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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Rethinking R v Taueki
A New Sentencing Guideline Judgment for Intimate Partner Violence
Anna Piebenga
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otākou
October 2022
Acknowledgements
First and foremost, to my supervisor, Danica McGovern. Thank you for your invaluable guidance and support, and for encouraging my (at points, chaotic) ideas. I truly appreciated your welfare check-ins while I analysed some distressing content, your kind reassurance when I had too many tabs open in my brain, and your constant reminders to unmute myself on Zoom.
Thank you, Stephen Smith, for your helpful insights following my seminar.
Thank you, Nicola Peart, for your daily encouragement while you waited for your coffee in Dispensary. Your catchphrase, “be bold, Anna!” stayed with me throughout writing this dissertation.
Thank you to all the friends and flatmates I’ve had the pleasure of knowing and loving throughout my time in Dunedin. What a time it has been! I will forever treasure the laughs, memories and copious amounts of coffee (and other assorted beverages) we’ve shared. I’m beyond excited for the adventures to come.
Gavin, thank you for sharing this journey with me. I appreciate you more than you know.
Finally, to Mum, Dad and Nick. Thank you for five years’ worth of reassuring phone calls, care packages, and last-minute trips home when I needed to ‘recharge.’ It has been a roller- coaster of a journey, and I’m so grateful for your support so that I could recover and continue studying the degrees I love.
Table of Contents
Chapter One: Introduction
Me aro koe ki te hā o hine-ahu-one – “Pay heed to the dignity of women” (Māori whakataukī).
I. Intimate Partner Violence
While Aotearoa New Zealand is widely acknowledged as being a permissively violent society,1 it is often said that our most violent places are our homes.2 Simply, domestic violence is a “scourge on our communities and our society.”3 One of the most researched and prevalent forms of domestic violence is intimate partner violence (IPV), referring to violence perpetrated by one intimate partner against the other.
IPV is widely understood as a repeated pattern of physical, psychological and/or sexual abuse inflicted between intimate partners to gain control or compliance.4 IPV encapsulates any behaviour within an intimate relationship that causes harm to those within that relationship,5 and it often manifests as a combination of any or all of these different forms of abuse. Another form of IPV which is becoming increasingly recognised is ‘gaslighting,’ a colloquialism referring to the psychological manipulation of one intimate partner by another into questioning their sanity, memory, perceptions or reality.6
Due to its domestic nature, IPV is likely to have multiple victims and may result in the intergenerational transmission of violence (both perpetration and victimisation) if children witness the offending.7 IPV directly threatens the functioning, well-being and health of victims and their whānau, and has devastating societal effects. In addition to the human and social cost
1 Michael Roguski and Natalie Gregory Former family violence perpetrators’ narratives of change (Kaitiaki Research and Evaluation, prepared for The Glenn Inquiry, 2014) at 49.
2 “Domestic Violence” (2022) Police Managers’ Guild Trust.
3 R v Walker [2016] HZHC 1076 at [16].
4 D.S., Black, S. Sussman., J.B., Unger “A further look at the intergenerational transmission of violence: witnessing interparental violence in emerging adulthood” (2010) 25(6) J. Interpers Violence at 1.
5 Eileen Scott A brief guide to intimate partner violence and abuse (NHS Scotland, July 2015) at 12.
6 Melissa Conrad “What is Gaslighting? Meaning, Examples and Support” (March 2022) Forbes Health
<https://www.forbes.com/health/mind/what-is-gaslighting/>. An example of ‘gaslighting’ is where an offender may say “oh come on! I never said that” or “you’re being overly sensitive. I don’t know why you’re making such a big deal out of this.”
7 Ministry of Justice Safer Sooner: Strengthening New Zealand’s Family Violence Laws (8 September 2016) at 1.
of IPV, offending of this nature significantly impacts our economy and burdens our criminal justice and healthcare systems.8
Aotearoa has the highest reported rate of IPV in the developed world:9 one in every three women has been a victim of physical and/or sexual violence and 55 per cent have experienced psychological/emotional abuse at the hands of a male intimate partner during their lifetime.10 Sadly, this figure is estimated to be far greater, as 80 per cent of all incidents of IPV are not reported to police.11
A troubling aspect of IPV in Aotearoa is its prevalence amongst Māori, both as victims and perpetrators.12 Māori women are almost twice as likely as Pākehā women to be victims of IPV, with 58 per cent of wāhine Māori having experienced physical and/or sexual IPV.13 Some estimates put this figure as high as 80 per cent when psychological and financial IPV is included.14 Given the disproportionately high rates of victimisation amongst Māori, it is important to consider IPV in respect of Te Tiriti o Waitangi and mātauranga Māori.15 In te ao Māori, IPV is viewed as a transgression of tikanga,16 violating: mana (prestige; status), tapu (sacredness), whakaroa (the sanctity of the home), and te wharetangata (the sanctity of wāhine/women). These concepts are foundational to understanding IPV as being not just a physical assault on a single victim but an attack on their wairua (spirit), as well as their whānau and whakapapa.17
8 Ministry of Justice, above n 7 at p 6. See also Maiju Tanskanen and Janne Kivivuori “Understanding intimate partner violence in context: social and community correlates of special and general victimization” (2021) 22(1) Nord J. Criminol. at 72.
9 Judy Paulin, Elaine Mossman, Nan Wehipeihana, Michele Lennan, Hector Kaiwai, Sue Carswell, Rob Lynn and Emmy Gauper An Evaluation of the Ministry of Justice-Funded Domestic Violence Programmes (Artemis Research, November 2018) at 2.
10 New Zealand Family Violence Clearinghouse “Frequently Asked Questions” (2019)
<https://www.nzfvc.org.nz/frequently-asked-questions>.
11 At 1.
12 Nancy Swarbrick “Domestic Violence” (May 2011; revised July 2018) Te Ara
<https://teara.govt.nz/en/domestic-violence/print>.
13 Leigh-Marama McLachlan “Every day I was beaten – Māori women three times more likely to be killed by partner” Radio New Zealand (New Zealand, 2 March 2020).
14 At 1.
15 Mātauranga Māori refers to the body of knowledge originating from Māori tūpuna/ancestors, including the Māori worldview and perspectives, as well as Māori cultural practices and creativity.
16 Office of the Minister of Justice, Cabinet Social Wellbeing Committee Family Violence Legislation: A modern Act with a greater focus on victims (2018) at 2, 9.
17 Ministry of Justice Strengthening New Zealand’s legislative response to family violence: Summary of submissions (4 March 2016) at 47.
For much of last century, IPV was downplayed as a primarily private matter.18 This notion of ‘the family’ as being beyond the control of the state meant that IPV was not fully recognised as a serious issue or addressed accordingly.19 However, public attitudes shifted as a result of concerted feminist activism; the aetiology, prevention and treatment of IPV has more recently attracted attention as a major social concern.20 According to police figures, reported rates of IPV have more than doubled in the past 20 years, reflecting changes in policy and increasing public awareness and willingness to report incidents.21
In response to this growing concern of Aotearoa’s unacceptably high rates of domestic violence,22 the Government appointed Marama Davidson as Minister for the Prevention of Family and Sexual Violence and introduced Te Aorerekura, a cross-agency strategy with an “ambitious vision” to eliminate domestic violence.23 The Government also passed two major pieces of legislation: the Family Violence Act 2018, which repeals and replaces the Domestic Violence Act 1995, and the Family Violence (Amendments) Act 2018, which makes changes to a number of Acts to improve responses to IPV in both the civil and criminal law.24
II. The R v Taueki Guideline Judgment
Domestic violence is taken seriously by the Courts, and any sentence should reflect that.25 However, the marked shift in how IPV has recently been addressed is not necessarily reflected in the way courts are sentencing GBH occurring within the context of an intimate relationship. I argue that Aotearoa’s sentencing guideline judgment on grievous bodily harm (GBH) offending, R v Taueki,26 does not sufficiently guide sentencing judges on how to appropriately assess the seriousness of this offending when it is perpetrated within an intimate relationship.
18 Ministry of Justice, Cabinet Social Policy Committee Reform of Family Violence Law, Paper Three: Prosecuting Family Violence (2016) at 1.
19 P. Patra., J. Prakash., B. Patra., and P. Khanna “Intimate partner violence: Wounds are deeper” (2018) 60(4) Indian J. Psychiatry at 497.
20 Black, Sussman and Unger, above n 4 at 1022.
21 Swarbrick, above n 12 at 1.
22 Ministry of Justice “Key Initiatives: A new Family Violence Act” (n.d.) <https://www.justice.govt.nz>
23 Marama Davidson “Prominent women reinforce collective approach to addressing gender-based violence” (8 March 2022) The Beehive <https://www.beehive.govt.nz/release/prominent-women-reinforce-collective- approach-addressing-gender-based-violence>.
24 The Family Violence (Amendments) Act 2018 amends the Bail Act 2000, Crimes Act 1961, Sentencing Act 2002, Evidence Act 2006, Criminal Procedure Act 2011, and Care of Children Act 2004. See also Ministry of Justice “Key Initiatives: A New Family Violence Act” (n.d.) <https://www.justice.govt.nz>
25 Petera v R [2020] NZDC 16911 at [20].
26 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.
The Court of Appeal in 2005 took the opportunity to review longstanding guidelines for GBH offences and issue a new guideline judgment, R v Taueki, for sentencing serious, non-fatal offending against the person – in particular, for offences against sections 188(1) and 191(1) of the Crimes Act 1961,27 generically referred to as ‘GBH offending’.
The Court in Taueki provided guidance as to how the Courts should approach sentencing in these cases and set out a clear two-step sentencing methodology, founded on the idea of a starting point and ‘bands’ of offending as appropriate points of reference to assist the sentencing exercise.28 The Court provided examples of “street attacks” and “domestic assaults” for each band of seriousness.
The Court in Taueki states that the fact that violence occurs in a domestic situation “should not be seen as reducing its seriousness.”29 It is this statement that I find problematic and that underpins my dissertation: Taueki does not treat IPV as being inherently more serious than GBH offending involving other classes of interpersonal relationships, like siblings or strangers. Instead, I argue that the application of Taueki to instances of GBH within the context of IPV has resulted in sentences that seem ‘out of step’ with the seriousness of the offending. Ultimately, under Taueki, perpetrators of IPV are in many cases dealt with more leniently compared with perpetrators of similar violence not involving intimate partners.
III. Scope of this Dissertation
As IPV is a complex phenomenon, there are still gaps in knowledge and a lack of consensus on certain aspects of IPV.30 While unanimity about the particular definition of ‘intimate partners’ for the purposes of IPV has not been achieved,31 when I use the terminology ‘intimate
27 Moses v R [2020] NZCA 296 at [5]. Sentencing Act 2002, s 188(1) refers to intent to cause GBH by wounding, maiming, disfiguring or otherwise causing GBH; s 191(1) refers to wounding, maiming, disfiguring, stupefying, rendering unconscious or otherwise causing GBH while intending to commit or facilitate (or avoid detection or arrest upon) commission or attempted commission of an imprisonable offence.
28 Moses, above n 27 at [5-6].
29 Taueki, above n 26 at [35].
30 Denise Lievore, Pat Mayhew and Elaine Mossman The scale and nature of family violence in New Zealand: A review and evaluation of knowledge (Centre for Social Research and Evaluation, Ministry of Social Development 2007) at 29.
31 At 63.
partner(s)’, I am referring to married, de facto/cohabitating or separated32 couples, as well as those who are dating33 or in short-term, casual relationships.34 I am including separated couples within my definition of ‘intimate partners’ in recognition of the fact that leaving the relationship often does not stop the abuse; rather, violence often escalates after separation.35 The period of ending (or attempting to end) a relationship is particularly dangerous for women, whose intimate partners become threatened by a clear indication of a change or loss in the relationship and may respond by inflicting violence.36 I also use the terms ‘abuse’ and ‘violence’ interchangeably, subsuming both physical and emotional/psychological abuse under the umbrella term ‘IPV’.37 This extends the concept of ‘violence’ beyond its mere physical forms to better reflect current understandings of what is encompassed within IPV.
