Tumai v Police

[2019] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000082

[2019] NZHC 1119

BETWEEN

MARCUS TUMAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 April 2019
Appearances:	Julie-Anne Kincade for the Appellant Henry Benson-Pope for the Respondent
Judgment:	21 May 2019

JUDGMENT OF MOORE J

[Appeal against sentence]

RE-CALLED AND RE-ISSUED ON 23 MAY 2019 AT 4:00 PM

This judgment was delivered by me on 21 May 2019 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

TUMAI v NEW ZEALAND POLICE [2019] NZHC 1119 [21 May 2019]

Introduction

[1]    After pleading guilty to 11 charges, the appellant, Marcus Tumai was sentenced by Judge D J Harvey on 6 March 2019 to a total of two years and eight months’ imprisonment.1

[2]The charges and sentences imposed are set out in the table below:

Charge	Sentence	Provision
Assault with a weapon	Two years and eight months’ imprisonment	Crimes Act 1961, s 202C(a)
Male assaults female (x 5)	One year’s imprisonment	Crimes Act 1961, s 194(b)
Assault on a child (x 3)	One year’s imprisonment	Crimes Act 1961, s 194(a)
Breach of protection order (x 2)	One year’s imprisonment	Domestic Violence Act 1995, s 49

[3]    The essence of Mr Tumai’s appeal is that the Judge erred in failing to give discounts for remorse (as evidenced by a willingness to attend restorative justice) and his efforts at rehabilitation. It is thus submitted the sentence was manifestly excessive and that an end sentence of home detention should have been imposed.

The offending

[4]    The principal victim of Mr Tumai’s offending was his long term partner, G. G has six children; four with Mr Tumai and two from a previous relationship. The child victim is D. He was Mr Tumai’s stepson. Over the course of the offending D was aged between 8 and 11 years.

[5]    The offending for which Mr Tumai was sentenced covers a period of approximately four years between August 2013 and August 2017. However, with the exception of the first charge in time (assault on a child) the offending occurred during the last 20 months of that period.

1      Police v Tumai [2019] NZDC 4174.

[6]    The nine violent offences spanned seven separate occasions. I turn now to examine each in chronological order.

Assault on a child

[7]    Between 1 August 2013 and 16 August 2016 Mr Tumai punched D in the shoulder. On another occasion he struck him with a jandal.

Assault with a weapon and male assaults female

[8]    On 4 July 2016 Mr Tumai was at home with G and their three daughters. An argument arose. Fearful, G fled the house.  Mr Tumai pursued her outside and threw a cricket bat at her legs. G was knocked to the ground where she was kicked and punched. Then Mr Tumai grabbed her by the hair and dragged her inside. There he again kicked her and hit her. G escaped. Mr Tumai pursued her into a bedroom. There he continued his attack, kicking and punching her with a closed fist. G suffered a black eye.

Male assaults female and assault on a child

[9]    Between 24 July and 16 August 2016 Mr Tumai was at home with G and D. He became angry with D and struck him with a broomstick a number of times. G heard D crying and came into the room to investigate. Mr Tumai was standing over

D. He struck him with the broomstick again; this time with such force that the broomstick broke in half.

[10]   G attempted to intervene. Mr Tumai threw her against the wall. He struck her in the face a number of times. G escaped into a bedroom with D and the other children. D suffered red marks on his legs from the attack.

Male assaults female

[11]   Between 1 and 16 August 2016 Mr Tumai returned home from work to find G with one of her friends. Mr Tumai was annoyed that the friend was present. He expressed his displeasure. G challenged him. Mr Tumai responded in rage. He

punched G in the head. Then he kicked her and punched her; this time to the body. Mr Tumai only stopped when his step-parents arrived at the house unexpectedly.

Assault on a child

[12]   Between 1 January 2016 and 16 August 2016, Mr Tumai was at home with D. He called out to D, who was in the lounge. D did not respond. Mr Tumai became angry. He entered the lounge and found D lying on a mattress. Mr Tumai picked up a vacuum cleaner pipe and began striking D. G heard D’s screams. She tried to intervene. Undeterred Mr Tumai continued to strike D with the pipe. D shielded his head and rolled up into a ball. Mr Tumai continued to rain blows upon D’s legs and back. Eventually, G managed to rescue D and escape from Mr Tumai. D suffered heavy bruising to his legs.

