Teriini v R [2013] NZCA 614 (4 December 2013)

Last Updated: 11 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA223/2013 [2013] NZCA 614
BETWEEN	KHAN TERIINI Applicant
AND	THE QUEEN Respondent

Hearing:	20 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	M J Phelps for Applicant B F Windley for Respondent
Judgment:	4 December 2013 at 4:00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Heath J)

[1] Mr Teriini applies for an extension of time to appeal against an effective end sentence of five years and three months imprisonment. The sentence was imposed in the District Court at Napier on 1 March 2013, following the entry of pleas of guilty to one count of indecent assault, one of injuring with intent to injure and one of attempting to pervert the course of justice.^[1] Mr Teriini was also given a first strike warning, under the “Three Strikes” regime.^[2]
[2] The Crown does not oppose an extension of time. That application is granted.

The facts

(a) Indecent assault

[3] At about 1.05 am on 22 May 2011, Mr Teriini was running along Eastbourne Street, in Hastings. The female complainant was walking in the opposite direction. She was extremely intoxicated. When they met, the complainant told Mr Teriini that she was disorientated and asked for help to get home. Mr Teriini walked with her towards Lyndon Road.
[4] Near the Hastings Art Gallery, Mr Teriini grabbed the complainant’s arm and pulled her into the library and art gallery grounds. Although the complainant tried to resist, she was too intoxicated to do so. Mr Teriini dragged her into an enclosed courtyard in the centre of the buildings. He then removed all the complainant’s clothes.
[5] Mr Teriini sucked the complainant’s left breast with his mouth. He then left the scene, leaving the complainant lying naked on the ground and in a distressed state. Fortunately, the complainant was able to dress herself and make her way to Lyndon Road. She was located there by friends and family who had been searching for her.
[6] The incident was reported to the police. Mr Teriini’s role as the offender was established by DNA testing, a specimen having been found on the complainant’s breast.

(b) Injuring with intent to injure

[7] On 4 September 2012, Mr Teriini was being held in custody at Hawkes Bay Regional Prison. He was being transported in a police prison van to the District Court at Hastings. Three other inmates travelled with him, one of whom was Mr Ngahuka-Edwards. He and Mr Teriini were known to each other.
[8] On arrival at the Court, Mr Teriini and Mr Ngahuka-Edwards were placed in separate cells. Mr Teriini is associated with one gang. Mr Ngahuka-Edwards found himself in a cell with a member of a rival gang. Mr Teriini directed Mr Ngahuka-Edwards to “waste” the rival gang member. He refused to do so.
[9] Later that day, Mr Ngahuka-Edwards and Mr Teriini were again together in the prison van. Mr Teriini asked whether Mr Ngahuka-Edwards remembered him. He confirmed that he did. Mr Teriini then punched Mr Ngahuka-Edwards twice to his face, with a closed fist. The blows were delivered with such force that he was rendered unconscious; his mandible bone and two wisdom teeth were broken. Mr Ngahuka-Edwards required surgery. A titanium plate was inserted into his jaw.

(c) Attempting to pervert the course of justice

[10] The assault had been witnessed by another prisoner, Mr Whitehead. On 26 September 2012, after Mr Ngahuka-Edwards complained to police, Mr Teriini telephoned Mr Whitehead’s daughter. He told her that he was going to court on a serious assault charge and directed her to make contact with her father to tell him not to speak to police. Mr Teriini told Mr Whitehead’s daughter that he would be calling her father as a witness, and that he should say that he saw nothing happen in the van.
[11] The daughter relayed Mr Teriini’s message to her father. Mr Teriini also took steps to deliver it directly. Notwithstanding the implicit threats, Mr Whitehead made it clear that he would not comply with Mr Teriini’s demands.

