Tiplady-Koroheke v R [2012] NZCA 477 (17 October 2012)

Last Updated: 23 October 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA518/2012 [2012] NZCA 477

BETWEEN TYRON KARLOS TIPLADY-KOROHEKE Appellant

AND THE QUEEN Respondent

Hearing: 9 October 2012

Court: Ellen France, Ronald Young and Andrews JJ

Counsel: S A Saunderson-Warner for Appellant F E Cleary for Respondent

Judgment: 17 October 2012 at 10 am

JUDGMENT OF THE COURT

1. Order made extending the time for appeal.
2. The appeal against sentence is allowed.

100. The sentence of two years’ imprisonment is quashed and a sentence of one year and nine months’ imprisonment imposed.

4. The special conditions imposed by the District Court remain.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] The appellant, Mr Tiplady-Koroheke and five other men were walking north on George Street in Dunedin on 23 September 2011. Another group of six males were play fighting amongst themselves on the corner of the Octagon and George Street. Without provocation one of the appellant’s associates struck one of the other group who was lying on the footpath. The appellant then became involved. He assaulted three separate victims. He was charged with three counts of assault with intent to injure. Following a sentence indication he pleaded guilty to one charge of common assault and two charges of assault with intent to injure. He was sentenced to two years’ imprisonment on the assault with intent to injure charges and a concurrent term of six months’ imprisonment for the assault charge.
[2] He appeals against this sentence. The grounds of appeal are that the starting point was too high, the discount given by the Judge for mitigating factors too small and that home detention should have been imposed.
[3] The appeal was filed out of time. The sentence was imposed on 16 July 2012 and the appeal filed on 21 August 2012. This was eight days late. Given the modest delay in filing the appeal, we extend the time to appeal.

Background facts

[4] After the appellant’s associate struck a victim lying on the footpath, the appellant then punched the first victim in the face knocking him to the ground. He then stood over the victim and stomped on his upper body. The victim regained his feet and went to protect one of his friends who was lying unconscious on the footpath following the earlier assault. This victim was punched in the face and knocked to the ground again by the appellant.
[5] The appellant then punched a second victim who was also trying to help his unconscious friend. As a result of the punch, the victim stumbled back and the appellant kicked and punched him to the ground. While this victim was on the ground the appellant punched him in the face and then stomped with his right foot and then his left foot on the victim’s head.
[6] Finally, the appellant ran at the third victim who had his back to the appellant. He punched the victim in the head, grabbed him and threw him to the ground. The appellant then stomped on the victim’s chest. As the victim got up the appellant again kicked out at the victim as he was leaving the area.

District Court decision

[7] Judge Crosbie at a sentence indication hearing gave a sentence indication of “not more than two years’ imprisonment, more likely 18 months to two years and no indication of home detention”.[1] The Judge said that ordinarily a sentence of imprisonment would be imposed but he could be persuaded otherwise.
[8] The appellant accepted the sentence indication and the matter later came before Judge Crosbie for sentencing.[2] He said that unprovoked assaults and serious assaults in central Dunedin had become common. He referred to the relevant Court of Appeal authorities of R v Taueki[3] and R v Harris[4] and identified these features as relevant to sentence: there were three victims; the appellant was part of a larger and violent group; there were attacks to the head of the victims using the appellant’s feet; the attacks continued after the victims were on the ground; and one of the attacks was when a victim was retreating.
[9] The Judge said he considered the least restrictive outcome, assessing the offending overall, was a starting sentence of two years’ imprisonment. He uplifted that start sentence for the appellant’s previous convictions which he said occurred in 2009 and 2004 by six months. From that 30 months’ imprisonment he deducted 20 per cent for the appellant’s guilty plea reducing the final sentence to two years’ imprisonment. The Judge was not prepared to impose a sentence of home detention. He considered that it would not be a sufficiently deterrent sentence and, in view of the severity of the attack, and the appellant’s past, it would “be the wrong message to send”.[5]
[10] In addition to the two year sentence of imprisonment, the Judge imposed special post release conditions that the appellant would undertake treatment, counselling, a programme or intervention as may be directed for violence.

