Tere v Police [2012] NZHC 174 (17 February 2012)

Last Updated: 27 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000461 [2012] NZHC 174

TERENCE MARIO TERE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 February 2012

Counsel: J L Holden for the Appellant

L J Clancy for the Respondent

Judgment: 17 February 2012

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 17 February 2012 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the

Appellant

Meredith Connell P O Box 2213 (DX CP24063) Shortland Street

_{Auckland 1140 for the Respondent}

TERE v POLICE HC AK CRI-2011-404-000461 17 February 2012

[1] The appellant, Mr Tere, appeals against concurrent sentences totalling 10 months’ imprisonment, which were imposed on him following his conviction on charges of:

(i) Assault of a child;

(ii) Male assault on female; and

(iii) Wilful damage.

[2] The appellant contends that the sentences are manifestly excessive and that the sentencing Judge erred in failing to exercise her discretion to impose an electronically monitored sentence of home detention. The appeal is opposed.

Facts

[3] On 25 May 2011, the appellant, who is a 24 year-old male, was at the address of his partner and children. When his 11-month-old daughter began to cry, the appellant hit her upper body five times by swinging a cushion forcefully from above his head. When the child eventually started to struggle to breathe, the appellant rolled her onto her back and hit her twice more in the face, in the same manner. The appellant told the police that he hit the baby because he was angry that she was crying.

[4] When the appellant’s partner intervened, the appellant pushed her forcefully twice while she was holding the baby. The appellant punched his partner in the mouth when she tried to put the baby in the car, and again after she got into the car. The appellant and his partner continued to argue. The appellant then punched the glass ranchslider in the garage, and punched his partner several more times. When she tried to call the police, the appellant grabbed her cellphone and smashed it against the driveway.

[5] The baby had minor red marks, but no bruising. The appellant’s partner suffered a swollen and split lip. Neither required medical treatment. Reparation was sought for both the phone and the ranchslider.

Personal Circumstances

[6] The appellant has significant previous convictions, 10 of which involve violence, drugs and driving offences. In particular, he has a conviction for male assault on female in 2006. His most serious (and recent) conviction is being an accessory after the fact to murder.

[7] Though the District Court sentencing notes indicate that the appellant’s offending occurred at a time when he was still subject to a sentence of home detention, that is incorrect. It is accepted that the offending occurred some four months after the sentence of home detention had expired, though the appellant was still subject to release conditions.

[8] The pre-sentence report notes that the appellant had a somewhat difficult upbringing, and had a drug and alcohol problem. The appellant was depressed as a result of his father’s death in 2007, and had attempted suicide twice. He is willing to undergo treatment for his substance abuse problems. He admits to being under the influence of drugs at the time these events occurred.

[9] Though the appellant is said to have demonstrated insight into his offensive behaviour, the writer of the pre-sentence report recommended accepting his regret and remorse with caution, given the repetitive nature of his violent offending. The appellant completed anti-violence programmes, and alcohol and drugs counselling. The writer of the pre-sentence report suggested that the appellant would benefit from rehabilitation programmes, and recommended a sentence of community work and intensive supervision.

[10] The District Court Judge adopted a starting point of 18 months’ imprisonment to cover the offences of assault on a child, and male assaulting a female. The Judge then gave an unspecified discount for mitigating factors such as the fact that the appellant had taken steps to address his offending by means of a “Stopping Violence” programme, and his expressions of remorse and regret. The Judge gave a 25 per cent discount for the appellant’s early guilty plea. The final sentence was one of 10 months’ imprisonment for each of the violence offences,

being imposed concurrently. On the wilful damage charge, the Judge sentenced the appellant to one month’s imprisonment concurrent, with special release conditions.

[11] The appellant contends that the sentence is manifestly excessive because the Judge adopted too high a starting point. The appellant also contends that the Judge has erred by failing to consider the possibility of an electronically monitored sentence.

Approach on Appeal

[12] This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957 (the Act). Section 121 of the Act confers power on the Court to determine such appeals. It provides that if the sentence is “clearly excessive or inadequate or inappropriate”, then the High Court may substitute its own sentence. However, whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed, rather than by the process by which the sentence was reached (R v MacCulloch [2005] 2 NZLR 665 (CA) at [50]). In R v Shipton [2007] 2 NZLR 218 (CA) at [138], the Court of Appeal observed that:

This Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion.

Thus, the appeal should only be allowed if the end sentence of 10 months’ imprisonment is found to be manifestly excessive, irrespective of whether the starting point adopted was too high.

Analysis

[13] There is no tariff case for assault on a female, as the circumstances vary too greatly: see R v Reihana CA143/03, 3 July 2007. Nonetheless, there are comparable cases to the present which provide guidance on the choice of starting point.

