Te Moananui v R [2014] NZHC 2320 (23 September 2014)

Last Updated: 9 October 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000029 [2014] NZHC 2320

BETWEEN	DANIEL TIPENE TE MOANANUI Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2014
Appearances:	S A Saunderson-Warner for Appellant R P Bates for Respondent
Judgment:	23 September 2014

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] The appellant Mr Te Moananui appeals against a sentence of three years and two months’ imprisonment imposed by Judge Phillips in the Dunedin District Court on 6 August 2014 for the following charges:

(a) burglary;¹

(b) assault with intent to injure;² and

(c) theft.³

[2] Mr Te Moananui appeals on grounds that the sentence Judge Phillips imposed was manifestly excessive. The sole ground of appeal however is that Judge Phillips

¹ _{Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.}

² _{Sections 193 and 66(2). Maximum penalty of three years’ imprisonment.}

³ _{Section 219. Maximum penalty of three months’ imprisonment.}

TE MOANANUI v R [2014] NZHC 2320 [23 September 2014]

erred in applying an uplift of two years’ imprisonment for the charge of assault with intent to injure.

[3] Also on 6 August 2014, Mr Te Moananui’s co-offender, Mr Zane Currie, was sentenced to six years’ two months imprisonment on the lead charge he was facing of causing grievous bodily harm with intent to injure.

Background facts

Burglary and assault with intent to injure

[4] On 8 December 2013 Mr Te Moananui and his associate Mr Currie were at Mr Currie’s address in Kaka Point. The two had been heavily drinking alcohol during the afternoon and smoking cannabis.

[5] At about 5.30 pm, they left Mr Currie’s address on foot heading to the victim’s address, also in Kaka Point. Both Mr Te Moananui and Mr Currie were wearing hooded sweatshirts with the hoods pulled up and bandanas worn over their faces in an attempt to conceal their identities.

[6] At that time, the first victim, a 65 year old female, was asleep on a chair in the lounge of her home. Mr Te Moananui and Mr Currie entered the property through an insecure garage door at the rear of the address and went into the lounge area.

[7] Mr Currie then attacked the victim while she slept, delivering multiple blows to her face and head. Mr Currie then dragged the victim from her chair and onto the floor where he continued the attack. The first victim received multiple serious head and facial injuries as a result of the attack, was hospitalised, and she had to undergo several serious repair operations.

[8] At this point, the second and third victims, a 55 year old man and a 65 year old man, both of whom observed Mr Te Moananui and Mr Currie inside the address, went to investigate. As they approached the lounge ranch slider door they saw Mr Te Moananui and Mr Currie standing near the kitchen bench where the 65 year

old female victim was later discovered. While walking along the front of the property they observed Mr Te Moananui and Mr Currie in the bedroom.

[9] At this point Mr Te Moananui and Mr Currie realised they had been seen and ran away from the address. The two male victims headed towards the driveway at which point they met Mr Currie walking toward them.

[10] They challenged Mr Currie. Mr Currie then punched the second victim once to the face and knocked him to the ground. Mr Currie then turned and swung a punch at the third victim, which grazed the left side of his face.

[11] A struggle ensued, which resulted in Mr Currie pushing the third victim to the ground and then running from the address.

Theft

[12] At 6.29 p.m. that day, 8 December 2013, Mr Currie went into the Rosebank

Lodge Super Liquor Bottle Store.

[13] The Bottle Store was not staffed at the time and Mr Currie took several bottles of liquor and ran off through the car park. Mr Currie ran to Mr Te Moananui’s vehicle, which was parked nearby and the two men drove away from the scene.

[14] Mr Te Moananui spoke to police the next day, on 9 December 2013. He admitted going to the female victim’s address and recalled being inside the property, but stated he had no recollection of what had occurred there.

[15] Mr Te Moananui has since accepted that there was a common intention with Mr Currie to commit a burglary and he has accepted that a confrontation and assault with intent to injure was a probable consequence of that common intention. He also acknowledged that he had waited for Mr Currie outside the Bottle Store.

Injuries sustained by the female victim

[16] So far as the injuries sustained by the female victim are concerned, as I have already noted these injuries were extensive. She spent five weeks in care. She now suffers from permanent damage to her eye sockets. She has had to learn to walk again. She can only work a couple of hours each day as she has short concentration span and no short term memory. She has been traumatised by the offending.

Judge Phillips’ decision

[17] Turning now to the District Court decision, in that decision Judge Phillips adopted burglary as the lead offence for Mr Te Moananui. And, in reaching a starting point, Judge Phillips found the following aggravating features present:

(a) the use of disguises;

(b) the nature of the burglary;

(c) the knowledge that there were people in the property; (d) premeditation; and

(e) the vulnerability of the victim.

[18] After taking these factors into account, Judge Phillips settled on a starting

point of two years and six months’ imprisonment.

[19] From that starting point, he imposed a two year uplift to reflect the violence of the offending to which Mr Te Moananui was a party. He imposed a further uplift of one month to reflect the theft offence. This brought the adjusted starting point to one of four years and seven months’ imprisonment.

[20] For mitigating factors, Judge Phillips accepted that Mr Te Moananui: (a) has had no convictions since 2008;

(b) although Mr Te Moananui was present at the offending, he did not actually cause any of the physical injuries suffered;

(c) was entitled to a full 25% discount for his guilty plea;

(d) had made clear expressions of remorse, which attracted a further 5%

discount.

[21] This brought the end sentence to one of three years and two months’

imprisonment.

[22] Judge Phillips then had regard to totality, and determined that it was appropriate in the circumstances that Mr Te Moananui would serve that sentence of three years and two months’ imprisonment.

