R v Tikena-Stuchbery [2022] NZHC 1266 (27 May 2022)

Last Updated: 6 October 2022

NOTE: ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF THE COMPLAINANT 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, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-9423 [2022] NZHC 1266

THE QUEEN

v

ZACQURIN TIKENA-STUCHBERY

Hearing:	27 May 2022
Appearances:	F M T Culliney and J Lee for Crown C G Wright and A A Prasad for Defendant
Sentence:	27 May 2022

SENTENCE OF PAUL DAVISON J

Solicitors:

Crown Solicitor, Auckland

R v TIKENA-STUCHBERY [2022] NZHC 1266 [27 May 2022]

Introduction

• [1] Mr Tikena-Stuchbery you appear before the Court today for sentence having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm relating to the serious assault occurring on the evening of 28 November 2020, and one representative charge of assault on a person in a family relationship, relating to the earlier assault on the complainant that occurred during the afternoon or evening of the previous day.¹

• [2] Your sentencing engages the “three strikes” regime under the Sentencing Act 2002. The charge of wounding with intent to cause grievous bodily harm is your third strike offence. This means that as the law currently stands, I am required by the Sentencing Act to sentence you to the maximum term of imprisonment prescribed for that offence which is 14 years’ imprisonment,² unless I decide that such a sentence would be so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).³ Section 9 of the Bill of Rights provides that everyone has the right not to be subject to “disproportionately severe” punishment.

• [3] If I decide that to sentence you to the maximum penalty of 14 years’ imprisonment does breach s 9 of the Bill of Rights, I am required to sentence you in accordance with the normal sentencing principles.⁴ However, if I conclude that to sentence you to 14 years’ imprisonment does not breach s 9 of the Bill of Rights, the Sentencing Act requires me to order that you serve that 14 year sentence without parole, unless I am satisfied that it would be “manifestly unjust” for you to do so.⁵

Your offending

• [4] I commence with the facts of your offending.

• [5] You and the complainant in this matter have been in an on and off kind of relationship for the past four years. Together you have a young child, a daughter. She

1. Crimes Act 1961, ss 188(1) and 194A: carrying maximum penalties of 14 years’ imprisonment and two years’ imprisonment respectively.

² Sentencing Act 2002, s 86D(2).

³ See Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.

⁴ At [231] per O’Regan and Arnold JJ and [252] per Glazebrook J.

⁵ Section 86D(3).

lives with the complainant’s mother. At the time of the offending, you and the complainant were living together in Auckland.

• [6] In the afternoon of Friday 27 November 2020, the complainant returned to the address where you were living together with the intention of packing up her possessions and leaving while you were out of the house. Upon arriving at the address, she discovered that the property appeared to have been burgled. She telephoned your stepmother to ask her whether she knew anything about the situation.

• [7] You arrived home shortly afterwards and discovered the burglary. You blamed it on the complainant because it had happened when she was not at the address. Your stepmother and aunt also arrived at the address soon after you.

• [8] The complainant wanted to leave the address and take her remaining possessions with her. You told her to go back inside to avoid making a scene. The complainant went back inside the house. Then when the complainant was in the lounge, you punched her above her left eye. She called out to alert the others of the assault. Your stepmother and aunt intervened and told you to leave the complainant alone. However, fearing for everyone’s safety, your stepmother and aunt then left the address to alert the police about what was happening.

• [9] When they left you punched the complainant in the stomach, causing her to lose her breath and fall to the ground. However, you eventually calmed down and talked things through with the complainant.

• [10] During the evening of the following day Saturday 28 November 2020, you and the complainant were both staying at the house and in bed together. The complainant went to sleep while you stayed awake playing games on her phone. The complainant woke up to you on the bed kicking and punching her in the head and face. You angrily demanded an explanation from her about why she had a text message on her phone from another male calling her pretty. The complainant pleaded with you to stop, however you would not stop and you continued to drag her around the room kicking and punching her. Your violent assault caused the complainant to suffer a split mouth

which filled with blood, and such severe swelling to her eyes that she could no longer see anything or even open her eyes.

• [11] The complainant begged you to stop the assault and to call for an ambulance. You eventually agreed to get her help, but only on the condition that she told the ambulance officers that the attack had happened elsewhere and that she had arrived at the address already in that state. Realising that it was the only way she was going to get any help, the complainant agreed.

• [12] So, at around 11.30 pm, you telephoned for an ambulance saying that the complainant had turned up at the address in the injured state.

• [13] Following the arrival of an ambulance, the complainant was taken to hospital for treatment for the injuries she had sustained. Your violent and brutal attack fractured her right eye socket, caused her significant bruising, lacerations and severe swelling to her face, as well as bruising to her shins and feet. The extent of the complainant’s injuries and the extent of the swelling of her face was so severe that she was barely able to open her eyes or even eat for several days after the attack.

Victim impact statement

• [14] The complainant has read her victim impact statement to the Court this morning and you have heard it yourself. She says that as a result of the assault she suffered a broken eye socket which continued to cause her pain for months after the incident. She says the injuries she suffered to her face have resulted in changes to her appearance which make her feel self-conscious and insecure. She speaks of the difficulty in processing the impact of your offending against her. She says that in the period following the attack she had feelings of being a battered woman and that the last piece of her independence had been taken away from her. She says that despite the troubled relationship that you had, you and she had stayed together for the sake of your daughter as you hoped to provide your daughter with the stable family life that neither of you had had for yourselves. She says that she is only now beginning to emotionally process what has happened. She says that she has forgiven you for what happened and what you did to her, and she says that she hopes that while you are in prison you will be able to work through your issues so that when you get out of prison

you will be able to have a relationship with your daughter. She nevertheless forgives you for your actions and hopes that you will be able to address your issues.

