Tihi v Police

[2019] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000034

[2019] NZHC 771

IN THE MATTER OF

an appeal against sentence

BETWEEN

JESSY TIHI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 April 2019 (Heard at Tauranga)
Counsel:	C A Gentleman for the Appellant E F Collis for the Respondent
Judgment:	10 April 2019

(ORAL) JUDGMENT OF EDWARDS J

Solicitors:    Gowing and Co, Whakatane

Pollett Legal (Office of the Crown Solicitor), Tauranga

TIHI v POLICE [2019] NZHC 771 [10 April 2019]

[1]                Mr Tihi appeals his sentence of 25 months’ imprisonment for the following offences:

(a)Assault with a blunt instrument (x 3);1

(b)Failure to answer District Court bail (x 2);2

(c)Breach of community work;3 and

(d)Wilful damage.4

[2]                Mr Tihi appeals on the ground that the end sentence was manifestly excessive and an end sentence of 22 and a half months’ imprisonment should have been imposed.

The offending

[3]Mr Tihi pleaded guilty to seven charges relating to a number of incidents.

[4]                The first was an assault that occurred on 6 August 2018. Mr Tihi got into an argument with his father. As he left the house, he started to throw bottles, and smashed one against the side of his father’s head. He then picked up gardening shears and smashed the glass pane in a door. This offending gave rise to one of the assault charges, and the charge of wilful damage.

[5]                The other assault charges arose out of an incident at around midnight on     19 January 2019. Mr Tihi was at a friend’s place in Whakatane when an argument broke out over cigarettes. Mr Tihi pushed a male victim, picked up a metal pot, and struck him on the head with it. The victim fell to the floor, and Mr Tihi kicked him and struck him in the head with the metal pot at least twice. By this time, the female victim had picked up a knife from the kitchen for protection. Undeterred, Mr Tihi

1      Crimes Act 1961, s 202C, maximum penalty five years’ imprisonment.

2      Bail Act 2000, s 38, maximum penalty one year’s imprisonment or fine not exceeding $2,000.

3      Sentencing Act 2002, s 71(1), maximum penalty three months’ imprisonment or fine not exceeding

$1,000.

4      Summary Offences Act 1981, s 11, maximum penalty three months’ imprisonment or fine not exceeding $2,000.

turned and hit the female victim multiple times with the pot, including on the side of her face, causing the handle of the pot to break.

[6]                The victims followed Mr Tihi out of the property and on to the deck. Mr Tihi turned back and punched the female victim in the stomach. This offending took place while he was under a warrant to arrest for non-appearance on the earlier charges.

[7]                In addition, on 13 August 2019, Mr Tihi failed to turn up for community work. On 24 October 2018, and 9 January 2019, he breached his bail conditions by failing to appear in the District Court.

District Court sentencing

[8]                Mr Tihi pleaded guilty to these charges and came before Judge Harding in the Whakatane District Court.

[9]                The Judge referred to the pre-sentence report which recorded Mr Tihi as having a high risk of re-offending. Although the report recorded that Mr Tihi had some insight in that he recognised that changes needed to be made, it recorded significant attitude and lifestyle factors as contributing to his offending, as well as a propensity for violence and substance abuse. Police had responded to 29 family harm incidents over the last 10 years or so involving Mr Tihi and his immediate family. The report recorded that Mr Tihi was not suitable for an electronic monitored sentence.

[10]            Counsel for Mr Tihi in the District Court accepted that a sentence of imprisonment was inevitable and proposed an end sentence of less than two years. The Judge accepted that counsel’s proposals were broadly within range, but nevertheless too low. He considered an overall starting point of three years’ imprisonment to be appropriate. That was reached by adopting a starting point of 18 months’ imprisonment for the most serious assaults, adding 12 months’ imprisonment for the assault on Mr Tihi’s father, and adding a further six months imprisonment for the balance of the offending.

[11]            The Judge then applied a 25 per cent discount for the guilty plea, but was unable to conclude, in view of Mr Tihi’s history, that any greater discounts were justified. The end sentence was made up as follows:

(a)On the most serious charges you are convicted and sentenced to 18 months’ imprisonment.

(b)On the breach of bail, one month’s imprisonment.

(c)On the second breach of bail, one month’s imprisonment.

(d)On the breach of community work, one month’s imprisonment and cancellation of the community work.

(e)On the assault on your dad, seven months’ imprisonment, cumulative on the 18, making a total of 25 months’ imprisonment.

(f)On the final charge of intentional damage, one month’s imprisonment and reparation of $100 at $20 a week, first payment 28 days from your release.

[12]            The sentences in (a) and (e) were cumulative, but the remaining sentences were concurrent “to recognise the totality principle and effectively provide you with a greater discount”. The effective end sentence was accordingly two years and one month’s imprisonment.

Approach on appeal

[13]            Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011. They must be determined in accordance with s 250 of that Act, which provides that the Court must allow an appeal against sentence if it is satisfied that there is an error for any reason in the sentence imposed and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.

