Te Tau v Police - [2012] NZHC 1068

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-7 [2012] NZHC 1068

RONNIE TAMATEA WONGDOO TE TAU
Appellant
v
NEW ZEALAND POLICE
First Respondent

DEPARTMENT OF CORRECTIONS
Second Respondent

Hearing: 27 April 2012

Counsel: S M Turner for Appellant
CER Power for Crown

Judgment: 17 May 2012

I direct that the delivery time of this judgment is 4.00pm on the 17th day of May
2012.

RESERVED JUDGMENT OF MACKENZIE J

[1] The appellant appeals against a sentence of 18 months imprisonment imposed on him by Judge Crosbie in the District Court in Dunedin on 3 February 2012 on five charges: male assaults female; breaching a protection order; breaching supervision; possession of drug utensils; and possession of a Class C controlled
drug. The facts as recorded by the Judge are that on 22 September 2011, the victim

TE TAU V NEW ZEALAND POLICE HC DUN CRI-2012-412-7 [17 May 2012]

was at home at her Dunedin address. She was the subject of a final protection order against the appellant issued in 2008. The victim was woken by the appellant, her partner of seven years, returning home from a night of drinking. He was with an associate and both of whom were intoxicated. The appellant accused the victim of having an affair with a neighbour and an argument ensued. The victim asked the appellant to leave. He refused and she tried to vacate the address. He pushed her back several times by pushing his forearm into her chest area. He grabbed her once by the neck to push her back. He was holding her by the arm at the front door when she pulled free and fell backwards down the stairs into a rubbish bin. The appellant left the address with his associate and was located a short time after by police. The victim received a small cut to her right elbow. That instance formed the subject of the counts of male assaults female and breach of protection order and the breach of supervision charges. A count of threatening to kill in respect of the incident was withdrawn.

[2] The drug offending occurred in January 2012 when the appellant was at his home, a room in a boarding house, smoking cannabis with several associates when police arrived at the address on an unrelated matter. Police invoked s 18(2) of the Misuse of Drugs Act 1975 and searched the premises. Inside a plastic bag on a coffee table were 23 cannabis joints. A bong for smoking cannabis was also located.

[3] In sentencing, the Judge noted that counsel’s submissions were aimed at convincing the Court to keep the appellant in the community. That was the course recommended in the pre-sentence report, which recommended a final warning, an order to come up if called upon, an order for compensation for emotional harm on the male assaults female and breach of protection order charges, and fines in respect of the other convictions.

[4] The Judge described the assault as moderate to low in terms of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 1068
Decision Date: 17 May 2012

CaseChat Overview and Summary

Ronnie Tamatea Wongdoo Te Tau appeals against a sentence of 18 months imprisonment imposed on him by Judge Crosbie in the District Court in Dunedin on 5 February 2012 on five charges: male assaults female, breaching a protection order, breaching supervision, possession of drug utensils, and possession of a Class C controlled drug. The facts as recorded by the Judge are that on 22 September 2011, the victim was at home at her Dunedin address, the subject of a final protection order against the appellant issued in 2008. The appellant, her partner of seven years, returned home from a night of drinking with an associate. An argument ensued when the appellant accused the victim of having an affair with a neighbour. The victim asked the appellant to leave. He refused and she tried to vacate the address. He pushed her back several times by pushing his forearm into her chest area. He grabbed her once by the neck to push her back. He was holding her by the arm at the front door when she pulled free and fell backwards down the stairs into a rubbish bin. The appellant left the address with his associate and was located a short time after by police. The victim received a small cut to her right elbow. That instance formed the subject of the counts of male assaults female and breach of protection order and the breach of supervision charges. A count of threatening to kill in respect of the incident was withdrawn. The drug offending occurred in January 2012 when the appellant was at his home, a room in a boarding house, smoking cannabis with several associates when police arrived at the address on an unrelated matter. Police invoked s 18(2) of the Misuse of Drugs Act 1975 and searched the premises. Inside a plastic bag on a coffee table were 23 cannabis joints. A bong for smoking cannabis was also located.

The appellant submits that the Judge’s starting point was too high, double counting of prior convictions has occurred, and the use of cumulative sentences infringed the totality principle. The starting point for the breach of protection order was one year imprisonment and the starting point for the assault charge was nine months. The Judge took the total starting point of one year and nine months. The appellant submits that if the Judge was to impose imprisonment, a starting point of around ten months would have been appropriate for the male assaults female and breach of protection order charges. The essence of the appellant’s submission is that, in adopting and adding together separate starting points for each of those charges, the total starting point did not properly reflect the totality of the offending. The court noted that the offence involved one incident, and the appropriate starting point for the totality of the offending would not have exceeded the one year adopted for the assault. The fact that it was committed in circumstances involving a breach of a protection order justified a stern response. A concurrent sentencing response would have been appropriate under s 84(2) of the Sentencing Act 2002. The addition of a separate starting point of nine months for the one count of breach of protection order arising from the incident was manifestly excessive. The extent of the uplift for previous convictions was not specifically identified by the Judge. It appears that the uplift must have been less than that, because the final sentence was 18 months after allowing credit for the guilty plea and the work the appellant had done in addressing his tendency to violence. If the discount was 25 per cent, the inferred starting point is two years, with a reduction of six months to an end sentence of 18 months. If the discount was one third, then the inferred starting point is two years and three months, with a reduction of nine months. The court proceeded on the assumption that the uplift must have been in the range of six to nine months, probably towards the lower end of that range. In Alexander, an uplift of six months for the aggravating features of previous convictions and a breach of release conditions, to a starting point of 14 months imprisonment for breach of a protection order, was upheld. The history of relevant previous offending was considerably more serious than in this case. The offender had been sentenced to ten terms of imprisonment for offences against the same victim. The court considered that an uplift to reflect the previous offending, in the range of six to nine months, was too high. An uplift of three months would have been appropriate. That leads to an end point, having regard to all aggravating features of the offending and the offender, of 15 months. From that, the court would allow a discount of 25 per cent, or four months, to reflect the guilty plea and, as the Judge described it, the work the appellant had done in relation to addressing violence issues. That leads to an end sentence of 11 months.

The appeal is allowed. The sentence of 18 months imprisonment is quashed and a sentence of 11 months imprisonment is substituted.

Orders