IPV, in all its forms, is of major social concern in Aotearoa. The scope of this dissertation is limited to serious instances of IPV captured within the Taueki guideline judgment: primarily, GBH offending but also including (to a lesser extent) attempted murder38 and manslaughter.39 As there is neither a tariff case nor guideline judgment for attempted murder and manslaughter, the Court of Appeal recognised that it is appropriate to apply the Taueki sentencing methodology where serious violence is inflicted, albeit with an element of “awkwardness.”40
While I acknowledge the extent and importance of abuse perpetrated within other relationships in the domestic context, like violence against children or elder abuse, the problem of IPV warrants particular attention. The potential to use violence is human, not ‘male’ or ‘female’ per
32 Interestingly, studies have indicated that the levels and severity of violence perpetrated by former partners was higher than that experienced by current partners. See Anthony Morgan and Hannah Chadwick Key issues in domestic violence (Australian Institute of Criminology, December 2009) at 2.
33 For example, R v Joseph [2017] NZDC 19212 involved an offender and victim who had been in a two or three-month relationship.
34 In R v Hopoate [2018] NZDC 17555, the victim and offender had “commenced a relationship of sorts only a few days earlier” at [2]. The Court acknowledged that while “[the victim] was not [the offender’s] long-standing partner, at that time the two of [them] were nonetheless in a relationship” at [5].
35 Z. Rakovec-Felser “Domestic Violence and Abuse in Intimate Relationship from Public Health Perspective” (October 2014) 2(3):1821 Health Psychology Research at 63.
36 At 62. See also above Lievore, Mayhew and Mossman, above n 30 at 36.
37 Lievore, Mayhew and Mossman, above n 30 at 16.
38 R v Fotuaika BC200894473 outlined that because there is no tariff case for attempted murder, it is now usual to follow the Taueki guideline judgment where serious violence is involved.
39 For instance, the Court in Ferris-Bromley v R [2017] NZCA 115 applied the Taueki methodology to one charge of manslaughter and two charges of causing GBH with intent to injure.
40 R v Jeffries-Smith and Williams [2019] NZHC 2067 at [65] outlined that because “there is no guideline judgment for manslaughter... where there is serious violence and where serious injury was a foreseeable outcome, Taueki may be useful.”
se, but IPV is undeniably gendered offending, both in terms of perpetration and victimisation.41 IPV can be committed by and against anyone in heterosexual and non-heterosexual or queer42 relationships, but evidence clearly indicates that the vast majority of those experiencing IPV are women (including trans women), and that those perpetrating IPV are men.43 Women are twice as likely as men to suffer IPV during their lifetime, including repeat victimisation.44 While I recognise that men, non-binary people45 and those identifying as gender-queer46 experience violence within intimate relationships, and that women can perpetrate IPV,47 the prevalence and severity of IPV perpetrated by men against women is far greater.48 For this reason, the scope of this dissertation is limited to instances of IPV offending perpetrated by men, the primary aggressors, against their female partners, the primary victims. For clarity, I will adopt the same terminology: ‘woman’ and ‘man’ as being synonymous with ‘victim’ and ‘offender’ respectively.
IV. Structure of this Dissertation
The Court must always be prepared to revisit guideline judgments as required.49 The broad purpose of this dissertation, therefore, is to evaluate the effectiveness of the Taueki guideline judgment for sentencing GBH offending that is perpetrated within the context of an intimate relationship and determine whether it needs reconsidering. Is Taueki fit for purpose? If not, what changes ought to be made to more accurately reflect the seriousness of this offending?
Chapter Two provides a comprehensive background to the sentencing framework in Aotearoa, focusing on the nature and function of guidelines generally, and the guideline judgment for sentencing GBH offending, Taueki, in particular.
41 Office of the Minister of Justice, Cabinet Social Wellbeing Committee, above n 16 at [53].
42 The ‘Queer’ or LGBTQIA+ (lesbian, gay, bisexual, transgender, queer/questioning, intersex, asexual and other) community is an umbrella term referring to those whose sexual orientation and/or gender identity does not align with the heterosexual/heteroromantic, cis-gender norm.
43 Scott, above n 5 at 4.
44 Ministry of Social Development Family Violence Funding Approach: Building a sustainable future for family violence services (July 2019) at 5.
45 ‘Non-binary’ (also referred to as ‘gender non-conforming’) is a term for those whose gender identity is outside the gender binary i.e., any gender expression beyond the binary of ‘man’ and ‘woman’.
46 ‘Gender-queer’ denotes or relates to a person who does not subscribe to conventional gender distinctions but identifies with both, neither, or a combination of female and male genders.
47 Roguski and Gregory, above n 1 at 13.
48 Scott, above n 5 at 4. See also Rakovec-Felser, above n 35 at 62.
49 Setu v R [2018] NZCA 127 at [8].
Chapter Three explores how the complex nature of the intimate relationship between victim and offender and the nature of IPV itself distinguishes it from ‘other’ GBH offending, foreshadowing my argument that a more nuanced approach to sentencing IPV is required.
Chapter Four analyses a body of sentencing decisions to discern whether or not this understanding of IPV is reflected in current sentencing practice. I will highlight the existence and extent of inconsistencies in how different judges interpret and apply Taueki to instances of GBH committed by one intimate partner against another and argue that this disparity justifies reconsidering the guidelines.
Chapter Five critiques the application of Taueki in cases of IPV by summarising the only substantial critique of the guideline judgment in Aotearoa, Frances Gourlay’s feminist judgment. I will discuss a number of areas in which the ‘global’ guideline judgment does not recognise the actual seriousness of GBH offending occurring within the context of IPV.
Building upon this case analysis and critique, Chapter Six compares current sentencing practice of applying Taueki to instances of IPV against Gourlay’s feminist judgment. I will explore the various ways in which sentencing practice has developed independently of (and at times, inconsistently with) Taueki in the almost-two decades since it was issued and argue that this requires reconsidering Taueki in a contemporary context.
Chapter Seven ultimately argues that, because the Taueki guideline judgment does not appropriately assess the seriousness of GBH offending perpetrated within the context of an intimate relationship, a new sentencing approach is required in Aotearoa. I suggest that this should take the form of a new guideline judgment, tailored to instances of GBH involving IPV.
Chapter Two: Background
I. Introduction
While much has been done to address IPV from a policy/legislative perspective, it remains one of Aotearoa’s most significant social issues.50 This is especially salient where sentencing practice is concerned. This chapter discusses the sentencing framework in Aotearoa, explaining the Sentencing Act 2002 and structured approaches to sentencing, the nature and function of guideline judgments generally, and Taueki, the guideline judgment for GBH offending.
III. Guideline Judgments
Guideline judgments, primarily issued by the Court of Appeal,57 provide authoritative guidance to assist judges in the exercise of discretion when sentencing for a particular offence. When
50 Ministry of Justice, above n 7 at 7.
51 Moses, above n 27 at [4].
52 Taueki, above n 26 at [13].
53 Section 7(1)(e).
54 Section 8(g).
55 Sections 9(1) and 9(2). Importantly, the Act does afford any aggravating or mitigating factor more or less weight than another.
56 R v AM [2009] NZCA 27 at [13] and [35].
57 However, there has been one guideline judgment recently issued by the Supreme Court, Deng v Zheng [2022] NZSC 76, where the decision was appealed against the Court of Appeal judgment.
delivering a guideline judgment, the Court uses the case on appeal to analyse sentencing levels for a particular type of offence across a range of cases and assist judges in reaching an appropriate starting point for the seriousness of the offending.58 Though technically obiter, guideline judgments are treated as authoritative, given the thorough process the Court undertakes in arriving at its decision.
A. Function of Guideline Judgments
The primary function of guideline judgments is to promote consistency in sentencing levels for a particular offence nationwide: like cases should be treated in like manner, and similarly situated offenders ought to receive similar sentences.59 Importantly, these judgments do not aim to “impose a straight-jacket on sentencing judges – quite the reverse.”60 The guidelines are flexible enough to allow for individual judges to exercise discretion when formulating an appropriate sentence for an offender. The Court of Appeal routinely emphasises that sentencing is still an evaluative exercise and that the guidelines ought not to be applied “formulaically”61 or in a “mechanistic way.”62 While guideline judgments broadly promote consistency across courts when sentencing, each guideline judgment preserves the ability of sentencing judges to depart from guidelines in certain cases where the circumstances dictate a more or less severe response.63
B. Purpose of Issuing Guideline Judgments
Guideline judgments have typically been issued when the Court has perceived a particular need for sentencing guidance or clarification in respect of a given offence, or in response to legislative change.64 For example, Taueki was primarily issued “against a background of rising rates of imprisonment and public concern about violent crime,”65 and a growing awareness (both academic and public) of the dynamics and effects of domestic violence.66 Taueki also resulted in part from dissatisfaction with the limited guidance provided by its predecessor, R v
58 Yvette Tinsley “Commentary on R v Taueki Sentencing Guidelines for Domestic Violence: The Missing
Factors” in Elisabeth McDonald, Rhonda Powell, Māmari Stephens, Rosemary Hunter (eds) Feminist judgments of Aotearoa New Zealand: te rino: a two-stranded rope (Hart Publishing, Portland, 2017) at 531.
59 Zhang v R [2019] NZCA 507 at [47].
60 AM, above n 56 at [84].
61 Taueki, above n 26 at [30] and [35].
62 Shramka v R [2022] NZCA 299 at [44].
63 R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 at [25].
64 AM, above n 56 at [11]. For instance, Shramka, above n 62, was issued after Parliament made strangulation an offence under s 189A of the Crimes Act 1961.
65 World Prison Brief “New Zealand” (March 2022) <https://www.prisonstudies.org/country/new-zealand>.
66 Tinsley, above n 59 at 533.
Hereora,67 and as a response to legislative changes.68 Importantly, a key driver for the revision of existing guideline judgments is the need to “refocus the sentencing exercise on a proper assessment of the true culpability and criminality present in the offending.”69
C. General Sentencing Methodology: The ‘Taueki Methodology’
Taueki is understood as being the first guideline judgment to establish the general sentencing methodology (often referred to as the ‘Taueki methodology’) for all offences in Aotearoa. The need for such a general sentencing methodology arose from a lack of consistency across different courts and among different sentencing judges, who, without a global methodology, formulated sentences that were out of step with those reached for comparable offending. The guideline judgment clearly articulates and instructs sentencing judges to follow a two-step methodology:
1. Step One
Judges assess both the presence and intensity of aggravating and mitigating factors in the offending itself to establish an appropriate starting point that reflects the intrinsic seriousness of the offending. Starting points are a helpful mechanism to assess the seriousness of the present offending and provide the basis for assessing consistency between cases.70
2. Step Two
The starting point may be uplifted or reduced to reflect aggravating and mitigating circumstances personal to the offender, or for any other relevant circumstances that justify departing from the starting point.71 Similar to the assessment of sentencing factors present in the offending itself, the list of factors relating to the offender that sentencing judges must consider is not exhaustive.72
67 R v Hereora [1986] 2 NZLR 164. Furthermore, Hereora provided for a top band two years below the maximum penalty for the most serious of non-fatal offences against the person. See also above n 59 at 531-533. 68 AM, above n 56 at [31], referring to changes implemented by the Sentencing Act 2002.
69 AM, above n 56 at [12], citing R v Moananui [1983] NZCA 66; [1983] NZLR 537 (CA) at [31] and [70].
70 Taueki, above n 26 at [43].
71 Tinsley, above n 58 at 531.
72 Taueki, above n 26 at [44], referring to ss 8 and 9 of the Sentencing Act 2002.
IV. R v Taueki: The Guideline Judgment for Grievous Bodily Harm Offending
Taueki provides sentencing judges with detailed guidance on how to assess the seriousness of GBH offending.
A. Assessing the Seriousness of Grievous Bodily Harm Offending and Selecting a Starting Point
As discussed, step one of the Taueki methodology involves sentencing judges assessing the seriousness of the offending by reference to the number and extent to which aggravating and/or mitigating factors are present in the offending itself, then selecting an appropriate starting point for sentence. The Court in Taueki at [31] outlined a series of aggravating factors that contribute to the seriousness of the conduct and criminality involved in GBH offending:73
(a) Extreme violence;74
(b) Premeditation;75
(c) Serious injury;76
(d) Use of a weapon;77
(e) Attacking the head;78
(f) Vulnerability of the victim;79
(g) Home invasion.80
The Court in Taueki at [32] set out a list of mitigating factors that sentencing judges ought to take into consideration in setting an appropriate starting point, such as provocation or excessive self-defence. However, the Court then outlines factors which should not be considered mitigating: domestic situation, or that the victim calls for a lenient sentence.81
73 Taueki, above n 26. These factors are mostly taken from existing practice but are consistent with s 9 of the Sentencing Act 2002. Where relevant, the Court of Appeal links each aggravating factor to the corresponding subsection of the Act, to ensure consistency with Parliament.
