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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 737
Decision Date: 8 April 2013

CaseChat Overview and Summary

In the case of Tonihi v Police, the appellant, Mr Tonihi, appealed against his sentence for injuring his partner with intent to injure, resulting in significant physical harm. The High Court of New Zealand, specifically the Invercargill Registry, heard the appeal. The legal issues centred around whether the sentence imposed by the District Court Judge was manifestly excessive and whether the Judge correctly applied the sentencing guidelines set out in R v Harris. Mr Tonihi argued that the sentence was excessive and that it was erroneously placed in Band 3 of R v Harris, which provided the basis for the starting point of the sentence.

The Court considered the gravity of the injuries inflicted on the victim, who was severely intoxicated at the time, and the risk factors presented by Mr Tonihi, particularly his history of violence and alcohol abuse. The Court found that the District Court Judge had correctly identified the aggravating features of the offence, including the abuse of trust and the vulnerability of the victim. However, the Court disagreed with the classification of the injuries as moderately serious and the subsequent starting point of two years and two months. Instead, the Court believed the injuries were less severe and would have placed the offending at the bottom of Band 3, with a starting point of 18 months. The Court also disagreed with the uplift of six months for previous convictions, suggesting a lower uplift was more appropriate. The Court ultimately concluded that the original sentence of two years and six months was manifestly excessive.

In light of these considerations, the Court substituted the original sentence with a sentence of one year and ten months imprisonment, applying relevant discounts for remorse and the ongoing relationship with the victim. The Court further noted that home detention was not suitable given the nature of the offence and the appellant's propensity for domestic violence. The Court's decision thus resulted in a reduced sentence, reflecting a nuanced application of the sentencing principles to the specific circumstances of the case.

Orders