Kanuta v R [2016] NZHC 436 (14 March 2016)

Last Updated: 21 March 2016

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-470-5 [2016] NZHC 436

BETWEEN	TEOMOEKA MARAKORI KANUTA Appellant
AND	THE QUEEN Respondent

Hearing:	14 March 2016
Counsel:	J Owers for Appellant K E Martley for Respondent
Judgment:	14 March 2016

_{JUDGMENT OF BREWER J}

Solicitors: Public Defence Service (Tauranga) for Appellant

Hollister-Jones Lellman (Tauranga) for Respondent

KANUTA v THE QUEEN [2016] NZHC 436 [14 March 2016]

Introduction

[1] On 3 February 2016 in the District Court at Tauranga, Judge PS Rollo sentenced Mr Kanuta to 20 months’ imprisonment.¹ Mr Kanuta had pleaded guilty to one charge of assault with intent to injure,² one representative charge of breach of community work³ and two charges of breach of supervision order.⁴ The lead offence is the assault with intent to injure, which carries a maximum sentence of three years’

imprisonment.

[2] Mr Kanuta appeals his sentence of imprisonment. He appeals on the basis that it is manifestly excessive and that the Judge should have commuted the sentence from imprisonment to home detention.

Facts

[3] At the time of the offending, Mr Kanuta had been in a domestic relationship with the victim for approximately two years. They were living together. On the morning of 8 November 2015, Mr Kanuta went to a friend’s house in Point England, Auckland. There was a number of people present, including the victim. The victim asked angrily where Mr Kanuta had been during the previous night. Mr Kanuta ignored her. The victim continued to yell angrily at Mr Kanuta. Mr Kanuta continued to ignore her.

[4] The victim then punched Mr Kanuta four or five times in the head with a closed fist. Mr Kanuta retaliated by punching the victim in the head with a closed fist. The force of that first punch caused the victim to fall to the ground unconscious. While she was lying unconscious, Mr Kanuta sat on top of her and began choking her with both hands around her neck. The victim eventually regained consciousness and managed to fight Mr Kanuta off. Mr Kanuta then kicked her a number of times in the head and returned to choking her. As a result of the offending, the victim

_{sustained swelling and bruising to her face and scratching around her neck.}

¹ _{Police v Kanuta [2016] NZDC 1796.}

² _{Crimes Act 1961, s 193.}

³ _{Sentencing Act 2002, s 71(1)(a).}

⁴ Sentencing Act 2002, s 70(a).

[5] When spoken to by Police, Mr Kanuta explained that he had been drunk on the morning of the offending. He did not claim self-defence.

Previous conviction

[6] The biggest problem for Mr Kanuta in mounting this appeal is that this was not the first time he had used violence against the victim.

[7] On 24 July 2015, Mr Kanuta was sentenced on another charge of assault with intent to injure in respect of the same woman. That offending occurred on

13 December 2014 and involved some similar features. Mr Kanuta was drunk and became embroiled in a heated argument with the victim. Mr Kanuta put the victim into choke holds and prevented her from breathing. Further, he had an earlier charge of common assault involving the same victim and was sentenced for that charge also on 24 July 2015.

Judge Rollo’s decision

[8] Judge Rollo assessed the offending as “very serious”⁵ and “at a high level” for assault with intent to injure”.⁶ The Judge was concerned about the prevalence of cases involving the strangulation of women by their male partners and he emphasised how dangerous such assaults are inherently. The Judge also noted the

following aggravating features that increased the seriousness of Mr Kanuta’s

offending:⁷

(a) Repeat victimising of the same person; (b) The repeat strangulation;

(c) The fact that Mr Kanuta was being supervised as part of a sentence for his previous offending against the victim;

(d) The fact Mr Kanuta kicked the victim several times to the head and face.

