ANGUNA v R [2020] NZCA 127

ANGUNA v R [2020] NZCA 127 [30 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA288/2019[2020] NZCA 127BETWEEN ANDREW RANGI ANGUNAAppellantAND THE QUEENRespondentHearing: 2 March 2020Court: French, Dobson and Moore JJCounsel: G A Walsh and M J James for AppellantF R J Sinclair for RespondentJudgment: 30 April 2020 at 11 amJUDGMENT OF THE COURTA The application for an extension of time to bring the appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] Following a jury trial in the District Court at Hamilton, Mr Anguna was foundguilty of 10 charges arising out of domestic violence offending committed inDecember 2017.1 He pleaded guilty to an additional six charges which related toevents that took place six days later.2[2] On 10 April 2019 the presiding Judge, Judge R G Marshall, sentencedMr Anguna to six years and three months' imprisonment.3 He appeals that sentenceon the grounds it is manifestly excessive. In particular, he says the sentences shouldnot have been applied cumulatively.[3] An appeal against conviction was also filed but subsequently abandoned.[4] The notice of appeal was filed some 26 working days out of time. The delayis relatively short and explained on the basis that Mr Anguna had to engage a newlawyer for the purposes of his appeal. The Crown did not oppose granting an extensionof time. Accordingly, we grant the extension.The facts[5] The victim was Mr Anguna's former partner of six years, Ms S. They separatedmore than a year before the offending. They have a daughter together. A finalprotection order in Ms S's favour was granted in May 2017. Ms S lived in Hamiltonwith their daughter. Mr Anguna lived in Auckland.5 to 6 December 2017 offending (the first incident)[6] On 5 December 2017 Ms S was at home when she saw Mr Anguna drive past.Fearing for her safety, she left home and parked her car outside a police station.She remained away from her home before returning about five hours later. This wasbecause she knew Mr Anguna had an 8:00 pm curfew and assumed he would havereturned to Auckland. However, when she got home shortly before 7:00 pm, Ms S1 Three charges of breach of protection order (Domestic Violence Act 1995, ss 19(2)(a) and49(1)(a)), burglary (Crimes Act 1961, s 231(1)(a)), kidnapping (s 209(b)), male assaults female(s 194(b)); two charges of threatening to cause grievous bodily harm (s 306(1)(a)), indecent actwith intent to insult or offend (s 126); attempting to pervert the course of justice (s 117(e)).2 Driving while disqualified third and subsequent (Land Transport Act 1998, s 32(1)(a)), possessionof an offensive weapon, namely a knife (Crimes Act, s 202A(4)(a)); unlawful possession of afirearm (Arms Act 1983, s 45(1)), unlawful possession of ammunition (s 45(1)), breach ofprotection order (Domestic Violence Act, ss 21(1)(a) and 49(1)(a)); possession of a class Bcontrolled drug, namely MDMA (Misuse of Drugs Act 1975, s 7(1)(a)).3 R v Anguna [2019] NZDC 6855.found Mr Anguna there. He began to shout at her. He abused her. He accused her ofhaving a new boyfriend and then told her that she had to travel to Auckland with him.He emphasised this by head butting a door and telling her, "You're coming with me oryou're going to hospital". He stood over her with a clenched fist. When she asked ifshe could be given time to pack some clothes, Mr Anguna told her that he had earlierclimbed through a window and taken all her clothing.[7] Fearing for her safety, Ms S got into Mr Anguna's car with their daughter.He drove them to his mother's home in Auckland. He instructed Ms S on how shewas to behave in front of others. Throughout the evening, he repeatedly spat on her,called her a liar and accused her of having affairs. He threatened that if she tried toleave he would break her legs, shoot her and she would end up in hospital. At onepoint, he took Ms S into the garage where he directed her to undress. He inspectedher body, apparently looking for signs that she had been sleeping with someone else.He confiscated the keys to her house and car.[8] The following day Ms S told Mr Anguna that she needed to return to Hamilton.He responded by brandishing a knife at her and telling her that if she left he would cuther face off and the only place she would be going was to A&E.[9] However, around midday while Mr Anguna was asleep, Ms S managed to leavethe house and return to Hamilton. In doing so she had no option but to leave her childbehind.[10] In Hamilton she changed the locks to her house. The police supplied her witha panic alarm.12 December 2017 offending (the second incident)[11] At about 7:30 am six days later, on 12 December 2017, Mr Anguna returned toMs S's Hamilton home. Using the key he had taken from her, he unsuccessfully triedto open the door. Ms S was home at the time. She activated the panic alarm.[12] The police responded immediately. When they got to Ms S's home they sawMr Anguna driving past slowly. He was stopped and his car searched. He was foundto be carrying a knife. Inside the car the police located a .22 calibre Ruger pistol anda magazine containing compatible ammunition. There was also a small quantity ofMDMA and methamphetamine.4Attempting to pervert the course of justice[13] Following his arrest and while he was remanded in custody, Mr Angunaobtained prison approval by subterfuge to call Ms S. Between 28 December 2017 and27 March 2018, he made more than 40 calls to her. These were recorded by the prisonauthorities. In the course of the calls, Mr Anguna instructed Ms S to write a falseletter, swear a false affidavit and change her evidence. Judge Marshall said in hissentencing remarks that in listening to the recordings it was evident there wasan increasing level of frustration and anger on Mr Anguna's part as it became apparentMs S was not responding quickly enough to his requests.5 Ultimately Mr Anguna wassuccessful in his attempts to have Ms S retract and minimise her account. At the