[23] Judge Phillips also sentenced to Mr Te Moananui to 18 months’ imprisonment for the assault with intent to injure and one month for the charge of theft, these to be served concurrently. He also ordered Mr Te Moananui to pay

$7500 in reparation.

Legal principles governing an appeal

[24] I turn now to the legal principles governing an appeal. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. The section provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[25] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundation for a successful appeal. The types of

error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:⁴

(a) The section reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.⁵ If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(d) In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has

_{been an arithmetical error).}

⁴ _{Tutakangahau v R [2014] NZCA 279 at [26]- [36].}

⁵ R v Shipton [2007] 2 NZLR 218 (CA) at [139].

Analysis

[26] Turning now to an analysis with respect to the present case, it is well- established that an appellate Court should not interfere with a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle.⁶ In particular, the Court should not substitute its own opinion for that of the sentencing Judge.⁷ Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.⁸

[27] A sentencing Judge dealing with the offence of burglary is required to fix a starting point identifying the culpability inherent in the offending by reference to its circumstances.⁹ It is the intrinsic nature and gravity of the offence charged that are the primary considerations. The circumstances of the offending predominate in fixing the starting point.¹⁰

[28] In this case in my view the following circumstances are relevant:

(a) There was a degree of premeditation to commit the burglary.¹¹

(b) There was unlawful entry into a dwelling house.¹²

(c) Because the premises were a residential dwelling, there was a heightened risk of confrontation with the occupiers. The fact that Mr Te Moananui was prepared to run that risk is an aggravating feature of the offending.

(d) The offending occurred in the evening, when it would be likely the house would be occupied.

⁶ _{R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.}

⁷ _{Wells v Police [1987] 2 NZLR 560 (HC) at 565.}

⁸ _{R v MacCulloch [2004] NZCA 221; [2005] 2 NZLR 665 (CA) at [50].}

⁹ _{Wilson v R [2012] NZHC 65 at [17].}

¹⁰ _{R v Columbus [2008] NZCA 192 at [13].}

¹¹ _{Sentencing Act 2002, s 9(1)(i).}

¹² Section 9(1)(b).

(e) The house was occupied. The occupier was an elderly female.¹³ She was asleep in a chair in the lounge at the time. She was awoken when Mr Te Moananui and Mr Currie broke in. I have read the victim impact statement prepared by this victim, and note that Mr Te Moananui’s actions have had a significant and devastating effect both emotionally and physically on her and her husband.

(f) The female victim was intentionally and brutally assaulted by Mr Currie. By being present, Mr Te Moananui was a party to that assault.¹⁴

[29] In my assessment, a possible argument does lie here that Judge Phillips may have made an error when he imposed a two year uplift for the charge of assault with intent to injure to the two years and six months’ imprisonment starting point for the lead charge of burglary. This uplift represents two-thirds of the maximum penalty available with respect to the charge of assault with intent to injure, an assault in which it seems Mr Te Moananui had no direct involvement although as a party he simply stood by and did nothing.

[30] Arguably an uplift of no more than about 12 months could have been adopted to bear a reasonable relationship to the starting point adopted for the lead charge.¹⁵

But on this aspect Mr Bates for the Crown submitted to me that the uplift of two years for the assault with intent to injure charge is appropriate in the circumstances here because of the following factors:

(a) The victim was elderly and vulnerable; (b) She was asleep in her own home;

(c) Any degree of injury to such a person in those circumstances is likely

_{to have a significant impact on his or her wellbeing;}

¹³ _{Section 9(1)(g).}

¹⁴ _{Sentencing Act 2002, s 9(1)(a).}

15. Taylor v R [2012] NZCA 332 at [46]; applying the principles governing an uplift for previous convictions.

(d) The appellant accepts he was present when injuries were inflicted (but he has said he cannot remember that aspect). It must be accepted however that the assault with intent to injure was a likely consequence in my view of the parties’ common intention to burgle the property;

(e) No assistance was rendered to the victim. Rather Mr Te Moananui and Mr Currie decamped and proceeded to steal alcohol elsewhere to continue drinking.

(f) This was not a totally random property chosen. Both offenders knew the area and its inhabitants; and

(g) The appellant has numerous previous convictions including a conviction for assault on police in 2008.

[31] Considering these factors I accept there is some substance in the submissions advanced to me by Mr Bates.

[32] But I am satisfied that if Judge Phillips had indeed adopted a starting point for the lead charge of burglary at a higher figure of three years and six months’ imprisonment, which in my view was within range under the circumstances prevailing here¹⁶ and then imposed a 12 month uplift to reflect the assault with intent to injure charge, he would have provisionally reached the same adjusted starting point of four years and seven months’ imprisonment.

[33] I do however also consider that imposing the further uplift of one month which Judge Phillips did to reflect the theft charge might well be considered here to be an error as well, but an adjustment by one month in my view in this case would amount to “tinkering” when having regard to the adjusted starting point of four years and seven months’ imprisonment.

[34] So far as the discounts are concerned I am satisfied Judge Phillips was correct

_{in the discounts he applied for Mr Te Moananui’s mitigating factors being the}

¹⁶ S (CA115/2013) v R [2014] NZCA 84.

maximum 25% discount for his guilty plea and the 5% discount for his expressions of remorse.

[35] In conclusion then I am not satisfied in this case that although Judge Phillips may on one view have erred to an extent when he imposed the two year uplift to the lead charge and further by imposing the one month uplift for the theft, that these necessarily resulted in an end sentence that was manifestly excessive and therefore a different sentence should be imposed. The end sentence here of three years and two months’ imprisonment in the circumstances of this offending in my view was well within the range available. I conclude therefore that there was no miscarriage of justice here.

Conclusion

[36] That said, accordingly, the appeal should be dismissed.

...................................................

Gendall J

Solicitors:

Aspinall Joel, Dunedin

RPB Law, Dunedin