Sentencing approach

• [15] As I mentioned at the outset your offending engages the three strikes regime in the Sentencing Act. Your conviction for the offence of wounding with intent to cause grievous bodily harm is your third strike offence. And as I have said, s 86D(2) of the Sentencing Act therefore requires me to sentence you to the maximum term of imprisonment prescribed for that offence which is 14 years’ imprisonment, provided that such a sentence would not be so grossly disproportionate as to breach s 9 of the Bill of Rights.⁶ Section 86D(3) provides that I must order that sentence to be served without parole unless it would be manifestly unjust to do so.

• [16] Therefore, the sentencing approach I shall adopt today has three stages:

(a) First, I will assess what sentence would have been imposed but for the three strikes regime. This involves fixing an appropriate starting point by reference to the circumstances of your offending and then adjusting that starting point to reflect your own personal circumstances. This will produce a notional end sentence. I will refer to this as the “but for” sentence.

(b) [Secondly, I will decide whether it would be manifestly unjust to order that you serve a sentence of 14 years’ imprisonment without parole pursuant to s 86D(3) of the Sentencing Act.]

(c) [Thirdly, I will consider and determine whether imposing the maximum sentence of 14 years’ imprisonment for your third strike offence pursuant to s 86D(2) of the Sentencing Act would amount to a breach of s 9 of the Bill of Rights. The sentence that would have been imposed but for the three strikes regime is relevant to this assessment.]

⁶ See Fitzgerald, above n 3, at [139] per Winkelmann CJ and [219] per O’Regan and Arnold JJ.

The sentence that would have been imposed “but for” the three strikes regime

Starting point

• [17] The lead offence in your case is wounding with intent to cause grievous bodily harm. The guideline judgment for sentencing in respect of a charge of wounding with intent to cause grievous bodily harm is that of R v Taueki.⁷ The Court of Appeal in that case established three sentencing bands corresponding to the severity of the offending in question.⁸ By reference to the aggravating features identified in Taueki, the Crown submits that your offending sits at the top of band two. Offending assessed as being in band two will warrant the imposition of terms of imprisonment between five and 10 years. The Crown submits that your offending justifies the adoption of a starting point of eight years and three months on both charges. Your counsel Mr Wright, agrees with the Crown that your offending falls within band two, but he submits that it warrants a starting point in the region of seven years’ imprisonment.

• [18] I consider that the following aggravating features are present in your offending:

(a) Extreme violence and attacks to the head: your attack involved repeated punches and kicks to the complainant’s head, face and body as she begged you to stop.⁹ The photographs of the complainant that have been produced graphically show the severe facial swelling she suffered and the extensive bleeding resulting from the injuries to her face, eyes and mouth. The attack was vicious and extremely violent. You maintained and continued the attack despite the complainant pleading with you to stop, and you callously and brutally continued to repeatedly punch her in the head, kick her and drag her around the room as you did so. I consider that the extreme violence of your offending is a significantly aggravating feature of your offending.

(b) Serious injury: the complainant suffered serious injuries as a result of the attack on her. She was hospitalised as a result of her injuries.¹⁰ She

⁷ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

⁸ At [34].

⁹ At [31(a)] and [31(e)].

¹⁰ At [31(c)].

sustained a fracture to her right eye socket, significant bruising, lacerations and swelling to her face and eyes. She also suffered a split mouth and bruising to other parts of her body, and as I have noted, she was unable to open her eyes and eat for some days after the attack due to the extent of her injuries. She continued for some time to experience pain and sensitivity from the fractured eye socket.

(c) Vulnerability of the victim: the complainant was in a relationship with you at the time and as I have noted you have a daughter together. You attacked her while she was in her home in circumstances where she was entitled to be safe and, on the second occasion, you commenced the attack upon her while she was asleep and completely defenceless.¹¹ She was obviously vulnerable and you took advantage of your much greater strength and size to overpower and assault her knowing that she had no ability to stop you or defend herself. It is well-established that offending in a domestic situation is a serious aggravating factor.¹²

• [19] There is also an element in your offending that involved you attempting to pervert the course of justice.¹³ This is because you only agreed to call an ambulance for the complainant on the condition that she would lie about how she had sustained her injuries and thereby exonerate you from any responsibility for causing her injuries. However, I note that you did not subsequently take any steps in an attempt to prevent her from making a complaint to the authorities, or to punish her for doing so.¹⁴ While this factor is relevant to an assessment of the gravity of your offending it is not a significantly aggravating factor, and the other matters I have just mentioned are the most significant aggravating factors in an assessment of the gravity of your offending.

• [20] The Crown also submits, and I agree, that a plea for leniency from the complainant does not mitigate the seriousness of your offending.¹⁵ The complex relationship between yourself and the complainant is evident from her victim impact

¹¹ At [31(i)].

¹² Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].

¹³ Taueki, above n 8, at [31(g)].

¹⁴ At [31(g)].

¹⁵ At [33(b)].

statement and your history of previous violence against her. While I note that the complainant has expressed her forgiveness of you, and says that she does not want to “make things worse” for you, her expressions of support for you do not reduce the gravity of your offending. There are no mitigating features of your offending.

• [21] I have considered a range of comparable cases in determining what the appropriate starting point would be for your offending, but for the three strikes regime.¹⁶ While your offending did not involve the use of a weapon or cause permanent injuries to the complainant of the kind seen in some of those cases, it nevertheless involved a brutal and sustained beating of your vulnerable partner while she was in her home and in circumstances in which she was entitled to feel safe and secure.

