The appeal is allowed.
The sentence of imprisonment for wounding with intent to cause grievous bodily harm of five and a half years is quashed, as is the minimum period of imprisonment. A sentence of imprisonment of four years, eight months is substituted, with no minimum period of imprisonment.

REASONS OF THE COURT
(Given by Keane J)

[1] On 28 April 2010 Colin Kauwhata was sentenced in the District Court, Hamilton, for wounding his wife with intent to cause her grievous bodily harm. Judge Burnett imposed on him a sentence of five and a half years imprisonment and a two-thirds minimum non-parole period. For a related breach of a protection order, she sentenced him concurrently to four months imprisonment.[1]
[2] On this appeal Mr Kauwhata contends that the sentence was in two ways manifestly excessive. The sentence of imprisonment itself, he contends, was excessive because the Judge took too high a starting point for his lead offence. The minimum term imposed, he contends also, was unwarranted.
[3] Mr Kauwhata pleaded guilty to both offences on 17 February 2010, on his fifth appearance, having intimated his plea the week before, on a summary of facts prepared by the police. He was sentenced by the Judge on a much more complete statement of facts supplied by the Crown on 25 April, three days before sentence.
[4] Mr Kauwhata did not challenge the accuracy of that summary, but it invited aggravating inferences not contained in the original summary. We question whether, after a plea has been entered, the Crown can introduce aggravating factors before sentence in the way that occurred here. Because, however, these factors were undisputed on sentence we have no call to take that any further.

Crown summary

[5] This offending happened, the Crown summary narrates, some five weeks after Mrs Kauwhata had left the home accompanied by those of their children and grandchildren then living with them. Mr Kauwhata's alcoholism had proved increasingly destructive. There had been an incident, it seems. What that incident involved the summary does not say.
[6] The incident may have been the basis on which Mrs Kauwhata almost immediately obtained a temporary protection order. After that order was served on Mr Kauwhata on 18 December 2009, the summary narrates, he told a neighbour, several times, he wanted to kill Mrs Kauwhata. She was unaware of this and remained in contact with Mr Kauwhata. She encouraged him to undergo alcohol counselling.
[7] On New Year's Day 2010, the summary says, Mrs Kauwhata arrived to collect a barbeque and gas bottle Mr Kauwhata had offered to lend her, unaware that he had been begun drinking that day and had again told his neighbour that he wanted to kill her. And so, after he loaded the barbeque and bottle into her car and invited her into the house for coffee, she was hesitant but accepted.
[8] Once in the kitchen, the summary narrates, Mr Kauwhata put on the jug and then, without warning, grabbed Mrs Kauwhata from behind by the hair, pulled her backwards and hit her in the face. She ended on the floor and he stood over her. He had in his hand, she saw, a filleting knife, perhaps 12 inches long. He swore at her for leaving the home with the children, and for contacting the police. He said he was going to slit her throat.
[9] Mr Kauwhata then, the summary says, set about making good his threat. He stabbed Mrs Kauwhata in the chest and attempted several times to stab her in the neck. In fear of her life she struggled and fended him off, but he made contact twice. One of those blows was deflected by Mrs Kauwhata's necklace, which broke, and she managed to free herself and fled. Mrs Kauwhata said she suffered three cuts to her right shoulder requiring stitches, small cuts to her left hand, bruising to her chest, face and arms, a loose top front tooth and a sore neck.
[10] Mr Kauwhata was arrested shortly after. The police took possession of the knife. Mr Kauwhata admitted to stabbing Mrs Kauwhata. He had, he said, “lost it” when she arrived. He denied telling her he was going to slit her throat. He admitted he had sworn at her and said he would “smash her”.

Sentence under appeal

[11] This was violence within the home, the Judge said, with aggravating features. Mr Kauwhata acted with premeditation. He took advantage of Mrs Kauwhata's belief that she could enter the home believing that she was safe. He had the benefit of surprise. He was stronger than she was and he had a weapon, “a very lethal weapon with a 12 inch blade”.[2]
[12] Mr Kauwhata's offence was characterised, the Judge said, by extreme violence. He grabbed Mrs Kauwhata's hair and punched her, and effectively disabled her. He stabbed her to the chest and neck repeatedly. One blow, certainly, was deflected by the necklace. It was fortunate, the Judge said, he did not inflict a fatal injury.
[13] The Judge did not accept, as Mr Kauwhata's counsel submitted, that Mr Kauwhata's offence lay at the top of band one R v Taueki,[3] which attracts starting points within the range three – six years, or at the bottom of band two, which attracts overlapping starting points in the range five – ten years. She did not accept that Mr Kauwhata's offence was unpremeditated and without precedent, or that he briefly snapped. She saw his offence as lying towards the top of band two.
[14] Mr Kauwhata, the Judge said, had been saying for some weeks that he intended to kill his wife. He exploited her trust and her vulnerability and acted in breach of the protection order. The situation was life threatening. Though the offence had involved no lasting injury, it had that potential. The Judge relied on R v Williams,[4] holding that Mr Kauwhata’s offending was more serious requiring a higher starting point.
[15] Taking into account the breach of the protection order for which she imposed a concurrent four month sentence, the Judge took a starting point in the range eight – nine years, without being more specific. She reduced that by one-third on account of Mr Kauwhata's guilty plea. She imposed a sentence of five and a half years imprisonment. Her actual starting point must have been eight years, three months.

