Waitai v R
[2014] NZHC 2116
•2 September 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-41 [2014] NZHC 2116
BETWEEN TAMA WAITAI
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 September 2014 Counsel:
G Burt for Appellant
A Hill for RespondentJudgment:
2 September 2014
ORALJUDGMENT OF KATZ J [Sentence appeal]
Solicitors: Gordon Pilditch, Crown Solicitor, Rotorua
Lance & Lawson, Rotorua
WAITAI v THE QUEEN [2014] NZHC 2116 [2 September 2014]
Introduction
[1] Mr Waitai appeals the sentence of 20 months imprisonment imposed in the
District Court at Rotorua for one charge of an assault by a male on a female.1
Factual background
[2] On 18 January 2014 Mr Waitai was visited by his ex-partner at his home. At
the time, the victim was five months pregnant with Mr Waitai’s child.
[3] The pair got into a verbal argument, at which point Mr Waitai swore at the victim and told her to leave. The victim proceeded to do so, but Mr Waitai stood in front of her, blocking the door, and pushed her in the opposite direction whilst telling her to leave. After doing this a number of times, Mr Waitai stood aside and allowed the victim to exit. The victim took several steps outside and felt an object, possibly a rock, thrown from Mr Waitai’s direction. It hit her back. The object hit her with such force that it caused pain and the victim started crying.
[4] Immediately after the object hit the victim, Mr Waitai walked towards her and placed her in a choke hold, squeezing her neck so she could not speak and could not breathe. He told the victim that he wanted her to “black out”. Mr Waitai released her and the victim began to walk away, at which point Mr Waitai again placed her in a choke hold of the same or similar strength and released the victim after she could not breathe for several seconds. The victim again began to walk to her car, but her path was blocked by Mr Waitai who snatched her keys telling her he will drive her car into the lake. For the third time he put the victim in a choke hold, stopping her breathing. This time he marched her back towards the house while holding her in a choke hold and pushed her down onto an outside table several times. When the victim managed to get up, Mr Waitai again placed her in a headlock and pushed her to the ground.
[5] At this point Mr Waitai’s uncle came and intervened. The victim was allowed to leave some time later. She contacted the police two weeks later.
1 Crimes Act 1961, s 194(b), with a maximum penalty of two years imprisonment.
[6] At the time of the offence Mr Waitai was on bail for an offence apparently relating to a gang-related home invasion.
[7] Initially Mr Waitai was charged with the more serious charge of injuring with intent, which carries a maximum penalty of five years’ imprisonment.2 He initially denied the offending and said that the victim had fabricated a story to get back at him for ending their relationship. At the first case management conference with police, however, Mr Waitai indicated that he would plead guilty if the charge was reduced to male assaults female. That offer was declined by the police. About a month later,
however, the police amended the charge to male assaults female. Mr Waitai then pleaded guilty.
District Court Decision
[8] Mr Waitai was sentenced on 18 July 2014. The sentencing Judge clearly saw the offending as being towards the more serious end of the male assaults female spectrum, due in large part to the fact that Mr Waitai “choked” the victim not only once, but three times. The Judge said:3
What is now very clear from research is that when a male person chokes or puts his hands or his arm around the neck of the female in a choker hold, and you did this three times, you are saying to that victim that you have the power of life and death over her. That is actually fairly chilling to me as a Judge and that is why, Mr Waitai, the probation officer requests that there be a condition of your parole that you not associate with or contact her without the prior written approval of the probation officer and that is why also the probation officer wants you to undertake a Living Without Violence programme as well as a psychological intervention, because what you did, even though it did not result in any permanent injury to the victim, was, as I say, a demonstration by you that you had the power of life and death over her.
[9] The Judge observed that, in his view, the evidence would have been sufficient to sustain the more serious charge of injuring with intent, if the police had not agreed to a plea bargain.
[10] The Judge adopted a starting point of 18 months’ imprisonment. He considered that the lowering of the charge was in itself a significant discount.
2 Under the Crimes Act 1961, s 189(2).
3 R v Waitai DC Rotorua CRI-2014-063-000283, 18 July 2014 at [13].
Further, the fact that the victim was pregnant with Mr Waitai’s child was an aggravating feature.
[11] The Judge then uplifted the sentence by six months to reflect that the offending had occurred while Mr Waitai was on bail.
[12] With regard to the guilty plea, the Judge considered that a 15 per cent discount was appropriate. His reasons for this were threefold. First, Mr Waitai had denied any offence at first, claiming that the victim fabricated the matter. Secondly, the guilty plea to the male assaults female charge in exchange for the Crown dropping the more serious charge did not indicate remorse. Rather, Mr Waitai was holding out for a better bargain. Thirdly, the Crown had sufficient evidence, in the Judge’s view, to sustain the more serious charge.
[13] The end sentence was accordingly 20 months’ imprisonment, subject to release conditions.