• [22] I consider that your offending appropriately falls towards the upper end of band two as identified by the Court of Appeal in Taueki.¹⁷ This is because of: the extreme violence involved in the beating you inflicted upon the complainant; the extent of the serious injuries she suffered as a result of the assault, including a fractured eye socket and extensive swelling across her face, which left her hospitalised and unable to open her eyes or eat for several days after the attack. I also consider that the vulnerability of the complainant as your partner who was sleeping in her bed at the time of the second attack and quite unable to get away from you or defend herself, significantly elevates the gravity of your offending. The ferocity and duration of your attack upon her resulted in those consequences.

• [23] In my view, but for the three strikes regime, a starting point of seven years and three months would be appropriate for your offending. Furthermore, I consider that an uplift of three months’ imprisonment is necessary to take account of the representative charge of assault on a person in a family relationship. This results in a starting point of seven years and six months’ imprisonment.

¹⁶ See New Zealand Police v Stepanic HC Whangārei CRI-2005-488-35, 27 July 2005; Kawau v New Zealand Police [2018] NZHC 2508; Kaio v R [2012] NZCA 168; Kauwhata v R [2010] NZCA 451; Tekuru-Reid v R [2018] NZHC 2419; and R v Vela [2019] NZHC 714.

¹⁷ Taueki, above n 7, at [38].

Personal aggravating and mitigating factors

• [24] There are two personal aggravating factors which should also be considered.

• [25] The first is that at the time you committed the offending you were five months into serving a sentence of home detention for aggravated robbery. The second is that you have relevant previous convictions. I note in particular that the offence for which you received your first strike warning involved violent offending also against your partner — the same complainant. You also have five previous Youth Court notations relating to violent offending. The Crown says that you are currently facing additional charges for violent offending against the complainant on another occasion, this other time occurring while she was five months pregnant. I note however that there are limited details of this further offending presently before the Court.

• [26] I consider that your relevant previous convictions show a steady escalation of offending and a propensity to use serious violence, particularly against the complainant. For these two aggravating factors — that the offending occurred while you were serving a sentence of home detention and to take account of your relevant previous convictions — I consider that an uplift of six months’ imprisonment is appropriate to reach an adjusted starting point of eight years’ imprisonment.

• [27] With respect to the mitigating factors personal to you, I have had the benefit of reading the cultural report that was prepared pursuant to s 27 of the Sentencing Act and the psychological report prepared by Dr Joseph Sakdalan. Both canvas your personal circumstances in considerable detail and it is necessary for me to briefly describe the contents of each report.

• [28] The s 27 report sets out details of your upbringing. Your mother worked for Family First and then Child Youth and Family. Your father worked at a car-wreckers until he was imprisoned for nine and a half years. Your environment growing up was described by the report writer as one of “gangs, violence, alcohol and drugs”. Your father was a member of the Mongrel Mob. You described your early days as “being raised by the dogs” in an environment where you were “used to the hidings” and hidings were “nothing” to you. The report says that as a punishment your father would

put your hands on the stove. Your father was also physically and emotionally abusive towards your mother.

• [29] Although you experienced a brief respite from this environment when you lived with your grandparents for some 18 months, this sadly ended when your grandfather passed away from a heart attack. You then returned to live with your mother and uncle in Whangārei where the report writer says you were taught that violence was “love”. Your uncle, who was a member of another gang, would physically abuse his wife and this frequent behaviour was normalised for you. You were expelled from every school that you attended. You began drinking and smoking at around the age of nine. You started using methamphetamine when you were around 16 years old.

• [30] The s 27 report writer considers that this background of abuse and deprivation has manifested in the criminal behaviour which brings you before the Court today and I will return to this shortly.

• [31] The psychological report prepared by Dr Sakdalan, who is a registered clinical psychologist, counselling psychologist and clinical neuropsychologist, records a similar account of your upbringing, being largely raised in a gang environment since the age of six. It records that you easily resort to violence and you say that you have “punched heaps of girls”, which you acknowledge was “absolutely stupid”. You say that although you do not have a history of being diagnosed with mental health problems, you may have Attention Deficit Hyperactivity Disorder (ADHD). You report that you have been hyperactive and distractible throughout your life and say that using methamphetamine helped to calm you down. You report often feeling bored which results in you acting impulsively and getting into trouble.

• [32] It is Dr Sakdalan’s opinion that you do meet the criteria for a diagnosis of ADHD. Your background of undiagnosed ADHD and the complex history of trauma experienced throughout your upbringing are said to have resulted in significant issues which bear on your present offending. These include antisocial and violent attitudes and behaviours, a tendency to impulsivity and poor judgement. Your substance abuse, and particularly with respect to methamphetamine, appears to be partly explicable as

an attempt to manage your ADHD symptoms. Risk assessment findings indicate that you carry a high risk of intimate partner violence and general violence similar to your previous and index offending. The report records that you are at risk of engaging in intimate partner violence in the context of ongoing relationship issues or conflicts, particularly if you decide to reconcile and maintain contact with the complainant. This risk is said to be exacerbated if you are under the influence of substances.

• [33] Taking these findings together with the contents of the s 27 cultural report, I consider there to be a clear causal nexus between your personal background and your offending. Your upbringing was characterised by violence and deprivation and the absence of appropriate pro-social care and security. I have little doubt that the violent behaviours you witnessed as a child and as an adolescent influenced the way you perceive violence and readily resort to violence to resolve conflict irrespective of the circumstances, and who it is directed against. This is particularly so in the case of intimate partner violence, to which you were exposed continually throughout your childhood, first by your father against your mother and later by your uncle against his wife. This tendency to resort to violence has been further compounded by your undiagnosed ADHD which affects your judgment and causes you to act impulsively.