In view of these factors, Judge Rollo adopted a starting point of two years’

imprisonment.⁸

[9] The Judge then uplifted the sentence by four months to take account of the concurrent offending of breach of supervision and breach of community work.⁹ The Judge increased the sentence by a further four months to take account of Mr Kanuta’s previous conviction for similar offending and the fact that the present offending took place during a period of supervision.¹⁰

[10] The Judge allowed an eight months discount to take account of:¹¹

(a) Mr Kanuta’s early guilty pleas;

(b) Mr Kanuta’s personal circumstances as laid out in the pre-sentence report;

(c) The fact that Mr Kanuta obtained stable employment since moving to

Tauranga.

[11] On this basis, the Judge sentenced Mr Kanuta to 20 months’ imprisonment. There appears, however, to have been a mathematical error. The Judge adopted a starting point of two years’ imprisonment – that is, 24 months’ imprisonment. He then increased the sentence by eight months to take account of aggravating features. He decreased the sentence by the same amount. That should have left a final sentence of 24 months’ imprisonment rather than the 20 months handed down by the Judge.

[12] The error appears to have carried all the way through the sentencing process. After increasing the sentence by eight months, the Judge commented that he had

⁸ At [22].

reached a “top point of 28 months’ imprisonment”.¹² This illustrates that the Judge had mistakenly assumed his starting point of two years’ imprisonment equated to

20 months’ imprisonment.

[13] After reaching his final sentence, the Judge declined leave for a substituted sentence of home detention. He also imposed standard and special release conditions for six months after the sentence expiry date, being the conditions referred to in the pre-sentence report.

[14] The Judge sentenced Mr Kanuta to two months’ imprisonment for the breach of community work and to one month’s imprisonment for the breach of supervision. Both of those sentences are to be served concurrently.

Issues on appeal

[15] Mr Owers, for Mr Kanuta, submits that the sentence was manifestly excessive because:

(a) Insufficient weight was given to the way in which the victim provoked Mr Kanuta;

(b) The uplifts for breaches of community based sentences were excessive.

[16] Mr Owers submits also that the Judge erred in exercising his sentencing discretion and should have commuted the sentence from imprisonment to home detention. Regarding a substituted sentence of home detention, Mr Owers submits that such a sentence would fulfil the principles of sentencing, particularly emphasising rehabilitation in the particular case, and submits that it was the least restrictive outcome in the circumstances.

Approach on appeal

[17] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.¹³ The principles behind the law are well known, and are not changed by the Criminal Procedure Act 2011.¹⁴ A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been

having regard to the seriousness of the offending and the culpability of the offender.¹⁵

[18] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather

than the process by which the sentence is reached.¹⁶ Accordingly, I will consider the

sentencing exercise afresh.

[19] Relevant to this case, an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.¹⁷ The question is whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.¹⁸ The decision about whether home detention will adequately respond to the seriousness of the offending is an evaluative exercise for the sentencing Judge.¹⁹

Starting point

Starting point for assault with intent to injure

[20] Mr Owers argues for a lower starting point on the basis that Mr Kanuta was

provoked by the victim’s conduct. In support of this submission, Mr Owers points to

_{s 9(2)(c) which provides that the conduct of the victim can be a mitigating factor,}

¹³ _{Sentencing Act 2002, s 250.}

¹⁴ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

¹⁵ _{At [33], [35].}

¹⁶ _{Ripia v R [2011] NZCA 101 at [15].}

¹⁷ _{James v R at [17].}

¹⁸ _{James v R at [17].}

¹⁹ R v D [2008] NZCA 254 at [66].

and also to a paragraph in R v Taueki holding that provocation may justify a lower starting point in cases involving grievous bodily harm.²⁰ In discussing provocation, the Court in Taueki held:²¹

Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

(Emphasis added)

In my view, these comments do not materially assist Mr Kanuta’s appeal. This is because the victim’s provocation ceased to remain an operative cause of the offending as soon as Mr Kanuta landed his initial punch. The strangulation began after the victim had been rendered unconscious. On this basis, any mitigating impact of the victim’s conduct must be seen as limited.

