NGAHURU v NEW ZEALAND POLICE [2019] NZHC 869

NGAHURU v NEW ZEALAND POLICE [2019] NZHC 869 [17 April 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-18[2019] NZHC 869BETWEEN ADAM NGAHURUAppellantAND NEW ZEALAND POLICERespondentHearing: 17 April 2019Appearances: C Lee for AppellantK A Courteney for RespondentJudgment: 17 April 2019JUDGMENT OF COOKE J[1] The appellant has been convicted of two counts of male assaults female, fourcounts of wilful damage, one count of assaulting police, one count of possession ofcannabis and one of failing to answer District Court bail. He was sentenced to 25months' imprisonment by Judge O'Driscoll on 16 January 2019.1 Mr Ngahuru appealsthat sentence on the grounds that both the starting points and end sentence aremanifestly excessive.Facts[2] The offences relate to a number of events. The cannabis offending occurredon 4 April 2018, when the appellant was standing in the middle of a road and yellingat traffic. He was arrested for disorderly behaviour and cannabis was found in hispossession.1 Police v Ngahru [2019] NZDC 558.[3] On 22 April 2018 an incident occurred which resulted in one offence of maleassaults female, two of intentional damage and one of assaulting police. The appellantarrived at his mother's address and asked her for money. When she asked him to leave,he slapped her on the face. Fearing for her safety, she phoned the police. The appellantthen kicked her television, damaging the screen. When the police arrived he resistedthem, refused to get into a police car and kicked out at the police. Once in the car hespat blood and saliva at a police officer, which landed on his arm. He spat blood andsaliva onto another officer's shoulder and side of his face.[4] Most of the remaining offences relate to offending that occurred throughoutMay 2018 against the appellant's partner. There had been eight reported family harmincidents between the two of them since December 2017. At the start of May theappellant and victim were upstairs at the victim's home address, and an argument tookplace. The victim ran to the bathroom and locked the door. The appellant startedscreaming at her to unlock the door, banging and kicking it with full force until hesmashed it open. The bathroom door hinge and lock were smashed. The victim openedthe bedroom window to yell out to the neighbours for help.[5] The same week there was another argument and the victim ran to the toilet,locking the door behind her. The appellant banged on the door until he smashedthrough it and pulled the victim into the doorway. He told the victim it was her faulthe had broken the door and she should not have shut it when he wanted to talk to her.The toilet door was ripped off the frame and the lock was damaged.[6] On 28 May the appellant and victim were talking on the bed at the victim'saddress. The appellant became agitated so the victim moved to the edge of the bedwith her legs hanging over the side. The appellant got up on the bed and as the victimwent to place her feet on the ground to stand up, he pushed her hard in the lower back.This made the victim lose her balance, throwing her into the door frame. She wentstraight down and her face hit against the bottom of the door frame on the left side ofher temple. She was unable to put her arms out to stop the fall and her right wrist wascaught under her chest, causing that wrist to break. The victim had to take five and ahalf weeks off work.[7] The final offence was a breach of bail on 26 June 2018.District Court decision[8] Judge O'Driscoll began by considering the aggravating factors of theoffending. He noted that the violent offending occurred while the appellant was onbail for previous offending. The appellant was also under a sentence of supervision atthe time. There were two victims. He also considered the appellant's previousconvictions for violence: male assaults female in March 2018, male assaults female in2014, assault in 2013, and threatening to kill, wounding and assault on a child in 2009.[9] The Judge took into account the appellant's guilty plea as a mitigating factor.He noted the appellant's anger problems, alcohol and drug use and hearing difficulties,but found these did not justify the appellant's actions in using force against others.[10] The Judge considered the pertinent principles of sentencing to beaccountability and deterrence and highlighted that he was required to impose the leastrestrictive sentence. He considered the appropriate starting point was a sentence ofimprisonment and dealt with each set of offending individually.[11] In respect of the April offending, involving male assaults female, assaultingpolice and intentional damage, the Judge decided to take a starting point of 12 months.He accepted that the slap on the face was not at the higher end of the scale butconsidered totality important. He then reduced the starting point to nine months forthat charge, presumably for the guilty plea, though this was not stated. Furtherconcurrent sentences were given of four months for assaulting police and two monthsfor intentional damage, making an effective sentence of nine months for that set ofoffending.