Te Wheoro v The the Queen

[2022] NZHC 1234

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-000046 [2022] NZHC 1234

BETWEEN

TIAKE KAIKOHE TE WHEORO

Appellant

AND

THE QUEEN

Respondent

Hearing:	25 May 2022
Counsel:	W T Nabney for Appellant D P Coulson for Respondent
Judgment:	1 June 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 1 June 2022 at 2.15 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Tauranga. W T Nabney, Tauranga.

TE WHEORO v R [2022] NZHC 1234 [1 June 2022]

The appeal

[1]    Tiake Te Wheoro appeals a 27-month prison sentence for unrelated episodes of violence.1 An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed; in short, if the sentence is  manifestly excessive.2

Background

[2]For ease of reference, I address the offending as episodes A, B and C.

A

[3]    On 18 June 2021, Mr Te Wheoro kicked to the face a female friend of his partner. The victim was bending over. Mr Te Wheoro then headbutted the victim, again to the face. The victim suffered “splits to her nose and cuts to her mouth and lips”.3 She also suffered a chipped tooth. Mr Te Wheoro told Police he did not assault the victim and she fell down the stairs.

[4]    A  charge  of  injuring  with  intent  to   injure   was  laid  22   July   2021.  On 17 March 2022, the Crown amended the charge to a lesser one of assault with intent to injure on the assumption Mr Te Wheoro would plead guilty.4 Mr Te Wheoro did so 25 March 2022.

B

[5]    On 25 June 2021, Mr Te Wheoro arrived home drunk and verbally abused his partner. She ran onto the deck and telephoned her father. Mr Te Wheoro followed, grabbed the victim by the throat and applied pressure to her windpipe. She struggled to breathe but managed to get away. The victim called to a neighbour for help. The neighbour called Police. When they arrived, Mr Te Wheoro threatened to “cripple” one of the officers and said he was a trained fighter. He remained silent on arrest.

1      Police v Te Wheoro [2022] NZDC 6234.

2      Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.

3      Summary of facts.

4      Crimes Act 1961, s 193; maximum penalty, three years’ imprisonment.

[6]    Charges of strangulation, breach of a protection order, and threatening behaviour were laid 26 June 2021, that is, the day after the offending. On 26 January 2022, the day of his trial in relation to B, Mr Te Wheoro pleaded guilty to a substituted charge of assault on a person in a family relationship, and charges of breach of a protection order and threatening behaviour.5

C

[7]On 22 November 2021, Mr Te Wheoro confronted his mother after he noticed

$5,000 missing from his bedroom drawer. She attempted to close a door between them. Mr Te Wheoro pushed it open, causing his mother to stumble. He then grabbed her by the dressing gown, said she was “dead meat” and swept her legs from beneath her. Mr Te Wheoro repeated the same threat, then added he would “get rid of” her and her partner by stabbing them. He then tripped his mother and kicked her to the knee. She went to a neighbour. When Police arrived, Mr Te Wheoro said he did no more than punch a hole in the wall (in anger at the missing money).

[8]    A charge of assault on a person in a family relationship was laid the same day. Mr Te Wheoro pleaded guilty to the charge 26 January 2022.

Sentencing

[9]    Judge T R Ingram adopted a global starting point of 29 months’ imprisonment. This comprised 14 months’ imprisonment for A, increased by nine months for B, and increased by another six months for C.

[10]   The Judge added six months to the global starting point because Mr Te Wheoro has a history of family and other  violence; some  of the offending  occurred while Mr Te Wheoro was serving a sentence of supervision; and Mr Te Wheoro committed C while on bail for A and B. The Judge deducted eight months for Mr Te Wheoro’s pleas of guilty.

5      Crimes    Act    1961,    s    194A,    maximum    penalty    two    years’    imprisonment;    Family Violence Act 2018, ss 90(a) and 112, maximum penalty three years’ imprisonment; Summary Offences Act 1981, s 21(1)(a), maximum penalty three months’ imprisonment.

[11]The sentence was, therefore, 27 months’ imprisonment.

A précis of Mr Te Wheoro’s case

[12]   Mr Te Wheoro contends the sentence is manifestly excessive because the starting point for A was too long; so too the increases for B and to the global starting point.6 He also contends a cultural report obtained since sentencing reveals a mitigating factor or factors. Mr Te Wheoro argues the sentence should not have been longer than 24 months’ imprisonment.

