Te Tau v Police [2012] NZHC 1068 (17 May 2012)

Last Updated: 29 May 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-7 [2012] NZHC 1068

RONNIE TAMATEA WONGDOO TE TAU

Appellant

v

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 27 April 2012

Counsel: S M Turner for Appellant

CER Power for Crown

Judgment: 17 May 2012

I direct that the delivery time of this judgment is 4.00pm on the 17th day of May

2012.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] The appellant appeals against a sentence of 18 months imprisonment imposed on him by Judge Crosbie in the District Court in Dunedin on 3 February 2012 on five charges: male assaults female; breaching a protection order; breaching supervision; possession of drug utensils; and possession of a Class C controlled

_{drug. The facts as recorded by the Judge are that on 22 September 2011, the victim}

TE TAU V NEW ZEALAND POLICE HC DUN CRI-2012-412-7 [17 May 2012]

was at home at her Dunedin address. She was the subject of a final protection order against the appellant issued in 2008. The victim was woken by the appellant, her partner of seven years, returning home from a night of drinking. He was with an associate and both of whom were intoxicated. The appellant accused the victim of having an affair with a neighbour and an argument ensued. The victim asked the appellant to leave. He refused and she tried to vacate the address. He pushed her back several times by pushing his forearm into her chest area. He grabbed her once by the neck to push her back. He was holding her by the arm at the front door when she pulled free and fell backwards down the stairs into a rubbish bin. The appellant left the address with his associate and was located a short time after by police. The victim received a small cut to her right elbow. That instance formed the subject of the counts of male assaults female and breach of protection order and the breach of supervision charges. A count of threatening to kill in respect of the incident was withdrawn.

[2] The drug offending occurred in January 2012 when the appellant was at his home, a room in a boarding house, smoking cannabis with several associates when police arrived at the address on an unrelated matter. Police invoked s 18(2) of the Misuse of Drugs Act 1975 and searched the premises. Inside a plastic bag on a coffee table were 23 cannabis joints. A bong for smoking cannabis was also located.

[3] In sentencing, the Judge noted that counsel’s submissions were aimed at convincing the Court to keep the appellant in the community. That was the course recommended in the pre-sentence report, which recommended a final warning, an order to come up if called upon, an order for compensation for emotional harm on the male assaults female and breach of protection order charges, and fines in respect of the other convictions.

[4] The Judge described the assault as moderate to low in terms of severity though he noted it involved actual violence. He noted several mitigating factors personal to the appellant. There were 14 previous convictions for violence and four convictions for breaches of protection orders, all in relation to the same victim. He noted that the previous year the appellant was sentenced on two similar charges and received a sentence of supervision. He was also convicted for common assault and

two charges of contravening a protection order in September 2009 and one charge of contravening a protection order in 2008. He also noted two convictions for common assault in 2006 and 2004, common assault and assault with intent to injure in 2003, threatening to kill in 1998, male assaults female in 1996, assault in 1996, and an earlier male assaults female in 1996, male assaults female in 1990, common assault in 1989, and aggravated robbery in 1984. He described that as an extensive history of violent offending. He noted the probation report comment that the appellant suffers paranoid schizophrenia and is engaged sporadically with the mental health team for medication and support. He noted a favourable letter from the coordinator of the Stopping Violence programme indicating that the appellant was committed to attending the programme. That expressed the view that a period of imprisonment would significantly impact on the progress the appellant had made as the positive relationship which he had developed with Stopping Violence Dunedin would have to be re-established and that he would lose his home. In the coordinator’s view, this was likely to put more strain on the appellant’s relationship with the victim where he most likely would go for support upon his release.

