The Queen v Werahiko [2008] NZCA 24 (25 February 2008)

Last Updated: 7 March 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA716/07

[2008] NZCA 24

THE QUEEN

v

MICHAEL UMANUI WERAHIKO

Hearing: 19 February 2008

Court: Robertson, Randerson and Ronald Young JJ

Counsel: P M Hardie for Appellant
M F Laracy for Crown

Judgment: 25 February 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 18 December 2007, the appellant was sentenced by Judge Weir in the District Court to 15 months’ imprisonment on one charge of car conversion and one of male assaults female. He pleaded guilty to the first charge immediately before trial and was found guilty by a jury on the second. He was acquitted of two charges of sexual offending against the female he assaulted.
[2] He appeals against sentence on the grounds that the sentencing Judge failed to articulate a starting point, and that the sentence was manifestly excessive. The appellant was released from prison in January 2008 (taking into account time spent in custody on remand), but nevertheless wishes to pursue his appeal.

Background facts

[3] The appellant and the victim of the assault had been in a relationship for approximately three years and were the parents of two young children, one of whom was a baby aged 20 months at the time of the offending. There had clearly been difficulties in the relationship from time to time but matters came to a head on 20 March 2007 when the appellant wilfully damaged the residential property in which the victim was living. He kicked in a door at the property, causing damage to the door and frame as well as damaging a garage with a crowbar. This led to the victim obtaining a protection order against the appellant on 22 March. The order was served on the appellant on 16 May.
[4] On 29 May 2007, while the appellant was on bail in respect of the wilful damage charge, the events which are the subject of this appeal occurred. The sentencing Judge described the events in the following way:

[5] On the 29th of May, you were at another address here in Rotorua with your new partner and what happened there was that her young son suffered an asthma attack of sufficient seriousness for an ambulance to be called and for him to be taken to hospital. The mother, your new girlfriend, went with her son in the ambulance to the hospital. She gave the keys to her car to you, and you told her that you would drive the car to the hospital to meet her there. She did not give you permission to use the car in any other way.

[6] Instead of going to the hospital, you went into town. You went to a pub and consumed a significant amount of alcohol. Instead of going to the hospital, you then went around to the property of the complainant. You entered the house through an unlocked front door and I am fully satisfied on the evidence that your attendance on that morning, late as it was, was entirely unwelcome. You are a physically large and strong person. The complainant certainly was not. She was lying on her bed with her 20 month old baby. She has two children to you. She asked you to leave, but you refused. You then lay down next to her. She got out of bed and attempted to put you out by pulling your arm and you responded by punching her several times to the back of the head, calling her a “slut” et cetera.

[5] The Judge recorded that the victim suffered bruising and lumps to her head, arms and legs. The victim impact statement concluded by saying that the victim still feared the appellant, despite the fact that the relationship was over.
[6] The Judge was rightly critical of the appellant taking the opportunity to visit his former partner and assault her rather than accompanying his new partner to the hospital as she had requested. He concluded that the appellant was a violent person, referring to a previous conviction for injuring with intent in 2002, for which the appellant received a sentence of six months imprisonment. We were informed from the Bar that this conviction related to an assault on a male. The Judge also noted that the appellant was convicted in February 2006 on another charge of wilful damage for which he was sentenced to two months imprisonment and ordered to pay reparation. Counsel were unaware of the circumstances of this conviction.
[7] The pre-sentence report noted that the appellant was 26 years of age and that he did not dispute the police summaries of fact. He accepted he had problems with anger, alcohol and relationships. The probation officer considered he had a medium risk of re-offending, but that he was motivated to address the problems identified. It was recommended the Court consider sentencing the appellant on the basis of the time he had already served in custody from the time of his arrest, on 29 May.
[8] The Judge concluded by saying:

I intend to apply the totality principle to the sentence, and on both of these counts, you are convicted and sentenced to fifteen (15) months imprisonment and you are to be released on the conditions referred to in the probation officer’s report and recommendations.

Grounds of appeal

[9] We agree it would have been preferable for the Judge to have articulated a starting point and approached sentencing in the way described by this Court in R v Taueki [2005] 3 NZLR 372. It would also have been desirable for the Judge to have indicated the components of the overall sentence attributable to each of the charges for which the appellant was sentenced.
[10] However, the sentencing exercise on this occasion did not call for an overly sophisticated approach and the substantive issue is whether, in all the circumstances, the total effective sentence was manifestly excessive. In that respect, Mr Hardie for the appellant referred to the decision of this Court in R v Reihana CA143/03 3 July 2003. This Court observed that there is no tariff for the offence of male assaults female, and that the circumstances of its commission and of offenders can vary greatly. Reference was made to decisions of this Court in which sentences had ranged from twelve months’ supervision to periods of imprisonment between three and twelve months in length. In Reihana itself, a sentence of 5 months was substituted for the original sentence of ten months.
[11] For the respondent, Ms Laracy correctly submitted that this Court in Reihana did not intend to set a tariff for the charge of male assaults female, nor did it suggest that 12 months’ imprisonment set a ceiling (the maximum sentence being two years’ imprisonment). Counsel drew attention to the aggravating features of the offending, and submitted the sentence was well justified.

Discussion

[12] Having reviewed the authorities and the facts of the present case, we are not persuaded that the sentence was excessive in the circumstances and certainly not manifestly excessive.
[13] In relation to the charge of male assaults female, we are satisfied that a sentence of 12 months imprisonment on that charge alone would have been entirely appropriate. While the victim of the assault had exhibited some ambivalence in her relationship with the appellant which might have justified him in believing initially that his visit would not be unwelcome, the circumstances of the offending were nevertheless serious. He entered the house through an unlocked front door at around 2 am. It was immediately made clear to him by the victim that he was not welcome and that he ought to leave. He refused to do so and during the altercation which followed, struck the victim six or seven times on the back of the head with considerable force. All this occurred in the presence of their 20-month-old baby. Their other young child was also in the house.
[14] This was against the background of the protection order served only two weeks before and occurred while the appellant was on bail for the wilful damage charge. The Judge was right to refer as well to the appellant’s previous conviction for violence.
[15] There were no mitigating circumstances to which any weight could reasonably have been given.
[16] The car conversion charge justified a further three months imprisonment which, in the circumstances, could have been appropriately added to the 12-month sentence on the male assaults female charge, to give a total of 15 months imprisonment. Although the taking of the motor vehicle without his new partner’s authority was part and parcel of the events of that evening, it constituted a separate and serious affront to the feelings of the second victim and warranted a cumulative sentence.

Result

[17] For these reasons, the appeal against sentence is dismissed.

Solicitors:
Jones Howden, Matamata, for Appellant
Crown Law Office, Wellington