Teriaki v The King

[2024] NZHC 1440

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-53

[2024] NZHC 1440

BETWEEN

DILLON JOEL APERHAMA TERIAKI

Appellant

AND

THE KING

Respondent

Hearing:

30 May 2024

Appearances:

P N Allan for the Appellant

B W D Alexander for the Respondent

Judgment:

31 May 2024

JUDGMENT OF HARLAND J

Introduction

[1]    This judgment determines an appeal by Dillon Joel Aperhama Teriaki against a sentence of three years and nine months’ imprisonment imposed on him by Judge A A Couch in the District Court at Christchurch on 1 March 20241 in respect of two charges of impeding breath,2 one charge of assault on a person in a family relationship3 and one charge of threatening to kill.4 Mr Teriaki contends that the starting point adopted by the Judge was too high and the Judge made a factual error in setting the uplift to reflect aggravating factors personal to him. He says the combination of these errors led to a manifestly excessive sentence.

1      Police v Teriaki [2024] NZDC 4377.

2      Crimes Act 1961, s 189A. Maximum penalty: seven years’ imprisonment.

3      Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.

4      Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.

TERIAKI v R [2024] NZHC 1440 [31 May 2024]

[2]I have decided to allow the appeal for the reasons set out in this judgment.

The facts

[3]    As Mr Teriaki pleaded guilty to the charges, the factual basis upon which he was sentenced comes from an amended summary of facts, the important details of which I now outline.

[4]    At the time of this offending, Mr Teriaki and his partner were living together and had been in a relationship for about three years. Late in the evening of 30 July 2023, they were in bed when they began arguing. Mr Teriaki held a pillow over his partner’s nose and mouth with force, preventing her from breathing for three to four seconds. She fought back, scratching his face, to get him off her.

[5]    The following morning, there was another argument. Mr Teriaki pushed his partner in the chest with both hands and she fell to the ground. She then climbed onto the bed to get away from him, but he grabbed a pillow and again forcefully held it over her nose and mouth, preventing her from breathing for three seconds. She fought back, scratching at his face and once more succeeded in getting him off her.

[6]    Mr Teriaki then flung the contents of a 1.5 litre bottle of water at his partner and, when it was empty, he hit her with the bottle three times across her chest. He then picked up a cup of hot coffee and threw it at her, burning her arm.

[7]    After this, Mr Teriaki picked up a 10 centimetre long butcher’s knife and waved it towards his partner while she was standing three metres away from him and said “I will fucking kill you”. He then put the knife in his bag and left the address.

[8]    Mr Teriaki’s partner filed a victim impact statement. In it she outlines that these incidents have affected her in a very profound way. She has resumed drinking to excess as a way of coping. It is also clear from her victim impact statement that she has felt intimidated by people associated with Mr Teriaki, including his family and gang members contacting her after these incidents, which she said had worn her down. She said she had stopped going to work, church and socialising because she is scared that she will run into Mr Teriaki’s family when she is out and about.

The sentencing decision

[9]    The Judge commenced his sentencing remarks by referring to the facts. He noted that, while it would be possible to approach sentencing Mr Teriaki by adopting a lead charge and applying uplifts for the remaining charges, he correctly, in my view, considered that all aspects of the offending were inter-related. He therefore approached the sentencing exercise by assessing Mr Teriaki’s culpability in the round.

[10]   The Judge assessed the gravity of Mr Teriaki’s offending on the impeding breathing charges as substantial, noting that it was accompanied by other physical violence during the second incident, and that both incidents were precipitated by argument. The Judge observed that the victim was vulnerable during the incidents, and her breathing was totally impeded on both occasions, albeit for short periods of time. The Judge considered the second incident was aggravated by the fact the victim was burned by the hot coffee.