[5] The Judge noted, as an aggravating feature, that the appellant was subject to a sentence of supervision and attending Stopping Violence when the offending took place. The Judge noted the probation report as assessing the appellant at moderate risk of general offending but at high risk of violent offending, particularly in respect of the victim. The Judge noted several purposes of sentencing as being to hold the appellant to account, deterrence, and protection. He described the appellant’s criminal history as among the worst he had seen for offending against the same victim and expressed fears for the victim’s safety if the appellant were kept in the community. He said that the victim deserved to be protected from the appellant. He described the probation report and the report from Stopping Violence as curious in that they sought to mitigate the appellant’s actions when he had done no more than what was expected of him. He expressed concern that the appellant has a potential to kill someone as evidenced from his extensive list of convictions for violent offences. He said that were it not for the fact that the violence was at the lower end of the scale a sentence of over two years would be appropriate, but that he needed to stop short of that because of the requirement to impose the least restrictive outcome. He said that he was not prepared on behalf of the community to persevere with the

appellant and he did not accept the work done could not be continued in prison and noted the services available in prison.

[6] The Judge took a starting point of one year imprisonment for the breach of protection order. He added nine months to reflect the assault charge. He said that the aggravating features are such that there needed to be a significant uplift for previous convictions which could take the total up to two and a half years and then noted there would be a credit for the guilty plea and the work the appellant had done. He imposed a sentence on both the breach of protection order and the assault of

18 months imprisonment. He imposed sentences of one months imprisonment concurrent on the three other counts.

[7] Mr Turner submits that:

(a) The Judge’s starting point was too high;

(b) Double counting of prior convictions has occurred; and

(c) The use of cumulative sentences infringed the totality principle.

[8] As to the starting point, he submits that if the Judge was to impose imprisonment, a starting point of around ten months would have been appropriate for the male assaults female and breach of protection order charges. He submits that in fixing the starting points of one year and nine months on those two counts, the Judge gave undue weight to the fact of the previous offending against the victim. He further submits that this was double counted when the uplift for previous history was made. He submits that applying a cumulative approach to sentencing has led to a sentence which exceeds that which should have properly been imposed having regard to the totality principle.

[9] The Judge imposed concurrent sentences of 18 months on each of the counts of male assaults female and breach of protection order. The breach of protection order and male assaults female charges both arose out of the same incident. The essence of the appellant’s submission is that, in adopting, and adding together,

separate starting points for each of those charges the total starting point did not properly reflect the totality of the offending.

[10] The Judge addressed the starting point in these terms:[1]

In respect of a starting point, I believe in terms of the breach of protection order, a starting point is one year’s imprisonment. I am obliged to take into account the totality principle with respect to the assault. I think a starting point on the assault itself would be about nine months. The aggravating features themselves are such that there needs to be a significant uplift for your previous convictions. I think on a totality basis it would be possible to take that up to about two and a half years. I am going to give you credit for your guilty plea and the work you have done.

[11] I was referred to a number of comparable cases, by both counsel. Counsel for the appellant referred to Mann v Police,[2] Martin v Police,[3] and Kahaki v Police.[4]

_{Counsel for the respondent referred to R v Reihana,}[5] _{Poata v Police,}[6] _{and Alexander}

v Police,[7] and Keenan v Police.[8] All of those cases involved offences against a partner or former partner. Mann involved three separate incidents, one involving assault with a weapon and threatening to kill, one involving male assaults female, and the third involving breach of a protection order. That case was considerably more serious than this. On appeal, the total sentence (following a guilty plea) of

15 months imprisonment was reduced to 12 months. In Martin, the assault occurred when the appellant had a knife in his hand although the complainant was not threatened with it. There was a degree of pushing and pulling resulting in the complainant receiving minor bruising to her arms. A starting point of 12 months imprisonment was described on appeal to this Court as “simply too high, having

regard to the limited seriousness of the offence itself”.[9] A starting point of nine

months was taken. In Kahaki, the assault involved abusing the complainant, yelling at her, shoving and pushing her, pulling her hair and a number of punches to her head and face when she was knocked to the ground and the offender stomped on her head

_{with his bare foot and punched her at least a further ten times. A starting point of}

15 months for the totality of the offending (which included a breach of protection order count), was described on appeal as appropriate.