[14]            The Court of Appeal has also held that despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.5 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence is reached.6

Is the sentence manifestly excessive?

[15]            Counsel for Mr Tihi submits that the six-month uplift for the breach of bail, breach of community work, and wilful damages offences was excessive. She says

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

6      Ripia v R [2011] NZCA 101 at [15].

that, taken on their own, they would not have attracted sentences of imprisonment and do not, therefore, provide support for an uplift amounting to six months’ imprisonment.

[16]            Some support for that position may be derived from two cases where uplifts have been applied for similar offending:

(a)In Harris v Police, an uplift of five months for breaching release conditions and two charges of failing to answer bail was considered “stern” but not outside the available range.7

(b)In Kanuta v The Queen, Brewer J considered a four-month uplift for: failing to report to a probation officer for community work; moving to a residential address without the prior written consent of a probation officer; and failing to report to a probation officer when required was excessive.8 His Honour considered an uplift of one month’s imprisonment, taking into account the principle of totality, was appropriate in that case.

[17]            However, the six-month uplift for the balance of the offending cannot be considered in isolation. It is the totality of the offending that is relevant when considering the end sentence. Furthermore, it is the end sentence itself, and not the process by which was derived, that is relevant on appeal.

[18]            The Judge did not apply a discrete uplift for Mr Tihi’s prior convictions. His criminal history was clearly before the Court and may well have informed the quantum of the uplift applied. In any respect, there is no doubt that a separate uplift would have been justified in the circumstances. Mr Tihi has approximately 30 other convictions in addition to those at issue in this appeal. Those include:

(a)five convictions for failing to answer police or District Court bail;

7      Harris v Police [2017] NZHC 3224 at [26].

8      Kanuta v The Queen

(b)nine convictions for breach of release conditions, conditions of community detention and supervision, and breach of community work; and

(c)five prior convictions for family violence offending. As already noted, the District Court Judge referred to the fact that police had responded to 29 family harm incidents over the last 10 years or so.

[19]            I do not accept Ms Gentleman’s submission that the prior history is already reflected in the 18-month starting point for the assaults and the cumulative sentences imposed. There is nothing to indicate that this is in fact how the Judge approached sentencing. Accordingly, I do not accept that there is a risk of double jeopardy.

[20]            Mr Tihi’s prior criminal history required deterrence and denouncement in the sentence imposed for the same type of offending before the Court and would have justified a discrete uplift for personal aggravating factors.

[21]            In any respect, the effective end sentence imposed reflects a two-month discount for totality purposes. The Judge applied the 25 per cent discount to the three- year starting point which would have resulted in a term of imprisonment of 27 months’. However, the effective end sentence imposed was for 25 months’ imprisonment. To the extent that the six-month uplift applied by the Judge was out of range, it was mitigated by the two-month discount reflected in the end sentence ultimately imposed.

[22]            Counsel for Mr Tihi submits that the effect of the end sentence imposed is to subject Mr Tihi to parole, whereas a sentence under the 24-month threshold would mean he would likely only serve half of his imposed sentence. Counsel submits that it is unlikely that Mr Tihi will be granted parole on his first application. In addition, counsel submits that, as the sentence is in excess of 24 months, Mr Tihi is unable to apply for home detention, even if an address was available. This changes the nature and character of the sentence, in Ms Gentleman’s submission, making any adjustment to the sentence imposed by the District Court to be more than mere tinkering.

[23]            Sentences are to be fixed in accordance with the Sentencing Act 2002, and in accordance with the purposes and principles set out in ss 7 and 8 of that Act. In the absence of exceptional circumstances, there is no basis to artificially manipulate a sentence to afford more favourable parole terms. Nor is it appropriate to speculate on what the Parole Board may do when an offender becomes eligible for parole. In this case, those considerations are irrelevant to the determination of an appropriate sentence. Support for that proposition may be found in the Court of Appeal’s decision in R v Stockdale,9 relied on by Crown counsel in oral submissions.

[24]            Similar principles apply with respect to home detention. Reducing a sentence for the sole reason of bringing it within home detention range, and where there is no other justification for doing so is outside the principles and purposes of sentencing set out in the Act. In any event, Mr Tihi’s unsuitability for home detention was reflected in the pre-sentence  report,  and  his  counsel’s  responsible  admission  in  the District Court, and repeated in the appeal court today, that the end sentence had to be one of imprisonment. Even if  the  end  sentence  was  below  24  months,  and  as Ms Gentleman accepts, Mr Tihi is unlikely to have been granted leave to apply for home detention in all the circumstances.

[25]            Overall, the end sentence of 25 months’ imprisonment is an appropriate response to the totality of Mr Tihi’s offending. There is no basis to reduce the sentence further, and a reduction of two and a half months would be mere tinkering in the circumstances. Accordingly, the appeal from sentence is declined.

Result

[26]The appeal from sentence is declined.

Edwards J

9      R v Stockdale C A 3/81, 2 October 1981.