Vela v R
[2020] NZCA 153
•8 May 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA217/2019 [2020] NZCA 153 |
| BETWEEN | MALAGI VELA |
| AND | THE QUEEN |
| Hearing: | 21 April 2020 |
Court: | French, Dobson and Nation JJ |
Counsel: | A J Bailey for Appellant |
Judgment: | 8 May 2020 at 11 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Following a judge-alone trial in the District Court, Mr Vela was convicted of a charge of causing grievous bodily harm with intent to cause grievous bodily harm and a charge of attempting to pervert the course of justice.[1]
[1]R v Vela [2018] NZDC 21749.
When it came to sentence, the District Court declined jurisdiction and referred disposition to the High Court for consideration of preventive detention.[2] In the High Court, Cooke J decided that the offending did not meet the threshold for preventive detention. Instead, he imposed a finite sentence of ten years’ imprisonment, without any minimum period of imprisonment.[3]
[2]R v Vela DC Christchurch CRI-2016-009-12760, 27 February 2019.
[3]R v Vela [2019] NZHC 714 [Sentencing Notes].
Mr Vela now appeals that sentence.
Facts of the offending
The victim was in a relationship with Mr Vela. They were living together. On Saturday 17 December 2016, she and Mr Vela got into a heated argument after the victim returned home intoxicated. He assaulted her.
On Tuesday 20 December 2016, Mr Vela took the victim to the hospital.
Clinical examination and a CT scan established that she had sustained a significantly fractured jaw bone with severe displacement as well as significant dental trauma and extensive soft tissue swelling. She was hospitalised for four days and underwent surgery involving the insertion of multiple metal plates and screws. She also required replacement of one of her front teeth which had been knocked out during the assault. The treating clinicians indicated that a significant degree of force would have been required to cause the damage to her face.
Post operatively, the victim’s face was very swollen and she had significant nerve damage in her lower jaw. On her last post-operative review on 2 February 2017, the surgeon noted she still had some residual numbness of her lower lip and chin and some weakness of her left facial nerve as well as suffering from limited mouth opening.
In her victim impact statement two years later, the victim stated she was still experiencing tightness in her jaw and that the nerves in some of her bottom teeth had died and the teeth had gone yellow.
After her release from hospital on 24 December 2016, the victim initially claimed to have been assaulted by strangers. However, she eventually told her daughters and the police that Mr Vela was responsible for her injuries.
Mr Vela was arrested and charged with causing grievous bodily harm. He denied any involvement. He was remanded in custody pending trial. The victim obtained a protection order against him.
Despite the protection order Mr Vela made over a thousand phone calls from the prison to the victim. She still had feelings for him. During the calls, he repeatedly asked her to help him and change her story because he was looking at a long prison sentence. In one of the phone calls, she made him aware the police were not solely reliant on her evidence but that a neighbour would be giving evidence implicating Mr Vela. In a subsequent phone call, Mr Vela told the victim she was to speak to the neighbour and tell him to “shut the fuck up.” It was these two phone calls about the neighbour that formed the basis of the charge of attempting to pervert the course of justice.
Prior to trial, Mr Vela sought and obtained a sentencing indication from Judge Kellar in the District Court.[4] Counsel on both sides and the Judge agreed that a five year starting point for the violent offending would be appropriate. The Judge said he would uplift that by two and a half years’ imprisonment for the perverting justice charge, with a further uplift of one year on account of Mr Vela’s criminal history. The resulting term of eight and a half years’ imprisonment would then be reduced by 20 per cent for a guilty plea were Mr Vela to accept the sentencing indication and plead guilty.[5] This would result in a sentence of six years and 10 months, which the Judge said would then be reduced to an end sentence of six and a half years’ imprisonment on a totality basis.[6] The Judge would also have imposed a minimum period of imprisonment of three years.[7]
[4]R v Vela DC Christchurch CRI-2016-009-12760, 24 November 2017.
[5]At [10].
[6]At [11].
[7]At [14].
Mr Vela did not accept the sentencing indication and the matter proceeded to trial.
At trial, the victim maintained she could not recall the assault but was sure the perpetrator was Mr Vela. The presiding Judge, Judge Farish, found both charges proved.
Sentencing in the High Court
Much of the sentencing decision is concerned with issues relating to preventive detention. It is not necessary for us to traverse those. Our focus is on the finite sentence of ten years’ imprisonment that was imposed.
Cooke J first addressed the charge of causing grievous bodily harm.
