HOUKAMAU v NEW ZEALAND POLICE [2019] NZHC 2743

HOUKAMAU v NEW ZEALAND POLICE [2019] NZHC 2743 [15 October 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2019-416-15[2019] NZHC 2743BETWEEN DAVID MARSDEN HOUKAMAUAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2019Counsel: V L Thorpe for AppellantL M Marshall for RespondentJudgment: 15 October 2019Reasons: 25 October 2019JUDGMENT OF THOMAS J[1] Mr Houkamau appeals against his sentence of seven and a half months' homedetention for strangulation1 and assault on a person in a family relationship,2 imposedon 22 August 2019 in the District Court at Ruatoria.3[2] I gave a results judgment at the hearing on 15 October 2019.4 I quashed thesentence of home detention and substituted 250 hours' community work and12 months' supervision. I now give my reasons.1 Crimes Act 1961, s 189A; maximum penalty seven years' imprisonment.2 Section 194A; maximum penalty two years' imprisonment.3 Police v Houkamau [2019] NZDC 16637.4 Houkamau v Police [2019] NZHC 2624.The offending[3] Mr Houkamau had been in a relationship with the victim for about three yearsat the time of his offending, although they lived at different addresses.[4] At about 1.00 am on 1 January 2019, Mr Houkamau was at his home addressin Hicks Bay with the victim. They had been out drinking and celebrating New Year.Mr Houkamau began calling the victim offensive names and a verbal argumentensued.[5] Mr Houkamau approached the victim, who was lying on a couch. He grabbedher by her clothing with both of his hands and shoved her out the front door of thehouse. He then punched her once in the forehead and began choking her by puttingboth his hands around her neck and squeezing. The victim tried unsuccessfully to pullhis hands off her throat and was finding it difficult to breathe. She then asked him tolet go of her throat. Mr Houkamau continued to choke the victim for a short periodbefore shoving her back into the ground, causing her neck to hit the wooden edgingaround the garden.[6] When interviewed by police, Mr Houkamau admitted choking the victim andsaid "he was just trying to shut her flippin' mouth up". He insisted the choking didnot last longer than a minute.[7] The victim received medical attention two days after the incident as herforehead, shoulder and throat were still sore.Personal circumstances[8] Mr Houkamau was 62 years old at the time of sentencing. He has recentlybeen employed as a fencer. He has four historic convictions, two of which are forassault. The first assault occurred 35 years ago and the second occurred 25 years ago(when he was 37 years old). Mr Houkamau has never served a community-basedsentence or a sentence of imprisonment. His earlier assaults resulted in a fine and anorder to come up for sentence if called upon.[9] Two pre-sentence reports were prepared for the purpose of sentencing. Thefirst report explained Mr Houkamau has resided in Hicks Bay for most of his life andhe has a high level of responsibility for taking care of his whānau, who also reside inthis remote area. Mr Houkamau has responsibility for managing extensive whānauland and avidly engages in marae-based activities. Mr Houkamau has supportiverelationships with his whānau that are a positive influence on him. He deniedconsuming illicit drugs and described his alcohol use as minimal, although heacknowledged that alcohol played a role in his offending.[10] The probation officer recorded that Mr Houkamau and the victim remainedtogether. Mr Houkamau acknowledged that his relationship with the victim was"volatile at times" and that his use of violence was unacceptable. He maintained thevictim's behaviour when using alcohol contributed to any volatility in the relationship.Mr Houkamau said he was highly motivated to engage in restorative justice.[11] The probation officer noted Mr Houkamau had never received a rehabilitativesentence. Mr Houkamau had himself engaged with Tauawhi Men's Group, whichdeals with family violence. The probation officer considered Mr Houkamau had therelevant supports in place from his immediate whānau to assist him with making betterdecisions in the future. The probation officer recommended a sentence of supervisionwith special conditions to undertake alcohol counselling and an approved familyviolence programme.[12] The report noted that electronic monitoring was unavailable in the Hicks Bayarea for technical reasons.[13] The second pre-sentence report was provided to explore further the possibilityof electronic monitoring. Mr Houkamau had proposed an alternative address inGisborne, where his sister resided with three other members of their family. Theaddress and occupants were assessed as suitable. A sentence of community detentionand supervision was recommended.Mr Houkamau and the victim[14] A restorative justice conference took place. Mr Houkamau apologised to thevictim, acknowledging that if he and the victim argued in the future, he would have toleave, even if it meant leaving his own house. The victim accepted his apology.Mr Houkamau undertook to continue to work with Tauawhi until his counselling wascompleted and that he would explore options for establishing a support team in thelocality, including working with the local police.