74 Taueki, above n 26 at [31(a)]. This reflects s 9(1)(a) and (e) of the Sentencing Act 2002.
75 Taueki, above n 26 at [31(b)]. This reflects s 9(1)(i) of the Sentencing Act 2002. 76 Taueki, above n 26 at [31(c)]. This reflects s 9(1)(d) of the Sentencing Act 2002. 77 Taueki, above n 26 at [31(d)]. This reflects s 9(1)(a) of the Sentencing Act 2002 78 Taueki, above n 26 at [31(e)].
79 Taueki, above n 26 at [31(i)]. This reflects s 9(1)(f) of the Sentencing Act 2002.
80 Taueki, above n 26 at [31(j)]. This reflects s 9(1)(b) of the Sentencing Act 2002. See also R v McLean [1999] 2 NZLR 263 for a thorough discussion of this point at [12]-[14].
81 Taueki, above n 26 at [33].
B. Taueki Sentencing Bands
Sentencing judges have a reasonable degree of latitude to assess the number and gravity of aggravating and mitigating factors present in the offending. This assessment informs the appropriate starting point for sentence, and, in the context of GBH offending, placement of offending within a particular sentencing band (or ‘Taueki band’).82 The Court in Taueki focused on the circumstances of the offending in setting the three overlapping bands of custodial sentence, within which starting points are provided. Also included under each escalating sentencing band are examples of “domestic assault” in band one,83 “premeditated domestic offending” in band two,84 and “serious domestic assault” in band three85 respectively. The three sentencing bands and corresponding starting points are as follows:
82 Taueki, above n 26 at [29]. Note that judges often situate the offending between bands i.e., at the upper end of band one or the lower end of band two.
83 Taueki, above n 26 at [37(b)]. “Domestic assault: 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.”
84 Taueki, above n 26 at [39(c)]. “Premeditated domestic assault: 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.”
85 Taueki, above n 26 at [41(b)]. “Serious domestic assault: In 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.”
Once judges select a starting point and sentencing band that reflects the seriousness of the GBH offending, step two of the Taueki methodology requires them to make adjustments to reflect aggravating or mitigating circumstances personal to the offender. I will now illustrate how a sentencing judge approaches the different steps of the Taueki methodology in practice using an example, Griffiths v R.86
C. How Taueki Operates in Practice: Griffiths v R
Griffiths v R involved six charges arising from violent assaults by the offender against his then- partner over five days. He repeatedly punched and kicked the victim’s head and body and hit her with a broomstick, breaking it in half. The offending giving rise to the GBH charge involved the offender forcing a kitchen sponge in the victim’s mouth to conceal any noise, before deliberately pouring boiling water over her abdomen and legs. The victim suffered moderate to serious injuries as a result of the violence: a broken eye socket and burns over a significant proportion of her body, which were sufficiently serious to require hospitalisation and subsequent treatment for four to five months.
The Judge regarded this offending as very serious and particularly “gross, barbaric, degrading and having an element of premeditation.”87 The fact that the violence was sustained and callous, and the offender’s failure to obtain medical assistance for some time were all viewed as aggravating factors increasing the seriousness of the offending. The Judge placed the offending at the top of band two or the bottom of band three in Taueki, reaching a starting point of eight years’ imprisonment to reflect the totality of the offending.
Moving to step two of the Taueki methodology, the starting point was uplifted to eight-and-a- half years to reflect the offender’s previous convictions (including a conviction for violence against the same victim). The Judge credited the offender for his guilty plea and for remorse, as well as acknowledging the stress caused by losing their twins the previous year. These mitigating factors culminated in a discount of 12 months, resulting in a final sentence of seven- and-a-half years’ imprisonment.
86 Griffiths v R [2011] NZCA 102.
87 Griffiths, above n 86 at [9].
V. Conclusion
This chapter provided an overview of the sentencing framework in Aotearoa, including the Sentencing Act 2002, structured approaches to sentencing, and the nature and function of guideline judgments – specifically, Taueki, the guideline judgment for GBH offending. I used Griffiths to illustrate how sentencing judges apply Taueki to GBH offending to reach a final sentence.
Chapter Three: Why Grievous Bodily Harm Offending Involving Intimate Partner Violence is More Serious than ‘Other’ Grievous Bodily Harm Offending
I. Introduction
In Taueki, the Court of Appeal recognised that intimate partner violence (referred to therein as ‘offending within a domestic context’) was of major social concern in Aotearoa.88 While the Court stated that an assault committed in a domestic context should not be treated any less seriously than other types of violence,89 in this chapter I articulate why GBH offending that occurs within the context of an intimate relationship is more serious than that which does not– which I refer to as ‘other’ GBH offending. The nature of IPV differs from other GBH offending because of the family/whānau relationship, in which intimacy, vulnerability and trust are inherent; the cumulative impact on multiple victims of (typically) an ongoing pattern of abuse; and the compounding structural inequalities associated with IPV.
II. The Nature of Intimate Relationships
The nature of the intimate relationship distinguishes GBH offending against an intimate partner from that involving other classes of interpersonal relationships, such as flatmates, acquaintances or strangers. Offending perpetrated by and against intimate partners threatens the ‘sanctity’ of the intimate relationship in a way that other GBH offending does not. Co- occupation as a family/whānau unit involves a social contract of mutual care and necessarily, “inherent vulnerability to... breach of that social contract when physical violence is employed.”90 Intimate relationships often import an extra element of emotional and/or financial dependency between partners, therefore creating a greater degree of intimacy.
Further distinguishing IPV offending from other GBH offending is the extent to which important interests are engaged in intimate relationships between partners, either former or current. Intimate relationships are generally “represented as something that must be protected
88 Taueki, above n 26.
89 Taueki, above n 26, at [33] (emphasis added).
90 Solicitor General v Hutchison [2018] NZCA 162 at [27].
and kept intact,”91 and they give rise to particular interests which society deems important: namely, trust, respect, and intimacy. While these interests are present in (and reasonably dictate) our standards of behaviour in everyday life, they are engaged within intimate relationships to a greater extent than in other interpersonal, non-intimate relationships. The dynamic of intimate relationships, in which partners share a certain physical and emotional ‘closeness’ or connection, therefore increases the seriousness of any violation of these interests
III. Intimate Partner Violence Harms Multiple Victims
While inflicting serious harm to an individual is inherent in all GBH offending, IPV can be distinguished from ‘other’ GBH offending in the sense that it often harms multiple victims. IPV occurs within the context of a family/whānau relationship, whereby the victim and offender may cohabitate and/or share children together, meaning that the consequences of IPV directly threaten the health, well-being and general functioning of victims, and indirectly their family and wider community.92
IPV occurring within the family home has a wide-spread and profound effect over time and across generations – especially if children/tamariki witness the offending perpetrated by and against their parent(s). While children may not be physically abused themselves, an absence of direct physical harm does not equate to an absence of all harm;93 simply living with the threat of violence significantly impacts their well-being.94 Unlike most other GBH offending, IPV commonly results in the intergenerational transmission of violence.95 Because the family is a primary socialising institution and source of childhood learning, witnessing IPV teaches the appropriateness and consequences of this behaviour within intimate relationships.96 Children
91 M. Hester, S-J Walker, and E. Williamson Gendered experiences of justice and domestic abuse. Evidence for policy and practice (Women’s Aid, University of Bristol School for Policy Studies 2021) at 7.
92 Rakovec-Felser, above n 35 at 62.
93 Kerryn O’Neill “Family violence: children get hurt” (2020) Brainwave
<https://brainwave.org.nz/article/family-violence-children-get-hurt/>
94 J.R. McTavish, J.C. MacGregor, C.N., Wathen, & H.L., MacMillan “Children’s exposure to intimate partner violence: An overview” (2016) 28(5) Int. Rev Psychiatry at 508.
95 Ministry of Justice, above n 7 at 1.
96 Albert Bandura Aggression: A Social Learning Analysis (Englewood Cliffs, NJ, Prentice Hall, 1973) at 2.
who observe IPV being habitually employed are at greater risk of both perpetrating and being victimised by violence in subsequent generations.97
While all GBH is inherently harmful, GBH perpetrated within the context of IPV poses significantly greater physical and psychological harm to victims, manifesting both as poorer health status/outcomes and poorer overall quality of life.103 These consequences can be acute and immediate, or chronic and long-lasting.104 Ongoing IPV is associated with an increase in the number and extent of physical injuries: victims may develop debilitating sexual/reproductive, mental and behavioural injuries and disabilities, and substance abuse issues.105 Importantly, the consequences of IPV offending remain long after the violence for which the offender is being sentenced has ended.
97 Black, Sussman and Unger, above n 4 at p 2.
98 Swarbrick, above n 12 at 1.
99 For instance, R v Wilkes [2018] NZDC 14929. In that case, the offender and victim had been married for seven years – a marriage which both regarded as “successful and happy,” with no recorded incidents of violence (at [2]). This isolated instance of GBH offending could not be said to constitute part of an ongoing pattern of abuse.
100 Office of the Minister of Justice, Cabinet Social Wellbeing Committee, above n 16 at 2.
101 Police Managers’ Guild Trust, above n 2 at 1. See also Rakovec-Felser, above n 35 at 62.
102 “A Stronger Response to Family Violence Q&A” (n.d.) Beehive <https://www.beehive.govt.nz>
103 Rakovec-Felser, above n 35 at 61.
104 Akhil Bansal “New cause area: Violence against women and girls” (June 2022) Effective Altruism
<https://www.effectivealtruism.org>.
105 Swarbrick, above n 12 at 1.
Victims of IPV may also become increasingly isolated from friends, whānau and themselves, thus affecting their capacity to exercise autonomy.106 In an IPV context, autonomy refers to a woman’s ability to act independently of her partner and her “capability to articulate strategic choices, access to and control over resources, and participate in decision-making.”107 One study found an empirical link between ‘spousal violence’ (IPV) and the collapse of a woman’s autonomy: the more frequent the IPV, the less autonomy the woman exercises.108 An offender may further curtail his partner’s autonomy by monitoring her social media account(s), isolating her from support systems, forbidding her from practicing her cultural and/or spiritual beliefs, or even preventing her from leaving the relationship.
V. Intimate Partner Violence Perpetuates Gender Inequality Within Intimate Relationships
Women experience IPV perpetrated by men as part of embedded, structural inequalities against their gender.109 Simply, the prominence of sexism within our existing social structures “enables and entitles men to demean, objectify, abuse and control women” through IPV.110 These displays of violent behaviour by men are aimed at subjugating or controlling their intimate partners and reflect an internalised belief that they can (and disturbingly, ought to) dominate women within the home.111 IPV is the manifestation of an exercise of control within domestic relationships,112 where women risk discipline through the infliction of physical violence if they do or say anything their partner interprets as disobedience.113
This notion of IPV as a tool to perpetuate gender inequality within intimate relationships is significant, especially when the offending is further intersected by other structural inequalities such as ableism, racism or discrimination on the grounds of sexual orientation.114 ‘Intersectionality’ refers to the ways in which a person’s life is shaped by their multiple,
106 Swarbrick, above n 12 at 1.
107 Sujan Gautam and Hyoung-Sun Jeong “The Role of Women’s Autonomy and Experience of Intimate Partner Violence as a Predictor of Maternal Healthcare Service Utilization in Nepal” (2019) 16(5) Int. J. Environ. Res. Public Health 895 at 2.
108 Mukesh Eswaran and Nisha Malhotra “Domestic violence and women's autonomy in developing countries: theory and evidence” (2011) 44(4) Can. J. Econ. at 1226.
