TAITAPANUI v R [2021] NZCA 161

TAITAPANUI v R [2021] NZCA 161 [5 May 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA229/2020[2021] NZCA 161BETWEEN DAVID TAITAPANUIAppellantAND THE QUEENRespondentHearing: 15 March 2021Court: Clifford, Brewer and Dunningham JJCounsel: N P Chisnall for AppellantC Ure for RespondentJudgment: 5 May 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)Introduction[1] The appellant, David Taitapanui appeals his sentence of 10 years andfour months' imprisonment imposed on him by Judge Rea at the District Courtat Napier on 28 April 2020.1 He submits the sentence is manifestly excessive and1 R v Taitapanui [2020] NZDC 7056 [Judgment under appeal].should be reduced to between eight and eight and a half years' imprisonment.A corresponding reduction in the length of the minimum period of imprisonment(MPI) is also sought.Factual background[2] The appellant and the victim met and began a relationship in early 2016.Soon after moving in together, he began offending against her doing so on variousoccasions between April 2016 and August 2018. The appellant pleaded guilty to19 charges. These included two charges of sexual violation by rape,2 two charges ofsexual violation by unlawful sexual connection,3 two charges of assault with intent toinjure,4 six charges of male assaults female,5 three charges of injuring with intentto injure,6 and four charges of breach of a protection order which had been served onhim in August 2017.7April 2016[3] The first group of charges relate to offending which took place at the familyhome in April 2016. The appellant pushed a door into the victim, hitting her inthe face. He then punched her and, after the victim fell to the ground, punched andkicked her four or five times to the body. The appellant picked the victim up, threwher into a wardrobe, and then stomped on her ribs. He then threw the victim onthe bed. The victim by that point was crying and had a bloody nose. The appellantapologised to the victim and asked for oral sex. He placed his penis in her mouth andthen raped her. Throughout this, he was verbally abusive, calling her a "bitch" anda "whore". As a result, the appellant was charged with a representative charge ofassault with intent to injure, sexual violation by unlawful sexual connection and sexualviolation by rape.2 Crimes Act 1961, ss 128(1)(a) and 128B(1).3 Sections 128(1)(b) and 128B(1).4 Section 193.5 Section 194(b).6 Section 189(2).7 Domestic Violence Act 1995, ss 19(1)(a) and (b), 49(1)(b) and 49(3).July 2016[4] The next offending occurred in early July 2016. The appellant returned homein the early hours of the morning and demanded sex. The victim was angry thatthe appellant had been out all night and did not want sex. He then raped her and aftera few minutes demanded anal sex; when that was refused, he then punched the victimon the side of the face and forced his penis into her anus. Whenever the victim toldhim to stop, the appellant punched her to the back of her head. This happened aboutsix times. The appellant grabbed her hair and pulled it, forcing her head back whichmade it difficult for her to breathe. He told her to handle it and moan like she wasenjoying it. As a result, the appellant was charged with a representative charge of maleassaults female and sexual violation by unlawful sexual connection.[5] Later that same month, the appellant walked up to the victim and punched herin the jaw, explaining this was because she had asked his 11-year old daughter to puther washing away. The victim said she could not eat or chew properly for two weeksand her jaw was swollen. The appellant was charged with injuring with intentto injure.[6] The next assault, occurring approximately a week later, was described bythe victim as the worst incident of violence. The appellant came in from outside andpunched the victim with his fist, hitting her in the right eye. The punch knocked herbackwards into the kitchen where she fell on the floor. Her glasses were knocked off,the frame broken and the skin above her eye was cut. After dragging her acrossthe floor by her hair, the appellant kicked her in the face, splitting open the cut causedby the earlier punch and making her bleed profusely. When she asked for her phoneso she could call an ambulance, he refused. After about an hour, he threw the phonetowards her, although it hit the wall and came apart. After she put her phone backtogether, she called an ambulance. Six stitches were required to close the cut. In thefollowing days, the appellant did not allow her to go to the doctor to get the stitchesremoved, so she took them out herself. She now has a permanent scar above her eye.The appellant was charged with injuring with intent to injure.September 2017[7] In mid-September 2017 the victim and the appellant were attending a birthdayparty at a relative's house. The appellant was angry at a family member who wanteda loan, so he gave his money card to the victim and told her to put it in her van.When she was in the van, he walked up to it asking her where his "fucking card" was.She told him it was in the glovebox, then got out of the van and locked it and wentinside to get the children. He followed her and cornered her in the kitchen. He thengrabbed hold of her hair pulling it out in clumps. Members of the appellant's familyintervened, and the victim left and stayed at a motel that night.