and eight months’ imprisonment as a

global starting point was appropriate.

Discount

[31]     The Judge gave a discount only in respect of a guilty plea.  At the time of the sentencing the Mr Takarei was working full time.   The pre-sentence report writer considered him to be remorseful.  He offered reparation at the rate of $100 a week. He was considered insightful in respect of the offending.  Prior to sentencing he had self-referred to a counsellor through his employer to assist him in alcohol use and anger  management.    I  am  satisfied  in  those  circumstances  that  a  discount  to recognise his remorse of five per cent would have been justified.

[32]     That would take the sentence down to 30 months’ imprisonment and then applying a full 25 per cent discount in respect of the guilty plea to a sentence of imprisonment of 22 months.

[33]     Therefore the two year sentence imposed in the District Court, being only two  months  greater  than  the  sentence  reached  here,  would  not  be  manifestly excessive in terms of length.

Home detention

[34]     The next question is whether home detention should have been imposed.  I have already referred to the paragraphs of the Judge’s sentencing notes addressing home detention.   I am not satisfied he considered the question adequately.   He appears to consider that home detention would send the wrong message.  Due to Mr Takerei’s prior violence related conviction, he had “learnt nothing” and he must have been on notice that he was liable to imprisonment.  The Judge said it was “pivotal” that Mr Takerei was not deterred by his previous sentence of community detention and that “elevation in the ordinary course of events must flow”.

[35]     In James v R, the Court of appeal stated:12

12     James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.

[17]  We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.  The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?

[36]     In my assessment, the Judge did not properly consider the question of home detention.   He appeared to give too much weight to the fact that Mr Takerei has previously received a sentence of community detention for similar offending and he considered it inevitable that imprisonment must follow.  Essentially, the Judge said that for this type of offending there is a presumption of imprisonment.

[37]     The respondent accepts it is for this Court to make its own assessment given the Judge did not address rehabilitative prospects.  However the respondent submits that, given the need for deterrence and the prior conviction of the appellant and his risk assessment, a sentence of imprisonment should be imposed.

[38]     In  Dean  v  Police,  Clifford  J  was  considering  an  appeal  for  similar offending.13   The appellant was 19 and had been guilty of similar offending just five months prior to the offending in respect of which the appellant was being sentenced. He had knocked his victim unconscious and had used a chair to hit the victim as he lay on the ground.

[39]     Clifford J considered that home detention should have been imposed.   He stated that:14

…Mr  Dean  is  only  19  years  of  age  and  has  only  committed  one  prior offence.  He has a supportive, pro-social family and there is every indication he would comply with a sentence of home-detention.   I do not think Mr Dean’s offending has yet reached the stage where imprisonment is the only adequate response – there is still currently hope for his rehabilitation. At the time of his offending, and afterwards, Mr Dean was gainfully employed in a local freezing works, where his parents also work.  There is a possibility that he  may  regain  that  employment  whilst  serving  his  sentence  of  home detention.  In my view, that adds to the appropriateness of that sentence for Mr Dean.

[40]     Ms Woodcock  submits  that  home  detention  is  suitable  for  the  following reasons:

13     Dean v Police, above n 8.

14 At [18].

(a)      Mr  Takerei  has  a  suitable  address,  and  a  supportive  family  and employer.  I note that his family is here to support him today.

(b)At the time of sentence Mr Takerei’s father had been diagnosed with terminal cancer.   He has some months to live and Mr Takerei was providing personal and financial support to his mother and sister to care for his father, and to his ex-partner in respect of their daughter.

(c)      I also note that the appellant was 22 at the time of sentence and he has a limited criminal history.  He has one conviction only, although that was for similar offending.

(d)He has not previously served a sentence of home detention or imprisonment and he has no history of breaching Court imposed conditions or sanctions.

(e)      The pre-sentence report was positive and recommended community detention.  The appellant demonstrated rehabilitative prospects given his self-referral to counselling to which I have already referred.

(f)       I note also, he would have attended a restorative justice conference. (g)        His address is considered suitable.

(h)He was employed at the time and his employer remains supportive of him.

[41]     There  is  an  issue  as  to  whether  he  would  be  able  to  continue  with employment while subject to a home detention sentence.   I note the nature of his employment might make that difficult.   However, every effort should in my assessment be made to enable him to work while on home detention, whether by permitted absences or some other means.  It would be evident by those comments that I am satisfied that home detention should have been imposed.

[42]     For reasons similar to those of Clifford J in Dean v Police, it is not at the point where Mr Takerei is beyond rehabilitation.   Indeed he has shown himself willing and able to address factors that contributed to the offending and I refer to, of course, the steps he took after his offending and before sentence.

Conclusion

[43]     I am satisfied that Mr Takerei’s appeal should be allowed.   His term of

imprisonment is quashed.

[44]     I have concluded that a sentence of 22 months’ imprisonment would have been the correct level, before addressing home detention.  I note that he has served the equivalent of two months’ imprisonment and so I reduce that to 20 months.

[45]     A sentence of eight months’ home detention and 120 hours of community

work is imposed.

[46]     The following additional  conditions  are attached  as  special  conditions  to home detention:

(a)      Mr Takerei should undertake and complete an alcohol and drug assessment and any counselling/treatment programme as may be directed to the satisfaction of the Probation Officer.

(b)Mr Takerei  should  undertake  and  complete  an  anger  management assessment and treatment programme should one be available to the satisfaction of the Probation Officer.

(c)       Mr     Takerei     should     undertake     and     complete     any     other counselling/programme to reduce the risk of reoffending as may be

directed by the Probation Officer.

Thomas J