[14] In Poata v Police HC Rotorua CRI-2010-470-23, 5 July 2010, the starting point for an offence of male assaults female was set at nine months’ imprisonment. A final sentence of six months’ imprisonment was upheld for an assault involving

punches to the abdomen. The offender’s significant criminal history had been incorporated into the starting point. Joseph Williams J, however, emphasised at [23] that whilst there may have been different methods of arriving at that final sentence, “the important thing is that an end point of six months is unimpeachable in light of the cases”.

[15] In Yeo v Police HC Auckland CRI-2006-404-283, 14 September 2006, the 19 year old offender grabbed his girlfriend around her throat and held her head in his lap while driving. He pulled her hair, ripped her shirt, and punched her once in the face. The offender had no history of violent offending. On appeal, the starting point was set at eight months’ imprisonment, with an end sentence of five months, with leave to apply for home detention.

[16] In Kopua v Police HC Christchurch AP188/91, 22 August 1991, the offender, who was charged with assaulting a child, banged his five week old daughter’s head and body three times on the floor because he was angry at the child’s crying. The Judge noted the aggravating factors in the case to be the extremely young age of the child, the fact that the assault was an act of anger, not of discipline, and the relationship of trust between parent and child. The level of violence was characterised as not trivial but not extreme either.

[17] In Torea v Police HC Whangarei AP51/96, 13 March 1997, the 41 year old offender assaulted his six year old stepdaughter and eight year old stepson for making too much noise when he wanted to sleep. His stepdaughter received a large bruise above her right eye. His stepson complained of a sore head. The offender had no criminal history and was remorseful. The children suffered no permanent harm. On appeal, the offender was sentenced to two months’ periodic detention.

[18] Regarding the present sentence, it is unclear from the District Court judgment which offence the Judge treated as the lead offence. Nonetheless, I consider that the choice of a starting point of 18 months’ imprisonment for either of the assault offences was excessive. In view of authorities, a more principled approach may have been to have selected as the lead offence the offence of assault on a woman, which could carry an appropriate starting point of between nine to 10 months’

imprisonment. I say this because the authorities regarding assaults on a child would tend towards a lower starting point of between approximately four to six months’ imprisonment. However, even if the District Court Judge’s starting point was too high, I consider that the final sentence of 10 months’ imprisonment for the two instances of assault is not manifestly excessive. The Judge’s total discount of nearly

50 per cent, being 25 per cent guilty plea and the discount for mitigating factors, is generous. This is especially so, given the fact that the Judge did not give a separate uplift for the offender’s not insignificant criminal history and the fact that the pre- sentence report cautioned against taking the appellant’s remorse at face value, given the repeated violent offending. I consider that had the Judge adopted a starting point of 10 months’ imprisonment, there could then have been an uplift of five months to take into account the assault on the child, and a further uplift of three months’ imprisonment to take into account the appellant’s criminal history. This would have taken the sentence to 18 months’ imprisonment, before account was taken of the guilty plea. Against that background, the Judge’s discount total of nearly 50 per cent would have brought the sentence to the approximate level of 10 months’ imprisonment.

[19] Like Joseph Williams J in Poata, I am satisfied that the end point of 10 months’ imprisonment is unimpeachable. It follows that the appellant has failed to satisfy me that the sentences imposed were manifestly excessive.

[20] I now turn to consider whether the Judge should have granted an electronically monitored sentence in substitution of the prison sentences.

[21] The District Court Judge considered that overall, the only option was that of imprisonment. She did not give more specific reasons, though she did note denunciation and deterrence as relevant purposes the Sentencing Act 2002, as well as accountability and promotion of a sense of responsibility.

[22] Given the offender’s considerable criminal record, and the pre-sentence report writer’s caution against accepting the offender’s remorse and regret at face value (due to the repetitive nature of his violent offending), there was enough to inform a sentencing judge that an electronically monitored sentence might be

insufficient to deter the appellant from offending again. The present offending had occurred only four months after he had completed a sentence of home detention, and while he was subject to release conditions. This in itself suggests that the sentence of home detention had done little to deter the appellant from further offending. Furthermore, given that the offending occurred in a domestic setting, allowing the appellant to remain at home as part of his sentence may have sent an insufficiently denunciatory message to the community. Given that the comparable cases all involved imprisonment, I consider that the sentencing Judge was acting within her discretion to not grant an electronically monitored sentence. It is quite understandable that faced with the circumstances of the appellant, the sentencing Judge considered that she had no option but to impose a sentence of imprisonment. The offending demonstrates violent behaviour towards vulnerable victims. It is particularly bad that the appellant turned on his partner, as a result of her attempts to protect their child from his assault. Accordingly, I consider the sentencing Judge has properly exercised her discretions under the Sentencing Act.

[23] It follows that the appeal fails on both grounds and, accordingly, the appeal is dismissed.

Duffy J