[8] She spoke to the appellant the following day at home where, initially,he seemed calm. At his request, she drove him to a relative's address, where sheaccidentally backed into another car while attempting to jumpstart another car.The appellant walked up to the driver's window and punched the victim with full forceto the side of the face, calling her a "fucking idiot". Her top tooth was knocked outand her glasses were smashed. She had a cut to her right eyelid just belowher eyebrow. She went to the hospital but left before receiving treatment. As a resultof these events, the appellant was charged with a representative charges of injuringwith intent to injure and breaching the protection order issued only a month earlier.October 2017[9] In the early morning on 22 October 2017 the victim was asleep at her home.She was woken by two punches to her head and two punches to her ribs. The appellantsaid he punched her because he had wanted to take his children to the A & P show andcomplained about having to go to Taranaki the previous day with the victim. This ledto a charge of male assaults female and of breach of the protection order.[10] A couple of days later, when angry with the victim, the appellant grabbed herby the throat and squeezed it with his hand causing her difficulty breathing.The appellant's mother, who was present, intervened. She grabbed his arm and toldhim to stop and to let the victim go, but he shoved her away hurting her wrist. He wascharged with male assaults female in relation to his mother and with male assaultsfemale and breach of a protection order in relation to the victim.Representative charges for April 2016 – June 2018[11] Between April 2016 and late 2017, the appellant punched and kicked the victim"[e]very few days" and would also have sex with her against her will. She said it feltlike every time the appellant got angry with her, he would force her to have sexwith him. The sex was painful and violent.[12] In November 2017 the appellant went to prison on unrelated charges ofbreaching a protection order.[13] On 11 June 2018 the appellant was released from prison and returned to thevictim's house. Again, it is alleged that he punched and kicked her every day. He alsohad sexual intercourse with her against her will.[14] These allegations led to two representative charges of male assaults female(relating to the time periods before and after imprisonment) and a representativecharge of sexual violation by rape.August 2018[15] On 12 August 2018 the appellant was at the victim's home. The victim heardhim yelling and smashing plates because the dishes were not done. She left the housefor a short time but then returned with the appellant's cousin and her children.The appellant began to verbally abuse the victim, telling her he was going to kill her.He grabbed her by the neck and pulled her close, squeezing her throat and making itdifficult for her to breathe. As he squeezed her neck he said "you dumb cunt,I'm going to snap your neck". He held her throat that way for about 10 seconds.The appellant's uncle and nephew managed to intervene and get the appellant awayfrom the victim. This led to a charge of assault with intent to injure and a charge ofbreach of a protection order.[16] The charges were laid in August and September 2018. In due course, reportswere obtained to determine whether the appellant was fit to stand trial. Once that issuewas resolved, the appellant sought a sentence indication. That was given on28 January 2020, and the Judge indicated an end sentence of 12 years nine months'imprisonment. The appellant accepted the sentence indication and pleaded guiltyto the charges.The sentencing decision[17] In sentencing the appellant, the Judge described the offending as inflicting"a reign of terror" over the victim for a period of more than two years.8 He thenreferred back to, and adopted, the starting point of 16 years' imprisonment he reachedin his sentencing indication.9 That starting point comprised 13 years' imprisonmentfor the sexual offending which was then uplifted by three years to account for theviolence, but moderated by one year to account for totality. That was then uplifted byone year for previous relevant convictions to reach an overall starting point for theoffending of 16 years' imprisonment.[18] The Judge acknowledged that the appellant had suffered a head injury as aresult of an accident in 2010 which resulted in "increasing difficulties with managinghis anger", although noting that prior to the accident he already displayed"mood difficulties, emotional dysregulation, suicidal ideation, anger issues, violence,poor impulse control, conflictual relationships and perhaps most importantly,substance misuse".10[19] The Judge referred to the cultural report prepared under s 27 of theSentencing Act 2002 but observed:11There is not much in it really that explains why somebody like Mr Taitapanuiwould subject his partner to nearly two and a half years of physical and sexualviolence.[20] He also noted the probation officer's report which indicated that the appellantwas prepared to address the situation he finds himself in, although it was consideredhighly likely he would offend again.128 Judgment under appeal, above n 1, at [2].9 At [12].10 At [3].11 At [8].12 At [4].