Tekuru-Reid v R [2018] NZHC 2419 (13 September 2018)

Last Updated: 14 September 2018

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2018-463-0071 [2018] NZHC 2419

BETWEEN	AZTEC TEKURU-REID Appellant
AND	THE QUEEN Respondent

Hearing:	13 September 2018
Appearances:	W T Nabney for the Appellant R W Jenson for the Respondent
Judgment:	13 September 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitor:

William Nabney, Barrister, Tauranga Pollett Legal Limited, Tauranga

TEKURU-REID v R [2018] NZHC 2419 [13 September 2018]

Introduction

[1] Aztec Tekuru-Reid appeals his sentence of six years’ imprisonment for offending against his then partner.¹

[2] Mr Tekuru-Reid pleaded guilty to breaking into his partner’s house while she was sleeping in her bedroom at night. He proceeded to punch her face and head repeatedly, strangle her, and threaten to kill her. On arrest by police, he then abused and assaulted a police officer. He was convicted of injuring with intent to cause bodily harm,² threatening to kill,³ assault on police,⁴ and wilful damage.⁵

[3] Judge Hollister-Jones sentenced Mr Tekuru-Reid on 12 July 2018, imposing:

(a) a seven years and six months’ starting point for the totality of the offending;

(b) a six-month uplift for his previous offending (which included his prior assault on his present victim); and

(c) a 25 percent discount for his guilty plea and “acceptance of responsibility”.

Issues

[4] Mr Tekuru-Reid’s counsel, William Nabney, argues the sentence is manifestly excessive because:

(a) a starting point closer to five years, possibly uplifted by a further three to six months for the assault charge, better reflects his total culpability; and

(b) he should have been credited with an eight to ten per cent reduction for remorse, in addition to the full 25 per cent reduction for his guilty plea.

¹ R v Tekuru-Reid [2018] NZDC 14218.

² Crimes Act 1961, s 188(1). Maximum sentence is 10 years’ imprisonment.

³ Section 306(1)(a). Maximum sentence is 7 years’ imprisonment.

⁴ Section 192(2). Maximum sentence is 3 years’ imprisonment.

⁵ Summary Offences Act 1981, s 11(1)(a). Maximum sentence is 3 months’ imprisonment or a

$2,000 fine.

[5] I must allow Mr Tekuru-Reid’s appeal if I am satisfied – whether in relation to one of these two stated objections or otherwise – there is an error in the sentence imposed on him, and a different sentence should be imposed. In any other case, I must dismiss the appeal against sentence.⁶

[6] The approach previously taken by courts on sentencing appeals continues to apply;⁷ the measure of error is the sentence be “manifestly excessive”.⁸ I will not intervene where the sentence is within a range properly justified by accepted sentencing principles. Whether a sentence is ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.⁹

[7] I now address each issue in turn, after first outlining the offending in more detail.

Offending

[8] The offending occurred early in the morning of 24 June 2017. At a party previously that night, Mr Tekuru-Reid argued with his partner of five months. She left the party around 9:00pm and went to her mother’s address, a short distance away.

[9] Heavily intoxicated, Mr Tekuru-Reid drove to the address at 1:40am. He smashed the glass on the front door – this giving rise to the wilful damage charge – and reached his hand through to unlock it.

[10] On entering the house, he immediately began his attack. Judge Hollister-Jones describes what happened next:¹⁰

She was in bed asleep. She got up but you grabbed her hair, pulled her down, then stood over her with your hands forcibly around her throat in a strangulation move and pinned her to the ground. Whilst holding her down by the throat, you then repeatedly punched her to the face and head, abusing her in the process and she thought she was going to die. You punched her at least eight or nine times to the head and face and a neighbour is what stopped this. A neighbour intervened upon hearing the noise.

⁶ Criminal Procedure Act 2011, s 250(3).

⁷ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].

⁸ At [33], [35].

⁹ Ripia v R [2011] NZCA 101 at [15].

¹⁰ R v Tekuru-Reid, above n 1, at [2].