[11]As to the threat to kill, the Judge said:

[7] I turn then to the threat to kill.  This has always been regarded in our legal system as a very serious offence. That is reflected in the maximum penalty of seven years imprisonment. I regard the gravity of your offending on this occasion as serious. You made a clear threat directly to the victim at close quarters. That threat was made while you were pointing a knife at her showing her that you had the means to immediately carry out the threat to kill her. The victim as vulnerable, having been suffocated, assaulted and burned prior to you making this threat.

[12]   The Judge said that the offending involved a gross breach of trust. He noted that the offending occurred in the victim’s home, much of it in the bedroom where she was entitled to feel safe. He also took into account the impact of Mr Teriaki’s offending on the victim, observing that it had been serious and had destabilised her.

[13]   Considering the totality of the offending, the Judge adopted a starting point of four years’ imprisonment.

[14]   Regarding personal aggravating factors, the Judge said that, at the time of the offending, Mr Teriaki was subject to a sentence of intensive supervision imposed on six charges, three of which involved family violence against the same victim, and two

other assaults. He applied an uplift of 10 per cent to reflect this and what he referred to as Mr Teriaki’s very recent similar criminal history.

[15]   The only mitigating matter sought related to Mr Teriaki’s guilty pleas. The Judge adopted a 15 per cent discount to reflect this and said:

[12] As to mitigation, you entered guilty pleas on all of these charges, but that was only on the day of the trial. I have been informed by Mr Allan today, and I accept, that this was signalled at the registrar’s conference before the trial. The effect of your guilty pleas was to relieve the victim of the trauma of having to give evidence and be cross-examined. In the normal course I would only apply a reduction of 10 per cent for a guilty plea entered on the day of trial but, in this case, I will reduce it by 15 per cent, given that it was signalled a little time before and that two other related charges were withdrawn.

[16]   An end sentence of three years and nine months’ imprisonment was imposed on the two charges of impeding breathing and one charge of threatening to kill. On the charge of assault in a family relationship, Mr Teriaki was sentenced to six months’ imprisonment. All sentences were ordered to be served concurrently.

Approach on appeal

[17]   The Court must allow an appeal against sentence if it is satisfied there was an error in the sentence, such that a different sentence should be imposed.5 In this case, Mr Teriaki contends that the end sentence imposed was manifestly excessive. Whether a sentence is manifestly excessive is examined in terms of the end sentence reached, rather than the process by which it was determined.6 A court will not intervene if the sentence is within a range that can be properly justified by accepted sentencing principles.7

5      Criminal Procedure 2011, s 250(2).

6      Kumar v R [2015] NZCA 460 at [81].

7      Tutangahau v R NZCA 279, [2014] 3 NZLR 482 at [32]–[36]; and Te Aho v R [2013] NZCA 47 at [30].

Discussion

Was the starting point too high?

[18]   The Court of Appeal judgment in Shramka v R is clearly relevant and of assistance.8 There, the Court of Appeal provided examples of strangulation as “reference points for comparison in future sentencing”.9 Certain aggravating factors were highlighted in para [42]. They include premeditation, a history of strangulation or prior very serious domestic violence, the vulnerability of the victim, home invasion/breach of protection order, aggravated violence, threats to kill, enduring harm to the victim and harm to associated persons.

[19]   In Shramka, the appellant (while subject to a protection order) visited the victim at her home. After an argument, during which the appellant had taken the victim’s phone, he grabbed the victim by the neck and squeezed tight. He maintained this hold, pushing her onto a bed and obstructing her breathing for 30 seconds, during which she almost lost consciousness. The appellant also punched the victim once to the back of the head then once to the face, causing significant injuries to her neck, face and head. The victim also continued to be scared, struggled to sleep, needed a light on at night and remained in a state of constant nervous anxiety. The Court of Appeal considered this offending would compel a starting point of three years’ imprisonment.

[20]   I was also referred to Hurndell v R.10 In that case, the appellant offended against his partner, who suffered from physical and mental health issues. He pushed and shoved the victim, threw a clothes horse at her and prevented her from calling for help. She had been grabbed by her arms, thrown onto a bed and hit with a damp towel. The appellant then straddled the victim and placed both hands around her neck, applying force and preventing her from breathing for 30 seconds, during which she almost lost consciousness. The appellant then squirted water into her nose and mouth while continuing to squeeze her neck. A starting point of four years’ imprisonment was adopted, which was assessed on appeal as being at the upper end of the available range.

