HOHUA v POLICE [2018] NZHC 3175

HOHUA v POLICE [2018] NZHC 3175 [4 December 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-70[2018] NZHC 3175BETWEEN DAVID HARLEY HOHUAAppellantAND NEW ZEALAND POLICERespondentHearing: 27 November 2018Counsel: B A Crowley and Z Meehan for appellantM A Shaw for respondentJudgment: 4 December 2018RESERVED JUDGMENT OF DOBSON J[1] On 20 August 2018, the appellant (Mr Hohua) was sentenced in the DistrictCourt at Hutt Valley on a range of convictions for burglary, receiving, failing to answerbail, assault with a weapon and male assaults female, breaches of intensivesupervision, possession of cannabis and a drug-related utensil, dangerous driving,aggravated failing to stop and driving whilst forbidden.[2] The end sentence was 27 months' imprisonment. Mr Hohua has appealedagainst the sentence on the ground that the Judge adopted too high a starting point forone group of domestic violence offences, which resulted in the end sentence beingmanifestly excessive.The circumstances of the offending[3] In November 2017, Mr Hohua was on electronically monitored (EM) bail fordishonesty offending for which he had earlier been charged and remanded. He wasalso serving a community detention sentence. In the course of an argument,Mr Hohua's partner threatened to pull out the electric cord of the phone unit thatmonitored his EM bail device. She then duly carried out that threat.[4] Mr Hohua's response was to throw the GPS phone unit related to hisEM bracelet at his partner. The phone bounced on her head and hit the stomach of asecond victim, his partner's sister, who was pregnant. Mr Hohua then grabbed hispartner and dragged her by the hair, pulling her hair back violently so she was on herknees, and repeatedly punched her in the head. In the course of this attack, whendrawing his arm back he elbowed the second victim in the stomach. He then kickedhis partner twice in the head, resulting in a split to the back of her head. The secondvictim was referred to and monitored at a maternity ward.[5] The domestic violence resulted in two charges of assault with a weapon. Onarrest, Mr Hohua was remanded in custody, with the result that the communitydetention sentence was suspended. He was subsequently granted bail, enabling himto resume the community detention sentence.[6] One of the assault with a weapon charges was subsequently amended to maleassaults female. In February 2018, Mr Hohua entered guilty pleas to all of hisoutstanding charges.[7] For reasons not attributable to Mr Hohua, his sentencing on these charges wasdelayed until 20 August 2018. By then, he had been charged on 6 August 2018 withfurther domestic violence offending, plus driving offences and possession of a class Cdrug and utensils. At the time of the sentencing on 20 August 2018 to which thisappeal relates, he had pleaded not guilty to those further charges. They weresubsequently resolved on 5 November 2018 when he was sentenced to a further termof four months' imprisonment that was to be served concurrently with the prisonsentence imposed on 20 August 2018.The sentencing decision[8] In setting a starting point, Judge Black focused on the domestic violencecharges as the most serious. The Judge adopted a starting point of 18 months'imprisonment for the charge of assault with a weapon. He found that it fell withinband two of Nuku v R,1 and identified four aggravating factors from the list in R vTaueki.2 Those aggravating factors were the use of a weapon, attack to the head, pre-meditation and vulnerability of the victim where a breach of trust was involved. It isthis aspect of the sentencing analysis that is challenged on appeal.[9] Treating the burglary and other dishonesty convictions as sufficiently differentoffending to warrant a cumulative sentence, the Judge nominated a starting point of16 months' imprisonment cumulatively for a daytime residential burglary.[10] The Judge then calculated uplifts of one month each for male assaults female,unlawfully being in an enclosed yard, breach of intensive supervision, and the drugand driving offending. That provided an overall starting point for all the offending of38 months' imprisonment.[11] On the totality principle, the Judge then reduced the total sentence to31 months, then added two months for the extent of previous convictions. The Judgenoted that a further uplift could have been warranted for the offending having occurredwhilst on bail awaiting sentence on other matters, but he declined to do so in theinterests of totality. From that end point of 33 months, the Judge gave a credit forguilty pleas of 20 per cent or six months, resulting in the end sentence of 27 months'imprisonment.Arguments on appeal[12] Mr Meehan, who presented the submissions for Mr Hohua, argued that the18 month starting point for assault with a weapon was too high. He submitted thatNuku requires not only an acknowledgement of the number of aggravating features,but an assessment of the seriousness with which each of them is present. Here, the1 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.2 R v Taueki [2005] 3 NZLR 372 (CA).throwing of the phone after Mr Hohua had been provoked by his partner arguablyshould not have been treated as an aggravating feature because the seriousness of theway in which the phone was used was sufficiently captured in the more serious formof the charge that was laid. In short, throwing the phone could not be likened to hittinga victim with a weapon such as a hammer, stick or bottle.