Te Hau v Police
[2021] NZHC 948
•30 April 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-27
[2021] NZHC 948
BETWEEN PETER TE HAU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 April 2021 Appearances:
S R Lack for the Appellant
G Banuelos for the Respondent
Judgment:
30 April 2021
JUDGMENT OF GAULT J
This judgment is delivered by me on 30 April 2021 at 11:00 am
.....................................................
Registrar / Deputy Registrar
Solicitors / Counsel:
Mr S R Lack, Barrister, Auckland
G Banuelos, Gordon Pilditch, Office of the Crown Solicitor, Rotorua
TE HAU v NEW ZEALAND POLICE [2021] NZHC 948 [30 April 2021]
[1] Mr Te Hau appeals against his sentence of three years and ten months’ imprisonment imposed by Judge A J S Snell in the Rotorua District Court on 22 December 2020,1 following convictions for:
(a)one charge of impeding breathing (strangulation or suffocation);2
(b)one charge of injuring with intent to injure;3 and
(c)one charge of common assault.4
[2] Mr Te Hau pleaded guilty to the last charge, but contested the first two and was convicted after a judge-alone trial.
[3]Mr Te Hau appeals the sentence on the following grounds:
(a)the starting point of three years and six months’ imprisonment for the lead offending (the first two charges) was too high;
(b)the uplift of six months for the assault was excessive and failed properly to take into account the principle of totality;
(c)the uplift of four months applied to reflect Mr Te Hau’s previous convictions and the fact that his offending occurred whilst subject to a sentence resulted in double counting of an aggravating factor, and served to unfairly repenalise him for prior offending; and
(d)the end sentence of three years and ten months’ imprisonment was manifestly excessive.
1 Police v Te Hau [2020] NZDC 26904.
2 Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.
3 Crimes Act 1961, s 189. Maximum penalty five years’ imprisonment.
4 Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
The offending
Assault
[4] On 27 January 2020 at about 2 am, Mr Te Hau was at a bar in Rotorua. The victim, a bar tender, was busy serving a customer and Mr Te Hau became frustrated at not being served. The victim tried to reassure him saying she wouldn’t be long. He yelled “fuck you, you fuckin bitch” then walked away and attempted to be served by a different bartender. The victim informed her colleague not to serve Mr Te Hau. This angered him and as the victim walked away, he lobbed a small wooden sign into the bar area striking and cutting her head, causing it to bleed. He then ran off. The victim suffered the laceration to the side of her head, and swelling/tenderness in the area.
Impeding breathing and injuring with intent to injure
[5] On 9 February 2020 at about 9.30 pm, after Mr Te Hau was with his partner of approximately four months. Mr Te Hau had been drinking with an associate and was moderately intoxicated. His partner put her son to bed and lay down with him. Mr Te Hau stormed into the room, dragged his partner (the victim) into the kitchen, and threw her onto the ground. As she attempted to shield her body, Mr Te Hau kicked, punched, and kneed her for approximately three to four minutes. As she attempted to get up, he threw her back onto the ground. Through this, he was asking the victim whether she ‘liked it’ and she was screaming for help and pleading for him to stop.
[6] Mr Te Hau began to strangle her over the period of about one minute. He applied pressure where she could not breathe and then loosened the pressure. He did this on about three separate occasions. On the last occasion the victim was unable to breathe. When she opened her eyes to try and see, she could just see light but nothing more. She thought she was going to die. Mr Te Hau then fled from the scene. The victim received significant swelling and bruising to her right eye, her left eye which was almost swollen shut, pain in both ears, bruising around her face, neck, arms, legs, body, chest and almost all over her.
District Court decision
[7] The Judge treated the strangulation and injuring with intent to injure as the lead charges. They occurred at the same time and the Judge guarded against double- counting. The Judge identified a number of aggravating features of this offending: breach of trust, domestic violence within the residential home, it was in the presence of the victim’s four-year-old son who observed the attack, the two or three episodes of strangulation, one close to unconsciousness; the other violence that was occurring, the offending was prolonged over four minutes, and there were significant coercive elements. In terms of the injuring with intent to injure, the Judge added that it was gratuitous violence on a virtually defenceless person lying on the floor, including attack to the head and repetitive assaults to the face and eyes in particular. The Judge considered an overall starting point to be three and a half years’ imprisonment.
[8]The Judge added an uplift of six months for the bar assault.
[9] The Judge added a four month uplift because the offending occurred whilst Mr Te Hau was on a sentence of home detention for another offence of violence (assault with intent to injure) and for Mr Te Hau’s overall criminal history.
[10] The Judge said Mr Te Hau was entitled to a 25 per cent guilty plea discount on the assault charge of one and half months – and included this as a discount in relation to the strangulation charge as well.
[11] The Judge also referred to Mr Te Hau’s sense of dislocation since his return to New Zealand, and to his apology and attendance at restorative justice, and said this warranted a further four and a half month discount.
[12] The Judge imposed a final sentence of three years and ten months’ imprisonment on the impedes breathing/strangulation charge.5
5 With sentences of three years two months’ imprisonment on the injuring with intent to injure charge and four and a half months’ imprisonment on the assault charge.
Approach on appeal
[13] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The appeal court will intervene if the sentence is manifestly excessive or wrong in principle.7 It will not ordinarily intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. The appeal court’s focus is on the final sentence imposed rather than the process by which that sentence was reached.