trial,the Crown applied to have her declared a hostile witness and the Judge so ordered.Approach to appeal[14] In order to succeed on this appeal Mr Anguna must satisfy us that not only didthe sentencing Judge err but that a different sentence should be imposed.6 The focusis on the sentence imposed rather than the process by which it is reached.7 Thusthe question is whether the end sentence is within the available range.8District Court sentence[15] For the first incident offending on 5-6 December 2017, the Judge adoptedthe kidnapping charge as the lead offence.9 He identified the aggravating features asincluding premeditation, the use of threats and actual violence, the use of a weapon,4 Mr Anguna was discharged under s 147 of the Criminal Procedure Act 2011 in respect of a chargeof possession of methamphetamine: R v Anguna [2019] NZDC 1185.5 R v Anguna, above n 3, at [15].6 Criminal Procedure Act, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]–[39].8 At [36].9 R v Anguna, above n 3, at [17].the length of the detention and the victim's vulnerability. He set a starting point oftwo years and nine months' imprisonment.10[16] For the other convictions associated with the first incident offending, he gavean uplift of nine months' imprisonment.11[17] Then, to reflect Mr Anguna's previous convictions for violence, he addeda further six months. This combination resulted in a total of four years' imprisonmentfor the first incident offending.12[18] The Judge then turned to the charge of attempting to pervert the course ofjustice. He observed that that charge, if standing alone, might well have justifieda sentence in the order of three years' imprisonment. However, to reflect totality, heimposed a cumulative sentence of one year. This brought the provisional sentence tofive years' imprisonment.13[19] The Judge then considered the second incident offending. These werethe charges to which Mr Anguna had pleaded guilty. The Judge noted the aggravatingfactors which included the carrying of the knife, and the pistol with a loaded magazinefound in the car. He observed with concern the connection between that offending andMr Anguna's earlier threats that he would shoot Ms S. The Judge determined thatthe second incident offending justified the imposition of a further one year and sixmonths, reduced by three months to reflect the guilty pleas. This sentence was alsoimposed cumulatively leading to a final, end sentence of six years and three months'imprisonment.14Was the Judge wrong to impose the sentences cumulatively?[20] Section 84 of the Sentencing Act 2002 ("the Act") deals with cumulativesentences.10 At [27].11 At [28].12 At [29].13 At [30].14 At [31].[21] Section 84(1) provides that cumulative sentences are generally appropriate ifthe offences are different in kind, and whether or not they are a connected series ofoffences. In determining whether offences are part of a connected series the court mayconsider the time they occurred, the overall nature of the offending or any otherrelationship between the offences the court considers relevant.15 Section 85(2) statesthat where cumulative sentences are imposed, the court must ensure they do not resultin an end sentence disproportionate to the gravity of the overall offending.[22] Mr Walsh did not take issue with the starting point, the uplift for the relatedcharges, the uplift for previous convictions or the cumulative sentence imposed onthe perverting the course of justice charge. His criticism, which lies at the heart of thisappeal, is that the 18 month sentence for the second incident, while appropriate if itstood alone, should have been imposed on a concurrent, rather than cumulative, basis.As it was, the method adopted by the Judge led to an end sentence which was whollyout of proportion to the gravity of the offending. In Mr Walsh's submission, becausethe offending represented a continuum of interconnected events committed inthe context of domestic violence, the charges should not have been treated as discreteepisodes.[23] Mr Walsh referred us to Maihi v R and Clark v R.16 In Maihi this Court allowedan appeal against a sentence of six years and four months' imprisonment imposed forfour charges of violence against the appellant's partner and one charge of assault on achild. The offending spanned a 19 month period. The Court observed that althoughthe offences were of a similar kind and involved the same victim, each was separatedby many months and occurred at a different location. It was open to the Judge to treatthem as not forming a connected series of offences and impose cumulative sentencesaccordingly.17[24] We are satisfied that, subject to the totality principle, it was open to the Judgeto impose cumulative sentences despite there being some temporal and contextualconnection between the incidents. This Court has previously upheld cumulative15 Sentencing Act 2002, s 84(3).16 Maihi v R [2016] NZCA 205; and Clark v R [2013] NZCA 63.17 Maihi v R, above n 16, at [21].sentences on appeal where the offending was part of a connected series of offences.18The Judge was entitled to conclude that the kidnapping (and related offences) shouldbe considered separately to the second incident offending in Hamilton six days later.While another Judge may well have adopted a different methodology, viewing the twoincidents as sufficiently connected to justify a concurrent approach, that is insufficientto interfere with the Judge's finding that the conduct in this case involved separate anddistinct courses of offending.Was the sentence wholly out of proportion to the gravity of the overall offending?[25] To some extent we have already answered this question. Mr Walsh'ssubmission is that on a totality basis the appropriate sentence for all offending wouldhave been five years' imprisonment rather than the six years and three months imposedby the Judge.[26] In order to examine that submission it is necessary to review a number ofdecisions of this Court which have reviewed sentencing levels in kidnapping cases.