Williams v The Queen

[2021] NZHC 1960

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000002

[2021] NZHC 1960

BETWEEN

HARIROA JAYLEEN KHAN WILLIAMS

Appellant

AND

THE QUEEN

Respondent

Hearing:

28 June 2021

Appearances:

D J More for the Appellant

C J Bernhardt for the Respondent

Judgment:

30 July 2021

JUDGMENT OF NATION J

Introduction

[1]    On 23 December 2020 Ms Hariroa Tonihi/Williams was sentenced by Judge Turner to two years’ and four months’ imprisonment for wounding with intent to injure1 and injuring by an unlawful act.2 She appeals that sentence.

[2]It appears her surname is legally Tonihi so I will refer to her as Ms Tonihi.

Facts

[3]    The victim here resides on the second floor of a two story multi bedroom boarding house in Dunedin. There is a shared kitchen/dining room on the ground floor.

1      Crimes Act 1961, s 188(2); maximum penalty 7 years’ imprisonment.

2      Crimes Act, s 190; maximum penalty 3 years’ imprisonment.

WILLIAMS v R [2021] NZHC 1960 [30 July 2021]

During January 2020, Ms Tonihi’s boyfriend had been sleeping on a mattress in the kitchen area. Ms Tonihi often visited the address.

[4]    In the evening of 27 January 2020, Ms Tonihi went to the address looking for her boyfriend. They had been drinking alcohol together that day.

[5]    The victim and the victim’s boyfriend were in her room upstairs using her cell phone. The victim was recovering from a broken patella and was wearing a leg brace. She walked with a crutch. She was also recovering from a hernia operation.

[6]    Ms Tonihi knocked on the victim’s door and the victim opened it. Ms Tonihi asked the victim if she had seen Ms Tonihi’s boyfriend. She remained in the doorway of the room. The victim told Ms Tonihi to leave the room. Then she punched Ms Tonihi in the body and face. Ms Tonihi did not retaliate.

[7]    Ms Tonihi’s boyfriend then came up the stairs and tried to pull the victim off Ms Tonihi. The victim’s partner then intervened. Somehow all ended up downstairs. The victim’s car was parked outside. Ms Tonihi’s boyfriend went outside and began striking the victim’s car, swearing and abusing the victim and her partner.

[8]    Ms Tonihi went into the kitchen and picked up a paring knife. She walked down the hallway towards the victim and the victim’s partner. Ms Tonihi approached the victim, swore at her, and began swinging punches. Due to her injuries, the victim was unable to move backwards efficiently. Ms Tonihi then stabbed the victim twice in the left shoulder area and once in the stomach.

[9]    The victim called out to her partner, who witnessed these stabs. He grabbed Ms Tonihi by her hair, pulling her down and away from the victim. He yelled at Ms Tonihi to release the knife, but she refused. He then grabbed the knife by the blade and tried to yank it out of Ms Tonihi’s grip. He tried four times before he was successful.

[10]   As a result, the victim received three stab wounds and her partner received cuts to his hand.

[11]   When spoken to by Police, Ms Tonihi said “I did stab her because I don’t want a fight. I was defending myself. I feared for my life, she’s a horrible lady”.

District Court decision

[12]   Judge Turner issued a reasoned decision. He began with the facts, then set out Ms Tonihi’s conviction history and evidence from Dr Nuttall, a doctor at Dunedin Hospital, describing the victim’s injuries.

[13]   Next, the Judge considered the pre-sentence report. It recorded Ms Tonihi’s admission that she had consumed drugs and alcohol that day and was intoxicated at the time of offending. The Judge noted the pre-sentence report writer referred to Ms Tonihi advancing self-defence but the Judge was reassured by counsel that was not the case. The Judge noted that in the report Ms Tonihi described herself as suffering from chronic depression and PTSD following the end of a violent relationship and traumatic assault.

[14]   The Judge noted Ms Tonihi’s acceptance that her lifestyle was chaotic and noted the steps Ms Tonihi had taken to address her lifestyle issues prior to sentencing.

[15]The Judge then turned to submissions.

