Watene v Police

[2020] NZHC 3011

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-117

[2020] NZHC 3011

BETWEEN

SIMON WATENE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 November 2020
Counsel:	D Malcolm for Appellant G Banuelos for Respondent
Judgment:	13 November 2020

JUDGMENT OF WHATA J

Solicitors:           Redwoods Law, Rotorua

Crown Solicitors, Rotorua

WATENE v POLICE [2020] NZHC 3011 [13 November 2020]

Introduction

[1]    Simon Watene (Mr Watene) pleaded guilty to one charge of breaching a protection order1 and one charge of assault on a person in a family relationship.2 Judge MacKenzie sentenced Mr Watene to 10 and a half months’ imprisonment for each charge to be served concurrently.3 Mr Watene now appeals that decision on the basis the starting point was manifestly excessive.

Circumstances of the offending

[2]    The victim and Mr Watene have been together for eight years. They have one child together, aged 10 months. The summary of facts to which Mr Watene pleaded guilty are as follows. Mr Watene and the victim were engaged in a heated verbal argument. As a result, the victim punched Mr Watene in the head a couple of times. The summary then states:

This caused the defendant to push the victim back into their bedroom and onto their bed.

The Defendant has placed one hand around the neck of the Victim holding her down on the bed, the Defendant has then raised a clenched fist and threatened to punch her in the head.

The witness has entered the bedroom and seen this, the witness has then called [the] police.

[3]    Mr Watene pleaded guilty to the charges at a Case Review Hearing following an amendment to the summary of facts.

District Court decision

[4]    The District Court Judge adopted a starting point of 12 months’ imprisonment for the offending. The Judge referred to Te Tau v Police4 involving male assaults female, breach of protection order and other charges, and Manuel v Police5 involving two charges breach of protection order, male assaults female and intentional damage, where  combined  starting  points  of  12 months  were  adopted  for  the  assaults and

1      Family Violence Act 2018, ss 90(a) and 112(1)(a) – maximum penalty three years’ imprisonment.

2      Crimes Act 1961, s 194A – maximum penalty two years’ imprisonment.

3      Police v Watene [2020] NZDC 18882.

4      Te Tau v Police [2012] NZHC 1068.

5      Manuel v Police [2015] NZHC 66.

breaches of protection orders. The Judge also identified the following aggravating features of the offending:

(a)the family violence context;

(b)the attack to the neck and the presence of an element of coercion and control;

(c)the victim was vulnerable given the limited escape options in the bedroom; and

(d)the proximity of two previous protection order breaches to the present offending. In particular, the Judge noted Mr Watene was sentenced to a short period of imprisonment for family violence and breach of a protection order in relation to the victim on 18 November 2019.

[5]    The Judge appears to have rejected the submission that Mr Watene’s actions were in response to her punching him to the head. The Judge said:

[9] But you have an ability to do something about  that.  You  must appreciate the moral wrongfulness of your conduct and you have choices here and human agency. You can decide, if you wish, to end the relationship. I accept that it appears to be a dysfunctional relationship, but if you persist in that relationship continuing, then it is likely that you will continue to come back before the court and ultimately, it is not for me to tell you whether or not it is a good thing to be in that relationship, only you can decide that.

[6]The Judge then uplifted the starting point to 14 months for “deterrent purposes”

– referring to Mr Watene’s “unrelenting” history of family violence-related assaults. The Judge emphasised the increase did not relate to the protection orders. The Judge then applied a 25 per cent discount for early guilty plea. This resulted in an end sentence of 10 and a half months’ imprisonment.

[7]    The Judge declined home detention or other electronic sentence because there was no address available and there was concern regarding Mr Watene’s compliance with release conditions and there was a pattern of family violence offending.

Jurisdiction

[8]    Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against sentence if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[9]In any other case, the Court must dismiss the appeal.6

[10]   As is well known, the Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by reference to relevant sentencing principles.8 The Court of Appeal has emphasised that, on an appeal, whether a sentence imposed is manifestly excessive, should focus on the end sentence.9

Argument

[11]Mr Malcolm makes two key points in support of the appeal:

(a)the Judge should have discounted the starting point because Mr Watene was provoked by the victim’s punches to his head, citing R v Taueki;10 and

(b)the starting point was excessive, having regard to the starting points adopted in other cases involving similar or worse offending, including Williams v Police,11 a case of 10 months being imposed for a punch

6      Criminal Procedure Act 2011, s 250(3).

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

8      Ripia v R [2011] NZCA 101 at [15].

9      Tutakangahau v R, above n 7.

10     R v Taueki [2005] 3 NZLR 372 (CA) at [32].

11     Williams v Police [2014] NZHC 3255.

causing a cut lip and bruised jaw, Sorensen v Police,12 a case where 12 months for punch with closed fist to mouth and nose, and Love v Police,13 involving nine months for a punch to face.

