Te Puni v Police

[2019] NZHC 762

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-416-4

[2019] NZHC 762

BETWEEN

TALON TE PUNI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing via AVL:	9 April 2019
Counsel:	M Mitchell for Appellant N Wright for Respondent
Judgment:	9 April 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Te Puni appeals against the sentence of 13½ months’ imprisonment imposed by Judge Cathcart in the Gisborne District  Court on 28 February 2019.1   Mr Te Puni’s sentence was imposed on one charge of injuring with intent to injure.2

[2]    Counsel for Mr Te Puni, Mrs Wright, submits that the sentence should be quashed, and a sentence of home detention be imposed, if Mr Te Puni is able to provide a suitable address.

1      New Zealand Police v Te Puni [2019] NZDC 3842. He was also sentenced to one month imprisonment on one charge of breaching bail, to be served concurrently.

2      Crimes Act 1961, s 189(2) [maximum penalty of five years’ imprisonment].

TE PUNI v NEW ZEALAND POLICE [2019] NZHC 762 [9 April 2019]

Factual background

[3]    On 2 June 2018, the victim, Mr Crawford, was socialising with friends at an address not far from  where  Mr  Te  Puni  was  celebrating  his  cousin’s  birthday. Mr Crawford and Mr Te Puni did  not  know  each  other.  At  approximately 8pm, Mr Crawford decided to walk to another friend’s house a few streets away. He crossed paths with two young men standing outside a party; one of these men was Mr Te Puni. Mr Te Puni yelled out to Mr Crawford, and he stopped to speak with the young men in the middle of the intersection on the road.

[4]    As Mr Crawford stood  there  talking  to  Mr  Te  Puni  and  his  associate,  Mr Te Puni, without warning, using his entire body weight, punched Mr Crawford in the face. It was described as a “king-hit” and has been accepted by Mrs Wright as being appropriately so described.

[5]    Mr Crawford was hit so hard that witnesses described him as falling straight backwards with his arms at his sides onto the road. As he hit the ground, he lay there not moving and began making noises described by the witnesses as snoring sounds. Blood began coming from his nose and ears; he was unconscious.

[6]    Although it has been asserted by Mrs Wright that there is a possible reconciliation between the contents of the summary of fact which records that after hitting Mr Crawford, Mr Te Puni stopped and put him in the recovery position, and the alternative evidence that was before the Court in the summary of fact that he simply walked away, this Court is bound by the summary of fact. It does not appear that there was any challenge to that summary of fact in the Court, and it clearly says that after the assault Mr Te Puni went back to the party and it was the passers-by who came to the assistance of Mr Crawford, who was at that point still laying in the middle of road. It was those passers-by who assisted Mr Crawford until the ambulance arrived, not Mr Te Puni.

[7]I approach this appeal on the basis that those were the facts.

[8]    The consequences for Mr Crawford as a result of this assault have been considerable. In terms of his injuries, Mr Crawford was knocked unconscious,

suffered multiple contusions and had bleeding beneath his skull. He also had a fractured temporal bone behind his ear and spent two days in the intensive care unit at Gisborne Hospital. Mr Crawford’s victim impact statement outlined a range of further complications and permanent damage suffered as a result of the brain injuries sustained.

[9]    Mr Te Puni’s explanation to Police was that he did not remember what the men had been talking about, and he said “I don’t know why I did it. I put him into the recovery position when he started fitting though”. As I have just indicated, the Court does not accept that latter statement.

[10]Mr Te Puni was 20 years old at the time of the offending.

[11]   Mr Te Puni was charged on 13 June 2018 with wounding with intent.3 He was released on bail but on 19 July, he was charged with breaching that bail by failing to attend Court when required. Mr Te Puni pleaded guilty to the lesser charge of injuring with intent to injure, following the Police amendment of the charge.

District Court decision

[12]   Judge Cathcart sentenced Mr Te Puni to 13½ months’ imprisonment on the charge of injuring with intent, along with a concurrent sentence of one month imprisonment on the charge of breaching his bail conditions.

[13]   His Honour began his sentencing exercise by including portions of the victim impact statement, as read out by Mr Crawford at the sentencing hearing. That statement reflects the severe impact this offending had on Mr Crawford above and beyond the serious injuries he suffered at the time of the attack. As a result, he has permeant damage to his smell and taste nerves, MRI scans have shown he has permanent damage on his brain to an area that controls emotions and he is required to see neurologists, rehabilitation physiotherapists, ear and nose specialists and optometrists. He now has to wear prescription glasses. At the time of the sentencing he had not returned to work and was unsure if he would ever be able to. Simple

3      Section 188(2) [maximum penalty of seven years’ imprisonment].

questions make him erupt into anger, as he has less control over his emotions, and that has caused serious disruption to his family dynamic.