8      Shramka v R [2022] NZCA 299.

9      Shramka v R at [45].

10     Hurndell v R [2023] NZHC 3416.

[21]In his submissions before me, Mr Allan also addressed two cases referred to in

Hurndell, being Edwards v Police11 and Ackland v Police.12

[22]   In Edwards v Police, Mr Edwards faced a representative charge of strangulation. He and the victim had been in a relationship for six months. On 15 March 2022, they were together at home and had argued about the victim not finishing her dinner. Mr Edwards grabbed the victim by the throat and pushed her back against a wall with sufficient force to cause her head to snap forward. He squeezed her neck for approximately 30 seconds before releasing the pressure on her throat. A week later, the couple again argued. Mr Edwards restricted the victim’s breathing for short periods by alternating between using a pillow and his hands for around 10 to 15 minutes. A three year starting point was upheld on appeal.

[23]   In Ackland v Police, the offending involved the appellant slapping the victim across the face five times, causing her to drop down to steady herself. He then forcefully put his hands around the victim’s neck, gripping so hard that she lost consciousness, while saying that he could “end it for you all now”. The victim suffered bruising to her face and a sore neck and chest. The parties’ children were present during the assaults. When a neighbour later intervened, Mr Ackland grabbed him by the throat and held a knife to his neck, causing a minor laceration. A starting point of three years three months, adopted on the strangulation charge, was upheld on appeal.

[24]   Although it is somewhat repugnant to compare cases of serious family violence, in particular cases where a victim’s breath has been impeded, nonetheless, an important principle of sentencing is to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances.13 This observation is made understanding that there are many other principles of sentencing in play which may apply in a particular case, but consistency is an important principle to ensure that a sentence is fair. Having said this, there is normally a range within which a starting point will be appropriate.   The question in this case is whether the starting point

11     Edwards v Police [2023] NZHC 2825.

12     Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.

13     Sentencing Act 2002, s 8.

adopted by the Judge was within range and comparable to other cases of similar offending.

[25]   In Mr Teriaki’s case, the impeding of breath was more fleeting in nature than in Shramka, Hurndell, Edwards and Ackland, and there was no near loss of consciousness. It was also of shorter duration and less immediately harmful than other strangulation/suffocation cases but, on both occasions, the victim was only released after she managed to fight her way free.

[26]   The Judge correctly noted that the starting point should also reflect the associated violence, as was the case in Shramka. Of particular relevance is Mr Teriaki’s threat to kill the victim while pointing a butcher’s knife towards her. The Court of Appeal in Shramka highlighted the aggravating nature of threats to kill. The presence of the knife in this case indicated to the victim that Mr Teriaki could very well carry out his threat. As well, Mr Teriaki struck the victim repeatedly with a bottle and threw hot coffee at her.

[27]   I agree with the Judge that the aggravating features of the offending, with reference to Shramka, are that the victim was vulnerable, that it involved offending in her home and in her bedroom (albeit at the time it was shared with the appellant as well), the violence can properly be described as aggravating because it was repeated, and there was the threat to kill which, given it involved a knife being waved towards the victim, was very serious. There is also the harm to the victim referred to above.

[28]   I consider the starting point of four years adopted by the Judge was out of range. In my view, the appropriate range would have been between three and three and a half years. A starting point of three years and three months’ imprisonment would have been more appropriate bearing in mind the comparable cases. This reflects the fact that the suffocation incidents were brief and did not render the victim unconscious, but it also recognises the very serious threat to kill, associated violence, and that the victim was only able to release herself because she managed to fight off Mr Teriaki.

Did the Judge make a factual error when setting the uplift?