[13]   Mr Nabney prepared written submissions on behalf of Mr Te Wheoro, to which Mr Douglas spoke briefly at the hearing. I refer to Mr Nabney and Mr Douglas as appropriate.

Argument and analysis

[14]   On behalf of Mr Te  Wheoro, Mr Nabney contends the  starting point  for     A should have been 12 months, not  14.  He  observes  in  Tamihana  v  R,7  the  Court of Appeal applied a 12-month starting point to an attack by two defendants in which the victim was punched (once) to the ground and then kicked twice (once by each defendant). One kick was to the head. At first instance, the Judge adopted a starting point of 18 months’ imprisonment for one defendant and 12 months for the other. The Court of Appeal concluded each warranted the same 12-month starting point.

[15]   Mr Nabney also notes that in Kohu v Police,8 a 12-month starting point was upheld in relation to family violence involving punches to the eye, nose and mouth. One caused the victim to fall onto a bed.

[16]   The Crown invites attention to two other cases involving an offence of assault with intent to injure:

6      No complaint is  made about  the starting point  for  C;  it  is  accepted this  should have been  six months’ imprisonment.

7      Tamihana v R [2015] NZCA 169.

8      Kohu v Police [2013] NZHC 944.

(a)In Goodman v R,9 the defendant grabbed his partner by the throat and threw her across the room. When she got up, the defendant pushed her over. This sequence occurred repeatedly. The defendant then headbutted the victim and pushed her outside. The Court of Appeal upheld the two-year starting point.

(b)In Rewita v Police,10 the defendant pulled his partner to the ground, slapped her with an open hand and then punched and kicked her. She suffered bruising and swelling. An 18-month starting point was accepted as appropriate.

[17]   Goodman and Rewita are more serious, but not markedly so. Tamihana is more about disparity than starting point. Had the Judge adopted a 14-month starting point for both defendants, it is difficult to imagine the Court of Appeal intervening.11 Kohu is similar, but the starting point in that case was only two months lower than that adopted for Mr Te Wheoro. And, the obvious should not be overlooked: a starting point is selected from a range of possibilities. All this means the starting point for A was available.

[18]   Before moving on, I record an aspect of the sentencing process to which neither Mr Douglas nor Mr Coulson could speak because they did not appear in the District Court. The summary of facts says immediately after A, the victim “grabbed a knife from the kitchen to protect herself”. The Judge said this:12

Mr Nabney has endeavoured to persuade me that this is [a] case of excessive self-defence, and that you are adamant that at that time she had in her hand, a knife. Whilst the summary of facts does not quite reflect that, it does refer to an item. I am prepared to give you four months for the benefit of the doubt on that. If it had not been for that I would take a starting point for that of 18 months’ imprisonment as being an absolutely cowardly attack on somebody who is bending over, not expecting to be kicked in the face and then headbutted.

9      Goodman v R [2016] NZCA 64.

10     Rewita v Police [2013] NZHC 2175.

11     There were two attackers in that case, but the victim was male, not female.

12     Police v Te Wheoro [2022] NZDC 6234 at [3].

[19]   It is not clear if anyone sought a disputed facts hearing. Nor is it clear how  Mr Te Wheoro was able to place before the Court an account in apparent contradiction of the summary of facts to which he had presumably agreed when pleading guilty.

[20]   This leads to the increase for B. Mr Nabney contends the Judge should not have increased the starting point by more than six months’ imprisonment. He argues the offending in relation to the Police officer was of no moment and should not have been treated as aggravating B’s seriousness. Mr Nabney advanced these contentions without reference to case law.

[21]   In Te Tau v Police,13 the defendant pushed his partner several times (forearm onto chest). He then grabbed her by the neck and held her by the arm. She pulled free but fell down some stairs. She suffered a “small” cut to her elbow.14 The offending contravened a protection  order.  The  High  Court  substituted  a  starting  point  of 12 months’ imprisonment.

[22]   In Hamilton v Police,15 the victim asked the defendant to leave her property. He refused and grabbed her cellphone to prevent a call to Police. He then pulled the phone apart and pushed the victim into a wall. The offending contravened a protection order. The High Court upheld the starting point of 12 months’ imprisonment.