[12]   Mr Malcolm submits that a starting point of three months’ imprisonment was instead appropriate.

[13]   Ms Banuelos responds that the end sentence of 10 and half months is not manifestly excessive and that a cumulative starting point of 14 months (including an uplift of two months for prior family violence) was within range, referring to Te Tau and Hamilton v Police.14 She submits Mr Watene’s response to the victim’s punches was excessive because the victim’s violence was relatively modest. Accordingly, she submits, Mr Watene is not deserving of a discount for the claimed self-defence and provocation.

Assessment

[14]   Provocation was, prima facie, available to Mr Watene on the face of the summary of facts.   The summary of facts records  the victim’s actions “caused”    Mr Watene to push her into the room. Further violence then immediately followed.

As stated in R v Taueki:15

(a)Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[15]   I, nevertheless, agree with the Judge that provocation is not properly made out in this case because the attack to the neck went too far. It was an egregious and disproportionate response and one to be denounced in strong terms.

12     Sorenson v Police [2017] NZHC 2499.

13     Love v Police [2014] NZHC 2643.

14     Hamilton v Police [2014] NZHC 2698.

15     R v Taueki, above n 10, at [32].

[16]   However, that context is not irrelevant, and I am unable to agree that a cumulative starting point of 14 months was within range. In this regard, as evident from the approach taken by Mallon J in Williams, a fine grain assessment of culpability is needed in cases like this. That case involved a single punch to the head causing bruising to the victim’s jaw and a cut requiring stitches. A starting point of seven months was adopted (on appeal) for that offending. This was uplifted by three months for three prior family violence convictions, four breaches of protection orders and because the offending occurred while on release conditions. Most significantly, for present purposes, the Judge noted:

[11] However the situation in which this incident arose must be considered. It was a single incident, precipitated when the victim went to the address where Mr Williams was drinking and a single punch was inflicted. The principal aggravating feature of the incident is that it involved actual violence, albeit relatively limited. The incident arose in quite different context from the cases where the defendant makes continual contact with the victim despite the victim’s clear desire that contact cease. It does not have the overlay of intimidation about it which characterises many of these cases and where a particularly stern response is needed.

[17]   Here, four factors are significant. First, like Williams, there is no suggestion of uninvited contact and intimidation. Secondly, unlike Williams, the victim in this case was the initial aggressor and there was no injury to her. But, third, there was an attack to the neck. Fourth, Mr Williams’ background of offending appears similar to Mr Watene’s. Taken together, these factors suggest the starting point of 14 months in this case appears manifestly excessive relative to the starting point of 10 months in Williams. This is especially so, given the resulting injury to the victim in Williams. The attack to the neck is an aggravating feature, but a 40 per cent difference in starting point is difficult to justify.

[18]   I also consider reliance on Te Tau and Manuel to be misplaced. In Te Tau, there were the elements of jealousy-driven intimidation by the appellant, an attack to the neck and an injury (albeit small) to the victim. The appellant had also amassed 14 previous convictions for violence and four for breaches of protection orders. His overall starting point for this was 15 months, only one month or seven per cent more than Mr Watene’s. In Manuel, the victim had been punched on the arm, causing a large bruise. Physical injury of this kind is clearly a distinguishing factor.

[19]   Hamilton is also relied upon. It appears a starting point of 12 months was adopted for an assault involving the grabbing of a cell phone and pushing. But the offending was more much more varied (including for breach of prison release conditions) and with respect, the sentencing process adopted by the Court is very difficult to follow. One aspect that stands out, however, is the finding that the appellant was threatening and intimidating and behaved in such a way that the victim called the police. As Mallon J noted, that is an important distinguishing factor.

[20]   Accordingly, I have come to the view that a 12-month starting point for offending that involves no injuries to the victim, plus a two-month (or 17 per cent) uplift was simply too high. I prefer to adopt the approach taken by Mallon J, and commence with a starting point which I consider more accurately reflects the aggravating features of the offending in this case and, in particular, the attack to the neck. I therefore commence with a starting point of nine months. I uplift by two months for the prior offending. In the result, after a discount of 25 per cent, I impose an end sentence of eight months’ imprisonment.