KAA v NEW ZEALAND POLICE [2016] NZHC 2139

KAA v NEW ZEALAND POLICE [2016] NZHC 2139 [9 September 2016]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI 2016-419-000030[2016] NZHC 2139BETWEEN ANTHONY JOSEPH KAAAppellantAND NEW ZEALAND POLICERespondentHearing: 1 September 2016Counsel: S McKenna & J Alchin-Bolter for AppellantS F Gilbert for RespondentJudgment: 9 September 2016JUDGMENT OF DUFFY JThis judgment was delivered by me on 9 September 2016 at 2.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors / Counsel:Grantham Law, HamiltonCrown Solicitor, Hamilton[1] The appellant, Anthony Kaa, appeals against the sentence of two years sixmonths' imprisonment that was imposed on him in the District Court at Hamilton fortwo offences of male assaults female and one offence of driving whilst disqualified.Facts[2] Mr Kaa and the victim of the two male assaults female offences have been in a domestic relationship for 14 years. At the time of the offending, they had four children together .[3] At about 8.30 am on Monday 28 December 2015, Mr Kaa was with the victim at 216 Wainui Road, Raglan. He went to a sleep out on the property where the victim was sleeping. He asked her for money. After getting some money he took their children to the store to get food. He returned approximately 10 minutes later and went back to the sleep out. The victim was in bed with her 10 month old son. He asked the victim to get up as his family was leaving and he wanted her to say goodbye to them. She said she would get up later as there was no hurry.[4] Mr Kaa continued telling the victim to get up and so she told him to leave. He approached her while she was still lying in bed and started yelling at her. As he was standing over the victim he punched her twice in the face using a closed right fist. The punches struck the victim on the right side of her head around her right ear.[5] Mr Kaa covered the victim's mouth with his hand to stop her from callingout. The victim pulled his hand away and called for help. Mr Kaa then grabbed thevictim's fingers and forcefully pulled them backwards away from her face.Mr Kaa's brother heard the commotion and went to the sleep out. He attempted to calm Mr Kaa down. Mr Kaa's sister also entered the sleep out to remove the couple's 10 month old child. Mr Kaa then left the sleep out and returned to Hamilton with his three eldest children, leaving the 10 month old child and the victim at the address in Raglan.[6] As a result of the assault, the victim suffered pain and bruising to her right ear. She suffered two bruised and swollen fingers on her right hand.[7] The second assault on the victim occurred at about 12.30 am on Saturday 6 February 2016. Mr Kaa went to an address at 38 Bow Street, Raglan, where the victim was then living. At the time Mr Kaa when went to the address he was on bail conditions, one of which was that he was not to contact the victim directly or indirectly.[8] Mr Kaa went to the sliding door of the address, which was open. The victim was asleep on a mattress on the floor of the lounge with two of her children. He approached her and woke her up by shaking her leg. There was then an argument with the victim over the children being at the address. Mr Kaa said he wanted toremove the children and take them back to his father's address. During the argument, Mr Kaa grabbed the victim by her face and twisted her hair around. As a result of this assault, the victim suffered bruising to the left side of her face.[9] The disqualified driving offence occurred in July 2015. While he was driving a motor vehicle, Mr Kaa was stopped by police for not wearing a seat belt. Police checks revealed that he was a disqualified driver.[10] Mr Kaa pleaded guilty to the above offences.District Court sentencing[11] The District Court Judge adopted the unusual course of sentencing Mr Kaa cumulatively on each discrete offence. For the February 2016 offending, the Judgeadopted a starting point of 12 months' imprisonment, which she then uplifted by four months to reflect Mr Kaa's "lengthy history". This brought the sentence for theFebruary offending to 18 months' imprisonment.[12] With the December 2015 offending, the Judge again took a starting point of12 months' imprisonment. She then added this sentence to the earlier sentence of 18 months' imprisonment, which brought the sentences for the male assaults femaleoffending to 30 months' imprisonment. A 25 per cent discount was given for the guilty pleas, which reduced the combined sentences to 22 and a half months'imprisonment. The Judge then found that the totality of the offending against thevictim warranted a further uplift to bring the combined sentences to two years'imprisonment.