[21] In the end, the Judge concluded:13When I look at the effect of his brain injury, the cultural features,the preparedness, at least at this stage, to engage in rehabilitation and someremorse, I am prepared to reduce the overall sentence by 15 percent andI consider that that is generous in the circumstances, bearing in mind the levelof offending and Mr Taitapanui's past record.That discount reduced the sentence to 13 years. He then gave a 20 per cent deductionfor the guilty pleas to reach an end sentence of 10 years and four months'imprisonment on the sexual violation charges, with concurrent sentences on thebalance of the charges.14[22] Finally, noting the need to prioritise the sentencing principle of deterrence andto protect the community, the Judge imposed an MPI of five years' imprisonment,15being slightly less than half the sentence.16Grounds of appeal[23] The appellant says the Judge erred in two material ways and, as a consequence,a different sentence should be imposed.17 First, it is submitted the Judge applied anexcessive uplift to account for the appellant's previous convictions for violence.Secondly — and the primary focus of the appeal — the appellant challenges theadequacy of the 15 per cent global discount given for mitigating factors.Was the uplift for the appellant's previous convictions too high?[24] Section 9(1)(j) of the Sentencing Act requires a court to take into account thenumber, seriousness, date, relevance and nature of an offender's previous convictions.Previous convictions are potentially relevant in three ways:18(a) as demonstrating the need for a greater deterrent response;13 At [12].14 At [13].15 Sentencing Act 2002, s 86.16 At [25].17 Criminal Procedure Act 2011, s 250.18 Beckham v R [2012] NZCA 290 at [84], citing R v Casey [1931] NZLR 594 (CA) at 597; and R vWard [1976] 1 NZLR 588 (CA) at 591.(b) as an indicator of the risk of reoffending; and(c) as an indicator of character and culpability.[25] Mr Chisnall submits that any uplift for prior offending must be proportional,otherwise it will simply constitute "double punishment". He says proportionality mustbe considered at two points. First, there must be proportionality between the sentenceadopted for the offending and the uplift to account for a defendant's personalaggravating features. Secondly, there must be proportionality between the uplift andthe sentence(s) imposed for previous offending.[26] It is that second test of proportionality that Mr Chisnall says the Judge did notsatisfy in imposing the uplift of one year. While he accepted that the appellant had along list of convictions for violence, a number of which were against a domesticpartner, he pointed out that the lengthiest term of imprisonment the appellant hadpreviously received for such offending matched the uplift imposed by the Judge of oneyear. In his submission, the uplift should have been in the region of three months'imprisonment.[27] As examples, he referred us to Piper v R19 and Brown v R.20 In Piper v R, theissue was whether an uplift of two years on a two-year sentence of imprisonment fordrug dealing offending to reflect five previous convictions for drug dealing wasdisproportionate. This Court held it was and the uplift was reduced to one yearon appeal.21 Similarly, in Brown v R, this Court held that an eight-month uplift fortwo prior assault convictions was disproportionate on a sentence of two years'imprisonment, particularly where the starting point itself was at the upper end of theavailable band.22[28] We do not think these examples are anything more than the application of theprinciple that an uplift should bear a reasonable relationship to the starting point for19 Piper v R CA345/05, 12 September 2006.20 Brown v R [2014] NZCA 93.21 Piper v R, above n 19, at [10]–[11].22 Brown v R, above n 20, at [13].the current offending. Applying that measure to the present case, a 12 month uplift ona 13 year sentence — an increase of less than seven per cent — is not disproportionate.[29] However, we accept this Court has also said an uplift is unlikely to beproportionate if it exceeds the sentence imposed for the previous offending.23 But inthose cases the relevant previous offending was more limited in scope.In Orchard v R, this Court held that an uplift of six months for previous convictionswas disproportionate on charges of violence against his wife and breachinga protection order while suffering from anxiety, depression and PTSD.24 The Courtreduced the uplift to two months.25 But the offender's previous history only involvedtwo breaches of a protection order and attracted sentences of five months' homedetention and one month's imprisonment.26[30] In the present case, Mr Taitapanui's criminal history is extensive. He has fiveconvictions for male assaults female, five for breaches of protection orders and ninefor other family violence related charges which predate this offending, as well assix convictions for such offences which occurred during the period of this offending.This is in addition to many other charges of assault over a 10 year period prior tothis offending.