R v Joseph [2017] NZDC 19212 (28 August 2017)

Last Updated: 2 March 2018

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-004358 [2017] NZDC 19212

THE QUEEN

v

_{CHARLIE JOSEPH}

Hearing:	28 August 2017
Appearances:	S Gilbert for the Crown R Boot for the Defendant
Judgment:	28 August 2017

_{NOTES OF JUDGE P R CONNELL ON SENTENCING}

[1] Mr Joseph, you are for sentence today on five charges that are before the Court to which you have entered pleas of guilty. They are a charge of being a male you assaulted a female, there are two charges of threatening to kill, a charge of kidnapping and a charge of injuring with intent to injure.

[2] You were in a short term relationship with the victim in this case as I have read it. You knew her previously from your days in Huntly and you then entered into a two or three month relationship with her. She had told you on this occasion that she had in fact been unfaithful to you. The first thing I understand is your anger at that, unquestionably I acknowledge that you would have been angry. But you know better than I do your response to that anger is what has put you in grave trouble with the

_{Court at this stage. It is enough to say that you completely lost it. Instead of trying to}

R v CHARLIE JOSEPH [2017] NZDC 19212 [28 August 2017]

deal with that in an adult way, you have decided you are going to take it out on her by physically assaulting her.

[3] After an argument you slapped her above her eye and threatened to kill her or her family. You were in a shed with her with your siblings. When they went you closed the door, you continued this argument about her infidelity and then you hit the victim on the back of the head three times. Throughout the offending you were repeatedly asking her for the details of the person she said she had been unfaithful to you with, you wanted to know where he lived and then you made her draw a map to show you where this person was. Apparently he had been a previous partner.

[4] You punched her in the head, you hit her in the body and that was when she answered and when the maps that she drew did not match the answers she had given you. You threatened to break her neck if she attempted to leave the shed and then she was trying to please you and was trying to do anything that you asked. I acknowledge the circumstances, as your counsel has put it, were somewhat unusual and that clearly people were coming and going, but you had her in a state of fear that she could not have done anything to have helped herself at that stage.

[5] She was allowed to leave the shed to have a shower but you stood outside the shower while she washed herself and you walked her back to the shed. It was like a jailer looking after a prisoner and that is why you face this charge of kidnapping. Throughout this offending it is said you repeatedly kicked the victim’s body and you punched her in the head. She has bruises, extensive bruising that I have observed from the photographs that are before the Court. At one stage she became dazed and her vision was interfered with and that she says was due to the punches to her head.

[6] This was a series of repeat assaults on her done in different ways, but has all the hallmarks of a very cruel situation where she could not have left, could not have escaped, and you just treated her like a punching bag lashing out at her as your anger determined you should do. That offending ended on Sunday 17th around midday when a friend of yours came along. You then allowed her to go home for a change of clothes.

[7] In terms of previous convictions for the use of violence both physical and by way of threats to kill, you have convictions for being a male you assaulted a female. I accept that from 2007 until the present offending there has been no offending by you of a similar nature. You have had a rehabilitative sentence passed on you in the past but any lessons learned about how you should handle such emotional situations from that sentence seemed to have left you on this occasion.

[8] I have considered the victim impact statement. It is not a case of her expressing any hatred or dislike of you. It is simply her saying that it has had a long-lasting effect on her, she lives in fear of you and maybe that is what you wanted to achieve I do not know. She has worried about the position for her parents, you apparently have threatened them at one point and she is upset that her parents were brought into this in this way, with you expressing a desire to actually kill them as you have. She had that worry until the day you actually pleaded guilty. I understand it is an ongoing worry and concern for her. Those things are not helpful to you.

[9] Counsel in their submissions have mentioned to me a hallmark decision of R v Nuku.1 There are three bands for offending in cases of such violence. In that case band 3 has suggested that there should be a starting point of two years and up to the statutory maximum of five years for the injuring with intent. That has to be so where there are three or more of the aggravating features set out in the R v Taueki2decision - another Court of Appeal hallmark decision. I will deal with that when I deal with the counsel’s submissions shortly.