• [34] These factors, in my view, plainly influenced the violent way in which you reacted to the discovery of the burglary having taken place at your address and later to the discovery of a text from another man on the complainant’s phone. While your background and its effect upon you does not excuse your behaviour, it does go some way towards providing an explanation for why you acted in the way that you did, and in that sense, it informs an assessment of your criminality. I consider that some recognition by way of a discount is appropriate to recognise the extent to which these contributory factors beyond your control are causatively linked to the index offending. In my view, a discount of 15 per cent of your sentence is appropriate for that factor.

• [35] Mr Wright, on your behalf, also contends that a further discount should be allowed to reflect the fact that you were only 20 years old at the time of the offending. It is well-established that an offender’s youth can operate as a mitigating factor in

sentencing.¹⁸ This may be due to the age-related neurological differences between young people and adults, the effect that imprisonment can have on young people and their greater capacity for rehabilitation.¹⁹ Whether a discount for youth is appropriate will of course depend upon each individual case.

• [36] The Crown submits that any discount for youth in this case ought to be assessed in the light of your relatively extensive criminal and Youth Court history and your record of non-compliance with previous sentences designed to provide you with rehabilitative opportunities. I agree. However I also note that your diagnosis of ADHD and tendency to act impulsively and poor judgement associated with that condition is a factor that informs an assessment of whether a discount to recognise your comparative youth is appropriate. I consider that a limited discount is appropriate to reflect your relative youth at the time of the offending. I shall therefore allow a discount of five per cent for youth on this basis.

• [37] Although to your credit you have written a letter to the Court in which you express your remorse for your offending, it has come at a very late stage. When you were interviewed by the author of the pre-sentence report in July last year you exhibited what was described as a “disengaged attitude” to your offending, “a high sense of entitlement”, and you did not show remorse for the victims of your actions. The author of the report also described you as saying “I don’t feel remorse” and having “callous attitudes towards the offending”. These observations were made some six months or so after the offending against your partner at which time you would have had an opportunity to reflect on your offending and its effect on your partner and your daughter.

• [38] Against that background your recent expressions of remorse and apologies for your actions shortly before you are to be sentenced cannot be given any significant weight. It remains to be seen whether the remorse that you have recently expressed is translated into you making a positive commitment to rehabilitation. As noted by the pre-sentence report, until you take ownership of your actions your attitude towards your offending as described in the pre-sentence report is likely to stand in the way of

¹⁸ See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

¹⁹ At [77].

your rehabilitation. For these reasons, I do not consider that it is appropriate to allow any discount to recognise your remorse or to recognise the efforts being made towards rehabilitation.

• [39] I shall however allow a discount of 15 per cent for your guilty pleas. You were first charged with wounding with intent to cause grievous bodily harm on 30 November 2020 and pleaded guilty to amended charges following trial callover on 23 June 2021. While your pleas avoided the need for a trial they were not entered at the earliest available opportunity, notwithstanding the amendment to the charges. In my view a discount of 15 per cent is sufficient recognition of your entry of guilty pleas.

• [40] In summary, were it not for the three strikes regime, I consider that your offending would warrant an adjusted starting point of seven years and six months’ imprisonment, an uplift of six months for the fact that the offending occurred while you were serving a sentence of home detention and to reflect your previous convictions for violence. This results in an adjusted starting point of eight years’ imprisonment and with discounts totalling 35 per cent, takes the end sentence that would have been imposed but for the three strikes regime to five years and two months’ imprisonment.

• [41] In relation to the “but for” sentence I have also considered whether the imposition of a minimum period of imprisonment is necessary in order to meet the purposes of sentencing referred to in s 86 of the Sentencing Act, and whether I consider that the one-third period provided for in s 84(1) of the Parole Act 2002 before you would be eligible for parole would be insufficient to hold you accountable for your offending, to denounce your offending, and to deter you and others from offending in the same or a similar manner, and that a longer period is necessary. I do consider that the standard approach where you would become eligible for parole after serving one- third would not meet these sentencing objectives, and I would therefore have imposed a minimum period of imprisonment of 50 per cent, or half, of the sentence that I would have imposed but for the three strikes regime. The effect of this minimum period of imprisonment would be that you would become eligible for parole after serving two years and seven months of a sentence of five years and two months’ imprisonment.
• [42] So in your case, Mr Tikena-Stuchbery, but for the three strikes provisions contained in s 86D of the Sentencing Act the sentence I would impose would be one of five years and two months’ imprisonment, meaning that a sentence of 14 years’ imprisonment served without parole would require you to serve eight years and 10 months more than the sentence you would receive but for the three strikes regime.

Would an order to serve the sentence without parole be manifestly unjust?

• [43] However, in order to make a further comparison between the sentence you would serve but for the three strikes regime and the sentence you would serve if I make an order pursuant to s 86D(3) that it would be manifestly unjust for you to serve the maximum sentence of 14 years without parole, I shall now turn to consider that issue. Unless I find that it would be manifestly unjust, I am required by law to order that you serve the sentence without parole in accordance with s 86D(3) of the Sentencing Act.

• [44] The manifest injustice exception in s 86D(3) is intended to avoid “grossly disproportionate” sentencing outcomes.²⁰ The case for a finding of manifest injustice must be “clear and convincing” but such cases need not be “rare or exceptional”.²¹ I must assess both the circumstances of the offence and your circumstances. The sentence that would have been imposed but for the three strikes regime is relevant. I will also consider whether you had the ability to understand your earlier strike warnings, your level of culpability for the offending and whether you are likely to reoffend such that there is a need for community protection. Ultimately, this assessment and inquiry is an intensely factual one.²²

• [45] I will address each of those factors in turn.

