Police v Hohepa [2018] NZDC 5734 (26 March 2018)

Last Updated: 1 June 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT HAMILTON

CRI-2018-019-000521

[2018] NZDC 5734

NEW ZEALAND POLICE

Prosecutor v

[MAIRO HOHEPA] Defendant

Hearing:	26 March 2018
Appearances:	N Wolland for the Prosecutor R Laybourn for the Defendant cc Department of Corrections
Judgment:	26 March 2018

NOTES OF JUDGE N D COCURULLO ON SENTENCING

[1] Mr [Hohepa], you appear today for sentence having pleaded guilty at an early time to 10 charges. They arise in this way.

[2] Firstly, three charges from [date deleted] 2017 at [location 1 deleted] and they are a male assaults female, assault with intent to injure and assault with a weapon.

[3] The second group of charges are those from [date range deleted] 2018 and they are the lead charge of injuring with intent to injure and assault with intent to injure.

[4] The last group of charges are those numbering five of them and they are from [date deleted] this year being a male assaults female, intentional damage, assault with intent to injure and two charges of assault on police.

NEW ZEALAND POLICE v [MAIRO HOHEPA] [2018] NZDC 5734 [26 March 2018]

[5] The facts to the sentencing are as follows. On [date deleted – first offending] you and the named complainant were at an address at [location deleted]. There was an argument and you sat on top of her while she was lying on the bed and using an open hand to push her face away from you, pushed her up against a wall. While the victim was in this position you then placed your right hand around her throat and squeezed, restricting her ability to breathe but leaving her it is said, with no lasting injury. You both went outside at which time the victim broke free from you and as you were letting her go you swung a piece of wood at her head which glanced over her scalp narrowly avoiding injury.

[6] To those charges I note the very serious violence in a domestic setting, the imbalance of power between you as a male and she as a female. I note the strangulation type behaviour which is most sinister and serious and I also note particularly with the piece of wood, the attack to the head.

[7] So far as the other charges are concerned, again most of these are against the same named complainant. On [date deleted – second offending] you and she were together at an address in [location 2]. An argument took place. You had got out of [Hospital] [details deleted] and both of you were yelling at each other when you grabbed it is said, a long orange extension cable wrapping it around the victim’s neck and strangling her so tightly that she could not breathe. The victim attempted to scratch and hit you before you noticed her struggling and loosened the cord to allow her to breathe. You then once the cord was loosened began apologising and kissing and hugging the victim. What then happened is that you then proceeded to put the cord back around her neck squeezing it tightly until she could not breathe and eventually she passed out. You loosened the cord only after the victim lost consciousness and started twitching.

[8] On [date deleted – third offending] she and you were in a garage. Another verbal argument ensued. You started throwing clothing around. You then walked up to her and punched her multiple times with a clenched fist to the head. After the third punch she has fallen to the ground by the bed onto her knees. You continued to punch her to the head. You followed that up with three more punches, the last of which

connected with the upper part of the nose making it bleed. You then locked her in the shed so that she was unable to leave and had to spend the night there.

[9] I have of those two offences, appreciated again the very, very serious and potential fatal way that you have strangled this victim with a cord, the sustained way that you have done this and the only reason why the cord was loosened was when she lost consciousness and started twitching. Again I have as to the [third] offence noted the attack to the head and of the attempts to stop her from seeking medical attention.

[10] It has been really quite artificial given how much serious offending you have done here to endeavour to lump this offending into any cohesive order. I can say this
- of the [third] offence - that in and of itself could stand alone easily attract a two year starting point and indeed the strangulation charge from [the second offending] could easily attract a three year starting point.

[11] I accept that it is somewhat artificial to put those two together but on the calculations it all becomes in and of itself quite artificial in terms of the totality principle that I must comply with if I do not put those together. The mere fact that they are being put together is not a recognition that 30 months’ imprisonment is singularly what the culpability is there, it is far higher than that and I would not want it thought that all I thought for those matters was that two years and six months was appropriate.

[12] I move on. On [date deleted – fourth offending] to the last five charges, you were at an address in [location 2]. There was an altercation again with the same partner
- apparently this time about tidying a room. You pushed her down the hallway, pushed her to a shed. You then threw asthma inhalers at her once in the shed. She was left in the shed and the home owner witnessed what was going on and shouted that she was calling the police.

[13] You jumped back over the fence in to the garden to pursue the home owner. Whilst pursuing her you picked up the metal framed chair and threw it at her and also threw a Heineken bottle at her, both missed the home owner. The police arrived and witnessed you running back into the house shouting. The police spoke to you through a bedroom window and asked to speak with your partner. The police advised that she

had left the scene. Without warning you punched the window directly in front of the police smashing it with glass flying all over the attending officers. You armed yourself with a chair and smashed another window, again sending glass over the officers. The attending police received minor injuries from the glass and you had to be pepper sprayed to obtain your compliance upon the arrest.

[14] It is reported that there were no injuries to either the named complainant, your partner or the home owner. Both police officers as I said sustained minor lacerations from the glass of the broken window.