[21] The case of Brown v R supports this analysis.²² In that case the appellant had been convicted and sentenced in respect of one charge of injuring with intent to injure. The complainant had slapped the appellant and told him that he would never see his children again. The appellant responded by punching the victim in the face and then placing his knee on her chest, causing her to have difficulty breathing. On the issue of provocation the Court said:²³

It was not a temporary loss of control explained by the complainant’s conduct. It was a sustained and serious assault on the complainant, disproportionate to the event said to have provoked it, such that it cannot be said to be, or have remained, an operative cause of the assault.

[22] The authorities, therefore, do not support the submission that the Judge gave insufficient weight to the element of provocation. Nevertheless, I have reached the conclusion that the starting point adopted by the Judge was excessive. I now give

_{my reasons.}

²⁰ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769 at [32].}

²¹ _{At [32].}

²² _{Brown v R [2014] NZCA 93.}

²³ At [9].

[23] Despite the seriousness of the offending, Mr Kanuta was charged with assault with intent to injure, which carries a maximum penalty of three years’ imprisonment. That was a deliberate prosecutorial decision. By way of contrast, injuring with intent to injure carries a maximum penalty of five years’ imprisonment²⁴ and wounding with intent to injure carries a maximum penalty of seven years’ imprisonment.²⁵ The Court of Appeal held in Nuku v R that the guideline judgment of Taueki can be

adapted from grievous bodily harm offending to apply to offending involving wounding or injuring with intent to injure.²⁶ Nuku did not refer, however, to the lesser charge of assault with intent to injure. As a result, the sentencing bands which guide sentencing discretion in respect of the more serious charges do not apply to assault with intent to injure.

[24] However, there is High Court authority holding that Nuku can assist when sentencing offenders in relation to assault with intent to injure charges.²⁷ They identify that Taueki can be used to help identify the aggravating features of the offending. Thereafter, determining the sentence must be done on first principles. The Court of Appeal has made it clear that there should not be a mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty.²⁸

[25] Counsel for the Crown in written submissions relied on Taueki and Nuku in support of the submission that the sentence was not manifestly excessive. It was argued that the offending should be placed within band two of Nuku, which provides for a starting point of up to three years’ imprisonment. It follows from what I have just said that I am of the view that reference to these sentencing bands is largely

_unhelpful.

²⁴ _{Crimes Act, s 189(2).}

²⁵ _{Crimes Act, ss 188(2) and 191(2).}

²⁶ _{Nuku v R [2012] NZCA 584.}

²⁷ Nunna v Police [2015] NZHC 2971 at [37]; Nelson-Wright v Police [2015] NZHC 2302 at [16];

_{Kohu v Police [2013] NZHC 944 at [12].}

²⁸ Nuku v R at [8]; citing R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison [2007] NZCA

78 at [23]; and R v D (CA253/08) [2008] NZCA 267 at [43].

[26] Under s 8(e) of the Sentencing Act, the Court must strive for consistency with similar offending. There is a number of assault with intent to injure cases which share many features with the present offending. I now review some of them:

(a) Sharma v R involved assault with intent to injure on a former partner.²⁹ The offender gained entrance to the victim’s home, pushed the victim to the ground quite hard, grabbed her around the neck and choked her until she began to lose consciousness. The Court of Appeal upheld a starting point of 15 months’ imprisonment for the assault with intent to injure charge.

(b) Teka v Police also involved a charge of assault with intent to injure in a domestic setting.³⁰ The offender was intoxicated and angry. He threw the victim to the ground and strangled her for a prolonged period of time. The Police had to pull the offender off the victim. Justice Venning reduced the starting point from 18 months’ imprisonment to 15 months on appeal.

