Vega v Police

[2023] NZHC 2476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-304

[2023] NZHC 2476

BETWEEN

YONIER CUEVAS VEGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 September 2023
Appearances:	H J Croucher for Appellant S R Bicknell for Respondent
Judgment:	5 September 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 5 September 2023 at 3.30 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors:Ministry of Justice – Public Defence Service, Manukau Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

VEGA v POLICE [2023] NZHC 2476 [5 September 2023]

Introduction

[1]    The appellant appeals against his sentence of 11 months’ home detention imposed by Judge S Bonnar KC on 23 May 2023.1

[2]    The appellant contends the sentence is manifestly excessive. In particular, counsel for the appellant, Ms Croucher, submits the Judge’s discount for the appellant’s guilty pleas was insufficient and ought to have been 25 per cent, and that the Judge also erred in failing to grant discounts for the appellant’s remorse and for his personal circumstances.

[3]    I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5

Offending

[4]The appellant was for sentence on four charges.

[5]    The first was assault on a person in a family relationship, committed on 4 April 2021. The appellant first appeared on this charge on 5 April 2021 and was remanded on bail.

[6]    The second charge  was  for  driving  whilst  disqualified,  committed  in  June 2021. This offending came to light because the appellant was exceeding the posted speed limit. At the time, the appellant was subject to an alcohol interlock order, with which he was non-compliant.

1      R v Vega [2023] NZDC 10342.

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

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

4      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R , above n 3, at [30]—[35].

5      Tutakangahau v R , above n 3, at [36].

[7]    The third and fourth charges, assault with intent to injure and strangulation, were committed on 20 August 2021. The appellant first appeared on this offending on 21 August 2021. Initially the appellant was charged with injuring with intent to injure, but that charge was subsequently reduced to assault with intent to injure.

[8]    All of the appellant’s violence offending was committed against the same woman, the appellant’s then partner.

[9]    In the first instance, the appellant pleaded not guilty to all of his offending, with the possible exception of the driving charge. However, at a case review hearing on 21 December 2021, the appellant intimated that he would change his pleas to guilty. A restorative justice conference was held on 22 April 2022 and the appellant entered guilty pleas on 27 May 2022.

[10]   The delay to sentence — effectively a year — occurred because the appellant was undertaking rehabilitation (drug and alcohol) courses.

Sentencing

[11]   The Judge took the strangulation offence as the lead offending, adopting a starting point of three and a half years’ imprisonment for that and, as I understand it, the assault with intent to injure charge.

[12]The Judge increased this by:

(a)six months to take account of the April 2021 assault; and

(b)a further two months’ imprisonment to take account of the fact that the August 2021 offending was committed whilst the appellant was on bail for the April 2021 offending.

[13]   This brought the final  starting  point  to  four  years  and  two  months,  or  50 months’, imprisonment. There was no uplift for the driving offence, nor the appellant’s prior criminal record. This records historic, and what appears to be

relatively modest, violence offending, which presumably explains the absence of any reference to it in the sentencing note.

[14]The Judge reduced the sentence by:

(a)10 months (effectively 20 per cent) for the appellant’s guilty pleas;

(b)a further 10 months for the appellant’s remorse and rehabilitative efforts; and

(c)six months for time spent on electronically monitored bail.

[15]   This brought the end sentence to 24 months’ imprisonment. The Judge was satisfied that a sentence of home detention could be imposed.

[16]   Ultimately, the Judge imposed a sentence of 11 months’ home detention. Whilst 24 months’ imprisonment might usually equate to 12 months’ home detention, the Judge gave a one month reduction to account for time spent in custody.

[17]   The Judge imposed concurrent sentences of 11 months’ home detention on the violence offending. He disqualified the appellant from driving for six months. He also cancelled an existing sentence of community work, of which 106 hours remained, and with which the appellant was also in a state of non-compliance.

Submissions on appeal

[18]   Ms Croucher submits that the Judge ought to have granted the appellant the maximum 25 per cent discount for his guilty pleas; an additional 10 per cent discount for remorse; and an additional 10 per cent discount for personal circumstances.6

[19]   On this basis the appellant contends the end sentence ought to have been six to seven months’ home detention.

