TE PANIA V NEW ZEALAND POLICE HC ROT CRI-2009-463-87 [2009] NZHC 1413 (12 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                       CRI-2009-463-87



                                 NOLAN TE PANIA
                                    Appellant



                            
              v



                            NEW ZEALAND POLICE
                                 Respondent



Hearing:       12
October 2009

Appearances: Mr R Vigor-Brown for Appellant
             Ms S-L Wootton for Crown

Judgment:      12 October 2009


                        (ORAL) JUDGMENT OF LANG J
                           [on appeal against sentence]




Solicitors:
Crown
Solicitor, Rotorua
Counsel:
Mr R Vigor-Brown, Rotorua




TE PANIA V NEW ZEALAND POLICE HC ROT CRI-2009-463-87 12 October 2009

[1]    Mr Te Pania pleaded guilty in the District Court to charges of burglary and
wounding with intent to injure.


[2]    On 21
August 2009 His Honour Judge McGuire sentenced Mr Te Pania to 18
months imprisonment. In doing so he rejected a submission from Mr
Te Pania's
counsel that he should impose a sentence of home detention rather than
imprisonment. Mr Te Pania appeals to this Court
against the sentence that the Judge
imposed. He does not argue that the sentence was manifestly excessive. Rather, he
contends that
the Judge ought to have imposed a sentence of home detention rather
than imprisonment.


The facts


[3]    In order to understand
the basis for this submission, it is necessary to have
regard to the facts of the case as set out in a summary of facts that was
before the
Judge in the District Court and was not subject to dispute.


[4]    The charges against Mr Te Pania arose from an incident
that occurred very
early in the morning of 22 March 2009. The genesis for this incident, however, lay
in a series of events that
had begun some time earlier.


[5]    The victim in this matter is a very old friend of Mr Te Pania. It is clear that
they have been
close friends for a very long time. Some time earlier the victim had
fallen on hard times, and Mr Te Pania had taken him into his
home to assist him in
the difficulties that he then faced.    The victim had then repaid Mr Te Pania's
kindness by forming a liaison
with Mr Te Pania's wife.           When Mr Te Pania
ultimately discovered that the victim and his wife were having an affair, he
packed
up his things and left home. In doing so, he left his sons living in his former house
with his wife and the victim. His sons
were aged 9 and 5 years respectively.


[6]    In the afternoon and/or evening of 21 March 2009 Mr Te Pania had received
a text message
from the victim that was provocative, to say the least. It suggested
that the victim now had a strong relationship with Mr Te Pania's
sons, and he also
said words to the effect that he was ready for Mr Te Pania to "bring it on".

[7]    Mr Te Pania went to the house
where his wife and the victim were living very
early on the morning of 22 March. He went there, it is said and I accept, to uplift
one of his boys. He stood outside and was able to see the victim and one or more
members of his family interacting in the kitchen
of the address. This scene of
apparent domestic bliss enraged him. He picked up a metal bar that he found lying
in the area and went
to the back door of the address. This was unlocked and allowed
him to gain entry to the address. When he got into the kitchen he
immediately began
to strike the victim in the head with the metal bar.


[8]    The struggle then spilled out onto the front lawn.
During this aspect of the
struggle, Mr Te Pania bit the victim's ear taking a large chunk of skin from it. He
also bit the victim's
thumb, thereby leaving a wound. Some time after this he was
restrained and left the property. The victim suffered lacerations to
his skull, as well
as wounds to his thumb and ear from the biting incidents.


[9]    Mr Te Pania pleaded guilty to the charges at
an early stage exercising his
rights under s 153A of the Summary Proceedings Act 1957 to do so. It was in that
context that the Judge came to sentence him on 21 August 2009.


The Judge's
decision


[10]   The Judge selected a starting point of three years imprisonment on the lead
charge of wounding with intent to injure.
That was the starting point suggested by
counsel for Mr Te Pania and no quarrel is taken with it. The Judge then gave Mr Te
Pania
a discount of 33 per cent to reflect the very early guilty pleas. Again, that was
entirely appropriate and counsel for Mr Te Pania
has no argument with it. The Judge
then gave a further discount of 17 per cent to reflect the unusual features of the case
and, in
particular, the provocative actions of the victim. In all, therefore, the Judge
applied a discount of 50 per cent, which is extremely
generous in the context of
offending such as this.