[12] In Reihana, the offender had gone uninvited to his ex-partner’s home and punched her once in the left eye causing her to fall to the floor. The victim’s eye was left bruised and swollen almost to the point of complete closure and her eyebrow was split requiring sutures. The original sentence of ten months imprisonment following trial was reduced on appeal to five months. The appellant had no previous convictions for violence. In Poata, the appellant unsuccessfully challenged a sentence of six months imprisonment imposed on one charge of male assaults female in circumstances where on the roadside he punched his partner once in the abdomen. The appellant had an extensive history of violent offending. Alexander involved a charge of assault with intent to injure and breach of protection order, as well as breach of release conditions. A sentence of three years was upheld on appeal. The offending was considerably more serious than in this case, so that I do not find it of direct assistance here.

[13] Keenan was a case of repeated breaches of a protection order. A sentence of

12 months was upheld on appeal.

[14] On the facts of this case, having regard only to the circumstances of the offending I consider that a total starting point of one year and nine months was outside the available range. This offending involved one incident, and I consider that an appropriate starting point for the totality of the offending would not have exceeded the one year adopted for the assault. The assault itself was relatively minor. The fact that it was committed in circumstances involving a breach of a protection order justified a stern response. That would have been adequately reflected by a starting point of one year.

[15] I consider that the adoption of an additional nine months starting point for the breach of protection order was not justified. Both charges arose out of the same incident, so that a concurrent sentencing response would have been appropriate under s 84(2) of the Sentencing Act 2002. I consider that the addition of a separate

starting point of nine months for the one count of breach of protection order arising from the incident was manifestly excessive.

[16] The extent of the uplift for previous convictions was not specifically identified by the Judge. He suggested that it might take the sentence from the starting point of one year and nine months to two and a half years, an uplift of nine months. However, it appears that the uplift must have been less than that, because the final sentence was 18 months after allowing credit for the guilty plea and the work the appellant had done in addressing his tendency to violence. If the discount was 25 per cent, the inferred starting point is two years, with a reduction of

25 per cent (six months) to an end sentence of 18 months. If the discount was one third, then the inferred starting point is two years and three months, with a reduction of one third (nine months). I proceed on the assumption that the uplift must have been in the range of six to nine months, probably towards the lower end of that range.

[17] In Alexander, an uplift of six months for the aggravating features of previous convictions and a breach of release conditions, to a starting point of 14 months imprisonment for breach of a protection order, was upheld. The history of relevant previous offending was considerably more serious than in this case. The offender had been sentenced to ten terms of imprisonment for offences against the same victim. I consider that an uplift to reflect the previous offending, in the range of six to nine months, was too high. I consider that an uplift of three months would have been appropriate.

[18] That leads to an end point, having regard to all aggravating features of the offending and the offender, of 15 months. From that, I would allow a discount of

25 per cent, or four months, to reflect the guilty plea and, as the Judge described it, the work the appellant had done in relation to addressing violence issues. That leads to an end sentence of 11 months.

[19] The appeal is allowed. The sentence of 18 months imprisonment is quashed and a sentence of 11 months imprisonment is substituted.

“A D MacKenzie J”

Solicitors: S M Turner, Barrister, Dunedin for Appellant

Crown Solicitor, Dunedin for Respondents

---

[1] _{New Zealand Police v Te Tau DC Dunedin CRI-2011-012-004047, 3 February 2012, at [18].}
[2] _{Mann v Police HC Invercargill CRI-2005-425-14-15, 19 August 2005.}
[3] _{Martin v Police HC Rotorua CRI-2007-470-24, 11 July 2007.}
[4] _{Kahaki v Police HC Tauranga CRI-2009-463-33, 16 June 2009.}
[5] _{R v Reihana CA143/03, 3 July 2003.}
[6] _{Poata v Police HC Rotorua CRI-2010-470-23, 5 July 2010.}
[7] _{Alexander v Police HC Dunedin CRI-2011-412-000018, 31 August 2011.}
[8] _{Keenan v Police HC Palmerston North CRI-2005-454-59, 13 December 2005.}

[9] Martin v Police at [29].