Tonihi v The Queen
[2005] NZCA 40
•10 March 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA391/04
THE QUEEN
v
DWAINE CARL TONIHI
Hearing:21 February 2005
Court:O'Regan, Robertson and Panckhurst JJ
Counsel:M J Knowles for Appellant
B J Horsley for Crown
Judgment:10 March 2005
JUDGMENT OF THE COURT
The appeal is allowed. The sentence of six years imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm is quashed and a sentence of five years imprisonment is substituted. All other sentences remain unchanged.
REASONS
(Given by O’Regan J)
Introduction
[1] The appellant, Mr Tonihi, was convicted after a jury trial in the District Court of one count of causing grievous bodily harm with that intent, one count of assault and one count of male assault female. He was acquitted on another charge of assault. He was sentenced by the trial Judge, Judge Doherty, to concurrent terms of six years imprisonment for the grievous bodily harm charge and six months imprisonment on each of the assault charges. He appeals to this Court against that sentence.
[2] Mr Tonihi was charged jointly with Rory Manuel in respect of the grievous bodily harm charge. Mr Manuel was also sentenced to imprisonment for six years, having pleaded guilty to the grievous bodily harm charge about three weeks before trial.
Background
[3] The charges related to events which took place on 29 November 2003. Mr Tonihi and Mr Manuel tried to gatecrash a party at about 11.00pm. As they tried to enter the property where the party was taking place, Mr Tonihi was said to have struck the principal victim, A, on the head with a bottle. This incident founded another assault charge in respect of which Mr Tonihi was acquitted. However it was clear that there was some aggressive behaviour by both Mr Tonihi and A, and a third party who tried to intervene was hit by A.
[4] After this incident Mr Tonihi and Mr Manuel left the property in one direction, and A and his associates left in another direction. However, the two groups came into contact with each other some distance down the street from the site of the party a short time later. A and his associates were standing on the street when approached by Mr Manuel and Mr Tonihi. Mr Manuel had with him a golf club which he later used as a weapon. The sentencing Judge said it was fair to say that Mr Tonihi carried the golf club behind his back towards A and his associates, but ultimately it ended up being in Mr Manuel’s hands. That is an area of dispute to which we will revert later.
[5] Mr Manuel immediately chased after a male associate of A, with the golf club raised, apparently intending to hit that person with it. This did not happen because the person escaped in a car, though Mr Manuel attempted to hit the car with the golf club.
[6] Meanwhile, Mr Tonihi became involved in an altercation with A and his girlfriend, L. Mr Tonihi assaulted L by pushing her, causing her to fall backwards onto a fence. Mr Tonihi and A then began pushing and shoving each other. The events founded the charges of male assault female and common assault of which Mr Tonihi was convicted.
[7] While the altercation between Mr Tonihi and A was going on, Mr Manuel returned to the scene, still holding the golf club. He then attacked A with the golf club, swinging it hard into A’s head which caused A to fall to the ground, and then repeatedly hitting A on the head with the golf club. Eventually Mr Manuel was disarmed by others at the scene and he and Mr Tonihi then fled the scene.
[8] The assault by Mr Manuel on A was brutal. Judge Doherty said that it was clear that Mr Manuel was in “something of a frenzy”. He said that Mr Manuel’s actions were described as though someone was chopping wood with an axe. He said that it was clear that Mr Manuel was intent on inflicting serious harm to A.
[9] Mr Tonihi was charged as a party to the assault on A by Mr Manuel with the golf club.
[10] The impact of the assault on A was extremely serious. He suffered a depressed fracture of the skull which required surgery, and was hospitalised for eight days. The Judge noted that at the time of sentencing, ten months later, A had a permanent restriction of his vision on his right side, still had ongoing headaches and had to take medication to avoid further seizures after the injury had earlier caused him to have epileptic episodes. He was off work for over three months and even after his return to work could work only for very limited hours. He had been a rugby player of some note but the Judge said it was unlikely that he would ever attain that level again. The attack had also led to behavioural changes in A: he had difficulty concentrating, had a “short fuse”, and was moody. He was unable to drive because of the impact of the injury on him.
