Tutaki v Police

[2015] NZHC 1177

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-012 [2015] NZHC 1177

BETWEEN

ISAIAH JAMES TUTAKI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 May 2015
Appearances:	R Donnelly for Appellant C R Walker for Respondent
Judgment:	28 May 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TUTAKI v NEW ZEALAND POLICE [2015] NZHC 1177 [28 May 2015]

[1]      Mr Tutaki pleaded guilty in the District Court to a charge of injuring by an unlawful act and two charges of assault.   On 20 February 2015, Judge Adeane sentenced Mr Tutaki to an effective term of ten months imprisonment.1   He appeals against  sentence on  the  basis  that  the Judge erred  in  principle  in  imposing the sentence, and that this resulted in an end sentence that was manifestly excessive.

The facts

[2]      Mr Tutaki was sentenced on the basis of a summary of facts with which he took no exception.  This stated that in the early hours of Saturday 29 March 2014, Mr Tutaki was at a bar in Gisborne.  Also present at the bar were three other persons who were drinking in a separate group.  Mr Tutaki left the bar shortly after 2.30 am, and the other three men left at the same time with a wider group of associates.

[3]      Shortly after leaving the bar, the two groups became involved in a verbal altercation.  This led to a physical confrontation in which Mr Tutaki punched one of the members of the other group in the head, thereby knocking him to the ground.  Mr Tutaki was then grabbed by one of the members of the opposing group, and received a punch in the face.  This knocked him to the ground, but he got up and used his elbow to strike one of the members of the opposing group in the face area.   This knocked the victim unconscious.   He fell backwards and hit his head on concrete tiles, thereby causing a laceration to the back of his head.  Another member of the opposing group then became involved in the fray, and Mr Tutaki punched this person in the mouth. This caused a small bleed to the upper right side of the lip.

[4]      The victim who had hit his head on the tiles was initially hospitalised for a cut on the inside of his lip and the laceration to the rear of his head.  He was then released, but later returned to hospital where it was found that he had a brain bleed. This required specialist treatment at Waikato Hospital.  The second victim required

four stitches to close the wound to the right hand side of his upper lip.

1      R v Tutaki [2015] NZDC 2705.

The Judge’s decision

[5]      The  Judge   gave  Mr  Tutaki   the  benefit   of   the  doubt   regarding   the circumstances in which the altercation arose.   He concluded that the appropriate starting point on the lead charge of injuring by an unlawful act was 12 months, and that the assaults on the other two victims should result in an uplift of two months. This left the Judge with an end starting point of 14 months imprisonment before taking into account mitigating factors.

[6]      The Judge noted that Mr Tutaki was only 19 years of age, and that his sole previous conviction was effectively irrelevant.   The Judge acknowledged also Mr Tutaki’s remorse had been tangibly expressed in the form of a willingness to undertake the restorative justice conference process. That offer, however, had been turned down by the victims.  The Judge also considered that Mr Tutaki was entitled to a significant discount in respect of his guilty pleas.

[7]      Taking those factors into account, the Judge reduced the end starting point by four months, or approximately 28 per cent.  This produced the end sentence of ten months imprisonment.  He also granted Mr Tutaki leave to serve his sentence by way of home detention if he found a suitable address.

The argument on appeal

[8]      Mr Donnelly accepts that the Judge selected an appropriate starting point in respect of Mr Tutaki’s offending.   He contends, however, that the Judge applied insufficient discount to reflect Mr Tutaki’s youth and his expressions of remorse.  He submits that an effective discount of only three per cent to reflect these factors was insufficient given the importance of both Mr Tutaki’s youth and the fact that he had expressed genuine remorse.

Decision

[9]      Ordinarily, I would accept Mr Donnelly’s submissions.  Here the guilty pleas clearly warranted a discount of 25 per cent, and a discount of just three per cent to reflect both youth and remorse would not be sufficient to mark those important

mitigating factors.  Importantly, however, the process by which an end sentence is reached is not determinative of an appeal against sentence.  The ultimate question is whether  the  sentencing  process  has  produced  at  a  sentence  that  is  manifestly excessive having regard to the circumstances of the offending and the offender.

[10]      I consider Mr Tutaki to be fortunate that the Judge adopted a starting point of just 12 months imprisonment on the lead charge.  The Crown had submitted that a starting point of 15 months imprisonment was warranted on that charge.  It relied on Koloamatangi v Police, in which the sentencing Judge had adopted a starting point of 15 months imprisonment in circumstances that were very similar to those in the

present case.2    On appeal, Venning J did not express any disquiet with the starting

point but reduced the sentence to ten months imprisonment to make appropriate allowance for guilty pleas, remorse and the youth of the appellant.  The appellant in that case was 20 years of age.

[11]     Mr Donnelly seeks to  distinguish Koloamatangi by pointing out that the injuries to the victim in that case were more serious, and the offending arose in circumstances where the appellant was solely responsible for the incident giving rise to the charge.  He submits that the circumstances of the present case are sufficiently different that a starting point of 12 months imprisonment was appropriate.

[12]     I accept those submissions so far as they go, but note that the victim in the present case was obviously reasonably seriously injured. A brain bleed is a matter of considerable concern. That injury also required considerable medical treatment. The fact that Mr Tutaki may not have been instrumental in creating the incident that led to the charges is more than balanced, in my view, by the fact that he pleaded guilty to assaulting two other persons.

[13]     When I look at the end sentence imposed on appeal in Koloamatangi and take into account that there are two additional victims in the present case, I cannot say

that the end sentence imposed on Mr Tutaki was manifestly excessive.

2      Koloamatangi v Police HC Auckland CRI-2012-404-82, 24 April 2012.

Result

[14]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Gisborne