[16]   The Crown said the aggravating features of the offending justified a starting point of between three years and three years’ six months’ imprisonment with an uplift of six months for the second charge. The Crown also said a discount of only 15 per cent for Ms Tonihi’s guilty pleas was appropriate, but the Judge recorded counsel admitting that was on the harsh side.

[17]   For Ms Tonihi, Mr More said the appropriate starting point was no more than two years’ imprisonment. He challenged the Crown’s assertion that extreme violence was present. He also said Ms Tonihi was provoked. The Judge recorded his submission that, if an uplift was appropriate for the second charge, it should be only three months. Mr More submitted a full 25 per cent guilty plea discount was appropriate.

[18]   The Judge also recorded Mr More’s submissions that the defendant’s remorse and rehabilitative steps justified further discounts and a sentence of community detention and supervision.

[19]   The Judge accepted Mr More’s submission that this case did not involve extreme violence, but still placed the violence at the upper end for the type of offending. The Judge found it was a matter of good fortune the injuries were not life threatening as Ms Tonihi was lunging wantonly without particular control. He also considered the use of a weapon and the vulnerability of the victim as aggravating factors. The Judge found this was a home invasion despite it being a boarding house. It was where the victim kept her possessions, lived and was entitled to feel safe. The Judge did not think the fact Ms Tonihi visited or the fact her boyfriend slept in the kitchen changed that.

[20]   The Judge considered Mr More’s submissions relating to provocation. He found the victim’s actions did her no credit, but there was no level of provocation after the parties moved downstairs. There was no suggestion the victim was acting violently or even aggressively when they moved downstairs.

[21]   The Judge found that all cases counsel had referred him to could be distinguished on factual grounds. He demonstrated this by distinguishing Soud v R,

Sheppard v R and Sadiq v R.3

[22]   The Judge found the offending fell at the lower end of band 3 of the Nuku guideline decision.4 The Judge adopted a starting point of three years’ imprisonment. He agreed with the Crown that the second charge justified an uplift of six months on a totality basis.

[23]   Following that, the Judge turned to mitigating factors. He noted the charges facing Ms Tonihi were initially more serious and she pleaded guilty as soon as they were amended. However, he considered her fortunate the Crown was willing to amend the charges. The Judge allowed a discount of 20 per cent for her guilty pleas.

3      Soud v R [2020] NZCA 149; Sheppard v R [2013] NZCA 639; and Sadiq v R [2012] NZCA 396.

4      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[24]   The Judge also allowed a 15 per cent discount for the rehabilitative steps Ms Tonihi has taken and the fact imprisonment will be more severe for her because she may not have her baby with her and, if she does, it will be without usual community support.

[25]   That meant discounts totalling 35 per cent were deducted from an adjusted starting point of three years and six months’ imprisonment. A slight adjustment upwards to avoid a sentence of a fraction of a month led to a sentence of two years and four months’ imprisonment being imposed.

Principles on appeal

[26]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 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 the relevant sentencing principles.7

Submissions

Appellant’s submissions

[27]   For Ms Tonihi, Mr More submitted the starting point adopted by the Judge was excessive. He said this Court should have regard to the actions of the victim in initiating the incident and the personal circumstances of the defendant.

[28]   Mr More submitted two aggravating features were present under Nuku in Ms Tonihi’s offending, those being the vulnerability of the victim and the use of a knife as a weapon. He submitted this was not a case of serious injury or extreme violence

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

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

and was not a home invasion as the term is generally understood. He said it was also the home of Ms Tonihi’s partner and she had herself stayed there previously.

[29]   Accordingly, Mr More submitted the Judge was wrong to place the offending in band three of Nuku, which is for cases where three or more aggravating factors are present.8

[30]   Mr More reminded this court that sentencing is an evaluative exercise rather than a formulaic one.9 He submitted the actions of the female victim should have been reflected in a lower starting point. He said Ms Tonihi would not have considered she needed to grab the knife but for the initial assault.

[31]   With this appeal a cultural report was provided under s 27 of the Sentencing Act. Mr More said the matters raised in that report, considered alongside Ms Tonihi’s domestic situation, should have led to a greater discount than the 15 per cent granted by the Judge.

[32]   In any event, Mr More made the general submission that home detention was the appropriate outcome here. He pointed to the fact Ms Tonihi changed her lifestyle immediately following the offending and has continued to improve her position whilst in prison. He attached correspondence from a mental health clinician and an offender employment manager in support of this submission. He also provided several letters from Ms Tonihi to the Court and her victims.

Respondent’s submissions

[33]   For the Crown, Mr Bernhardt, submitted extreme violence/use of a weapon was present because using a knife to stab another person three time ought to be regarded as violence at the upper end of the scale. He said, although there was a lack of serious injury, that was a matter of good fortune rather than good management by Ms Tonihi. He submitted the vulnerability of the victim was also aggravating alongside the fact the offending involved a home invasion or at least a breach of trust.

8      Nuku v R, above n 4, at [38].

9 At [40].

He concluded there were at least four aggravating factors present to at least a moderate degree.

[34]   Mr Bernhardt appeared willing to acknowledge the provocation of the victim should reduce the starting point. However, he argued any reduction should be tempered by the grossly disproportionate response of Ms Tonihi in stabbing the victim.

[35]   Mr Bernhardt referred again to the cases of Soud v R, Sheppard v R and Sadiq v R.10 He said these comparable cases indicate the starting point of three years’ imprisonment was well within range and was at the lower end of the available range. He said, but for the provocation, a starting point beyond three years and six months’ imprisonment would have been appropriate and, he said, possibly well beyond. He also submitted little turned on whether or not the offences were dealt with separately, with a starting point of three years and then a six-month uplift or, together, with an overarching starting point recognising the two charges. He said on either approach the starting point was well within range and the ground of appeal should be dismissed.

[36]   Mr Bernhardt took issue with what he saw as Mr More inviting the Court to select home detention as the appropriate outcome and work backwards from there. He correctly submitted such an approach has been roundly condemned.

[37]   Mr Bernhardt was critical of a s 27 report being produced for the first time on appeal.11 He said that in any event, the information in the report did not mean there had been an error in the starting point adopted by the Judge. First, he says the general information contained in the cultural report was proffered to the Judge through counsel. Second, he says the Judge took into account Ms Tonihi’s “appalling background” by reducing her sentence by 15 per cent for personal mitigating factors. He said this Court might consider this discount adequately provided for the matters contained in the cultural report.

[38]   Turning back to the sentence, Mr Barnhardt submitted home detention was inappropriate here. He referred to the Court of Appeal’s comment in Nuku that “a

10     Soud v R [2020] NZCA 149; Sheppard v R [2013] NZCA 639; and Sadiq v R [2012] NZCA 396.

11     Carrol v R [2019] NZCA 172 at [8] and Clarke v R [2021] NZCA 96 at [14].

sentence short of imprisonment” can be appropriate for band one offending.12 He suggested this implies a sentence short of imprisonment would not usually be appropriate for band two or three offending. He submitted generally that a custodial sentence is required to achieve sufficient denunciation and deterrence for this offending.

Analysis

[39]   The guiding law here is Nuku v R.13 There, the Court of Appeal set out the following bands:14

(a)           Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)          Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)           Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[40]   I have considered the aggravating factors, as identified by the Court of Appeal in R v Taueki and the Court’s associated discussion of those factors:15

(a)          Extreme violence

…

(c)    Serious injury

(d)    Use of weapons

…

(i)    Vulnerability of victim

(j)    Home invasion.

12     Nuku v R, above n 4, at [38].

13     Nuku v R, above n 4.

14 At [38].

15     R v Taueki [2005] 3 NZLR 372 at [31].

[41]Also relevant is the Court of Appeal’s comments on provocation:16

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.

[42]   I agree with the Judge that this case should be dealt with on its own facts and the assistance provided by the cases is limited.

[43]   The Judge accepted Mr More’s contention in the District Court that this case did not involve extreme violence as contemplated in Taueki. I agree with that assessment. The violence here was not prolonged or wholly unprovoked and it cannot be categorised as extreme. In saying that, the Judge’s comment that this violence was at the upper end of the scale for offending of this type was an apt assessment. The comments in Taueki refer to grievous bodily harm offending which will usually involve a higher level of violence than injury offending.