[15] By the time of the restorative justice conference, Mr Houkamau had ceasedusing alcohol.[16] In her victim impact statement, the victim discussed her feeling of helplessnessduring the offending because she was unable to defend herself, saying she was prettyfrightened. She acknowledged that she would remain friends with Mr Houkamau butwanted him held accountable.[17] The victim provided additional views through the Court victim advisor priorto sentencing. She said the Court process had been hard on both her and Mr Houkamauand that her mokopuna had missed having him around as they regard him as their papa.The victim is the main carer for her mother and described her difficulty in taking careof the things Mr Houkamau would usually do for her. Mr Houkamau usually helpeda lot around her house, gathering wood and looking after her herd of cows. The victimsaid both her and her mother relied a lot on Mr Houkamau's help so they were findingit hard to cope.[18] The victim confirmed she wanted to continue a relationship withMr Houkamau but wanted him to undergo counselling to address anger management,particularly when drinking. She confirmed she had no concerns for her safety and thatshe would not hesitate to call the police again in the future. She did not want aprotection order.District Court decision[19] The Judge adopted the strangulation charge as the lead charge and was guidedby the recent decision of Cooke J in Ackland v Police in setting the starting point.5 Heconsidered Mr Houkamau's offending was less serious than in Ackland v Policebecause the victim did not become unconsciousness and no children were involved.On the other hand, the offending took place within the home and occurred followingan earlier assault. Overall the Judge considered the offending fell within the lowerend of the second band in Ackland v Police. The Judge adopted a starting point of24 months' imprisonment to account for both charges, saying he was avoiding doublecounting the assault.[20] The Judge allowed a four-month discount for remorse, saying the genuinenessof Mr Houkamau's remorse was reflected both in the pre-sentence report and hisengagement in restorative justice. The Judge recorded Mr Houkamau participatedfully at the conference and there appeared to be an acceptance of his apology. Thesefactors were described as "significant".[21] The Judge allowed a full 25 per cent discount for the early guilty plea, resultingin an end sentence of 15 months' imprisonment. He then converted that to a sentenceof seven and a half months' home detention. In reaching that conclusion, the Judgewas persuaded Mr Houkamau's high level of community and family support and hisemployment prospects meant he had strong prospects of successful rehabilitation. TheJudge described Mr Houkamau as "essentially regarded highly by the localcommunity".[22] The Judge acknowledged the sentence of home detention would createdifficulties for Mr Houkamau in fulfilling his community responsibilities in the EastCoast area but said a sentence of home detention was the least restrictive outcome. Heemphasised the seriousness of the new strangulation offence and the need fordeterrence and denunciation. The Judge did not accept a sentence of supervision andcommunity work should be imposed.5 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.Approach on appeal[23] Section 250 of the Criminal Procedure Act 2011 requires the Court to allow anappeal against sentence if, for any reason, there is an error in the sentence imposed onconviction and a different sentence should be imposed. The discretion to vary asentence is not unfettered and the appellate court does not embark upon the sentencingafresh. There must be an error vitiating the exercise of the original sentencingdiscretion. In short, the appellate court must proceed on an "error principle".6 Thefocus is on whether the end sentence is within the acceptable range.Grounds of appeal[24] Mr Houkamau appealed against his convictions on several grounds, which canbe distilled to four main points:(a) a further discount of three or four months was available to recogniseMr Houkamau's rehabilitative potential;(b) the Judge ought to have applied the guilty plea discount additivelyrather than multiplicatively;(c) the Judge failed to take into account the victim's view when adopting asentence of home detention; and(d) the sentence was disproportionately severe and failed to account forMr Houkamau's whānau and community background because itrequired him to move away from his home in Hicks Bay.[25] Mr Houkamau primarily sought a sentence of community work andsupervision, but in the alternative a sentence of home detention without electronicmonitoring at his home address in Hicks Bay.