Sentencing in the District Court

[12] Judge Adeane took the view that the offending required cumulative sentences, with the end sentence being checked by reference to the totality principle.^[3]
[13] The Judge took the indecent assault charge as the lead offence for sentencing purposes. He regarded that offending as justifying a starting point of three years imprisonment.
[14] Judge Adeane then addressed the charge of injuring Mr Ngahuka-Edwards. The Judge characterised Mr Ngahuka-Edwards as a vulnerable victim, due to his confinement within police custody. The Judge also had regard to the significant injuries suffered. He considered that the offending fell within Band 2 of this Court’s decision in Nuku v R,^[4] and took a starting point of two years and six months imprisonment.
[15] On the charge of attempting to pervert the course of justice, the Judge adopted a starting point of 12 months imprisonment, describing the offending as “brazen and intimidatory”. That starting point was taken in “deference to totality”. For the same reason, Judge Adeane did not impose any uplift for previous convictions, involving violence and sexual offending.^[5]
[16] The only credit was one for the early guilty pleas. The pleas of guilty were entered on a staggered basis, both before and after committal for trial. The Judge chose a credit of 20 per cent to reflect that mitigating factor.^[6]
[17] In structuring the end sentence, the Judge imposed a term of imprisonment of two years and five months on the indecent assault charge, two years imprisonment on the injuring with intent charge and 10 months imprisonment on the attempting to pervert the course of justice charge, all to be served cumulatively.
[18] That left the end sentence as one of five years and three months imprisonment. The Judge was satisfied that the end sentence reflected the totality of the offending.

Competing submissions

[19] For Mr Teriini, Mr Phelps submitted that the total starting point adopted by the Judge was too high. In making that submission, Mr Phelps acknowledged that he could not challenge Judge Adeane’s classification of the injuring with intent offending as being within Band 2 of Nuku. So far as the excessive starting point was concerned, Mr Phelps relied primarily on totality considerations.
[20] Mr Phelps submitted that a full 25 per cent credit should have been given for guilty pleas. Although the pleas were staggered, two being entered pre-committal and one afterwards, Mr Phelps submitted that the absence of any real memory of what occurred when the sexual assault took place meant that it was understandable that a later plea was entered to that charge.
[21] Ms Windley, for the Crown, contended that the sentence imposed in the District Court was well within range. The starting point was, she submitted, in line with Nuku. In taking account of the credit to be given for the guilty pleas, Ms Windley submitted that the inevitability of conviction on the sexual assault, due to the DNA evidence, told against a full credit.

Analysis

[22] We agree with Judge Adeane that cumulative sentences were required. The offending was both of a different character and separated in time, place and circumstance.
[23] We also agree with the Judge’s view that the indecent assault charge was to be taken as the lead charge for sentencing purposes. The maximum penalty for such a charge is seven years imprisonment.^[7] The core element of the offending was the kissing of the complainant’s breast. However, there were a number of aggravating factors. It was against a vulnerable victim, at night. It involved the use of not inconsiderable physical force (including the dragging of a victim between 50 and 100 metres to a secluded spot), stripping the victim naked, and leaving her alone (still naked) after the offending was completed. Taking those aggravating factors into account, a starting point of three years imprisonment could not be said to be out of range.
[24] Nor do we consider that the starting point taken for the injuring charge can be challenged. The assault on Mr Ngahuka-Edwards was very serious. Aggravating factors included the vulnerability of the victim, attacking the head, and the serious injuries inflicted.^[8]
[25] The sentence on the attempting to pervert the course of justice charge took into account the totality principle, and the lack of any uplift for prior criminal history. Taken together, we see no reason to quarrel with the ultimate starting point of six years and six months imprisonment.
[26] Properly, the Judge applied the credit of 20 per cent for guilty pleas across the whole of the sentence imposed. In terms of Hessell v R, the strength of the prosecution case can be taken into account when a Judge determines what credit should be given for a guilty plea.^[9] In this case, conviction on all three charges after a defended hearing was almost inevitable.
[27] While 25 per cent is the upper limit for the credit, it is always a matter of judicial evaluation as to what credit should be given.^[10] While another Judge might have allowed a credit of more than 20 per cent, it was open to the sentencing Judge to choose that lower percentage.
[28] Even if we had been persuaded that there was some error in the calculation of the component parts of the sentence, we are satisfied that the end sentence was one that marked the totality of the offending adequately. It was not manifestly excessive.

Result

[29] The application to extend time to appeal is granted but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Teriini DC Napier CRI-2012-020-2055, 1 March 2013.

^[2] Sentencing Act 2002, ss 86A–86I.

^[3] Sentencing Act, ss 83–85.

^[4] Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

^[5] R v Teriini, above n 1, at [10].

^[6] At [11].

^[7] Crimes Act 1961, s 135.

^[8] See Nuku v R, above n 4, at [38(b)] and R v Taueki [2005] 3 NZLR 372 (CA) at [31(c), (e) and (i)].

^[9] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607at [74].

^[10] At [75].