District Court sentencing
[11] Judge Doherty noted that both Mr Manuel and Mr Tonihi had poor records. He said Mr Manuel had a “horrendous list of violent offending” and that Mr Tonihi’s list was not much better. He noted that the probation report said that both Mr Manuel and Mr Tonihi had difficulties with alcohol and drugs.
[12] In relation to Mr Tonihi the Judge noted that Mr Tonihi accepted the link between his violent offending and alcohol and had undergone a treatment programme for alcohol abuse in respect of which he had received a very positive report. The Judge also noted that Mr Tonihi was leading a productive life while on bail, that he was in a good relationship, had a supportive family and had received a glowing reference from his employer. However, he noted that Mr Tonihi had another side which was violent, and that when he was with others of like mind he could not control himself.
[13] The Judge identified as aggravating features the fact that a weapon was used to inflict serious injury which had long term effects on the victim: he saw this as a significant aggravating feature. He also said there was some premeditation in that Mr Manuel and Mr Tonihi had gone with the golf club as a weapon intending to deal with A and his associates in some way. He also noted that the aggressive behaviour had continued over a long period, including a period when they could have cooled off and brought the whole thing to an end.
[14] The Judge accepted as a mitigating factor that Mr Tonihi was not the main player in the main assault. In relation to Mr Manuel the only mitigating factor was his guilty plea and remorse.
[15] The Judge took into account the following principles of sentencing:
(a)The seriousness of the crime: he described it as in the most serious category for this type of offending;
(b) A requirement to impose the maximum if the case is within the most serious of cases which that penalty is prescribed unless it is inappropriate because of the circumstances of the offender;
(c)The need for consistency with other cases;
(d)The need to denounce the conduct of Mr Manuel and Mr Tonihi;
(e)The need to hold them accountable for their behaviour;
(f)The need to deter them and others from behaving in that way;
(g)The need to protect the community from violence.
[16] Judge Doherty considered R v Hereora [1986] 2 NZLR 164, but noted that that case predated the Sentencing Act 2002. He noted that counsel for the offenders had submitted that the offending came within the first category identified in Hereora at 170: the range of sentences for offences in that category is three to five years. The Judge said he was satisfied that, in fact, the offending was in the second category, which the Court in Hereora identified as being reserved for cases exhibiting a combination of aggravating features, and for which a sentencing range of five to eight years is suggested. The Judge said the offending was not impulsive, but was premeditated and cowardly (the victim was hit from behind), was part of a wider course of violent conduct, and had lasting effects on the victim. He took as a starting point for the sentencing of Mr Manuel a term of eight years imprisonment, but gave a significant discount for the guilty plea (even though it was made after depositions) to reach a sentence of six years.
[17] In relation to Mr Tonihi, the Judge accepted that he had not struck the blow with the golf club, but said that he accepted on the evidence that it was Mr Tonihi who introduced the weapon and that he had been the instigator of the general aggression. He said that Mr Tonihi’s association with, and help to, Mr Manuel meant that he was tainted with Mr Manuel’s culpability. He noted that Mr Tonihi had been portrayed as a positive, hardworking, law abiding citizen, but for the effect of alcohol which caused the violent offending. The Judge expressed some scepticism about that.
[18] Judge Doherty took the same starting point for Mr Tonihi as he had for Mr Manuel on the grievous bodily harm charge (eight years imprisonment). He said Mr Tonihi could receive no credit for a guilty plea because he had gone to trial, but the Judge accepted Mr Tonihi’s lesser role meant that his culpability was less. He gave a credit of two years for the lesser role, and thus reached a sentence of six years imprisonment, the same as that imposed on Mr Manuel.
Issues
[19] Counsel for the appellant, Mr Knowles, raised three discrete grounds of appeal, and we will address each of them separately.