109 Rakovec-Felser, above n 35 at 63.
110 Hester, Walker, and Williamson, above n 91 at 14.
111 R v Grey [2014] NZHC 789 at [35].
112 Setu, above n 49 at [32].
113 Muliipu v R [2013] NZCA 257 at [22].
114 Hester, Walker, and Williamson, above n 91, above n 91 at 14.
overlapping identities115 – “where power comes and collides, where it interlocks and intersects.”116 In the context of IPV, a woman may face intersecting structural inequalities, like being disabled or belonging to an ethnic minority group, in addition to her position as a woman, meaning that the offending will impact her differently and more severely.117
Offenders often employ effective abuse tactics to exploit a woman’s identity-based vulnerabilities to inflict a greater level of harm through IPV.118 A “disturbingly common”119 example of such abuse is where the victim is a transgender woman. Evidence indicates that trans women suffer disproportionately high rates of IPV at the hands of abusive partners,120 and may experience an equally disproportionate “IPV burden” compared with cis-gender (or non-transgender) victims.121 In addition to inflicting physical violence, offenders may inflict ‘transgender-specific’ forms of abuse,122 which could include: misgendering her,123 denigrating her body parts that signify cultural notions of gender, insisting that she is not a “real woman,” or threatening to reveal her trans identity to friends, whānau or employers.124 Often, offenders use a woman’s trans identity as a means of punishment for her apparent failure to conform to traditional gender norms or presentations,125 or as a justification for his offending, saying for example: “you’re lucky to have me, because nobody else will love you.”
115 Pamela Cross “What is intersectionality and how does it impact my work?” (December 2017) Luke’s Place
<https://lukesplace.ca/what-is-intersectionality-and-how-does-it-impact-my-work/>. See also Government of Ontario A Better Way Forward: Ontario’s 3-Year Anti-Racism Strategic Plan (March 2017) at 53.
116 “Intersectionality and Domestic Violence” (May 2020) Genesis: Women’s Shelter and Support
<https://www.genesisshelter.org/intersectionality-and-domestic-violence/>. See also Interview with Kimberlé Crenshaw, Professor (Columbia Law School, African American Policy Forum, 8 June 2017) transcript provided by Columbia Law School (New York).
117 Cross, above n 115 at 1.
118 Leigh Goodmark “Transgender People, Intimate Partner Abuse, and the Legal System” (2013) 48 Harv Civ Rights-Civil Lib Law Rev 51 at 62.
119 At 61.
120 One study found that up to 66% of transgender individuals have experienced sexual and/or physical assault at some point in their lives. J. Xavier., J.A. Honnold., and J. Bradford “The Health, Health-Related Needs, and Lifecourse Experiences of Transgender Virginians” (Community Health Research Initiative, Center for Public Policy Virginia Commonwealth University 2007); cited in “Responding to Transgender Victims of Sexual Assault” Office for Victims of Crime, June 2014.
<https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/forge/sexual_numbers.html>.
121 S.M. Peitzmeier., M. Malik., S.K. Kattari., E. Marrow., R Stephenson., M. Agénor., and S.L., Reisner.
“Intimate Partner Violence in Transgender Populations: A Systematic Review and Meta-analysis of Prevalence and Correlates” (2020) 110(9) Am. J. Public Health 1.
122 Nicola Brown “Holding Tensions of Victimization and Perpetration: Partner Abuse in Trans Communities” in Janice L. Ristock (ed) Intimate Partner Violence in LGBTQ (1st ed, Routledge, Oxfordshire 2011) 153 at 156; cited in above n 119 at 62.
123 For instance, referring to the woman as ‘him’ or ‘a man’ as a means of de-legitimising her gender identity.
124 Goodmark, above n 118 at 63.
125 Goodmark, above n 118 at 55.
VI. Conclusion
For many reasons, GBH offending specifically occurring within the context of intimate relationships is inherently different from, and more serious than, ‘other’ GBH offending. The nature of the relationship between intimate partners sets IPV apart from other GBH offending, as does the heightened extent that particular interests are engaged and violated by IPV. Furthermore, IPV inflicts considerably greater levels of harm – both directly to victims and indirectly to their whānau and the wider community – and typically occurs within a wider, ongoing pattern of abuse. IPV is further compounded by structural inequalities, and the relationship operates as the vehicle through which male offenders exercise power and control over their female partners. The nature of IPV indicates that a different, more nuanced approach to sentencing is appropriate to reflect the intrinsic seriousness of this offending.
Chapter Four: Analysis of Sentencing Decisions Applying Taueki
to Instances of Intimate Partner Violence
I. Introduction
This understanding of IPV as a complex, multifaceted form of GBH offending gives rise to many questions regarding the current sentencing practice in Aotearoa. Do judges take IPV into account when sentencing GBH offending under the Taueki methodology? If so, how? To answer these questions, I first needed to discern whether current sentencing practice reflects the intrinsic seriousness of IPV – and importantly, whether judges across different courts are consistent in their approaches to sentencing IPV. The following case analysis and categorisation of sentencing approaches illustrates both the existence and extent of inconsistency with the way in which courts are sentencing GBH offending occurring within intimate relationships. This comprehensive analysis represents one of the unique contributions this dissertation is making to the existing literature; at present, there exists no similar study of case law applying Taueki to instances of IPV.
II. Analysis of Cases Applying Taueki to Instances of Intimate Partner Violence
I analysed a large body of case law applying Taueki to more conclusively discern whether there are issues with current sentencing practice. Specifically, I wanted to know whether the fact that the GBH was committed by an intimate partner impacted upon judges’ assessments of the seriousness of the offending for which the offender is being sentenced – and if so, how. From the large number of sentencing decisions I read when conducting preliminary research on Taueki, I selected 30 cases of GBH offending perpetrated by one intimate partner against another from the District Courts, High Courts and Court of Appeal for my analysis. I purposely chose decisions from 2008-2022 to ensure that sufficient time had passed since Taueki was issued in 2005 (making it well-settled law) and that my analysis was as contemporary as possible.
I needed to ascertain, firstly, whether there was one approach or several approaches among judges when sentencing GBH offending involving IPV; and secondly, whether sentencing
judges appropriately took account of the particular features of IPV when assessing the seriousness of this offending. To determine this, I assigned the 30 cases to one of three categories depending on whether the sentencing judge(s):
III. Summary of Findings
Of the 30 cases analysed, only five considered IPV as a stand-alone aggravating factor increasing the seriousness of the offending.127 For instance, both Solicitor-General v Hutchison128 and Muliipu v R129 explicitly regarded the domestic context in which the offending was committed as an aggravating factor in its own right. R v Hopoate similarly considered the domestic nature of the offending as aggravating, and while the victim was not considered the offender’s “long-standing partner, at that time the two of [them] were nonetheless in a relationship.”130
More commonly, however, was IPV considered as evidence of existing aggravating factors that Taueki deemed relevant to GBH cases, with 15 out of 30 cases falling into this category.131 For example, the Judge in R v Frost weaves the occurrence of IPV into their discussion of breach of trust and vulnerability of the victim, noting “that vulnerability [of the victim] arises in a number of ways,” including “the [domestic] nature of the relationship.”132 R v Falemaka discusses IPV in the context of both of these aggravating factors, stating that not only did the offender abuse the trust the victim reposed in them through committing IPV, but that the
126 More commonly referred to in judgments as ‘domestic violence’ or ‘violence committed within the domestic home/setting’.
127 Hutchison, above n 90; Muliipu v R [2013] NZCA 257; Setu, above n 49; Shramka, above n 62; and R v Hopoate, above n 34.
128 Hutchison, above n 91 at [28].
129 Muliipu, above n 113 at [17].
130 R v Hopoate, above n 34 at [30].
131 Kauwhata v R [2010] NZCA 451; Cooper v R [2020] NZCA 683; Dixon v R [2013] NZCA 454; R v Singh
[2016] NZHC 1666; R v Walker [2016] NZHC 1076; Wairau v R [2015] NZCA 215; August v R [2011] NZCA
91; R v Grey [2014] NZHC 789; R v Frost [2019] NZDC 10914; R v Panja [2018] NZDC 12491; R v Jeffries-
Smith and Williams [2019] NZHC 2067; Police v Porter [2016] NZDC 15119; R v Forrester [2017] NZDC 16154; R v Umaga [2017] NZDC 9833; and R v Falemaka [2016] NZDC 21827.
132 R v Frost [2019] NZDC 10914 at [38].
intimate relationship itself rendered her particularly vulnerable to harm.133 In other cases, like R v Jeffries-Smith and Williams, sentencing judges use more emphatic language in considering IPV as evidence of existing aggravating factors, noting in their discussion of vulnerability that “the relationship was characterised by regular violence,” and that the “victim described herself as... a “battered woman.”134 Judges often linked the intimate nature of the relationship with the seriousness of the offending, as in R v Panja. where the victim and offender’s “long-term marriage” constituted a breach of trust that aggravated the seriousness of the offending.135
The final category of cases denotes those in which sentencing judges either ignore the occurrence of IPV entirely in the judgment, or merely mention IPV in the introduction to provide background context to the offending. Of the 30 cases analysed, ten could properly be classified as falling within this category.136 Many cases made only a cursory reference to IPV, stating in the introductory paragraph that the victim and offender were in (either currently or formerly) an intimate relationship. The judge in Ferris-Bromley v R made no mention of IPV in relation to aggravating factors when assessing the seriousness of the offending; rather, the only reference to IPV was at [1]: the “two-year relationship between [the victim and offender] had become psychologically and physically violent on the [offender’s] part.”137 Some judges discuss the “relationship setting in which the violence occurred,” as in Kaio v R, but fail to relate this factor to their assessment of the seriousness of the offending. Similarly, the only mention of IPV in Rikihana v R was at [3], where the sentencing judge explained that “for a short time before the offending, Mr Rikihana and the complainant had been in a relationship.”138 It is therefore apparent that sentencing judges often fail to account for the particular features of IPV discussed earlier in this chapter that make this offending fundamentally more serious than ‘other’ GBH offending.
IV. Conclusion
For many reasons, GBH that occurs within an intimate relationship is inherently more serious than that which does not, yet this understanding is not reflected in current sentencing practice.
133 R v Falemaka [2016] NZDC 21827 at [9].
134 Jeffries-Smith and Williams, above n 40 at [86].
135 R v Panja [2018] NZDC 12491 at [26].
136 Kaio v R [2012] NZCA 168; R v Wilkes [2018] NZDC 14929; R v Mark [2019] NZDC 20997; Petera v R
[2020] NZDC 16911; R v Fotuaika BC200894473; King v R [2015] NZCA 436; Shen v R [2017] NZCA 103;
Ferris-Bromley v R [2017] NZCA 115; Rikihana v R [2010] NZCA 405; Orchard v R [2019] NZCA 529.
137 Ferris-Bromley v R [2017] NZCA 115 at [1].
138 Rikihana v R [2010] NZCA 405.
Instead, my comprehensive analysis of sentencing decisions involving such instances of GBH demonstrates both the existence and extent of the inconsistency with the way in which the courts currently apply Taueki to GBH offending committed within intimate relationships. Importantly, this inconsistency contradicts the very rationale for issuing the guideline judgment in the first place: to achieve consistency in sentencing. These findings, when coupled with my arguments about the serious nature of IPV, expose a gap in sentencing practice: more often than not, offenders who commit GBH against their intimate partners receive sentences that are too lenient for the seriousness of their offending. For these reasons, I argue that Taueki as it is currently being applied is not fulfilling its function in cases of IPV. This argument forms the basis for my next chapter, in which I will provide a more nuanced critique of Taueki and the issues arising with its application to instances of IPV.
Chapter Five: Critique of Taueki
I. Introduction
The previous chapter highlighted that there is a clear problem with how different courts across Aotearoa are applying Taueki to instances of IPV, but what underlies this inconsistency? In this chapter, I will address the specific ways in which Taueki does not recognise the actual seriousness of GBH offending occurring within intimate relationships by summarising the only substantial critique of Taueki: Frances Gourlay’s alternative feminist judgment, written as part of the Feminist Judgment Project.139
Gourlay critiques Taueki through a feminist lens by focusing on, as I am, GBH that is committed by one intimate partner against another, with men as the primary abusers and women as the primary victims of IPV. Though Gourlay wrote her alternative judgment in 2017 (accompanied by a commentary written by Yvette Tinsley), she is writing as if it were 2005 and Taueki was being redecided by a feminist judge. Gourlay’s comprehensive critique encapsulates the problems with Taueki’s application to instances of GBH occurring within intimate relationships, but where appropriate, I will supplement her analysis by highlighting areas in which I believe her arguments did not extend far enough. Through this critique, I ultimately question whether Taueki is truly fit for the purpose of sentencing offenders for GBH offending perpetrated by one intimate partner against another.
II. Critique of Taueki
Importantly, while Gourlay does not disagree with the majority’s general guideline in Taueki, her alternative judgment highlights the limitations of the majority’s approach and considers how Taueki might have otherwise been decided in cases of IPV. I will now summarise Gourlay’s critique of Taueki and the key arguments she presents in her judgment.