[13] For the disqualified driving offending the Judge imposed a cumulative sentence of six months imprisonment.Submissions[14] On appeal, Mr Kaa did not quarrel with the length of the sentence imposed for the disqualified driving offending. The focus of his argument was on the way in which the Judge had arrived at the sentences for the male assaults female offending, which he contended had led to the sentences being manifestly excessive.Discussion[15] The Judge was right to impose a cumulative sentence for the disqualified driving offending, as this offending occurred at a different point in time and is of a different nature to the male assaults female offending. However, the male assaults female offences were similar in kind, involved the same victim and occurred over a relatively short space of time. Thus, the orthodox approach would have been to have followed the pattern that was applied in R v Taueki, with the more serious offending being the lead offence for which a starting point was taken, and the second offence being reflected in an uplift from that point.1[16] Then the Judge should have considered whether there were any aggravating or mitigating factors relating to Mr Kaa and adjusted for those, after which an adjustment for his guilty pleas was required.2[17] Having arrived at a combined sentence of 22 months' imprisonment on themale assaults female offending, the Judge then took the unusual step of uplifting thatsentence to two years' imprisonment to reflect the totality of Mr Kaa's offending.1 See R v Taueki [2005] 3 NZLR 372 (CA), as discussed in R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.2 See R v Clifford, above n 1, at [58].[18] A departure from the standard approach to sentencing will not impugn a sentence that falls within a range that is appropriate for the offending.3 However, such departures can result in outcomes that fall outside this range. The best approach to see if the latter outcome has occurred is to undertake the sentencing exercise in accordance with the standard approach and compare the results.[19] I consider that the first offence that occurred on 28 December 2015 is themore serious offence, as this involved two blows to the victim's head with a closedfist at a time when she was particularly vulnerable as she was lying in bed with her ten month old child.[20] The maximum sentence for the offence of male assaults female is two years'imprisonment. There is no tariff for this offending.4[21] In Yeo v Police, the offender grabbed his girlfriends around her throat and held her head in his lap while he was driving a motor vehicle.5 He pulled her hair, ripped her shirt and punched her once in the face. On appeal, the starting point forthe male assaults female offending was set at eight months' imprisonment.[22] In Poata v Police, the starting point for male assaults female offending thatinvolved punches to the abdomen was set at nine months' imprisonment.6[23] Wilson v Police and R v Richardson are cases involving more serious offending against a female as well as the offence of male assaults female.7 InWilson, the offending involved threatening to kill and assault with intent to injure as well as male assaults female. The offender punched his pregnant partner in the face twice and grabbed her around the throat so she could not breathe. The offence of male assaults female was taken as the lead offence with a starting point of 12months' imprisonment. In Richardson, the offender faced the same charges. However, there were more numerous attacks against his pregnant partner, including3 See Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 See R v Reihana CA143/03, 3 July 2003; affirmed in R v Werahiko [2008] NZCA 24.5 Yeo v Police HC Auckland CRI-2006-404-283, 14 September 2006.6 Poata v Police HC Rotorua CRI-2010-470-23, 5 July 2010.7 Wilson v Police [2012] NZHC 2503; R v Richardson [2012] NZHC 1465.kicking her and punching her in the stomach. The Court took a global approach andadopted a starting point of twelve months' imprisonment.[24] In Wawatai v Police, the offence of male assaults female was committed in the home of the offender and the victim.8 During an argument, the offender punched the victim with a closed fist, which caused a bleeding nose and swelling to thevictim's face. Courtney J adopted a starting point of seven months' imprisonment.[25] In Waitai v Police, the offender faced one charge of male assaults female.9Mr Waitai was visited by his ex-partner at his home. The pair got into a verbal argument and he told her to leave. She proceeded to do so, but then Mr Waitai blocked her exit. When he moved to allow her to leave, he threw something at her which hit her on the back. She began to cry. He then placed her in a choke hold. He repeated this hold twice. The victim was five months pregnant. On appeal, thestarting point was reduced to twelve months' imprisonment.[26] Mr Kaa's offending involves a less serious assault than in Waitai. The present offending is also less serious than that in Wilson and in Richardson, where twelve month starting points were adopted. However, the two punches to thevictim's head in the presence of the couple's ten month old child makes the present offending more serious than that in Wawatai, Poata and Yeo. I consider, therefore,that a starting point of 10 months' imprisonment is appropriate for this offending.[27] The next step is to uplift the sentence to take account of the second instance of offending. The injury to the victim was not as serious insofar as Mr Kaa"grabbed" her face and pulled her hair. However, the surrounding circumstances ofthis offending are more serious than the earlier offending insofar as the assault occurred at a time when Mr Kaa and the victim were living apart; she was asleep; it was late at night; and he entered her home without her permission. The first that she knew of his presence was when she was woken by him shaking her leg. Further he was on bail at the time and therefore subject to a court order not to associate with the victim.8 Wawatai v New Zealand Police [2015] NZHC 406.9 Waitai v R [2014] NZHC 2116.