[31] That is why we do not consider overall that an uplift of one year isdisproportionate or manifestly excessive, even though it is equivalent toMr Taitapanui's lengthiest term of imprisonment. As the Crown rightly points out:[A]nchoring the proportionality assessment to a singular instance ofsentencing doesn't properly allow for the true nature of his previous conductto be considered. Properly characterised he is a recidivist domestic violenceoffender.[32] While a court must always be cognisant of the need to avoid 'doublepunishment' in uplift cases,27 we consider that the need for deterrence is particularlystrong here. We think the fact that Mr Taitapanui reoffended against the victim in this23 Patel v R [2017] NZCA 234 at [61]; and Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at[41].24 Orchard v R, above n 23, at [40].25 At [42].26 At [41].27 New Zealand Bill of Rights Act 1990, s 26(2).case shortly after being released from prison for breaching a protection order (albeitan unrelated one) is demonstrative of that.[33] In our view, the 12-month uplift is justified by the principles underpinning theconcept of uplift — protection of the public, the need for deterrence, and the degreeto which it reflects on the offender's culpability.Did the Judge give an inadequate discount for mitigating factors?The appellant's submissions[34] The appellant submits that both of the psychologists' reports before the Judgeidentified mitigating factors for sentencing. The first report, by Dr Parsonson, referredto the traumatic brain injury the appellant suffered in 2010 which resulted in theappellant developing epilepsy. He noted that neurological testing in 2015 "indicatedcognitive processing and memory deficits". It also drew a link between the head injuryand increased criminal offending saying:Whilst there was one incident of Male Assaults Female (28.02.2006), one ofAssault Police (06.04.2006) and Common Assault (06.03.2006) and fourcharges of Family Violence related offending (01.01.2008) apparently arisingfrom the one incident, the frequency and intensity of such offending hasincreased significantly following Mr. Taitapanui's head injury in April 2010.Other offending, including unlicensed and drink-driving relate to hispost-injury impulsiveness and his unwillingness to accept that his associatedepilepsy makes him ineligible to hold a driver's licence.[35] The second report, by Ms Mathieson, stated that the appellant reported that hewas previously a calm person, but could now "go from 0 to 60 really quickly", and he"easily got frustrated, angry, and pissed off and he would start swearing". It alsoreported the appellant as saying "I'm sick of being a criminal, I'm getting too old".In respect of the head injury, Ms Mathieson noted that:[It] undoubtedly impacted on his functioning. He has poor impulse control,anger issues and emotional dysregulation. But rather than being seen asa precipitating factor to his anger, violence and relationship difficulties, it hasexacerbated difficulties that were already there. The development of epilepsy,the subsequent loss of his job and his drivers' license, and difficultiesremembering things are continuing sources of frustration for Mr Taitapanuiwho acknowledges that he responds to stressors with anger which has beenharder to control since the head injury. He also acknowledged that his dailymethamphetamine use increased his anger and emotion regulation difficulties.In these circumstances Mr Taitapanui has posed a significant risk to othersbecause of his violence towards them but also a risk to himself as heexperiences low mood and suicidal ideation.[36] Mr Chisnall submits that despite Dr Parsonson's opinion there was a causalnexus between the appellant's 2010 injury and his offending, the Judge did not takesufficient account of this. Mr Chisnall accepts that the appellant presented with acomplex amalgam of factors which had a bearing on his offending, including hispre-disposition to violence, and his longstanding addiction issues, as well as his headinjury. He also acknowledges that judges must be afforded broad discretion in orderto assess what impact a particular disorder should have on sentence outcome, given theneed to balance competing considerations including public safety. However, becausethe appellant presented as genuinely motivated to rehabilitate, he submits the Judgeerred in concluding the need to protect the public should temper the discount availablefor the head injury. Instead, a careful weighing of the competing interests should haveresulted in a reduction in the starting point of between 10 to 15 per cent.[37] Mr Chisnall also pointed to the s 27 report as identifying relevant mitigatingfactors. The report writer recorded that:Mr Taitapanui's background is characterized by poverty, alcohol and drugabuse. As a child he was moved around a lot and attended a number ofschools. According to Mr Taitapanui he spent most of the time with hiswhaangai parents and stayed for a short time with his biological mother inFlaxmere. He said he had nothing really to do with his culture growing upand was disconnected from all this.