Mareraki v Police [2015] NZHC 161 (13 February 2015)

Last Updated: 23 February 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000124 [2015] NZHC 161

BETWEEN	MARGARET MARERAKI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2015
Appearances:	K Paima for Appellant D L Elsmore and N A Pointer for Respondent
Judgment:	13 February 2015

_{JUDGMENT OF GENDALL J}

Introduction

[1] This is an appeal against a sentence imposed on 23 October 2014 by Judge Crosbie in the Christchurch District Court¹ of 100 hours’ community work and six months’ supervision following a guilty plea on one charge of common assault under s 9 of the Summary Offences Act 1981.

[2] Ms Mareraki now appeals that sentence on the basis that:

(a) The sentencing Judge erred by taking into account an irrelevant consideration; and

(b) That ultimately the sentence imposed in the prevailing circumstances was manifestly excessive.

¹ _{NZ Police v Mareraki CRI-2014-009-9419.}

MARERAKI v NEW ZEALAND POLICE [2015] NZHC 161 [13 February 2015]

[3] On the basis that her argument on this appeal may be successful, counsel for the appellant submits that one of the following two alternative sentences might be considered here as appropriate:

(a) A fine, together with an order of reparation to be paid to the victim; or

(b) The sentence of community work is quashed with the supervision sentence remaining undisturbed.

Background

[4] The assault charge followed an incident which took place on 5 October 2014 when the police were attending a call-out to a party at Clyde Road, Bryndwr. Fighting had broken out at the gathering earlier in the evening. The female victim had already received injuries to her head, presumably from her participation in the earlier altercation. While the police were in attendance, the victim approached Ms Mareraki, who physically assaulted her by grabbing the victim around the head, bending her forward at the waist and punching her twice in the face using an uppercut style punch.

[5] When questioned by police about her actions, Ms Mareraki admitted punching the victim, but said she only did so because it was the victim who had started the fighting earlier in the night, and this had caused injury to Ms Mareraki’s mother.

[6] On 23 October 2014 Ms Mareraki appeared before Judge Crosbie in the District Court and was represented by a duty solicitor. A guilty plea was entered and counsel submitted the offending was out of character in that Ms Mareraki had not offended for almost four years, she was now a full time student and she was a single parent.

[7] Judge Crosbie however did not appear to accept there was any evidence of change in her life and it seems he chose to interpret the events as evidence that Ms Mareraki had “gone back into her old ways”. He concluded the offending was “moderate to serious assault indicative of an anger issue”, that the assault was not

part of the general melee occurring after these events, and that Ms Mareraki was a woman who had anger issues and needed help. As to this aspect, the six months’ supervision sentence was imposed specifically to attend a Stopping Violence programme.

[8] Judge Crosbie also stated that Ms Mareraki was “completely unco-operative with the police so she needs some help with that” although it is conceded now that he was wrong to conclude that it was Ms Mareraki who was “completely unco- operative” as this was a comment referring not to her but to the victim.

The law

[9] In terms of s 244 Criminal Procedure Act 2011 Ms Mareraki is able to appeal the sentence imposed on her as of right. This Court will only disturb the sentence appealed from if she can establish that there was an error in the sentence imposed and that a different sentence should be imposed – s 250 Criminal Procedure Act

2011. In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3).²

[10] And here, the combination sentence imposed by the Court utilised s 20 of the Sentencing Act 2002. In order to impose a combination sentence the Court must be satisfied that imposing one of the sentences alone or any less restrictive sentence combination would not accord with the purposes for which the sentence is imposed or the s 8 principles as applied to the case.

[11] With respect to a sentence combination of community work and supervision as imposed here, this may only be imposed if the sentence of community work is appropriate but the offender requires the imposition of standard or special conditions available under supervision to address the causes of the offending – s 20(2)(a) and

_{(b) Sentencing Act 2002.}

² Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[12] Here Judge Crosbie in the District Court assessed Ms Mareraki’s offending to be a moderate to serious assault and went on to comment that she was lucky not to face a charge of Crimes Act assault.

[13] Although it is clear that there is no tariff for charges of assault under the Summary Offences Act 1981 it is useful here to briefly consider three decisions which were referred to me by Ms Elsmore for the Crown.

[14] The first, Kataina-Marii v New Zealand Police³ involved the Court in confirming a starting point of two months imprisonment in circumstances where the appellant endeavoured to punch a security guard and missed.

[15] Next I was referred to the Court of Appeal decision in Sika v R⁴ where a sentence of six months’ imprisonment was quashed and a lesser sentence of three months imposed on a charge of common assault where the appellant had punched a fundraiser without provocation causing bruising to his cheek.