[28] None of the comparable cases involved an intrusion into the home of the victim. The seriousness of the actual assault was comparable to that in Wawatai,Poata and Yeo. I consider that for the second assault, the aggravating factors of theintrusion into the victim's home and the breach of the bail condition warrant an uplift of 8 months' imprisonment. This brings the total sentence to 18 months'imprisonment.[29] Mr Kaa has an extensive and comprehensive criminal history. In particular, he has seven previous offences involving violence. However, these occurred some time ago. There is a male assaults female offence on 30 March 2009; common assault on 25 June 2004; male assaults female on 20 May 2001; assault with intent to injure on 1 May 2001; male assaults female on 28 February 1996; assault on police on 28 February 1996; and common assault on 29 October 1995. An uplift for previous offending is permissible in order to deter and denounce the conduct of a repeat offender as such conduct indicates that the offender has paid little regard to the sentences previously imposed on him or her.10 On the other hand it is important to ensure that an offender is not penalised twice for previous offending.11[30] Mr Kaa's long and comprehensive criminal history leads me to conclude thathe is seemingly impervious to admonition for his offending. Some uplift is warranted for previous offending in order to emphasise to him that he will be held accountable for his criminal conduct. On the other hand, given the time which has elapsed since the physical violent offending, I consider that the uplift should be nogreater than two months' imprisonment. This brings the total sentence in respect ofthe male assaults female offending to 20 months' imprisonment.[31] No mitigating factors relevant to Mr Kaa were drawn to my attention. The Judge gave Mr Kaa a 25 per cent discount for his guilty pleas, which is the maximum discount usually given for a guilty plea. I see no reason to depart fromthis discount, which amounts to a reduction of 5 months' imprisonment. When this is subtracted, it leaves an end sentence of 15 months' imprisonment.10 See R v Arthur [2005] 3 NZLR 739 (CA).11 R v Casey [1931] NZLR 594 (CA) at 597.[32] The totality principle is usually applied at the end of the sentencing process to reduce a sentence which, as a result of the proper inclusion of all the relevant sentencing factors, has produced an end sentence that is too high when looked at in the round.12 It is not usual to increase a sentence for totality principles. If at the end of a sentencing process, a Judge considers that the sentence is inadequate, that suggests to me that one of the steps along the way is not properly reflective of theoffender's culpability. In that case, it seems to me that the better approach would be for the Judge to go back over the sentencing approach and correct this assessment. I see no need therefore to increase the sentence in any way.[33] The starting point that I adopted for the lead offence is lower than the 12 months' imprisonment adopted by the District Court Judge. Further, for the second offending I have arrived at an uplift of eight months' imprisonment, which is less than the 12 months' imprisonment the Judge adopted for this offending. Thus theJudge has erred in her choice of starting points. This in turn has caused her to err in the end sentence imposed on Mr Kaa. This error was compounded by her decision to increase the sentence for reasons of totality after she had worked through the sentencing process and allowed a discount for a guilty plea.[34] An end sentence of 15 months' imprisonment for the male assaults femaleoffending is 9 months less than the sentences imposed by the Judge. When thissentence is added to the six months' imprisonment for the disqualified drivingoffence, it results in a total sentence of 21 months' imprisonment. This is 9 monthsless than the total sentence arrived at by the Judge. The difference between the sentences I have arrived at and those imposed by the Judge is significant, which shows the sentence imposed in the District Court to be manifestly excessive.[35] In Tutakangahau v R, the Court of Appeal found that while s 250(2) of the Criminal Procedure Act 2011 does not specifically refer to the concept of"manifestly excessive" as a ground for allowing an appeal against sentence, the concept is "well engrained" and there is no reason not to utilise the concept whenconsidering a sentence appeal.1312 See R v Xie [2007] 2 NZLR 240 (CA) and R v Williams CA91/00, 31 May 2000.13 Tutakangahau v R, above n 3, at [35].[36] I am satisfied, therefore, that the appeal must be allowed in relation to the sentences for the male assaults female offending. Mr Kaa accepted that the sentence for the disqualified driving offending fell within the acceptable range for such sentences. Accordingly I do not propose to interfere with that sentence.Result[37] The appeal against the sentences of two years' imprisonment for the twooffences of male assaults female is allowed and those sentences are set aside. Intheir place are substituted concurrent sentences of 15 months' imprisonment for eachsuch offence, effective from the date of the original sentencing.[38] The sentence of six months' imprisonment imposed by the District Court forthe disqualified driving offence remains in place.