[14]   His Honour then turned to his analysis. He began by noting that Police had filed written submissions contending a starting point of 24 months, on the basis that this offending falls within Band 2 of the tariff decision in Nuku v R.4 The Judge recorded that given the severity of the injuries (both mental and physical) suffered by Mr Crawford, counsel for Mr Te Puni accepted that a starting point of 24 months’ imprisonment was appropriate. His Honour agreed that a two-year starting point was appropriate and uplifted that by one month to account for the charge of breaching bail. This resulted in a starting point of 25 months’ imprisonment.

[15]   The Judge went on to consider mitigating factors of the offender. He accepted that while Mr Te Puni was legally an adult, discounts for youth was sometimes given to offenders of his age. He noted that the applicable principles as outlined by the Court of Appeal in Churchward v R were Mr Te Puni’s capacity to rehabilitate, the offending was impulsive (which is characteristic of youthful offending) and that a long sentence would be “crushing” for Mr Te Puni due to his youthful status.5 For youth, the Judge gave a six month discount which reduced the sentence to 19 months’ imprisonment.

[16]   Judge Cathcart then went on to discuss the PAC report, which suggested a sentence of community detention and supervision. The Judge explicitly stated that “I regard that as wholly inadequate” and went on to say that, in his view, it “clearly fails to reflect the seriousness of the offending and its effect on Mr Crawford”. As a result, the Judge put this recommendation to one side.

[17]   However, the Judge did review the PAC report closely and noted that the writer said that Mr Te Puni was “sincerely apologetic” for his offending behaviour. The Judge stated that although Mr Te Puni said he had difficulty remembering what had occurred that night, he recognised his remorse. The Judge recorded that Mr Te Puni’s

4      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

5      New Zealand Police v Te Puni, above n 1, at [12] citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

demeanour in Court indicated that he was ashamed. An extra discount of one month was given for remorse. The sentence was then at 18 months’ imprisonment.

[18]   Finally, Judge Cathcart moved on to give Mr Te Puni a discount for his guilty plea. The Judge afforded Mr Te Puni a discount of four and a half months, being the full 25 per cent discount available. The end sentence was one of 13½ months’ imprisonment. The Judge continued on to consider whether, having regard for the principles and purposes of sentencing, home detention was the least restrictive outcome appropriate in the circumstances. Mrs Wright has made a submission that the Judge failed to have regard to that factor. However, it is clear from considering the decision as a whole that he has applied his mind to that.

[19]   The Judge began this portion of his analysis by acknowledging that “home detention of its own right is not a soft sentence”. He accepted that the principles of deterrence and denunciation can be met in given cases by a sentence of home detention but stressed that every case depends on its facts. Here, the key principles the Judge saw  relevant  were  holding  Mr  Te  Puni  accountable  for  the  harm  caused  to   Mr Crawford and to promote a sense of responsibility for, and acknowledgement of, that harm. Also, at the forefront of the Judge’s considerations was the need to denounce and deter this conduct, with particular reference to “deter[ing] others like- minded to deliver “king hits” in the Gisborne/East Coast region”.6

[20]   Ultimately, the Judge concluded that with all relevant factors taken into account, with express mention of Mr Te Puni’s capacity for rehabilitation, that s 16 of the Sentencing Act 2002 was satisfied (meaning no other sentences would be consistent with the principles and purposes of sentencing).

[21]   He highlighted that by saying “as is plain today, Mr Te Puni, everyone now recognises you came very close to killing Mr Crawford. You were fortunate he recovered from that king hit blow”.7 He also noted his express view that no combination of other sentences, apart from imprisonment, would meet those principles

6 At [17].

7 At [18].

and purposes. In concluding, he said “you need to be held accountable for the harm to Mr Crawford. You will be sent to jail, Mr Te Puni”.8

Grounds of appeal

[22]   Mr Te Puni filed a notice of appeal on 25 March 2019. The sole ground of appeal articulated in the notice of appeal, and confirmed in counsel’s written submissions, is that Judge Cathcart erred in failing to substitute a sentence of home detention.

Standard of appeal

[23]   Mr Te Puni has a general right to appeal his sentence under s 244 of the Criminal Procedure Act 2011 (CPA). Pursuant to s 250(2) of the CPA, the appeal must be allowed if there has been an error in the sentence imposed that rendered the sentence manifestly excessive, and a different sentence should have been imposed.