He identified five aggravating factors of the offending, namely that extreme violence had been used, significant harm had been caused, the assault had involved an attack to the head, the victim was vulnerable because she was highly intoxicated and the offending involved the violation of the sanctity of the home.[8] The Judge went on to say that given the presence of five aggravating factors, particularly the severity and lasting nature of the injuries, he considered the offending fell within the upper end of band two of this Court’s guideline decision of R vTaueki warranting a starting point of eight years’ imprisonment.[9]
[8]Sentencing Notes, above n 3, at [50]–[51].
[9]At [53]; and R v Taueki [2005] 3 NZLR 372 (CA).
Turning to the perverting the course of justice charge, the Judge acknowledged it was not suggested the victim had ever attempted to contact the neighbour. He stated that while it was not a case of very serious offending, it was nevertheless significant offending. Having regard to the seriousness of the charge, as reflected in the maximum penalty of 14 years’ imprisonment, and the potential effect of contacting the neighbour, he adopted a starting point of 18 months’ imprisonment.[10]
[10]At [55].
That resulted in a cumulative starting point for both offences of nine and a half years’ imprisonment. In the Judge’s view, the overall gravity of Mr Vela’s offending was serious and there was nothing to suggest this starting point should be adjusted for totality.[11]
[11]At [56].
As regards relevant personal factors, the Judge found there were no mitigating factors but there was one aggravating one, being Mr Vela’s criminal history.
In 2009, Mr Vela was convicted of five offences resulting in a prison sentence of seven years and eight months’ imprisonment.[12] One of those offences occurred in 2007 when Mr Vela failed to obtain medical treatment for his 18 month old son who had a broken leg and arm. The other four related to violent and sexual offending in 2007 against his then partner. The latter offences involved Mr Vela in assaulting his partner by pulling her hair and holding a knife up to her throat; by using a chair as a weapon, striking her on her back, and hitting her on the head with a glass bottle and then forcibly removing her pants and forcing the broken bottle up her anus. She suffered significant injuries requiring medical attention.
[12]R v Vela DC Auckland CRI-2007-090-12345, 14 August 2009.
In the view of Cooke J, this criminal history warranted a further uplift of six months. The uplift resulted in a final end sentence of ten years’ imprisonment.[13]
Grounds of appeal
[13]Sentencing Notes, above n 3, at [57].
The focus of the appeal was the Judge’s starting point of eight years’ imprisonment for the violent offending. On behalf of Mr Vela, counsel Mr Bailey argued eight years was manifestly excessive. In his submission, a number of factors had led the Judge into error.
The first was that neither the sentencing indication nor the comparator cases on which that sentencing indication was based were brought to the Judge’s attention. As it was, the Judge received submissions from stand-by counsel on behalf of Mr Vela which advocated a starting point that was two and a half to three years more than the starting point of five years previously suggested in the District Court by the Crown.
The second and related factor was that the Judge did not have regard to any comparator cases but relied exclusively on Taueki. Mr Bailey conceded it was not mandatory for a sentencing judge to refer to other cases where there is a guideline decision, but argued that had the Judge been referred to the decisions cited by the Crown at the sentencing indication, including Ryan-Thoms v R and Hape v R, the outcome may well have been different.[14]
[14]Ryan-Thoms v R [2013] NZCA 518; and Hape v R [2015] NZCA 187.
In both those other cases, Mr Bailey argued, the offending was more serious than Mr Vela’s offending and yet the respective starting points (six and a half years and five and a half years) were lower. Moreover, in both cases on appeal, this Court described the sentences as “stern.”[15]
[15]Ryan-Thoms v R at [21]; and Hape v R at [13].
The third factor which Mr Bailey submitted had led the Judge into error was his flawed treatment of the aggravating factors. The Judge had over-stated the degree of extreme violence and had double counted when relying on both extreme violence and significant injury as discrete aggravating factors.
And finally, in Mr Bailey’s submission, the Judge was wrong to treat the perverting justice charge as unrelated offending, wrong to reject any need for totality as well as being wrong to address totality before applying the six month uplift for previous convictions. The proper place in the sentencing process was to apply totality at the very end.
As to what was the appropriate starting point for the violent offending, Mr Bailey submitted that the starting point originally suggested by the Crown and adopted by Judge Kellar of five years’ imprisonment was appropriate.
Our view
Contrary to the submission made by Mr Bailey, we do not accept that Cooke J was required to place any weight on a sentencing indication that Mr Vela had rejected. The Judge had to consider the sentencing exercise afresh with the benefit of all the information. That included the evidence at trial, Judge Farish’s findings and the medical assessors’ reports obtained under s 88(1)(b) of the Sentencing Act 2002, one of which stated that Mr Vela was at high risk of future intimate partner violence.
