Tipuna v The Queen
[2020] NZHC 1883
•30 July 2020
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2020-416-12
[2020] NZHC 1883
BETWEEN MARSDEN TIPUNA
Appellant
AND
THE QUEEN
Respondent
Hearing: 28 July 2020 Counsel:
V E Thursby for appellant
C R Stuart for respondent (via VMR)
Judgment:
30 July 2020
RESERVED JUDGMENT OF DOBSON J
[1] On 12 March 2020, the appellant (Mr Tipuna) was sentenced in the District Court at Gisborne by Judge Cathcart to a term of two years and three months’ imprisonment on a lead charge of assault with a weapon.1 Shorter, concurrent, sentences of imprisonment were imposed on two lesser charges of possession of an offensive weapon and wilful trespass.
[2] Mr Tipuna has appealed against that sentence, contending it is manifestly excessive. The grounds of appeal are that the Judge attributed an aggravating factor to the offending that was not part of the agreed facts and was disputed by Mr Tipuna, and that the Judge had adopted an excessive starting point.
1 R v Tipuna [2020] NZDC 6463.
TIPUNA v R [2020] NZHC 1883 [30 July 2020]
The circumstances of the offending
[3] The complainant is Mr Tipuna’s former partner. They had been in a relationship for approximately three years, and have one child together. At the time of the incident, they had been separated for about one year. At 11.00 am on the day in question, 7 February 2019, the Police served a safety order on Mr Tipuna. That was to remain in force for five days and he was at the same time served with a trespass notice ordering him to remain off the property occupied by the complainant. This intervention followed many previous family harm incidents between Mr Tipuna and the complainant, as logged by the Police.
[4] At around 4.15 pm that day, Mr Tipuna went to the complainant’s address, uninvited. Their two year old child was present at the time when he confronted the complainant in the hallway of the house. He was holding a large machete in one hand and a pair of scissors in the other. He shouted at the complainant “what did you ring the pigs for?”. The complainant backed away from Mr Tipuna into a bedroom, where she sat down on the bed. She feared she was going to be assaulted so she covered her head with her arms and lifted her legs up to protect herself.
[5] Mr Tipuna had put down the machete he was holding but kept hold of the pair of scissors. He approached the complainant and stabbed her once in the right leg with the scissors.
[6] The Police (having been alerted by a third party) arrived at the address and knocked on the door. Mr Tipuna told the complainant to pretend that she was having a shower so that the Police would think she had not heard the knock. He hid in a wardrobe where the Police found him after forcing entry into the house. The complainant was taken to hospital for treatment of the stab wound to her leg. Mr Tipuna claimed that the complainant had stabbed herself in the leg.
[7] In anticipation of entering guilty pleas, material amendments to the summary of facts were negotiated between those appearing for the prosecution and the defence. An amended summary of facts was provided to the Court for sentencing. The initial summary of facts prepared by the Police included a statement that Mr Tipuna had entered the property “carrying a large machete in one hand and a pair of scissors in the
other hand”. The amended summary of facts stated that when Mr Tipuna found the complainant in the hallway at the address, “he had a large machete in one hand and a pair of scissors in the other”.
[8] At sentencing, the prosecution submitted that this formulation of words entitled the Judge to draw an inference that Mr Tipuna had arrived at the property carrying those weapons, which was treated as material to an assessment of pre-meditation. Defence counsel disputed that the inference was available or, if available, that it should be drawn.
[9] The Judge ultimately stated that he was bound by the undisputed summary, and accepted the prosecution’s inference that Mr Tipuna came to the address with both weapons.
The sentencing analysis
[10] The sentencing Judge treated the fact that Mr Tipuna had brought the weapons to the address as reflecting pre-meditation for a confrontation with the complainant. That was ranked as an aggravating factor, along with the nature of the weapons he had chosen, that the assault occurred in the course of a home invasion and was accompanied by threats, and that the offence was committed only a few hours after the Police safety order had been issued.