Starting point

[16] The Judge was, we consider, fully entitled, when fixing her starting point, to characterise Mr Kauwhata's offence as premeditated. He had spoken to his neighbour a number of times about his desire to kill Mrs Kauwhata. He had invited her to the house on the pretext of picking up the barbeque. Then he invited her inside only to attack her immediately with the knife that was ready to hand.
[17] The Judge was equally entitled, we consider, to characterise Mr Kauwhata's offence as one involving an intent to cause, at the least, serious injury to Mrs Kauwhata. He attempted to stab her several times, first in the chest and then the neck, and the fact that she escaped serious injury was fortuitous. Mrs Kauwhata managed to deflect most of his blows. She was saved in one instance by her greenstone pendant.
[18] What the Judge did not do, however, is set Mr Kauwhata's offending against the contrast this Court made in Taueki between domestic violence within band one and then within band two;[5] and that, we consider, led the Judge to take too high a starting point for Mr Kauwhata's offence.
[19] Band one, the Court said, was reserved for “offending involving violence at the lower end of the spectrum”.[6] It was not appropriate, the Court said, for offences of “extreme violence or violence which is actually life threatening”.[7] Within this band the Court set what it described as a “domestic assault”:[8]

A domestic assault by an offender on his or her spouse or partner ... which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

[20] Band two, the Court said, was reserved for the “premeditated domestic assault” where serious and lasting injury results:[9]

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. When the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[21] In setting these bands the Court emphasised the need for flexibility. So, it said, “where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that”.[10] What is called for, the Court said, is a starting point that “properly reflects the culpability inherent in the offending”.[11] Mental illness or disorder, the Court added, will not be invariably mitigating.[12] If the offending is obsessive that may indeed require a deterrent or protective sentence to be imposed.[13]
[22] Even though Mr Kauwhata's offence was premeditated and involved the use of a weapon it still, notionally at least, lay within band one because no serious injury was suffered by Mrs Kauwhata. Conversely, it more naturally lay within band two because Mr Kauwhata not only had clear intent to cause Mrs Kauwhata serious injury, he set about doing that. It was sheerly fortuitous that Mr Kauwhata did not inflict the serious injury he evidently intended.
[23] In principle, we accept, it was open to the Judge to locate Mr Kauwhata's offence within band two even though the injuries inflicted were not serious or lasting, more especially given that she imposed a concurrent sentence for the related breach of the protection order. But the Judge went too far, we consider, in setting the offence at the top of band two. A starting point open to her would, we consider, have been seven years.

Minimum term

[24] The Judge imposed a minimum two-thirds non-parole period under s 86 of the Sentencing Act 2002 because, as she said, this was a case of domestic violence in which Mrs Kauwhata could have died and the statutory minimum was not sufficient to hold Mr Kauwhata accountable, to denounce his conduct and to deter; and in principle that minimum sentence was open.
[25] In Taueki this Court said:[14]

In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.

[26] A two-thirds minimum sentence ought not to be imposed, the Court said, without carefully assessing the circumstances of the offence or the offender but equally if that analysis calls for a two-thirds minimum to be imposed it should be.[15] There was no presumption or inhibition against it; and the Judge singled out one factor as pivotal. The issue on this aspect of the appeal reduces to whether that factor had the significance the Judge gave it.
[27] Mr Kauwhata, she said, on this occasion, and earlier in Mrs Kauwhata's experience, became “another person when drunk”.[16] Moreover, the Judge held, he knew that he had that tendency. In this instance, the Judge said, he not merely invited Mrs Kauwhata to the house, “he resorted to becoming, as the victim would describe, another person”.[17] Evidently, the Judge concluded that Mr Kauwhata became drunk deliberately in order to inflict the violence he was intent on.
[28] The Judge considered a minimum term was called for beyond the statutory minimum, to ensure that Mr Kauwhata ceased to be prey to “his feelings of hurt or abandonment”,[18] and did not relapse. Her primary purpose in imposing the minimum term was therefore to protect Mrs Kauwhata and perhaps other members of the family. To that she added, however, that it was also necessary for the purposes s 86 identifies of holding the offender accountable, denunciation and deterrence.
[29] In this, we consider, the Judge can have taken no account of the fact that Mr Kauwhata had few previous convictions and no history of domestic violence. Or that he had pleaded early and made full admissions. Or that he had expressed remorse and shame. Or that he had been assessed to be “highly motivated to address his problem with alcohol” and as a “low risk offender”. Or that his wife continued to support him.
[30] All of these factors, we consider, put in question the Judge's conclusion that a minimum sentence above the statutory level was required to hold Mr Kauwhata accountable, to denounce and to deter. They point rather, we consider, to the opposite conclusion. A minimum term above the statutory minimum, in particular a two-thirds minimum, was not required to accomplish those statutory purposes.

Result

[31] We allow the appeal. The sentence of five and a half years imprisonment, and the two-thirds minimum term, imposed for the offence of wounding with intent to cause grievous bodily harm, is quashed. Mr Kauwhata is sentenced for that offence to imprisonment for four years, eight months without any minimum term. The concurrent sentence for the related breach of the protection order will remain.

Solicitors:
Crown Solicitor, Auckland for Respondent

[1] R v Kauwhata DC Hamilton CRI-2010-019-20, 28 April 2010.
[2] At [6].
[3] R v Taueki [2005] 3 NZLR 372 (CA).
[4] R v Williams HC Tauranga CRI-2005-086-945, 31 July 2006.
[5] At [37] and [39].
[6] At [36].
[7] Ibid.
[8] At [37].
[9] At [39].
[10] At [42].
[11] Ibid.
[12] At [45].
[13] Ibid.
[14] At [57].
[15] At [58].
[16] At [13].
[17] Ibid.
[18] Ibid.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/451.html