• [46] I have already considered the circumstances of the offence and your personal circumstances in determining the sentence that would have been imposed but for the three strikes regime and as I have said, I consider that a sentence of five years and two months’ imprisonment would be warranted if you were to be sentenced in accordance with ordinary sentencing principles.

²⁰ R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108(a)].

²¹ At [108(b)].

²² At [108(f)].

Earlier warnings

• [47] I turn to consider whether you understood your two earlier warnings. By way of context, it is necessary to briefly describe the circumstances of your first and second strike offences.

• [48] You received a first strike warning on 6 November 2018 having pleaded guilty to a charge of wounding with reckless disregard for the safety of others.²³ Your offending in that instance was violent offending against the same complainant as in the present case. On 29 April 2018, you and the complainant were at home when you began arguing. You punched the complainant’s head causing her head to strike a concrete wall. The complainant lost consciousness and fell to the ground. She sustained a fractured eye socket, with the nerve pulling away from her nose. Her breathing and taste were restricted as a result. At the time of that offending, you were subject to a sentence of intensive supervision on a number of theft and driving offences. You pleaded guilty and were sentenced to 18 months’ intensive supervision and 100 hours of community work.²⁴

• [49] You received a second strike warning on 1 July 2020 having pleaded guilty to a charge of aggravated robbery.²⁵ On 25 May 2019, you and two others committed an aggravated robbery of a patron outside a bar in Auckland. As the victim was leaving the bar for the evening, your group approached him from behind. The victim was struck by one of your associates and held down as $900 in cash was taken from him. You were sentenced to 10 months’ home detention with 100 hours of community work, which indicates that the sentencing Judge did not consider this to be particularly serious offending on your part, and reflected the fact that you had already spent six months in prison on remand before being sentenced. I also note that although the victim was struck, held down, and robbed, there was no serious violence involved so far as you were concerned.

²³ Section 188(2): carrying a maximum penalty of seven years’ imprisonment.

²⁴ The sentencing Judge noted that the defendant had spent six months remanded in custody and was of the view that “if that six months has not taught you a lesson then nothing will so I am going to give you a chance”. He acknowledged that the sentence handed down was “very low” for the offending in question.

²⁵ Section 235(b): carrying a maximum penalty of 14 years’ imprisonment.

• [50] I agree with the Crown that this is not a case where the stage-1 and stage-2 offences have little relevance to the third strike offence. The stage-1 offending in particular involved violence against the same complainant. There is nothing to suggest that you did not understand the warnings given to you after your first and second strike offences. The present offending occurred while you were serving the sentence of home detention you received in respect of your second strike offence. However a feature of both your stage-1 and stage-2 offending is that on neither occasion were you sentenced to a term of imprisonment. Although I have no doubt that you well understood the strike warnings you received, they were not given to you in circumstances where you were being sentenced to imprisonment, meaning that the imposition of a maximum sentence of 14 years’ imprisonment in relation to this current offending would mean that it was being imposed without you having previously been sentenced to any term or terms of imprisonment that would underpin the warnings you were given, and which would have represented a graded progression in terms of severity of punishment before the maximum penalty was imposed.

Your culpability

• [51] As regards your culpability for the offending, I consider it to be high. There was no provocation which justified your violence against the complainant. It could never do so. Neither the burglary at the property nor your discovery of a text message on her phone from another male could possibly justify your violent reaction to those events. Your second and more serious offending commenced when the complainant was asleep. As I have said, she was utterly defenceless and begged you to stop. I consider your culpability for the offending to be high.

Your likelihood of reoffending

• [52] In the pre-sentence report provided by the Department of Corrections for the purpose of this sentencing you are quoted as telling the report writer that you “don’t feel remorse”. Your risk of reoffending is assessed in that report as “very high” given your extensive and violent criminal history, gang involvement, drug use and lack of remorse for the offending. Your risk of harm was also assessed as “very high”. It is remarkable that all three of your strike offences occurred within a period of just three years. Your third strike offence, being the present offending, occurred as I have said

while you were serving a sentence of home detention in respect of your second strike offence.

• [53] The Crown submits, and I agree, that until very recently at least, you have demonstrated an indifference towards your offending, and displayed a lack of insight into your actions and their effects. Although the letters you have written to the Court and the complainant indicate progress, there has been little indication of a willingness to actively engage with rehabilitation opportunities. You have been given generous rehabilitative opportunities in the past but have not engaged with them. In these circumstances, I assess you as posing a high risk of reoffending. There is a clear need to protect the community.

Manifest injustice

• [54] It is clear that you understood your earlier two warnings and remain highly culpable with respect to the present offending. You also pose a high risk of reoffending. However, you have never previously been sentenced to a term of imprisonment. There is a significant disparity between the sentence you would have received but for the three strikes regime, being five years and two months’ imprisonment, and the maximum penalty the Court must impose, being 14 years’ imprisonment. That disparity is important in assessing whether it would be manifestly unjust for you to serve the maximum sentence of 14 years without parole.