[13]   On 7 December 2016 the Manakau District Court granted G a protection order against Mr Tumai.

Male assaults female and breach of protection order

[14]   Seven months later on 15 July 2017, G was at a family member’s address.  Mr Tumai arrived. At Mr Tumai’s invitation he and G went out to share a meal. Afterwards, the pair returned to Mr Tumai’s address. G fell asleep. She awoke to find Mr Tumai berating her about how much  money she had  spent.  She  ran  outside. Mr Tumai gave chase. He grabbed G by the hair and slammed her head into the side of the house. This he did about five times. G was dazed. Mr Tumai then dragged her back inside by the hair. G suffered a black eye and bruising to her face.

Male assaults female and breach of protection order

[15]   On 3 August 2017 G was visiting a friend’s address. Mr Tumai met her there. She got into his car and the couple drove off. Mr Tumai was angry. He questioned G about being at her friend’s address. As he drove Mr Tumai punched her in the face. This he did a number of times. The car stopped in traffic. G took the opportunity to flee. She got out of the car and waved down a member of the public who reported the incident to the Police.

Mr Tumai’s personal circumstances

Previous criminal history

[16]   Mr Tumai is aged 33. His criminal history is limited. It consists of one driving- related conviction and two convictions for common assault. Significantly, the convictions for violent offending were domestic in nature. The complainant was G. The criminal history records that the offence dates were in 2009 and 2010. In respect of the 2009 offending Mr Tumai was sentenced to 50 hours of community work. For the 2010 conviction he was sentenced to supervision for one year with special conditions.

PAC report

[17]   The pre-sentence report makes for concerning reading. Apart from recording that Mr Tumai’s appearance for sentence reflects a significant increase in the seriousness of his offending, it also points to his evident lack of remorse; he acknowledged his wrong doing but the author of the report commented there was no mention or acknowledgment of the impact his actions had on his victims. The report writer also observed that Mr Tumai seemed unable to accept his relationship with G was over. He expressed a desire to reconcile and be reunited with his family.

[18]   The PAC report recorded that Mr Tumai’s inability to deal with conflict or manage his own anger in a rational way was something which required a significant level of rehabilitative intervention. It was noted, to Mr Tumai’s credit, that he had completed a “Man Up” programme but recognised he still continued to get angry and struggled with those emotions. He acknowledged a willingness to engage in other like programmes.

Victim impact statement

[19]   In her victim impact statement, G reveals levels of ambivalence and contradiction not uncommon in victims of domestic violence. She appears to minimise the effects of the physical abuse by observing that the punching and abuse she received at Mr Tumai’s hands was “… a common thing” and that she was “… uncomfortable for a few weeks …”. But she insisted she did not suffer any long term

effects and just lived with the fact and accepted “that someone could punch you”, adding that she remembered “… heavy bruises and black eyes …”.

[20]   In terms of emotional harm she records that she does not know exactly how she feels, adding that she is “… probably more confused and angry at Marcus” for hurting her and her children.

Sentencing decision

[21]   The Judge identified the following aggravating features of Mr Tumai’s offending:2

(a)the extent of the violence and the resulting harm;

(b)the fact that the offending was continuous and prolonged;

(c)the vulnerability of the victims; and

(d)that other children were present.

[22]   The Judge referred to the “shame” caused to New Zealand by “serious, sustained family violence”.3 He adopted a global starting point of three-and-a-half years’ imprisonment. He then made a reduction of 25 per cent, or 10-and-a-half months, to reflect Mr Tumai’s guilty pleas. This led to an end sentence of two years and eight months’ imprisonment.

Approach to appeal

[23]   Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal against sentence if it is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed. Ultimately, the focus is on the sentence imposed, rather than the process by which the sentence is reached.4

2 At [9].

3 At [11].

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Submissions

Appellant

[24]   As noted, this appeal focusses on the claim that the Judge failed to give sufficient discount for Mr Tumai’s remorse and his efforts and willingness to engage in rehabilitation.

