Waho v Police [2018] NZHC 1767 (17 July 2018)

Last Updated: 23 July 2018

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-000014 [2018] NZHC 1767

BETWEEN	TAWHITI TE RA LEROY HAPUKU WAHO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 July 2018 (via AVL at Wellington)
Counsel:	M A Terekia for Appellant C C Gullidge for Respondent
Judgment:	17 July 2018

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am dismissing Mr Waho’s appeal against a sentence of two years and two months’ imprisonment imposed by Judge Hastings in the District Court on 2 May 2018.¹ The sentence was, in my assessment, within the range that could reasonably be imposed in the circumstances of this case.

Background

[2] Mr Waho pleaded guilty to three sets of charges arising out of the same series of events:

¹ Police v Waho [2018] NZDC 8761.

WAHO v NEW ZEALAND POLICE [2018] NZHC 1767 [17 July 2018]

(1) three charges of injuring with intent to injure² and two charges of assault with a weapon,³ which relate to domestic violence against his then partner;

(2) one charge of male assaults female⁴ and one charge of threatening to kill,⁵ which relate to a second female victim; and

(3) one charge of common assault,⁶ which relates to a male victim.

Background

[3] On the evening of Saturday 24 June 2017, Mr Waho was hosting a party with his partner. In the early hours of Sunday 25 June, Mr Waho saw his partner and the other two victims kissing each other. Without warning, Mr Waho punched his partner in the mouth twice with a closed fist. She was hit so hard that she fell to the ground. Mr Waho then grabbed the male victim by the throat and squeezed so hard that the victim could not breathe. Mr Waho then punched the second female victim, causing her to fall to the ground. He then grabbed her throat and squeezed so hard that she could not breathe. The victim thought she was going to die. Mr Waho then repeatedly told her to shut up in expletive terms and said “I will kill you”.

[4] Mr Waho’s partner was crying and scared so she ran out of the room and hid out the front of the property. Mr Waho followed her and, once he found her, he punched her once in the head. He then grabbed her by the hair and dragged her around the back of the house and inside. Once inside, Mr Waho threw his partner on the ground. She hit her head on a coffee table as she fell. Mr Wako then punched her in the face with a closed fist numerous times. Mr Waho let his partner go only after another person intervened.

[5] Mr Waho’s partner went to a friend’s house. At 9.00 am on 25 June, Mr Waho arrived at the friend’s house and repeatedly told his partner to get into the truck that

² Crimes Act 1961, s 189(2), maximum penalty five years’ imprisonment.

³ Section 202C, maximum penalty five years’ imprisonment.

⁴ Section 194(b), maximum penalty two years’ imprisonment.

⁵ Section 306(1)(a), maximum penalty seven years’ imprisonment.

⁶ Section 196, maximum penalty one year’s imprisonment.

he had arrived in, but she refused to do so. Mr Waho then produced a knife. His partner ran away at this point, but he chased her and she fell to the ground. He grabbed her by the hair and dragged her back to the truck.

[6] Mr Waho’s mother, who was driving the truck, then drove off. During the journey, Mr Waho punched his partner in the face and ribs. However, his partner managed to jump out of the truck near an intersection. Mr Waho jumped out of the truck and chased his partner.

[7] When Mr Waho caught up with his partner, she dropped to the ground. He stood over her and kneed her in the face twice. Mr Waho then demanded his partner return the truck, which she eventually did out of fear of being assaulted again.

[8] Mr Waho’s mother then drove them home. Mr Waho, again, punched his partner in the face and ribs during the journey. Once they arrived home, Mr Waho took his partner around the back of the property. He then pinned her against a locker in a shed, holding her with his left hand around her neck. She could barely breathe. He then picked up a pair of scissors in his right hand. She thought she was going to be stabbed. Mr Waho stabbed the locker she was pinned against instead, then released her and walked away. Police arrived at the address shortly after.

Mr Waho

[9] Mr Waho is a 26-year-old beneficiary. He has one previous conviction for cultivating cannabis arising from events in 2011. He had a good upbringing and was heavily involved in sports. However, at age 14 he was involved in a car accident, which caused multiple serious injuries that required hospitalisation for a period of eight months. He had to undertake intensive physiotherapy to learn to walk again. As a result of the accident, Mr Waho did not return to school and continued his education by correspondence. He has also been unable to work. He reports losing friends and being unable to complete his life goals because of the accident. This has affected his mood and caused him to be irritable. He has attended psychological therapy to assist. He also has a moderate to harmful pattern of alcohol use.