139 Frances Gourlay “R v Taueki: Judgment” in Elisabeth McDonald, Rhonda Powell, Māmari Stephens, Rosemary Hunter (eds) Feminist judgments of Aotearoa New Zealand: te rino: a two-stranded rope (Hart Publishing, Portland, 2017) at 539-549.
A. Global Guideline Judgment
The essence of Gourlay’s critique is that issuing a general or ‘global’ guideline judgment to apply to all forms of serious, violent offending is inappropriate and fails to account for the particular features of IPV that make it a distinct, more serious form of offending than ‘other’140 GBH offending. Firstly, while Gourlay recognises the need for sentencing guidelines for serious violence, she highlights the limitations of the majority’s approach in constructing a guideline judgment for sentencing in all instances of serious violence. Although Taueki was “tailored in the main to the punitive mood of the country”141 and is widely recognised as being one of the most comprehensive guideline judgments issued by the Court of Appeal,142 Gourlay argues that it fails to adequately address the specific issue of IPV.
Gourlay further adds that the nature of IPV itself can vary markedly from situation to situation, which the global nature of Taueki fails to appreciate.143 In a sense, Taueki sacrifices specificity for breadth. Crucially, while Taueki provides general examples of “domestic assault” under each respective sentencing band,144 Gourlay argues that these do not adequately reflect the wide range of behaviour that could be considered ‘IPV.’
Secondly, although the Court in Taueki state that “the fact that violence occurs in a domestic setting should not be seen as reducing its seriousness,”145 the judgment fails to address the distinguishing features of IPV and articulate exactly why IPV ought not to be viewed as less serious than ‘other’ GBH offending. Taueki affords no particular emphasis or guidance on the different culpability factors present in IPV, nor does it relate IPV to judges’ assessment of the seriousness of the offending. Instead, Taueki leaves any unique issues arising in relation to particular types of violence (i.e., IPV), as well as the question of how sentencing judges ought to weigh issues common to certain types of offending, to individual sentencing judges.146 Gourlay cites the New Zealand Law Commission’s 2001 report, which underlined the high prevalence of domestic violence in Aotearoa and the well-documented “different dynamics” of IPV when compared to other forms of violent offending.147
140 Though she does not use the phrase ‘other’ GBH.
141 Tinsley, above n 58 at 534.
142 Tinsley, above n 58 at 531.
143 Gourlay, above n 139 at 539.
144 Taueki, above n 26 at [37(b)], [39(c)], and [41(b)].
145 Taueki, above n 26 at [33].
146 Tinsley, above n 58 at 534-535.
147 Tinsley, above n 58 at 533.
Because of the inherent differences between IPV and ‘other’ GBH offending outlined in Chapter Three, I agree that this particular type of GBH offending is “likely to be less suited to generic serious violence guidelines.”148 I, too, challenge the issuing a single, global set of guidelines which purport to treat all instances of serious violence analogously. While Taueki is designed to assist judges in sentencing a wide range of serious violent offending by providing a common reference point with which they can use to achieve overall consistency in sentencing levels, the previous chapter illustrated that this consistency is not achieved in practice.
B. Critiquing Taueki’s Application of Existing Sentencing Factors to Cases of Intimate Partner Violence
Gourlay’s judgment extensively critiques Taueki’s application of existing sentencing factors to instances of IPV. When particular features of IPV offending are not properly treated as aggravating (or similarly, improperly treated as mitigating), this influences the selection of a starting point, which in turn influences the final sentence reached for the offending. Instead, Gourlay contends that the recognised dynamics of IPV should inform how traditional aggravating and mitigating factors are applied to individual offenders. Her judgment discusses and reinterprets the existing sentencing factors relevant to GBH offending, of which five warrant particular comment in an IPV context: home invasion, premeditation, vulnerability of the victim, breach of trust, and conduct of the victim/provocation. Gourlay also discusses an additional aggravating factor of power and control, which is absent from the initial judgment but which she argues is appropriate in cases of IPV, as well as previous convictions for serious violence against the same victim.
1. Home Invasion
Firstly, Gourlay challenges Taueki’s discussion of home invasion as an aggravating factor for failing to reflect the context in which IPV is most commonly perpetrated. The longstanding view of the common law is that the sanctity of the home is paramount; hence, Taueki at [31] intends to capture as aggravating offending whereby the offender unlawfully, and without the
148 Gourlay, above n 139 at 541.
victim’s express or implied permission, enters the home and commits GBH, adopting the meaning outlined in the corresponding legislative provision.149
However, Gourlay argues that this traditional understanding fails to reflect the reality of IPV, which does not necessarily involve unlawful ‘invasion’ per se. Gourlay notes that the difficulty with applying this model of unlawful entry to instances of IPV: the victim and offender’s home may well be the same – either in the sense that they currently live together, or where they had previously lived together and the current occupation is not clearly legally or factually defined.150 Often is the case of IPV that violence occurs within the context of ongoing, often tumultuous and difficult-to-define relationships, where it is common for parties to frequently separate and reconcile. While recognising home invasion as an aggravating factor is more straight-forward when the parties are separated, have ceased living together and/or a protection order is in force, it becomes murky when the offender is lawfully permitted to be within the home. I agree with Gourlay’s broad reinterpretation of ‘home invasion’ within to mean ‘violence within the home,’ thereby recognising IPV committed within the home as aggravating even where the offender’s entry/presence is not prima facie unlawful or where both parties lawfully reside there.
2. Premeditation
In the classic sense, premeditation involves the offender planning their attack on the victim in advance, albeit with varying degrees of specificity and detail, or otherwise having some intention or foresight before the offending.151 The Court in Taueki at [31] considers that premeditation significantly increases an offender’s culpability for the offending, and the examples provided under each band are premised upon the level of premeditation present. Similar to her critique of home invasion, Gourlay challenges the application of premeditation as an aggravating factor in Taueki to instances of GBH involving intimate partners, arguing that this often fails to reflect the particular nature of IPV. While pre-meditation in the classic sense is generally appropriate in the context of a one-off attack against a stranger or a person
149 Sentencing Act 2002, s 9(b) outlines that home invasion is satisfied where the offence involved unlawful entry into, or unlawful presence in, a dwelling place.
150 Tinsley, above n 58 at 545.
151 Gourlay, above n 139 at 546. This corresponds to s 9(1)(i) of the Sentencing Act 2002.
with whom the offender is in some other interpersonal relationship, Gourlay argues that it may be “wholly inappropriate as a primary focus in the domestic violence context.”152
As discussed in Chapter Three, IPV is seldom a meticulously planned, isolated incident in the traditional sense of premeditation, but more often constitutes part of a wider pattern of abuse. Gourlay contends that IPV without classical premeditation, but which is regularly and consciously perpetrated by one intimate partner against another, cannot be viewed as simply “unplanned or random against the background of abuse.”153 Instead, she argues that this may be just as serious as an attack with the highest degree of premeditation. She stresses that premeditation ought not to inform the starting point too heavily in cases of IPV and warns judges against using premeditation as the primary or sole conceptual starting point for assessing the seriousness of the offending.
3. Breach of Trust
Gourlay argues that the aggravating factor of breach of trust, mentioned in Taueki at [31] as a consideration under vulnerability of the victim,154 ought to be extended beyond its traditional use in the context of violence and/or sexual abuse by adults of children (or for those otherwise in positions of trust or authority) to intimate relationships. While a degree of trust is present in all interpersonal relationships, Gourlay contends that trust is a fundamental component of intimate relationships, and “that is breached when there is violence.”155 She argues that a breach of trust likely exists where IPV is committed within long-term relationships, like marriage, which I believe places too great importance on the length of the relationship as the sole indicator of the presence of this aggravating factor, to the exclusion of other considerations. GBH offending occurring within the context of short-term, hard-to-define, or former relationships also breaches the victim’s trust, so a more holistic consideration of the nature of the relationship is required when assessing the extent to which this factor is present.
4. Vulnerability of the Victim
Gourlay argues that Taueki’s application of vulnerability of the victim as an aggravating factor fails to capture the additional, nuanced ways that intimate partners are vulnerable to GBH
152 Gourlay, above n 139 at 546.
153 Gourlay, above n 139 at 546.
154 This corresponds to s 9(1)(f) of the Sentencing Act 2002.
155 Gourlay, above n 139 at 545.
offending. She notes that while the corresponding legislative provision’s reference to age, health, or any other factor known to the offender suggests that the victim’s vulnerability must be physical in nature, IPV raises far more complex questions of vulnerability. Notwithstanding any inherent physical characteristics, Gourlay argues that victims of IPV are rendered particularly vulnerable to the abuse and its continuation – for instance, if the offender isolates the victim isolated from her friends, whānau or other support systems.
Further contributing to the vulnerability of victims of IPV are the difficulties they face in reporting the abuse or leaving their abusive partner. In response, Gourlay proposes expanding Taueki’s view of ss(1)(g) of the Act to account for these particular features of IPV and better recognise the specific ways in which victims are more vulnerable to abuse. Though the usual physical characteristics of vulnerability will continue to apply, Gourlay argues that where there has been a history of abuse or isolation tactics, the victim may also be properly classified as vulnerable. I would supplement Gourlay’s argument here by highlighting the added vulnerability of an emotional and/or financial dependency which is common in intimate relationships and often and controlled by the offender to inflict greater levels of harm.
5. Conduct of the Victim: Provocation
The conduct of the victim is recognised as a mitigating factor reducing the offender’s culpability in the offending, engaging the complex idea that the victim may have, through some action, provoked the offender and thus partially caused the attack.156 The Court in Taueki notes that it is insufficient for the offender “simply to claim to have been incensed by the actions of the victim,” but rather the victim’s provocation must be a serious, “operative cause” of the offending and remained so throughout the commission of the offence.157
Gourlay critiques the application of provocation as a mitigating factor in Taueki to cases of IPV, noting the “long and unfortunate association between the idea of provocation and gendered violence” and the circumstances in which this factor typically arises.158 She notes that society seems to accept provocation more easily in cases of IPV where there is an ongoing domestic relationship giving rise to an emotional response. Gourlay raises concerns about
156 Taueki, above n 26 at [32], which corresponds to s 9(2)(c) of the Sentencing Act 2002.
157 Taueki, above n 26 at [32].
158 Gourlay, above n 139 at 547.
considering the conduct of the victim as a mitigating factor reducing the seriousness of the offending, particularly where there is a history of abuse, and the offending is in response to real or perceived infidelity and/or a woman’s decision to exercise relationship autonomy.
Gourlay, mindful of the dynamics of IPV, presents three central arguments against treating provocation as a mitigating factor in many cases of IPV. Firstly, reducing the starting point to account for provocation partially justifies the offender’s criminality in response to the woman exercising autonomy. Secondly, an episode of serious IPV is often the culmination of a wider pattern of abuse, and as such, does not properly fit within the traditional characterisation of provocation. Provocation is typically accepted in cases where the offender’s response was uncharacteristic and unlikely to be repeated; however, such a violent assault cannot be said to be atypical when viewed against the background of abuse. Thirdly, and of most practical significance, Gourlay argues that it is inappropriate for the victim’s behaviour to be invoked as a mitigating factor in cases of IPV where it could directly under-criminalise violence in response to a woman’s attempt to escape abuse. As research indicates that women are most at risk of suffering IPV when they leave (or attempt to leave) their abuser, Gourlay argues that as a matter of policy, provocation ought not to be recognised in these circumstances.
6. Power and Control
Gourlay contends that the added dimension of ‘power and control’ in IPV cases ought to be recognised as a discrete aggravating factor at step one of the Taueki methodology, informing the starting point where possible. Neither the Sentencing Act nor Taueki provide nuanced guidance on how sentencing judges should respond to the underlying sub-criminal/non- criminal harm in IPV, but Gourlay notes this does not necessarily preclude recognition of power and control as an aggravating factor.
While behaviours like ‘gaslighting’ or generally “wearing down of the victim’s autonomy and liberty”159 are not in and of themselves criminal, they are nevertheless tools of IPV employed to perpetrate a wider pattern of abuse. Gourlay critiques Taueki for largely overlooking these “particular, significant and sufficiently established” power and control dynamics of IPV, which she argues speak directly to the seriousness of the present GBH offending and indicate a greater
159 Gourlay, above n 139 at 548.
level of culpability.160 Although the line between criminal and non-criminal behaviour cannot always clearly be drawn, recognising power and control as explicitly aggravating the seriousness of the offending would better reflect the abusive nature of IPV.