[11] The Judge details the harm suffered by the victim, who had immediately to be transported to Whakatane Hospital, and later to a maxillofacial surgeon in Tauranga:¹¹

The summary of facts states ... [s]he suffered two fractures to her left eye sockets where it connects to her nose and that it was likely that the small fractured bones would not fully connect in that sensitive area of the face and that she will therefore suffer permanent disfigurement. In addition, she had suffered severe concussions, swelling and bruising to 90 per cent of her face and head and her throat and neck area were also swollen and bruised for several days. I have since received updated information that she was told there was a strong possibility she would lose her eye. That has not occurred, but she had ended up with a lazy eye which means that she has difficulty in focusing on such things as the television. So this has significant ongoing consequences for her life. She is only a young woman.

[12] At the conclusion of the attack, Mr Tekuru-Reid told the victim he would come back and kill her. That, obviously, was the threatening to kill charge. Finally, Judge Hollister-Jones says:¹²

Because of difficulties removing your vehicle, the police came. You were abusive to the police, you jumped out of the patrol car and you assaulted a police officer.

The Judge does not describe that assault. But the summary of facts records Mr Tekuru- Reid actively resisted arrest by the two officers present: kicking, pushing a car door into an officer, and swinging his handcuffed hands at both officers in “a fit of rage”.

Global starting point

[13] In taking a starting point of seven years and six months, Judge Hollister-Jones is explicit such incorporated not only the lead charge of injuring with intent to cause bodily harm, but the other charges as well. That is, the starting point reflected Mr Tekuru-Reid’s total culpability.¹³

[14] It is accepted Judge Hollister-Jones’ starting point had orthodox reference to R v Taueki, the guideline judgment for sentence for serious violent offending.¹⁴ His application of that judgment involved two key stages: identifying the relevant aggravating factors of the offending, and then locating that offending within the

¹¹ R v Tekuru-Reid, above n 1, at [3].

¹² At [2].

¹³ R v Tekuru-Reid, above n 1, at [13]-[14].

¹⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

sentencing bands – particularly by reference to the various example scenarios of domestic assault provided in Taueki.

—aggravating factors

[15] Taueki sets out a comprehensive list of aggravating factors for this kind of offending.¹⁵ The Judge identified five such factors here:¹⁶

(a) first, Mr Tekuru-Reid exhibited premeditation in driving to her house, and smashing his way in; the fact he immediately attacked the victim upon entry indicates violent confrontation was the object of his visit;

(b) next, the attack involved a home invasion in the middle of the night while the victim was sleeping;

(c) then he used extreme violence: dragging the victim by her hair, holding her down, repeatedly punching her to the neck and face, and attempting to strangle her. The violence only ceased on a neighbour’s intervention;

(d) further related to the extreme violence was the attack to the head
through repeated punches: and

(e) last, the attack caused considerable harm: in the short-term, severe concussions, swelling and bruising to the victim’s head and face; and in the long-term, two fractures to her left eye socket which likely will not ever permanently connect, and a lazy eye which significantly affects her appearance and visual capabilities.

The Judge found two of these factors – extreme violence/attack to the head (taken together), and the degree of harm – were present to a high degree.¹⁷

[16] Mr Nabney argues the list ‘double counts’ Mr Tekuru-Reid’s culpability in two respects. First, he suggests the home invasion factor is already fully incorporated within Mr Tekuru-Reid’s premeditation. But that would be wrong. Mr Tekuru-Reid’s

¹⁵ At [31].

¹⁶ ` R v Tekuru-Reid, above n 1, at [6]-[8].

¹⁷ R v Tekuru-Reid, above n 1, at [11].

forward planning, evident in the intentional steps he undertook to arrange the assault, is quite distinct from the Court’s repeated emphasis on “the importance of recognising the sanctity of the home”.¹⁸

[17] Nonetheless, I accept the degree of Mr Tekuru-Reid’s premeditation was limited. This was no carefully orchestrated attack. Rather, the home invasion was the first opportunity for the heavily intoxicated appellant to get back at his partner following their argument at, and her departure from, the party.