[10] I can say that I have looked carefully at the decision of Tozer v R.3 That was a case where there was a starting point of three years and six months. There was injury occasioned by beating the complainant with a wooden batten and there was profuse bleeding and head wounds occasioned to that complainant. That being so, the Court did not interfere with the starting point and it dismissed the appeal. I have looked at Setter v New Zealand Police4; that was a two year and 11 months’ imprisonment for

_{injuring with intent to injure with threats to do grievous bodily harm, male assaults}

1 R v Nuku [2004] BCL 1053 (CA)

2 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)

3 Tozer v R [2010] NZCA 7

4 Setter v New Zealand Police [2012] NZHC 1834

female. In that case the Court did not interfere with a sentence which had a starting point of three years. They made some small adjustments but in effect the three year starting point was not criticised. In this case I have also looked at the Heke v New Zealand Police5 decision that has provided some guidance in respect of what should be done in this particular case for you.

[11] The Crown here have submitted that in essence the more grievous offending relates to your injuring with intent. That was enabled by the kidnapping, the detention of the victim and that is the way I intend to treat it because I am going to take the lead charge as being the charge of injuring with intent to injure. Here the Crown have submitted there were aggravating factors. They talk about the extreme violence occasioned to the complainant, talked about the fact that there must have been some premeditation. There would be at least some small lead into this offence that had been an issue of premeditation. But here there was an attack to the head of the complainant. That always is an aggravating feature in any situation like this.

[12] Crown say there were no mitigating factors. Here it is said the victim did not provoke you. What I do acknowledge, as I said the fact that you got angry at what you were told (and I can understand why you got angry) but beyond that there was nothing that provoked the sort of reaction that you ended up with in meting out the violence you did to this complainant. Here the Crown has also submitted that the guilty plea was given some five months after you were charged with this offending. It is submitted, bearing in mind Nuku, that this offending falls within band 3 and warrants a starting point of some four to five years’ imprisonment.

[13] The Crown seek an uplift of a year for the kidnapping and notes that a small uplift is available to the Court for the two charges of threatening to kill and I have explained to counsel why I consider that important. Crown also acknowledge that here the plea did come late but accept that there should be some acknowledgement of

it.

[14] Your counsel Mr Boot seeks the usual discount for your plea of guilty and that will happen today. It has to be measured against just when it came; he is asking for a

5 Heke v New Zealand Police HC Hamilton AP2/96, 1 April 1996

10 percent discount. He has acknowledged the aggravating factors that the Crown have put to the Court, he has suggested there should be a starting point of three years. He is doing that on the basis of the decisions I have talked about that are a guidance and which set something of a tariff for offending like this. Mr Boot submits that the guilty plea here is the strongest mitigation that you can put to the Court.

[15] In this case I have determined that there should be a starting point of three years’ imprisonment on the charge of injuring with intent. That is the lead charge so there will be an uplift for the kidnapping of one year, that takes you to a four year total. I have considered the issue of previous convictions but I am inclined to accept the submission of Mr Boot and I am not going to impose an uplift for previous convictions at this stage. I do consider that on the male assaults female charge and the threat to kill combined, there should be a six month uplift on the four years. I say that particularly in the case of the threat to kill. There were two threats to kill uttered here by you, to me that was all part of the terror under which the complainant was detained and should in my view at least earn an uplift as I have described.

[16] The male assaults female; there is a need to be careful that it is not double counted, but this was a series of assaults for a long period of time, repeated assaults, and the best indication of that is the extensive bruising all over the body of the complainant which has been seen by me in the photographs that are attached to the summary of facts. So that is a four and a half year term that I have reached. There will be a discount on four and a half years for your plea of guilty in this case. I do take account of the fact that it was a plea very close to trial. What it did do was save time for the Court and I think, more importantly, it saved the victim having to come to Court (although she was here on the morning of trial) but having to get into the witness box and relive the trauma of this treatment of her - so off the four and a half years there will be deducted a term of five months. That takes you down to a sentence of four years and one month’s imprisonment.

[17] That is imposed on the injuring with intent. Just for the sake of completion, on the male assaults female, there will be a concurrent sentence imposed of one year. On the threat to kill six months, on the kidnapping there will be a two year term concurrent

imposed, on the injuring with intent I have announced the sentence on that and that takes you to four years and one month.

[18] I assure you that they are concurrent sentences and your total today is four years and one months’ imprisonment.

P R Connell

District Court Judge