Wati v R
[2015] NZHC 2064
•28 August 2015
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2015-442-18 [2015] NZHC 2064
BETWEEN ALLAN NELSON WATI
Appellant
AND
THE QUEEN Respondent
Hearing: 28 August 2015 Counsel:
J C S Sandston for Appellant
M A O'Donoghue for RespondentJudgment:
28 August 2015
JUDGMENT OF BREWER J
Solicitors/Counsel: John Sandston (Nelson) for Appellant
O’Donoghue Webber (Nelson) for Respondent
WATI v THE QUEEN [2015] NZHC 2064 [28 August 2015]
Introduction
[1] Mr Wati appeals against a sentence of two years and nine months’
imprisonment imposed by Judge Zohrab in the Nelson District Court on 23 June
2015.Mr Wati was sentenced on the following charges: (a) male assaults female (x4);1
(b) assault with weapon;2
(c) threatening to kill;3 and
(d) assault with intent to injure.4
[2] Mr Wati appeals on the basis that Judge Zohrab erred:
(a) in adopting a starting point of 27 months’ imprisonment for the charges involving the female complainant because the maximum penalty for male assaults female is two years’ imprisonment and the threatening to kill charge has a maximum penalty of seven years’ imprisonment;
(b)in adopting a starting point that was manifestly excessive in the circumstances for the assault with intent to injure charge; and
(c) in that earlier sentence indications had included a three month discount for the complainant’s attitude and that discount was not
applied at sentencing.
1 Crimes Act 1961, 194(b). Maximum penalty of two years’ imprisonment.
2 Section 202C(1)(a). Maximum penalty of five years’ imprisonment.
3 Section 306. Maximum penalty of seven years’ imprisonment.
4 Section 193. Maximum penalty of three years’ imprisonment.
Background
The offending
[3] On 29 May 2014, Mr Wati and the complainant had been in a relationship for five weeks. They were at Mr Wati’s address in Blenheim. They agreed to have a female prostitute come to the address and engage in drinking alcohol and a “threesome”. Mr Wati subsequently became aggressive during the sexual activity because he felt he was being left out of the arrangement. Mr Wati pulled the victim’s hair, causing her to scream out in pain. He then poured the contents of a wine bottle onto her. He then introduced the wine bottle into the victim’s vagina. At that point the female prostitute left the address.
[4] The victim then tried to hide her face under the blankets while Mr Wati was verbally abusing her. Mr Wati then punched her in the nose, causing it to bleed. This was the subject of the first charge of male assaults female. The victim began kicking him to try and get away.
[5] After this, Mr Wati left the address in the victim’s car with her cellphone so she could not call for help. He returned about 15 minutes later. The victim let him back into the house and Mr Wati began stroking her head and apologising for hitting her. But he then began questioning her about her previous relationships and became enraged with her again. He threw the victim’s cellphone at her head. It hit her in the mouth and chipped her tooth. This was the second charge of male assaults female.
[6] Mr Wati then walked up to the victim and grabbed her face. He punched her again in the mouth, which cut the inside of her lip. That is the third charge of male assaults female.
[7] The victim told Mr Wati she was going outside for a cigarette and she left the address. Mr Wati went outside to look for her. The victim could hear Mr Wati coming for her, so she ran from the address in her dressing gown to a neighbour’s property to get help. Mr Wati chased her across the road threatening to kill her and burn her house down.
[8] The fourth male assaults female charge stems from while the victim was knocking on the neighbour’s door, Mr Wati grabbed her by her dressing gown and dragged her off the neighbour’s front doorstep. The victim was struggling to get away from Mr Wati and her dressing gown came off, leaving her naked and exposed at the neighbour’s property. The victim and Mr Wati went inside the neighbour’s house with the neighbour. Mr Wati convinced the victim to come back to his house. Meanwhile the victim managed to tell the neighbour to call the Police.
[9] When the Police arrived at the address, Constable Jones located Mr Wati inside. Constable Jones arrested Mr Wati and went to place handcuffs on him. Mr Wati became extremely violent. He grabbed Constable Jones’s face with his hands and dug his nails into the side of Constable Jones’s face. He attempted to push his thumbnails into both of Constable Jones’s eyes. He then began repeatedly punching Constable Jones about the head. Mr Wati continued to try and push his thumbs into the constable’s eyes. It took a number of police officers to eventually subdue him.
Subsequent history
[10] Originally, Mr Wati was charged with other offences including sexual violation in relation to the wine bottle incident, indecent assault and injuring with intent to injure. Over the course of negotiations with the Police and the Crown, it was agreed that the sexual violation charge and the indecent assault charge could be removed and the injuring with intent to injure charge could be reduced to assault with intent to injure. On 26 June 2014, Mr Wati asked for a sentence indication on the revised charges. Judge Davidson indicated an end sentence of two years and six months’ imprisonment.
