Ta'Akimoeaka v Police [2018] NZHC 68 (7 February 2018)

Last Updated: 22 February 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000050 [2018] NZHC 68

BETWEEN	JOHN TA’AKIMOEAKA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 February 2018
Appearances:	N S Leader for Appellant M Smith for Respondent
Judgment:	7 February 2018

_{ORAL JUDGMENT OF WYLIE J}

Solicitors/counsel:

N S Leader, Auckland

Marsden Woods Inskip Smith, Whangarei

TA’AKIMOEAKA v NEW ZEALAND POLICE [2018] NZHC 68 [7 February 2018]

Introduction

[1] The appellant, Mr John Ta’akimoeaka, appeals a sentence of six years and three months’ imprisonment imposed by Judge Cunningham in the District Court at Whangarei¹ after he pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.²

[2] Mr Ta’akimoeaka accepts that a term of imprisonment is the only appropriate sentence. However, he appeals the sentence imposed, asserting that it is manifestly excessive.

Extension of time

[3] The appeal against sentence was filed some 17 working days after the statutory time limit had expired.³ Mr Ta’akimoeaka seeks leave to extend the time allowed for filing the appeal.

[4] The delay has been explained. In essence, counsel sent a letter of advice to Mr Ta’akimoeaka. Unfortunately, it was not made available to him by the Department of Corrections, but rather returned to counsel. Counsel was overseas at the time, and when he returned, he inadvertently overlooked the matter. There is no prejudice to the Crown, and Mr Smith, appearing on instructions from the Solicitor-General, responsibly accepted that leave to extend the time for appeal should be granted. I so order.

Factual background

[5] On the afternoon of 5 December 2016, Mr Ta’akimoeaka arrived in his vehicle at an address in Whangarei. Mr Ta’akimoeaka got out of his vehicle and approached the victim, who was known to him. Mr Ta’akimoeaka picked up a four-pronged metal wheel brace that was lying on the ground. He walked towards the victim, carrying the wheel brace. The victim started running towards the rear of the property. Mr Ta’akimoeaka chased after him and struck him on the back of his right leg with the

_{wheel brace, causing him to fall to the ground.}

¹ R v Ta’akimoeaka [2017] NZDC 21328.

² The maximum penalty for wounding with intent to cause grievous bodily harm is 14 years’

imprisonment – Crimes Act 1961, s 188(1).

³ Criminal Procedure Act 2011, s 248(2).

[6] The victim managed to stand up and a struggle ensued. In an attempt to defend himself, the victim attempted to punch Mr Ta’akimoeaka. Mr Ta’akimoeaka responded by striking the victim twice to the head with the wheel brace, hitting him once in the face and once on the top of the head. Mr Ta’akimoeaka also attempted to punch the victim.

[7] The victim was wearing a cap at the time. The blow that struck him on the top of the head was of such force that it made a round hole in the cap, before fracturing his skull underneath. As a result of the assault, the victim was severely concussed and he received a compressed skull fracture. The victim also received wounds to his hands.

[8] No explanation has been offered for the altercation.

[9] The victim is a mechanic by trade. Prior to the incident, he was looking at starting his own business. As a result of his injuries, he is now unable to work and is financially destitute. He now has problems with motor skills and he lacks the ability to co-ordinate straightforward tasks. His vision has been affected; he has problems speaking; he suffers from chronic headaches. He is unable to drive as a result of seizures. He experienced some seizures prior to the assault, but they have increased in frequency and severity consequent on the assault. He and his wife also suffer from anxiety issues and they experience a sense of fear when they are in public places.

District Court decision

[10] Judge Cunningham referred to the leading tariff decision dealing with sentencing for the offence of wounding with intent to cause grievous bodily harm – namely the decision of the Court of Appeal in R v Taueki.⁴

[11] Although the Judge accepted that there was some overlap between them, she concluded that there were four aggravating features to Mr Ta’akimoeaka’s offending,⁵ namely the use of a weapon, the attack to the head, extreme violence and the

_{seriousness of the injuries caused. She considered that the offending fell at the top}

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

⁵ R v Ta’akimoeaka, above n 1, at [37].

end of band two or perhaps at the lower end of band three discussed in Taueki.⁶ She adopted a starting point of eight years and six months’ imprisonment.⁷

[12] Judge Cunningham decided not to impose an uplift for Mr Ta’akimoeaka’s previous convictions, notwithstanding that he had two previous violence convictions, namely injuring with intent to injure in mid-2014 and fighting in a public place in mid-

2013.⁸ Nor did she impose an uplift to account for the fact that the offending was

committed while Mr Ta’akimoeaka was on bail and awaiting sentencing on the charge of injuring with intent to injure. The Judge gave Mr Ta’akimoeaka a 25 per cent discount for his guilty plea,⁹ but she did not give him a further discount for remorse as she did not consider it to be genuine remorse.¹⁰

[13] The end sentence imposed was six years and three months’ imprisonment.¹¹

Grounds of appeal

[14] Mr Ta’akimoeaka submitted that Judge Cunningham set the starting point too high. He contended that the Judge erred in her assessment of the four aggravating features of the offending. He accepted that it involved the use of a weapon and that there was a serious injury, but argued that it was an error to identify extreme violence and attacking the head as separate aggravating features. As a result, he submitted that the starting point should be in the middle of band two – in the vicinity of seven years’ imprisonment.

[15] Mr Ta’akimoeaka also submitted that the Judge erred by failing to give him a discount for remorse, which he says was, and is, genuine.

⁶ At [37].

⁷ At [38].

⁸ At [44].

⁹ At [46].

¹⁰ At [48].

¹¹ At [52]. There appears to have been an arithmetical error in the Judge’s calculation. Based on a starting point of eight years and six months’ imprisonment (102 months), a 25 per cent discount equates to 25.5 months – rounded to 26 months. 102 months minus 26 months equals 76 months, or six years and four months’ imprisonment.

Appeals against sentence

[16] 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. In any other case, the court must dismiss the appeal.¹²

[17] A sentence may be set aside where it is manifestly excessive.¹³ Whether a sentence is manifestly excessive depends on the end sentence imposed, not the process by which it was reached. The court will not intervene where the sentence is within range, but, if the court determines that the sentence imposed is manifestly excessive,

_{it will then form its own view of the appropriate sentence.}¹⁴

Analysis

[18] As noted by Judge Cunningham, the tariff case for the type of offending at issue in this case is the decision of the Court of Appeal in R v Taueki.¹⁵ In that case, the Court of Appeal noted the seriousness of this type of offending and set out three sentencing bands appropriate for it.¹⁶ The Court identified some 14 aggravating factors, which can be relevant in assessing the seriousness of such offending and its criminality.¹⁷ Band one – attracting a sentence of three to six years’ imprisonment – is appropriate for offending at the lower end of the spectrum.¹⁸ Band two – attracting a sentence of five to ten years’ imprisonment – is appropriate for offending which features two or three of the identified aggravating factors.¹⁹ Band three – attracting a

_{sentence of nine to 14 years’ imprisonment – encompasses serious offending which}

¹² Section 250(3).

¹³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

¹⁴ Tutakangahau v R, above n 13, at [30].

¹⁵ R v Taueki, above n 4.

¹⁶ At [34].

¹⁷ At [31](a)-(n).

¹⁸ At [36].

has three or more of the aggravating factors, where their combination is particularly grave.²⁰

[19] Judge Cunningham considered that four aggravating features were relevant in the present case – namely the use of a weapon, that the attacks were to the head, extreme violence and serious injury.

[20] Mr Leader, acting on behalf of Mr Ta’akimoeaka, first submitted that Judge Cunningham erred by categorising the offending as involving extreme violence. He took particular issue with paragraph [31] of the Judge’s sentencing notes, which reads as follows:²¹

[31] In my view R v Taueki makes it clear that the factors such as violence being prolonged, unprovoked or gratuitous are add-ons to the extent of the violence. Any attack to the head with a weapon that is made of steel and has the weight of a wheelbrace has to be extreme violence. One only needs to look at the blow to the head which ripped through the cap material, made the mark on this man’s skull, caused a break in the skin that had to be cleaned and stitched and fractured the underlying skull. So I do not agree with the submission that this was not extreme violence.

Mr Leader argued that the Judge used the other aggravating features she identified to establish extreme violence, and that this constituted “double counting”.

[21] Mr Smith, on behalf of the Crown, submitted that Judge Cunningham’s approach was appropriate given the relevant aggravating features and that they all underscored the seriousness of the offending in this case.

[22] In my judgment, Judge Cunningham did not err. She appropriately acknowledged that there was a degree of overlap between the aggravating factors.²²

In cases such as this, that will usually be inevitable. Attacking the head, the use of a weapon and serious injury will often be inherent in the violence involved and lead to its categorisation as extreme. It is impossible to isolate each aggravating feature.

[23] This does not mean that there is double counting when more than one aggravating feature is present. A sentencing Judge needs not only to identify the

²⁰ At [40].

²¹ R v Ta’akimoeaka, above n 1.

aggravating features, but also to evaluate the seriousness of particular factors. The Judge needs to consider the combination of factors applying in any particular case when assessing the appropriate sentencing band and the starting point within that band.²³ Any risk of double counting can be addressed in the final overall assessment of the appropriate starting point.²⁴

[24] Here, and as I have noted, Judge Cunningham acknowledged that there was a degree of overlap between the aggravating factors. Even though, on her analysis, there were four aggravating features, she did not adopt a starting point of nine years’ imprisonment or more suggested in Taueki as being appropriate for band three offending involving three or more aggravating features. Rather, she adopted a starting point towards the top end of that suggested by the Court of Appeal as being appropriate for band two offending involving two or three aggravating features. This reflected the overlap in the aggravating features, and in my judgment, it was not inappropriate. Starting points must ultimately reflect the overall culpability of the offender involved, rather than a mathematical calculation based on the number of aggravating features identified.²⁵

[25] It was also contended for Mr Ta’akimoeaka that two blows to the head, only one of which appears to have caused serious injury, does not elevate the offending into the extreme violence category.

[26] The Judge did not suggest otherwise and, in any event, one act can constitute extreme violence.²⁶ In this case, the violence was ongoing and serious. First, there was the blow which Mr Ta’akimoeaka inflicted on the victim’s right leg, then the two blows to the head and also the punches thrown by Mr Ta’akimoeaka. It was not an act of violence comprising one blow only.

[27] Mr Leader also argued, on behalf of Mr Ta’akimoeaka, that Judge Cunningham erred in finding that the use of a weapon and attacking the head are separate aggravating features in this offending.

²³ R v Taueki, above n 4, at [30]-[31].

²⁴ King v R [2015] NZCA 436 at [27].

²⁵ Couper v R [2017] NZCA 588 at [17].

²⁶ See, for example, R v Roker [2017] NZHC 1637 at [14].

[28] I disagree. The Court of Appeal in Taueki did not limit the application of the aggravating feature of attacking the head to situations where no weapon is used. There can, of course, be attacks to the head where no weapon is used. Equally, there can be attacks to the head where a weapon is employed. This is clear from the Court of Appeal’s discussion in Taueki of the use of weapons. The Court there noted as follows:²⁷

(d) Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public, where, for example, a firearm is fired indiscriminately in a public place.

(Emphasis added)

[29] Finally, it was submitted for Mr Ta’akimoeaka that Judge Cunningham erred by failing to give him a discount for remorse.

[30] Relevantly, Mr Ta’akimoeaka pleaded guilty. It was noted in the pre-sentence report that he accepted that he had handled the situation poorly, and it was submitted that this showed a degree of insight by him. Further, Mr Ta’akimoeaka offered to participate in a restorative justice conference. It was the victim who declined to participate. Finally, it was noted that Mr Ta’akimoeaka wrote a letter to Judge Cunningham where he expressed remorse for his actions.

[31] Nevertheless, Judge Cunningham concluded that neither the letter nor Mr

Ta’akimoeaka’s other expressions of remorse were sufficient for her to conclude that

_{Mr Ta’akimoeaka was expressing genuine remorse.}

²⁷ R v Taueki, above n 4, at [31].

[32] Section 9(2)(f) of the Sentencing Act 2002 requires the court to take into account as a mitigating factor any remorse evidenced by an offender. It is a factor which should be dealt with separately – even where a guilty plea has been entered, and a discount allowed for that plea.²⁸ In the leading decision of Hessell v R, the Supreme Court commented as follows:²⁹

[64] ... Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

[33] In my judgment, it cannot be said that Judge Cunningham erred in declining to give Mr Ta’akimoeaka a discount for remorse. Whether the remorse expressed was genuine was a matter for her to assess, in the context of her knowledge of the case and on the materials before her. She was entitled to be sceptical about the claim that Mr Ta’akimoeaka was genuinely remorseful. She was entitled to reach her own conclusion in that regard. There was no error in principle in her approach.

[34] In any event, there was something of a de facto additional discount. First, there is the rounding and the mathematical error noted in footnote 11 above. Secondly, the Judge’s decision not to uplift for Mr Ta’akimoeaka’s previous convictions, or for the fact that the offending was committed whilst he was on bail, was arguably lenient and in favour of Mr Ta’akimoeaka.

[35] In my view, the starting point of eight years and six months’ imprisonment adopted by Judge Cunningham was within the available range. It is consistent with relevant case law, both in the Court of Appeal³⁰ and in this Court.³¹ An appropriate

_{discount was given for the guilty plea which was entered.}

²⁸ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].

²⁹ Hessell v R, above n 28.

30. Nathan v R [2017] NZCA 18; Couper v R, above n 25; R v Roker, above n 26; Hu v R [2011] NZCA 412; Lewis v R [2015] NZCA 444.

³¹ R v Roker, above n 26.

[36] I am not persuaded that the end sentence imposed by Judge Cunningham of six years and three months’ imprisonment was manifestly excessive. The appeal is

_dismissed.

Wylie J