Discussion
Starting point
[14] There is no dispute that the lead offending was that identified by the Judge, the strangulation and injuring with intent to injure charges. Mr Lack, for Mr Te Hau, submits that the Judge’s starting point was excessive, citing the strangulation cases of Ackland v Police,8 Houkamau v Police,9 T v Police10 and Jenner v Police.11 Mr Lack submits that here a starting point of no more than two years and nine months’ imprisonment was appropriate.
[15] Mr Lack accepts some aggravating features (the domestic context, offending at home, accompanying violence and offending in the vicinity of a child albeit in another room) but submits many aggravating features in other comparable authorities were not present (no threats to kill, no loss of consciousness, injuries less severe, a single incident rather than “prolonged” as the Judge said, and no Protection Order). Mr Lack submits the offending was less serious than that in Ackland, where a starting point of three years and six months (including a three month uplift for an earlier assault) was adopted. He submits the offending somewhat more serious than that in Houkamau, where a two-year starting point was described as stern. He submits that it
6 Criminal Procedure Act 2011, ss 250(2) and (3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179.
9 Houkamau v Police [2019] NZHC 2743.
10 T v Police [2019] NZHC 3375.
11 Jenner v Police [2020] NZHC 62.
was less serious than either T or Jenner, where three year starting points were adopted. I note the starting point in T was said on appeal to be lenient.
[16] Ms Banuelos, for the Crown, submits the starting point imposed is appropriate. She submits that, as a result of Ackland, there are a number of cases on appeal in this Court involving starting points of between three years and three years and three months where the victim has lost consciousness. She submits this range – less than half of the maximum penalty – is too low as loss of consciousness is the “end stop” to the seriousness of a charge of strangulation – beyond that the offender would be charged with murder or manslaughter. She refers to the recent decision of Ellis J in Allan v Police upholding a global starting point of five years for offending involving three charges of strangulation and charges of indecent assault and threatening to kill.12 Ellis J said that each of the two more serious strangulation charges could easily have warranted a starting point of four years.13
[17] In the context of this appeal, I do not see benefit in this Court conducting a further review of sentencing in the wide range of strangulation cases. I will focus on this case. I merely observe that loss of consciousness is, of course, an important aggravating feature of strangulation, without being determinative. As Thomas J said in Houkamau, family violence is an extremely complex area and care is needed not to focus unduly, or only, on what might be described as key factors. In this context, Doogue J made a similar point in T,14 referring to the Supreme Court’s statement in Hessell that sentencing must involve “a full evaluation of the circumstances to achieve justice in the individual case”.15
[18] In this case, the Judge said the victim did not lose consciousness but she was “very close” to unconsciousness and thought she was about to die. Given that, and the other aggravating features identified by the Judge (even if not “prolonged”), it was a serious case of strangulation. It involved repeated instances of impeding breathing, which amounted to controlling and coercive behaviour. The trial Judge was best placed to assess the element of coercion involved in the repeated pressure and release.
12 Allan v Police [2021] NZHC 379.
13 At [26].
14 T v Police [2019] NZHC 3375 at [35].
15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
I accept that this case does not involve previous violence between Mr Te Hau and the victim. But coercive conduct does not require previous violence. As Mr Lack acknowledges, the absence of aggravating features present in other strangulation cases is not ordinarily a mitigating factor. In addition, the Judge’s starting point included the separate charge of injuring with intent to injure. The victim suffered significant bruising. The combined starting point for the strangulation and injuring with intent to injure charges of three and a half years’ imprisonment was not excessive.
Uplift for the assault
[19] Mr Lack submits that this assault was of moderate severity, and hence that no more than a four-month uplift was appropriate having regard to totality. Ms Banuelos agrees the assault was within the moderate range but submits a six month uplift was appropriate. I consider that the six month uplift was at the high end of the appropriate range given totality.16 Overall, I do not consider the adjusted starting point was excessive.
Mr Te Hau’s conviction history
[20] Mr Lack submits that Mr Te Hau has a limited conviction history in New Zealand and no violent convictions in Australia. He submits that, by applying an uplift for these matters, Mr Te Hau was penalised again for a matter on which he had already been sentenced. He submits at most a two month uplift could have been justified. Ms Banuelos submits the Judge’s uplift was warranted.
[21] The Judge imposed a combined uplift for both Mr Te Hau’s conviction history and the fact that his offending took place while he was on home detention. This is not double counting. But Mr Te Hau’s criminal history is not extremely severe. I accept his Australian history was not similar. Only a modest uplift for previous convictions could be justified. But an uplift for offending while on a sentence for other violent offending was easily justified. Even so, a combined four-month uplift was high.
16 I note, for example, that in Ackland the more serious secondary charge of assault with a weapon attracted a six month uplift.
Is the overall sentence manifestly excessive?
[22] Having accepted the Judge’s starting point, I do not consider the end sentence was manifestly excessive even if the uplifts could have been lower by a total of two or three months. That would be tinkering. Also, adopting the two stage approach now reflected in Moses v R,17 the second stage incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point. Reducing the assault uplift would therefore also proportionately reduce the effect of the net discount.18
Result
[23]The appeal is dismissed.
Gault J
17 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].
18 The calculation required by Moses is complicated here by the fact that the guilty plea applied only to one charge and the 25 per cent discount was based on the uplift for that charge.
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