District Court decision

[10] In reaching the sentence he imposed on Mr Waho, Judge Hastings referred to the following sentencing principles:

(1) the need to denounce the conduct;⁷

(2) the need to deter Mr Waho and others from the similar offending;⁸

(3) the need to hold Mr Waho accountable for the harm caused to the victims;⁹

(4) the need to provide for Mr Waho’s rehabilitation to the extent it was possible;¹⁰ and

(5) the need for the sentence to be the least restrictive that was appropriate in the circumstances.¹¹

[11] Judge Hastings took the offending against Mr Waho’s partner as the lead charges, adopting a starting point of three years and three months’ imprisonment. This was based on band three of Nuku v R, which provides that sentences of between two years’ and five years’ imprisonment are appropriate for charges of injuring with intent to injure involving three or more aggravating factors, where the combination of those factors is particularly serious.¹² Judge Hastings identified the following aggravating factors in Mr Waho’s offending:

(1) extreme violence;

(2) attacks to the head;

(3) choking and strangulation;

⁷ Sentencing Act 2002, s 7(1)(e).

⁸ Section 7(1)(f).

⁹ Section 7(1)(a).

¹⁰ Section 7(1)(h).

¹¹ Section 8(g).

¹² Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38](c).

(4) vulnerability of the victim;

(5) use of weapons; and

(6) psychological injury.

[12] Judge Hastings then applied an uplift of four months for the offending against the second female victim and a further uplift of two months for the offending against the male victim. This resulted in a total starting point of three years and nine months’ imprisonment.

[13] Judge Hastings then allowed a discount of eight months for rehabilitative efforts and good character, noting that Mr Waho had:

(1) no relevant previous convictions;

(2) expressed a willingness to undergo counselling for anger management;

(3) attended four counselling sessions with Hauora Tairāwhiti and a drug and alcohol programme;

(4) demonstrated good insight into the harm caused by his offending in a letter to the Court; and

(5) self-referred to counselling sessions at the Tauawhi Men’s Centre.

[14] Judge Hastings also allowed a discount of two months’ imprisonment for remorse. Half of that discount was made on the basis of the victim being present in court.

[15] Finally, Judge Hastings gave a 25 per cent discount for Mr Waho’s guilty plea. This resulted in an end sentence of two years and two months’ imprisonment.

Appellate principles

[16] Section 250 of the Criminal Procedure Act 2011 provides that an appeal against sentence is to be allowed if:

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

(2) a different sentence should be imposed.

[17] Whether the end sentence is “manifestly excessive” continues to be an important guide to finding an error.¹³ If the end sentence is within range, then the appellate court will not change it, even if the lower court made an error in the steps taken when reaching the end sentence.

Starting point

[18] Mr Waho accepts that the starting point of three years and nine months’ imprisonment was appropriate. His grounds of appeal focus on the adequacy of the discounts given for Mr Waho’s previous good character, his efforts at rehabilitation and his remorse.

Efforts at rehabilitation and previous good character

[19] Although Mr Terekia, counsel for Mr Waho, challenged these factors as separate grounds of appeal, Judge Hastings gave a collective discount for both factors so it is appropriate to assess them together.

[20] Mr Terekia submitted that a discount of eight per cent would be appropriate to recognise the various efforts made by Mr Waho to rehabilitate. He referred to the decision of Kerr v R where a discount of that size was given.¹⁴

[21] Mr Terekia submitted that a discount of 12 to 13 per cent is appropriate to recognise Mr Waho’s previous good character. He submitted that the present

¹³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

¹⁴ Kerr v R [2017] NZCA 498.

offending is a fall from grace for Mr Waho as he has no previous violence convictions, and only one previous conviction for drug offending. Mr Terekia referred to Davidson v R and R v Findlay where discounts of 25 per cent were given, although he acknowledged that Mr Waho has not contributed to society to the same extend as the defendants in those proceedings.¹⁵

[22] Taking both factors together, Mr Terekia submitted that the appropriate discount would have been nine or 10 months, which is approximately 21 per cent.

[23] Mr Gullidge, for the Crown, submitted that the overall discount of eight months, which equates to approximately 18 per cent, was well within range. He accepted that discounts in the range of eight per cent are available for efforts at rehabilitation, however, he submitted that a discount much lower than 12 to 13 per cent was available for previous good character. By way of comparison, he referred to R v Narayan where a five per cent discount was given to a defendant who only had three previous convictions for dishonesty offending,¹⁶ and to R v Brown where an 11 per cent discount was given to a defendant who only had one 11-year old conviction for a driving offence.¹⁷

[24] Mr Gullidge further submitted that Davidson and Findlay are of limited assistance because they involved individuals of unblemished character who had made positive contributions to their communities.