[24]   Following the approach in Tutakangahau v R, it must be shown that an error occurred in forming the appellant’s sentence, and that this error resulted in a sentence that was outside the range that could properly be justified by accepted sentencing principles. The focus is always on the end sentence, rather than the process by which it was reached. An appellate court will not intervene where the sentence is one that can properly be justified by accepted sentencing principles.9

[25]   In the context of her oral submissions to this Court, Mrs Wright has adverted to the fact that Mr Te Puni offered an emotional harm payment. She submitted that the Judge should have had regard to that as well. For the Crown, Ms Mitchell, submitted that although the Judge did not expressly refer to this matter in his sentencing notes, it could be inferred that as a result of giving both the maximum discount for the guilty plea, and a separate discount for remorse, that the Judge had, in effect, had some regard to the offer of the emotional harm payment. It is not clear that the Judge did apply his mind in that way. However, it is my function to look in totality at the sentence rather than the precise method by which the Judge has calculated the

8 At [19].

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29] – [30] and [36].

appropriate sentence. It is my view that in the circumstances, given the substantial discounts, it is unlikely that any express further discount in relation to an offer of emotional harm reparation, which I note was not actually paid, would have affected the result.

[26]   The approach to appeals relating to the imposition of imprisonment where the length of sentence would mean that home detention is technically available has been described by the Court of Appeal as follows:10

[11]              This Court identified the appropriate approach in James v R in this way:11

[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? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied that, in accordance with the earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[12]              We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below.

[27]   These principles were more recently affirmed in Twomey v R by the Court of Appeal.12

Relevant law

[28]   The tariff case for this type of offending is Nuku v R, where the Court of Appeal set out the following sentencing bands:13

(a)Band one: where there are few aggravating factors, the level of violence is relatively low and the sentencing judge considers the offenders culpability to be at a level

10     Manikpersadh v R [2011] NZCA 52 at [11] – [12].

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

12     Twomey v R [2018] NZCA 206.

13     Nuku v R, above n 4, at [38].

that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)Band two: a starting point of up to three years; imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating factors set out in Taueki are present and the combination of those factors is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that will generally require a starting point within band three, even if there are few aggravating factors.

[29]The aggravating factors as outlined in Taueki are as follows:14

(a)Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous.

(b)Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence.

(c)Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for…. This is particularly the case where the injuries are potentially fatal or are such as to cause long-term or permanent disability impacting on the victim’s quality of life.15

(d)Use of weapons: …

(e)Attacking the head: Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head

14   R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31] (fuller details included only for those which are potentially relevant to Mr Te Puni’s offending – the expanded details on premeditation are included to show that, with an impulsive assault, culpability is slightly less than a premeditated attack).

15 Counsel for Mr Taueki argued that the focus should be on the actions of the defendant, not the consequences for the victim (because it can sometimes be a matter of luck how bad resulting injuries are). The Court (at [31(c)]) accepted that submission as far as it goes, but noted that the offending in question here is the “intentional inflicting of serious injury”. The Court went on to acknowledge that care needs to be taken not to double-count the level of violence inflicted and the seriousness of the injuries resulting.

injuries, the offender’s conduct will be treated similarly to offending involving a weapon.

Submissions

Mr Te Puni

[30]   Mrs Wright, counsel for Mr Te Puni, submits that Judge Cathcart erred in failing to substitute a sentence of home detention in place of 13½ months’ imprisonment. She accepts that the injuries to Mr Crawford were significant but submits that to uphold a sentence of imprisonment would be to “continue the tragedy”.

[31]   She submits the Judge erred in law when he decided against home detention, which was contrary to the view of the PAC report writer and the defence submissions. She also states the New Zealand Police conceded at the sentencing hearing that home detention was the appropriate outcome. Having raised that issue with both Mrs Wright and Ms Mitchel, I think it is more accurate to say that at the defence hearing, the Police accepted that, if the Court was minded to impose home detention, the Police would not oppose that course.

[32]   Mrs Wright submits that the sentence imposed on Mr Te Puni is irreconcilable with the sentence imposed in R v Feleti.16 In that case, the High Court was faced with a conviction for manslaughter for, what was described by counsel as a single punch assault.17 The offending was classified as rash and impetuous.18 Mr Feleti lived with his parents, was young, had community support, a low risk of reoffending, no previous convictions for violence and was attending counselling. The Court’s assessment was that prison would have a harmful effect on the defendant and despite the death of his victim, home detention was assessed as the appropriate sentence in that case.