[13] Mr Meehan also criticised the Judge for treating pre-meditation as anaggravating factor. The initial assault was certainly spontaneous and the only aspectthat might involve a modest extent of pre-meditation was when Mr Hohua pulled thevictim back inside the property when she was attempting to leave.[14] From the summary of events available, it does appear as if the successiveaspects of the assault were conducted in the heat of the moment. Even pulling thevictim back into the property seems likely to have been a snap decision on Mr Hohua'spart. Accordingly, I accept that pre-mediation is not an aggravating factor that couldbe given any material weight. The Judge did describe this factor as "a degree of pre-meditation", but this was countered in his identifying four aggravating factors fromTaueki. I do not consider that the narrative of events justifies attributing pre-meditation to an extent that aggravates the seriousness of the domestic violence.[15] Mr Meehan invited comparison with four other appeals where he characterisedthe level and circumstances of the domestic violence as being as serious, or moreserious, than on the facts here. In those cases, starting points upheld or imposed onappeal ranged from 12 to 16 months' imprisonment.3 Mr Meehan was realistic inacknowledging that Mr Hohua could not expect a substantial reduction in his endsentence. He submitted that the starting point for the domestic violence offendingshould come down to 12 to 14 months' imprisonment (that is, by four to six months)or below.[16] For the respondent, Mr Shaw ranked the present offending as relatively moreserious when compared with the features Mr Meehan had identified in the appealjudgments he cited. In particular, where Mr Meehan classified the offending in Harris3 Mohib v Police [2017] NZHC 123; Edmondson v Police [2015] NZHC 3184; Harris v R [2017]NZHC 1404; and Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.v R as being as serious, or more serious, than in the present case, Mr Shaw contendedthat the offending in Harris was less serious than in the present case.4[17] In considering appeals from sentencings involving domestic violenceoffending, the task in accurately calibrating the relative seriousness in one case whencompared with a range of other sentencings can be challenging. There are, sadly, alarge number of sentencings for such offending from which to choose. Accuratelyidentifying a starting point in a range between, say, 14 and 20 months' imprisonmentmay well be influenced by the terms in which sentencing notes reflect the tone of asummary of facts or, having presided at trial, the sentencing judge's impression of thedefendant's conduct. Notwithstanding the risks in doing so, an importantconsideration on sentence appeals for this type of offending is the attempt to maintainconsistency between starting points for offending of comparable levels of seriousness.[18] Harris involved an altercation between Ms Harris, who was a visitor in thepremises where the attack occurred, and her host, who had provided an EFTPOS cardwhich was declined when Ms Harris attempted to use it. She grabbed the victim bythe hair, punched her five times in the head, and pushed the victim over which causedher to hit her head on a table. Ms Harris then kicked the victim six times in the headbefore calling her son into the room, who also kicked the victim in the head. Althoughit was not a case of domestic violence, I accept Mr Meehan's submission that inassessing the relative seriousness, that is not a material distinction.[19] I agree with Mr Meehan that the offending here cannot be ranked as materiallymore serious than that in Harris. On appeal in Harris, Woolford J described theoffending as gratuitous and serious, exacerbated by the presence of multiple offendersbut being unplanned and not prolonged. He reduced the starting point from 22 months'imprisonment to 16 months.[20] In Edmondson v Police,5 Peters J substituted a starting point of 18 months'imprisonment with 14 months for domestic violence offending where the intoxicateddefendant arrived at the victim's house uninvited, pulled the victim's hair and elbowed4 Harris v R, above n 3.5 Edmondson v Police, above n 3.her in the eye with some force. Mr Edmondson went to the kitchen, returned with aknife and threatened to cut the victim's throat if she called Police. She did call thePolice, he bent her fingers back, then retrieved a carving fork from the kitchen andstabbed her in the lip.[21] Counsel disagreed on how the offending in Edmondson should be ranked,when compared with Mr Hohua's violence. Mr Meehan treated Edmondson as moreserious; Mr Shaw treated Mr Hohua's offending as more serious. The comparisonillustrates how difficult the evaluation of relevant features can be. The violence inEdmondson was pre-meditated and the two weapons involved were far more likely tocause serious harm. The gravity of the actual violence, however, was less, although asplit to the back of the head and a cut lip are both material injuries. Mr Hohua'soffending is marginally more serious because it was prolonged and involved kicks tothe head.