Tuhou v Police

[2024] NZHC 1079

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-36

[2024] NZHC 1079

BETWEEN

THOMAS HOANI TUHOU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 May 2024
Appearances:	E Huda and S-C Kim for Appellant W J S Mohammed for Respondent
Judgment:	3 May 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 May 2024 at 2.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TUHOU v NEW ZEALAND POLICE [2024] NZHC 1079 [3 May 2024]

Introduction

[1]    The appellant, Thomas Tuhou, pleaded guilty to two charges of strangulation, one charge of threatening to kill and one charge of assault on a person in a family relationship. He was sentenced to a term of two years and three months’ imprisonment by Judge B P Callaghan.1

[2]    Mr Tuhou appeals his sentence. He contends that the starting point was too high and credit should have been given for his personal background, specifically his addiction to alcohol and methamphetamine. He says the combination of these errors led to a manifestly excessive sentence.2

The facts

[3]    The victim  is  Mr  Tuhou’s  current  partner.  During  an  argument,  when Mr Tuhou was heavily intoxicated, he grabbed the victim around the neck with     two hands and lifted her off the ground and threw her onto the bed. The victim stood back up, and he grabbed her again and pushed her back onto the bed. This occurred around four times.

[4]    The victim then got off the bed and went across the hallway to the toilet. The defendant followed the victim and kicked the door open before she could close it. He grabbed her around the front of the neck with two hands and pushed her up against the wall. He lifted her up so both her feet were off the ground and began shaking her around. She urinated herself while he was holding her off the ground. This lasted for around 10 seconds before he released her.

[5]    The defendant then followed the victim into the lounge and grabbed her by the back of the neck with two hands and threw her on the couch. He was on top of the victim on the couch before they both fell off and onto the floor. While on top of the victim, he again grabbed her throat with both hands and squeezed. She was unable to breath and attempted to scratch the defendant in the face to get him to let go of her.

1      Police v Tuhou [2023] NZDC 14201.

2      Criminal Procedure Act 2011, s 250.

He told the victim that he was going to kill her while he was holding her throat. The victim again urinated herself.

[6]    The defendant let go of the victim and she went to the open window and yelled for help. He closed the window and she managed to get to the front door and out into the driveway. He followed her into the driveway and grabbed her again around the back of the neck with two hands as she was yelling out for help. She grabbed the wing mirror of the defendant’s car to prevent herself from being pulled back in the house. The wing mirror broke as the defendant pulled the victim back towards the house. He tripped as they were entering the house and pulled the victim down on top of him. He held her around the back of her neck once more and adjusted his grip to grab her around the front of her throat. The victim managed to get away and phoned 111.

The sentencing decision

[7]    After discussing the Court of Appeal’s decision Shramka v R,3 being the leading case on sentencing for strangulation offending, the Judge adopted a total starting point of three years and nine months. This comprised three years for the strangulations and the threat to kill and a nine month uplift for the assaults which were “separate and distinct acts”.4 In calculating the starting point, the Judge found the strangulation was aggravated by the victim’s vulnerability,5 the presence of aggravated violence as Mr Tuhou persisted after the first occasion and caused the victim to become incontinent twice,6 the accompanying threat to kill,7 and the enduring harm suffered by the victim.8

[8]    A 25 per cent credit was then awarded for Mr Tuhou’s prompt guilty pleas, and a further 15 per cent was awarded for his remorse, participation in the restorative justice and rehabilitative efforts. After taking these reductions into account, a term of two years and three months’ imprisonment was imposed.

3      Shramka v R [2022] NZCA 299; [2022] 3 NZLR 348 (CA).

4 At [24].

5 At [17].

6      At [18] and [22].

7 At [19].

8 At [21].

[9]    The Judge declined to discount the sentence to reflect Mr Tuhou’s alcohol and methamphetamine use. Although the appellant’s pre-sentence report noted drug and alcohol abuse, no further information was provided at sentencing. The Judge concluded that Mr Tuhou’s consumption of alcohol and methamphetamine was irrelevant as “the fact the defendant was drunk and/or affected by methamphetamine of course by law cannot be taken into account as an excuse”.9

Approach on appeal

[10]   The Court must allow an appeal against sentence if it is satisfied there was an error in the sentence, such that a different sentence should be imposed.10 In this case, Mr Tuhou contends that the end sentence imposed was manifestly excessive. Whether a sentence is manifestly excessive is examined in terms of the end sentence reached, rather than the process by which it was determined.11 A court will not intervene if the sentence is within a range that can be properly justified by accepted sentencing principles.12

Submissions

Submissions for the appellant

[11]   Counsel for the appellant submit that the three years nine months’ starting point in Mr Tuhou’s case was too high and, instead, a starting point of three years and three months would have been appropriate.

