Taniora v Police [2016] NZHC 2471 (17 October 2016)

Last Updated: 1 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-270 [2016] NZHC 2471

BETWEEN	JOSHUAH TANIORA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 October 2016
Appearances:	A Ives for the Appellant A McConachy for the Respondent
Judgment:	17 October 2016

_{ORAL JUDGMENT OF EDWARDS J}

Solicitors: Crown Solicitors, Auckland

Counsel: A Ives, Auckland

TANIORA v POLICE [2016] NZHC 2471 [17 October 2016]

Introduction

[1] Mr Taniora was convicted of threatens to kill,¹ male assaults female² and wilful damage³ following a three day Judge-alone trial. He was sentenced to two years three months’ imprisonment. Mr Taniora appeals this sentence on the basis that it is manifestly excessive.

Offending

[2] The charges relate to events on 28 July 2015. Mr Taniora rang the victim, whom he was in a relationship with, and asked her to collect him from a property in Glenfield.

[3] When she arrived, Mr Taniora got into the passenger seat of the victim’s car, unzipped his jacket and produced a machete. He then struck the victim in the face three times; head butted her on the left side of her body; grabbed her hair; and threw her around. That caused swelling to the left side of her face and a scratch on her chest.

[4] At the time Mr Taniora produced the machete he said to the victim, “I fucking told you, you fucking mongrel bitch. I’m going to fucking chop your head off and chop you up, you mongrel bitch.” He told her that he had sharpened the blade for her.

[5] Mr Taniora smashed the machete blade around the car, causing damage to the inside of the car; smashing the radio panel and knobs, wiper stem, steering wheel, top of the glove box, screen for the reversing camera, rear vision mirror and the windscreen.

[6] He instructed the victim to drive to various locations in Glenfield and

_{Beachaven. Mr Taniora continued to yell and threatened to chop off the victim’s}

¹ _{Crimes Act 1961, s 306. The maximum penalty is seven years’ imprisonment.}

² _{Crimes Act 1961, s 194(B). The maximum penalty is two years’ imprisonment.}

³ Summary Offences Act 1981, s 11(1)(a). The maximum penalty is three months’ imprisonment

or a $2,000 fine.

head and chop her up during the drive. The victim pleaded for her life throughout the ordeal.

[7] At one of the addresses Mr Taniora repeated his threats to a man at the property, telling him: “If you ever see this fucking bitch down here again you call me so I can chop her up”. He also telephoned his cousin, telling him that he was going to chop off her head.

[8] At another address he went inside, taking the victim’s keys and cellphone. She remained in the car. When he returned he instructed her to drive to the Glenfield Rugby Club. When they arrived at the Rugby Club the victim believed that he was going to kill her as it was isolated and dark. Mr Taniora told her that he hated doing it but she needed to learn. He stated, “If I have to I will chop your fucking head off and shake it just to get through to you.” He then directed the victim to return him to his address in Glenfield.

[9] The victim estimated that these events lasted 30 minutes to one hour although I note that the sentencing notes record an estimate of 45 minutes to one hour. The victim’s impact statement recorded that she felt terrified and scared for her life and was begging Mr Taniora not to kill her. She said she did not try to get away because she believed that Mr Taniora would hunt her down and she did not want to put her family and children in danger. She has been living in fear and in hiding since that day.

[10] The offending occurred whilst Mr Taniora was on bail for a charge of conspiracy to commit aggravated robbery. Mr Taniora pleaded guilty to that charge and was sentenced to 15 months’ imprisonment by Moore J on 8 April 2016.⁴

Sentencing decision

[11] The Judge took the lead charge as the threatening to kill charge. She considered that it was difficult to contemplate a more serious and grave example of

⁴ R v Taniora [2016] NZHC 610.

threatening to kill. She recorded the aggravating features of the offending as follows:

[32] I further uplift your sentence for the aggravating features of your offending, which include your use of actual violence and your use of a weapon – a machete, waving it around violently in the close confines of a car, and hitting and head butting the victim around the face and body; the fact that this offending took place over the course of approximately 45 minutes to an hour; the fact that the threats to kill were premeditated and planned, you having concealed the machete, which indicates to me a degree of premeditation. The fact that you made numerous threats to kill the victim throughout the ordeal and graphic threats, such as chopping her head off; that you were able to give effect to the threat and your victim believed that she was in actual danger, which is relevant pursuant to s 9(1)(a) of the Sentencing Act. You had a weapon, you were waving it irrationally, you detained your victim against her will in close proximity to the weapon, you took her to an isolated location, you intended for her to take your threat seriously and she believed she was going to die. You used a degree of specificity and precision in your threats by holding the machete and threatening her, yelling at her that you were going to chop her head off, going to slice her up, and had sharpened the machete especially for her. You also made threats not only to the victim but indirectly to a male friend in the victim’s presence, that if he saw her he should phone you and you can chop her up. You also phoned your cousin telling him that you were going to chop her up.

[12] A starting point of 30 months’ imprisonment for the lead charge of threatening to kill was adopted. This was then uplifted by three months for the additional two charges of male assaults female and wilful damage, and a further three months for the aggravating features of the offending. The Judge further uplifted the sentence by three months to reflect that the offending occurred whilst Mr Taniora was on bail for conspiracy to commit aggravated robbery. That led to a starting point of 39 months.

[13] The Judge referred to Mr Taniora’s previous convictions (which she estimated to be approximately 30 in total), including three previous convictions for threatening to kill, and two for wilful damage. However, no further uplift for those convictions was provided as she considered that those had, to some extent, been taken into account when Mr Taniora was sentenced by Moore J.

[14] The Judge applied a six month discount for Mr Taniora’s rehabilitative steps undertaken in prison, his support, and willingness to address his offending-related behaviours. The Judge declined to provide any discount for remorse.

[15] That brought the end sentence to 33 months’ imprisonment.

[16] The Judge then considered the totality with regards to the 15 months’ imprisonment imposed by Moore J. Whilst acknowledging that she was not obliged to take totality into account, she noted that it was in the interests of justice for her to do so, so as to avoid a disproportionate and crushing sentence. She adopted a six month discount for totality. The end sentence imposed was two years three months’ imprisonment.

Approach to appeal

[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

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

(b) a different sentence should be imposed.

[18] In any other case, the Court must dismiss the appeal.⁵ An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.⁶

[19] The Court of Appeal has also held that despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.⁷ Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the

_{sentence is reached.}⁸

⁵ _{Criminal Procedure Act 2011, s 250(3).}

⁶ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].}

⁷ _{At [33] and [35].}

⁸ Ripia v R [2011] NZCA 101 at [15].

Grounds for appeal

[20] Mr Taniora submits that the sentence imposed was manifestly excessive because:

(a) The starting point was too high; and

(b) The three month uplift for the other offending and further three months for other aggravating factors was in error.

Starting point

[21] Mr Taniora accepts that some aspects of the offending were at the more serious end of a threatening to kill charge, but submits that when compared to cases such as R v Sykes and Sila v Police, a starting point of 18 months’ imprisonment was appropriate.⁹

[22] As the Judge noted, there is no tariff decision for threatening to kill. The circumstances will invariably be decisive.¹⁰ The key factors in assessing the culpability of the offending include the premeditation, the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim.¹¹

[23] A number of these features were present in this case as the Judge noted. These included the large number and specific nature of the threats; the repetition of those threats to third parties; Mr Taniora’s ability to give effect to the threat with his machete; the danger posed to the victim by being confined in close proximity to the weapon; and the lengthy duration of the offending.

[24] Given these features, I consider the offending to be more serious than the offending in Sykes and Sila. While the defendant in Sykes pointed a pistol at the

⁹ R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009; and Sila v Police [2012] NZHC

_1982.

¹⁰ _{Burchell v R [2010] NZCA 314 at [25].}

¹¹ Faaleaga v R [2011] NZCA 495 at [11].

victim, the offending occurred over a much shorter period of time, and the subsequent threats involved a less immediate risk of harm to a single victim. Similarly, the threat in Sila was shorter in duration, less immediate, and did not involve the same number of threats. The 12 month starting point adopted in that case did not include the unlawful entry.