• [55] If no minimum term of imprisonment is imposed, under s 84 of the Parole Act, you will become eligible for parole after serving one third of the length of your 14 year sentence, or after four years and eight months’ imprisonment. Therefore ordering you to serve the full sentence of 14 years’ imprisonment without parole would result in you spending almost nine years (eight years and 10 months), longer in prison than you would otherwise serve if sentenced to five years and two months’ imprisonment. That is a significant disparity. It must also be observed that you have entered guilty pleas to your third strike offending and, as I noted earlier, I consider your upbringing characterised by deprivation and violence as being causatively linked to your present offending. In my view, those matters reduce your moral culpability.
• [56] For these reasons, I find that it would be manifestly unjust to order you to serve the sentence of 14 years’ imprisonment without parole pursuant to s 86D(3). I would not impose a minimum period of imprisonment as I consider that the maximum term of 14 years’ imprisonment would meet the sentencing objectives referred to in s 86(2) of the Sentencing Act. The effect of an order made pursuant to s 86D(3) that it would be manifestly unjust for you to serve the 14 year sentence without parole, would be that pursuant to s 84(1) of the Parole Act you would become eligible for parole after serving one-third of the sentence, with the result as I have said that you would become eligible for parole after serving approximately four and years and eight months of the 14 year sentence.

Would a sentence of 14 years’ imprisonment amount to a breach of s 9 of the New Zealand Bill of Rights Act?

• [57] The next stage of the sentencing analysis requires me to determine whether sentencing you to 14 years’ imprisonment under s 86D(2) of the Sentencing Act, the maximum term prescribed for the offence of wounding with intent to cause grievous bodily harm, would breach s 9 of the Bill of Rights.

• [58] Section 9 of the Bill of Rights provides that “[e]veryone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.”²⁶

• [59] A majority of the Supreme Court in Fitzgerald v R held that where a sentence imposed pursuant to s 86D(2) of the Sentencing Act is so disproportionately severe that it breaches s 9 of the Bill of Rights, then the defendant should be sentenced in accordance with ordinary sentencing principles.²⁷ There is a “high threshold” to establishing that a sentence is disproportionately severe for the purposes of s 9.²⁸ Such occasions will be rare.²⁹

• [60] Chief Justice Winkelmann commented that in order for a sentence to breach s 9 it would need to be “so out of proportion to the particular circumstances as to cause

²⁶ New Zealand Bill of Rights Act 1990, s 9.

²⁷ Fitzgerald, above n 3, at [231] per O’Regan and Arnold JJ and [252] per Glazebrook J.

²⁸ At [79] per Winkelmann CJ, [230] per O’Regan and Arnold JJ and [240] per Glazebrook J.

²⁹ At [219] per O’Regan and Arnold JJ and [245] per Glazebrook J.

shock and revulsion”, “so excessive as to outrage standards of decency” or “so severe as to shock the national conscience”.³⁰ Justices O’Regan and Arnold similarly observed that “a sentence which is simply severe, disproportionate or manifestly excessive would not meet the test”.³¹ Justice Glazebrook agreed with the reasons given by Winkelmann CJ and O’Regan and Arnold JJ, stating that a sentence which breaches s 9 would be “one that is so out of proportion in the circumstances of the case that it would shock the conscience of New Zealanders”.³²

• [61] Distinguishing between a sentence that is merely disproportionate and a sentence which is so disproportionate as to shock the conscience of New Zealanders is a difficult exercise.³³ The Supreme Court of Canada in R v Smith observed that in assessing whether a sentence is grossly disproportionate, it may be helpful to consider “whether the punishment is necessary to achieve a valid penal purpose” and “whether it is founded on recognized sentencing principles”.³⁴ It is also necessary to consider the effect of the sentence actually imposed,³⁵ including whether and when the defendant may be eligible for parole.³⁶

• [62] In a more recent decision, that of Matara v R, the Court of Appeal observed that in practice, experience since Fitzgerald suggests that such cases are not necessarily rare.³⁷ The Court of Appeal said that:
  • [73] ... Third strike sentencing is capable of producing grossly disproportionate outcomes whenever the otherwise appropriate sentence for the index offending is a fraction of the maximum penalty. ...

• [74] In the present case we consider that denial of parole for an additional six years is grossly disproportionate to the circumstances, especially having regard to Mr Matara’s mental illness and psychosis at the time of [the] offending. The loss of opportunity for rehabilitation and release — the loss of

30. At [79] referring to excerpts from Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [172], [174] and [289] respectively.

³¹ Fitzgerald, above n 3, at [161].

³² At [239].

³³ Phillips v R [2021] NZCA 651, (2021) 12 HRNZ 904 at [22].

³⁴ R v Smith [1987] 1 SCR 1045 at 1074 (at [57] of online version).

³⁵ At 1073 (at [56] of online version).

³⁶ See Phillips, above n 33, at [36]; and Smith, above n 34, at 1098–1099 (at [95] of online version) per McIntyre J dissenting. I note that in Phillips the appellant was serving a short-term sentence of imprisonment so would be automatically entitled to release after serving half of that sentence pursuant to s 86 of the Parole Act 2002.

³⁷ Matara v R [2021] NZCA 692, (2021) 12 HRNZ 944 at [73].

hope — for a period two and a half times what would otherwise be justified is both exceptionally harsh and without rational justification.

• [63] The Court of Appeal in Phillips v R identified three factors as playing a particularly significant role in this assessment that I must make:³⁸

(a) Any difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2).

(b) The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence imposed pursuant to s 86D(2). This may involve more than simply the multiplicative difference between the two sentences, and should take into account the actual difference in years between the sentence that would be imposed under the three strikes regime, and that which would otherwise have been imposed but for the three strikes regime.

(c) The nature of the offending including an assessment of whether or not the defendant is plainly an inadvertent or unforeseen casualty of the three strikes regime.

