Teki v The King
[2023] NZHC 3199
•13 November 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2023-483-15
[2023] NZHC 3199
BETWEEN MICHAEL TE REHU FIELD TEKI
Appellant
AND
THE KING
Respondent
Hearing: 25 October 2023 (via VMR) Appearances:
J W Greenland for Appellant
I P L Barfucci and H R Hancock for Respondent
Judgment:
13 November 2023
JUDGMENT OF McQUEEN J
[1] On 29 August 2023, in the Whanganui District Court, Judge Marinovich sentenced Mr Michael Teki (the appellant) to 22 months’ imprisonment, on five charges to which he pleaded guilty.1 Those charges were:2
(a)two charges of assault on a person in a family relationship (one in respect of a child, and the other in respect of an adult);3
(b)strangulation;4
(c)breach of a protection order;5 and
1 R v Teki [2023] NZDC 18758.
2 Some of these charges were Police charges. These were the breach of a protection order, and breach of a sentence of home detention. The remaining charges were brought by the Crown.
3 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
4 Section 189A(b); maximum penalty seven years’ imprisonment.
5 Family Violence Act 2018, ss 90(a), 9, and 112(1)(a); maximum penalty three years’ imprisonment.
TEKI v R [2023] NZHC 3199 [13 November 2023]
(d)breach of a sentence of home detention.6
[2] Mr Teki appeals that sentence on the sole ground that the District Court Judge erred in refusing him leave to apply for home detention. He applies also to adduce further evidence on appeal.
[3] The Crown opposes Mr Teki’s appeal, and submits that the Judge did not err. Counsel submit that imprisonment was the least restrictive sentence in the circumstances that served the sentencing principles of denunciation, deterrence, community protection, and accountability. The Crown does not oppose Mr Teki’s application to admit further evidence, although counsel says that the test for admitting new evidence has not been satisfied as the new evidence is not fresh.
[4] For the reasons below, I consider that Mr Teki’s application to admit further evidence should be allowed, and that his appeal should be dismissed.
Factual background
The offending
[5] There were three episodes of offending, and three victims of family violence. Mr Teki has been in a relationship with the first victim for approximately one year. They do not have children, although the victim has children from a previous relationship. There have been nine previous family harm incidents between Mr Teki and the first victim.
[6] The first episode of offending relates to events beginning at about 9:45 pm on 8 December 2022. Mr Teki was at an address in Marton while the first victim was asleep. He was watching the first victim’s children. The children started to misbehave, and so Mr Teki put some spicy wasabi inside the mouth of one of the children to punish him (the second victim), who began to scream and cry, thereby waking the first victim. An aggressive and physical argument ensued between Mr Teki and the first victim, during which Mr Teki punched the first victim twice in the left side of her head.
6 Sentencing Act 2002, s 80UA; maximum penalty six months’ imprisonment or a $1,500 fine.
[7] The first victim then walked outside to get the argument away from the children, following which Mr Teki took hold of the first victim and would not let her go, causing instant bruising to her left arm. A struggle ensued which resulted in Mr Teki and the victim ending up on the ground by the driveway, also causing bruising to the first victim’s legs and back. Mr Teki then, to prevent the first victim from escaping, wrapped his legs around her throat, tightening his grip and stopping her from breathing. It is from this episode that the charges of assault on a person in a family relationship and strangulation arise.
[8] The second episode of offending occurred on 17 August 2022. On 21 October 2021, Mr Teki had been sentenced to nine months’ home detention and six months’ post-detention conditions for four charges of breaching a protection order. On 17 August 2022, Mr Teki failed without reasonable excuse to comply with a condition of his sentence, in that he consumed methamphetamine, being a drug not prescribed to him.
[9] The third episode of offending occurred between 19 January 2022 and 4 February 2022 and relates to one charge of breaching a protection order, in respect of a different victim (the third victim), with whom Mr Teki was in a relationship with for approximately four years. They have one child together. There have been 26 family harm incidents between them. On 11 December 2020, a final protection order was issued, with Mr Teki being the respondent, and the third victim being the protected person.