[25] I have considered the other cases cited by Mr Taniora in a footnote in his written submissions. I consider the offending to be more serious than those in which an 18 month or two year starting point was adopted.¹² I consider the starting point of

30 months to be within range particularly in light of some of the cases in which a significantly higher starting point was adopted for the threatening to kill charge.¹³

These cases simply emphasise the fact specific nature of the inquiry.

[26] Taking into account the starting points adopted in all of these cases I do not consider that the 30 months adopted by the Judge was out of the available range. In any respect, it is the end sentence which is the focus of any appeal.

Uplift for additional offending and aggravating factors

[27] Mr Taniora also submits that a three month uplift for the aggravating features and a further three month uplift for the other charges amounted to double counting and led to an end sentence that was manifestly excessive.

[28] Whether a further uplift of the three months for aggravating factors meant the starting point was out of all range is open to debate given the three year starting points adopted in other cases of arguably comparable offending. Nevertheless, I accept Mr Taniora’s submissions that the uplift for the aggravating features of the offending appears to be in error in this case as the starting point was fixed with reference to those features.

[29] However, I do not accept that the Judge placed excessive weight on certain aggravating factors as Mr Taniora submits. That there was an element of detention

¹² Cockburn v R [2015] NZCA 51; Burton v R [2014] NZCA 221; Simon v R [2014] NZCA 207;

_{Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.}

¹³ Simon v R, above n 12; Burton v R, above n 12. See also Freakley v R [2010] NZCA 497.

was clear from the fact that the victim’s keys and cellphone were taken by Mr Taniora on at least one occasion, and the victim’s own evidence that she did not try to leave because she was fearful Mr Taniora would hunt her down. The concealment of the machete clearly supports a basis that there was premeditation. The Rugby Club was an isolated location. These features were accurately taken into account and justified the starting point adopted, in my view.

[30] In terms of the uplift for other offending, I do not necessarily accept that the assault offending and wilful damage were taken into account in assessing the aggravating features. But in any event, if they were, I do not consider it to be a material error.

[31] I consider a separate uplift for the male assaults female charge would have been appropriate in this case. The charge involved additional actual violence inflicted upon the victim which was separate to the threats to kill her with a machete. The violence included blows to her face and head. It resulted in physical injuries including a swollen ear, and swelling to the left side of her mouth and cheek. A three month uplift for the assault charge alone would have been appropriate in my view.

[32] Furthermore, the starting point adopted would still have been within range, even if actual violence was not taken into account as an aggravating factor. To the extent that there was double counting therefore, I do not consider it to be an error that vitiated the sentence.

[33] Accepting that the additional three month uplift for aggravating features was in error, the appropriate starting point for the offending was 33 months’ imprisonment.

Other adjustments

[34] Mr Taniora does not challenge the uplift for the offending on bail (three months), nor the discounts for personal factors (six months). I observe, however, that the six month discount for Mr Taniora’s rehabilitation and efforts to

turn his life around was generous, and something less than that may well have been justified in the circumstances.

[35] Applying those uplifts and discounts to the starting point of 33 months’

imprisonment, the end sentence reached would be 30 months’ imprisonment.

[36] The final step is the adjustment for totality. The Judge adopted a six month discount. As the Judge noted in this case cumulative sentences would have been appropriate for the two sets of offending as the aggravated burglary occurred nine months earlier, involved an unrelated offence and an intended victim. I consider a much smaller discount than the six month discount adopted by the Judge would have been justified in the circumstances. A three month discount for totality would have resulted in an end sentence of 27 months which is the same end sentence ultimately imposed by the Judge. A four or even five month discount would have resulted in a sentence approximate to the 27 months imposed. Any interference in that respect would be mere tinkering with the sentence.

[37] Accordingly, to the extent that there were errors in the sentencing process, the generous discounts the Judge gave for rehabilitative efforts and totality mean that I consider the end sentence was within range and not manifestly excessive.

Result

_{[38] The appeal is dismissed.}

_{Edwards J}

.