KIHI v POLICE [2017] NZHC 2883

KIHI v POLICE [2017] NZHC 2883 [23 November 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-64[2017] NZHC 2883BETWEEN ADAM POUWHERO JOHN KIHIAppellantAND NEW ZEALAND POLICERespondentHearing: 17 November 2017Counsel: A J Hamblett for AppellantM Dillon for RespondentJudgment: 23 November 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 23 November 2017 at 12.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitor, Hamilton[1] Mr Kihi pleaded guilty to charges of breach of protection order,1 assault of achild,2 wilful damage,3 male assaults female4 and assault with a weapon.5 He wassentenced to 18 months' imprisonment.6 He now appeals against that sentence.Background[2] Mr Kihi was at home with his partner of 20 years and one of their sons. Hebecame angry with his partner. In the process of trying to strike her, he hit his son.Matters escalated. He punched his partner in the head and then struck her five timeswith a hair straightener. She suffered a cut to her head and some numbness. Mr Kihihas six previous convictions for violence and four for breaching a protection order.The previous conviction for breach of protection order and domestic violence in 2016attracted a sentence of three months' imprisonment.The sentence[3] Judge P R Connell summarises the facts of the offending and refers toMr Kihi's history of offending. In then formulating sentence, the Judge:(a) Examines whether Mr Kihi could be suitable to take part in theHamilton Abuse Intervention Programme (HAIP) but notes there weredifficulties in identifying a suitable address.(b) Refers to expressions of concern raised by the Probation Service,reflecting the opinions expressed by Oranga Tamariki about thechildren and how they may be exposed to violence if Mr Kihi is givena non-custodial sentence of home detention.(c) Concludes there must be a term of imprisonment, though noting MrKihi's partner did not want him to go to jail and that it is preferable hebe given the opportunity to take part in HAIP.1 Domestic Violence Act 1995, s 49.2 Crimes Act 1961, s 194(a).3 Summary Offences Act 1981, s 11(1)(a).4 Crimes Act 1961, s 194(b).5 Section 202C.6 Police v Kihi [2017] NZDC 18269.(d) Acknowledges the victim's expression that she still loves Mr Kihi andthat they are in a good relationship.[4] On the lead charge, assault with a weapon (the hair straightener), the Judgeadopts a starting point of 18 months. He then applies an uplift for the other offences,of nine months, resulting in a global starting point of 27 months. Credit is given forguilty plea, though Judge Connell notes it was at a late stage. He, nevertheless, appliesa discount of nine months, reducing the sentence to 18 months' imprisonment on thelead charge. He then imposes concurrent sentences of six months' imprisonment foreach of the male assaults female, breach of protection order and assault on a childcharges. He discharges Mr Kihi on the wilful damage charge. Special conditions onrelease are imposed, including that Mr Kihi complete HAIP.Jurisdiction[5] Appeals against sentence by defendants are available as of right under s 244 ofthe Criminal Procedure Act 2011. They must be determined in accordance with s 250of the Act. The Court should only intervene and substitute its own view of sentence ifthere is an error in the sentence and a different sentence should be imposed. Amanifestly excessive sentence remains a paradigm example of appealable error.7Argument[6] Mr Hamblett, for Mr Kihi, contends:(a) the Judge should have adjourned the sentencing so that another homedetention address could be assessed;(b) a starting point of 27 months' imprisonment was too high and asentence of 18 months' imprisonment was manifestly excessive;(c) the Judge stated the 18 month sentence for assault with a weapon wasthe lead sentence and Mr Kihi would be sentenced to nine months on7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].the remaining charges concurrently but, in fact, they were imposedcumulatively, producing a starting point of 27 months;(d) Mr Kihi and the victim wanted a restorative meeting but that did nothappen; and(e) Mr Kihi pleaded guilty early and wrote sincere letters of remorse andapology, but the Judge did not address the issue of remorse.[7] Instead, he submits Mr Kihi's offending is comparable to the offending inHurinui v R8 and Tamihana v R,9 in which sentences of 18 and 13 months'imprisonment were handed down respectively. By reference to Nuku v R,10 MrHamblett submits the present offending falls into band one and possibly band two,with starting points ranging from a sentence of less than imprisonment to three years'imprisonment available. Following that methodology, and correcting the errorsidentified, he submits a starting point of nine months and an end sentence of seven anda half months' imprisonment was instead appropriate.[8] Alternatively, he submits Mr Kihi should be granted leave to apply for homedetention if a suitable address is identified.Assessment[9] As appellate courts have often said, in reviewing a sentence it is not the exactmethod by which the sentence is arrived at that is important; it is whether the sentenceoverall is manifestly excessive.11 The present offending is serious domestic violenceoffending. Given the repeat breaches of protections orders, combined with seriousdomestic violence, a substantial starting point is to be expected. In Tetau v Police forexample, a two year starting point was adopted for two breaches of protection orders,some minor assault offending and obstructing police.12 This starting point reflectedthat the offending represented Mr Tetau's eleventh breach. This was uplifted by nine8 Hurinui v R [2014] NZCA 290.9 Tamihana v R [2015] NZCA 169.10 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].12 Tetau v Police [2015] NZHC 1284.months in recognition of the fact Mr Tetau was subject to a sentence at the time of hismost recent offending. On appeal Mander J acknowledged the nine month upliftinvolved a degree of double counting, and consequently reduced the end sentence bythree months.13 In comparison to Mr Kihi, while Mr Tetau's offending was moreegregious in terms of breach of protection orders, the domestic violence wasconsiderably less serious.