[18] Mr Nabney’s second submission is there is considerable overlap between the aggravating factors of extreme violence and the attack to the head. That is undoubtedly true, as the Judge was aware: he explicitly states the factors are “related”, “overlap” and are to be “taken together”.¹⁹

[19] Attacks to the head are recognised as a discrete aggravating factor because such attacks often carry “particularly serious consequences”,²⁰ not least the potential for traumatic brain injury.²¹ The repeated punching to the head would suffice to mark this as ‘extreme violence’. To this extent, the two features are co-extensive, and Mr Tekuru-Reid bears responsibility – is culpable – for both.

[20] Mr Tekuru-Reid’s assault also involved strangulation, another facet of the extreme violence in this case. As to strangulation in the context of intimate violence, the New Zealand Law Commission recently explained:²²

The harm caused by strangulation ranges from struggling to breathe, to loss of consciousness, to death. The psychological impact on victims can be devastating. It is often said that, while the abuser may not be intending to kill, he is demonstrating that he can kill. It is unsurprising that strangulation is a uniquely effective form of intimidation, coercion and control.

The Law Commission highlights factors distinguishing strangulation from most other forms of intimate violence. First, it is a “unique” tool of coercion and control in an intimate setting. Second, it is an important risk factor for a future fatal attack by a

¹⁸ R v McLean [1999] 2 NZLR 263 (CA) at [12] cited in Taueki at [31(j)].

¹⁹ R v Tekuru-Reid, above n 1, at [7], [11] and [13].

²⁰ R v Taueki, above n 14, at [31(e)].

²¹ See R v Namana [2000] NZCA 348; [2001] 2 NZLR 448, (2000) 18 CRNZ 248 (CA).

22. Law Commission Strangulation: The Case for a New Defence (NZLC R138, 2016) at [1.2] and [1.4].

perpetrator. Last, “it characteristically leaves few marks or signs, sometimes even when it has been life threatening”, contributing to the difficulties of holding perpetrators accountable. It is principally for that last reason the Law Commission was asked to report on the possibility of creating a new offence for strangulation.²³

[21] Courts have regard for these developments. In 2017 the Court of Appeal characterised strangulation as “very serious criminal behaviour”.²⁴ If Taueki was issued today, strangulation would likely be listed as a discrete aggravating factor along with attacks to the head.

[22] In the final analysis, however, an overly mechanical approach to identifying aggravating factors is to be avoided. The degree to which factors are counted matters as much as their number. The Judge was aware of such nuances, and weighted the factors appropriately including by noting where they overlapped.

[23] For my own analysis, I take no issue with the Judge’s identified five aggravating factors. But I note, that while premeditation was limited, the strangulation aspect of the extreme violence also is aggravating, in addition to ‘counting’ the attack to the head.

[24] For completeness, I see no mitigating factors in the present offending. To repeat the Court’s observations in Taueki, the fact the target of Mr Tekuru-Reid’s violence was his partner does not in any way reduce the seriousness of his offending. Neither does his drunkenness at the time of his offending lessen his culpability.²⁵

—example scenarios of domestic assault

[25] With those remarks in mind, I turn to consider the three sentencing bands set out in Taueki with starting points ranging, respectively, from 3-6 years, 5-10 years, and 9-14 years. An example of domestic assault is provided for each band.

²³ Law Commission, above n 22, at [1.3], [2.24]-[2.31], and [5.28].

²⁴ M v R [2017] NZCA 428 at [19].

²⁵ R v Taueki, above n 3, at [33(a) and (c)].

[26] The band one scenario of “domestic assault” is described in the following

terms:²⁶

A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

And band two:²⁷

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[27] Mr Nabney contends the lead offending of injuring with intent lies on the cusp of band one and two, justifying a starting point of five years. The harm suffered by the victim in this case demands the present offending be located somewhere in band two. No weapon was used in this case, as the Judge noted at [13]; but a “severe beating” to the head is, as Taueki recognises, comparably serious to the use of a weapon.²⁸

[28] Here, however, there is the added feature of home invasion, which tellingly, is a distinguishing feature of band three’s “serious domestic assault” example:²⁹

A domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 range may well be required.

Band three is recommended in cases where there are “three or more of the aggravating features ... where the combination of aggravating features is particularly grave”.³⁰

²⁶ At [37(b)].

²⁷ At [39(c)].

²⁸ R v Taueki, above n 3, at [31(e)].