[26] On the day prior to the appeal hearing, I requested that Mr Houkamau'sprobation officer attend the appeal. The purpose of the request was to seek his views6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29] and [35].as to whether home detention at Mr Houkamau's Hicks Bay address could take placewithout electronic monitoring. It then transpired that the Hicks Bay address is nowfeasible for electronic monitoring, given recent changes to the GPS constellation inthe area. On that basis, the respondent did not oppose Mr Houkamau serving homedetention at his Hicks Bay address.Fresh evidence[27] Fresh evidence was provided to the Court by way of a medical certificate dated2 October 2019 relating to Mr Houkamau. The doctor recorded a deterioration inMr Houkamau's mental health. This was attributed to his worry about being unableto care for his partner's animals and his whānau property, his mother's recent deathand the fact of his brother suffering terminal cancer. Mr Houkamau was described asdepressed and crying.Starting point[28] Mr Houkamau did not object to the starting point adopted by the Judge and theCrown submitted the starting point was appropriate.[29] Both counsel relied on the recent High Court decision, also relied on by theJudge, of Ackland v Police.7 In that decision, Cooke J was mindful that the appealthen before him was the first High Court appeal from a decision of the District Courtimposing a sentence for the relatively new charge of strangulation. He thereforesought to include some comments designed to be of general assistance to the DistrictCourt in the future. Cooke J traversed the background to the introduction of the newoffence, noting the 2016 Law Commission report, Strangulation: The Case for a NewOffence.8 The Commission noted two factors distinguish strangulation from otherforms of family violence: it is an important risk factor for a future fatal attack by theperpetrator and characteristically leaves few marks or signs. The Commissiondescribed those factors as presenting unique challenges for the prosecution,contributing to the danger of strangulation being underestimated and perpetrators not7 Ackland v Police, above n 5.8 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).being held appropriately accountable.9 The Commission proposed a new offence,reasoning that strangulation that did not result in visible injuries was often charged as"male assaults female" with a maximum penalty of two years' imprisonment. That, inthe Commission's view, did not adequately reflect the seriousness of strangulation andled to its conclusion there was a gap in the current framework of offences and a specificoffence was justified.10[30] Having considered the Commission's report as well as decisions on sentencingfor other offences involving strangulation, Cooke J identified certain key factorsrelevant to the assessment of the seriousness of offending: strangulation in the contextof a domestic or intimate relationship/vulnerability of the victim; threats, particularlythreats to kill; loss of consciousness; multiple events; other violence/injury; significantimpact on others; and breach of a protection order.[31] Cooke J acknowledged this was a first attempt at identifying materialconsiderations and was clearly capable of amendment or refinement. I do not disagreewith the factors identified by Cooke J. I would, however, emphasise that, in respectof the first factor, strangulation in the context of a domestic or intimate relationship,the focus of the Commission's report was on strangulation being used as a means ofachieving coercion and control over the victim. That, it seems to me, is at the heart ofthe Commission's report and the principal rationale for the new offence. Indeed, theCommission says:11It is the terror that results from strangulation that is at the heart of this kind ofcriminal contact. That terror is likely to seriously affect all aspects of thevictim's life. In our view, the terror that results from this "worst class of case"is greater than the harm of a minor injury and at least equivalent to a seriousphysical injury.[32] While recognising the complexity of the environments in which this sort ofoffending occurs and questioning whether tariff guidelines would be appropriate forthis type of offending, Cooke J suggested three bands that could be of some assistancein sentencing. Essentially these involved offending at the lower end, with a startingpoint of six months to two years' imprisonment; the mid-range with starting points of9 At [1.3].10 At [4.56].11 At [5.44].two to five years, and the highest range involving starting points of five to seven years'imprisonment.12 Those bands are helpful but, as Cooke J stressed, it is not the numberof the factors to which he referred that is important but the overall nature andculpability of the offending.13[33] The purpose of my discussing Ackland v Police is to emphasise the importanceof judges (and counsel) carefully considering the facts and context of the offending.Family violence is an extremely complex area and care is needed not to focus unduly,or only, on what might be described as key factors, falling into the trap of a somewhatmathematical approach to the exercise rather than a proper consideration of thesubtleties of the offending. Indeed, the Commission's report and rationale for the newoffence highlights the subtleties that are often involved in coercive and controllingbehaviour, of which strangulation often forms part.