[25] In my view, altering the discount on both of these factors by a total of one or two months would be tinkering with the sentence.¹⁸ The discount of eight months was well within the acceptable range, and was certainly not inconsistent with any of the cases referred to by either counsel. Mr Terekia has not been able to point to any error in Judge Hastings’ approach, instead he has simply referred to a discount that Mr Waho would prefer to have received.

¹⁵ Davidson v R [2011] NZCA 356; and R v Findlay [2007] NZCA 553.

¹⁶ R v Narayan [2017] NZHC 2448.

¹⁷ R v Brown [2017] NZHC 1241.

¹⁸ Ripia v R [2011] NZCA 101 at [15].

[26] Mr Waho has a previous conviction from 2011, which cannot yet be regarded as historic. There is evidence that he has given support to a relative with a terminal illness. There is, however, no evidence that he has contributed to his community in the way that is usually seen in cases where the Court has given significant credit for a defendant’s previous good character. Judge Hastings described Mr Waho’s previous character as “relatively good”. In those circumstances, Judge Hastings was not required to give any discount for previous good character. Accordingly, any discount given cannot be successfully challenged on the basis of being manifestly inadequate.

Genuine remorse

[27] Mr Terekia submitted that a discount of three months (eight per cent) was warranted for remorse, as Mr Waho had made a $500 reparation payment, engaged in a restorative justice process, expressed his remorse to the PAC report writer and to the Court through a letter and the principal victim attended his sentencing.

[28] Mr Terekia referred to two cases in support. In Rowels v R, a discount of eight per cent was given to a defendant who had engaged in restorative justice and made a reparation payment of $1000, after pleading guilty to causing grievous bodily harm.¹⁹ In McArthur v R, a defendant was given a five per cent discount for making full admissions and paying reparations of $10,000 after pleading guilty to child sexual offending over a period of 17 years.²⁰

[29] Mr Gullidge submitted that reductions for remorse are case specific, and although reductions up to eight per cent are available in principle, such a reduction was not warranted for Mr Waho. He referred to the victim impact statement made by the principal victim, the fact Mr Waho denied choking the other two victims and the fact Mr Waho had never expressed remorse specifically for his offending against the other two victims.

[30] I consider that the two-month discount granted by Judge Hastings was within the range reasonably open to him. Although the principal victim appeared in court for

¹⁹ Rowels v R [2016] NZCA 208.

²⁰ McArthur v R [2013] NZCA 600.

the sentencing, two weeks prior, on 19 April 2018, she had written the following in a revised victim impact statement:

After his arrest he was on bail and we were not allowed to associate with each other. I thought then he had lost everything that was important to him and I worried that he was thinking what is there left here for me? I still wanted to be with him at this time and I took part in the Restorative Justice process which lead to a change in his bail conditions allowing us to associate but not to offer or threaten violence against me. He moved back to his family address just out of Gisborne and I ended up moving out there to be with him.

Moving back with him was not good and he has changed a lot. I feel he showed no remorse for his actions and was controlling. He is not the same person I was with before the incident.

I got depressed and started having suicidal thoughts. I ended up going to my GP. I am now on anti-depressant drugs.

I decided I had to leave him. I have done this and have moved overseas. It was difficult to leave him as I loved him and we had a history together.

[31] It is difficult to ignore the detail of this statement, and its reflection upon the genuineness of Mr Waho’s remorse. By comparison, it would be easy to read too much into the fact that Mr Waho’s partner was present in the court for sentencing. It is clear the two had a long history together, having been in a relationship for eight years. Her support of Mr Waho at sentencing does not necessarily indicate a recantation of her earlier view on the genuineness of his remorse.

Conclusion

[32] Sentencing is not an exact science, and a mathematical comparison of percentages between different cases will be of little assistance to an appellate court. This is especially the case for discounts given for personal mitigating circumstances, which are necessarily specific to the facts of each particular case. In the present case, Judge Hastings carefully considered all the relevant circumstances and arrived at discounts that were within the range that was reasonably available.

[33] There was therefore no error in the sentence imposed and the appeal must be dismissed.

D B Collins J

Solicitors:

Woodward Chrisp, Gisborne for Appellant Crown Solicitor, Gisborne for Respondent