[33]   Mrs Wright further submits that there are two cases referred to at sentencing that demonstrate home detention as the appropriate outcome. These are Takerei v New Zealand Police and Elizalde v Police.19 She submits that Mr Te Puni is not at the

16     R v Feleti [2019] NZHC 94.

17     This case did not involve a “single-punch assault”, albeit it was considered to be somewhat analogous

18 At [24].

19     Takerei v New Zealand Police [2014] NZHC 3360 and Elizalde v Police [2015] NZHC 959.

state where imprisonment is the only adequate outcome and contends further that support for this is found in the case of Dean v Police.20

[34]   Counsel accepts and expressly notes that “it is not denied that [the] victim suffered irreversible brain damage”. However, she submits that Judge Cathcart was “overwhelmed” by the effect of the assault on Mr Crawford. She points out again that Mr Crawford survived the attack, unlike the victim in Feleti. She submits that the irreversible brain damage must be viewed in the context of a single, spontaneous strike by a youthful defendant.

Police submissions

[35]   The Crown rely on the approach articulated by the Court of Appeal in James v R21 and the requirement on an appellant to show that a material error was made by the Judge in refusing to commute a prison term into a sentence of home detention. Reference was also made to the comments of the Court of Appeal in Tutakangahau v R: The Court said:22

… the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentence.

[36]   The Crown submit that the sentencing Judge did not fail to take into account any relevant factors nor take into account any irrelevant matter.

Analysis and discussion

[37]   At first blush the decision in Feleti is not easily reconciled with the sentence imposed here. However, upon closer review, I do not accept that, in reality, the two are inconsistent. In my view there are clear, and material, factual and personal differences between Mr Feleti in his offending and Mr Te Puni in his offending.

[38]   Mr Feleti was 18 years old and the victim, Mr Holloway, was 19 years old.23 They worked together as machine operators at a packaging company. One night while

20     Dean v Police [2014] NZHC 1542.

21     James v R, above n 11.

22     Tutakangahau v R [2014] NZCA 279 at [30].

23     R v Feleti, above n 16.

working, Mr Feleti mis-fed a cardboard machine and some fell out on the ground.  Mr Holloway picked it up and threw it at Mr Feleti, which caused an argument between the two men. The two walked towards each other as if they were about to fight, when a colleague separated them and reminded them it was not worth losing their jobs over. They both returned to the machine, but shortly after that, Mr Feleti picked up a “metal machine tool” and threw it at Mr Holloway, who was not standing far away on the other side of the machine. The tool was described as follows:

[6]   The T-shaped tool was approximately 25 cm long and 14 cm wide,    and  weighed  364  grams.  So  it  was  not  very  big  or  heavy,  but  it  hit Mr Holloway in the face and he fell to the ground, bleeding heavily.

[39]   Mr Feleti panicked and immediately apologised and tried to give Mr Holloway first aid. I would note there that that is a significant distinguishing feature in relation to the actions of Mr Te Puni in this case. Tragically, Mr Holloway died a short time later as a result of a penetrating injury to his left cheek, immediately below his left eye. Police attended the scene and found Mr Feleti upset and immediately expressing remorse. Again,  I would note that is a significant distinction from the situation of  Mr Te Puni who returned to the party after the king hit to Mr Crawford. Mr Feleti explained that he had lost his temper and threw the tool at Mr Holloway’s stomach; he did not know how it had stabbed him in the eye region.

[40]   Toogood J noted that both the families of Mr Holloway and Mr Feleti were victims in this case too. The Judge began his sentencing analysis with a discussion of the key sentencing principles applicable in this case, namely the need to denounce Mr Feleti’s conduct, to hold him accountable for the harm and to deter him and others from resorting to violence. He also noted the need to consider the purpose of rehabilitation for an offender, reintegration and the need to impose the least restrictive outcome in the circumstances.

[41]    In discussing whether the offence could be one classified as involving a “weapon”, the Judge noted:24

[20]      … I think characterising your offending as an attack with a weapon, however, is somewhat misleading; and I  respect  and  am  able  to  adopt  Mr Radich’s submission for the Crown that this was a deliberate act but one

24     (emphasis added).

which might also be regarded as a freak accident; certainly the consequences were not intended by you.