• [64] First, the nature of the sentence that would otherwise have been imposed upon you. Both the “but for” sentence of five years and two months’ imprisonment and the three strikes sentence of 14 years’ imprisonment are sentences of imprisonment, and so the nature of that sentence is the same as the sentence which would be imposed under the three strikes regime. This is not a case like Fitzgerald where, in all likelihood, a non-custodial sentence would have been imposed under ordinary sentencing principles. The appellant in Fitzgerald suffered from such longstanding and serious mental health issues that a majority in the Court of Appeal thought that he “should be receiving care and support in an appropriate facility, and not serving a lengthy term of imprisonment”.³⁹ The same cannot be said in your case. A sentence of imprisonment is justified and indeed necessary to meet the principles and purposes

³⁸ Phillips, above n 33, at [28].

³⁹ Fitzgerald v R [2020] NZCA 292 at [43].

of sentencing such as the need to deter and denounce your conduct, to hold you accountable for the offending and to protect the community.⁴⁰

• [65] Secondly, comparing the difference between the prison sentence that would have been imposed but for the three strikes regime, and the prison sentence imposed pursuant to s 86D(2) shows there to be a considerable difference between them. As indicated earlier, the sentence that would have been imposed but for the three strikes regime is one of five years and two months’ imprisonment. Under the three strikes regime you would be sentenced to 14 years’ imprisonment. That is a difference of approximately 2.7 times the “but for” sentence of five years and two months’ imprisonment on a multiplicative basis, or nearly nine years (eight years and 10 months). That is of course a significant difference and the sentence imposed under the three strikes regime would be approaching three times the “but for” sentence. As the Court of Appeal noted in Phillips this factor should take the actual difference in years between the two sentences into account. Moreover, although the appellants in Fitzgerald and Phillips would have served sentences of five times and 5.6 times longer under the three strikes regime, than the “but for” sentences imposed,⁴¹ I consider that when the focus of comparison is made in terms of time (here well over eight years, nearly nine) a more realistic comparison is being made as regards the severity of the punishment that would be imposed by the sentence.

• [66] Another basis of comparison is that of eligibility for parole. As I have said, under the “but for” sentence of five years and two months I would impose, I would also impose a minimum period of imprisonment of half the sentence, meaning you would become eligible for parole after two years, and seven months of that sentence.

• [67] Again, as I have said, if you were sentenced to 14 years’ imprisonment pursuant to s 86D(2) of the Sentencing Act, I would not make an order that you serve that sentence without parole as I consider it would be manifestly unjust to do so.⁴² I also consider that it would not be necessary to impose a minimum period of imprisonment under s 86. That means that if you were sentenced to 14 years’ imprisonment, you

⁴⁰ Sentencing Act, ss 7–8.

⁴¹ Phillips, above n 33, at [35]–[36].

⁴² Sentencing Act, s 86D(3).

would become eligible for parole after serving one-third of the length of that sentence or after four years and eight months’ imprisonment.⁴³ The difference between the sentences in terms of when you would be eligible for parole is therefore two years and one month.

• [68] While the disparity between the two eligibility for parole scenarios is not as significant in terms of duration as the over eight years difference in the actual sentences, the earliest eligibility for parole in the case of the 14 year sentence is still nearly twice that of the “but for” sentence. Moreover, it is difficult if not impossible for the Court to make comparative assessments based on a reliable prediction of when a prisoner’s application for release on parole may be approved by the Parole Board when there are so many unknown factors and considerations that will ultimately inform that decision, including the availability of suitable rehabilitation programmes for the prisoner to demonstrate their readiness for release on parole.

• [69] Thirdly, the nature of your offending is undoubtedly serious. It involved the use of considerable violence against the complainant in circumstances where you repeatedly punched and kicked her head, face and body as she begged you to stop. As I have said, it was both unprovoked and gratuitous. You caused such serious injuries that she was hospitalised, as I have said. There is also the additional factor that she was your partner and the mother of your daughter against whom you have a history of violent offending, that is against the complainant. Indeed, she was the victim of the violent offending for which you received your first strike warning. This pattern of serious violence, particularly in the context of intimate partner violence and the escalating offending, necessitates a stern response.

• [70] In these circumstances I consider that you cannot be regarded as being an “inadvertent and unforeseen causality of the three strikes regime”.⁴⁴ You have a history of violent offending including that dealt with in the Youth Court and the Crown says that you are currently facing additional charges for violent offending against the complainant on another occasion. While I acknowledge however that you have not

⁴³ Parole Act, s 84(1).

⁴⁴ Phillips, above n 33, at [28(c)].

previously been sentenced to a term of imprisonment,⁴⁵ that appears to have been largely because of your youth, and because you have been afforded on previous occasions opportunities to “turn your life around”.⁴⁶ You have unfortunately not taken those opportunities. I note that your offending against the complainant on this occasion took place while you were serving the sentence of home detention you had received after your second strike offence.

• [71] The Supreme Court in Fitzgerald observed that it will be rare that a sentence is disproportionality severe such that there has been a breach of s 9 of the Bill of Rights.⁴⁷ However, as observed by the Court of Appeal in Matara, third strike sentencing is capable of producing grossly disproportionate outcomes whenever the otherwise appropriate sentence for the index offending is a fraction of the maximum penalty.⁴⁸

• [72] A further principle which must inform my decision is the general desirability of consistency in sentencing outcomes.⁴⁹ Two recent decisions under the three strikes regime warrant particular discussion. In R v Morgan, the defendant was convicted on a charge of detention for the purposes of sexual connection carrying a maximum penalty of 14 years’ imprisonment.⁵⁰ It was his third strike offence.⁵¹ However, Mander J considered that sentencing the defendant to the maximum term of 14 years’ imprisonment would amount to a breach of s 9 of the Bill of Rights.⁵² He described the disparity between a but for sentence of six years and a maximum sentence of 14 years as “grossly disparate”,⁵³ and accordingly sentenced the defendant in accordance with ordinary sentencing principles to a term of six years’ imprisonment with a minimum period of imprisonment of four years.