[29]   Counsel for the respondent provided a background to the Judge’s decision to uplift the starting point to reflect aggravating factors relating to Mr Teriaki.

[30]   On 3 December 2021, Mr Teriaki was sentenced to intensive supervision for one year on three common assault charges. One of those charges was related to family violence against the victim in this case.

[31]   While subject to that sentence of intensive supervision, Mr Teriaki drove with excess breath alcohol (third or subsequent) and was sentenced to a further year of intensive supervision on 11 January 2023.

[32]   Less than a month after completing the original sentence of intensive supervision, Mr Teriaki committed two charges of wilful damage (both family violence against the victim of the present offending). On 17 March 2023, he was sentenced to come up if called upon for six months on those charges.

[33]   While subject to both his second sentence of intensive supervision and the sentence to come up if called upon, Mr Teriaki committed the present offending.

[34]   It is accepted that Mr Teriaki was not subject to the common assault charge sentence at the time of the present offending, as was recorded by the District Court Judge. However, counsel for the respondent submitted that the 10 per cent uplift remains within range given Mr Teriaki’s recent history of offending against the victim, the fact that he was subject to a sentence of intensive supervision at the time and the fact that he was subject to a sentence to come up if called upon for wilful damage offending against the victim.

[35]   Given this and particularly what was submitted to be Mr Teriaki’s disregard for court orders, coupled with the escalating nature of his offending and the heightened risk of reoffending against and harm to the victim, it was submitted there was an increased need for denunciation and deterrence in sentencing Mr Teriaki.

[36]   Mr Alexander, for the respondent, also referred to comments in the pre- sentence report which it was submitted involved an attempt to shift the blame onto the victim, thereby demonstrating Mr Teriaki’s attitudes about his offending and the victim, further supporting the need for deterrence and denunciation.

[37]   Offending while subject to a sentence of any kind is serious and must be strongly discouraged. I agree with the District Court Judge that an uplift for personal aggravating factors was appropriate, but an uplift of 10 per cent was at the very highest end of the appropriate scale. As against that, the 15 per cent discount for Mr Teriaki’s guilty pleas was generous, given that the pleas were entered on the morning of the trial.

[38]   Mr Allan for the appellant provided further background to the pleas. He advised that, following the delivery of a pre-trial ruling by Judge Duggan regarding propensity, two of the charges initially faced by Mr Teriaki in relation to these incidents were withdrawn. Mr Allan further advised that, at a registrar’s review scheduled three weeks before the trial, the Court was advised that Mr Teriaki would be pleading guilty to the remaining charges and that the trial would not be proceeding on the allocated date. This meant that the victim did not need to be summonsed to Court on the morning of the trial. Mr Allan also advised that Mr Teriaki, by pleading guilty, had recognised the fact that the victim was telling the truth about the incidents.

[39]   In these circumstances, I agree that a greater discount than the five per cent suggested by the Crown was warranted. A discount of between 10 and 15 per cent would have been justified. The Judge’s assessment of this credit can therefore not be challenged.

[40]    I conclude that the uplift and guilty plea discount applied by the Judge balance each other out and, for this reason, I do not propose to adjust the uplift figure.

Was the end sentence manifestly excessive?

[41]   The end result for Mr Teriaki, if the appeal is allowed, would be to impose an end sentence of three years and one month’ imprisonment on the two charges of impeding breathing and the charge of threatening to kill, which is a reduction of six

months’ imprisonment. I have reached the view that the sentence imposed on the lead charges was beyond the available range and thus is manifestly excessive. This means that the appeal should be allowed.

Result

[42]   The appeal is allowed as it relates to the starting point. The starting point of four years’ imprisonment is reduced to one of three years and three months’ imprisonment. With the appeal having been allowed, the end sentence on the two charges of impeding breathing and the charge of threatening to kill is one of three years and one month’ imprisonment. I do not adjust the end sentence imposed by the District Court Judge on the charge of assault nor his conclusion that all of the sentences are to be served concurrently.

Harland J

Solicitors:

P N Allan, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.