TE HUIA v NEW ZEALAND POLICE [2016] NZHC 758

TE HUIA v NEW ZEALAND POLICE [2016] NZHC 758 [21 April 2016]IN THE HIGH COURT OF NEW ZEALANDWANGANUI REGISTRYCRI-2016-483-3[2016] NZHC 758BETWEEN ANTHONY LOUIS TE HUIAAppellantAND NEW ZEALAND POLICERespondentHearing: 20 April 2016Counsel: S J Burlace for D M Goodlet for AppellantN A Refoy-Butler for RespondentJudgment: 21 April 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is3.30 pm on the 21st day of April 2016[1] Mr Te Huia appeals his sentence of 21 months' imprisonment for:1(a) two charges of male assaults female (maximum penalty two years'imprisonment);(b) one charge of assault with intent to injure (maximum penalty three years' imprisonment); and(c) one charge of failing to answer bail (maximum penalty three months'imprisonment).[2] Mr Te Huia pleaded guilty to these charges.The factsThe male assaults female charges[3] On 8 March 2015 Mr Te Huia was at his home with his partner, mother, sister and son. He got into an argument with his partner. His mother intervened by getting between them. Mr Te Huia grabbed his mother's arm and held it behind her back,while using his other arm to hold her across the chest. After letting her go he grabbed his partner by her feet to try to drag her out from behind his mother. He then grabbed his mother, pulled her backwards, threw her to the ground and pinned her down.[4] Mr Te Huia's sister entered the room and attempted to pull him off their mother. He punched his sister, grazing her lip, and then threw her on the couch. He was shouting and swearing throughout. He stopped and attempted to leave. His mother tried to get to his car first, to remove his keys. He pushed past her, grabbed the keys and left shortly afterwards.The assault with intent to injure charge[5] On 17 July 2015, while on bail for the assaults on his family members, Mr Te Huia was on a bus when he was asked by a bus driver to turn off the music he1 New Zealand Police v Te Huia [2016] NZDC 3486.was playing loudly on his phone. The driver refused to drive the bus until the music had stopped. Mr Te Huia verbally abused the driver and once the bus had arrived at the next bus stop he challenged the driver to a fight and attacked him while he was still seated. Mr Te Huia punched the driver in the head using both fists approximately 10 times. The driver was pinned in his seat and unable to escape or defend himself. Mr Te Huia was pulled off the bus driver and removed from the bus, while continuing to verbally abuse the driver. He was difficult to control when police arrived. The bus driver suffered a bleeding nose and sore head.Failing to answer bail[6] Mr Te Huia failed to appear in the Rotorua Court on 24 November 2015.The time line to sentencing[7] The progression of Mr Te Huia's charges through to sentencing was a little tortuous but is of some relevance to the issues raised by the appeal. I therefore set out a chronology below:(a) the assaults on Mr Te Huia's mother and sister occurred on 8 March2015;(b) on 1 April 2015 he entered not guilty pleas to the male assaults female charges;(c) in May it is said that Mr Te Huia changed his pleas to guilty;(d) Mr Te Huia assaulted the bus driver on 17 July 2015;(e) on 20 August 2015 he pleaded not guilty to the assault with intent to injure charge and elected a Judge alone trial;(f) there were then a number of adjournments of that matter;(g) the sentencing on the male assault female charges in October did not proceed because Mr Te Huia said he had not changed his pleas. His then counsel was given leave to withdraw;(h) he failed to appear in Court on 24 November 2015;(i) there was a restorative justice conference between Mr Te Huia and his mother in early December 2015;(j) on 16 December 2015 he pleaded guilty to all charges;(k) sentencing was on 26 February 2016.The PAC reports[8] As a consequence of this attenuated series of events there are three PAC reports on the Court file, dated 29 October, 23 December 2015 and 28 January 2016. All three recommended a sentence of imprisonment. The following points seem worthy of specific note:(a) the first report focussed only on the male assaults female charges which, in October 2015, Mr Te Huia was continuing to deny blame for (blaming instead his family and the justice system);(b) although by the time of the second report, Mr Te Huia had participated in the restorative justice process with his mother and had tested negative for drugs, the positivity of those steps was overshadowed by the fact of his further, more serious, offending. Moreover, and notwithstanding his guilty pleas, it was apparent thathe "disputed the summary of facts" and essentially blamed the driver of the bus for the attack;(c) the third report simply updated the Court on the availability of a suitable home detention address.Sentencing in the District Court[9] As I have said, Mr Te Huia came up for sentencing before Judge Black on 26 February 2016. The Judge noted:(a) that a restorative justice conference in relation to the assaults on his mother and sister had taken place and that matters were largely resolved between Mr Te Huia and his family. The Judge said that had he just been sentencing on the male assaults female charges, Mr TeHuia "would not be going to jail today because of the restorative justice outcome";(b) Mr Te Huia's criminal history, including two previous convictions for violence and seven for non-compliance;(c) the recommendations of imprisonment, and the availability of a home detention address;(d) that his risk of reoffending was assessed as high, and the risk of harm was assessed as medium;(e) that Mr Te Huia had initially tried to shift the blame for his offending; and(f) that he had made positive changes over the preceding few months and had begun training for a career in carpentry. He had also stopped taking drugs. But in that respect the Judge said that he had only been able to do those things prior to sentencing was because of the delays in getting to that point, some of which had been due to choices made by Mr Te Huia.[10] His Honour recorded that Mr Te Huia's counsel accepted that a short sentenceof imprisonment was appropriate but had submitted that home detention should be substituted.