[15] Whilst undergoing a DVD interview you were asked to explain the strangulation and you said that you had wanted to hurt her.

[16] In and of that offending I note the following. Not only your serious violence against your partner, but also the assault with the weapon being the bottle and the framed chair against the home owner. I also note the assaultative behaviours against the attending police officers and the smashing of the windows.

[17] I have seen your previous conviction list. You do have previous convictions for violence. You do not have an extensive list. You are [under 20] years of age and that weighs with me in this sentencing exercise. Nothing that I say in this sentencing exercise should detract from these comments:

• (a) you are in this offending a most serious and violent offender
  
• (b) this named complainant, your partner, is at clear and present danger from you. I have a clear view that if you are in contact with her and carry out these sorts of behaviours you have carried out here you will either seriously hurt her or kill her. You are a serious danger to the community that you live in through intimate partners that you get into relationships with and particularly to women.

• (c) You have a complete and utter disrespect and violent streak particularly when it comes to females and your behaviour towards them in your serious assaultative offending
  

[18] I want to say this. I see your strangulation activities as some of the most serious violence there is. That is violence that metes out massive power and control in an inappropriate way and says to disempowered persons that potentially you can kill them at a moment’s notice. Let me be clear - notwithstanding the potential that may have come from your very serious offending, you are not being sentenced today on the basis of significant injury to any of the complainants.

[19] I have received helpfully your lawyer’s submissions. I have already made comment that lumping the [second and third] offending together is in a sense artificial and should not be taken as this Court being lenient upon that - the totality exercise appreciates the fullness of the sentencing in its entirety.

[20] I say to start with those two matters a clear starting point of 30 months’ imprisonment is appropriate for you. Your lawyer asked that for the [first] offending there be a totality uplift of six months. Standalone that offending could easily attract 18 months to two years and I say a proper uplift for that offending is 12 months’ imprisonment.

[21] So far as [the fourth] offending is concerned, a starting point standalone of that offending could easily be between somewhere between 15 months and two years. I say that there ought to be an uplift in respect of that of 15 months’ imprisonment. To that point the total is 57 months’ imprisonment or four years and nine months.

[22] Your previous convictions harbour previous for violent behaviour. I say an appropriate uplift there is four months’ imprisonment and noting the later offending discrete in and of itself there is an aggravating feature of offending whilst on bail and a further four months’ imprisonment is added making to that point 65 months’ imprisonment or five years and five months.

[23] I have appreciated mitigating features which is your personal circumstances here. It is said that you are remorseful. I have, as indicated to your lawyer, taken into account your age at just [under 20] years old and the issue that youth is an important consideration for the Courts to look at. Here I apply a discount of only five months’ imprisonment making an end point to that stage of 60 months’ imprisonment or five years. The law requires me not only to take into account the totality principle as I have endeavoured to do throughout the sentencing exercise, but also to appreciate a discount for your guilty plea. You have been in custody since the last lot of assaults and in the circumstances there is no difficulty with applying 25 percent according to Hessell v R1. That then brings us to an end sentence, Mr [Hohepa], of 45 months’ imprisonment or three years and nine months.

[24] So far as the named complainant your partner is concerned, there has clearly been a qualifying domestic relationship pursuant to the relevant statute. There has clearly been very serious violence occasioned by you against her and in my view particularly given the ongoing nature of that violence, offending whilst on bail, there is every necessity for a protection order to be made.

[25] Accordingly I now make a protection order against you and in favour of the named complainant your partner. Given that you are incarcerated and I am not advised of whether an anger management programme is available for you there, I dispense with the need for an anger management programme. Your release will be governed by the Parole Board. These notes will go to the Parole Board and in my clear view, any release on parole should come with clear consideration by the Parole Board of rehabilitative aspects of an anger management programme and perhaps other matters.

[26] Accordingly a protection order is made and I dispense under that order [with] the requirement to attend an anger management programme. A copy of the sentencing notes and the summary of facts is to be transmitted to the Family Court for the issue of the protection order.

[27] I now Mr [Hohepa] deal with you in respect of these charges in this way. On [first offending] male assaults female you are sentenced to 12 months’ imprisonment.

1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

On [first offending] assault with intent to injure, you are sentenced to 15 months’ imprisonment. In respect of the [first offending]assault using the length of wood as a weapon, you are sentenced to 18 months’ imprisonment. On the [second offending] injuring with intent to injure, the lead charge, you are sentenced to three years and nine months’ imprisonment and the protection order is made in favour of the complainant against you in respect of that charge.

[28] On [third offending] the assault with intent to injure you are sentenced to 15 months’ imprisonment. On [fourth offending] male assaults female, you are sentenced to 12 months’ imprisonment. On [fourth offending] intentional damage of windows you are sentenced to two months’ imprisonment. On the assault with intent to injure, that is the home owner, you are sentenced to 15 months’ imprisonment and on the two assaults of the police officers in the execution of their duty you are sentenced to four months’ imprisonment on each.

[29] Your sentences are concurrent, so the most you will do is three years and nine months’ imprisonment.

Judge ND Cocurullo

District Court Judge

Date of authentication: 29/03/2018

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.