[21]      The tool you threw at Mr Holloway was evidently capable of killing him. But you did not use it with that purpose in mind. You did not go and get it from somewhere else. It just happened to be lying close at hand when you made the rash decision to pick it up and throw it at Mr Holloway in much the same manner as he did when he threw a piece of cardboard at you…

[42]   He went on to acknowledge that striking the head of the victim made the offending more serious, and although the tool had struck Mr Holloway in the head it was not proven that Mr Feleti had aimed for his head. Again, I note that this is a significant distinguishing feature  to  the  present  case.  The  Judge  accepted  that Mr Feleti was aiming for his stomach and because of that, opined that “it can[not] be said that Mr Holloway’s death was foreseeable to any degree when [Mr Feleti] threw the tool at him”. The Judge accepted that while it was, of course, foreseeable that harm would occur, it could not be said that Mr Feleti “must have known that serious injury, let alone [Mr Holloway’s] death, was likely to result”.25

[43]Toogood J went on to describe his view of the offending as follows:

[24] Overall, this is how I view your offending. It was not a considered attack. There was no plan and no premeditation. You made a rash and impetuous decision in the spur of the moment. That is not to say it was not extremely reckless and dangerous – the tragic result shows that. But it was also thoughtless and lacking any vicious intent or premeditation. You realised what you had done was wrong almost as soon as you did it. You immediately rushed to Mr Holloway’s aid after he was struck by the tool and tried to help him.

[44]   A starting point of three years was adopted. An uplift of two months was given because this offending occurred while on bail for another charge (which had yet to be determined, so he had no previous conviction history).

[45]   The Judge moved on to note that it is in the community’s best interests to “give an offender who is not perceived as a risk of further violence – particularly one as young as Mr Feleti – the best chance not to repeat the mistake”.26

25 At [22].

26 At [27].

[46]   Ultimately, the end sentence reached was 20 months’ imprisonment. The Judge then turned to consider home detention. The Judge noted the Crown accepted there was nothing precluding home detention in the PAC report. The Judge then recorded that Mr Feleti was a “suitable candidate and living at home with [his] parents and [his] siblings” which was seen as appropriate. He went on to say that a number of factors demonstrated strong prospects of rehabilitation, including age, remorse, career aspirations (courses currently enrolled in and actively pursuing), ongoing support of his family and community, no previous violence convictions, PAC report assessment as him having a low risk of reoffending and “importantly” that he had taken real steps to address the root of his offending by voluntarily participating in the “Living Without Violence” programme.

[47]Ultimately, a sentence of 10 months’ home detention was imposed.

[48]   In my view, there are key differences between Mr Te Puni’s offending and personal circumstances and  that  of  Mr  Feleti,  but  given  the  importance  that  Mrs Wright has placed on the comparison between the decision in Feleti and the decision of the District Court Judge in this case, it is important that I set out what I find to be those differences:

(a)Differences in offending and foreseeable injuries: Mr Feleti’s actions were described as “lacking any vicious intent” and Toogood J observed that it could not be said that Mr Feleti “must have known that serious injury… was likely to result”. That same thing cannot be fairly said in respect of Mr Te Puni’s actions. He wound up and, seemingly out of nowhere, with his whole body weight behind him, punched   Mr Crawford directly in the face with such force that he fractured his temporal bone, knocked him unconscious, caused internal brain bleeding and permanent brain damage. I accept it was impulsive and lacked premeditation, but it can fairly, in my view, be characterised as “vicious”. Mr Te Puni must have known that serious injury was likely to result from this assault. Additionally, unlike the manslaughter charge in Feleti, Mr Te Puni has been convicted of a charge that, as an intrinsic feature, includes “injuring with intent”. A further key difference is that

Toogood J accepted Mr Feleti’s evidence  that  he  was  aiming  for Mr Holloway’s stomach (which made the foreseeability of serious harm less  likely).  Here,  Mr  Te  Puni  clearly  aimed  straight  for  Mr Crawford’s head with the intention of injuring him.27 There is a further distinction, I think,  in  that  Mr  Feleti  threw  an  object  at  Mr Holloway whereas Mr Te Puni punched Mr Crawford directly in the face. The intentional violence seems objectively higher in Mr Te Puni’s case. Indeed, Toogood J described Mr Feleti’s offending as “a deliberate act but one which might also be regarded as a freak accident; certainly the consequences were not intended by you”. In my view, the actions of Mr Te Puni’s assault, and the resulting consequences, cannot fairly be described as a “freak accident”.