Taueki is the guideline decision on sentencing for serious violent offending. The decision sets out three sentencing bands with a range of starting points for each. Which band any particular case falls into will depend on the number and nature of the aggravating factors present. Factors identified in Taueki include extreme violence, premeditation, serious injury, use of weapons, attacking the head, vulnerability, and invading the sanctity of the home. The description of the bands is as follows:
(a)Band one: three to six years — appropriate for lower end offending. Not an appropriate band for offences of extreme violence or violence that is life threatening. A domestic assault which is impulsive, does not involve the use of a weapon and does not cause lasting injuries but where the victim was vulnerable, may require a starting point of four years. Premeditation or use of weapon (but no lasting injuries) perhaps five years or more.[16]
(b)Band two: five to 10 years — appropriate for offending which features two or three aggravating factors.[17]
(c)Band three: nine to 14 years — three or more aggravating features and the combination is particularly grave. A domestic attack situation where the attack involves a premeditated home invasion, with the use of a weapon, vulnerable victim and lasting injuries, a starting point at the top of the range may well be required.[18]
[16]R v Taueki, above n 9, at [36]–[37].
[17]At [38]–[39].
[18]At [40]–[41].
On our view, Mr Vela’s offending clearly fell within band two. It was a severe attack to the head of an intoxicated victim by her partner. The attack left long lasting injuries.
As to where it should be placed within band two, we agree with Mr Bailey that because of the width of the bands and the element of overlap between bands, it may often be helpful to look at comparator cases.
We do not however place the weight he asks us to do on Ryan-Thoms and Hape. Significantly, neither of those two cases involved family violence. As noted by this Court in Solicitor-General v Hutchison, family violence has become one of the scourges of New Zealand society. [19] It involves special issues of inherent vulnerability and what has been described as the “breach of an intangible trust” or social contract.[20] In cases where the offending occurs in the home, those issues are usually encapsulated in treating the breach of the sanctity of the home as a very significant aggravating factor —which is the way Cooke J put it in this case — but they apply equally to cases where the family violence occurs outside the home. At one point of his submissions, Mr Bailey suggested that the fact of a domestic context should be treated as a neutral factor, that is to say neither mitigating nor aggravating. We disagree. The correct approach, as Hutchinson makes clear, is that a domestic context is a fact that brings with it a mixture of aggravating factors.
[19]Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420.
[20]At [27].
In terms of comparator cases, we therefore prefer to place greater weight on comparable decisions involving family violence cited by the Crown such as Setu v R, Hutchison, Griffiths v R, Kauwhata v R, and Kaio v R.[21] These decisions had starting points ranging between seven and ten years. Mr Bailey has rightly drawn our attention to points of difference between those cases and Mr Vela’s case, including differences in the seriousness of the offending, the number of charges and the existence of a protection order at the time of the offending.
[21]Setu v R [2017] NZHC 1839; Griffiths v R [2011] NZCA 102; Kauwhata v R [2010] NZCA 451; and Kaio v R [2012] NZCA 168.
However, in our view what these cases combined with Taueki tend to show is that the starting point adopted by Cooke J was within range, albeit towards the top of the range.
As for the uplift of 18 months on account of the perverting justice charge, we accept it was related offending in the sense it concerned the trial of the other charge but it was discrete offending and clearly warranted a distinct, that is a cumulative, uplift. In terms of what the uplift should have been, we note that ironically Judge Kellar’s uplift on the sentencing indication was actually higher, being a cumulative uplift of two and a half years’ imprisonment. The Courts have always treated attempts to pervert the course of justice as serious because they strike at the integrity of the justice system and rule of law. That said, having regard to the facts of this case, we do not consider an uplift any higher than 18 months would have been justified. There was no threat to use violence against the neighbour and nothing came of it.
Finally, we accept other judges may have reduced the global starting point on account of totality. However, on the facts of this case, we are not persuaded that the Judge having turned his mind to totality made an error by declining to do so. Further, had the Judge looked again at totality after all personal factors had been considered and adjustments made to the starting point so that he was considering the overall gravity of the offending by this offender — which we understand is the point made by Mr Bailey — it would not have made any material difference because there were no mitigating personal factors. Certainly, Cooke J’s uplift of six months for the criminal history was more favourable to Mr Vela than the sentencing indication (12 months) as was the Judge’s decision not to impose a minimum period of imprisonment.
Standing back and looking at all the circumstances of the case, we conclude that a ten year sentence was a somewhat stern sentence. But it was clearly available to the Judge and the appeal is therefore dismissed.
Outcome
The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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