TAKAU v NEW ZEALAND POLICE [2017] NZHC 2300

TAKAU v NEW ZEALAND POLICE [2017] NZHC 2300 [22 September 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-104[2017] NZHC 2300BETWEEN ATUNAISA TUITUPOU TAKAUAppellantAND NEW ZEALAND POLICERespondentHearing: 14 September 2017Appearances: A T Takau (Appellant in person)P A Norman for RespondentS I Guy for Probation ServicesJudgment: 22 September 2017(ORAL) JUDGMENT OF NICHOLAS DAVIDSON JBackground to offending[1] The appellant, Mr Takau, was sentenced to eight months home detention at[XXX] with 200 hours community work and an order that he pay reparation of $1,000to each of two victims on one charge of injuring with intent to injure and one chargeof assault with intent to injure.1 He was ordered to pay $1,000 reparation to each ofthe two victims. The sentence imposed followed a sentencing indication without theProbation Officer having made sentencing recommendations.[2] Mr Takau appeals this sentence, saying the Judge erred in fact and in law.1 Police v Takau [2017] NZDC 16260.[3] He represented himself on appeal, but was represented by counsel when he wassentenced.[4] The sentencing remarks of the District Court Judge must be read in the contextof the sentencing indication that was given to the appellant. Mr Takau was drinkingat a pub with two work colleagues and became agitated. He says he was deeplyinsulted by comments about his religious beliefs and other personal insults. Whateverthe reason, one of the victims took his jug of beer and tipped it down the drain. Hepunched that colleague to the ground and then punched the other to the ground. Hekicked the second colleague in the head while on the ground and then punched andkicked the first victim. One victim received swelling to the head and neck and theother a broken cheek bone and a fractured eye socket. He said he was defendinghimself as one of his colleagues threatened to hit him over the head with a beer jug.It would appear from the pre sentence report that Mr Takau conceded that the incidenthad more to do with his anger than self defence.[5] The Judge in the sentencing indication referred to the Court of Appeal guidancein R v Nuku, and the bands of offending.2 The aggravating features here were theserious injuries caused to one of the victims, the attacks to the head, the vulnerabilityof the victims, and repeated assault.[6] There was no premeditation but there was a degree of provocation in the sensethat there was agitation between Mr Takau and the victims. The Judge assessed theoffending as falling within the top end of band two, or the bottom end of band three ofNuku, and that a starting point of three years imprisonment was appropriate, reducedby 10 per cent for his good record, and 20 per cent for his guilty plea and remorse.This led the Judge to consider home detention. On the basis of a positive pre-sentencereport, and a suitable home detention address, that was the sentence imposed with theadditional elements of community work and reparation.[7] The appellant offered to pay reparation, and this was a factor in reduction ofthe sentence.2 Nuku v R [2012] NZCA 584.Principles on appeal[8] The appellant appeals as of right, but the Court will only allow an appeal ifsatisfied that there is an error in the sentence, and that an alternative sentence shouldbe imposed.3 An appeal court will not simply substitute its own views of theappropriate sentence. The sentence must be manifestly excessive or inappropriate,given that sentencing is, in essence, discretionary. The focus on appeal is the sentenceimposed, rather than the process by which the sentence was reached.4Analysis[9] When this matter was first called on appeal, I indicated I did not consider thatthe sentence could in any way be regarded as inappropriate as excessive. No errorwhatsoever is disclosed. The only way in which the appeal might have traction is thatthe appellant's home detention address was unavailable, thus undermining thesentence itself.[10] The sentencing remarks did not identify the risk that there may be no suitableaddress available.[11] This possibility was reflected in the Minute issued by the Court of14 September 2017. Ms Norman for the Crown and Ms Guy from Probation Serviceswere asked to enquire if the appellant's home address was unavailable if the appellantcould not work for his employer. That raised the question of whether there was analternative address.[12] Alternatively, the question was whether his employment could only beaccommodated by community detention, and community work. The appellant hadserved one month and 20 days of home detention as at 14 September 2017.[13] Apart from this issue, the appellant's submission is that he wants to go back toTonga to be with his wife and children, and the appellant told the Probation Officer3 Criminal Procedure Act, s 250.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].that he has a drilling business there which would fall into bankruptcy should he notreturn, given stringent financing arrangements.[14] The sentence imposed was clearly within range, and I consider it to be verymuch on the light side. Imprisonment here was a real possibility. The appeal couldonly succeed if the sentencing judge was aware that home detention was impracticable,and it was thought by this court that some alternative sentence would suffice. If thereis in fact no suitable address, then the sentence must be re-addressed on appeal.[15] I have now been advised by Ms Norman with a report by and Ms van Voorstand Ms Guy that Mr Takau can serve the sentence imposed, at the address given, andhe will not lose his work, although there are difficulties in monitoring and reporting.Ms Norman submits there are no grounds for appeal as Mr Takau can serve out hissentence as the Judge contemplated. I agree. He is fortunate to have his employerstanding by him but it shows he was the personal and work attributes which will allowhim to get on with his work and personal life, and put this serious and out of characteroffending behind him.Disposition[16] The appeal is dismissed..Nicholas Davidson JSolicitors:Raymond Donnelly & Co., ChristchurchMr Takau (appellant)Ms Shelley Guy, ProbationS Van Voorst, Community Corrections