Approach to appeal against sentence
[14] Section 250 of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.4 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Grounds of appeal
[15] Mr Waitai submits that the sentence of 20 months’ imprisonment was
manifestly excessive and that the Judge erred in the following respects: (a) the starting point was too high;
(b) the uplift for offending while on bail was excessive;
4 Criminal Procedure Act 2011, s 250(3).
(c) a discount for remorse should have been given; and
(d) insufficient discount was given for the guilty plea. [16] I will consider each issue in turn.
Was the starting point adopted too high?
[17] Mr Waitai submitted, in effect, that the Judge effectively assessed the starting point for the offending in relation to the original charge of injuring with intent, rather than the charge to which Mr Waitai ultimately pleaded guilty (male assaults female).
[18] Mr Waitai submitted that the Judge’s reliance on Hunia v Police (which concerned injuring with reckless disregard, which carries a maximum penalty of five years’ imprisonment) was erroneous, given that that case involved a more serious charge.5 The two year starting point adopted in that case must be seen in the context of the maximum five year penalty that applied.
[19] Mr Waitai further submitted that his offending is not among the most serious cases of its kind, contrary to what a starting point of 18 months’ imprisonment would suggest. While the offending has aggravating features, the victim did not receive any serious or lasting injuries. In line with R v Lee6 and Police v GMT,7 Mr Waitai submitted that an appropriate starting point should have been between eight and
12 months’ imprisonment. Reference was also made to Rikihana v Police where a starting point of 15 months was adopted for an assault that, Mr Waitai submitted, was clearly more serious than the one currently before the Court.8
[20] The Crown, on the other hand, argued that Mr Waitai’s offending was serious of its kind and justified a high starting point. The violence was prolonged and abused the relationship between Mr Waitai and the victim, who was particularly vulnerable at the time. Hunia v Police, although it concerns a more serious charge,
has a number of factual similarities with the present case; in particular it also
5 Hunia v Police [2013] NZHC 333.
6 R v Lee [2013] NZHC 224.
7 Police v GMT DC Hamilton CRI-2009-019-9309, 5 January 2010.
8 Rikihana v Police [2013] NZHC 711.
involves choking a pregnant victim. In that case a starting point of two years’
imprisonment was accepted as being within range.
[21] Although every case is factually unique, I have also considered several other cases that involved assaults by an offender on his pregnant partner.
[22] In Wilson v Police9 the appellant was charged with threatening to kill, assault with intent to injure and male assaults female. The appellant punched his pregnant partner in the face twice and grabbed her around the throat so she could not breathe. The victim only suffered transitory injuries and the appellant had no previous convictions for violence. The Court took the assault with intent to injure as the lead offence and adopted a starting point of 12 months’ imprisonment.
[23] In R v Richardson10 the offender faced the same charges as the offender in Wilson, but there were numerous attacks against his pregnant partner, including kicking and punching her in the stomach. The Court took a “global approach” to the offending and imposed a 12 month starting point, taking into account the offender’s young age.
[24] In R v RHB11 the offender was charged with four charges of male assaults female, all of which related to assaults on his pregnant partner. The victim was slapped in the face, pulled and dragged by her hair, picked up and thrown, and kicked in the buttocks. Duffy J commented that each offence on its own would deserve no more than six to eight months’ imprisonment, and that even the latter may be close to being manifestly excessive.12 Taking into account that there were four offences, a starting point of 12 to 14 months was seen as appropriate.
[25] Turning now to Mr Waitai’s case, I share the Judge’s view that a physical attack against a pregnant woman by the father of her child is particularly reprehensible. The victim’s pregnancy made her particularly vulnerable. Depriving
a pregnant woman of oxygen risks harming not only her, but also the child. Further,
9 Wilson v Police [2012] NZHC 2503.
10 R v Richardson [2012] NZHC 1465.
11 R v RHB [2012] NZHC 2879.
12 At [48].
like the sentencing Judge, I am deeply concerned that the incident involved not just one, but three episodes of choking. This is a seriously aggravating factor. I note that in risk assessment tools used by domestic violence workers and police, strangulation, short of causing death, is considered a “red flag” for further serious abuse and fatality. Both legal and medical studies in recent years have begun to emphasise the
importance of strangulation in the context of responding to domestic violence.13
Strangulation is a relatively common cause of domestic violence related homicide and is a very high risk activity in a domestic violence context. Although it may leave no visible signs of injury, and is therefore sometimes treated less seriously than other forms of domestic violence such as punching or hitting, the risks associated with strangulation are very high.
[26] In this case Mr Waitai applied three chokeholds. Three times the victim could not breathe. He stated that he wanted her to black out. As many cases of homicide by strangulation demonstrate, the difference between strangulation causing loss of consciousness and strangulation causing death can be a matter of seconds. The victim was also pushed to the ground, dragged and slammed onto a table.
