Taueki v Police

[2015] NZHC 2328

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-454-17 [2015] NZHC 2328

BETWEEN

MICHAEL TAUEKI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 September 2015
Counsel:	F D Steedman for Appellant N J Wynne for Respondent
Judgment:	24 September 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Taueki   appeals   an   effective   sentence   of   one   year   nine   months’ imprisonment  imposed  in  relation  to  six  convictions  –  male  assaults  female, burglary, receiving property (x2), cultivating cannabis and procuring cannabis.  The structure of the sentence is that the last five charges were grouped together and attracted a sentence of 15 months’ imprisonment.  There was then a cumulative six month sentence for the male assaults female, leaving a final term of 21 months’.

Home detention was declined.1

[2]      The  appeal  challenges  the  six  month  cumulative  sentence  for  the  male assaults female charge.   It is accepted it was  appropriate to make the sentence cumulative, but the length is challenged.  Although that is the focus of the appeal, it is to be remembered one cannot appeal part of a sentence – the issue is always whether the total sentence is manifestly excessive.2

Facts

(i)       Burglary and other offences making up 15 month link

[3]      The burglary involved a commercial premise.   Mr Taueki cut through the mesh fence to gain access.  During the course of his activity he damaged two CCTV cameras and stole numerous items.  Initially the loss was assessed at around $5,000 but by sentencing it was recognised as being more than $20,000.

[4]      The other four charges stem from searches of his premises during which various items were found – dried cannabis, a cannabis plant, a stolen bag and a stolen scrub saw. The last two items led to the receiving charges.

[5]      Mr Taueki is 35 years of age.  He has a lengthy criminal record.  He has one previous conviction for burglary, but numerous convictions for receiving property and shoplifting.  Since 2010 he has been sentenced to eight prison terms, plus two home detention sentences.

(ii)      Male assaults female

[6]      The victim is Mr Taueki’s wife.  On this occasion there was a dispute.  The victim left the premises but was pursued by Mr Taueki who caught her on the front lawn.  Holding her down by a hand to the throat area, Mr Taueki repeatedly slapped his wife in the face.  A neighbour intervened and Mr Taueki pulled his wife back inside.  The victim suffered a bleeding nose, bruising, swelling above an eye, and bruising to her neck and arms.

[7]      Mr Taueki was on EM bail in relation to the other charges already described. He  has  four  previous  convictions  for  either  assault  or  male  assaults  female. Mr Taueki expressed remorse for his actions and wrote a letter in which he claimed new awareness of his wrongness of his actions and a commitment to change.  The Judge also had letters from the victim who says she was angry on the day and was throwing things at Mr Taueki.  She attests to Mr Taueki’s importance to the family and that he is a good father.

[8]     The sentencing Judge took a starting point of eight to nine months’ imprisonment,  lifted  that  to  10  months’ to  reflect  past  offending  and  the  fact Mr Taueki was on EM bail.  There was then a four month deduction for a late plea and steps Mr Taueki was taking to change his circumstances.

Appeal

[9]      Mr Steedman submits the offending underlying the assault charge was at the lower end of the spectrum:

(a)       Mr Taueki was assaulted by his wife but could not leave due to EM

bail restrictions;

(b)      the offending involved only slaps; and

(c)       Mr Taueki’s previous convictions for violence were limited in number and as regards male assaults female were on a different victim.

Decision

[10]     The fact that Mr Taueki was limited by EM bail conditions to remaining on the premises does not mitigate the assault.  He could go to another room.  He could, if necessary, leave the premises – that would be preferable to what he did.  As it is, instead he pursued his fleeing wife, held her down in public on the front lawn and assaulted her.  Then he dragged her inside.  There is no link between this conduct and being required to remain at the address of his bail conditions.

[11]     Mr Taueki does have previous convictions for domestic violence.  It does not assist him that they relate to a second victim; many would regard that as aggravating in the sense of highlighting the risk he poses to those with whom he is in a relationship.

[12]     I do not accept that the victim’s conduct immediately preceding the assault reduces culpability.   She was running from the house; the incident was therefore over,  yet  Mr Taueki  pursued her and  then publicly assaulted  her.   The  victim’s current support for her husband does not minimise the need to denounce and deter.

[13]     The  four  month  deduction  from  the  starting  point  of  10 months’  was generous, so even if one accepted the starting point was towards the top of the range,3 the end sentence is available.  The case for the starting point being excessive rests with the fact that the blows took the lesser form of slaps.  However the Judge rightly noted the wider context that the victim was pursued when trying to leave, was held down by the throat and then dragged back inside.   These were features that aggravated the lesser form of violence.  I finally note that the 15 months’ imposed for the first group of offending is far from stern given the level of loss involved in

the burglary, meaning that an overall sentence of 21 months’ was well within range.

[14]     At the appeal hearing Mr Steedman raised the fact that Mr Taueki had been on EM bail for nearly three months prior to sentencing.   In appropriate cases that may merit some recognition, but it does not appear to have here been addressed at sentencing.  I am not satisfied the conditions were such as to necessitate recognition,

and for the reasons given consider the existing sentence to be appropriate.

3      Evans  v  Police  HC  Christchurch  CRI-2007-409-248, 7  February 2008,  Grayson  v  Police

HC Hamilton CRI-2006-419-31, 6 April 2006, Poata v Police HC Rotorua CRI-2010-470-23,

5 July 2010 suggest a 9–10 month starting point for slightly more serious offending.  However, the Judge’s figure here includes recognition that the offending was committed while at his electronic bail address.

[15]     The appeal is dismissed.

Simon France J

Solicitors:

Broadway Legal, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North