[10] Between 19 January 2022 and 4 February 2022 Mr Teki attempted to call the third victim on her cellphone. As his cellphone number was blocked the call diverted straight to voicemail. Mr Teki then sent a text message explaining that his young daughter wanted to speak with the third victim’s son. The third victim replied briefly before ignoring his messages again. Mr Teki then sent a tirade of abusive messages. The third victim told him to leave her alone or she would call the police. Despite the warning Mr Teki continued to contact her. The third victim blocked Mr Teki’s cellphone number to stop further communication. On 1 February 2022, Mr Teki then contacted the third victim again by sending her an email message saying: “Hi [third
victim’s name].” In explanation, he stated he sent the messages but that it was in reply to the third victim ringing him.
Criminal and traffic history
[11] Mr Teki has a moderately lengthy criminal history stretching back to 2012. His previous convictions include dishonesty offending, driving and excess breath alcohol offending, family violence offending, breach of sentence offending, and drug offending. He has five previous convictions for breach of a protection order. He has offended while on bail on over ten occasions. Mr Teki’s family harm record is substantial. There are two protection orders against him, and he has been involved as either the person bound by, or the person at risk, under ten police safety orders.
Pre-sentence report
[12] A pre-sentence report was prepared for Mr Teki’s sentencing in the District Court. The report writer began by setting out Mr Teki’s criminal history and poor record of compliance with community based sentences, adopting the view that Mr Teki’s most recent offending reflected an escalation of risk and harm inflicted on others.
[13] The report writer noted that Mr Teki appeared to downplay the seriousness of the charges, and that he did not agree that some of the allegations were true. Mr Teki said that he had self-referred to non-violence and alcohol and drug support programmes, but provided no evidence that he had done so. Mr Teki also failed to provide the correct documentation to the report writer for the purpose of canvassing the possibility of electronic monitoring, and therefore home detention, as a sentencing option was unable to be assessed. On that basis, and given Mr Teki’s lack of insight or remorse, the report writer recommended a sentence of imprisonment, so as to provide a reflection of the seriousness of Mr Teki’s behaviour.
[14] The report writer reiterated that Mr Teki has had opportunities to be supported in the community with drug treatment and programmes to address his offending and addiction issues, but has struggled to attend regularly. They noted also Mr Teki’s significant previous involvement in family harm incidents, and that “there have been
several questionable absences whilst Mr Teki has been subject to Electronically Monitored Bail”. Mr Teki said that he was motivated to comply with the conditions of a community-based sentence, but the report-writer considered that there has been little evidence to suggest that Mr Teki would be committed to compliance.
Section 27 report
[15] A report prepared pursuant to s 27 was also provided for the purpose of Mr Teki’s sentencing. Mr Teki was interviewed via a video call for the purpose of preparing the report. It appears that Mr Teki’s sister was also interviewed. Mr Teki is Māori, and his hapū is Te Āti Haunui a Pāpārangi. He is familiar with his whakapapa on his maternal side, but not his paternal side. His father is of European descent. Mr Teki currently lives with his mother in Whanganui. He has four siblings.
[16] Mr Teki reported witnessing significant family violence against his mother as a child and the use of alcohol and drugs in the family home. Eventually, Mr Teki’s mother left the relationship, taking Mr Teki and his sister with her. These matters were confirmed by Mr Teki’s sister, who noted that their father was in and out of prison, and their mother was in and out of rehab. They also struggled financially. From the age of 12, Mr Teki moved between the care of his mother and his maternal grandmother, but also spent time with other family members. Mr Teki found education challenging, but was a talented sportsman, and was selected to attend a school in Auckland on a scholarship to play rugby.
[17] Mr Teki reported that he was abused when he was approximately five and then nine years’ old, at family events. When he attempted to tell his mother, she told him that he needed to learn to protect himself, and reprimanded him. A former partner also used his disclosure of abuse to belittle him. He reported the grief he has felt following the loss of a close friend, and also his father, in 2017.
[18] Mr Teki has children from two separate previous relationships. It appears that he has offended against both of his former partners, but attempted to maintain relationships with his children. It appears also that two of his children have been living with him and his mother while he has been on electronically-monitored bail.
[19] Mr Teki has used methamphetamine and cannabis extensively, as well has having had issues with alcohol. He used methamphetamine first when he was 13 years old, and reported that family members were both using and cooking it. He did not enjoy using it, but began using it again in 2017, following the death of a close friend. He used methamphetamine with his then partner, reporting that it “came with the relationship”, which also became fractured with its use. Mr Teki also began using cannabis when he was a child, smoking at home with his parents from when he was 13 years old, and being supplied by them. He consumed alcohol regularly as a young person and teenager. The report writer records that he meets the criteria for cannabis and methamphetamine use disorders.