[10] In my view, while a starting point of 27 months is comparatively high, it is notout of range. Nevertheless, it is not clear whether the Judge had in mind a cumulativeapproach. He stated:[17] There will be an uplift to take account of all other offences. Theassault, the breach of the protection order, the assault on the child and thatuplift must be substantial. It is nine months because of the numbers of thosecharges but at least I am dealing with it on a concurrent way. [11] Finally, the failure to expressly consider remorse is an error, though it is clearthe Judge deliberated very carefully on an alternative approach, involving HAIP,which to my mind reflects due consideration of Mr Kihi's personal circumstances,amenability to rehabilitation and the victim's wishes. In any event, given this unusualcombination of factors I will examine the sentence afresh to test the appropriatenessof the end sentence.[12] First, the repeat breaches of protection orders, in combination with domesticviolence to his partner and child, are serious matters. A two year combined startingpoint is appropriate. Alternatively expressed, a combined 12 month starting point forthe violent offending and a 12 month starting point for the protection order breacheswould be within the range of available starting points for this type of offending.14 Italso accords with the need to denounce and deter repeat behaviour of this kind.[13] Second, Mr Kihi's history of domestic violence, including recent domesticviolence which attracted a three month term of imprisonment, warrants an uplift. But13 At [47].14 I refer to Apineru v Police [2014] NZHC 1969, Palmer v Police [2015] NZHC 143, Mitchell v R[2013] NZCA 583, (2013) FRNZ 498 and Toko v Police [2012] 1900, all discussed in Tetau vPolice [2015] NZHC 1284.I think this is offset by the third factor, namely, Mr Kihi's sincere expressions ofremorse and the restorative wishes of the victim.[14] Finally, a discount of 25 per cent for the guilty pleas must be applied.[15] In the result, I arrive at a sentence of 18 months' imprisonment. This accordswith the outcome reached in the District Court (which is explained by the fact theJudge appears to have miscalculated the guilty plea discount).Leave to apply for home detention[16] Lastly, I turn to consider Mr Hamblett's complaints that the Judge should haveconsidered an alternative address to enable Mr Kihi to participate in HAIP or as aminimum granted leave to apply for home detention. In this regard, Mr Hamblett refersto s 80I of the Sentencing Act 2002 which states:80I Leave to apply for cancellation of sentence of imprisonment andsubstitution of sentence of home detention in certain cases(1) This section applies if—(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitableresidence had been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date.[17] There are two parts to this complaint. The first part deals with the adjournment.I do not consider the Judge erred in not granting one. It was well within his discretionto decline any adjournment for finality reasons.[18] But in relation to the second part, it does not appear s 80I was brought to theJudge's attention. This is important because the Judge appeared to be willing toaccommodate an alternative course for Mr Kihi had a suitable address been available,no doubt mindful of the importance of his rehabilitation. The following passages ofhis sentence illustrate this point:[10] When you first came before me I considered that you might have beensomeone suitable to undergo the process of the Pathways Court. What I hadan interest in was seeing if you would take part in the HAIP programme,receive the assistance that refuge were offering. Assessments were receivedsuggesting that you are someone who could be helped, might be able to takepart in those programmes. I considered that I might, rather than send you backto jail, do something about trying to get you out of this cycle of physical abuseand breaching of the protection orders and get you into a non-custodial homedetention sentence.[11] The difficulty has arisen that your address that you offer for thatpurpose is one where children live. I have a report this morning from theProbation Service (because we remanded it for this purpose) to look at whetheror not those children would in fact be safe within this household if you wentback to it on a sentence of home detention. In short, I can simply say to youand I think you know through counsel that indeed the Probation Service areconcerned because of the opinions expressed by Oranga Tamariki thatexpressions of concern about the children and how they might be exposed toviolence.[19] There is a related matter. No application was made pursuant to s 27 of theSentencing Act to enable evidence to be given on Mr Kihi's personal, cultural orwhānau background that might be relevant to, among other things, any culturalprocesses available to address his propensity for violence, support he might receivefrom whānau, or possible alternative sentences. For my part, this is a case demandingcareful consideration of these matters.[20] In combination, I consider the requirement to identify the least restrictivesentencing option was not properly exercised. Given the obligation to grant leave toapply for home detention if it is suitable but for availability of an address, the failureto consider that potential manifests an appealable error. In saying this I make nocriticism of the Judge. As noted, the significance of ss 27 and 80I was not brought tohis attention.[21] As to relief, Mr Kihi has already served five months. I consider some urgencyis required. Rather than referring the matter back to the District Court, I allow theappeal and grant leave to Mr Kihi to apply for cancellation of the sentence ofimprisonment and substitution of a sentence of home detention, if an appropriateaddress is found. I also consider that in the event an application is made, a s 27 reportshould be provided by counsel for Mr Kihi addressing the matters set out in thatsection.Outcome[22] The appeal is allowed in part.[23] Leave is granted to Mr Kihi, pursuant to s 80I, to apply for cancellation of hissentence of imprisonment and substitution of a sentence of home detention, if anappropriate address is found.