[38] Mr Chisnall submits that the appellant's upbringing directly engages theprinciples in Solicitor-General v Heta, which recognised that a wide range of discountscould apply for factors including deprivation, trauma, youth, drug and alcohol abuse,and mental health issues, particularly where there are linkages between personalcircumstances and the offending.28 In response to the Judge's conclusion that "seriousviolence must be met with denunciation and often that means that cultural reports willnot represent a significant feature in the sentencing",29 Mr Chisnall refers to Carr v R,where it was said "while the gravity of the offending might temper the extent of anydiscount allowed for such considerations, that is a different proposition from saying28 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].29 Judgment under appeal, above n 1, at [10].there should be no allowance".30 Mr Chisnall points out that in Carr v R, a 15 per centdiscount for s 27 factors was applied, despite the Court recognising that the violenceoffending was very serious.31Discussion[39] The Judge gave a global discount of 15 per cent for the effect of the appellant'sbrain injury, the issues identified in the cultural report and his preparedness, at least atthis stage, to engage in rehabilitation and some remorse. He described that discountas "generous in the circumstances bearing in mind the level of offending andMr Taitapanui's past record".32[40] We acknowledge the head injury exacerbated pre-existing difficulties for theappellant. In particular, he could no longer pursue his occupation as a shearer, norcould he hold a driver's licence. Those were sources of anger and frustration forthe appellant. That said, Ms Mathieson's report notes that his daily methamphetamineuse was also acknowledged by him to be a source of his anger and emotional regulationdifficulties. She pointed out that his cognitive functioning had returned to "pre-morbidlevels subsequent to his head injury". We also note his offending pattern was clearlyestablished before the head injury occurred.[41] Similarly, the cultural report revealed a mixture of factors in the appellant'supbringing. He had a positive relationship with his adopted father who was good tohim and taught him how to fix cars. On the other hand, he was moved around a lotand went to several different schools and began associating with anti-social peers froma young age. He left school at age 14 and by age 17, he reports starting to use crack.33By the age of 17 he was a recidivist offender and began moving in and out of thecriminal justice system. The cultural report acknowledges there was no physical ormental abuse during his childhood but does say he grew up with "poor parenting,poverty, drug taking and social deprivation".30 Carr v R [2020] NZCA 357 at [65].31 At [67].32 Judgment under appeal, above n 1, at [12].33 Although within the same report he also said he started using it when he was 21 and when he was20.[42] We accept that the cultural report discloses a background of deprivation anda degree of instability, although he had a good role model in his adopted father.However, leaving school at 14 and gravitating towards drugs and alcohol as a teenagerno doubt drove some of his offending behaviour.[43] We also acknowledge there was some embryonic expression of a desire tochange and rehabilitate himself. However, we agree with the conclusion ofthe pre-sentence report writer that his remorse is limited as he says he "has alwaysused violence to get his own way, particularly when challenged by others or if he feelsthreatened". The report writer concludes:Based on his past and current offending, and even allowing for his willingnessto address his offending behaviour as well as his remorse, which I consider tobe in part, at least, genuine, I assess that Mr Taitapanui's likelihood ofre-offending is very high as is his risk of harm to others.[44] Taking all these matters into account, they are no doubt personal mitigatingfactors and warranted a discount on sentence. However, we do not consider the overalldiscount given by the Judge was erroneous. While the head injury may haveexacerbated the offending, there was a clear pattern of violent behaviour before thisoccurred. While we accept the evidence regarding Mr Taitapanui's upbringing, it doesnot explain the extent of partner violence or more importantly, the repeated sexualoffending. Given the caveats on both Mr Taitapanui's remorse and rehabilitativepotential, those factors, too, warrant only a modest discount. Overall, while anotherJudge may have afforded a greater discount, we cannot say that the global discount of15 per cent was out of range.[45] In any event, the ultimate question on a sentence appeal is whether the endsentence is manifestly excessive. In our view, given the repeated incidents of sexualviolation against the victim, the violence which accompanied it and the fact that someof it occurred when a protection order was in place, the appellant's offending fallswithin band 3 of R v AM (CA27/2009).34 The Judge's starting point could be justifiedon this offending alone. We also consider the discount for guilty pleas of 20 per centwas generous.34 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [105].[46] As a result, we are not persuaded that the end sentence was wrong or thatanother sentence should be imposed.Result[47] The appeal is dismissed.Solicitors:Crown Law Office, Wellington