Start sentence

[11] Counsel for the appellant referred to the decision of this Court in Bennett v R.[6] She submitted that the facts in that case were more serious than the current case. Further, in Bennett, the appellant faced two charges of injuring with intent to injure and one of assault with intent to injure. The maximum penalties, therefore, for some of the offending in Bennett were higher than the current case.[7] This Court referred to the two year imprisonment starting sentence in that case as on the lenient side.[8]
[12] The appellant’s submission was that two of the charges he faced, assault with intent to injure, had a maximum penalty of three years’ imprisonment. Thus, his start sentence was effectively two thirds of the maximum penalty available. In Bennett, the starting sentence was only 40 per cent of the available maximum. This supported the submission that the starting sentence here was too high.
[13] Further, when the sentence indication was given the appellant faced three charges of assault with intent to injure. By the time of sentencing one of those charges had been reduced to common assault, under s 196 of the Crimes Act, with a maximum penalty of one year’s imprisonment. A further deduction in the indicated sentence was, therefore, appropriate. The appellant said a proper start sentence was 18 months’ imprisonment.
[14] We are satisfied that the Judge’s start sentence of two years’ imprisonment for this offending was within the range available to him. As the Judge observed this was serious unprovoked violence involving multiple attackers and three victims. The appellant’s actions were serious. He knocked each victim to the ground. He then attacked each of the victims while they were on the ground. With respect to one of the victims he stomped on their head. With respect to the others, he stomped on their upper body. With respect to one of the victims the appellant punched him in the head when he had his back to him. While the injuries suffered by the three victims were not serious, the violence of the attack by the appellant was serious.
[15] We do not think this Court’s observations in Bennett nor the facts in Bennett assist the appellant. In Bennett the offending also involved three victims. At the end of a party the first victim walked back to his vehicle to find the appellant and others standing around it. A verbal altercation followed. The appellant then punched the victim in the head, which acted as a catalyst for others to join in. The victim was knocked to the ground and was repeatedly kicked in the head and stomach. The second victim attempted to intervene but was elbowed in the face and punched to the ground. The third victim tried to intervene to protect his wife, the second victim. He was also punched and repeatedly kicked whilst on the ground, with one offender stamping on his face.
[16] This Court said that the two year start sentence in Bennett was lenient.[9] The injuries in Bennett were more serious than the current case. The first victim suffered a broken eye socket, with severe bruising to his body and face. The second victim also suffered bruising to her body and face and the third victim sustained broken ribs, and the imprint of the sole of a shoe on his severely swollen cheek. Here, the appellant also attacked three victims and his actions included stomping on victims while they were on the ground. There was a similar level of violence. A lenient start sentence of two years’ imprisonment in Bennett is consistent with the two year starting point in this case.

Discount for mitigation

[17] Counsel for the appellant submits that the appellant should have received discounts for mitigating factors beyond the 20 per cent given for his guilty plea. It is submitted a further discount should have been given to account for the fact that he had been in employment for a period of three months prior to this offending and secondly, that he had arranged for and had attended sessions with a Maori health provider relating to his capacity for violence.
[18] Mr Tiplady-Koroheke is to be commended for his interest in rehabilitation and in attending the Maori health provider counselling sessions. At the time of sentencing the appellant had attended two sessions. However, we do not consider that the fact that the appellant had been in employment for three months and that he had begun considering obtaining help for his violent offending justified any reduction in the start sentence.
[19] The Judge gave the appellant a 20 per cent deduction from that start sentence for his guilty plea. That was a generous allowance. The appellant appears to have been arrested and charged shortly after the offending in September 2011. An indictment was filed in the District Court at Dunedin on 19 March 2012 and a sentence indication sought on 7 May 2012. The appellant accepted the sentence indication by 11 May 2012. That means his plea, therefore, came approximately eight months after the offending. The probability of conviction was high given much of the attack by the appellant was recorded on CCTV footage.
[20] Mr Tiplady-Koroheke has appeared in the courts regularly since 2001. He has convictions for violent offending in 2004 and for a very serious violent offending in 2006,[10] for which he was imprisoned for three years. He was subsequently released but recalled to prison in 2009 for offending which occurred whilst on parole. There is then this current offending.
[21] The 20 per cent discount given to the appellant was generous for his guilty plea and no other reduction for mitigation of sentence was required.