[25]   On the question of rehabilitation, Ms Kincade for Mr Tumai pointed to a number of “genuine efforts” reflective of the appellant’s sincere commitment to rehabilitation. These include:

(a)obtaining a certificate of completion for the five-week “Successful Parenting Programme” at Destiny Family Services;

(b)obtaining a certificate of completion for the Triple P – Positive Parenting Programme at IOSIS Transforming Family Life for Good;

(c)completing the nine-week Te Whare non-violence programme with Te Whare Ruruhau O Meri Trust and enrolling in a further nine sessions; and

(d)participating in the 15-week Man-Up Tu Tangata programme.

[26]   Mr Tumai has also attended Narcotics Anonymous sessions with the Heart of the South at Friendship House.5

5      Verification of Mr Tumai’s involvement in this programme was before the sentencing Judge. However, an email confirming the duration of his attendance was not. Ms Kincade submitted that the email was not fresh evidence but if the Court was to consider it as such, the appellant made an application to adduce the email. I am satisfied that the admissible material before the Court provides sufficient proof that Mr Tumai attended Narcotics Anonymous with the Heart of the South at Friendship House as is claimed.

[27]   Ms Kincade also seeks a discount for genuine remorse in accordance with Hessell v R.6 She points out that Mr Tumai made an offer to participate in restorative justice with his victims. That this did not eventuate was through no fault of his. It was because the victims were unable to be contacted.

[28]   Ms Kincade also confronted the comments in the pre-sentence report suggesting an evident lack of remorse on account of Mr Tumai’s failure to mention the impact his actions had had on his victims. Ms Kincade submitted that acknowledgment of wrong doing is sufficient to demonstrate remorse and that not everyone expresses this sentiment in the same way.

[29]   Drawing these factors together, Ms Kincade submitted that the appropriate discounts bring the end sentence to one under two years thus opening the door for home detention to be considered as an available sentencing option. In support of that proposition she submitted that by the time the appeal is heard Mr Tumai would have spent approximately eight weeks in custody.

Crown

[30]   Mr Benson-Pope, for the Crown, submitted that any suggestion Mr Tumai should have been the beneficiary of a discount for rehabilitative efforts must be tempered by the fact that he has two previous convictions for violent offending against

G. He received a “rehabilitative” sentence in respect of the 2010 offending of one year’s supervision with special conditions.

[31]   Furthermore, Mr Benson-Pope points out that the index offending involved repeated acts of violence committed against two complainants over a number of years. As such, the offending cannot be characterised as an impulsive or isolated lapse of judgement or loss of control.

6      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[32]   Mr Benson-Pope says there is no “hard evidence of genuine regret and remorse”;7 that any purported expression of remorse by Mr Tumai must be viewed with some scepticism having regard to his previous offending against G.

[33]   Thus Mr Benson-Pope submitted that while the Judge might have afforded Mr Tumai a limited discount for rehabilitative efforts, this would have been limited to five per cent. He submitted that on the authorities,8 the starting point of three and a half years was available and, furthermore, it was open to the Judge to apply an uplift for Mr Tumai’s previous offending against G. The Judge’s failure to do so operated to Mr Tumai’s benefit.

Analysis

Starting point

[34]   I begin with examining the starting point. Because the Judge set a global starting point it is not possible to analyse, with any precision, how the 42-month figure was arrived at. However, it is plain from the Judge’s sentencing remarks9 that in setting that figure he not only took into account the nature of the violence, its repetitive quality and the duration over which the violent conduct occurred, but he also considered Mr Tumai’s previous convictions.

[35]   Significantly, it does not seem that the Judge considered the seriously aggravating factor that from 7 December 2016 G was the subject of a protection order against Mr Tumai and yet serious violent offending against her continued as reflected in the two charges of male assaults female in July and August 2017 and the charges of breaching a protection order. Mr Benson-Pope aptly described the imposition of the protection order as a “Court-imposed circuit breaker”. I agree with him that it is a seriously aggravating factor of the offending that despite this intervention Mr Tumai continued to violently abuse his family.

7      See Martel v R [2018] NZCA 305 at [24] citing Senior v Police (2000) 18 CRNZ 340 (HC) at [21].

8      See Solicitor-General v SC [2017] NZHC 2252; R v Haggar [2014] NZHC 3082; C (CA155/2014) v R [2015] NZCA 33; SM v Police [2016] NZHC 960; Anderson v R [2016] NZCA 346.

