Police v Akuhata [2016] NZDC 17526 (9 September 2016)

Last Updated: 26 February 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-055-000440 [2016] NZDC 17526

NEW ZEALAND POLICE

Prosecutor

v

JOHN AKUHATA

_Defendant

Hearing:	9 September 2016
Appearances:	Sergeant A Heffernan for the Prosecutor V Heather for the Defendant
Judgment:	9 September 2016

_{NOTES OF JUDGE A M WHAREPOURI ON SENTENCING}

[1] John Akuhata, you appear for sentence having been found guilty of three charges. They are assault with intent to injure, threatening to kill and breach of a protection order.

[2] The matter went to a Judge-alone trial where the complainant gave evidence of her ordeal. The evidence of the complainant was accepted by the Court in its entirety. Her evidence in the round was that on [date deleted] 2016 she went to a friend’s address together with you to celebrate her birthday. While at that address an argument started between you and her which saw the two of you leave that address and return to your shared home. You thought she was being unfaithful to you. It is during the course of the car journey that the complainant says that the assault began. It continued upon arrival at your home and involved you pushing her head down at one point onto the oven. It was not clear from her evidence whether she suffered any

_{significant injury from that assault apart from soreness to the back of her head.}

NEW ZEALAND POLICE v JOHN AKUHATA [2016] NZDC 17526 [9 September 2016]

[3] You then grabbed her by the singlet and began to push and pull her from the kitchen to the bedroom down a hallway. Once in the bedroom you then pushed her onto the bed and your argument as to her sexual fidelity continued. She denied that she was having a relationship with anyone else apart from you and persuaded you that the two of you should confront the person you suspected her to be sleeping with. As you exited the house you then pushed her a further time with some force into a vehicle that was parked on the property.

[4] Whilst outside you wrapped a dog chain around her neck and secured the other end of the chain to her ankle. You then pulled her a short distance by that chain. As a result of that assault she suffered several grazes to her back.

[5] The complainant then feigned unconsciousness. She says that you fetched a bucket of water and poured it over her. When you gave evidence you claimed that you did this so as to revive her. I have doubts about that. I have a strong suspicion that that was nothing more than a further effort on your part to degrade and humiliate her. In any event I am prepared to regard that act as one of an attempt to revive her because it is in line with her evidence that she was feigning unconsciousness. But that concession on my part does not detract from your prior behaviour which involved an element of cruelty.

[6] Your offending is further aggravated by the fact that during the course of your assaults on her person, you made a number of threats to kill her and at the relevant time the victim was the beneficiary of a protection order. Your offending is also aggravated by a number of factors such as the use of weapons on your part, namely the dog chain, the attack to her head and the cruelty in which you treated her as I have previously referred to. This was not a brief assault. It was a prolonged affair.

[7] I also make it clear that the offending on your part was without any level of provocation whatsoever. There is nothing about the victim’s conduct on the night which could have possibly justified this sort of behaviour towards her.

[8] In terms of your previous convictions you have several which are of relevance. By my count you have four previous convictions for violence and one for

breaching a protection order. Those previous convictions aggravate the offending in this case by reference to a failure on your part to have learned from previous interactions with the criminal justice system.

[9] Your counsel submits that the lead offence should be that of assault with intent to injure. I accept that submission. The Court of Appeal has previously given some guidance in sentencing for this offence in a case called Nuku v R 1. That case is not a tariff decision but it does provide some guidance to Judges on relevant sentencing bands based on the culpability of the offending and the aggravating

_{features of the offending which are present.}

[10] In my view the sentencing band in Nuku which applies in your case is band two. That band allows for a sentence of imprisonment of up to three years. Had your offending inflicted more serious physical harm or injuries to the complainant you could well have received a starting point around that mark. Fortunately for you, the evidence at the trial was that the complainant only received a series of red marks, grazes and swelling by way of injuries. However, that is not something that minimizes or mitigates your behaviour, because as I noted with your counsel, it is the assault with the specific intent which is important here. Your intent was obviously to cause her some level of hurt or harm that was less than permanent but more than

_{trifling or transient.}

[11] I also make the observation that a knife was found at the address. That knife was located by police embedded deep in a wall. The explanation by you was that you put the knife in the wall so as to remove it from the complainant. The complainant however could not recall how the knife came to be where it was ultimately found. Thus, I am excluding the use of that item from my analysis.

[12] Your counsel Mr Heather submits that an end sentence of around 24 months would be justified. The Police however take the view that an end sentence of around

_{30 to 34 months is warranted.}

1 Nuku v R [2012] NZCA 584; (2012) 26 CRNZ 106

[13] I take the following position. In relation to the lead charge of assault with intent to injure the sentence starting point is 18 months’ imprisonment. I uplift that by six months to reflect the totality of your offending which includes the threats to kill and the breach of the protection order. I apply a further uplift of three months for your previous convictions. The end nominal starting point then is 27 months’ imprisonment before I go on to consider any discounts available to you.

[14] I have looked through the pre-sentence report that has been prepared. Sadly, it is not a favourable one for you. There is no indication of remorse on your part. In fact the report-writer notes that you have a complete lack of insight into your offending. It is apparent that you blame your victim for your situation and that you regard yourself as the victim. I wish to make it clear to you Mr Akuhata that you are the author of your own misfortune in this case. Clearly, you have a sense of entitlement and there needs to be a change in your attitude if you are going to change your behaviour in the future.

[15] Furthermore, because the charges were proven following a trial you are not entitled to any credit for a guilty plea. I have heard nothing from your counsel as to why there should be any deduction for other mitigating circumstances, and that is perhaps because from my assessment of the material before me, there are no other reasons for extending any leniency.

[16] Because of the length of the end sentence in this case there is no need to consider whether home detention should be available to you. But even if it were the case however that home detention was a possibility, in my view, that sentence would not be consistent with the sentencing principles of deterrence and denunciation as set out in the Sentencing Act 2002.

[17] Accordingly, the end sentence is one of 27 months’ imprisonment.

A M Wharepouri

District Court Judge