6      There is no suggestion in the Judge’s sentencing note that any discount was sought for personal circumstances. However, Ms Croucher advises that it was addressed in her written submissions on sentence.

[20]   As to the increased discount for the appellant’s guilty pleas, Ms Croucher’s submission is that the principal delay between the offending in August 2021 and intimating guilty pleas in December 2021 was the negotiation which led to the injuring with intent to injure charge becoming one of assault with intent to injure.

[21]   As to remorse, I have already referred to the restorative justice conference that was held on 22 April 2022. Ms Croucher submits the appellant’s expressions of remorse and regret at that conference were accepted to be genuine, and likewise in the (first) PAC report of 6 April 2023. For myself, I would not have characterised the victim’s reported statements as wholly accepting of the appellant’s expressions of remorse. The victim said that she accepted the apology “to some extent”.

[22]   Ms Croucher referred me to ss 9(2)(f) and 10 of the Sentencing Act 2002. Section 9(2)(f) provides:

9        Aggravating and mitigating factors

(2)In sentencing or otherwise dealing with an offender the court must    take into account the following mitigating factors to the extent that they are applicable in the case:

(f)any remorse shown by the offender, or anything as described in section 10:

…

[23]   Section 10 requires the Court to take into account any measure to make amends.

[24]   Turning to the proposed discount for personal circumstances, this is a reference to information in the PAC report regarding the appellant’s early years in Cuba and that he spent a period of time of living on the streets, this making the appellant hyper-vigilant and prone to adverse reactions if woken unexpectedly. Apparently, the victim transgressed in this respect, and it is said that this caused him to react in a violent manner.

[25]   Counsel for the respondent, Ms Bicknell, opposes any reduction in sentence. She submits that the Judge’s starting point for the lead offending was lenient given the

gravity of the appellant’s actions, and that the Judge’s discounts were within the available range.

Discussion

[26]   In arriving at the discount of 20 per cent for the appellant’s guilty pleas, the Judge said that he did not consider the pleas were entered at the earliest opportunity. In that, the Judge was plainly correct. I take Ms Croucher’s point on the negotiations leading to the reduced charge, but that did not affect the appellant’s ability to plead to the April 2021 offending, or to the charge of strangulation at a much earlier date. I am not persuaded there was any error on the Judge’s part in this regard.

[27]   As to the proposed discount for remorse, the Judge expressly acknowledged the appellant’s extensive efforts to rehabilitate and that he was remorseful. The Judge said that the 20 per cent discount was to take account of both factors. Accepting this, Ms Croucher submitted the discount should have been greater.

[28]   Again, I am not persuaded that the 20 per cent reduction fell short of what was required in any way. Reductions for such factors are constrained if the offending is serious, as this was. It is worth nothing that the victim lost consciousness and lost control of her bladder during the strangulation. This is quite aside from the other consequences of the assault, which saw her taken to hospital by ambulance. In those circumstances, a discount of 20 per cent can only be considered generous.

[29]   That leaves the proposed discount for the self-reported personal circumstances. Taking at face value what the appellant  reported in this respect, he  has lived in  New Zealand since he was 20 years old. This offending occurred when he was in his late-30s. He is well qualified, and runs both a business and a household. His offending was the result of intoxication, whether from alcohol, drugs, or both. As Ms Bicknell submits, the required causal connection between personal disadvantage and offending is not established. In those circumstances no further reduction is permissible, let alone required.

[30]   Accordingly, and leaving aside Ms Bicknell’s submissions that a more severe starting point might well have been justified under Shramka v R, the end sentence was not manifestly excessive.7

[31]   Lastly, I thank both counsel for their excellent submissions. The appellant should understand that Ms Croucher made every possible submission on his behalf. However, the Judge treated the appellant generously, both in terms of the starting point adopted and the discounts awarded. Other Judges would have been less so.

Result

[32]I dismiss this appeal.

Peters J

7      Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.