Tuhura v The King

[2024] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-144

[2024] NZHC 2232

BETWEEN

DION TAVAKA TUHURA

Appellant

AND

THE KING

Respondent

Hearing:	8 August 2024
Appearances:	D J Matthews for Appellant M W Fulton for Respondent
Judgment:	9 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 9 August 2024 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TUHURA v R [2024] NZHC 2232 [9 August 2024]

Introduction

[1]    Dion Tuhura pleaded guilty to assault on a person in a family relationship,1 threatening to  kill,2  and possession  of an offensive weapon (representative).3  On  11 June 2024 he was sentenced by  Judge  Crosbie  to  22  months’ imprisonment. Mr Tuhura now appeals his sentence on the basis it was manifestly excessive and should be substituted with one of home detention.

The facts

Assault

[2]    Mr Tuhura  and the victim  had been in  a relationship  for five years.   On   23 August 2023, Mr Tuhura was at the victim’s address where he awoke agitated. He demanded a ride from the victim, but she refused as she did not have any fuel, nor a warrant of fitness. She suggested a neighbour could drive Mr Tuhura.  This made  Mr Tuhura more agitated. The victim put her arms up to cover her face. Mr Tuhura yelled at her: “you stupid fucking bitch. You can fucking take me home” and punched the victim in the arm six times. Mr Tuhura alleged the victim had slept with a neighbour. He grabbed her and threw her against a nearby bedside table. The victim fell into a lamp knocking it over. She got up and walked into the lounge and pushed her family violence alarm. Mr Tuhura followed her and said: “are you going to press the button?” The victim was terrified of Mr Tuhura finding out, so pulled the plug from the wall. Mr Tuhura learnt the victim had pushed the button and said: “you fucking bitch.”

Threatens to kill and possession of offensive weapon

[3]    The pair returned to the bedroom where Mr Tuhura went to the wardrobe, reached in, and pulled out an air rifle. Mr Tuhura pointed the rifle at the victim then moved closer and placed the barrel of the air rifle against the victim’s right temple, stating: “I’m going to kill you, you stupid bitch”. The victim believed Mr Tuhura was holding a real firearm to her head and that he was going to shoot her. The victim was

1      Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.

2      Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.

3      Crimes Act 1961, s 202A(4)(a) and (b). Maximum penalty: three years’ imprisonment.

crying and was so terrified Mr Tuhura would kill her that she urinated herself.      Mr Tuhura put the air rifle down and returned to the wardrobe. Mr Tuhura grabbed a sword and waved it towards the victim in a threatening manner. The victim believed Mr Tuhura was going to stab her in the chest or hit her in the head with the sword. Whilst swinging Mr Tuhura screamed at her: “stay then fucking stupid bitch. Get me into the car and get me home”. Mr Tuhura screamed in the victim’s face close enough that spit landed on her face.

Sentencing decision

[4]    The Judge outlined the history between Mr Tuhura and the victim. They have no children together and have been living separately but occasionally stay at each other’s houses. The Judge noted the victim has been scared of Mr Tuhura for some time, believing he would kill her. She did not say anything when police initially attended the scene as she thought Mr Tuhura would retaliate and manage to kill her, despite police being there.

[5]    The Judge noted Mr Tuhura’s criminal history began in the Youth Court. Most of the history relates to dishonesty offending and, aside from a conviction for possession of an offensive weapon in 2000, and despite the extensive family violence history, there are no other convictions for violence.

[6]    The Judge considered the s 27 report was useful. The Judge noted Mr Tuhura is associated with the Mongrel Mob. There has been a lifelong addiction to cannabis and alcohol, using daily around the time of offending, as well as other drugs. The report suggested that other factors likely contributing to Mr Tuhura’s offending were antisocial peer pressure, the abuse Mr Tuhura suffered early in life, limited education, and problematic alcohol and cannabis use. The Judge accepted these factors were present in Mr Tuhura’s life. Although unsure of the extent of direct causal link, the Judge was prepared to accept there was some nexus.

[7]    The Judge considered the offending was a drawn out, terrifying event involving the use of two weapons. There was an aspect of cruelty and tremendous fear on the part of the victim.

[8]    The Judge said the dominant principle was deterrence, to send a strong message to Mr Tuhura personally about the importance of trust and safety in a family relationship and an intimate relationship. Additionally, for a similar message to be sent out more widely to the community that the Courts will respond strongly to significant domestic violence.

[9]    The aggravating features of the offending as the Judge saw it were the violence, presence of weapons, duration of offending, and the effects on the victim. The Judge also denounced the breach of trust which the assault constituted.

[10]   While the Judge was heartened by Mr Tuhura’s participation in the Tikanga course and the Stopping Violence Programme, he was confused by Mr Tuhura’s belief that the victim would not have been frightened by his actions. Despite accepting the summary of facts, the Judge said Mr Tuhura has pulled back from acknowledging the worst parts of the offending.

[11]   The Judge adopted a starting point of three years’ imprisonment. A 20 per cent discount was applied for Mr Tuhura’s guilty plea, with an additional 10 per cent for the contents of the s 27 report and the link between those factors and the offending. A further seven and a half per cent credit was given for the completion of the Stopping Violence course. This made an overall discount of 37 and a half per cent. This made an end sentence of 22 months, meaning the Judge could consider home detention.

[12]   The Judge said Mr Tuhura has stable accommodation available for an electronically monitored sentence. Home detention was also recommended by the probation service, although opposed by the Crown on the grounds the violence was too serious, and Mr Tuhura has not accepted critical aspects of the summary of facts.

[13]   The Judge was disappointed that Mr Tuhura is still some way from accepting responsibility for his actions. This, the Judge considered, went directly to Mr Tuhura’s risk. In those circumstances, the Judge considered a sentence of home detention would not satisfy the purposes and principles of deterrence and denunciation.