(b)Callousness of the act: Mr Feleti, almost as soon as the tool left his hand, ran to Mr Holloway’s aid apologising and trying to perform first aid and/or assist him. This is very different to the response of Mr Te Puni, who after punching Mr Crawford, left him on the road unconscious and bleeding and returned to his party. When Mr Feleti was questioned by Police, he apologised and expressed immediate remorse. While Mr Te Puni appears to express remorse now, too, the actions immediately after the offending are in stark contrast to those of Mr Feleti.

(c)Previous convictions and addressing the source of the offending: One of the key reasons behind imposing home detention on Mr Feleti was his prospect of rehabilitation, with particular reference to the important efforts he was making to address the source of his offending

– his difficulty dealing with and reacting to conflict – by participating in the “Living Without Violence programme”. Coupled with this was the complete absence of any previous violent convictions for Mr Feleti. The same cannot be said for Mr Te Puni. He has a previous conviction for male assaults female (and while I accept it is from 2015 and did not

27     As mentioned above, deliberate attacks on the head is an aggravating feature of offending of this kind (as outlined in R v Taueki, above n 14).

merit any increase in the sentence, I do not accept counsel’s submission that it was historic in nature. It does, in a way, show Mr Te Puni has a history, at least once, of offending violently).28 Further, Mr Te Puni does not have an explanation for why he attacked Mr Crawford, a complete stranger who he did not know. He offered no explanation for the events leading up to the assault whatsoever. He cannot be said to be doing anything to address the root of his violence. Mr Feleti explained the conflict that had occurred between the work colleagues, and while his gross overreaction was wrong, it does provide some prospect of rehabilitation that is stronger than what can be said about Mr Te Puni’s offending.

[49]   For these reasons, I do not accept that the sentence in Mr Te Puni’s case is irreconcilable with the sentence in Mr Feleti’s case. The other cases referred to by Mrs Wright do not, in my view, change the position. Each case must turn on its facts. In  Mr  Te  Puni’s  case,  the  seriousness  of  the  long-term  injuries  sustained  by Mr Crawford is an important matter and one the sentencing Judge was correct to place weight on.

[50]   In Takerei v New Zealand Police, another case which Mrs Wright placed considerable emphasis on, home detention was refused in the District Court in a way the High Court held that was in error.29 Thomas J held that the District Court Judge appeared to be of the view that imprisonment was required, because Mr Takerei had previously been sentenced to a community based sentence for similar offending and had not been deterred. In reviewing the issue of home detention, her Honour highlighted the following key features of Mr Takerei that made home detention appropriate:

(a)He had a suitable address, a supportive family and a supportive employer.

28     He received nine months’ supervision for this conviction. He breached the conditions of this supervision twice and received two breach convictions as a result (in 2015).

29     Takerei v New Zealand Police, above n 19.

(b)His father had been diagnosed with terminal cancer and had some months to live, with Mr Takerei providing financial and personal support to his mother and sister for care of their father, and to his ex- partner in respect of their daughter.

(c)He was 22 years old at the time of the offending and only had one previous conviction (albeit for similar offending).

(d)Had not previously served a sentence of home detention or imprisonment and had no history of breaching Court conditions or sanctions.30

(e)He was willing and able to address factors that contributed to the offending and he had voluntarily put himself in counselling.31

[51]   A key feature of this case and in my view, a defining distinction, is that the harm caused to the victim was not permanent. He suffered no permanent brain injuries. Unlike Mr Te Puni’s case, where Mr Crawford’s life has changed as a result of the permanent brain damage he has sustained.

[52]   Similarly, in Elizalde v New Zealand Police, while the single punch to the face did break the victim’s jaw in two places and required surgery, there was no long-term impact. The injury was described as “moderate” by the Judge. In any event, home detention does not appear to have been seriously considered because Mr Elizalde was a foreign national and could not serve a home detention sentence in New Zealand because he had no address.

Conclusion

[53]   By way of conclusion, it has not been established that the Judge made an error in sentencing Mr Te Puni. Whether home detention should be substituted for

30     Unlike Mr Te Puni who has a conviction for breaching bail (2018) and two convictions for breaching the conditions of his supervision sentence (2015).

31     Again, unlike Mr Te Puni who has not been able to identify the cause of his offending and therefore has not taken steps to address it.

imprisonment is an exercise of discretion. It involves an intensely factual evaluative analysis.

[54]   The starting point was clearly within the range and despite the literal availability of home detention, in my view it would not have been an appropriate outcome in this case. For these reasons, the appeal should be dismissed.

Churchman J

Solicitors:

Burnard Bull & Co, Gisborne for Appellant

Crown Solicitor’s Office, Gisborne for Respondent