Police v Tuiahi [2017] NZDC 9041 (3 May 2017)

Last Updated: 10 October 2017

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

IN THE DISTRICT COURT AT HASTINGS

CRI-2016-020-001472 [2017] NZDC 9041

NEW ZEALAND POLICE

Prosecutor

v

[JERRY TUIAHI]

_Defendant

Hearing:	3 May 2017
Appearances:	Sergeant A Thompson for the Prosecutor E J Forster for the Defendant
Judgment:	3 May 2017

_{NOTES OF JUDGE M A COURTNEY ON SENTENCING}

[1] Mr [Tuiahi] you appear for sentence today on 13 charges to which you had previously pleaded not guilty. You entered guilty pleas to those following a defended hearing in this Court on 8 March. You had pleaded guilty then to

11 charges that were previously denied, There had been two charges that you previously pleaded guilty to. One of the charges that you pleaded guilty to was a charge amended from injuring with intent to cause grievous bodily harm and that was amended to one of injuring with intent to injure.

[2] I note from the lengthy letter that I have just been provided from you, and which I have now read, that there had been attempts on your part, you believe to try and resolve this matter short of a hearing. You talk about difficulties with prior

_{counsel accepting instructions, but I do note that there was a request for a sentencing}

NEW ZEALAND POLICE v [JERRY TUIAHI] [2017] NZDC 9041 [3 May 2017]

indication from your previous counsel which would have involved that charge of injuring with intent to cause grievous bodily harm being withdrawn in any event. As it transpired it was not withdrawn and it was amended following the hearing.

[3] The offences cover a period from April to June 2016. A period of some four months during which there was ongoing offending against the victim.

[4] In your letter to me, and you have expressed it in Court today, you raise a concern that you had come to Hawke's Bay to work [occupation details deleted]. The victim had followed you and it was her choice to come to be with you. Whether or not that was the case, of course it does not warrant the offending that took place and once that started taking place she clearly felt she was in a vulnerable position and could not leave.

[5] A final protection order had been made in favour the victim just the previous November in 2015. I will go briefly through the charges that you appear now for sentence.

[6] In April 2016 the first offence was that of injuring with intent to injure and a breach of protection order by way of physical abuse. That is the one that had been amended from the grievous bodily harm charge. You were both at [location deleted]. There was an argument whilst you were sitting in the car. You prevented the victim from leaving the car. You had a cigarette lighter in your hand and with that in your hand you have used your closed fist to punch her to the right eye. I have accepted there was not an intention to injure her with that lighter, but it was a punch that was described as very hard. Part of the lighter has hit her on top of her eye. It has caused heavy bleeding and it is an injury that she is still suffering from.

[7] Later in April last year whilst you were both in a car and she was driving the car there was an argument. You have used a closed fist to punch her on the left side of the head. She described that as a very hard hit. As a result of that punch she could not see where she was going. She was holding her face and she ended up driving the car and having an accident.

[8] There were further charges of threatening to kill and breach of a protection order when you were both living at a boarding house in [location deleted]. An argument has developed. Yet once again I note alcohol was involved there again. You have picked up a brick door stop and told her that if she left the bedroom you were going to kill her with it. She was seriously scared as a result and in fact it took the intervention of the landlady to end that matter, when the victim then left.

[9] The victim still feels hurt and angry at what you have said and done to her by way of those offences.

[10] In May there was then offending that occurred at [a bar, details deleted]. On this occasion, once again both of you were intoxicated. Once again an argument has started. You were both asked to leave. Whilst out on the street the victim has then hit you on the head with a bottle, and I accept that was a start to the event which occurred then. However, you have then pushed her into the middle of the road causing her to fall over. You have then approached her and kicked her hard several times about her body and then you have punched her several times. After a member of the public intervened you have got into your vehicle, reversed out of the car park and there has been an accident. I see from the letter you have provided to me, you say that as a result of the injury to your left eye your perception was affected, but there was still an accident that occurred. You were followed by the police and you blew 880 micrograms of alcohol per litre of breath. The victim that time suffered a large bump on her right cheek and had bumps and bruises on her body.

[11] The final offending occurred in June when you had been bailed on the earlier charges. The victim has gone to your address to uplift her property. That was I accept, in contravention of, not by her, but a breach of bail by you not to contact her. There has been once again an argument. You have refused to leave her alone so she has telephoned the police. On the way to the police station you have sent a text to her stating that you were going to get her. A lengthy period of abuse to her over a lengthy period of time.

[12] You have many previous convictions going back to 1997. Those include assaults. There have been five convictions for male assaults female since 2001 and

you were sent to prison on four of those occasions. In the previous 18 months there have been four domestic violence charges involving the same victim, all of which have resulted in a sentence of imprisonment. One of those was a breach of protection order.

[13] As far as drink-driving is concerned you have six convictions for either excess breath-alcohol or refusing to provide a specimen when requested. The last of those was in 2015 when you were sentenced to prison for some 13 months. Your last three drink-driving charges have involved sentences of imprisonment.