(c) In Wilson v Police, the offender faced a charge of assault with intent to injure for striking his partner in the face and then strangling her until she was unable to breathe.³¹ Justice Kós reduced the starting point from 15 months to 12 months’ imprisonment on appeal. In doing so, Kós J was significantly influenced by the case of R v Richardson.³²

(d) In Richardson, the offender punched his pregnant partner in the stomach until she was forced to curl up on the ground in an attempt to protect herself. The offender continued to attack her arms and legs. Justice Chisholm adopted a starting point of 12 months’

_{imprisonment.}

²⁹ _{Sharma v R [2015] NZCA 468.}

³⁰ _{Teka v New Zealand Police HC Auckland CRI-2009-404-0253, 7 September 2009.}

³¹ _{Wilson v Police [2012] NZHC 2503.}

³² R v Richardson [2012] NZHC 1465.

[27] I conclude that the starting point reached by Judge Rollo was out of step with those adopted for similar offending. A starting point of two years’ imprisonment well exceeds those adopted in the cases I have cited.

[28] Nonetheless, Mr Kanuta’s offending is serious. Of particular concern, and with reference to Taueki, are the repeated attacks to the victim’s head and the continuation of the assault after the victim was unconscious. On this basis, I consider the appropriate starting point to be in the region of 18 months’ imprisonment.

Uplift for the previous violence conviction

[29] Mr Kanuta has previous convictions for violence against the same complainant. The four months uplift imposed by the Judge was appropriate.³³

Uplift for the breach of community based sentences

[30] The Judge uplifted the starting point by a further four months to take account of the fact that Mr Kanuta:

(a) Failed to report to a probation officer for community work;

(b) Moved to a new residential address without the prior written consent of a probation officer; and

(c) Failed to report to a probation officer when required.

[31] Mr Owers submits that the Judge’s uplift of four months for these breaches was excessive. Mr Owers submits also that the supervision breaches relate in part to Mr Kanuta moving from Auckland to Tauranga in accordance with his bail

_conditions.

33. See Teka where a six-month uplift was considered appropriate for previous violence against the same complainant.

[32] Having regard to the totality principle,³⁴ I consider the uplift of four months was excessive. These offences were minor in the context of the overall offending and were caused, in part, by Mr Kanuta’s move to Tauranga which was authorised as part of his bail conditions. Having regard to totality, I consider a modest uplift of one month was appropriate.

Final starting point

[33] The foregoing analysis suggests an appropriate starting point of 23 months’

imprisonment.

Adjustments

[34] The Judge allowed a discount of eight months to take into account Mr Kanuta’s guilty plea, his personal circumstances and the fact he had obtained stable employment upon moving to Tauranga. Because the Judge adopted a considerably higher starting point, the reduction of eight months is no longer appropriate.

[35] I have looked at Mr Kanuta’s personal circumstances. There is no discount available for character or for genuine remorse. His age and employment status are offset by the breaches of community work and supervision. Accordingly, I limit the discount to 25 per cent to take account of his guilty pleas. I will round the sentence down to 17 months’ imprisonment.

Home detention

[36] Mr Owers submits that a sentence of home detention would have fulfilled the principles of sentencing and was the least restrictive outcome in the circumstances. In support of this submission, Mr Owers notes that:

(a) The pre-sentence report recommended a combination of intensive supervision, community detention and community work. The report

_{also considered home detention to be a suitable option.}

³⁴ Sentencing Act, s 85.

(b) The proposed address is in Tauranga with Mr Kanuta’s mother who

appears willing to offer support for her son.

(c) Mr Kanuta has arranged stable employment in Tauranga. (d) Mr Kanuta is only 22 years of age.

(e) All of Mr Kanuta’s previous offending relates to his relationship with

the victim. That relationship has now ended.

(f) The special conditions of Mr Kanuta’s supervision order had not started and as such he never had the benefit of Court-imposed rehabilitation.

[37] The principles in considering an appeal of this nature are well-established. When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety.³⁵

It follows from this principle that the Court must impose the least restrictive outcome

that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.³⁶ The Court cannot impose a sentence of imprisonment unless it is satisfied:³⁷

(a) that the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or to protect the community;

(b) that those purposes cannot be achieved by a sentence other than imprisonment; and

³⁵ _{Sentencing Act 2002, s 16(1).}

³⁶ _{Section 8(g).}

³⁷ Section 16(1).