[16] The last decision to which I was referred was Sausoo v New Zealand Police.⁵

In that case, the High Court did not interfere with a sentence of 100 hours’ community work where the appellant had given the victim two punches to the head in an unprovoked assault. There the High Court noted that although the sentence was stern it reinforced principles of denunciation and deterrence.

Counsel’s arguments and my decision

[17] Here counsel for the appellant in his submissions advanced nine considerations that he suggested justified a lesser punishment in this case. These were:

(a) The low level nature of the charge;

_{(b) The early guilty plea;}

³ _{Kataina-Marii v New Zealand Police [2012]NZHC 3497.}

⁴ _{Sika v R [2011] NZCA.}

⁵ Sausoo v New Zealand Police CRI-2009-404-301.

(c) The prevailing circumstances whereby an inference of provocation might be drawn;

(d) The absence of any prior violent offending in the appellant’s history; (e) The distance between prior offending and present offending;

(f) The evidence of the appellant’s remorse by presentation of her

unsolicited letter of apology;

(g) The personal circumstances of the appellant in that it is said first, that she was endeavouring to improve herself by engaging in a course of full time study and, secondly, that she had sole responsibility for her two year old daughter;

(h) The erroneous consideration that Ms Mareraki had been completely unco-operative with the police when in fact this related to the victim; and

(i) The absence of any outstanding fines payable to the Court.

[18] In response to these, and the appellant’s earlier suggestions as to what sentence might be appropriate here, the respondent contended that unprovoked blows to the head of the kind admitted by the appellant here were simply too serious to be dealt with by way of a fine. Ms Elsmore for the respondent contended that it was not fairly arguable here that community work at the level ordered was an inappropriate sentence for this type of offending, nor that Judge Crosbie had made an error in concluding the appellant would benefit from an anger management course, given the admitted facts.

[19] As to aggravating features here, the respondent contended that the two punches delivered to the victim’s face were in the upper echelon of common assault offences and this was reflected by Judge Crosbie assessing this offending as a “moderate to serious assault”. That the victim was already suffering from injuries when this assault occurred was also suggested to be an aggravating feature, and the

fact the altercation happened within the direct view of the police, suggested a level of blatancy about it.

[20] Next, the appellant’s extensive criminal history largely made up of dishonesty offences was noted. The respondent conceded however that there was an absence of any violent offending in the past and also that Ms Mareraki had not offended since March 2010.

[21] And against matters raised by the respondent, it does seem clear that the victim in this case did not appear to be completely blameless, Ms Mareraki recognised early in the piece that what she had done was wrong, she co-operated with the police and entered a guilty plea, and certainly in terms of her personal circumstances, her need to care for her two year old daughter and her enrolment in the course of full time study were relevant factors.

[22] Before me Mr Paima for the appellant did concede that there were some similarities between the present case and the circumstances that prevailed in Sausoo v New Zealand Police although that latter case involved three offenders against one. In Sausoo the appellant punched a 16 year old victim twice in the head while two of her associates assisted in the assault. The appellant in that case was 18 years of age and was sentenced to 100 hours community work.

[23] On appeal in Sausoo, Wylie J considered that the sentence suggested the District Court Judge took a starting point of 150 hours’ community work which allowed for mitigating factors such as the appellant’s age, her early guilty plea and her lack of previous convictions.⁶ His Honour concluded that the sentence was not manifestly excessive and if anything was a little light.⁷ It must be accepted here, however, that aggravating features of the assault in Sausoo seemed to be a little

greater than in the present case. The assault appeared to be more violent. Also the victim in that case was only 16 years old, and in her victim impact report stated that she was too scared to go back to the library which was the place the assault took

_{place. Although it must be noted the assailant in that case was only 18 years old,}

⁶ _{At [17].}

⁷ At [18].

here Ms Mareraki is 28 years old, so in one sense it might be thought that she should be somewhat wiser.

[24] Taking into account the difference in aggravating features between these two cases, an appropriate starting point with respect to Ms Mareraki might be 100 hours’ of community work. Applying uplifts and discounts for aggravating and mitigating features and a guilty plea discount in my view would likely result in an end sentence in the region of the 100 hours’ community work which was imposed. The behaviour here was brazen, it involved what could have been very dangerous blows to the head, and it seems it was retribution for what was regarded as an earlier event involving the victim. I agree this was too serious a matter to be dealt with simply by a fine.

[25] And the conclusions reached by Judge Crosbie that Ms Mareraki was a woman who had anger issues and needed help and, although there had been a break in her offending recently, she had a long list of previous offending, was unobjectionable.

[26] In spite of the erroneous reference to the appellant’s non-co-operation attitude with the police (which is now acknowledged as wrong), I find there is no error in the end sentence imposed by Judge Crosbie.

[27] This appeal is accordingly dismissed.

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

Gendall J

Solicitors:

Better Lawyers, Christchurch

Raymond Donnelly & Co, Christchurch