[12] For the May offending, involving male assaults female and wilful damagecharges, the Judge took a 12 month starting point on a totality basis. He uplifted thisby three months because it occurred while the appellant was on bail, and a further threemonths to take into account previous offending. That 18 month sentence was thenreduced by four months for the appellant's guilty plea. Concurrent sentences of twomonths were given for the wilful damage charges. This set of offending thereforeresulted in an effective sentence of 14 months. The Judge considered this should becumulative on the nine months, because it involved different victims, differentoffending and different occasions.[13] The Judge imposed a further one month for the cannabis offending and onemonth for the breach of bail, cumulatively. He stated this did not breach the totalityprinciple taking into account the different sets of charges, the violent offending whileon bail and subject to sentence, and the appellant's list of previous convictions. Theend sentence imposed was therefore 25 months' imprisonment.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can be properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4 The focus is on the sentence ultimately imposed rather than the processby which it is reached.5Appellant's submissions[15] Ms Lee, for the appellant, submits that the District Court Judge erred inadopting too high a starting point for each of the male assaults female charges. On thefirst, against the appellant's mother, Ms Lee submits that the appellant is apologeticand admits he reacted poorly. She contends that the victim did not suffer any lastingor visible injuries from the slap, and therefore the offending should be at the lowestend of the spectrum. Ms Lee notes that the Judge justified this starting point because2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Tutakangahau v R, above n 3, at [36]there were also assaults on police, but submits that these occurred because theappellant felt the police were unjustified in their arrest actions and used excessive forceto get him in the patrol car. She submits that a starting point of six to nine monthswould have been appropriate.[16] Ms Lee also takes issue with the starting point of 12 months adopted for thesecond male assaults female charge, taking into account the circumstances of theoffending and the mitigating factors as stated in the victim's affidavit. The victimdeposes it was not a full force shove, and she only fell in the way she did and sufferedsuch a serious injury because of an unfortunate combination of factors. Once theappellant realised the extent of the injury, he was immediately concerned and took thevictim to hospital, where he made frank admissions to staff about what had happened.Ms Lee submits the appellant's culpability is greatly lowered when considering hisintent, the steps taken to assist the victim and the unforeseeable extent of the injury.She submits that a starting point of nine months would have been appropriate.[17] In regard to the cannabis charge, Ms Lee submits it involved a small amount(2.36 g) and is the appellant's first conviction for drug offending. She contends aconviction and discharge should have been imposed for this charge.[18] Finally, Ms Lee submits that with regard to the totality principle, 25 months'imprisonment is out of proportion to the gravity of the offending and the appellant'sculpability. She submits that if the appellant is successful on any grounds of appeal,a difference of even a month or so would have a significant effect and would thereforenot be "tinkering".[19] If this appeal results in the imposition of a short-term sentence, the appellantdoes not seek leave to apply for home detention due to lack of supportiveaccommodation.Respondent's submissions[20] Ms Courteney, for the respondent, submits that the starting points adopted bythe Judge were global starting points taking into account multiple offences, and werenot adopted solely on the male assaults female charges. Given the other offencesinvolved, including assaulting police in the April offending and breaking down twodoors in the May offending, she submits that the starting points adopted were withinrange.[21] Ms Courteney further submits that it was appropriate for the Judge to imposecumulative sentences for the two separate incidents of offending against differentvictims. She contends that cumulative sentences for the cannabis charge and failingto appear charge were also appropriate as the offending was different in kind andunconnected. She notes that the Judge did consider the totality principle and deemedit to be satisfied.Analysis[22] As indicated, the focus on appeal is the ultimate end sentence rather than theparticular process by which it is reached.6 The ultimate question is whether theultimate term of imprisonment of 25 months is manifestly excessive for this offendingto which the appellant has pleaded guilty.[23] In my view there can be no criticism of the District Court to impose two setsof cumulative sentences in the way that he did. The charges he grouped together werelogical, and recognised the need to account for the difference in the type of offending.Although they both involved domestic violence against family members or partners,and were within a month of each other, they were nevertheless distinct occasions ofoffending.