[20] The report writer adopts the view that Mr Teki has experienced significant social and economic deprivation, involving early exposure to substance use, family violence, and transience. He had a chaotic childhood, and was neglected by his parents, as well as experiencing sexual abuse. He was accordingly at a greater risk of developing substance abuse disorders, as well as mental health conditions. They recommend that he continues to seek treatment, and address his poor attendance record with rehabilitative services.
Further material
[21] Further additional material was provided for the purpose of Mr Teki’s sentencing. The material on the file indicates that:
(a)Mr Teki completed an 18-week non-violence programme with Jigsaw Whanganui Family Harm Programmes in October 2022;
(b)as at 25 October 2022, Mr Teki had been attending regular scheduled appointments with an alcohol and drugs clinician, who recommended that Mr Teki commence counselling; and
(c)as at 1 November 2022, Mr Teki had commenced therapy with a psychologist.
[22] Letters of support were also provided by Mr Teki’s sister, and a kaumātua from the Koriniti Me Pirimai Kōhanga Reo.
District Court judgment
[23] The Judge set out the charges, the facts, the pre-sentence report, the s 27 report, letters of support and counsel’s submissions. The Crown sought a total starting point of two and a half years’ imprisonment, plus an uplift of three months for previous convictions. Counsel for Mr Teki, Mr Greenland, asked the Judge to consider an electronically monitored sentence.
[24]The Judge found the aggravating factors of the offending to be:
(a)the offending involved a breach of trust;
(b)the offending exposed children to violence;
(c)the offending was persistent in that the first victim attempted to get away but was not allowed to by Mr Teki; and
(d)the impact on the victims in terms of injuries and psychological harassment; and
(e)that there were three victims exposed to family violence.
[25] With regard to Shramka v R and Houkamau v Police, the Judge considered that the starting point for the charges of strangulation and assault on a person in a family relationship should be two years imprisonment.7 The Judge then increased that by three months for the assault on the child, a further six months for the breach of a protection order, and a further one month for breach of the sentence of home detention. The overall starting point was therefore 34 months, which the Judge considered was appropriate from a totality perspective.
7 Shramka v R [2022] NZCA 299; and Houkamau v Police [2019] NZHC 2743.
[26] In terms of personal factors, the Judge considered that Mr Teki’s previous convictions justified a further uplift of two months, noting that Mr Teki had previously breached a protection order five times and that he had other family violence convictions. As to discounts, the Judge awarded discounts of 15 per cent (or five months) for background factors, two months for time spent on electronically monitored bail, and 20 per cent (or seven months) for Mr Teki’s guilty plea. The Judge recorded that the end sentence would be one of 22 months’ imprisonment.
[27]The Judge then concluded:8
I need to then consider what is the least restrictive sentence in the circumstances. Here you have breached your last sentence of home detention, there that home detention sentence was for breaching a protection order. The courts need to take a stern approach when it comes to violence inflicted on domestic partners and children. Here I determine that in the circumstances the appropriate sentence is one of imprisonment, therefore I will sentence you to 22 months’ imprisonment.
In terms of release conditions, post-detention conditions will be set for six months.
Mr Teki, I really do hope that you continue with some of the progress you have made, what you will see though is that you now have a record for that violence, that domestic violence inflicted on people cannot be tolerated. This sentence does impose an aspect of punishment but it is still hoped that you get the help, find your mana, wear it on your shoulders and become the man that no doubt your family believe you can be, all right. I wish you all the best.
Application to admit further evidence on appeal
[28] Mr Greenland seeks to admit further evidence on appeal. The Crown does not oppose this application although counsel for the Crown, Ms Barfucci, says that the test for admitting new evidence has not been satisfied as the new evidence is not fresh. The evidence that Mr Greenland seeks to admit was, firstly, as listed and attached to a memorandum dated 9 October 2023:
(a)correspondence between Mr Greenland and the Grace Foundation Whanganui, showing the progress of Mr Teki’s enrolment and potential admission;
8 Above n 1, at [36]–[38].
(b)an admissions agreement signed by Mr Teki on 27 August 2023;
(c)a letter of remorse, written by Mr Teki on 21 September 2023; and
(d)a letter from one of the victims received on the day of the sentencing hearing, 29 August 2023, in support of Mr Teki.