[12]   Ms Kim, who addressed the Court on this aspect of the appeal, points out that in Shramka, the Court of Appeal cautioned against applying guideline judgments in a mechanistic way by counting the number of aggravating features present, saying that the number of aggravating features, without more, “does not necessitate a rush to the top of the scale” given much strangulation offending would involve all or most of the

9 At [22].

10     Criminal Procedure 2011, s 250(2).

11     Kumar v R [2015] NZCA 460 at [81].

12     Tutangahau v R NZCA 279, [2014] 3 NZLR 482 at [32]–[36]; and Te Aho v R [2013] NZCA 47 at [30].

aggravating factors identified in that case.13 Rather, a “qualitative assessment”14 is needed, by reference to the examples given in Shramka, and assessing the absence of aggravating features and the intensity of each factor present, particularly the nature of the violence and the harm caused to the victim.15

[13]   Ms Kim notes the offending in Shramka was described as “moderate level”16 offending and attracted a three year starting point. In Shramka, the appellant refused to leave his former partner’s home in breach of a protection order. He then hid her phone in his pocket. When she tried to retrieve it, he squeezed her neck for approximately 30 seconds and she almost lost consciousness. He also punched her hard to the back of her head and then punched her face as she reached for her phone. She received scratches and red marks on her neck, a swollen and bruised eye, a laceration on her cheek, a large welt above her eye, and bruising to the back of her head. After the attack, she had difficulty sleeping and remained in a state of “constant nervous anxiety”.17

[14]   Ms Kim acknowledges that Mr Tuhou’s offending is more culpable than that example in Shramka. While there was no breach of a protection order and a lesser degree of associated violence and injury, the offending was aggravated by the fact the victim was strangled twice in succession, urinating herself each time, and by the threat to kill.

[15]   However, she submits that an uplift for the accompanying violence would be manifestly excessive given the starting point adopted in Shramka accounted for associated violence, including the punch to the victim’s face that caused a laceration. She says a starting point of three years and three months is also consistent with the starting point adopted Durie v Police,18 R v Warwood,19 and Edwards v Police,20 and

13 At [43].

14 At [49].

15 At [44].

16 At [50].

17 At [4].

18     Durie v Police [2023] NZHC 3497.

19     R v Warwood [2023] NZHC 1065.

20     Edwards v Police [2023] NZHC 2825.

noted that in Shramka, the Court expressly noted that subsequent decisions would provide more examples for comparison in future sentencing.21

[16]   In Durie, a starting point of three years and three months was upheld where Mr Durie strangled the victim twice during an incident causing the victim to lose consciousness momentarily and resulting in her suffering from post-traumatic disorder and other enduring and significant psychological harm. There had also been 10 prior family harm incidents between Mr Durie and the victim.

[17]   In Warwood, the offending comprised two separate occasions of strangulation against his then partner and starting points of two years and six months and three years and six months were adopted for the first and second occasion respectively. On the first occasion, there was a threat to kill and she was choked until she became unconscious in front of her children, causing her to urinate as a result and on the second occasion she was strangled and lost consciousness three times. Again, he said he was going to kill her. Upon regaining consciousness, the victim realised she had urinated and defecated herself.

[18]   In Edwards, a three year starting point was taken for strangulation which occurred on two occasions. The first for approximately 30 seconds and the second involving smothering her with a pillow for 10 to 15 minutes. The victim suffered significant psychological harm. Ms Kim argues that Mr Tuhou’s offending is less serious than the strangulation in Warwood and similarly culpable to the offending in Durie and Edwards. While in those two cases the victim was not rendered incontinent, there were other aggravating features in them like the duration of the strangulation in Edwards and the loss of consciousness in Durie. These cases support an overall starting point of three years and three months.