[20] The first was that the Judge’s approach to sentence incorporated factual findings which were unjustified or unsafe. These were:
(a) The finding that Mr Tonihi introduced the golf club into the fray. It was submitted that this was not necessarily in accordance with the Crown’s case or the jury’s verdict;
(b)The degree of premeditation was said to have been over-emphasised;
(c)The conduct of A as a contributor to events was under-emphasised.
[21] The second ground related to the starting point, which counsel submitted was too high. He said this was compounded by a loose calculation of sentence based around factors which were relevant to Mr Manuel, but not to Mr Tonihi. He said this meant that insufficient allowance was made for the different levels of involvement between Mr Manuel and Mr Tonihi. He said the result may have produced an appropriate sentence for Mr Manuel but was manifestly excessive for Mr Tonihi given the difference in their respective roles.
[22] The third point related to the personal circumstances of Mr Tonihi. Mr Knowles said given the significant support he had from his employer and from other reasonable members of the community, more weight should have been given to s 7(1)(h) of the Sentencing Act 2002 (rehabilitation and reintegration).
Factual findings
[23] Mr Knowles said the Judge was wrong to have found that Mr Tonihi introduced the golf club into the fray. He said that the Crown’s sentencing memorandum acknowledged he may not necessarily have done so. That submission said: “Even if Mr Tonihi did not pass the golf club to Mr Manuel he has provided both physical and moral support to Mr Manuel and is almost equally as culpable”. He said this concession was in accordance with the Crown’s case at trial. He said that if the Judge was to take a different view, Mr Tonihi should have been given an opportunity to dispute that.
[24] Counsel for the Crown, Mr Horsley, said the Judge’s finding was open to him on the evidence but, more importantly, he said that the Crown’s case was that, whoever had the golf club initially, the common plan was to assault A and the use of the golf club was clearly envisaged by both offenders.
[25] We agree with Mr Horsley that the identity of the person who carried the golf club prior to the attack is not a significant factor in determining their respective culpability. It is clear from the evidence that both offenders determined that they would return to the scene, and both knew that there was in their possession a golf club which could be used (and which presumably was intended to be used) in the course of their renewed hostilities with those at the party. This was not a situation where one offender was armed, and the other was unaware of that fact.
[26] As already indicated, the Judge said he thought the attack on A was premeditated and rejected the submission that it was impulsive. Mr Knowles said the Judge had earlier recognised that there had not been a premeditated plan to come across A and deal to him. Mr Knowles said this appeared to acknowledge that this was not a planned pre-arming for a violent expedition elsewhere, and that that meant the eight year starting point was too high.
[27] Mr Horsley said the Judge’s comments immediately following his reference to the lack of a plan make it clear that he believed that the second incident involving A, in which the golf club was used, was premeditated. The Judge noted that after the first incident the offenders had armed themselves and purposely gone back into battle with a weapon.
[28] We agree with the Crown submission that the degree of premeditation in this case was significant in relation to the golf club incident.
[29] The third factual issue relates to the conduct of A. Mr Knowles said that before any offence was committed by Mr Tonihi, force was used against him by A on two occasions. He said that the Judge’s comment that A was not the aggressor was not in accordance with the evidence. He said that the option which Mr Tonihi had of “calling it quits” were options which were also available to A.
[30] Mr Horsley said that the Judge’s comments related to the golf club incident. He said it was clear that A was not the aggressor at that point: it was Mr Tonihi who returned to renew the conflict. We agree.
Starting point
[31] Mr Knowles said the starting point of eight years was too high. He submitted that the case came within the first category of Hereora, or, if it were in the second category, it was at the lower end of that category. He said a starting point of about five years was appropriate. He also disputed the Judge’s incorporation of an aggravating feature (the seriousness of the assault with the golf club by Mr Manuel) which should have applied only to Mr Manuel. He said this meant the Judge started at too high a starting point, and then gave too little credit for the lesser role of Mr Tonihi.