9 At [11].

[36]   Helpful guidance on sentencing levels involving prolonged and repeated domestic violence may be obtained from the decision of Whata J in Solicitor-General v SC. This was a successful Solicitor-General’s appeal.

[37]   The offending in SC involved violence committed against SC’s partner and her children over a period of approximately two-and-a-half years leading to charges of assault with a weapon, representative charges of assault on a child, injuring, male assaults female and assault with intent to injure. On appeal Whata J reviewed a number of cases involving multiple acts of domestic violence committed over extended periods.10 Starting points ranging from two years and four months to three years and three months were adopted.

[38]   Taking into account those authorities and the guiding principles in Nuku v R11 Whata J considered the starting point of two years and six months’ imprisonment adopted by the District Court was too low and imposed a starting point of three years’ imprisonment.

[39]   As Mr Benson-Pope properly accepted, the offending in SC involved more serious injury (a broken ankle), included more victims, and, in all but a technical sense, spanned a longer period.

[40]   But, as previously noted although not specified, the starting point in the present case must also have taken into account an uplift for the two previous violence convictions against G and the fact that during the later incidents of serious violence G was the beneficiary of a protection order made against Mr Tumai. Both of these are seriously aggravating factors justifying an uplift.

[41]   Against those background factors it cannot be said that the starting point was outside the range reasonably available to the Judge. For example, it would have been open to the Judge to adopt a starting point of two years and nine months for the violent offending and then impose uplifts of six and three months respectively for the breaches of the protection order and Mr Tumai’s previous offending against G. Indeed, as I

10     R v Haggar; (CA155/2014) v R; SM v Police all above n 8.

11     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

understood Ms Kincade, she did not seriously challenge the Judge’s global starting point given the combination of factors he took into account. Her submission was that the Judge gave inadequate credit for remorse and rehabilitative efforts. And it is to those matters I now turn.

Remorse

[42]   Remorse is a mandatory consideration for the Court at sentence.12 The Judge made no explicit reference to remorse in his remarks.

[43]   As the Supreme Court observed in Hessell13 remorse is not necessarily shown simply by pleading guilty. In criticising the Court of Appeal’s approach that if remorse justified a separate discount it could lead to “a discount creep” in cases where a plea of guilty had been entered, McGrath J, delivering the judgment of the Court, observed:14

“Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and more properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that from the plea.”

[44]   As Ms Kincade pointed out, where there is tangible evidence of remorse, a discount in the range of five to eight per cent may be given. It is in this context that she pointed to Mr Tumai’s expressed willingness to engage in restorative justice.

[45]   It is also in this context that Ms Kincade squarely confronted the comments of the author of the PAC report. She was critical of the writer’s observation that while Mr Tumai acknowledged his wrong doing there was an evident lack of empathy in terms of the impact his actions had on his victims. Ms Kincade submitted that only limited weight should be placed on these comments; the report does not reveal what line of questioning, if any, led to the writer’s conclusion. As Ms Kincade observed, unless a direct question was asked, the absence of comment does not necessarily

12     Sentencing Act 2002, s 9(2)(f).

13     Hessell v R above n 6 at [64].

14 At [64].

provide evidence of lack of remorse. I agree with that submission. In my view limited weight should be given to the author’s comment in the absence of any discernible foundation.

[46]   However, as the Supreme Court observed, the assessment of remorse is necessarily an evaluative exercise requiring a proper and robust examination of all the circumstances.

[47]   The question in the present case is whether Mr Tumai’s willingness to engage in restorative justice processes evinces a level of remorse beyond that which is implicit in pleas of guilty.

[48]   I am not satisfied it does. While it would seem that Mr Tumai now exhibits some degree of insight into the extent he terrorised his family over the best part of two years, it cannot be overlooked that this was chronic offending committed after convictions for earlier offending and the imposition of a rehabilitative sentence in the form of supervision. And while Mr Tumai’s active, albeit belated, engagement in rehabilitation is suggestive of insight and remorse, that is a factor which, in the context of this case, deserves separate consideration to avoid double counting.

[49]   Furthermore, before I leave this topic, it is evident from the PAC report that despite acknowledging his wrong doing and having completed the various courses he has, it would appear that Mr Tumai remains unable to accept that his relationship with G is over and he expressed a desire it be revived. This leaves me with real concerns as to Mr Tumai’s insight and proper understanding of the scale of his offending and its effect on his victims and other members of the family.