[34] Returning then to the offending in the present appeal. In setting the startingpoint, the Judge noted that the offending took place in the home and the offendingfollowed an earlier assault. That first comment requires some qualification. Theoffending took place in Mr Houkamau's home, but the victim did not live there.Indeed, it does not appear to be in dispute that part of Mr Houkamau's frustrationconcerned the fact that the victim would not leave his home.[35] The Judge then described the offending as falling within the lower end of thesecond band in Ackland v Police. Equally, it could have been described as the upperend of the lowest band. This, to my mind, demonstrates the way in which banding canbe subject to manipulation. By characterising the offending as in the middle of threebands, the assessment of the seriousness of the offending is inevitably perceived ashigher. This, then, contributes to the way in which arguments are presented on appeal,the case is used as a precedent and matters such as the commutation of a nominalstarting point into the end sentence are influenced. All of these observations are12 I agree with Cooke J that strangulation cases involving more serious offending, such as that underss 188 or 189 of the Crimes Act 1961, will continue to provide assistance in assessing startingpoints. The increasing awareness of the adverse effects of strangulation and the context in whichit often occurs will also assist in informing starting points.13 Akland v Police, above n 5, at [31].intended to emphasise the care with which these types of analyses should beundertaken.[36] Standing back, I accept that a starting point of two years, although it could beconsidered stern, was available to the Judge and cannot be considered an error.Discount for rehabilitative potential[37] Ms Thorpe, counsel for Mr Houkamau, submitted the Judge took into accountMr Houkamau's rehabilitative potential when considering whether to impose asentence of home detention instead of a sentence of imprisonment but failed to takethose same factors into account in mitigation. Those factors included Mr Houkamau'shigh level of support amongst his whānau and community, his prospects ofemployment and his whānau and community responsibilities.[38] Ms Marshall, for the Crown, addressed this submission together with the guiltyplea discount, taking the position the overall discount of nine months was well withinrange, so the end sentence was not manifestly excessive.[39] I agree that, although the Judge turned his mind to Mr Houkamau's personalcircumstances, this was in the context of assessing whether home detention was theappropriate sentence (as opposed to imprisonment) rather than whether there shouldbe any further discount for mitigating factors. There was certainly scope for the Judgeto provide a further discount for rehabilitative potential. In particular, Mr Houkamauself-referred to anger management counselling and had given up alcohol. The courtshave consistently upheld the ability of sentencing judges to make allowances forrehabilitative potential where that is demonstrated by positive actions.14[40] In addition to rehabilitative prospects, I consider that Mr Houkamau'scontribution to his whānau/community and the last 25 years of his life having beenoffence free are matters which could also have been taken into account in mitigation.That is, Mr Houkamau is a man clearly valued by his community and who contributessignificantly to it.14 See, for instance, Mallett v R [2014] NZCA 39; and Kerr v R [2017] NZCA 498.[41] The result is that there were additional discounts in the region of four monthsthat were available to Mr Houkamau but which were not taken into account. In thosecircumstances, there was an error.Guilty plea discount[42] Ms Thorpe's submission on this ground relied on the decision ofSimon France J in Reweti v R.15 She submitted the Supreme Court's decision inHessell v R does not mandate the use of the typical three-stage approach tosentencing.16 She argued s 8(g) of the Sentencing Act 2002, which requires the Courtto impose the least restrictive outcome that is appropriate in the circumstances,supports the general adoption of additive discounts for guilty pleas as opposed tomultiplicative discounts.