[24] I see greater force in the challenge to the starting point for each set of offending,and the criticism of the overall level of the sentence. Ms Lee's submissions drewattention to decisions that are broadly comparable to the present offending. Inparticular:(a) In R v Reihana the appellant had punched the complainant once veryhard in the eye splitting her eyebrow, and temporarily affecting her eyesight.7 A starting point of 10 months' imprisonment was adopted by the6 Tutakangahau v R, above n 3.7 R v Reihana, CA143/03, 3 July 2013.District Court, with the aggravating and mitigating circumstances thencancelling each other out. The Court of Appeal said:[43] There is no tariff for this offence. The circumstances of itscommission and of offenders can vary greatly. Nonetheless we havereviewed a number of decisions of this Court in relation to theoffence of assault on a female including R v Rennie CA281/91,decision 9 September 1991; R v Morris CA89/94, 25 May 1994; R vBaldwin CA518/95, 4 December 1995 and R v Nixon CA87/01, 19June 2001 in which sentences of three months imprisonment, twelvemonths supervision, two months imprisonment and twelve monthsimprisonment (with leave to apply for home detention) were eitherupheld or substituted on appeal. The case of Nixon concerned adomestic assault which culminated in the complainant being kickedand injured as a result. The appellant had previous convictions. Weare satisfied that the present sentence is beyond the range ofpenalties generally imposed for this offence.The Court held that the sentence was manifestly excessive, and halvedit to a to a term of five months' imprisonment with leave to apply forhome detention.(b) In Wallace v R the appellant had assaulted his partner by punching hernumerous times with both fists about her upper and lower legs withconsiderable violence.8 The next day in a further incident he pushedher over on three occasions. In the following month he then punchedher about the right had side of her head on a further occasion. TheCourt of Appeal concluded that the starting point of 15 months waswithin the available range.(c) In Hadfield v Police the appellant grabbed his partner around thethroat.9 He then chased after her, picked her up from behind and threwher to the ground. Two months later they had a further argument whenhe spat at her, slapped her across the right cheek and grabbed her by thehand spraining her thumb. The High Court agreed the starting point ofthree months' imprisonment for the first incident, and a starting pointof six months' imprisonment for the second incident were entirelyappropriate and in line with the authorities. There was other offending8 Wallace v R [2012] NZCA 546.9 Hadfield v Police [2012] NZHC 2363.justifying a further uplift of three months, with deductions of threemonths for the guilty plea leading to an end sentence of nine months'imprisonment. The appeal was allowed in relation to other matters notpresently relevant.[25] I consider the two sets of offences against that background. Here a startingpoint of 12 months' imprisonment was adopted for each set of offending.[26] In my view the adoption of the 12 month point for the second set of offencesin May 2018 was within range. This set of offending involved three occasions, withsignificant damage and threat of violence on the first two occasions, and the lastoccasion involving an assault in which broke the victim's wrist, as well as her hittingher head. The Judge was entitled to adopt a 12 month starting point for this escalatingdomestic violence involving the same victim. I otherwise agree with the Judge'sapproach to the sentence for this offending ultimately leading to a sentence of 14months.[27] I do not think the same can be said of the first set of offending on 22 April2018. Whilst the appellant slapped his mother at this stage, this is not the same kindof serious escalating domestic violence. I recognise that it was accompanied by hisdamaging her television, and that he also effectively resisted arrest committing furtherdamage and an assault when the police arrived. But an overall starting point of 12months' imprisonment seems to me to be excessive. It also seems wrong to treat thestarting point for the first set of offending as the same as the second, as the second isplainly more serious. It seems to me that a starting point of four months' imprisonmentfor the assault, increased to six months for the wilful damage and assaulting policeoffences would be more appropriate. For that offending there should be then adiscount for the guilty plea. An ultimate end sentence on this offending of fourmonths' imprisonment is more appropriate.[28] The District Court Judge also increased the ultimate sentence by one month forthe possession of cannabis offending, and a further one month for the breach of bailoffending. In effect this results in the sentence being imposed for four separate sets ofoffending notwithstanding that it was a single spree of offences. Whilst such sentencesmight normally be appropriate for these two further offences, given the totalityprinciple it seems to me that an overall sentence of 20 months is still excessivenotwithstanding the reduction already made. It seems to me that an overall endsentence of 18 months' imprisonment is appropriate. Accordingly I conclude that theadditional two months so imposed for this offending should also be servedconcurrently.[29] Leave to apply for home detention has not been sought.[30] Accordingly, the appeal is allowed and a sentence of 18 months' imprisonmentwill be imposed.Cooke JSolicitors:Public Defence Service, ChristchurchCrown Solicitor, Christchurch