Gourlay raises a two-fold concern of double-counting and double jeopardy if power and control is included as a separate aggravating factor. Firstly, should judges accept power and control as a stand-alone sentencing factor in IPV cases, they must take care not to double-count other related factors, like vulnerability of the victim. Secondly, Gourlay acknowledges the risk of ‘double jeopardy’ and questions whether it would be essentially punishing the offender twice to account for a controlling, abusive dynamic that is partially based on offences for which the offender has already been convicted.
However, Gourlay notes that an “orthodox application of the rules against double counting and double jeopardy should prevent any contravention.”161 For instance, she notes that where power and control has been proved as an aggravating factor and the offender has abused his victim’s trust, the Court shall not then double-count abuse of trust as an additional aggravating factor. However, if power and control is not proven and the offending is one-off,162 then other factors like vulnerability of the victim and/or breach of trust could still apply.
Gourlay also notes the difficulty sentencing judges may face in proving non-criminal acts of power and control. The usual evidentiary rules stipulate that any aggravating factor must be proved beyond reasonable doubt;163 however, unlike with clear evidence of previous convictions, these power and control dynamics are increasingly difficult to prove. Would a victim be able to provide evidence to the requisite standard that her abuser continuously ‘gaslights’ her or routinely inflicts minor acts of violence as a means of intimidation and control? Furthermore, where an offender wishes to dispute any allegation by the victim of power and control or a pattern of abuse, a disputed facts hearing is required.164
160 Gourlay, above n 139 at 543.
161 Gourlay, above n 139 at 543.
162 For instance, R v Wilkes [2018] NZDC 14929 at [2] noted that the victim and offender had been in a “successful and happy marriage” for seven years with “no recorded incidents of violence or anything of that kind between you, [with only] minor disputes and complains as happens in any marriage.”
163 Sentencing Act 2002, s 24.
164 Gourlay, above n 139 at 544.
7. Previous Convictions for Violence Against the Same Victim
Whereas an offender’s previous convictions are traditionally accounted for when considering aggravating and mitigating factors personal to the offender at step two of the Taueki methodology, Gourlay argues that the approach ought to be different for IPV. Instead, she maintains that an offender’s previous convictions related to serious violence committed against the same victim essentially forms part of the present offending, insofar as they reflect the ongoing and coercive nature of IPV. I agree that this ought to inform sentencing judges’ assessment of the seriousness of the offending at step one – and thus, selection of the starting point. For women in abusive relationships, past violence is never truly in the ‘past’; rather, the current offending merely represents a continuation of prior abuse.
While Gourlay argues that prior relevant offending against the same victim directly speaks to the offender’s present culpability, she notes the difficulties of accounting for such convictions at step one. If an offender’s previous convictions are considered relevant to setting the starting point for sentence, judges must be mindful to not also take these convictions into account by way of an uplift at step two. Gourlay notes that remaining convictions which are, on the whole, unrelated to the present victim can still be considered at step two but would result in a smaller uplift, as the first convictions would already have been accounted for. Moreover, if the remaining convictions are few, historic or unrelated to the present offending, it would be inappropriate to then apply any uplift to the starting point at step two.
While I generally agree with Gourlay on this point, I believe she did not articulate precisely why previous convictions against the same victim ought to be considered at step one as a core element of the offending, as opposed to step two. Considering such convictions at step one may not change the end sentence in any way, but it represents a more conceptual point about how the offender’s previous offending colours sentencing judges’ assessment of the seriousness of the present offending.
8. Cultural Factors
Gourlay critiques Taueki for not recognising the cultural factors at play in IPV. While she notes that culturl factors must be considered, she rules such discussion as being outside the scope of her judgment.165 In the commentary contextualising Gourlay’s judgment, Tinsley notes the
165 Gourlay, above n 139 at 540.
growing understanding of the needs of Māori victims and offenders around the time Taueki was issued and highlights that for various reasons, wahine Māori are particularly affected by IPV. The reality that wahine Māori experience IPV differently and to a greater extent than Pākehā women in Aotearoa cannot be ignored.
Tinsley also cites findings from the Māori Taskforce report critically outlining the limitations of Western systems in addressing whānau violence involving Māori.166 The ongoing effects of colonisation make it more likely that whānau Māori will experience the risk factors associated with IPV and mean that Pākehā systems are ill-equipped to fix what Pākehā systems broke for Māori, such as whānau structure or gender roles. As such, what makes IPV so serious (and perhaps, as an extension, how to assess offence seriousness) differs in te ao Māori from te ao Pākehā. For instance, the idea of the harm caused by IPV is more expansive in te ao Māori as being against a woman’s physical body, as well as her mana, wairua, and whakapapa. As the full extent of the harm suffered by wahine Māori is not captured within the existing framework, it is imperative that any guideline judgement for IPV ought to reflect a Māori understanding alongside the Pākehā one.
However, despite the clear need to address the cultural factors at play in IPV, like Gourlay, I recognise the limitations of my knowledge as a Pākehā woman in this area and the appropriateness of providing such an independent critique. I simply wish to highlight that the problem exits, and that IPV affects wahine Māori in significant and unique ways. Rather, I suggest that Māori scholars could undertake future research around how sentencing practice could better accommodate tikanga and a te ao Māori understanding of IPV.
III. Conclusion
This chapter discussed the various ways in which Taueki does not sufficiently guide sentencing judges to assess the seriousness of GBH offending occurring within intimate relationships. I summarised the only substantial critique of Taueki, Frances Gourlay’s alternative judgment, which provides a very thorough encapsulation of the problems with applying Taueki to instances of IPV and presents an ideal to strive towards. The following chapter will use
166 Tamati Kruger, Mereana Pitman, Di Grennell, Tahuroa McDonald, Dennis Mariu and Alva Pomare Second Māori Taskforce on Whānau Violence: Transforming Whānau Violence: A Conceptual Framework (2nd edn, Wellington, Te Puni Kōkiri, 2004).
Gourlay’s alternative judgment (supplemented by my critique where appropriate) as a springboard with which to compare current sentencing practice. Has sentencing practice – and specifically, judges’ interpretation of Taueki – developed in a way that implicitly and/or explicitly encompasses Gourlay’s ideas? Chapter Six assesses whether sentencing practice has evolved outside of and distinct from Taueki since it was issued, thus answering the ultimate question of whether the guideline judgment is truly fit for the purpose of sentencing GBH offending occurring within intimate relationships.
Chapter Six: Reconsidering R v Taueki in Light of Current Sentencing Practice
I. Introduction
This chapter assesses whether it is time to reconsider Taueki in a contemporary context by using Gourlay’s feminist judgment as the benchmark against which to compare sentencing judges’ interpretation and application of Taueki to instances of IPV. I will discuss the various ways in which sentencing practice has developed in cases of IPV, namely in judges’ discussions of IPV and how they apply existing sentencing factors in Taueki to such cases, as well as additional, relevant factors that I argue ought to be considered in sentencing for GBH offending involving IPV. Ultimately, I will discern whether sentencing practice has developed independently of and since Taueki in such a way that implicitly and/or explicitly addresses the issues raised in the previous chapter. I argue that sentencing practice illustrates considerable variation between how different judges are interpreting and applying Taueki in instances of IPV, therefore illustrating the need to issue new clear, authoritative guidance tailored to IPV.
II. Existing Sentencing Factors
I will now explore the development of sentencing practice in respect of how judges apply six existing sentencing factors in Taueki to cases of IPV: home invasion, premeditation, vulnerability of the victim, breach of trust, previous convictions for violence against the same victim, and conduct of the victim/provocation.
A. Home Invasion
The Court of Appeal in Hutchison implicitly responded to Gourlay’s critique about home invasion as an aggravating factor in an IPV context, noting that “violence occurring in the [victim’s] home will normally be an aggravating factor,” and that this does not depend on external intrusion of the kind intended in Taueki.167 The Court rather emphatically notes that “one cannot realistically or effectively lock the door against a co-occupant,” reaffirming Gourlay’s interpretation of home invasion in a way that reflects the context in which IPV typically occurs. Similarly, Setu v R clarified that even where the offender has a key to the
167Hutchison, above n 90 at [27].
address and does not ‘invade’ the premises per se, “those aspects do little to diminish the seriousness of [entering the victim’s house] and attacking a person in their own home where they are entitled to feel safe.”168 The Judges in Hutchison and Setu both stress the importance of the resultant impact of IPV perpetrated within the victim’s home on their “future ability to feel secure, even in their own houses.”169 While it would be preferable to have this understanding outlined in s 9 of the Sentencing Act, the wording of ss (1)(b) does not preclude its inclusion at present.
B. Premeditation
R v Walker clarified that in cases of IPV, premeditation is likely “present to a limited but nevertheless identifiable extent,” with the Court remarking that the offending was not a case where the offender momentarily lashed out or lost control, but that he “had been brooding for a number of weeks.”170 This seems to recast the traditional understanding of premeditation as outlined in Taueki in an IPV context, which commonly involves ongoing patterns of abuse. Sentencing practice has further developed in some instances to include regular overt threats to inflict physical harm or a “desire to kill” the victim as evidence of premeditation.171 In Setu, premeditation was considered a factor aggravating the seriousness of the offending, as although the offender “may not possibly have intended at the outset to inflict harm on his wife,” the Judge recognised that this was “no spur of the moment violent reaction.”172 Similarly, King v R recognised that premeditation may exist where an attack occurs “only a few minutes after a perceived slight,” but cautioned that sentencing judges must evaluate the significance of premeditation in the domestic context in individual cases.173
However, judges in some instances continue to abide by the more traditional conception of premeditation as requiring pre-planned offending or a degree of foresight in the offending to suffice as an aggravating factor. The Court in R v Orchard did not accept the Crown’s submission that the offender’s acts were premeditated despite the background of ongoing abuse, holding instead that the offending was “impulsive.”174
168 Setu, above n 49 at [28].
169 Setu, above n 49 at [28].
170 R v Walker, above n 3 at [27].
171 Kauwhata v R [2010] NZCA 451 at [16].
172 Setu, above n 49 at [22].
173 King v R [2015] NZCA 436 at [24].
174 Orchard v R [2019] NZCA 529 at [34] and [36].
C. Vulnerability of the Victim
In recent years, cases like Hutchison have implicitly addressed Gourlay’s critique in appreciating the inherent vulnerability of a victim of IPV as distinct from, and in addition to, any physical vulnerability. Hutchison noted that the where the victim is a family member (which I contend includes intimate partners) “dependent on the offender for emotional and physical support, the alternative aggravating factor of vulnerability will inevitably be triggered,” and that “it would be a rare case of family violence where that was not so.175 Similarly, Muliipu v R recognised the vulnerability of the victim as an “aggravating matter that is often present in cases of domestic violence.”176
Hutchison also added that where the victim has suffered previous attacks or a pattern of abuse, they are “rendered even more vulnerable by reason of the effects of the [present] incident,” particularly if the attacks are proximate in time.177 Importantly, R v Grey held that the victim’s vulnerability arose not merely due to a physical weakness in relation to the offender, but “from the fact that she is a woman [and] was previously involved in an intimate relationship with [the offender].”178 I find this excerpt remarkable: it explicitly addresses how the victim’s vulnerability arises both from the gendered nature of IPV and the nature of the intimate relationship itself. Many cases, like Grey, held that an additional vulnerability arises in instances of IPV where an offender breaches a protection order imposed in favour of the victim.179
However, despite this multifaceted development in the way some judges consider vulnerability of the victim as aggravating in instances of IPV, there still exists considerable inconsistency between approaches. For instance, R v Orchard,180 Kauwhata v R,181 and Dixon v R182 all discussed the victim’s vulnerability but only in the traditional physical sense, rather than in relational terms regarding the intimate nature of the relationship. I argue that the two should be viewed together: while judges ought to consider the relevant physical characteristics giving rise to vulnerability, they should also be aware of additional, intersecting vulnerabilities arising
175 Hutchison, above n 90 at [27].
176 Muliipu, above n 113 at [19].
177 Hutchison, above n 90 at [28].
178 Grey, above n 111 at [64 (e)].
179 Grey, above n 111 at [65].
180 Orchard, above n 174 at [34].
181 Kauwhata, above n 171 at [11] and [14].
182 Dixon v R [2013] NZCA 454 at [17].
through the victim’s gender, nature of the relationship, and whether this offending was part of a wider pattern of abuse.
D. Breach of Trust
While Gourlay distinguishes between vulnerability of the victim and breach of trust as aggravating factors in IPV, in practice, sentencing judges often consider the two together. For instance, the Judge in Kauwhata held that the offender “exploited [the victim’s trust] and her vulnerability and acted in breach of the protection order,”183 while other judges clearly outline breach of trust as a distinct aggravating factor.184 Irrespective of whether breach of trust is recognised as aggravating in its own right or subsumed under vulnerability of the victim, it appears that sentencing practice since Taueki has extended the traditional meaning of ‘trust’ to include intimate partners.
Although Gourlay argued that a breach of trust likely exists where IPV is committed within long-term relationships, sentencing practice better reflects my critique that this places too great importance on the length of the relationship as the indicator of whether trust has been breached. In R v Hopoate and R v Joseph, the Judges were satisfied that the offending constituted a breach of trust despite the offender and victim having only “commenced a relationship of sorts only a few days earlier,”185 and were involved in a “short-term... two or three-month relationship” respectively.186
E. Previous Convictions for Serious Violence Against the Same Victim
This is a difficult consideration to navigate, as although sentencing judges must account for the “number, seriousness, date, relevance and nature of any previous convictions of the offender,”187 they must ensure that any uplift for prior convictions does not essentially punish the offender again.188 Hutchison implicitly addressed the argument Gourlay raised for considering previous convictions against the same victim at step one, stating that the “existence of previous convictions for violence (including domestic violence)” explicitly aggravated the seriousness of the offending in the first instance.189 Cooper v R provides further clarity on this
183 Kauwhata, above n 171 at [14].
184 Walker, above n 3 at [10] stated that the offender “abused the privilege and trust that was placed in [them].”
185 Hopoate, above n 34 at [2].
186 Joseph, above n 33 at [2].
187 Sentencing Act 2002, s 9(1)(j).
188 New Zealand Bill of Rights Act 1990, s 26(2).
189 Hutchison, above n 90 at [5].
point, noting that the offender’s “earlier criminal history, aside from the index offending, [which contains] multiple convictions for violent offending, particularly in a family violence context and almost exclusively against one particular complaint who was his same partner” was relevant to assessing the seriousness of the offending.190
The Court in August v R highlighted that such prior convictions indicate a “clear pattern of violent offending against women, and this victim in particular, and that pattern and the underlying attitudes it reflects requires particular deterrence from [the] Court.”191 Previous convictions for serious violence against the same victim, provided they are relatively recent,192 are relevant as an indicator of both character and culpability.193 I argue that these convictions demonstrate a clear penchant for abuse, which in turn bleeds into the seriousness of the present offending. Although, as with my discussions of premeditation and vulnerability of the victim above, sentencing practice is not unanimous on this particular point, and the overwhelming norm in sentencing practice is still to account for previous convictions against the same victim at step two by way of an uplift to the starting point.194
F. Conduct of the Victim: Provocation
While Taueki makes clear that serious, operative provocation of the offender by the victim is a mitigating factor reducing the seriousness of the offending,195 Gourlay responds by cautioning sentencing judges against recognising provocation in instances of IPV. This is one area in which sentencing practice has both implicitly and explicitly developed almost in parallel with Gourlay’s feminist judgment. Sentencing judges echo Gourlay’s concerns around recognising conduct of the victim as mitigating where the so-called ‘provocation’ was merely the woman’s exercise of autonomy within, or outside of, her intimate relationship. This sentiment was affirmed in Walker, where the Court stated that while the offender was paranoid that the victim was “seeing other men despite the fact that she was no longer in a relationship with [him],” she ultimately “had every entitlement to, if that was her wish.”196
190 Cooper v R [2020] NZCA 683 at [5].
191 August v R [2011] NZCA 91 at [35].
192 While the offender in R v Hall [2018] NZDC 1031 had previous convictions for domestic violence, the Judge was concerned about the risk double-sentencing on matters which were largely historic, so determined that an uplift was not justified.
193 Orchard, above n 174 at [39].
194 Grey, above n 111 at [67]; Orchard, above n 174 at [39]; August, above n 191 at [34].
195 Taueki, above n 26 at [32].
196 Walker, above n 3 at [11].
The Court in Wairau v R nicely encapsulates the current position around provocation in cases of IPV and reflects the growing understanding of the abusive context in which GBH is perpetrated:197
[39] a [woman’s decision] to leave a relationship and begin a relationship with another man can in no way justify this violence... adults are entitled to choose with whom they reside and relate, and a transfer of affection cannot of itself mitigate a violent retributive response by a disappointed former partner, however distressing the circumstances.
While counsel in some cases, like Wairau, submit that the starting point ought to be reduced because of provocation,198 the courts are greatly concerned with any intimation by the offender that the victim may in part have been responsible for the offending.199 Only in “quite exceptional cases”200 where there is serious aggression or violence initiated by the victim might provocation be otherwise appropriate in a domestic context,201 such as in Karawana v R, where the victim armed himself with a knife, to which the offender responded by shooting him.202 Some cases accept that although there may have been a degree of provocation present, it was “so low as to be negligible in the circumstances.”203
Despite the general approaches adopted by sentencing judges against recognising provocation as a mitigating factor in cases of IPV, I nevertheless still identified some problematic language within judgments. For instance, the Judge in Shen v R seemed to justify (albeit partially) the offender’s violence, remarking that the offender “had reason to be angry at the complainant,”204 and in SN v MN, the Judge found that the victim “must take a degree of responsibility for the incident because of the confrontational nature of her behaviour.”205 Notwithstanding these few exceptions, the overwhelming consensus among sentencing judges is that there is no possible justification for committing GBH offending or anything which could amount to provocation in the terms envisaged by Taueki.206
197 Wairau v R [2015] NZCA 215 at [39].
198 Counsel in Wairau, above n 197 at [41] (unsuccessfully) argued that the offender committed GBH following a “slow burning” provocation by the victim.
199 Walker, above n 3 at [14].
200 Wairau, above n 197 at [39].
201 R v Mark [2019] NZDC 20997 at [25].
202 Karawana v R [2013] NZCA 516. Provocation was successfully argued as a mitigating factor reducing the offender’s culpability and resulted in a 20% reduction to the starting point. I note that both the victim and offender in Karawana were men.
203 Rikihana, above n 138 at [13].
204 Shen v R [2017] NZCA 103 at [17].
205 SN v MN [2016] NZHC 566 at [28].
206 Wairau, above n 197 at [17].
III. Additional Sentencing Factors
I will now turn to additional sentencing factors that I identified in discrete cases, but which were mostly absent from both Taueki and Gourlay’s judgment. Although the features of GBH offending requiring assessment cannot be exhaustively listed,207 I argue that the following factors are highly relevant to the nature and seriousness of IPV and ought to be explicitly recognised.
A. Coercive Power and Control
Gourlay presented a very persuasive case for recognising power and control as an additional aggravating factor at step one of the Taueki methodology in instances of GBH offending involving IPV. Judges in many cases reference ideas of power and control, denouncing conduct which “occurred against a backdrop of [a] violent relationship... punctuated by violence, disharmony and demeaning behaviour” towards victims.208 Crucially, the Judge in Setu observed the GBH offending to be a “manifestation of some kind of exercise of power and control in terms of a domestic relationship... distinct from other factors.”209 Sentencing judges are making clear that an offender’s exploitative, manipulative and damaging behaviour, repeated attempts to control and seriously injure the victim, and “an entitlement to behave in the manner he did,” are significant factors contributing to their culpability for the present offending.210 For example, the Court in R v Joseph remarked that:211
[6] This was a series of repeat assaults on [the victim] in different ways but has all the hallmarks of a very cruel situation where she could not have left, could not have escaped, and you [the offender] just treated her like a punching bag, lashing out at her as your anger determined you should do.
Sentencing judges are adopting a more expansive view of the offender’s coercive power and control of the victim, noting that “this was enduring psychological and physical domestic violence reflecting an unconscionable assertion of power by a stronger personality over a gentler one.”212 In considering the seriousness of the offending, some judges include behaviour
207 Taueki, above n 26 at [35].
208 Ferris-Bromley, above n 39 at [8].
209 Setu, above n 49 at [32], emphasis added.
210 Cooper, above n 190 at [19].
211 Joseph, above n 33.
212 Ferris-Bromley, above n 39 at [8].
like taking the victim’s phone and money cards,213 or repeated verbal threats and denigration
Similarly, but to a lesser extent, some courts are not treating power and control as aggravating in its own right but instead viewing the offending more holistically by “[standing] back and [reviewing] the evidence in totality” to discern whether all incidents together amount to a pattern of abuse.215 The Court in SN v MN highlighted that while some or all of the wider abusive behaviour may appear to be minor or trivial when viewed in isolation, they are required to consider whether the behaviour forms part of a pattern from which the victim needs protection.216
While many judges implicitly recognise the significance and seriousness of coercive, manipulative and controlling behaviour when sentencing, on the whole (and with the exception of Setu), they do not treat it as explicitly aggravating the seriousness of the offending. I argue that coercive power and control (or simply ‘power and control,’ to borrow Gourlay’s terminology) ought to be recognised as a discrete aggravating factor at step one of the Taueki methodology. Sentencing judges cannot, and should not, ignore offenders’ coercive and controlling behaviour where victims are made to feel “trapped in this life of pain forever.”217
Overseas jurisdictions have recognised the significance of coercive power and control in IPV when assessing the seriousness of the offending: the United Kingdom’s Serious Crime Act 2015 created a discrete offence criminalising controlling or coercive behaviour in intimate relationships, and both Wales and Scotland have adopted and are set to adopt similar measures.218 Accounting for power and control as an aggravating factor in instances of IPV, when supported by evidence, would nicely account for the differences between IPV and ‘other’ GBH offending that I outlined in Chapter Three: the complex nature of IPV, the ongoing pattern of abuse (including both criminal and sub-criminal abusive behaviour), and the gendered element of the offending.
213 Police v Ackland [2019] NZDC 4208 at [5].
214 Walker, above n 3 at [4].
215 SN v MN [2017] NZCA 289; [2017] 3 NZLR 448 at [21].
216 SN v MN, above n 215 at [21].
217 Ackland, above n 213 at [5].
218 Vanessa Bettinson “Criminalising Coercive Control in Domestic Violence Cases: Should Scotland Follow the Path of England and Wales?” (2016) 3 Crim L.R., 165 at 166.
B. Cultural Factors
As discussed in Chapter Four, there are important cultural factors at play in IPV offending that neither Taueki nor Gourlay’s judgment address. No sentencing judge in any of the cases I analysed made any mention of culture or the additional impacts of IPV for wahine Māori when assessing the seriousness of the offending. Again, while I am not the appropriate person to explore this issue, I simply note the importance of considering cultural factors in any proposed guideline judgment for IPV.
C. Children Witnessing the Offending
An additional factor which is not mentioned in Taueki or Gourlay’s judgment that I argue aggravates the seriousness of GBH offending involving IPV is where children witness the offending. Although most cases did not perceive the children’s presence as aggravating the seriousness of the offending,219 Police v Porter explicitly viewed the fact that the victim’s daughter was “in the house and would have been exposed to [the offending] as... an additional aggravating factor.”220 Because of the intergenerational effects of IPV on the victim and their wider whānau (especially tamariki),221 I argue this consideration ought to be made explicit in any proposed guideline judgment for IPV.
D. Victim is Pregnant
Similar to where children witness the offending, a further factor related to the wider intergenerational harm caused by IPV is where the victim is pregnant at the time of the offending. While I argue that the fact that an offender inflicts GBH upon a pregnant victim should be viewed as aggravating, there is limited (and inconsistent) recognition of this factor in current sentencing practice. The Judges in R v Umaga222 and Rikihana v R223 noted that the respective victims were pregnant at the time of the offending, therefore posing a “risk to the unborn child,”224 but other cases made no connection between a victim’s pregnancy and the seriousness of the offending.
219 For example, the judges in Dixon, above n 182 at [4], R v Singh [2016] NZHC 1666 at [4] and Cooper, above n 190 at [20] all mentioned the presence of children at the offending, yet they did not indicate that this had any bearing on their assessment of the seriousness of the offending.
220 Police v Porter [2016] NZDC 15119 at [38].
221 Walker, above n 3 at [10].
222 R v Umaga [2017] NZDC 9833.
223 Rikihana, above n 138 at [3].
224 Umaga, above n 222 at [12].
E. Failing to Seek Medical Treatment
Finally, I argue that an offender’s failure to seek medical assistance/treatment for their intimate partner following the offending is an additional aggravating factor that can be considered under vulnerability of the victim. As IPV is typically perpetrated within the victim’s and/or offender’s home, it is not a situation where the victim can be easily assisted by a witness to the attack or found by a member of the public. Often, as in King v R,225 Griffiths v R226 and Muliipu v R,227 only the offender knows of the victim’s serious condition and can obtain help, yet they may wait for some hours before seeking any form of medical assistance. King notes that the failure to seek immediate medical attention for serious injuries is an aggravating factor of the offending, “not only in cases where doing so would have made a difference to the outcome for the victim, but also where there was no evidence that it would have made a difference.”228 For this reason, an offender’s failure to seek or provide timely, effective medical assistance ought to explicitly aggravate the seriousness of the offending.
IV. Conclusion
This chapter compared Gourlay’s alternative judgment against current sentencing practice and Taueki itself to illustrate the various ways that sentencing practice has developed independently of, and inconsistently with, Taueki since it was issued. Sentencing practice has evolved in some cases beyond the conventional conception of sentencing factors outlined in Taueki to recognise the nature of IPV and the circumstances in which it is typically perpetrated. Many sentencing judges are implicitly and explicitly addressing the issues with applying Taueki to instances of IPV in practice by reinterpreting existing sentencing factors and/or considering additional factors in an IPV context. However, judges in other cases continue to overlook the particular aspects of IPV that make it such a serious form of GBH offending. These disparities in sentencing practice and inconsistent approaches to assessing the seriousness of this offending indicate that clear and authoritative advice is needed, in the form of a guideline judgment tailored to IPV.
225 King, above n 173.
226 Griffiths, above n 86.
227 Muliipu, above n 113. In this case, the offender violently beat the victim for more than 17 hours, causing significant internal and external injuries and subsequently, the loss of her eye. During this time, the only medical assistance the offender offered the victim was two Panadol tablets for ‘pain relief.’
228 King, above n 173 at [29].
Chapter Seven: Recommendations: A New Guideline Judgment for Intimate Partner Violence
I. Introduction
I have argued that the current practice of applying Taueki to instances of GBH perpetrated by one intimate partner against another results in sentences that seem “out of step”229 with the offender’s culpability. Setu outlined that the Court must always be prepared to revisit guideline judgments as and when circumstances require, provided there is “[sufficient] empirical evidence of the perceived disparity between sentencing practice and Taueki.”230 I argue that the various, inconsistent ways that Taueki has been applied to instances of IPV since 2005 demonstrates the need for clear, authoritative sentencing guidance. This chapter explores the possibility of issuing a new guideline judgment that explicitly draws together all these different strands of judicial interpretation of Taueki and provides guidance on how to appropriately assess the seriousness of this offending. I will address the practicalities of issuing such a judgment before illustrating how it will operate through Griffiths v R.
I. A New Guideline Judgment for Intimate Partner Violence: Considerations
I will now explore what a guideline judgment tailored to GBH offending perpetrated by one intimate partner against another ought to look like and apply in practice.
A. Form of the Guideline Judgment
Importantly, while this new guideline judgment departs from Taueki in respect of its specific guidance for sentencing GBH offending, it will still follow the general two-step sentencing methodology: firstly, assessing the seriousness of the offending by reference to aggravating and mitigating factors and selecting a starting point, then uplifting and/or reducing the starting point to reflect the offender’s personal circumstances. The new guidelines will assist sentencing judges in assessing the seriousness of IPV by reinterpreting existing sentencing factors relevant to GBH offending, like home invasion, in an IPV context, as well as including additional sentencing factors unique to IPV, such as coercive power and control. I recommend
229 Shramka, above n 62 at [24].
230 Setu, above n 49 at [8].
issuing a separate guideline judgment for GBH offending committed by intimate partners as opposed to merely including IPV as an aggravating factor in its own right, as the latter would fail to address the various factors contributing to the seriousness of this offending.
B. Double-Counting Sentencing Factors
The features of GBH offending involving IPV cannot be exhaustively listed,231 but I have presented various sentencing factors (both existing in Taueki and additional) that ought to be considered in cases of IPV. However, although I have argued that the particular nature of intimate relationships and circumstances in which IPV is typically committed “compels a sterner than normal response,”232 sentencing must still achieve consistency and justice in individual cases.233 I am sensitive to the risk that a new guideline judgment that considers various existing and additional sentencing factors, “a certain number of which in combination might move the offender from one band to another,” would result in over-sentencing.234
The Court must be cautious to not over-compile closely related factors in GBH offending against an intimate partner235 – for instance, breach of trust, breach of a protection order, vulnerability of the victim and coercive power and control. Accounting for each of these factors discretely at step one when assessing the seriousness of the offending would produce a disproportionately severe response when compared to similar instances of offending. Furthermore, I do not propose also treating the domestic aspect of the offending as aggravating in its own right. Not only would this be redundant, given the guideline judgment is tailored to IPV, but it would also double-count existing aggravating factors.
Sentencing judges must therefore be conscious to undergo a qualitative, as opposed to quantitative, assessment of aggravating factors. The guidelines are not to be mechanistically or formulaically applied in the sense that every aggravating factor, even present to a small degree, contributes towards placement in one of the sentencing bands. The Court in Orchard stated on this point that “little good is achieved by searching for aggravating features and thereby boosting band standing. The offending is the offending.” The Court must therefore be mindful
231 Taueki, above n 26 at [35].
232 Orchard, above n 174 at [35].
233 Zhang, above n 59 at [10] and [47].
234 Orchard, above n 174 at [32].
235 Orchard, above n 174 at [32].
of the overlap between sentencing factors in assessing the seriousness of the offending and ensure they are not simply ‘factor-counting’. Any risk of double counting when reaching an appropriate sentencing band and starting point can thus be addressed by the overall, holistic assessment of the totality of the offending.236
C. Sentencing Bands
As this new judgment would follow the same general sentencing methodology outlined in Taueki, judges will continue to use aggravating and mitigating factors, duly evaluated for seriousness, to select a starting point and establish placement within a sentencing band.237 The placing of any particular instance of GBH into a Taueki sentencing band is very much an evaluative exercise, with there being significant overlap between bands and their corresponding starting points. For instance, particularly egregious offending may only involve two aggravating factors, albeit present to a high degree, while less serious offending may involve four aggravating factors present to a lesser degree. While sentencing outside of these bands is not forbidden in exceptional circumstances, it must be justified.238 However, in every case, sentencing judges must continue to “step back and consider the justice of the indicative guideline outcome in that case, compared to other cases.”239
Importantly, while I have argued that IPV is more serious than ‘other’ GBH offending, this should not simply be accounted for by increasing the corresponding sentencing bands. Recalibrating the existing bands, while also considering additional sentencing factors and reinterpreting existing factors in an IPV context, could potentially result in overcharging the offender. Given the wide variation between different instances of IPV offending and the need for judges to retain judgment and discretion when sentencing, I propose that the new guideline judgment adopt the same sentencing bands initially outlined in Taueki.
236 King, above n 173 at [27].
237 Orchard, above n 174 at [33].
238 Orchard, above n 174 at [28].
239 Orchard, above n 174 at [33].
factors – and thus, the overall seriousness of the present offending. To assist judges in selecting an appropriate starting point and placing individual cases within a sentencing band(s), the new guideline judgment must provide specific, comprehensive examples of GBH offending occurring within the domestic context.240 These detailed ‘archetypes’ of GBH offending involving IPV under each respective sentencing band must illustrate how various, relevant sentencing factors ought to apply in the domestic context and the intensity to which these are present. Following a similar form to Taueki, the examples corresponding to each sentencing band must include escalations and combinations of different aggravating factors, providing an effective benchmark against which judges can compare the factors of the present offending.
E. Limitations of Issuing a New Guideline Judgment
Despite the evident need to issue a new guideline judgment tailored to IPV, this does not come without limitations. The need for authoritative guidance specific to cases of IPV must be balanced against the acknowledged risk of diluting the impact of appellate advice. While narrowing the breadth of the general Taueki guideline judgment provides greater clarity in sentencing, it also risks contradicting and/or undermining the Court’s general advice in cases of serious violence. However, I argue that these legitimate concerns far outweighed by the need for a carefully worded guideline judgment tailored to instances of IPV.
V. Applying the New Guideline Judgment to Griffiths v R
I will now illustrate how this new guideline judgment will operate through Griffiths v R,241 the case I discussed in Chapter Two. I will assess the presence and intensity of aggravating and mitigating factors of the offending, select an appropriate starting point and sentencing band, then uplift and/or reduce the starting point to reflect the offender’s personal circumstances.
A. Step One
Given what I have argued about recasting sentencing factors in an IPV context and the nature of IPV itself, the offending could properly be said to be aggravated by the following: premeditation (albeit to a greater extent than initially considered), seriousness of the harm,
240 Shramka, above n 62 provides helpful examples of different classes of offending featuring different aggravating factors present to varying degrees at [46], [50] and [54], though I note that this case involves strangulation offending, not GBH.
241 Griffiths, above n 86.
home invasion/‘violence within the home’, previous convictions for serious violence against the same victim, and vulnerability of the victim, which is significantly aggravated by breach of trust, breach of a protection order, and failure to obtain medical assistance. I will ensure not to double-count these as additional factors; instead, they simply increase the extent to which the victim was rendered vulnerable in the offending. Similarly, I will not double-count coercive power and control as an additional aggravating factor.
I argue that the number of aggravating factors in the offending and the varying degrees to which they were present are particularly grave, warranting a starting point of 10 and a half years and placement in band three. This reflects the totality of the offending whilst ensuring that the sentence is proportionate to the seriousness of the offending.
B. Step Two
This starting point can be adjusted to reflect circumstances personal to the offender, namely his guilty plea, remorse, and the stress caused by losing their twins. These mitigating factors culminate in a discount of 12 months, resulting in a final sentence of 9 and a half years’ imprisonment.
VI. Conclusion
This chapter explored the possibility of issuing a new guideline judgment applying to GBH offending committed within the context of intimate relationships which properly captures the seriousness of this offending. I discussed the form this proposed judgment ought to take, the concerns of double counting and double jeopardy arising therefrom, and its application to Griffiths. While applying the new guideline judgment resulted in an increased sentence in Griffiths, I note that its application may not result in higher starting points in every instance of IPV. Offenders will always receive sentences that are proportionate to the seriousness of their offending.242
242 Sentencing Act 2002, s 8.
Chapter Eight: Conclusion
The courts in Aotearoa take domestic violence seriously, and any sentence should reflect that.243 Offending in the domestic setting was “once said to reduce the seriousness of conduct,”244 but I argue that it should no longer be so viewed. In this dissertation I have demonstrated that the contemporaneous legal framework for sentencing GBH offending in Aotearoa, the R v Taueki guideline judgment, does not capture the seriousness of this offending when it occurs within the context of intimate relationships. I have illustrated a gap in sentencing practice: offenders who commit GBH against their intimate partners receive sentences that are too lenient for the seriousness of their offending.
Taueki is not fit for the purpose of sentencing GBH offending perpetrated by one intimate partner against another. My arguments in Chapter Three that GBH involving IPV is inherently more serious than ‘other’ GBH offending, my case analysis in Chapter Four highlighting the issues with current sentencing practice and its application of Taueki to instances of IPV, my critique of Taueki in Chapter Five, and my discussion of disparities between Taueki and sentencing practice in Chapter Six all indicate that a new guideline judgment tailored to instances of IPV is necessary. In Chapter Seven, I discussed the form the judgment ought to take and the practical concerns of double counting and double jeopardy, before illustrating how it would operate in practice through Griffiths v R.
A new guideline judgment, specific to the most egregious instances of domestic abuse, will assist sentencing judges in assessing the seriousness of GBH offending occurring within intimate relationships. Issuing tailored, authoritative guidance around interpreting and applying relevant sentencing factors in cases of IPV will not only result in starting points that properly capture the seriousness of this offending, but it will ameliorate the disparities within current sentencing practice and promote consistency amongst sentencing decisions. It is imperative that the Courts of Aotearoa recognise the unique nature of, and issues inherent in, GBH offending involving IPV and make much-needed changes to sentencing practice.
243 Petera, above n 25 at [20].
244 Hutchison, above n 90 at [26].
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H Other Resources
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