[11] The Judge identified the "statutory aggravating features" of the offending asthe actual and threatened violence, the offending while on bail and the previous convictions, particularly those of non-compliance. He recorded that Mr Te Huia should be given some credit for his guilty pleas, but not a full credit because they"had not been maintained throughout".[12] The Judge took the assault with intent to injure charge as the lead offence, with a starting point of 18 months. He imposed six months for each of the male assaults female charges concurrent with each other but cumulative on the index sentence. He added one month for failing to answer bail, giving a total starting point of 25 months.[13] The Judge then said that, having regard to the totality of the offending, he would not "uplift for any of the statutory aggravating features". He gave a discount of four months (16 per cent) for the guilty plea, giving an end sentence of 21 months.[14] The Judge declined to impose home detention. He said Mr Te Huia had a history of non-compliance, the lead offence was committed while on bail and home detention would not serve the purposes of accountability and denunciation, particularly for the lead offence.The appeal[15] The grounds of Mr Te Huia's appeal are that:(a) the Judge erred in the starting point for the lead offence;(b) the Judge erred in not discounting for the restorative justice process; and(c) totality was not correctly considered.Discussion[16] Ms Goodlet's submissions (to which Ms Burlace spoke at the hearing) focussed principally on the starting point. She said that, although there were someaggravating factors present, an appropriate starting point would be 14 months for the lead offence. She said there should be four month starting points (concurrent on each other) for each of the male assaults female charges with a one month reduction on each for the restorative justice process. A guilty plea discount of three months would then bring the end sentence to 14 months.[17] Both counsel for Mr Te Huia and counsel for the Crown referred me to other cases which were said either to support the submission that the sentence was excessive or that it was within range.2 To these I might add (by way of very recent higher authority) the decision of the Court of Appeal in Goodman v R where the Court upheld a sentence of two years and four months imprisonment on charges of assault with intent to injure and male assaults female.3 The District Court Judge in that case had taken as the lead offence the assault with intent to injure charge and adopted a provisional starting point of two years for that offence with an uplift of 12 months for the male assaults female charge which was reduced for totality to four months. The assaults all occurred in a domestic context, which was an aggravating feature. The victim's actual injuries were, however, relatively minor.[18] At [12] the Court of Appeal said:In our view, a starting point of 28 months was within the available range. We agree with the Judge this was a serious assault involving, as it did, attacks to the head and neck, and, while the victim did not lose consciousness, there was a strong evidential foundation from which the Judge could draw the inference that this would have been a very frightening and alarming incident for her. As submitted by the Crown, generally sentences of between two to three years' imprisonment for domestic violenceoffending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months. An effective uplift of four months for the male assaults female charge was not excessive.[19] The reality is that all these comparator cases turn on their own particular combination of facts. In the end, the only question I have to decide is whether an end sentence of 21 months imprisonment for this offending and this offender was manifestly excessive.2 For Mr Te Huia I was referred to Williams v Police [2015] NZHC 3285 and Edmondson v Police[2015] NZHC 3184. The cases to which I was referred by the Crown included Rewita v Police[2013] NZHC 2175 and Kahika v Police [2015] NZHC 1262.3 Goodman v R [2016] NZCA 64.[20] The following points appear to me to be particularly relevant in Mr Te Huia'scase:(a) the 18 month starting point for the assaulting with intent to injure charge cannot be said to be out of range (compare the 24 months inGoodman). The aggravating features in this case were repeated blows to the head of a victim who was to some extent "vulnerable" in that he was significantly older than Mr Te Huia and was effectively trapped inthe driver's seat when the assault occurred;(b) a strong deterrent message is, in my view, called for where those such as bus or taxi drivers are attacked while doing their jobs;(c) the male assaults female charges occurred in a domestic context, against close family members;(d) there were two quite discrete incidents (unlike in Goodman). Cumulative sentences were undoubtedly called for. Moreover the second and more serious offence occurred while Mr Te Huia was on bail;(e) it would have been open to the Judge to impose an uplift to reflect that (i.e. that the more serious offence was committed while on bail);(f) although it seems clear that Mr Te Huia has taken some important rehabilitative steps, there is something in the Judge's point that he wasonly able to do so because of the delays in the sentencing process;(g) there is no dispute that a 15 per cent discount for the guilty pleas was appropriate and, in the circumstances I have outlined above, arguably on the generous side.[21] I acknowledge that the cumulative six month sentence on the male assaults female charges was perhaps at the sterner end, particularly given the restorative justice process. As far as I can tell, however, that process only involved one of thevictims (not Mr Te Huia's sister). But it cannot be said that even that sentence was out of the available range. And even if a one month reduction were appropriately given for that the effect on the end sentence would be no more than tinkering. As I have said, the aptness of one component of the sentence is not, in any event, the critical question. In my view the 21 month end sentence was not manifestly excessive and the appeal must be dismissed accordingly."Rebecca Ellis J"Solicitors: Debbie Goodlet, Wanganui, for AppellantCrown Solicitor's Office, Wanganui, for Respondent