[19]   The second ground of appeal is that a credit of 10 per cent is justified on account of Mr Tuhou’s addiction to alcohol and methamphetamine, but no such credit was given at sentencing. Leave was sought to provide an alcohol and drug assessment that had been obtained since sentencing, on the grounds the report is “fresh and cogent evidence”.

21 At [45].

[20]   Mr Huda, who addressed this aspect of the appeal says the report confirms Mr Tuhou’s deep seated addiction to alcohol and methamphetamine. In respect of alcohol, Mr Tuhou first began drinking when he was 15 years old and progressed to regular and heavy drinking from the age of 16, up until his early twenties. It seems between the ages of 23 to 30 years he abstained from drinking alcohol, substituting it instead with methamphetamine, but from 31 years onwards his alcohol consumption continued until he was incarcerated at the age of 35. He began using methamphetamine when he was 16 years old and his use was heaviest when he was aged 24 and 30 years old. He continued to consume methamphetamine up until his offending. The report notes that Mr Tuhou has a severe addiction to both substances, that is in early remission.

[21]   Mr Huda relies on the report which suggests that addiction “ultimately manifest(ed) with poor judgement and lack of insight when intoxicated resulting in uncharacteristic behaviours.” He says it is Mr Tuhou’s addiction that contributed to his uncharacteristic demonstration of violence against his partner, noting he has not offended that way before in his 36 years.

[22]   Mr Huda then refers to the decisions in Turner v Police22 and Warwood, where addiction was considered to contribute to violent offending against a partner, and warranted a discount in sentencing. In Turner, Harland J applied a 10 per cent discount for the offender’s methamphetamine addiction and personal background when sentencing him on a charge with wounding with intent to injure when he was under the influence of  methamphetamine.  Mr Huda similarly  argues  that, here,  Mr Tuhou’s substance abuse was well entrenched before his relationship with the victim and it has “ultimately manifested itself with poor judgment and lack of insight when intoxicated, resulting in uncharacteristic behaviour.”

[23]   In Warwood, Osborne J granted a 10 per cent credit for the offender’s methamphetamine addiction on charges of sexually violating his partner and strangling her on two occasions. Although the Judge noted that Mr Warwood’s

22     Turner v Police [2023] NZHC 648 at [37].

voluntarily consumption of methamphetamine could not be taken as a mitigating factor, credit was awarded for his deep-seated addiction.23

Submissions for the respondent

[24]   Mr Mohammed, for the respondent, submits this case is a serious example of strangulation offending and family violence. The respondent rejects the submission that this offending is similar to the examples cited in Durie, Warwood and Edwards, noting the victim was strangled repeatedly, essentially detained, and at one point suspended from the ground as she was held by her neck. She lost continence on more than one occasion. Thus, there were multiple instances of strangulations and assaults, and Mr Tuhou told her he was going to kill her. This makes it an example of serious strangulation.

[25]   In respect of whether a credit should have been given for addiction issues, the Crown does not oppose leave being granted to adduce the alcohol and drug report. However, Mr Mohammed says the evidence does not demonstrate the nexus between the addiction and the offending, nor how it reduces Mr Tuhou’s culpability. Furthermore, the suggestion that Mr Tuhou’s addictions reduce his ability to make a rational choice as to his offending is contradicted somewhat by the submission that the offending is out of character for Mr Tuhou.

[26]   Even if addiction was considered contributory to the offending now that the further report is received, taking into account the 15 per cent already awarded for the appellant’s personal factors, and the fact the starting point could have been higher, the end sentence is within range.

Discussion

Starting point

[27]   I begin my analysis of the starting point by having regard to the decision in Shramka, given it is the leading judgment on sentencing for this offence. As counsel for the appellant acknowledges, this is a more serious case than the offending in

23     R v Warwood, above n 18, at [96]-[97].

Shramka, which attracted a three year sentence. The question is whether the sentence of three years and nine months for the totality of the offending is out of range. I do not consider it is. It is important to recognise that in the present case, there were two very serious strangulation events, both of which caused the victim to become incontinent. Furthermore, there were elements of strangulation in the associated assaults. The summary of facts refer to two further incidents of grabbing her around the neck, the first of which involved lifting her off the ground. Also aggravating this offending was the threat to kill made during one of the serious incidents of strangulation. I consider this was particularly serious having regard to the victim impact statement where she advised that Mr Tuhou watched true crime shows and had told her that “strangulation was the perfect murder” and so, when he strangled her she said “I truly thought I was going to die.” The repetitive nature of what he did was also an aggravating feature and, as the victim said “he strangled me and then would let me go and I believed I was going to be able to get away and then he grabbed me and strangled me again.”

