Te Kiri v The King
[2024] NZHC 122
•8 February 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2023-463-64
[2024] NZHC 122
BETWEEN MACK ABRAHAM TE KIRI
Appellant
AND
THE KING
Respondent
Hearing: 2 February 2024 Appearances:
A Cresswell for the Appellant G Banuelos for the Respondent
Judgment:
8 February 2024
JUDGMENT OF HARVEY J
[Appeal against sentence]
This judgment is delivered by me on 8 February 2024 at 4.15 pm.
.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Annabel Cresswell, Barrister, Auckland Crown Solicitor, Rotorua
TE KIRI v R [2024] NZHC 122 [8 February 2024]
Introduction
[1] Following a judge-alone trial at Rotorua,1 Mack Te Kiri was convicted of three charges of assault with intent to injure;2 two charges of assault with a weapon;3 one charge of male assaults female;4 wounding with intent to injure;5 two charges of threatening to kill;6 one charge of indecent assault;7 three charges of contravention of a protection order;8 three charges of strangulation;9 and eight charges of assault on a person in a family relationship.10 On 24 May 2023, he was sentenced by Judge D J McDonald to nine years’ imprisonment.11
[2] Mr Te Kiri now appeals to this Court on two principal grounds. First, that his sentence was manifestly excessive because the starting point and uplifts applied by the District Court Judge in sentencing were excessive. Second, that the discount allowed for his cultural report was insufficient.
[3]The Crown opposes the appeal.
The offending
[4] Between 2018 and April 2022, the appellant and the victim were in a relationship which the evidence confirms was characterised by family violence. The first instance of the appellant’s violence toward to the victim occurred in 2018 when he punched her in the face with sufficient force to knock her to the ground. He then strangled her with a charging cord. Later in 2018, the appellant and victim were arguing on Lake Road when the appellant punched the victim in the head, causing her to lose consciousness. In April 2019, the appellant punched the victim in the face, causing a nosebleed and a split lip. At some point between April 2019 and July 2019, the appellant again used a charging cord to strangle the victim. In December 2020,
1 R v Te Kiri [2023] NZDC 4657.
2 Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.
3 Section 202C(1). Maximum penalty of five years’ imprisonment.
4 Section 194. Maximum penalty of two years’ imprisonment.
5 Section 188(2). Maximum penalty of seven years’ imprisonment.
6 Section 306(1)(a). Maximum penalty of seven years’ imprisonment.
7 Section 135. Maximum penalty of seven years’ imprisonment.
8 Family Violence Act 2018, s 112(1)(a). Maximum penalty of three years’ imprisonment.
9 Crimes Act, s 189A. Maximum penalty of seven years’ imprisonment.
10 Section 194A. Maximum penalty of two years imprisonment.
11 R v Te Kiri [2023] NZDC 10468.
the appellant threatened to kill the victim with an air gun, before threatening grievous bodily harm with a sword. He then proceeded to physically restrain the victim and indecently assaulted her. Violence of varying natures continued throughout 2021 and the victim obtained a protection order in December 2021.
[5] The lead charges relate to three occasions of the appellant strangling the victim in January 2022, March 2022, and April 2022. In January 2022, the appellant strangled the victim, and also threatened to kill her, pushed her onto the carpet and a chair with sufficient force to cause friction burns, hit her head against a windowsill, and repeatedly punched her. In March 2022, the appellant strangled the victim and repeatedly punched her. Finally, in April 2022, the appellant placed the victim in a headlock before strangling her and punching her.
District Court decision
[6] The Judge outlined the facts set out above, noting that Mr Te Kiri used “classic control and dominance tactics” to control the victim, including demanding to check her cellphone, isolating her from her friends, family and children, and using strangulation and other forms of violence to reinforce his dominance over the victim.
[7] He also noted that the appellant was being sentenced for the five charges of strangulation and associated offending, the assault with a weapon in 2018, and the wounding with intent in April 2019. The Judge considered several aggravating factors, including that the appellant strangled the victim close to the point of unconsciousness, that there was associated violence, that there was a background of using strangulation before the serious uses of strangulation, and that a child was present in several instances of offending.
[8] The Judge set out a starting point of six years’ imprisonment on the basis that the strangulations, associated violence, and breaches of the protection order drew the offending towards the more serious end of such offending, with reference to the guideline judgment for strangulation offending, Shramka v R.12 He then uplifted the
12 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.
starting point by four years for the remainder of the offending, bringing the total starting point to 10 years’ imprisonment.