[11] Mr Wati declined the sentence indication. He elected trial on the original charges. The victim subsequently became uncooperative with the prosecution and the sexual violation charge had to be dropped. The Crown and Mr Wati then reached an agreement on the charges and Mr Wati pleaded to them. He was eventually sentenced by Judge Zohrab on 23 June 2015. By this point, the victim had disclosed in her victim impact statement her view that she had been manipulated by Mr Wati
and she requested that a protection order be put in place upon his release from prison. Her attitude to Mr Wati had apparently changed completely.
Judge Zohrab’s decision
[12] Judge Zohrab adopted the approach that Judge Davidson took by assessing the offending in two stages. For the first series of offending against the female victim, Judge Zohrab adopted a starting point of 27 months’ imprisonment. His reasons included:
(a) the sustained nature of the assaults; (b) the degrading aspects;
(c) repeated attacking of the head; (d) detaining her against her will;
(e) the continued acts of degradation;
(f) preventing her from phoning for help;
(g) throwing the phone at her and damaging her mouth and tooth; and
(h) pursuing her across the road.
[13] In relation to the assault with intent to injure on the police officer, Judge Zohrab adopted a starting point of 18 months’ imprisonment cumulative on the offending against Mr Wati’s female victim.
[14] Judge Zohrab adjusted the 27 months’ imprisonment to a term of 24 months’
imprisonment to have regard to totality. This brought the provisional sentence to
42 months. He then imposed an uplift of three months’ imprisonment for Mr Wati’s
history of previous violence offending. That resulted in a provisional sentence of
45 months’ imprisonment.
[15] Judge Zohrab then gave Mr Wati the full 25 per cent discount for an early guilty plea. He gave no other discounts. This brought the end sentence to one of two years and nine months’ imprisonment.
[16] Judge Zohrab then structured the sentence to be two years and nine months’ imprisonment on the adopted lead offence of assault with intent to injure, with all other charges to run concurrently at 12 months’ imprisonment for each. This was to take account of the totality principle.
Legal principles governing an appeal
[17] Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court. I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. I will not interfere with Mr Wati’s sentence unless it is manifestly excessive or wrong in principle. Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.
Male assaults female
[18] As to the male assaults female charges, I note there is no tariff for this offence. For single offences, a sentence of imprisonment can range from two months to 12 months’ imprisonment.5 It is never easy to fix a starting point in cases involving domestic violence because the circumstances of cases vary so widely and sentencing Judges must work within a range available to them for multiple offences.6
In general, Courts have imposed sentences of around two to three years’ imprisonment on charges involving domestic violence.7 One of the factors taken into account when fixing a starting point is the period over which the violence was inflicted.
[19] The Court of Appeal has held that Judges are to approach these cases in the round when fixing the start and end points of sentences. A Judge must weigh the
5 R v Reihana CA143/03, 3 July 2003 at [43].
6 R v Jury HC Gisborne CRI-2009-416-4, 31 July 2009 at [15] and [20].
7 At [20].
aggravating feature of multiple offending, including violence and attacks to the head, injuries sustained (both physical and emotional) and any personal aggravating factors.8 In Johnstone v R, the Court of Appeal considered an end sentence of three- and-a-half years’ imprisonment for multiple domestic violence offending. The Court considered that an uplift was required to reflect four counts of male assaults female, two counts of threatening to kill and a count of intentional damage.9 It noted that the fact there were four male assaults female charges justified a “significant uplift” of two years on the 18 months starting point adopted for the lead charge.10
[20] In my assessment, the range open to Judge Zohrab for the multiple offending, the seriousness of the attacks and the vulnerability of the victim justified an adjusted starting point of 24 months’ imprisonment to reflect the totality of Mr Wati’s offending against his female victim. Although Judge Zohrab approached the starting point by adopting the male assaults female charges as the lead charges, it would have been open to him to adopt the threatening to kill charge as the lead offence, as it is the most serious offence with a maximum penalty of seven years’ imprisonment.
[21] Regardless of what the original or adjusted starting point was, the end sentence is what is being reviewed on appeal, and in my assessment it falls well within the range available for domestic violence offending.
Assault with intent to injure
[22] I turn now to the charge of assault with intent to injure.
[23] The Court of Appeal revisited the different offence provisions including “intent to injure” in Nuku v R.11 The Court of Appeal has cautioned against adopting a mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty.12 In R v D, it held that mechanical adaptation undermines judicial
evaluation of the seriousness of the particular offending and the culpability of the
8 Johnstone v R [2013] NZCA 214 at [58].
9 At [59].
10 At [59].
11 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [5]
12 Nuku v R, above n 11, at [8]; citing R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison
[2007] NZCA 78 at [23]; and R v D (CA253/08) [2008] NZCA 267 at [43].
offender, both of which are crucial parts of the sentencing process.13 When setting the sentence in a particular case, the sentencing Judge needs to stand back and undertake an overall assessment of the seriousness of the offending.14
[24] The Court of Appeal in Nuku found the Taueki approach to be useful when sentencing for lesser violence offending. It also emphasised that a sentencing Judge not only is to identify aggravating factors, but also to evaluate the seriousness of a particular factor.15 One serious aggravating factor may have the effect of lifting the offending into a higher band.16
[25] In my assessment, a starting point of 18 months’ imprisonment for Mr Wati’s assault on the police officer was well within the range available. It involved both attacking the head and attacking a police officer. Taueki identifies attacking the head as an aggravating factor for violence offending and s 9 of the Sentencing Act identifies offending against a police constable as an aggravating factor. I note also that Taueki cites assaults on police officers as an example of band two offending for grievous bodily harm offences.