[27] In the 2003 decision of R v Wharton, the victim obtained a protection orderwhich the appellant breached.19 While he was on bail for assault, threatening to killrelative and breach, he lured the victim back to his home. When she attempted toleave, he assaulted her. She remained in his home overnight. She did not leavebecause she was fearful of the consequences of doing so.20[28] This Court quashed a sentence of four-and-a-half years' imprisonment andsubstituted a sentence of three-and-a-half years on the kidnapping charge.In explaining why there is no tariff decision the Court commented:[11] There can be an infinite variety of circumstances which underliethe crime of kidnapping. Some may relate to the abduction of citizens to beheld for ransom others may involve gang activity for the collection ofproceeds of crime or for financial extortion . Many are an adjunct to orpart of sexual criminal offending and others, regrettably becoming morecommon, are part of the activity of a former spouse or partner who defies18 See Waitohi v R [2014] NZCA 614 at [32]; and Hughes v R [2012] NZCA 388 at [34]–[35].19 R v Wharton (2003) 20 CRNZ 109 (CA).20 At [3].a protection order and detains a fearful, often battered and helpless femaleex-partner for motives of power, revenge, jealousy or irrational anger. [12] The present case clearly falls into the last category. It is no less seriousbecause of its grouping. Commonplace elements such as physical andemotional abuse and constraint by a violent, abusive partner in breach ofa protection order do not allow Judges to treat such cases as being anythingother than serious. In this case it involved prolonged and lawless invasion ofthe rights, dignity and integrity of a woman powerless to resist him with anyresistance being broken by his assault, earlier threats and intimidation,together with his history of violence. Attendant upon that was his offendingwhilst on bail, the abuse of a [position] of trust in relation to the woman andthe risk of reoffending. All of those factors are applicable in this case, in termsof s 9 of the Sentencing Act 2002.(Citations omitted)[29] In Heke v R this Court, referring to Wharton, said:21The Courts' recognition of the particular need for deterrence, denunciation andprotection in such cases has, if anything, increased in the 12 years since thatcase was decided.[30] In Heke v R, the appellant broke into the house where the victim was stayingand entered her bedroom. He was intoxicated, angry and abusive. She told him toleave. He responded by demanding that she leave with him. When she refused hegrabbed her by the hair and dragged her down a set of stairs toward the door, pushingand shoving her. He threatened to kill her and only stopped his conduct when thepolice were called.22 This Court observed that given the 14 year maximum available,the starting point of two years and four months' imprisonment sat well within theavailable range.23[31] In Franklin v R this Court upheld a starting point of two years and nine months'imprisonment on a charge of kidnapping.24 The appellant, who had been in a lengthydysfunctional and abusive relationship with the victim, picked her up in his car.She jumped out but returned after being threatened. While the car was moving,the appellant forced her to remove her shorts. He then demanded she remove her21 Heke v R [2016] NZCA 38 at [10].22 At [3].23 At [11].24 Franklin v R [2018] NZCA 495. The appeal was allowed in respect of the sentencing Judge'sdecision to impose preventive detention. However, the Court imposed a determinate sentence inline with the sentencing Judge's calculations. The Judge had adopted a starting point of two yearsand nine months' imprisonment.underwear. She refused. He grabbed a fishing knife and threatened to cut herunderwear off. The victim attempted to jump from the moving car. When it pulledover, the victim jumped out.[32] In the present case, the kidnapping charge attracted a sentence of two years andnine months' imprisonment. The related first incident offending attracted a nine monthuplift, leading to a total of three and a half years' imprisonment. On any analysis,the present offending is at least as serious as that in the cases discussed above andmight well have justified a longer term. But that is before the offending on the secondincident is considered.[33] The effect of Mr Walsh's submission is that the second incident offendingshould be subsumed as a concurrent sentence. However, that proposition ignoresthe serious aggravating factors involved in the second incident.[34] Without an uplift, the seriously aggravating factors associated with the secondincident offending would receive no recognition. The Judge observed thatthe unlawful possession of the firearm charge alone could attract an appropriatestarting point of two years' imprisonment. However, in recognition of the totalityprinciple, and after making an adjustment for the guilty plea he only imposed a oneyear and three month uplift, for all the second incident offending.[35] In our view that approach was correct. Given the background, Mr Anguna'sdeliberate and necessarily premeditated decision to make a return trip to Hamilton andto attempt to enter Ms S's house, apparently with a knife, represents an alarmingescalation in seriousness when viewed in its totality. It seems that Mr Angunaretreated only after the panic alarm was activated and the police were on their way.That he also had in his car a pistol and ammunition is a particularly concerningaggravating factor. This further conduct called for a stern response. The uplift of oneyear and three months was within range. Viewed through the lens of totality, it cannotbe said that such a sentence is manifestly excessive.Result[36] An application for an extension of time to bring the appeal is granted.[37] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent