Tonihi v Police

[2013] NZHC 737

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-000002 [2013] NZHC 737

CHEYENNE DALLAS TONIHI

Appellant

v

POLICE

Respondent

Hearing:         8 April 2013

Counsel:         S N Claver for Appellant

E Higbee for Respondent

Judgment:      8 April 2013

JUDGMENT OF WHATA J

[1]      Mr Tonihi seriously injured his partner fracturing two of her teeth at gum level and left her with a suspected broken nose, two black eyes and mild facial bruising.  He was found guilty of injuring with intent to injure and sentenced to two years and six months imprisonment.

[2]      He appeals against that sentence on the basis that it was manifestly excessive and that the Judge proceeded erroneously by sentencing him on the basis that his offending fell into Band 3 of R v Harris.1

[3]      Mr Tonihi generally agreed with the information in the police summary of facts.  The short point is that the victim was severely intoxicated and while sitting on

1      R v Harris [2008] NZCA 528.

TONIHI V POLICE HC INV CRI 2013-425-000002 [8 April 2013]

a couch she slumped onto another male’s shoulder.  Mr Tonihi slapped her face and then struck her in the face with a closed fist causing the various injuries described above.

Sentencing notes

[4]      The  Judge  narrates  the  relevant  facts  and  notes  that  Mr Tonihi  has  five previous violence related convictions.    Mr Tonihi’s alcohol problems are acknowledged  together  with  the  fact  that  previous  alcohol  programs  have  not resulted in any long term change.

[5]      The Judge proceeded on the basis that Mr Tonihi’s risk of harming others was high,  especially  with  women  with  whom  he  had  a  relationship.    The  Judge considered that the starting point must have regard to the seriousness of the injuries and the vulnerability of the victim at the time.  He also noted an abuse of trust was involved.

[6]      The Judge categorised the injuries as moderately serious and placed the offending in Band 3 of R v Harris. As a consequence he took a starting point of two years and two months.  An uplift of six months was made for previous convictions and a deduction of two months was made for remorse, acknowledgment of responsibility and his ongoing relationship with the victim, his financial support of her and his acceptance of his alcohol problem.  In the result the end sentence was two years and six months imprisonment.

Assessment

[7]      In R v Harris the Court of Appeal suggested the following bands for injuring with intent to injure, namely:2

(a)       Band 1:  little injury, few aggravating features, culpability at a level that might have been better reflected by a less serious charge – a

2      Nuku v R   [2012] NZCA 584 – has since overtaken R v Harris [2008] NZCA 528 as the guideline judgment, but both parties agree that Harris remains applicable for the purpose of this sentencing.

sentence of less than imprisonment can be appropriate;

(b)Band   2:      moderate   injury   –   sentences   of   up   to   two   years imprisonment;

(c)       Band 3:  serious injury – sentences from 18 months up to maximums of five years can be justified, subject to s 8(c) of the Sentencing Act

2002.

[8]      The facts in sentencing in Harris are illustrative of the application of the bands.  In Harris, the victim and the other offender were drinking at a hotel.  The offender  pushed  the  victim  as  she  left.     She  fell  and  hit  her  head  losing consciousness.   She was dragged across the road and she woke in the offender’s house.  The offender continued to assault her at his house by punching and kicking her in the head and she lost consciousness.  When she woke the offender initially prevented her from leaving but she later escaped.

[9]     The victim’s injuries were described as moderate to serious.   She lost consciousness twice.  She had severe bruises around her face and eyes, bruising throughout her body and grazing on her face and body.  This is said to take the offending into Band 3 and the starting point for sentence was two and a half years with an uplift of six months for previous violent convictions.

[10]     This  is  also  to  be  compared  with  another  Band  3  sentence  imposed  in Harrison v R where the victim was knocked unconscious.  The appellant stomped on his head resulting in fracturing to the skull, swelling and bruising to the brain and a clot.3

[11]     Mr Higbee also cited Hayward v Police4 where the Court endorsed a starting point of two years for violence involving a solid punch to the head causing the victim’s nose to bleed and also that the accused placed his hands around the victim’s neck and applied pressure.   The accused also breached a protection order when

committing this violence.

3      Harrison v R [2012] NZCA 498.

4      Hayward v Police HC Wanganui CRI 2008-483-000001, 22 February 2008.

[12]     With respect to the District Court Judge’s analysis, I do not think the current offending falls within the same category as Harris, Harrison or Hayward.  Both the aggravating nature of the offending and/or the consequences were substantially more serious in my view in those cases.  At most I would have put the offending in this case at the bottom of Band 3 with a starting point of 18 months.   I think it is important in this context to apply the sentencing principles in cases such as the present  in  a  finer  grained  way so  that  the  gravity of  the  offending  is  properly reflected in the sentence.  I agree with an uplift in light of the previous offending and generally  having  regard  to  the  risk  factors  presented  by  Mr  Tonihi,  if  I  were imposing sentence I would have had a starting point of about two years.   I then would have applied the relevant discounts, including in this case the discounts afforded by the sentencing Judge of about two months for his acknowledged remorse and what appears to be a repaired relationship with the victim (although I am not naive about the vulnerability of such victims in such relationships going forward).

[13]     Accordingly, on that basis, my preferred sentence would have been one year and ten months.  I think that the difference between my sentence and the Judge’s is, with respect, such that the original sentence was manifestly excessive in the circumstances.

[14]     I therefore substitute the first instance sentence with my sentence of one year ten months.

[15]     For completeness, I do not consider that home detention is appropriate in this context.   Domestic violence of this nature is to be abhorred and Mr Tonihi’s propensity for it is relevant in this regard.  Imprisonment must follow.

Solicitors:

S N Claver, Dunedin

Preston Russell Law, Invercargill