²⁹ At [41(b)].

³⁰ At [40].

[29] In that light, and especially given the seriousness of the violence in this case, I do not consider the Judge erred in locating the offending “as upper band 2”.³¹ Indeed, he ultimately landed on a starting point exactly in the middle of the band 2 range.

—comparable cases

[30] Mr Nabney refers to two cases, Flavell v R and Sun v R,³² where the Court of Appeal reduced the applicable starting points on appeal.

[31] The former does little to assist Mr Nabney’s case. It involved a brawl at a service station between two pairs of men, with fault on both sides. During the scuffle, Mr Flavell stabbed the victim with a broken bottle, and later, struck the victim on the head with a baseball bat. On appeal, the Court of Appeal lowered the starting point from six to five years for Mr Flavell’s two charges: wounding and injuring with intent to cause grievous bodily harm. That the starting point is two and a half years’ lower than the present case is quite explicable given:

(a) there was no premeditation, or home invasion, and the violence was less extreme than here; and

(b) the Court of Appeal explicitly stated provocation and self-defence were important factors justifying a lower starting point for Mr Flavell.

[32] Sun is only marginally more comparable. In brief, Mr Sun slapped his partner while at a restaurant. Then when another man intervened to break up the fight, Mr Sun turned on him: they fell together onto the ground with Mr Sun on top, who proceeded to repeatedly strike the man with a broken bottle until significant and long-term injuries were caused. The sentencing judge thought it fortunate the man was not killed.

[33] The Court of Appeal granted the appeal, reducing the applicable starting point from seven and a half years to six, locating the offending within the bottom half of band 2. In making that reduction, the Court observed:³³

³¹ R v Tekuru-Reid, above n 1, at [13].

³² Flavell v R [2011] NZCA 361; and Sun v R [2014] NZCA 278.

³³ Sun v R, above n 32, at [10].

... the attack was not premeditated. It was at least in part provoked by [Mr Sun’s partner], in requesting the appellant to come to the restaurant and taunting him when he arrived. The injuries to Mr D were quite serious, but we would not classify the violence on the part of the appellant as extreme. The bottle which was used as a weapon was not taken to the scene, and it was not deliberately broken before it was used.

Again, the present facts are more serious, notwithstanding the absence of any weapon. Mr Tekuru-Reid’s attack was a (somewhat) premeditated home invasion, leading to more extreme and prolonged intimate violence.

[34] Based on these comparisons, the Judge was entitled to adopt a higher starting point on the present facts. I also recognise, in reaching his conclusion, the Judge elected not to impose an uplift for the assault on a police officer. The Judge’s starting point of seven years and six months’ imprisonment is not out of range for Mr Tekuru- Reid’s total culpability.

Discounts for personal factors

[35] After setting the starting point, the Judge moved on to impose a six-month uplift for previous history, about which neither counsel takes exception. The disagreement instead is over the discounts granted for Mr Tekuru-Reid’s personal mitigating factors. Mr Nabney contends for a further specific discount for ‘remorse’, in addition to the full 25 per cent for his early guilty plea.

[36] Mr Tekuru-Reid initially pleaded guilty at the first available opportunity, after police agreed to withdraw a burglary charge (for breaking the window). But, after change of counsel, his new lawyer sought to vacate those pleas. The application did not progress but, as His Honour noted, caused a further six-month delay to the resolution of the charges.³⁴

[37] Mr Nabney argues the application to vacate was advanced on grounds Mr Tekuru-Reid was not aware what he was doing in pleading guilty; and it does not undermine the fact he accepted responsibility for his actions from the beginning. Perhaps, but the letter Mr Tekuru-Reid wrote to the Court is at least consistent with

³⁴ R v Tekuru-Reid, above n 1, at [15].

his vacillation. It supports the Judge’s finding it “varies between [him] taking responsibility and then statements to the effect [he was] not fully responsible”.³⁵

[38] In those circumstances, I do not consider the Judge erred in granting a 25 per cent discount to cover both Mr Tekuru-Reid’s guilty plea and his “acceptance of responsibility”.

Result

[39] The appeal is dismissed.




—Jagose J

³⁵ At [15].