Uplift for previous convictions

[22] We raised with counsel for the appellant the appropriateness of the uplift given by the sentencing Judge for the appellant’s previous convictions. As we have noted, the appellant had two previous sets of convictions for violent offending. In 2004 he was convicted of common assault and fined. In 2006 he was convicted of three counts of wounding with intent to injure and sentenced to three years’ imprisonment. He was released on parole but recalled with respect to that sentence. The previous offending in 2006 was clearly very serious. And now the appellant has another three convictions for serious violence in 2012.
[23] This Court in Beckham v R said:[11]

The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.

[24] We would add that it is also important that there be some proportionality between the starting sentence and any uplift. Here, the proposed uplift of six months’ imprisonment on a start sentence of two years is a 25 per cent increase in the start sentence. We consider there was justification for an uplift for the past offending in 2006. In a period of six years, the appellant has now committed two serious groups of assaults. Public protection justifies an uplift. However, we consider an uplift of no more than three months’ imprisonment for his previous convictions is appropriate.
[25] This, therefore, reduces the start sentence to two years and three months’ imprisonment. Applying the 20 per cent discount means that the final sentence before consideration of home detention is one year and nine months’ imprisonment (rounding off the reduction in the appellant’s favour).

Home detention

[26] The appellant submitted that a sentence of home detention should have been imposed as the least restrictive sentence in the circumstances. In particular, the appellant said the following factors favoured home detention: no convictions for violent offending since 2006; a positive pre-sentence report recommending a community sentence; an offer to pay reparation; the attendance of two sessions with the Maori health provider; compliance with community based sentences more recently; stable employment; and risk of offending as medium.
[27] The approach of this Court to appeals against refusal to grant home detention was set out in R v James:[12]

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[28] We agree with the respondent that the Judge took into account all relevant factors and no error can be identified in his refusal to impose home detention. We also consider that the appropriate sentence was one of imprisonment rather than home detention.
[29] Firstly, and most importantly, the appellant’s recent criminal history indicates, as the probation report identified, a medium risk of re-offending and a high risk of harming others. The appellant now has six convictions for serious violence all committed relatively recently. The Judge had regard not only to these factors but also to those factors that may have favoured home detention. The Judge acknowledged the appellant’s employment and the fact that he had attended sessions at the Maori health provider. But he did not consider that those factors overwhelmed the clear need for deterrence, denunciation and accountability which in this case would only be met by a sentence of imprisonment.
[30] We agree. There is currently little in the appellant’s circumstances to convince that a rehabilitative sentence rather than a deterrent sentence is appropriate. We acknowledge, again, the efforts Mr Tiplady-Koroheke has made but these remain currently modest. They do not overcome the compelling reasons for a deterrent sentence.
[31] We, therefore, reject this ground of appeal alleging a sentence of home detention should have been imposed.

Summary

[32] We are satisfied that the uplift of six months’ imprisonment for the appellant’s previous offending was too great. We reduce that to three months. All other grounds of appeal are dismissed.

Result

[33] We quash the sentence of two years’ imprisonment and instead substitute a sentence of one year and nine months’ imprisonment. The special conditions imposed by the District Court remain. The other concurrent sentence of six months imprisonment stands.

Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent

---

[1] R v Tiplady-Koroheke DC Dunedin CRI-2011-012-5014, 7 May 2012 at [6].
[2] R v Tiplady-Koroheke DC Dunedin CRI-2011-012-5014, 16 July 2012.
[3] R v Taueki [2005] 3 NZLR 372 (CA).
[4] R v Harris [2008] NZCA 528.

[5] At [16].
[6] Bennett v R [2012] NZCA 173.

[7] Assault with intent to injure: maximum period of imprisonment three years, Crimes Act 1961, s 193; Injuring with intent to injure: maximum period of imprisonment five years, Crimes Act 1961, s 189(2).
[8] At [28].
[9] At [28].
[10] The sentencing Judge wrongly said this offending was in 2009.
[11] Beckham v R [2012] NZCA 290 at [84] citations omitted.
[12] R v James [2010] NZCA 206 (2010) 24 NZTC 24, 271 at [17] citations omitted.