[22] In Taingahue v Police,6 Miller J reduced the starting point from 18 months'imprisonment to 12 months for assault with intent to injure. The offending comprisedMr Taingahue punching his wife in the face whilst they both sat in the car, punchingher in the back of the head three times when she turned away, grabbing her hair andpunching her several more times in the face. He then followed her out of the car, againgrabbing her by the hair and pulling her to the ground. I consider this offending to beslightly less serious, mostly due to the presence of kicking in Mr Hohua's case. I notethat in Taingahue the charge was different and there was no weapon, but do notconsider these matters materially alter the assessment of similarity.[23] In Mohib v Police,7 the defendant slapped the victim while watching a film andthreatened that he would "finish this after the movie". He subsequently made good onthe threat by retrieving a hammer from another room and repeatedly hitting the victimwith it in the head, arms and legs, during which time she begged for her life. Thatoffending attracted a 15 month starting point, with a three month uplift for the initialslap. That sentence was not altered on appeal. That offending involved far moreserious use of a weapon, and a meaningful extent of pre-meditation. Taken overall, it6 Taingahue v Police, above n 3.7 Mohib v Police, above n 3.could be seen as slightly more serious, so that the present offending would attract amargin less than 18 months.[24] In ranking the seriousness of the domestic violence offending in Mr Hohua'scase, I accept that a starting point of 16 months' imprisonment would have beensufficient and would fit within the comparison that can be made of the relativeseriousness in those other cases.[25] Mr Meehan did not challenge any of the other components of the final startingpoint as constructed by the Judge. That approach is reasonable and there do not appearto be valid grounds for criticism. Accordingly, the challenge would result in a reducedtotal starting point from 38 to 36 months' imprisonment.[26] In applying the totality principle, the Judge had made a reduction of sevenmonths from his starting point of 38 months. Considering a reduction for the totalityprinciple is governed by s 85(2) of the Sentencing Act 2002, which provides:85 Court to consider totality of offending(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.[27] Such reductions involve an evaluative consideration of the gravity of theoverall offending. If the length of one of the sentences to be served cumulatively isreduced, the same level of reduction for totality cannot automatically apply withoutreconsidering the gravity of the overall offending.[28] Mr Meehan accepted a fresh evaluative assessment would be required if hemade out the appropriateness of a lower starting point for the domestic violenceoffending. On one view, if the Judge had erred in setting a starting point for thedomestic violence offending, then it should be recognised that the Judge's assessmentof the appropriate totality reduction was also in error by the extent to which heattributed an excessive starting point for the domestic violence offending.[29] The appeal has real significance for Mr Hohua because a reduction of three ormore months in the end sentence would bring the term to 24 months or less, whichwould constitute a short sentence of imprisonment. At that level, Mr Hohua wouldqualify for automatic release after serving one half of the sentence, rather than, as ispresently the case, being dependent on an assessment of entitlement to parole.[30] In this case I do consider that it is appropriate to maintain the same extent ofreduction for totality. That reduces the end sentence from 27 months to 25 months'imprisonment. Such an outcome does not meet the aim of achieving a sentence ofshort duration. Further, it raises the question as to whether a reduction of two monthsin a sentence of 27 months should be ordered when it may be vulnerable to criticismas tinkering with a carefully constructed and relatively complex sentencing exercisethat confronted the Judge.[31] In the end, I am satisfied that the appeal should succeed to the extent ofreducing the component of the sentence for the domestic violence from 18 to16 months' imprisonment, and thereafter with all the same additions and reductionsthat were adopted by the sentencing Judge. Having constructed the sentences on thebasis of cumulative terms for the burglary and other dishonesty offending, the Judgeimposed a sentence of two years and three months' imprisonment on the lead chargeof assault with a weapon, with all other sentences, including that for burglary of16 months' imprisonment, to be served concurrently.[32] Given that manner of dealing with it, the only alteration that is required is toquash the sentence of two years and three months' imprisonment for assault with aweapon and substitute it with a sentence of two years and one month's imprisonment.The sentences for all the remaining convictions are unchanged and all the sentencesremain to be served concurrently.[33] By way of postscript, I note my discussion with counsel during the hearingabout the possible relevance of the length of the sentence, which has been the subjectof this appeal, to the District Court's subsequent imposition of a further term of fourmonths' imprisonment, to be served concurrently. I am satisfied that the length of thesentence that has now been successfully appealed was not relevant to the outcome inthe subsequent sentencing. That circumstance does not assume any relevance inresolving the present appeal.Dobson JSolicitors:Public Defence Service, Wellington for appellantCrown Solicitor, Wellington for respondent