The Queen v Percy Tukahaere Monika

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/02

THE QUEEN

PERCY TUKAHAERE MONIKA

Hearing:	2 May 2002
Coram:	Richardson P Robertson J Panckhurst J
Appearances:	L M Bidois for the Appellant J M Jelas for the Crown
Judgment:	2 May 2002

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

This is an appeal against a sentence of four years' imprisonment imposed in the District Court at Rotorua on 31 January 2002 after Mr Monika had pleaded guilty to charges of injuring with intent to injure, burglary and breach of a protection order.
The Judge concluded that the home invasion legislative regime under s17B of the Crimes Act 1985 applied. On the charge of injuring with intent he was of the view that the proper starting point was three years' imprisonment but because of the home invasion aspect a further two years should be added with this term discounted back to four years' imprisonment on account of his plea of guilty. Mr Monika was convicted and discharged on the burglary. On the breach of the protection order he was sentenced to a concurrent term of four months' imprisonment.
He appeals against the sentence on the basis that it was manifestly excessive because the Judge increased the otherwise appropriate starting point by two years for the home invasion element. It is argued that the aggravating feature of home invasion had already been taken into account in fixing the starting point and that the home invasion element should have attracted only an additional 12 months in any event. Hence that the effective sentence should have been three years not four.
On 9 January 1999 a final protection order was granted to the complainant in the Pukekohe Family Court in respect of the appellant. It remained in force, albeit there had been consensual interruptions to it from time to time.
At about 4:00 a.m. on 29 December 2001 the appellant drove to the residential address of the complainant where she and her five children were asleep. The appellant is the father of four of these children.
The appellant woke the complainant by banging on the door claiming to be
the police. Recognising the appellant's voice and fearing for her safety the complainant telephoned the police on the emergency 111 line. When the appellant realised she was on the phone and apprehensive that she would be calling the police the appellant broke and entered the front door of the dwelling. He approached the complainant and severed the telephone connection. He then grabbed the appellant and after punching her threw her onto the floor. A kick was directed at her head which she avoided although it connected with her elbow.
The appellant then desisted to pick up a broom handle. He also obtained a long bladed knife from the kitchen and as the complainant cowered in a ball on the floor he approached her and told her he was going to kill her. He made this threat as he poked her with the knife, breaking the skin several times on the chest.
The noise of the attack woke one of the children. The appellant stopped the attack and put the child back to bed. He was returning to the lounge when the police arrived and he surrendered to them.
In explanation he said he had gone to the house to speak with the complainant but had become angered by their conversation and had lost his temper. He expressed remorse for his actions.
The complainant received bruising to her face, small cuts to the chest which did not require any medical attention. She was distraught and fearful that the complainant would return to the address again.
There was a challenge concerning the use to which the knife had been put. The appellant contending that he held the main part of the knife blade in the palm of his hand with only a small portion protruding. This was accepted as the position for the purposes of sentencing.
In a short but effective submission counsel challenged the two year increase
to the starting point of three years adopted in relation to the injuring charge. The home invasion amendment to the Crimes Act increased the maximum penalty for injuring with intent from five years to eight years. Accordingly the Judge in this case made an increase upon his starting point which was two‑thirds of the statutory increase. Such was criticised as excessive, albeit sentencing is not a mathematical exercise. It was suggested that a two year increase on account of home invasion may more readily be appropriate where the statutory increase to the maximum penalty is say five years.
In a related submission counsel also contended there was a risk of double counting, in that the starting point of three years was in itself high and must have reflected an allowance for the invasion of the sanctuary of the home which was involved.
Crown counsel supported the approach of the sentencing Judge and submitted that the four year term which resulted was within the available range given the seriousness of the offending and its effects upon the victim. In particular, both the starting point of three years and the increase of two years on account of the home invasion element were said to be justified.
We are not persuaded that the sentence imposed was clearly excessive. The offending was singularly serious. It began with the appellant's invasion in the early hours of the home occupied by his former partner and her children. Significant violence was used, including with a knife. It was fortunate indeed that the attack was interrupted, initially by the appearance of one of the children and ultimately by the arrival of the police. Nonetheless the complainant was subjected to a terrifying ordeal. The existence of the protection order was a further circumstance of aggravation.
The appellant is 34 years of age. He has a significant history of previous offending for which sentences of imprisonment have been imposed. It is noticeable that his appearances have been less frequent in more recent times. However, in January 1997 he was convicted for assaulting the complainant. Such conviction is consistent with the indications contained in the victim impact statement, that the complainant was constrained within an abusive relationship with the appellant over many years. The obtaining of the protection order in 1999 was likewise consistent with the abusive background.
In all the circumstances we are not persuaded that the Judge erred in relation to the length of the term of imprisonment which he imposed. This case is a further demonstration of the need to ensure that the element of home invasion is not double counted. We accept there may be room for debate that the invasion aspect was brought to account both in fixing the starting point and in assessing the two year increase, but it is the sentence which results rather than the process by which it is reached which is of most consequence. Imprisonment for a term of four years was
no doubt a stern response, but not one beyond the available range for offending of this seriousness.
The appeal is dismissed.

Solicitors
Crown Law Office, Wellington

[2002] NZCA 86

2 May 2002