[29] On 24 October 2023, the day prior to the appeal hearing, Mr Greenland filed a further memorandum, seeking to adduce also a letter from the Grace Foundation, which provides that Mr Teki has been accepted into their supported living and residential rehabilitation programmes. That letter is dated 16 October 2023.
[30] Ultimately, because the Crown does not oppose the admission of the new evidence, I am satisfied that it may be admitted on appeal, notwithstanding that some of it is not fresh. The evidence is highly relevant to the primary issue on appeal, and I consider that it is in the interests of justice that it be before this Court on appeal.
Approach to appeal
[31] Sentence appeals are brought under s 244 of the Criminal Procedure Act 2011 and determined in accordance with s 250 of that Act. An appeal against a sentence is considered as an appeal against the exercise of a discretion. For Mr Teki to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.9 If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.10
[32] Section 251 of the Criminal Procedure Act grants to the Court the broad power to “set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate”. A grant of leave to apply for home detention (or lack thereof) is an aspect of the sentence imposed, and can therefore be ordered on appeal if that is appropriate.11 The issue remains whether there is an error in the sentence imposed, and whether a different sentence should be imposed.12 On appeal, it is
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Bourton v New Zealand Police [2016] NZHC 2883.
12 At [22].
therefore for Mr Teki to show that there was an identifiable error in the sentence imposed, either in terms of the sentence of imprisonment, or in not granting leave pursuant to s 80I of the Sentencing Act 2002.
[33] I assess the issue of whether the Judge erred in the context of the following considerations. A court may only impose a sentence of home detention if satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences, and it would otherwise sentence the offender to a short-term sentence of imprisonment.13 A short-term sentence of imprisonment is a determinative sentence of imprisonment that is of 24 months or less.14
[34] There is a two-step process for imposing a sentence of home detention.15 First, a Judge must determine that the sentence that would be appropriate would otherwise be two years’ imprisonment or less. In doing so, the Judge must not take into account time spent in custody on remand.16 Second, the Judge must, exercising discretion, determine whether it is an appropriate case to impose a sentence of home detention, as opposed to a short-term sentence of imprisonment. This involves a Judge identifying which kind of sentence best qualifies as the least restrictive to impose when taking into account all the purposes of sentencing.17
Position of the parties
Mr Teki
[35] Mr Greenland submits that the District Court Judge erred by giving insufficient weight to Mr Teki’s demonstrable efforts at rehabilitation. He says also that the Judge erred by giving excessive weight to Mr Teki’s pattern of offending, where there was evidence as to Mr Teki’s addiction and its relationship to his offending. Mr Greenland submits that it was an error for the Judge to conclude that the principles and purposes of sentencing could not be achieved by a sentence other than imprisonment.
13 Sentencing Act 2002, s 15A.
14 Parole Act 2002, s 4(1).
15 R v Vhavha [2009] NZCA 588 at [31].
16 Sentencing Act 2002, s 82; and Parole Act 2002, s 91. See Solicitor-General v Casey [2016] NZHC 15 at [7]–[11].
17 Goodwin v Police [2021] NZHC 1526 at [21(g)].
Mr Greenland submits that the gravity of the offending which was before the District Court was relatively low. He says that the Judge failed to acknowledge Mr Teki’s successful completion of the Jigsaw non-violence programme, or the fact that he has engaged with a psychologist. He submits that the value of Mr Teki remaining in the community was not properly considered.
[36] Mr Greenland submits that a sentence of home detention is the outcome most consistent with all the principles and purposes of sentencing. He says that Mr Teki desires to change, and that this is illustrated by his time on remand, and the steps he has taken during this time to address his offending. He submits that Mr Teki should be able to continue this journey, rather than serving a sentence of imprisonment without a guarantee of support, and that the desirability of keeping offenders in the community has been acknowledged by the District Court Bench through Te Ao Mārama.18 Mr Greenland submits that Mr Teki’s offending is fuelled by drug use, and that he ought to be given the opportunity to address that properly, within an electronically monitored and community based setting. He says that would be the least restrictive available sentence.