[27] Given my view that Mr Waitai’s assault was a serious one, it is with some reluctance that I have come to the view that the starting point adopted of 18 months’ imprisonment was excessive, relative to previous similar cases. Although there is no guideline case for the charge of male assaults female, the principle of parity in sentencing requires that like cases be treated alike and that the Courts attempt to achieve a broad level of consistency in sentencing. None of the cases I have been referred to, or which I have considered during the course of my own research, have involved a starting point approaching 18 months’ imprisonment on a charge of male assaults female involving broadly similar facts to this case. To achieve relativity with the existing case law it is therefore necessary, in my view, to reduce the starting point to 12 months imprisonment.
[28] I note that if the charge had not been reduced from the more serious charge of injuring with intent, the starting point adopted could, in my view, have readily been
13 Heather Douglas and Robin Fitzgerald “Strangulation, domestic violence and the legal response”
[2014] 36 Sydney Law Review 231 at 232.
justified. Regard must be had, however, to fact that the charge was significantly reduced, to one with a much lower maximum penalty. This necessarily impacts on the appropriate starting point.
Uplift for offending while on bail
[29] Section 9(1)(c) of the Sentencing Act provides that the Court must take into account as an aggravating factor that the offence was committed while the offender was on bail. The Judge added an uplift of six months to reflect this factor.
[30] Mr Waitai submitted that the uplift was excessive as it represented a third of the starting point. He submitted that an uplift of one or two months would be appropriate. The Crown, on the other hand, accepted that the uplift given by the Judge was at the upper limit, but argued that it was not excessive because of the seriousness of the charge for which Mr Waitai was released on bail.
[31] In Taylor v R14 the Court of Appeal held that the aggregate of the uplift must bear some reasonable relationship or proportionality to the starting point which is the otherwise appropriate sentence for the circumstances of the offending.15 I accept Mr Waitai’s submission that an uplift that represents 33 per cent of a starting point (which itself was relatively close to the maximum penalty) is disproportionate. Further, the reduction I have made to the starting point must necessarily impact on the appropriate uplift.
[32] In my view an uplift of two months for offending while on bail is appropriate. No uplift for previous convictions is warranted, as they largely relate to burglary.
Discount for remorse
[33] Mr Waitai submitted that the Judge erred in not giving him a discount for remorse. Mr Waitai sent a text message to the victim the day after the incident which
appear to, in effect, apologise for his actions. This regret was repeated in his
14 Taylor v R [2012] NZCA 332.
15 At [46].
pre-sentencing report. Counsel submits that Mr Waitai has clearly demonstrated insight and remorse and should therefore be given a discount.
[34] Mr Waitai did send text messages to the victim apologising for his actions and expressed similar feelings in the pre-sentence report. However, when first interviewed by police, Mr Waitai not only denied his offending but also claimed that the victim had fabricated the story so as to get back at him for ending the relationship and for seeing someone else. In my opinion, it was open to the Judge on the basis of all the information before him to conclude that any remorse on the part of Mr Waitai was not at a sufficient level to justify awarding a separate discount for remorse.
Insufficient guilty plea discount
[35] Mr Waitai submitted that the Judge erred in giving a 15 per cent discount for the guilty plea. He submitted that he had pleaded at the first reasonable opportunity available. Specifically, Mr Waitai offered to plead to the less serious charge at the first case management conference but the offer was declined by the police. When the charge was amended, Mr Waitai promptly pleaded guilty. Counsel submitted that Mr Waitai pleaded guilty to a charge that most accurately reflects his culpability.
[36] In Hessell v R the Supreme Court recognised that guilty pleas are often a result of successful plea bargains.16 The correct approach to determining an appropriate discount must have a degree of flexibility and regard to all the circumstances of the case. The Court observed that:
[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early guilty plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing Judge, and allowing that Judge scope in light of
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
[37] The Supreme Court further observed that:
[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[38] In light of these comments the Judge was entitled to consider all of the circumstances surrounding Mr Waitai’s plea bargain and eventual guilty plea, not just the fact that it followed immediately after the reduction in charge. Further, it is relevant that the Crown case was a strong one and was supported by text messages sent by Mr Waitai to the victim following the assault.
[39] I do not accept Mr Waitai’s submission that the initial charge did not properly reflect his culpability. Nor does it appear that the charge was reduced for such reasons. Rather, the reduction of charge appears to have largely been driven by reasons of pragmatism. The Crown appears to have agreed to reduce the charge as a result of concerns for the victim. Specifically, if the case had gone to trial, the victim would have had to give evidence during a very late stage of her pregnancy or very soon after birth of her baby.
[40] Taking into account all of these matters, I have not been persuaded that the Judge erred in assessing the appropriate guilty plea discount in all the circumstances of the case.
[41] The end result I have reached is accordingly a sentence of 12 months’ imprisonment. It necessarily follows that a sentence of 20 months’ imprisonment was manifestly excessive. The appeal must therefore be allowed.
Result
[42] The appeal is allowed. The sentence of 20 months’ imprisonment in the
District Court is quashed and replaced with one of 12 months’ imprisonment. The release conditions imposed by the District Court Judge are to remain in place.
Katz J
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