[26] When assessed in the circumstances of this case, the starting point adopted by
Judge Zohrab was justified.
Discussion
[27] Judge Zohrab’s approach to sentencing was a little unusual. But, in my view, approaching the sentencing on the basis of imposing cumulative sentences for the offending against Mr Wati’s female victim and the assault on the police officer was justified in the circumstances of this case. I am satisfied that Judge Zohrab was entirely correct in the starting points he adopted and the adjustments he made for totality. Although the structure of the end sentence was unusual and somewhat out of kilter with the approach Judge Zohrab initially used, it was not out of the range
available to him when looking at an overall end sentence.
13 R v D (CA253/08), above n 12, at [43]; citing R v Taueki [2005] 3 NZLR 372 (CA) at [30].
14 Nuku v R, above n 11, at [43].
15 R v Taueki, above n 13, at [30].
16 Nuku v R, above n 11, at [42].
[28] In terms of how he imposed that end sentence, it is not for me on appellate review to interfere with his determinations regardless of whether I would have taken a different approach. However, I will make the following observations:
(a) I regard the assault on the police officer to be a particularly serious aggravating factor in this case.17 The Courts have long regarded offences against police officers whilst acting in the course of their duties as an aggravating factor to be reflected in an uplift to the starting point.18 There is no particular tariff for assaults on police officers, but anything more serious than one-off minor assaults, such as spitting and pushing, often results in a short term of imprisonment.19
(b)An uplift of somewhere between six and nine months would have been justified to reflect Mr Wati’s significant and relevant history of violence and other offending. Mr Wati’s criminal history includes several domestic assaults, including with weapons. He has convictions for burglaries, fraud and drug offences as well. Although the frequency and intensity of violent offending has decreased in the past eight years, it has not totally ceased. His previous convictions can be taken into account in three ways: as an indicator of character
and culpability,20 in the need for a greater deterrent response,21 and as
an indicator of risk of reoffending or a need for a particular emphasis on individual deterrence.22
[29] In my assessment, the end sentence Mr Wati received was lenient in the circumstances of his case. The end sentence was well within the range available to Judge Zohrab and cannot be said to be out of proportion to the gravity of the overall
offending. I would have imposed a significantly more severe sentence.
17 Sentencing Act 2002, s 9(fa).
18 R v Bryant [1980] 1 NZLR 264 (CA); R v McKay CA307/84, 3 April 1985; R v Namana [2001]
2 NZLR 448 (CA) at [14]; Taylor v R [2013] NZCA 417 (CA) at [24].
19 Kumar v Police [2014] NZHC 1659.
20 R v Power [1973] 2 NZLR 617 (CA) at 618.
21 See R v Arthur [2005] 3 NZLR 739 (CA).
22 R v Ward [1976] 1 NZLR 588 (CA) at 591; see also R v Taueki [2005] 3 NZLR 372 (CA) at [8].
[30] There are three other matters that I should address before closing.
[31] I accept that Judge Zohrab probably made an error when he made reference to the introduction of the wine bottle by Mr Wati into the victim’s vagina as indicative of his attitude of contempt towards her. There was no evidential basis upon which he could have made that assessment since there was no longer a sexual violation charge for that act and the victim had said she consented to it. However, the reference to Mr Wati’s attitude did not result in a material error in the end sentence which would require a different sentence to be imposed.
[32] Although Judge Davidson had indicated a reduction of three months for the victim’s forgiveness of Mr Wati, those circumstances had changed by the time Mr Wati was sentenced by Judge Zohrab. The victim had clearly changed her earlier feelings toward Mr Wati. This is evident in the comments in her victim impact statement.
[33] Mr Sandston submits that Judge Zohrab indicated that he would still be amenable to the discount but he did not give it. In Mr Sandston’s submission, this undermines the integrity of the sentencing system. I disagree. What would undermine the integrity of the sentencing system is a Judge blindly following an earlier indication where circumstances had clearly changed. Judge Zohrab was not obliged to give any discount.
[34] The matter of remorse has been raised. This point has no merit on appeal. Mr Wati, in the information before me, is a manipulative person with a history of violence. There is no credible evidence before the Court to support the proposition that he is remorseful. There would be no justification for a discount on this point and Judge Zohrab made no error in not giving a reduction.
Decision
[35] Accordingly, I dismiss the appeal.
Brewer J
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