[28]   While it is noted that the victim and Mr Tuhou have reconciled, this does not undermine the terror which the victim recorded feeling at the time.

[29]   When comparing the offending with that in Durie, I consider it was somewhat more serious given the extended nature of the attack and the multiple incidents of placing his hand around the victim’s throat.

[30]   However, I note that in Warwood the threat to kill was dealt with separately, attracting a sentence of 18 months for the two threats to kill. Furthermore, the starting points on these charges were eventually reflected in uplifts to the most serious offending which was sexual violation by rape and sexual violation by unlawful sexual connection. For these reasons, I think the apparent disparity between the starting points in that case and in the present case are more apparent than real.

[31]   Accordingly, while I consider the effective starting point for the totality of the offending of three years and nine months is at the upper end of the available range, I do not consider it was outside it.

Credit for addiction

[32]   I accept, as the Court of Appeal noted in Zhang v R, that s 9(3) of the Sentencing Act does not preclude consideration of a “pre-existing state of addiction contributing to the index offending” as a mitigating consideration.24 The rationale is that the addiction can diminish an offender’s agency; the wilted choice to offend.25 As the Supreme Court observed in Berkland v R, an offender’s background, including addiction, need not be a direct or proximate cause of the offending. Credit can be awarded so long as it “can provide rational explanations for why an offender has come to offend.”26

[33]   I note while the decisions in Warwood and Turner are relied on to warrant discounts for addiction, in Warwood, the discount which was ultimately given was for personal background which encompassed a range of factors relevant to the offending. Similarly, in Turner it was the combination of addiction and severely disadvantaged background which was held to reduce his moral culpability for the offending in question.27

[34]   In the present case, I allowed the filing of the further alcohol and drug report. However, it is still not clear how Mr Tuhou’s issues with methamphetamine and alcohol diminished his culpability for the offending. First, there is no suggested link between a methamphetamine addiction and this offending. Rather, it occurred when he had been drinking heavily.

[35]   Furthermore, Mr Huda’s submissions that his addictive use of alcohol is equivalent to a mental health impairment and diminishes his ability to make a choice about drinking and then offending,  is  not  obviously  supported  by  the  reports.  Mr Tuhou was brought up in a supportive household with “good values”. He enjoyed school, had lots of friends and achieved academic milestones. He has held down a job throughout his adult life, despite his use of alcohol and drugs. He still has a supportive family and employment awaiting him on his release. It seems he has a limited criminal

24     Zhang v R [2019] 3 NZLR 648 (CA) at [144].

25     Berkland v R [2022] 1 NZLR 509 (SC) at [16](c) and [91].

26 At [109].

27     At [30] and [32].

history, albeit several convictions for driving with excess breath alcohol and no convictions for serious violence. In addition, as Mr Huda pointed out, Mr Tuhou had been granted bail in close proximity to the victim and there had been no further incidents of aggression or offending.

[36]   Looked at holistically, while there is evidence of Mr Tuhou regularly drinking excessively, there is no evidence that this is equivalent to a mental health impairment which overwhelms his ability to make rational choices. Rather, as the pre-sentence report notes, his risk of reoffending is due to his attitude around his offending, including justifying and minimising his offending. He is able to exercise sufficient control over his alcohol to maintain full time employment and the support of friends and family and to generally abstain from violent behaviour. Accordingly, I do not consider a discount for addiction issues was warranted. Instead, as the Judge recognised, Mr Tuhou was entitled to discounts for the steps he had taken, including his willingness to participate in restorative justice and to take up treatment to address his problematic use of alcohol and drugs. The discount of 15 per cent in that regard was appropriate.

[37]Accordingly, the appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:

E Huda, Barrister, Christchurch