[44]   It was nevertheless serious violence with reference to a charge of wounding with intent to injure. It was seriously violent because she was lunging at the victim with such force that the victim’s partner had difficulty restraining her.

[45]   The evidence from a medical practitioner confirmed the victim had multiple penetrating wounds:

(a)        a 3 cm deep laceration to the anterior deltoid (shoulder) down to the deltoid muscle;

(b)       a 2 cm superficial laceration posterior deltoid (back of shoulder)

(c)        a 3 cm superficial laceration in left upper quadrant of abdomen;

(d)       a 2 cm superficial laceration left posterior thigh.

[46]   The doctor was of the opinion the deep laceration would have caused pain and difficulty with movement of the shoulder due to damage to the muscle and bleeding

16 At [32].

but with no lasting impairment of function after two to three weeks. The other wounds would have caused pain and discomfort but no lasting impairment. The wounds would have resulted in long-term scarring.

[47]   These injuries were inflicted in a sustained assault when Ms Tonihi was armed with a knife. She had to be pulled off the victim by the hair but then refused to release the knife, resulting in the further injuries to the victim’s boyfriend.

[48]   The vulnerability of the victim was another aggravating factor. She was wearing a leg brace, walked with a crutch and was recovering from a hernia operation. When attacked by Ms Tonihi, she was unable to move backwards and unable to evade the assault.

[49]   There was an element of home invasion. The assault occurred at her home, where she should have been safe.

[50]   I consider the Judge was right to place the offending at the low end of band three (which overlaps with the upper end of band two), justifying a starting point of between three years and three years six months’ imprisonment with an uplift of six months for the second charge. With due regard to totality, the starting point adopted was three years and six months’ imprisonment.

[51]   The Judge did not assess the culpability of Tonihi’s offending as being less on the grounds there had been provocation in the way the victim had initially assaulted Ms Tonihi when Ms Tonihi went to the victim’s bedroom. That was part of the background. I do not accept the submission from Mr More that the later attack on the victim would not have occurred but for that earlier assault. The assault inside the building had ended. The victim was outside and at her car. Ms Tonihi had gone into the kitchen and picked up the knife. Through her counsel, Ms Tonihi accepted she did not attack the victim in self-defence. Her statement to the Police that she was defending herself and feared for her life was thus a lie. Her statement of the victim “she is a horrible lady” was consistent with her considerable animosity towards the victim.

[52]   It is not suggested there was any error in the discount of 20 per cent for guilty pleas. The admitted facts of the offending would have supported the original more serious charge of wounding with intent to cause grievous bodily harm.

[53]   A s 27 report was provided to the High Court for the appeal. Based on the information in that report, Mr More, for Ms Tonihi, argued the discount should have been greater.

[54]   Mr Bernhardt for the Crown referred to statements from the Court of Appeal that s 27 reports should not be admitted for the first time on appeal.17

[55]   Parliament had attempted to limit the basis on which appeals against sentence might be allowed through the provisions of s 250 of the Criminal Proceedings Act. To succeed on an appeal against sentence, an appellant must establish there was an error in the sentencing. It will be difficult for an appellant to establish there was an error relying on information that was or could have been available on sentencing but which the sentencing Judge did not have. Defendants and their counsel need to ensure all information relevant to sentencing is made available to the Judge who first sentences the defendant.

[56]   In this instance, a s 27 report has been provided by two members of a trust who had been assisting Ms Tonihi after this offending. This Court acknowledges the value of the assistance they have been providing to Ms Tonihi and commends them for that.

[57]   On sentencing, Judges need information as to a defendant which might explain the offending. The Judge will also need to know how the offender, a victim of offending and the public generally might benefit from the different sentences that could be imposed for the offending and thus the rehabilitative support which will be available to an offender, whether in prison or through another sentence. Where a s 27 report shows there are organisations or people in the community who are able to provide particular support for a defendant, a sentencing Judge needs to know of that support.

17     Carroll v R [2019] NZCA 172 at [8]; Clarke v R [2021] NZCA 96 at [14].

[58]   If a report is being provided to show a sentencing Judge just what family, whanau or community support is available to help in preventing further offending, the report is likely to be of greater value if the person or persons providing the report are in Court for the sentencing so they can be heard by the sentencing Judge. That is what s 27 actually contemplates, although it seems courts at all levels will consider information provided through just a written report. Their attendance at Court will demonstrate their commitment to providing that support.

[59]   The information in a report is also likely to be of greater value if it provides to the sentencing Judge information which counsel might otherwise not be able to convey to the court. The report will also be of greater value if the information is presented in an impartial manner. It is for the defendant’s counsel to be the advocate.

[60]   This report was introduced with the statement that it was “a collaboration” between Ms Tonihi and the two report writers. The report began:

The purpose of the report is to assist in trying to persuade the Court that the sentence of imprisonment of two years and four months was excessive for [Ms Tonihi]; a young woman with two young children and partner, and because of her background a sentence short of imprisonment should have been imposed.

Included with the report was a letter for the Court from Ms Tonihi.

[61]   The report did provide information as to the extremely abusive home in which Ms Tonihi lived between the ages of six and 19 years. When she was 19, Ms Tonihi began a relationship of 10 years. In that relationship, she was subject to verbal and then physical abuse. The report referred to the consequences of this for her and also for their child. The relationship ended when her partner was convicted of violently assaulting her. The report referred to her current personal and family circumstances. The information could have been and was provided to the sentencing Judge by her counsel.

[62]   The report detailed the programmes and organisations Ms Tonihi had been involved with from 2019 to 2021 and of programmes she had been involved in while in prison. There was material reporting as to progress she was making while in prison and letters and other documents in which Ms Tonihi described what she had been

working on and her aspirations for the future. Amongst the documents was a plan as to what she hoped to achieve while in prison and programmes she would be involved in but with confirmation that she was appealing her sentence and hoped to be sentenced to home detention.

[63]   The s 27 report provided to support her appeal does demonstrate the support which Ms Tonihi will have available to her when she is released from prison and the progress she is making to ensure she does not return to the chaotic lifestyle and alcohol abuse that was a significant factor in this offending.

[64]   On appeal, this Court has to consider whether there was an error in the sentence when it was imposed. As to that, the s 27 report does not materially add to the information which the Judge had when he sentenced Ms Tonihi. The Judge had regard to her “appalling background”, as it was described by her counsel. He took into account the fact that, with a sentence of imprisonment, Ms Tonihi would be separated from her baby. He accepted and allowed for the steps she had taken to address offending-related factors, lifestyle and substance abuse.

[65]   The allowance the Judge made for all those personal matters was a discount of 15 per cent. With the discount of 20 per cent for guilty pleas, the total credit for those matters was 35 per cent. I note that in the District Court Ms Tonihi’s counsel had submitted such credit should have been for a total of 40 per cent, of which 25 per cent was sought for guilty pleas. Accordingly, in the District Court, counsel was seeking credit for other matters relating to Ms Tonihi personally of 15 per cent, the discount for those matters which the Judge actually gave her.

[66]   There is no criticism now of the discount of 20 per cent for guilty pleas. The Judge was concerned that, despite her guilty pleas, the probation officer advised that Ms Tonihi had given a version of events where she described what she had done as lashing out in the face of aggression when she feared for her safety. She claimed she had been prevented from leaving the house. At sentencing, Ms Tonihi’s counsel suggested that it was the report writer and not Ms Tonihi who was responsible for that description of what happened and what she said when first spoken to by the Police.

The sentencing Judge probably had some difficulty accepting that explanation, given the detail in Ms Tonihi’s account as referred to by the report writer.

[67]   Ms Tonihi is to be commended for the changes she is making while undergoing her sentence. There is thus a rehabilitative aspect to the sentence which this Court does not ignore. She appears to be making progress in the structured and protective environment she is in.

[68]   On appeal, this Court can allow the appeal only if there was an error in the sentence imposed on the basis of all the information that was before the Court at that time and that, on that basis, the sentence imposed was manifestly excessive, and a different sentence should have been imposed.

[69]   Ms Tonihi has not established the grounds for her appeal or that there should be a reduction in her sentence so as to provide the potential for a sentence of home detention.

[70]Her appeal is dismissed.

Solicitors:

D J More, Barrister, Dunedin RPB Law, Dunedin.