[32] Mr Horsley said that there were very significant aggravating features including the bringing of a weapon to attack the complainants, the resumption of an earlier altercation, the frenzied attack and the very serious injuries caused to A. Mr Horsley said that the Judge did not set eight years as the starting point for the offence alone, because this starting point included an allowance for the very poor offending record of Mr Manuel, and the starting point for Mr Tonihi must have factored in his poor record as well.
[33] We are satisfied that the Judge was entitled to find this offending came within category 2 of Hereora, given the degree of premeditation, the vicious and cowardly nature of the assault and the terrible injuries which were inflicted. The appropriate course was for the Judge to set a starting point for the offending which would be the same for both offenders, before turning to consider mitigating and aggravating factors that related to individual offenders. The Judge seems to have factored into his starting point the very poor record of Mr Manuel, but given that Mr Tonihi also had a very poor record we are not convinced that this approach has disadvantaged Mr Tonihi.
[34] In our view a starting point of eight years, even when it includes some allowance for the poor offending records of the offenders, was at the very upper limit of the available range. But it was not outside it. Accordingly we reject this ground of appeal.
Personal features
[35] The third ground of appeal is that the Judge did not give sufficient weight to the positive personal factors which applied to the appellant. Mr Knowles argued that this meant that the Judge had failed to take into account s 7(1)(h) of the Sentencing Act, which says that one of the purposes for which a Court may sentence an offender is “to assist in the offender’s rehabilitation and reintegration”.
[36] Mr Knowles accepted that the Judge had acknowledged the efforts that Mr Tonihi had made to turn his life around. In particular the Judge noted the positive report Mr Tonihi had received after undergoing an alcohol abuse treatment programme, the fact that he was leading a productive life, was in a good relationship, had a supportive family and had received glowing references from his employer. However the Judge said that the probation officer had noted that Mr Tonihi needed to first accept that he was violent, and second that violence had no justification or use in his life before he could rehabilitate himself. The Judge was obviously sceptical about the likely success of Mr Tonihi’s efforts, stating later in the sentencing notes that “Often the best predictor of the future is what happened in the past”.
[37] We had before us a letter of support for Mr Tonihi from his employer, Wayman Roofing Services Limited. This reiterates the support indicated in letters provided to the Sentencing Judge from the two principals of Wayman Roofing, one of whom is an ex-policeman. It is clear from this correspondence that Mr Tonihi’s employer thinks extremely highly of him and that its principals are providing him with extensive and ongoing support during his imprisonment, as well as providing him with an assurance of employment after his release. The letter provided to the sentencing Judge recorded that Mr Tonihi was a highly valued employee who had shown himself to be a high quality employee. His employer undertook to "continue to provide an environment that develops [Mr Tonihi] professionally and will also be glad to form a closer relationship with his immediate family”.
[38] The probation officer who prepared the pre-sentence report provided to the sentencing Judge recorded that Mr Tonihi was leading a productive life, with a good job, a young family, a supportive whanau and good health. He was said to impress as a polite serious man at the interview. On the other hand the probation officer indicated that Mr Tonihi had a violent nature, and that he needed to accept this if he was to rehabilitate.
[39] Counsel for the Crown said that, given the serious nature of the offending, the primary concern of the Court was to impose a deterrent punitive sentence. He said that an express reference to s 7(1)(h) would not have made any difference to the overall sentence imposed.
[40] We accept that deterrent sentences are required for serious violence of the kind which characterise this offending. But we think that allowance should have been made for the very positive rehabilitative efforts which have been made by Mr Tonihi. While we have upheld the starting point taken by the Judge, we accept that it is at the high end of the available range, and, having taken that starting point, we believe there was room for the Judge to recognise the rehabilitative efforts Mr Tonihi has made, and the genuine prospects for rehabilitation after his release from jail with the support of his employers and his family.
[41] We therefore propose to adjust the sentence to make an allowance for these efforts, while still providing for a strong deterrent sentence in the light of the seriousness of the offending. We allow the appeal, quash the sentence of six years imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm and substitute a sentence of five years imprisonment. All other sentences remain unchanged.
Solicitors:
Crown Law Office, Wellington
0
0
0