[43] While Ms Thorpe correctly pointed out that consistency in sentencing couldequally be achieved if judges consistently applied the guilty plea discount additively,the simple fact is that is not how it is currently done in the vast majority of cases. Awholesale change in approach of the kind Ms Thorpe advocates for would requirehigher appellate direction than this Court can provide. Unless that occurs, theapproach adopted in Reweti v R is properly reserved for use in exceptional cases whereit is warranted to achieve a particular purpose. Haphazard adoption of the Reweti v Rapproach risks the introduction of systemic inconsistency into sentencing.17[44] Furthermore, the Reweti v R approach has recently been considered inR (CA217/18) v R, where the Court of Appeal saw "no reason to depart from theconventional Hessell methodology, which has more recently been endorsed by [theCourt of Appeal] in R v Clifford".18[45] Accordingly, the Judge did not err in the way he applied Mr Houkamau's guiltyplea discount.15 Reweti v R [2018] NZHC 809.16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.17 Sentencing Act 2002, s 8(e); and Hessell v R, above n 16, at [11].18 R (CA217/18) [2018] NZCA 582, citing R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].Failure to take into account the victim's views[46] The victim's views are outlined above. Ms Thorpe submitted the Judge oughtto have taken the victim's views into account when determining the appropriate typeof sentencing for Mr Houkamau. She referred to s 8(f) of the Sentencing Act, whichrequires the sentencing judge to "take into account any information provided to thecourt concerning the effect of the offending on the victim".[47] The difficulties described by the victim to the Victims Advisor are effects ofthe sentence, not effects of the offending. The effects of the offending, which wererelevant to assessing the length of the sentence, are properly limited to those describedin the victim impact statement. The consequences identified by the victim are,however, highly relevant to determining the type of sentence Mr Houkamau shouldserve.[48] In Iona v R, the Court of Appeal confirmed a victim's views as to theappropriate sentence are not determinative, although they may be considered as oneof a number of factors.19 The sentencing exercise involves a wider dimension thansimply the position as between the victim and the offender.20[49] In saying that, however, to my mind, the views of the victim in this case needto be given serious consideration. Family violence is an extremely complicated andnuanced area. It would be counterproductive were victims discouraged from reportingfamily violence because the sentence imposed on the offender has effectively madetheir life worse rather than better. These comments are, of course, subject to theprimary obligation of the Court to protect the safety of the victim and the purposes andprinciples of sentencing. Importantly, there was no indication the victim in this casehad been coerced to express the view she did or that she in any way felt pressured toexpress that view.[50] In this case, the victim has made it clear that she intends to continue in arelationship with Mr Houkamau, her primary hope is that he receives counselling to19 Iona v R CA416/02 at [23].20 R v Clotworthy (1998) 15 CRNZ 651 (CA) at 659.ensure this type of offending is not repeated and that she (and her mother) dependupon Mr Houkamau for help. To deprive her of that help effectively punishes her, thevictim. This is also relevant to the next ground of appeal.Requirement to move away from Hicks Bay[51] In addition to the difficulties faced by the victim, as noted above,Mr Houkamau is struggling with living away from his community in Hicks Bay.Ms Thorpe advanced two submissions as to why the sentencing Judge was required totake this factor into account when deciding to impose a sentence of home detention,which could not be served in Hicks Bay. First, she argued Mr Houkamau's particularcircumstances meant the sentence would be disproportionately severe because itwould require him to live outside his community.21 Secondly, she argued the Judgefailed to take into account Mr Houkamau's personal, whānau, community and culturalbackground, namely his strong connection with the Hicks Bay community.22[52] In Gao v R, the Court of Appeal accepted that "the effects of dislocation fromfamily and culture may result in a sentence being disproportionately severe on aforeign national".23 Clearly the severity of dislocation suffered by a foreign nationalin a New Zealand prison is an order of magnitude greater than the dislocation affectingMr Houkamau, who is living with his sister, only two hours' drive from his home. Insaying that, however, again context must be considered. When an offender comesfrom a rural community with limited public transport options and when he and hiswhānau might be in relatively straitened financial circumstances, the effects of even asmall distance of dislocation can be severe. They should at least be considered.