The Crown
[37] Ms Barfucci submits that the District Court Judge did not err, saying that a sentence of imprisonment was the least restrictive outcome in the circumstances given the nature of the offending, Mr Teki’s previous convictions, his persistent history of non-compliance, and his failure to effectively engage in rehabilitation. She submits that the Judge made a principled and well-reasoned decision as to why imprisonment was the appropriate outcome, having had regard to Mr Teki’s recent breach of home detention, and the need for the courts to protect victims of family violence. She notes that the Court of Appeal has held that repeated breaches of protection orders requires a condign sentencing response.19
18 Chief District Court Judge Heemi Taumaunu “Te Ao Mārama – Enhancing Justice for All – Two Years On: An Update on Process in the District Court of New Zealand” (2022) 28 Auckland University Law Review 1.
19 R v Nathan CA 209/96, 29 November 2006 at [25].
[38] Ms Barfucci notes that between 2018 and 2019 Mr Teki accumulated four convictions for breaching community-based sentences. Additionally, he was sentenced to home detention for contravening a protection order four times, and on 17 August 2022 breached this sentence by consuming methamphetamine. He also breached his electronically monitored bail conditions on three occasions between April 2023 and May 2023, and has breached his bail conditions on eight other occasions. Ms Barfucci submits that given Mr Teki’s tendency not to comply, imprisonment was the appropriate outcome.
[39] As to Mr Teki’s engagement with rehabilitative services, Ms Barfucci accepts that the evidence now demonstrates that Mr Teki has been engaging. However, she notes that some of this material, particularly Mr Teki’s completion of the non-violence programme, occurred prior to some of the offending with which this appeal is concerned, illustrating that his engagement has had little effect on him. She says therefore that Mr Teki has continued to re-offend despite his improved engagement. Ms Barfucci also says the Grace Foundation is not a rehabilitation facility but a semi- supported living environment and there is no evidence that Mr Teki has enrolled himself into further rehabilitative programmes. She submits that deterrence, denunciation, community protection and accountability should take precedence.
Analysis
[40] As noted, the sole issue on appeal is whether the District Court Judge erred in refusing to grant Mr Teki leave to apply for home detention, having concluded that the end sentence would be one of 22 months’ imprisonment. No challenge was made to the Judge’s assessment of the starting point, the uplift for previous convictions, or the discounts awarded. The focus of submissions before me was upon whether the Judge had given proper weight to certain principles and purposes of sentencing.
[41] The purposes and principles of sentencing are contained in ss 7 and 8 of the Sentencing Act. The purposes of sentencing are:
(a)to hold the offender accountable for harm done to the victim and the community by the offending; or
(b)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c)to provide for the interests of the victim of the offence; or
(d)to provide reparation for harm done by the offending; or
(e)to denounce the conduct in which the offender was involved; or
(f)to deter the offender or other persons from committing the same or a similar offence; or
(g)to protect the community from the offender; or
(h)to assist in the offender’s rehabilitation and reintegration; or
(i)a combination of 2 or more of the purposes in paragraphs (a) to (h).
[42] The principles of sentencing are that, in sentencing or otherwise dealing with an offender, the court:
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b)must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c)must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d)must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e)must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f)must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g)must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h)must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i)must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other
means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j)must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[43] Mr Greenland’s primary submission was that imprisonment was not the least restrictive outcome appropriate in the circumstances, having regard to the gravity of the offending, Mr Teki’s background, Mr Teki’s engagement with rehabilitation, and the fact that there is a position available for him at the Grace Foundation. Ms Barfucci, on the other hand, relied upon the purposes of deterrence, denunciation, community protection and accountability, submitting those purposes could not be upheld other than by a sentence of imprisonment.
[44] While I accept that there was a basis on which the Judge could have concluded on the material before the District Court that a sentence of home detention was available, I am not satisfied that there is any identifiable error in the Judge’s decision not to grant leave to Mr Teki to apply for home detention. The Judge’s ultimate conclusion was that a sentence of imprisonment was the most appropriate and least restrictive outcome, given Mr Teki’s breach of his last sentence of home detention, his continued breach of the protection order in force against him, and the need for the courts to take a deterrent approach in respect of family violence offending. I can see no error in that conclusion.
[45] The reality is that Mr Teki, while he has made progress in recent months, has demonstrated both a willingness to commit family violence, and not to comply with the terms of community based sentences and the protection order in force against him. I accept that in those circumstances it was open to the District Court Judge to conclude that the purposes of deterrence, community protection, and accountability required a custodial sentence. As Mr Teki has failed to identify an error in the Judge’s decision, his appeal must therefore be dismissed.
Result
[46]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Crown Solicitor, Whanganui for Respondent
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