⁴⁵ See Fitzgerald, above n 3, at [219] per O’Regan and Arnold JJ.

⁴⁶ New Zealand Police v Tikena-Stuchbery [2018] NZDC 23516 at [16]. I note that the sentencing Judge in respect of Mr Tikena-Stuchbery’s first strike offending himself noted that the sentence imposed for the offending was “very low” (at [13]).

⁴⁷ Fitzgerald, above n 3, at [219] per O’Regan and Arnold JJ and [245] per Glazebrook J.

⁴⁸ Matara, above n 37, at [73].

⁴⁹ Sentencing Act, s 8(e).

⁵⁰ R v Morgan [2022] NZHC 790.

⁵¹ At [7].

⁵² At [39].

⁵³ At [37].

• [73] In R v Lloyd, the defendant was facing a raft of charges with the lead offence being the use of a firearm against a law enforcement officer.⁵⁴ It was his third strike offence, and as it was his third strike offence he was due to be sentenced to the maximum term of 14 years’ imprisonment under the three strikes regime. A sentence of 14 years’ imprisonment was “approaching triple” the length of the sentence he would have received but for the three strikes regime, namely a sentence of five years and one month’s imprisonment.⁵⁵ It would have resulted in the defendant potentially spending a further 10 years in prison. Justice Fitzgerald considered that such a sentence would amount to a breach of s 9 of the Bill of Rights.⁵⁶

• [74] In your case Mr Tikena-Stuchbery, notwithstanding the gravity of your offending and the fact that it occurred after you had been warned that the consequence of committing a further serious violence offence would be that you would be liable to be sentenced to the maximum penalty provided for the offence, I have concluded that it would breach the provisions of s 9 of the Bill of Rights to sentence you to serve the maximum penalty of 14 years’ imprisonment for your offending on 28 November 2020 and the offence of wounding with intent to cause grievous bodily harm. I consider that the imposition of a sentence that would be eight years and 10 months more than the sentence you would have received but for the three strikes regime would be a disproportionately severe punishment to impose on you. At your age of 22 years old, a 14 year sentence would represent over half of your life, and would be inconsistent with the purposes of sentencing and the principles of sentencing prescribed in the Sentencing Act, by virtue of being grossly disproportionate to the standard sentence you would have received but for the three strikes regime, and thereby grossly more than would ordinarily be considered necessary to hold you accountable for your offending and the harm you have done to the complainant and the community as well as being grossly more than necessary to achieve the other purposes of sentencing set out in the Sentencing Act. In my view such a sentence would have a disproportionately severe and crushing effect on you and would fail to take any account of assisting your rehabilitation and reintegration into the community following the serving of the sentence to be imposed.

⁵⁴ R v Lloyd [2022] NZHC 1044.

⁵⁵ At [79] (emphasis removed).

⁵⁶ At [82].

• [75] Furthermore, in my view the imposition of a 14 year sentence in these circumstances would be “so excessive as to outrage standards of decency^”57 and be so out of proportion to what would otherwise be the condign sentence for your offending, as to shock the conscience of New Zealanders.⁵⁸

• [76] I will therefore sentence you in accordance with the normal sentencing principles and impose the sentence I have described as being the “but for” sentence of five years and two months’ imprisonment. I will also impose a minimum term of imprisonment, being half of the sentence I shall impose. As regards the representative charge of assault on a person in a family relationship, I shall sentence you to 12 months’ imprisonment to be served concurrently with the sentence I impose on the index offence.

• [77] Mr Tikena-Stuchbery, would you stand please.

• [78] Mr Tikena-Stuchbery, your letter to the Court and your apology to the complainant show that you may at last be developing an insight into your offending and be motivated to change your life for the better. You have a chance to do so, and at your age you still have a long life ahead of you to show that you are capable of living a settled and productive life out of prison and away from crime and those people who you associate with, or could associate with, and who will drag you down with them. It will take an enormous effort on your part to break away from their negative influences, and to address the underlying causes of your anger and violent reactive behaviour and forge a life for yourself that is worthwhile and fulfilling. No one else can do this for you. You have to be focussed and committed. You have to set some realistic goals and get underway by setting out to achieve them. The first step is taking full responsibility for your actions, and engaging in a positive manner with the rehabilitative courses offered to you in prison in order to address the anger related and other issues that you have and that you will need to resolve in order to live and function within the community in the future.

⁵⁷ Fitzgerald, above n 3, at [79] per Winkelmann CJ.

⁵⁸ At [239] per Glazebrook J.

• [79] The sentence I will shortly impose is such as to enable you to see and plan a future. The rest is up to you.

Sentence

• [80] On the charge of wounding with intent to cause grievous bodily harm I sentence you to five years and two months’ imprisonment.

• [81] I make an order pursuant to s 86(1) of the Sentencing Act and impose a minimum term of imprisonment of half of the sentence of five years and two months’ imposed on the charge of wounding with intent to cause grievous bodily harm.

• [82] On the representative charge of assault on a person in a [family] relationship, you are sentenced to 12 months’ imprisonment to be served concurrently with the sentence of five years and two months’ imprisonment on the index offence.

• [83] I am satisfied that a protection order is necessary for the protection of the complainant who is the victim of your offending and I accordingly make a protection order in relation to the complainant pursuant to s 123B(2)(a) of the Sentencing Act 2002.

• [84] You may stand down.

Paul Davison J