(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.

[38] Where the end sentence reached is a short term of imprisonment, the Judge must decide whether to commute that sentence to one of home detention.³⁸ But, as the Court of Appeal has said:³⁹

That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[39] The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the factors that really count.⁴⁰

[40] I turn now to consider the application of these principles to Mr Kanuta’s case.

[41] The first relevant sentencing purpose requires Mr Kanuta to be held accountable for the harm done to the victim and the community. In order to properly hold Mr Kanuta accountable, he must be punished in a manner that is proportionate to his offending. As I stated earlier, Mr Kanuta’s offending is serious. He made repeated attacks on the victim’s head and strangled her whilst she was unconscious. He continued the assault after she had regained consciousness and fought him off initially. I am not satisfied that a sentence of home detention would be a proportionate punishment for this level of violence.

[42] The second relevant sentencing purpose is to promote a sense of responsibility for, and acknowledgement of, the harm Mr Kanuta has caused to the victim. The pre-sentence report says that “Mr Kanuta has not addressed his alcohol and drug problem or his violent behaviour”. Moreover, this is Mr Kanuta’s third conviction for violent offending against that victim and it was committed while

_{Mr Kanuta was under a sentence of supervision. The offending was of a similar}

³⁸ _{Section 15A(1)(b).}

³⁹ Fairbrother v R [2013] NZCA 340 at [30].

nature to the second and latest previous conviction, evidencing a pattern of behaviour. In light of these factors, I am of the view that a sentence of imprisonment would better achieve this sentencing purpose.

[43] The third relevant sentencing purpose is to denounce the conduct in which the offender was involved. I agree with Judge Rollo that the strangulation of women until loss of consciousness is extremely dangerous and requires strong condemnation from the Courts. Judge Rollo points to a disturbing increase in the number of strangulation cases coming before the Tauranga District Court. It is likely that a sentence of imprisonment will better serve the sentencing purpose of denunciation.

[44] The fourth relevant sentencing purpose is to deter the offender or other persons from committing the same or a similar offence. The need for deterrence appears significant in light of what I have just said. I agree with Judge Rollo that the Courts need to make clear that “repeat serious offending of this nature will not be

tolerated”.⁴¹ A sentence of imprisonment is more likely to achieve this.

[45] I turn to the purpose of assisting in the offender’s rehabilitation and reintegration into society. Since moving to Tauranga, Mr Kanuta has found stable employment. His employers, albeit after a quite short period of employment, describe him as a “very positive member of the team”, and a “hard worker” who “uses his initiative”. Mr Kanuta appears to have the support of his whanau, particularly his mother. According to the pre-sentence report, he is motivated to attend any programmes the Court may impose. Relevantly, the pre-sentence report recommends a combination of intensive supervision, community detention and community work so that Mr Kanuta can address some offending-related factors. These are all factors that count in favour of home detention. In my view, however, they are outweighed by the strong need for denunciation and deterrence of this type of repeat offending. Mr Kanuta’s rehabilitative needs, as identified in the pre- sentence report, can be addressed by way of release conditions.

[46] I note also that any motivation Mr Kanuta has to attend programmes is newfound and untested, given his breaches of sentences of supervision and community work.

[47] Having regard to these sentencing purposes, I am satisfied that Judge Rollo did not err in his assessment when deciding that the least restrictive sentence appropriate in the circumstances was a term of imprisonment.

Result

[48] The appeal against sentence is allowed. The sentence of 20 months’

imprisonment on the charge of assault with intent to injure is quashed. A sentence of

17 months’ imprisonment is substituted.

[49] The appeal insofar as it relates to a substituted sentence of home detention is denied.

_{[50] All other aspects of the sentence remain in force.}

Brewer J