[23]   These cases demonstrate the nine-month increase was (readily) available.16 The offending involved an interference with the victim’s airways in contravention of a protection order, and as family violence, a breach of trust. To this must be added the threat to “cripple” a Police officer.  Violence  or  threats  of  violence  against  a Police officer in the execution of duty is always regarded as serious by the Courts.17 The reasons are self-evident. Moreover, s 9(1)(f) of the Sentencing Act 2002 provides an offence is aggravated if the “victim was a constable … acting in the course of his or her duty”.18

13     Te Tau v Police [2012] NZHC 1068.

14 At [1].

15     Hamilton v Police [2014] NZHC 2698.

16     Given totality considerations.

17     See, for example, R v Wright [2014] NZCA 119.

18     I do not overlook the modest maximum penalty for the offence against the Police officer (three months’ imprisonment).

[24]   Next is the six-month uplift to the global starting point. Mr Nabney contends this should have been not more than three months.

[25]   Mr Te Wheoro has two convictions for contravening a protection order in March 2021, convictions for assault with intent to injure and resisting Police in August 2017, and a conviction for wilful damage in a family violence context in early 2016. The 2021 protection order offending resulted in a sentence of six months’ supervision beginning 4 May 2021. Mr Te Wheoro committed A six weeks later, then B a week after that. Mr Te Wheoro was on bail for A and B when he committed C. The combination of relevant previous convictions, offending while subject to a sentence (for like offending—breach of a protection order), and offending while on bail (for like offending) permitted a six-month uplift.19

Cultural report

[26]   No cultural report was placed before the District Court. Mr Nabney obtained one four days before the appeal hearing. By then of course, the Crown had filed its submissions. Mr Nabney’s earlier submissions on behalf of Mr Te Wheoro, to which the Crown had responded, did not foreshadow argument about a cultural report, nor seek permission to adduce one as fresh evidence when it arrived.20 Mr Nabney filed and served the cultural report the day before the appeal hearing, with an application to adduce it as fresh evidence. Unsurprisingly, the Crown objected.

[27]   Mr  Douglas  responsibly  acknowledged  the  report’s  lateness.   He   said Mr Te Wheoro appreciated only after sentencing a cultural report might have been helpful. Mr Douglas invited receipt of the report on the basis it “dived deeper” than the pre-sentence report prepared in relation to Mr Te Wheoro.

[28]   In Carroll v R,21 the Court of Appeal said cultural reports “should not be produced for the first time on appeal”. It added if a cultural report had not been

19 Sentencing Act 2002, s 9(1)(c) and (j). The uplift represented 21 percent of the global starting  point.

20 The notice of appeal recorded a cultural report was not provided to the Judge and “may have provided grounds for a reduction in sentence”. But, someone reading the submissions on behalf of Mr Te Wheoro would assume that point was not being pursued given their resounding silence on that topic.

21 Carroll v R [2019] NZCA 172.

tendered at first instance and it appeared to the appeal Court that “may make a difference”, the “proper course” may be to remit the case to the first-instance Judge for re-sentencing.22 Despite this, examples can be found of successful appeals relying on cultural reports as fresh evidence, at least when the defendant wanted to have a cultural report at sentencing, but for whatever reason, no such report was available.23 This case does not have that feature for the reason identified at [27].

[29]   Another difficulty arises. Contrary to Mr Douglas’ submission, the cultural report does not add greatly to  the  comprehensive  pre-sentence  report  before  Judge Ingram. The cultural report adds detail, not more.

[30]   I decline to receive the cultural report as fresh evidence. It was unheralded; filed extraordinarily late; is advanced despite the acknowledgment Mr Te Wheoro turned his mind to the point after sentencing; and does not materially add to the pool of information before the Judge. Cast in terms of the test for fresh evidence, the report could have been obtained with reasonable diligence (at first instance), and lacks cogency.24 This, however, is not the end of this ground of appeal.

[31]   The pre-sentence report observes Mr Te Wheoro “has not had an easy passage to adulthood”. His mother was an alcoholic, and he “witnessed substantial … violence between his parents as well as being the victim of violence himself”. The report continues, “This situation is likely to have been the catalyst for his early entry into … gang culture, and his significant personal issues around violence, alcohol and illicit drugs”.

[32]   The author of the pre-sentence report spoke to the victim of B. She is no longer in a relationship with Mr Te Wheoro. She said she believed his violence could be traced to his childhood. She added, “Nothing has been easy for him. Something always kicks him back”.