[9] In considering the appellant’s cultural report, the Judge saw “very little nexus between [the appellant’s] upbringing” and the offending against the victim. Despite this, the Judge gave the appellant a discount of 10 per cent, bringing the final sentence to nine years’ imprisonment.
Approach on appeal
[10] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that for any reason, these is an error in the sentence imposed on conviction; and that a different sentence should be imposed. In any other case, the Court should dismiss the appeal.13
[11] The concept of “manifestly excessive” as an error in sentencing is also well- settled.14 Even if the court below has erred in its sentencing approach, the appellate court cannot “tinker” with the end sentence if it is nonetheless within range.15
[12]Section 85 of the Sentencing Act 2002 is also relevant:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
…
13 Criminal Procedure Act 2011, s 250(2).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].
15 At [36].
Submissions
[13] For the appellant, Ms Cresswell, while accepting that starting point of six years’ imprisonment adopted for the lead charges of strangulation was appropriate, submitted that the uplift of four years adopted for the remaining charges was excessive
— more so given that this exceeded the starting point sought by the Crown on those charges. Counsel contended that as a higher uplift was adopted, the Judge needed to adjust the end sentence to reflect the totality principle. In this context, Ms Creswell cited s 85 of the Sentencing Act 2002. Counsel argued that the Judge failed to appropriately apply the totality principle by imposing cumulative sentences which were out of proportion to the gravity of the appellant’s overall offending.
[14] On the second ground of appeal, Ms Creswell submitted that the Judge failed to give an appropriate discount for the matters raised in the appellant’s s 27 cultural report. In particular, counsel contended that the Judge “appears to have dismissed some of the serious matters raised in the report, because they were self-reported.” She highlighted that the Judge was critical of the report-writers for “regurgitating” the appellant’s words and failing to provide corroborating evidence, particularly regarding the appellant’s reported experiences of sexual and physical abuse. Overall, during her oral submissions and in response to my question on a final outcome, Ms Creswell argued that an end sentence of five years’ imprisonment was just.
[15] For the Crown, Ms Banuelos submitted in summary, that the sentence imposed was appropriate and the appeal should be dismissed. As to the starting point, counsel contended that the Judge was correct to take account of the various aggravating factors involved in the repeated strangulation charges. She also pointed out that the Crown had sought a starting point of seven years’ imprisonment for the three instances of strangulation and associated violence but the Judge had instead applied the figure of six years’ imprisonment for these charges.
[16] On the issue of totality, counsel contended that the Judge correctly analysed the facts and the numerous occasions where the victim had been assaulted. Given the volume of offending, Ms Banuelos argued that it was appropriate for the Judge to impose an uplift of four years’ imprisonment in the context of totality. The Judge also
highlighted, according to Ms Banuelos, that totality was effectively front and centre of his consideration when determining the uplift of four years. This was, in any event, congruent with the Crown sentencing submissions. More importantly, Ms Banuelos underscored, the uplift of three years’ imprisonment sought was on the basis that the starting point would be seven. This would have then resulted in an overall starting point of ten years’ imprisonment. So, even though the Judge calculated this in a different manner, overall, his approach was consistent with that articulated by the Crown.
[17] Moreover, Ms Banuelos argued that, taking account of Clark v R, where the Court of Appeal underscored that the totality principle is not a discount for bulk offending, the Judge’s assessment and calculation of the starting point in the context of totality was appropriate.16
[18] Regarding the appellant’s cultural report, counsel submitted that the Judge was also correct in describing how there was “very little nexus” between his upbringing and the offending resulting in a discount of 10 per cent. Another relevant consideration in this context, according to counsel, is the offender’s willingness to rehabilitate. Yet here the appellant denies the offending still without any display of remorse or insight. As a result, counsel says any higher discount as sought by the appellant is not appropriate.
Discussion
[19] As both counsel accepted, the starting point adopted for the strangulation charges was congruent with Shramka and should not be disturbed. The Judge identified that the nature of the strangulation offending fell on the “cusp of moderate to worst, slightly in favour of the worst.”17 The Court in Shramka confirmed that strangulation offending which engaged most of the eight identified aggravating factors18 would compel a starting point in the range of five-and-a-half years’ imprisonment.19 Where there was a history of strangulation or very serious family
16 Clark v R [2013] NZCA 63.
17 R v Te Kiri, above n 11, at [25].
18 Shramka v R, above n 12, at [42].
19 At [47].
violence, a six-year starting point would be adopted. The relevant aggravating factors were present in the appellant’s case and appropriately applied; though I note that the starting point here suggests a finding of the highest-level strangulation offending rather than “moderate to worst”.