[11]   The Judge rejected, however, a submission that Mr Te Pania should be
given
a sentence of home detention even though he was clearly eligible for that sentence

because the end sentence was one of less
than two years imprisonment. The Judge's
reasons for this are to be found in the following paragraphs of his decision:

       [12]
    So I have to find that there was some pre-meditation on your part,
       even if it was pretty late in the piece. You marched
into this property just
       after six in the morning, without being invited, armed with a metal bar. You
       attacked him in
the home and, of course, we used to have offending called
       home invasion in this country. Part of the philosophy behind it
was that
       people were entitled to feel safe in their own house. You attacked his head
       area. You caused significant injuries,
which had to be addressed at the
       hospital, and it occurred in a house where at least one of your sons was
       present.
So those are aggravating features of this attack, Mr Te Pania.

       [13]    It is for that reason, and because of all of those
features being
       present, that I have come to the conclusion that this cannot be dealt with by
       home detention, which
Taueke's case, of course, contraindicates in any
       event. But there are just too many aggravating features.

[12]   Counsel
for Mr Te Pania argues on appeal that the sentence of imprisonment
was inappropriate in all the circumstances, and that the Judge
ought instead to have
considered favourably the submission that Mr Te Pania be able to serve a sentence of
home detention.


Decision


[13]   As will already be obvious, this is an appeal against the exercise of a judicial
discretion. Although the authorities make
it clear that the discretion to impose or to
decline to impose a sentence of home detention is unfettered, nevertheless the
sentencing
Court must act in accordance with established principle when exercising
the discretion. This means that the Court must have regard
to the purposes and
principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002. Having
done so, however, the sentencer
has very much an unfettered discretion as to whether
or not to impose a sentence of home detention.


[14]   During the course of
argument today I drew the attention of counsel to the
following passage from the judgment of Rodney Hansen J in Savage v Police (HC
Whangarei CRI 2008-488-0001 14 February 2008. In my view it captures admirably
the manner in which the discretion must be exercised.
Rodney Hansen J said:

       When the further conditions in s 80A(2)(a) of the Sentencing Act are
       satisfied, the Court has
a discretion whether to impose home detention. No

       further criteria are specified in the statute. There has been some discussion
       and debate by commentators as to the additional factors which may properly
       be taken into account in deciding whether
or not to impose a sentence of
       home detention. I am in respectful agreement with the learned author of
       Hall's Sentencing
at SA80 A.4A that, in line with the approach formerly
       taken to the grant of leave to apply for home detention, regard should be had
       as appropriate to the
purpose and principles of sentencing as codified in the
       Sentencing Act and, in particular, ss 7 and 8. Other factors which
may
       properly be considered will include those which formerly governed a
       decision to grant leave ­ the nature and seriousness
of the offence, the
       circumstances and background of the offender, and any relevant matters
       relating to the victim.
However, it is clear that the legislature intended to
       confer a broad discretion and the weight to be given to relevant factors
will
       be a matter for the sentencing Judge.

[15]   It is only open to this Court to disturb the exercise of the judicial discretion
on appeal where it can be shown that the Judge took into account relevant factors,
that he or she failed to take into account relevant
factors or that the decision was
plainly wrong in the circumstances of the case.


[16]   It is clear from the passages of the sentencing
remarks to which I have
already referred that the Judge based his decision in the present case on his
perception that the offending
had too many aggravating factors to make a sentence of
home detention appropriate. It must, it seems to me, be acknowledged that
the
aggravating factors of the offending are matters that may properly be taken into
account by a sentencer when considering whether
or not to impose a sentence of
home detention.


[17]   Aggravating factors such as the use of violence and the use of a weapon are
matters that are specifically within the purview of the Sentencing Act 2002. It is not
open to this Court on appeal to say that it
would have reached a different view on the
facts of the case, even if that was the view of the Court. In my view the Judge was
entitled
to say that the circumstances of the offending were simply too serious
because of the number of aggravating factors that were present.
The existence of
those aggravating factors is acknowledged and accepted by counsel for Mr Te Pania.


[18]   That being the case,
it appears to me that the Judge reached his conclusion on
a principled basis and that the principles on which he relied are in accordance
with
those contained in the Act. For that reason I have reached the view that it is not

possible for me to disturb the manner in
which the Judge exercised his discretion.
As a result, the appeal against sentence must be dismissed.




Lang J