[11] In setting a starting point on the most serious charge, the Judge considered a range of comparable cases to determine a starting point of two years and eight months’ imprisonment. He then nominated a two month uplift for the fact that Mr Tipuna was on bail at the time of the offending and subject to a sentence of intensive supervision for previous violent offending against the same complainant. He added a second uplift of two months to recognise Mr Tipuna’s history of violence and that greater deterrence was needed by increasing the starting point to deter him and as an indicator of the risk of further such offending. Accordingly, the total starting point was three years’ imprisonment.
[12] There were no mitigating factors counting in favour of Mr Tipuna so the only discount available was for the early entry of guilty pleas, for which 25 per cent
discount was allowed, resulting in the end sentence of two years and three months’ imprisonment.
The appeal
[13] The appeal is to be allowed if there is an error in the sentence imposed, and I am satisfied that a different sentence should be imposed.2 The focus must be on the final sentence and whether it was within an available range, rather than any close review of the process by which it was reached.3
Wrongly attributing an aggravating factor
[14] The primary criticism was that the Judge was not entitled to draw the inference he did about Mr Tipuna having brought the weapons to the property. Where sentencing proceeds on an agreed summary of facts, its content is the basis on which the offending is to be assessed for sentencing purposes.4 A sentencing judge is entitled to draw inferences from the summary if they are grounded on established primary facts, but if the facts the judge intends to infer from a summary are to be considered as aggravating features, then the judge is obliged to indicate that to the parties and provide an opportunity for a disputed facts hearing to be held.5
[15] Because of the competing submissions presented to the sentencing Judge about the point, and its potential materiality as an aggravating feature, a dispute over whether Mr Tipuna is to be treated as having brought the weapons to the property, or opportunistically picked them up after arriving there, is sufficiently material to constitute a matter about which the opportunity for a disputed facts hearing should have been considered.
[16] In the context of all the facts conveyed to the Court, it is understandable that the Judge would accept the Crown’s invitation to draw the inference that Mr Tipuna brought the weapons with him. It is more likely that such items would have been
2 Criminal Procedure Act 2011, s 250.
3 Ripia v R [2011] NZCA 101 at [15].
4 Sentencing Act 2002, s 24, and for example Pokai v R [2014] NZCA 356 at [30].
5 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [71]; R v Kinghorn [2014] NZCA 168 at [20], [31].
brought to the premises than that he located and armed himself with them in the apparently short period between arriving at the property and confronting the complainant in the hallway. Nonetheless, the prosecutor had been prepared to amend the summary of facts to delete that detail. Given its significance as an indication of pre-meditation, the Judge ought not to have rejected the defence submission against the drawing of that inference, without affording an opportunity for a disputed facts hearing. It may well be that the concession in amending the summary of facts was made, appreciating that the complainant was unlikely to co-operate with the prosecution by providing evidence that confirmed the detail in the original version of the summary of facts.
[17] I accordingly consider the remainder of Ms Thursby’s arguments that the end sentence was manifestly excessive on the basis that the Judge ought not to have assessed pre-meditation on the basis that the weapons were brought to the property by Mr Tipuna.
End sentence manifestly excessive
[18] The second aspect of the challenge on appeal was that the sentencing Judge had wrongly rated the relative seriousness of this case of assault with a weapon, when comparing it with sentences in other such cases that have been reconsidered on appeal. There is no guideline judgment on setting starting points for charges of assault with a weapon. Analogy can be drawn with the Court of Appeal’s decision in Nuku v R,6 which itself draws on that Court’s decision in R v Taueki, which provides guidelines for more serious charges of violence.7 The Court of Appeal has suggested that the bands described in Nuku relative to charges of injuring with intent may also apply in setting a starting point for assault with a weapon, given that both carry the same maximum penalty.8
[19] The sentencing Judge had relied on Nicholson v Police where, on appeal, the High Court observed that an overall starting point of two and a half years’ imprisonment would be justified on charges of assault with a weapon, possession of