[20] Regarding uplifts, the Judge did not fail to properly consider the totality principle, as it is referenced several times in his sentencing notes. He pointed out that he took particular account of the repeated nature of the assaults, the use of a charging cord and airgun as weapons, the complainant’s vulnerability, and the unprovoked nature of the attacks. He described a potential standalone starting point of two to three years for the offending having taken place over 2018 and 2019 (two assaults with intent to injure), and a 12-month standalone starting point for the charge of wounding with intent to injure. The Judge confirmed that he would “not go through all of them”, referring to the extensive number of assaults.
[21]He then said:
[29] In allowing for totality – which is not always given – in my view, the submission made to me by the Crown of three years is too low. I set a start point for all the other offending at four years. That means a start point for your offending, taking into account all the aggravating and mitigating factors of the offending, of 10 years.
[22] The language of s 85 of the Sentencing Act 2002 directs that the Court must not impose cumulative sentences which are out of proportion to the gravity of the offending. As a starting point at the higher end of the scale was adopted for the lead charges of strangulation, I do not consider that an uplift of four years — also at the higher end of the range — was justified, particularly without more fulsome reasons. Totality must be carefully considered, especially where the offending is closely related, and the relevant aggravating factors are applicable to multiple offences, as is sometimes commonplace in family violence offending. After careful reflection, taking account of the principle of totality and standing back, I consider that an appropriate uplift for the remaining charges is three years, six months’ imprisonment. To avoid doubt, for the seriousness of the offending and the number of times the victim had been subject to, inter alia, strangulation, I do not accept Ms Creswell’s submission that an end sentence of five years imprisonment is appropriate or justified.
[23] In addition, I do not consider the Judge erred in applying a discount of 10 per cent for factors identified in the appellant’s s 27 report. Allowing discounts on sentence is highly discretionary and the sentencing Judge is best placed to make those decisions, having the benefit of access to the relevant reports and being proximate to the case as a whole. A discount of 10 per cent is within range of what was available and reflects the Judge’s view of the appellant’s background and its effect on his offending. This ground of appeal cannot succeed.
[24] Even so, and by way of observation, the comments regarding the lack of corroboration in the s 27 report — the appellant’s reported experiences of physical and sexual abuse by family members — need to be considered in light of Zhang v R. The Court of Appeal has confirmed that offenders must show a “demonstrative nexus” between background and offending for discounts to be appropriate.20 Such an exercise requires an accounting of personal experiences. It is common, particularly where sexual violence, violence within families, or suicidality is involved, for those experiences to be sources of shame or taboo. The appellant’s report included many of those factors. He was supported by one of his sisters, who spoke to the report writer in corroboration.
[25] That is not to say that such self-reporting must always be slavishly accepted. There will be instances where defendants might exaggerate or manufacture, wholly or in part, such experiences in a forlorn attempt to try and improve their sentencing prospects. Again, the Judge was best placed to determine whether the factors described in the report were sufficiently proximate to diminish the appellant’s culpability. Yet that is a different assessment to whether the account was credible on the basis of external recognition or an evidential criterion, as seemed to be suggested:
[33] What is unusual is that the report writers do not think it is necessary for me to be told what “A”’s full name is, nor whether any of your sisters complained to the police about the sexual abuse or the violence.
[26] At the risk of belabouring the point, the failure or refusal to report crimes, particularly those involving close family or friends, will not always mean the claim is suspect. A number of factors can arise in this context. For example, victims of abuse
20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
may seek to protect themselves or others from reprisal by not reporting that misconduct. As foreshadowed, the very real barrier of shame experienced by victims of sexual and physical violence can deter formal reporting to authorities. They may never speak to others about the abuse or seek help from police. There are limits to the credence afforded to such accounts, but an approach to self-reporting that suggests a lack of formal reporting to authorities may be fatal, might risk failing to properly take account of the sociological reality in which these events can occur.
Decision
[27] The appeal is allowed in part. The sentence of nine years’ imprisonment is quashed and substituted with a sentence of eight years, six months’ imprisonment.
Harvey J
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