[50]   For these reasons I am not satisfied that a separate and discrete discount for remorse is justified.

Rehabilitation

[51]   As with remorse, rehabilitation is a relevant sentencing principle.15 Mr Tumai is to be commended for his successful engagement in a wide variety of rehabilitative programmes most, if not all, directed to anger management and the prevention of domestic violence and its drivers.

[52]   The Judge made reference to Mr Tumai taking “some steps to do something about [his] behaviour …”16 but obviously considered that given the seriousness and prolonged nature of the offending a separate discount for this personal mitigating factor was not justified.

[53]   I agree with Ms Kincade that Mr Tumai’s demonstrated energy and commitment towards rehabilitation is deserving of a separate and discrete discount. Indeed, Mr Benson-Hope accepted as much but submitted on the authorities this should be limited to five per cent. Ms Kincade said it should be in the range of 15 to 20 per cent.17

[54]   In support of her submission, Ms Kincade referred me to a number of cases where discounts ranging from eight to 15 per cent have been given. In particular, she relied on this Court’s judgment in Sutherland v Police18 where the appellant received a 15 per cent discount for attending just one programme. However, I note that the 15 per cent in that case was a combined discount for both rehabilitation and remorse. Furthermore, the degree of violence is incomparable. In Sutherland the offending involved a single incident of spitting and, it would appear that Mr Sutherland had no previous convictions for domestic violence.

[55]   The other case relied on by Ms Kincade was Kerr v R19 where an eight per cent discount was given by the Court of Appeal in recognition of various positive efforts made by the appellant to rehabilitate whilst in custody. However, it is not clear from the judgment what programmes were completed by Mr Kerr. The Court simply

15     Sentencing Act 2002, s 7(1)(h).

16 At [11].

17     Although that range also included the remorse discount.

18     Sutherland v Police [2017] NZHC 1802.

19     Kerr v R [2017] NZCA 498.

recorded that the Judge at sentencing had reduced the sentence by eight per cent in recognition for “… the positive steps Mr Kerr had taken while in prison and the prospect of changes in Mr Kerr’s attitude and behaviour”.20 The Court described that as an appropriate discount. It is difficult to take anything more from the judgment.

[56]   As I have earlier observed21 a discount in recognition of rehabilitative efforts is not mandatory; lying very much within the discretion of the sentencing Judge having regard to all the circumstances of the case. And while the Court may well view with some scepticism rehabilitative efforts undertaken prior to sentencing, it cannot be overlooked that in Mr Tumai’s case he has not only involved himself in a wide variety of relevant programmes but appears to have completed those successfully. He is entitled to some credit in recognition of those efforts.

[57]   Having regard to all of the circumstances of this case I am satisfied that a discount greater than that submitted by the Crown is justified and that the proper level should be in the order of eight per cent.

Conclusion

[58]   The starting point of three-and-a-half years remains. No discrete credit for remorse is given. An eight per cent (or three-month) discount for rehabilitation brings the provisional end sentence to three years and three months’ imprisonment to which the full 25 per cent guilty plea discount should be applied. This leads to a final end sentence of 29 months or two years and five months’ imprisonment.

[59]   Because this sentence is more than 24 months home detention is not available. However, in any event, I am not satisfied that a sentence of home detention, even if it was available, would have been appropriate. This was sustained domestic violence committed on vulnerable dependents who, to use the Judge’s word were “terrorised” by Mr Tumai’s actions. The offending was committed against the background of similar offending against the same victim despite the imposition of a rehabilitative sentence and, in respect of two charges, involved breaches of a protection order.

20 At [62].

21     Ross v Police [2015] NZHC 1633 at [42].

Result

[60]   The appeal is allowed. The sentence of two years and eight months’ imprisonment on the charge of assault with a weapon is quashed and substituted with a sentence of two years and five months’ imprisonment. The sentences on all other charges remain and are to be served concurrently with the sentence of two years and five months’ imprisonment.

[61]   Finally, I record the Court’s gratitude to Ms Kincade and Mr Benson-Pope for their extremely helpful, succinct and focused written submissions ably supplemented by excellent oral argument.

Moore J

Solicitors:

Ms Kincade, Auckland Crown Solicitor, Manukau