6 Nuku v R [2012] NZCA 584, [2013] NZLR 39.
7 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
8 Hurinui v R [2014] NZCA 290 at [26].
an offensive weapon, threatening to kill and resisting the Police.9 In that case, the sentencing Judge had adopted a somewhat lower starting point. It involved an attack in the home of the complainant who was the defendant’s former partner. The defendant armed himself with a knife from the kitchen in the premises, demanded the complainant’s new partner leave and repeatedly stabbed the bedding of the bed in which he found them. In a later confrontation, he grabbed the complainant by her collar and threatened to stab her and her unborn child. He had held the knife to the complainant’s throat and demanded she leave her new partner. Ms Thursby argued that Nicholson was more serious than the present offending, whereas Mr Stuart said that the circumstances were equivalent or possibly that the present offending was more serious than the offending in Nicholson.
[20] On appeal, Ms Thursby cited Edmondson v Police.10 The offending in that case involved charges of assault with a weapon and assault with intent to injure where the offender and associates entered the complainant’s home. After the associates left, the offender pushed the complainant onto a sofa, pulling her hair and elbowing her in the eye. After getting a knife from the kitchen at the premises, he threatened her and returned to the kitchen and retrieved a carving fork, which he used to stab her in the lip. A starting point adopted by the sentencing Judge of 18 months’ imprisonment was varied on appeal where it was held that a starting point of 14 months’ imprisonment would have been more appropriate.
[21] Mr Stuart’s response to these comparators was to invite them to at least be cross-checked by standing back and ranking the relative seriousness of this instance of assault with a weapon, against the spectrum from least to most serious circumstances of that charge. Given a maximum sentence of five years’ imprisonment, Mr Stuart argued that a starting point of 53 per cent of the maximum could not be criticised, given the features that aggravated its seriousness. These included:
· Vulnerability of the complainant: the complainant was particularly vulnerable given the context of their relationship history. She sought to avoid injury by covering her head and torso as best she could, and appears
9 Nicholson v Police [2016] NZHC 300.
10 Edmondson v Police [2015] NZHC 3184.
to have done nothing to challenge Mr Tipuna once she had retreated into the bedroom where she was attacked.
· Home invasion: the offence occurred at the complainant’s home.
· Serious injury: the complainant received a deep stab wound to her leg which required hospitalisation.
· Violation of the Police safety order: the attack occurred while Mr Tipuna was subject to a Police safety order issued that same day, and a trespass notice in respect of the address.
· Presence of a child: while their two year old child did not witness the offending, the child was present at the home at the time. This also limited the complainant’s ability to flee her attacker.
· Attempted evasion of authorities: when the Police arrived Mr Tipuna attempted to conceal the offending by telling the complainant to pretend to be in the shower, and by hiding in a wardrobe.
· Retaliation: Mr Tipuna’s own words suggest the attack was in retaliation for the complainant contacting the Police earlier that day.
Result
[22] Although arithmetic scaling of the seriousness of a particular case relative to the maximum penalty may be simplistic, I consider it validly applied in this case. It confirms my view that the circumstances in Edmondson are distinguishable, and that the seriousness here is marginally more than in Nicholson. In consequence, I am not persuaded that the Judge erred in adopting the starting point he did, notwithstanding the reliance he placed on an aggravating feature that ought not to have been taken into account.
[23] From that point, Ms Thursby accepts that the two uplifts of two months each were unimpeachable and that is a sensible acknowledgement.
[24] The consequence is that the end sentence cannot be made out as manifestly excessive and indeed I am satisfied that it was well within the range available to the sentencing Judge.
[25]Accordingly, the appeal is dismissed.
Dobson J
Solicitors/Counsel:
V Thursby, Wellington for appellant Crown Solicitor, Gisborne for respondent
0
9
0