22     Carroll v R [2019] NZCA 172 at [8].

23     Clarke v R [2021] NZCA 96 provides a recent example.

24     See Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [103]; and Lundy v R [2013] UKPC 28,

[2014] 2 NZLR 273 at [125].

[33]   It is not necessary to reach further into the pre-sentence report; again, which is comprehensive.   It   is   enough   to   record   it  demonstrates   linkage   between  Mr Te Wheoro’s violent upbringing and the offending. The Judge did not address this aspect. Indeed, the Judge said nothing about Mr Te Wheoro’s personal circumstances.

[34]   The level of discount in this context depends not just on causal potency but countervailing policy considerations. To elaborate, while the Court of Appeal has made it clear offence seriousness does not preclude discounts for personal mitigating circumstances, including systemic disadvantage, that Court has been equally clear offence seriousness may operate to reduce the level of the discount.25 Whata J made exactly this point in Solicitor General v Heta: when “sentencing violent offenders, countervailing ... factors may constrain the scope of any discount”.26

[35]   Mr Douglas contends Mr Te Wheoro’s background should have resulted in a discount “of around 15 percent”. Mr Coulson argues this should have attracted “not more than 10 percent”. The Court of Appeal has declined to articulate guidelines in this area.27 I, therefore, consider some case examples:

(a)In Waikato-Tuhega,28 the 19-year-old defendant committed two aggravated robberies and other offences. Emphasising this area requires a holistic  approach  to  an  offender’s  background,  the Court of Appeal increased the discount to 15 percent.29

(b)In Aramoana v R, the defendant and another inflicted serious violence in the context of a single aggravated robbery. The Court of Appeal concluded the discount for the defendant’s background should have been “around 10 percent”, a higher figure than that allowed by the Judge at first instance.30

25     Carr v R [2020] NZCA 357 at [66]–[67], Aramoana v R [2021] NZCA 558 at [10].

26     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [59].

27     It could hardly do otherwise. Everything depends on circumstance.

28     Waikato-Tuhega v R [2021] NZCA 503.

29 At [73].

30     Aramoana v R [2021] NZCA 558 at [14].

(c)In R v King, the sentencing Judge deducted 9.5 percent for the defendant’s background, which included systemic disadvantage.31 The Court of Appeal concluded Mr King’s “troubled and unhappy upbringing”32 warranted “discount in the region of 15 percent”.33 The appeal was dismissed, however, as the sentence was not manifestly excessive.

(d)In Whittaker v R,34 one of the defendants argued the discount of

9.5 percent for his background was lower than that given in other cases. The Court of Appeal rejected the argument, noting “entitlements to discounts on account of matters raised in s 27 reports are very much fact-specific in each case”.35

[36]   This selection suggests the Judge should have  made  some  allowance  for Mr Te Wheoro’s background, albeit in accordance with the Crown’s suggested range. The imperatives of denunciation, deterrence and public protection precluded greater allowance.36 What then of causative error?

[37]   The Judge deducted 23 percent from the increased global starting point for the guilty pleas. It is common ground this was generous, especially given timing in relation to A and B. Mr Nabney and Mr Coulson agree this mitigating feature should have attracted a discount of 15 percent. That is my view too. It follows the omission in relation to Mr Te Wheoro’s background is offset, or largely offset, by the guilty- plea discount.

[38]   This leaves one, overarching question: irrespective of methodology, is the sentence manifestly excessive? In Goodman v R, the Court of Appeal observed “sentences of between two to three years’ imprisonment for domestic violence

31     R v King [2019] NZDC 25776.

32     King v R [2020] NZCA 446 at [27].

33 At [34].

34     Whittaker v R [2020] NZCA 241.

35 At [51].

36     Mr Te Wheoro’s mother makes clear in her victim impact statement she is frightened of her son. She notes an anger management course (or courses) has not yet borne fruit.

offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.37

[39]   Mr Te Wheoro committed offences of violence against three victims, including his partner and mother, and threatened a fourth (a Police officer, acting in execution of duty). Some of the offending occurred shortly after the imposition of a sentence, while on bail, and in contravention of a protection order. Consequently, a 27-month term of imprisonment is not manifestly excessive.

Result

[40]The appeal is dismissed.

……………………………..

Downs J

37     Goodman v R [2016] NZCA 64 at [12].