Hunia v Police [2013] NZHC 333 (27 February 2013)

Last Updated: 9 March 2013

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-000058 [2013] NZHC 333

BETWEEN ANARU TAWHARANGI HUNIA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 February 2013

Appearances: A Sykes for Appellant

S Simmers for Respondent

Judgment: 27 February 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors:

Aurere Law : PO Box 1693, Rotorua 3040 - DX JP30025 (A Sykes) Gordon Pilditch : PO Box 740, Rotorua 3040

HUNIA V NEW ZEALAND POLICE HC ROT CRI 2012-463-000058 [27 February 2013]

Introduction

[1] On 23 August 2012 the appellant pleaded guilty to and was convicted on a charge laid under s 189(2) of the Crimes Act 1961, of injuring with reckless disregard for the safety of others. He was sentenced the same day to imprisonment for one year, ten months. That sentence had been indicated at a sentence indication immediately prior to the appellant’s entering the guilty plea.

[2] On the same day the appellant entered guilty pleas to and was convicted on charges of breaching a protection order, resisting arrest, and threatening to kill. On each of those charges he was sentenced to one month’s imprisonment, to be served concurrently.

[3] The appellant has appealed against sentence.

The offending

[4] The victim in respect of the charges of injuring and breaching a protection order had been in an on-and-off relationship with the appellant for some three years. At the time of the offending, she was 16 weeks pregnant with their child.

[5] The Police summary of facts records that on the evening of the offending the appellant was at the victim’s house. This was despite there being a final protection order in place against the appellant, and strict bail conditions that he not associate with her. The appellant was intoxicated.

[6] The summary of facts further records that an argument developed and the appellant became enraged when he thought the victim was laughing at him. He grabbed hold of her bag straps and pulled her towards him, causing her to fall and smash her head on a nearby kitchen table. The victim then lay motionless on the ground for approximately ten minutes. She then slowly made her way to the door to get fresh air. The appellant grabbed her arm from behind, using his right arm to

place her in a “choker” hold, squeezing on her neck and causing her to lose her breath and become faint. The victim’s child was present during the incident.

[7] As a result of the incident the victim had a 3 cm laceration above her right eye, a minor cut inside her lip, soreness to her neck, bruising to her hip, and on her lower left leg.

[8] The charges of resisting arrest and threatening to kill arose when the Police arrived at the address the following day. The appellant was at the address. The attending Constable arrested the appellant for breach of his bail condition of non- association with the victim. The appellant became abusive, and shouted that if the Constable tried to enter the property he would shoot him.

Sentencing

[9] The Judge’s notes are brief. It appears from the record of the sentence indication that the Judge adopted a starting point of two years imprisonment on the lead offence of injuring with reckless disregard, then applied an uplift of six months to take account of the appellant’s extensive list of previous convictions and resistance to change. He then applied a discount of 25 per cent for the appellant’s early guilty plea to arrive at the final sentence of 22 months. That sentence was not increased to reflect the totality of the appellant’s offending, notwithstanding the concurrent sentences imposed.

Submissions

Appellant

[10] Ms Sykes submitted that the starting point of two years was too high. Referring to the sentencing bands set out in R v Harris,[1] she submitted that the Judge had placed the appellant’s offending at the top end of Band Two (appropriate for

_{moderate injuries) or the lower end of Band Three (for serious injury).}

[11] Ms Sykes referred to the recent judgment of R v Nuku,[2] where the Court of Appeal replaced the Harris bands, in which the sentencing bands set out in R v Taueki,[3] are adopted to apply to sentencing on charges under ss 189(2), 188(2), and 191(2) of the Crimes Act 1961. Under band two of the Nuku bands a starting point of up to three years imprisonment will be appropriate where three or fewer of the aggravating factors listed in Taueki are present. Ms Sykes submitted that there were only two of the Taueki factors present: the victim’s vulnerability, and the fact that her head was hit.

[12] Ms Sykes submitted that in light of the relatively minor injuries recorded in the summary of facts (I note that no victim impact statement was obtained) the starting point should have been 15 months rather than two years imprisonment.

[13] Ms Sykes submitted, however, that there were mitigating factors relating both to the offending and to the appellant which were not considered by the Judge. In relation to the offending, she submitted that the appellant was at the victim’s house at her insistence. Further, she provided a letter from the victim which confirms that at the time of the offending, she felt she had been betrayed by him, and had been unable to control her temper around him.

[14] As to matters relating to the appellant, Ms Sykes referred me to a letter from the appellant’s mother, in which she records that the appellant has had a history of mental health issues, and has ongoing problems with depression. She also confirmed that the time of the offending was a period of real volatility between the appellant and his former partner. Further, Ms Sykes submitted that the appellant has taken, and is continuing to take, steps to ensure that he does not have contact with the victim, and to deal with his other issues. He also has employment available upon his

_release.

Respondent

[15] Mr Simmers, on behalf of the respondent, submitted that the starting point was appropriate, and well within the range available to the Judge, and that the discount applied for the appellant’s guilty plea was appropriate, if not generous, particularly in light of the appellant’s lengthy history of previous convictions, particularly for violent offending and contravention of protection orders.

[16] Mr Simmers submitted, therefore, that the end sentence of one year and ten months was entirely within the range available to the Judge, and cannot be seen as manifestly excessive.

Discussion

[17] First, I note that the Court of Appeal’s judgment in Nuku does not apply to this case. The appellant was sentenced on 23 August 2012. The judgment in Nuku was issued on 13 December 2012. The Court of Appeal held, at [44], that the approach set out in the judgment was to be applied to sentencing taking place from the day after the date on which the judgment was delivered. The Court further held, at [45], that where an appeal is filed against a sentence imposed up to the date of the judgment, the Court would continue to apply the law as it stood prior to the release of its judgment in Nuku. Accordingly, therefore, the judgment in Harris is applicable.

[18] I am satisfied that the Judge made no error in adopting a starting point of two years imprisonment. The victim’s injuries are properly described as “moderate” and the Judge’s description of them is supported by medical evidence. Further, I am satisfied that the uplift of six months was appropriate. The Judge was entitled to conclude, from the appellant’s record of previous offending that he was resistant to change, justifying an uplift. Further, some uplift would have been justified on a totality basis in light of the three charges on which the appellant was given concurrent sentences.

[19] However, I have concluded that some reduction should have been applied in respect of the mitigating factors relating to the offending and to the appellant, referred to by Ms Sykes. Viewed globally, I consider that a reduction of three months from the starting point was appropriate.

[20] The discount of 25 per cent for the appellant’s guilty plea was appropriate,

and not seriously challenged.

[21] I have concluded that the final sentence imposed should have been 19 months imprisonment, rather than 22 months. A court on appeal against sentence should interfere only if a sentence is manifestly excessive. The court should not “tinker” with a sentence which is generally within an available range. Whether a sentence is within range, or manifestly excessive, must be considered in the context of the sentence under appeal. While a reduction of three months could properly be considered “tinkering” in the context of a longer sentence, that is not the case in the context of a sentence of 22 months.

Result

[22] The appeal is allowed. The sentence of one year and ten months imprisonment is quashed and a sentence of one year and seven months is substituted.

Andrews J

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[1] R v Harris [2008] NZCA 528, at [10].

[2] _{R v Nuku [2012] NZCA 584, at [38].}

[3] R v Taueki [2005] 3 NZLR 372 (CA)