[14] The victim impact statement makes concerning reading. Whilst you say that the victim has approached you, I also accept that she has had real concerns when with you. She says that she had to walk on egg shells because of your nasty side. She says that she has felt like she has been held as a hostage when you are together. She has felt like a punching bag that you use whenever you feel like. In her evidence in Court she talked about feeling imprisoned so that she could not even go to the toilet without approval from you. She says she has had to lie to the doctor to cover up assaults in the past and she struggles with sleeping.

[15] In the updated report she says she is still struggling from the abuse and the violence she suffered. She has been receiving counselling. She thought that at one point to get abused and hit on a regular basis must be part of a relationship. However, she now knows that is not the case. She said she cannot believe that she put up with it for so long and did not have the courage to approach the police about it. She says she is an emotional wreck and even though you have been in custody she still fears the actions that you have taken.

[16] The pre-sentence report recommends, quite obviously, that the only possible sentence is one of imprisonment. What is of particular concern though in reading that pre-sentence report, is that you do not accept the information as contained in summaries of facts. Admittedly the summaries of facts were somewhat different to some regard to the evidence I heard in Court but what I have read out today is the evidence in Court.

[17] The report goes on to say that you minimised the use of violence towards the victim. You attempt to shift the blame for your actions at every opportunity. You are unable to engage in any meaningful conversation about your offending due to your distorted thinking and your insistence that you have been a victim in this relationship. Whether you have been a victim in this relationship or not, I do not know, but you are certainly not a victim as far as this offending is concerned. It is the complainant who is the victim.

[18] I note when you talked about the possibility of reconciling, you thought there might be a chance if she was prepared to get some help for herself. The person who needs to get help for themselves with regard to this offending, Mr [Tuiahi], is you.

[19] Mr Forster has provided submissions with regard to the sentencing which he now accepts are wide of the mark in terms of the matters that are relevant to assessing sentence. There is the decision in R v Nuku1 which sets out the factors that need to be taken into account from the decision in Taueki2. In this case there were attacks to the head, in particular the lead charge with regard to the attack in the car.

In my view there was serious violence and there also was here a vulnerable victim. Mr Forster initially submitted that this matter fell within band 1 of Nuku. He now accepts it falls fairly and squarely within band 2 and that it is probably at the higher end of band 2.

[20] I believe that is an appropriate assessment, which is a start sentence of up to three years’ imprisonment. Mr Forster also recognises there needs to be an uplift for prior convictions and to recognise the duration of the offending.

[21] He also talked about a discount for a guilty plea. I note that the guilty plea only came at the end of cross-examination. I will give a discount but that will purely relate with regard to the offending on 27 May.

[22] Rather than going through all of the individual charges and allowing for a start sentence then an uplift, I believe if I were to take the global approach which

1 _{R v Nuku [2016] NZHC 254.}

2 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

recognises the totality of the domestic violence offending. Taking the lead charge as that of injuring with intent to injure that had been reduced from the GBH charge, and allowing for the violence which occurred on those four occasions, a start point of two and a half years’ imprisonment is appropriate.

[23] The driving charges I treat as totally discreet offending and the drink-driving charge needs to be dealt with discretely. Given your previous convictions I believe a start sentence on that charge is one of 12 months’ imprisonment. However, you have pleaded guilty to that and an end sentence on that of nine months’ is appropriate. Because that is discrete offending, that should be treated as cumulative to the violence offending. That brings a total sentence of three years and three months.

[24] There is the prior offending but I have taken that into account effectively in the assessment of the violent offending and I will not allow any further uplift in that regard.

[25] I therefore come to an end sentence of three years and three months’ imprisonment. That sentence is therefore imposed as follows:

(a) On the charge of injuring with intent to injure in CRN ending 2377,

you are sentenced to two and a half years’ imprisonment.

(b) For each of the charges of male assault female, you are sentenced to

12 months’ imprisonment.

(c) For each of the charges of breach of protection order, you are

sentenced to 12 months’ imprisonment.

(d) On the charge of assault with intent to injure, you are sentenced to

15 months’ imprisonment.

(e) On the charge of threatening to injure, two months’ imprisonment.

(f) On the charge of threatening to kill, six months’ imprisonment.

(g) On the charge of driving whilst disqualified, one month’s

imprisonment.

(h) On the charge of breach of release conditions, six months’

imprisonment.

(i) On the charge of careless driving you are convicted and discharged. [26] Those sentences of imprisonment are all to run concurrently so there is a total

sentence to be served there of two and half years.

[27] On the drink-driving charge you are sentenced to nine months’ imprisonment. That is cumulative on the sentences imposed on the other charges and accordingly there is an end sentence of three years and three months’ imprisonment.

[28] On the drink-driving charge there is also an indefinite disqualification.

M A Courtney

District Court Judge