[14]Mr Tuhura was sentenced to 22 months’ imprisonment.

Law on appeal

[15]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.4 Otherwise, the Court must dismiss the appeal.5

[16]   The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.6 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.7

Submissions

Appellant submissions

[17]   The sole ground of appeal is that the Judge erred in imposing a sentence of imprisonment. Mr Matthews submits a sentence of home detention was the least restrictive sentence appropriate in the circumstances.

[18]   Mr Matthews points out that Mr Tuhura’s address is suitable, and home detention was recommended by the pre-sentence report. He says further, Mr Tuhura has not received a sentence of imprisonment since 2000 and has no meaningful history of violent offending. It is also submitted Mr Tuhura has rehabilitative prospects, having completed two courses in the leadup to sentencing which was assessed as suitable for a further Department of Corrections programme. Additionally, despite Mr Tuhura’s background which involved deprivation, drug and alcohol abuse, and sexual abuse, Mr Matthews submits Mr Tuhura has managed to go almost 25 years without a sentence of imprisonment which indicates he is a man with rehabilitative potential.

4      Criminal Procedure Act 2011, s 250(2).

5      Section 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

7      Ripia v R [2011] NZCA 101 at [15].

[19]   Mr Matthews says Mr Tuhura’s background should be relevant to the type of sentence imposed and that the principles of denunciation and deterrence could adequately be met by a sentence of home detention.

Respondent’s submissions

[20]   Ms Fulton submits the Judge was correct to find that no sentence other than imprisonment would achieve the purposes and principles relevant to Mr Tuhura’s sentencing.

[21]   Ms Fulton submits there are several aggravating features of the offending, including the victim’s vulnerability by virtue of her relationship with Mr Tuhura; the fact that the threat to kill involved the threatened use of a weapon which Mr Tuhura was holding to the victim’s head at the time; the victim believed the air rifle was real, capable of killing her; the threat to kill was made directly to the victim by Mr Tuhura; there was actual violence involved; and the victim sustained bruising to her arm.

[22]   Ms Fulton further submits Mr Tuhura’s engagement in rehabilitation is tempered by the comments he made to the pre-sentence report writer, minimising his actions, and blaming the victim for inciting his behaviour. Mr Tuhura also denied the content of  the summary  of facts.   Ms Fulton says at the time of  the  interview,    Mr Tuhura had already completed the Stopping Violence programme which, she submits, demonstrates the programme did not assist him in understanding the effects of his actions on the victim, nor in taking responsibility for his offending.

Discussion

[23]   Home detention is an alternative to a short-term sentence of imprisonment.8 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.9

[24]In Fairbrother v R, the Court of Appeal stated:10

8      Sentencing Act 2002, s 15A(1)(b).

9      Section 15A(1)(a).

10     Fairbrother v R [2013] NZCA 340 at [30].

…the judge must make a considered and principled  choice  between the  two forms of sentence, recognising that both [imprisonment and home detention] serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[25]   In my view, denunciation, deterrence, and accountability are significant purposes of sentencing in this case. I consider resting the barrel of an air rifle against the head of another person, and threatening to kill them constitutes a very significant threat which should attract a sentence which holds Mr Tuhura accountable and deters others from similar offending. These sentencing purposes take on even more significance where, as here, the threat was accompanied by additional acts of violence and use of weapons. I have no doubt the victim genuinely believed Mr Tuhura was going to kill her.

[26]   While I accept that home detention can also serve as a deterrent sentence, that often requires other factors to be in play such as remorse and a willingness to engage in rehabilitation. As the Court of Appeal said in R v Hill, where an offender is motivated to change, and where there is a realistic prospect of change, there are obvious benefits in a sentence of home detention.11

[27]   In this case, I consider the Judge had proper regard to Mr Tuhura’s rehabilitative prospects, noting, in particular, his completion of the Tikanga course. However,  I  agree  with  the  Judge  that  despite  the  rehabilitative  steps  taken,  Mr Tuhura’s belief that the victim would not have been frightened by his actions is concerning. Furthermore, despite completing the Stopping Violence programme, he has not accepted full responsibility for his actions and lacks appreciation for the impact the incident has had on the victim. The PAC report writer records Mr Tuhura as blaming the victim for inciting his behaviour and expressing frustration that she initiated her family violence alarm saying “It’s a womens thing, she did not feel anything ….”. This suggests to me Mr Tuhura has not meaningfully engaged in the rehabilitation programmes, despite completing them.

11     R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

[28]   I accept Mr Matthews’ submission that Mr Tuhura has not received a sentence of imprisonment since the year 2000 and has no meaningful history of violent offending. However, I note, as the sentencing Judge did, there is an extensive history of family violence. It is inexplicable that the victim would have had a personal alarm had she not been identified as at real risk of being a victim of family violence.

[29]   I agree with the Judge that Mr Tuhura’s actions amounted to very serious offending. This, coupled with Mr Tuhura’s continued failure to accept responsibility for the offending or show any genuine remorse, makes deterrence and denunciation of principal importance in this case. While home detention can offer deterrence, I consider in this case, where the appellant has been unwilling to acknowledge the seriousness of his actions, increasing the risk of reoffending and reducing rehabilitative potential, imprisonment is the least restrictive sentence available.

[30]   Accordingly, I do not consider the Judge erred in exercising his discretion to impose a sentence of imprisonment.

Result

[31]The appeal is dismissed.

[32]   As Mr Tuhura is currently on bail pending the outcome of this appeal, I direct that he is to surrender himself to the Department of Corrections by 4 pm today.

Solicitors:

Crown Solicitor, Christchurch

Copy to:
D J Matthews, Barrister, Christchurch