[53] The purpose of s 8(h) of the Sentencing Act is not to require a lesser sentencebecause of the personal, family, whānau, community and cultural background of theoffender. That provision is squarely focused on how "a sentence or other means ofdealing with the offender with a partly or wholly rehabilitative purpose" shouldaccommodate the offender's background. That is a relevant consideration in this casewhen the pre-sentence report, restorative justice report and the Judge all recognised21 Sentencing Act 2002, s 8(h).22 Section 8(i).23 Gao v R [2019] NZCA 69 at [21].Mr Houkamau's strong rehabilitative motivation and prospects. Mr Houkamau'scommunity and whānau circumstances are clearly integral to this and should have beentaken into account.[54] In any event, as noted above, by the time the appeal was heard, electronicmonitoring was feasible at Mr Houkamau's Hicks Bay home address. For that reason,when reassessing the sentence, I will not take the requirement to move from HicksBay into account.What is the appropriate sentence?[55] The Judge was satisfied that a sentence of home detention was the leastrestrictive outcome in the context of the very serious offence of strangulation.[56] Mr Houkamau has served approximately six weeks of his home detentionsentence in Gisborne. As noted, the Court has been provided with evidence thatMr Houkamau's removal from his community has had a considerable effect on him,including on his mental health. I am in no doubt it has hindered his rehabilitation and,as discussed, caused hardship to the victim.[57] Now that electronic monitoring is available at Hicks Bay, the question iswhether the amended sentence should be served by home detention at that address.With the additional discounts which I have concluded should have been allowed, theresulting nominal sentence of 12 months' imprisonment would equate to six monthsof home detention. Mr Houkamau has already served one and a half months inGisborne. This leaves a nominal sentence of four and a half months' home detentionremaining.[58] I was considerably assisted by the presence of Mr Houkamau's probationofficer at the appeal hearing. He advised me that it would be very difficult for a homedetention sentence to accommodate Mr Houkamau's work on his whānau's land aswell as assistance to the victim. He suggested a sentence of community detentionmight be appropriate. In my view, however, that does not accord with the guidanceon the use of a sentence of community detention in the circumstances of this particularcase.24 Furthermore, I have concerns whether restricting Mr Houkamau to his homeaddress when he is still in the relationship with the victim, in the circumstances of theoffending, is appropriate. That is, the offending occurred when the victim refused toleave Mr Houkamau's address. He has now realised that, in that situation, he himselfshould leave his home address. It would be counterproductive to impose on him asentence that would prevent that.[59] I am mindful of the hierarchy of sentencing.25 In sentencing, the Court mustimpose the least restrictive outcome. Community based sentences of community workand supervision are lower in the hierarchy than intensive supervision and communitydetention, and home detention. But those sentences do serve a deterrent anddenunciation purpose. A sentence of community work, particularly a lengthy one, isa significant sentence. It requires ongoing commitment from an offender, as well asgiving a positive return to the community.[60] In the present case, Ms Marshall responsibly accepted that the hierarchy is notdivorced from reality and that the Court was required to take a holistic approach toensure the purposes and principles of sentencing were met. She accepted that, whilethe offending was clearly serious, the best interests of the community and the victimcould be met by a sentence other than home detention.[61] I regard this case as something of an outlier although, in saying that, it simplyserves to demonstrate that each case and each offender must be considered in theirparticular circumstances. Having been offence free for the last 25 years, significantlycontributing to his local community and whānau and to the wellbeing of the victim, Iam satisfied that the purposes and principles of sentencing are met by a lengthy termof community work and supervision. This will enable Mr Houkamau to contribute tothe community, be held accountable, and be rehabilitated while sending a clearmessage of denunciation and deterrence to his own community. It will also meet theconcerns and needs of the victim.24 Sentencing Act 2002, s 69C.25 Section 10A.Result[62] For these reasons, the appeal was allowed. The sentence of home detentionwas quashed and replaced by a sentence of 250 hours of community work and12 months' supervision. The conditions of supervision are those recommended in thepre-sentence report dated 26 April 2019, that is to attend and complete any requiredalcohol and drug counselling and an appropriate family violence programme.Thomas JSolicitors:Crown Solicitor's Office, Gisborne