TAPUTORO v R [2017] NZHC 2568

TAPUTORO v R [2017] NZHC 2568 [20 October 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000057[2017] NZHC 2568BETWEEN DESIREE RUIA KRYSTAL TAPUTOROAppellantAND THE CROWNRespondentHearing: 11 October 2017Appearances: M M Cole for the AppellantM G McClenaghan for the RespondentJudgment: 20 October 2017JUDGMENT OF NATION J[1] Ms Desiree Taputoro was sentenced to two years and five months'imprisonment after pleading guilty to charges of aggravated burglary, wilful trespass and assault with a weapon.1 She appeals against that sentence.The offending[2] Ms Taputoro has been, on and off, in a relationship with the victim of her offending. In October 2016, they had two children together and Ms Taputoro was pregnant with their third child. At that time, she had custody of the children and hadbeen trespassed from the victim's property.[3] At 4:50 am on 1 October 2016, Ms Taputoro broke into the victim's homethrough the front door. She was armed with a pinch bar and approached the victim,1 R v Taputoro [2017] NZDC 9028.abusing him and saying he would be dead. She struck him with the bar in his shoulder area. The victim managed to disarm her, push her out of the house and lock the door.[4] Ms Taputoro then re-entered the house through a kitchen window. She was restrained by the victim. The victim was not further injured but, during the ensuing struggle, there was some damage to the gib lining of a wall. She then started punching her own (pregnant) abdomen, whereupon she was again restrained by the victim.[5] On 3 May 2017, Ms Taputoro was sentenced to two years and five months'imprisonment after pleading guilty to charges of aggravated burglary, wilful trespass and assault with a weapon. She appeals against that sentence.District Court decision[6] In fixing the starting point, the Judge noted that there was little planning or premeditation, saying the offending was more of a spontaneous reaction in an emotionally charged relationship that had gone sour. The weapon, the Judge said, was capable of doing very serious harm and, by her own words, it was clear that was her intention. He noted that no property was stolen, there were no attempts at disguising her identity and both entries were in breach of a trespass order. While the physical injuries were not serious, the Judge considered the emotional harm"considerable".[7] The Judge adopted a starting point of three years and nine months for the totality of the offending. No uplift was applied for her previous convictions, which are only two in number and both driving related. A 10 month reduction –approximately 22 per cent – was allowed for guilty pleas, some of which came late.The Judge then applied a further six month reduction for "the difficulties experienced by you with your separation from the victim", her responsibilitiesregarding the children and "the greater difficulty you will encounter as a consequence of serving a term of imprisonment."[8] Consequent on the conviction for aggravated burglary, the Judge gave Ms Taputoro a first strike warning. He also made a protection order in favour of the victim.Applications to adduce fresh evidence[9] Under s 335(2)(c) Criminal Procedure Act 2011, Ms Taputoro applied for leave to put two affidavits before the Court.[10] One was an affidavit from Ms Taputoro's partner, the victim of her offending. In it he makes some positive comments about Ms Taputoro and expresses an opinion as to the appropriateness of her sentence. The document is more in the form of a letter than an affidavit. It provides no fresh evidence as to the issues which I have to consider with this appeal. I decline to admit it as fresh evidence.[11] The other affidavit included a report from Craig Prince, a consultant clinical psychologist, who has frequently assisted the Court with reports. Ms Taputoro sought leave to adduce this evidence on the basis the Court should have regard to it in considering whether there was sufficient allowance on the sentencing for Ms Taputoro being the victim of domestic violence.[12] Ms Taputoro knew before her sentencing what had happened in her relationship with the victim. Had she wished to advance evidence in support of the arguments that are now being presented on appeal, she could have done so before her sentencing. The report is largely hearsay with Mr Prince simply repeating what he was told by Ms Taputoro and others but then briefly expressing some opinions based on what he was told.[13] The Crown have not, however, strongly opposed admission of the evidence and I will have regard to it in dealing with this appeal.[14] I accordingly grant leave for that evidence to be admitted.Jurisdiction and principles on appeal[15] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposed was manifestly excessive.4 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.5Submissions[16] For Ms Taputoro, Ms Cole suggested the information and opinions expressed by Mr Prince showed that lesser weight had to be given to the principles of denunciation and deterrence, and that there should have been a greater emphasis on the purposes of rehabilitation and reintegration in sentencing Ms Taputoro. Alternatively, she submitted the information in the report served to reduce the culpability of her offending and justified a significant discount simply on the basis she was a victim of significant domestic violence. She also submitted that, if the Court did not accept there was a direct correlation between the offending and domestic violence, there should have been a further discount "on purely compassionate grounds". Ms Cole submitted that Ms Taputoro's circumstances were such that, with an appropriate end sentence, there should be the potential for home detention.Mr Prince's report[17] Mr Prince's report referred to Ms Taputoro growing up in Christchurch where there was a close association with families of known gang members and Ms Taputoro said she witnessed a culture of alcohol, drug abuse and some violence. Ms Taputoro told Mr Prince as to how her relationship with the victim had started when she was abusing alcohol regularly. She told him how, not long after entering into2 Criminal Procedure Act 2011, s 250(2).3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.that relationship, she had become jealous and an argument ensued. She went on to consume an entire bottle of spirits from which she passed out. She said the victim gave her the ultimatum of stopping drinking alcohol or the relationship ending, that she stopped drinking for a time but resumed after the birth of her first child, but not drinking as heavily.[18] She told Mr Prince that, after she and the victim owned a home together, shewould become "paranoid" as to whether the victim was being faithful to her. Shedescribed an occasion where, after an argument, the victim locked her out of the house, she became angry at how the victim was dealing with her, she climbed through a window, armed herself with a knife and confronted the victim.[19] She described the relationship as a violent one but said that the victim would get in her face to the extent she had to push him away or hit him, and accepted that she probably reacted in a violent manner as much as he did. Ms Taputoro told Mr Prince that the Police were often called to the house due to domestic violence and there were 13 domestic violence reports on the couple. Police safety orders were issued against both of them. She described to Mr Prince what she considered to be the victim's psychological abuse of her.[20] As to her psychiatric history, Ms Taputoro told Mr Prince of her having a gambling problem and of her suffering from depression after the birth of her second child. That must have been about two years ago. She gave Mr Prince an account of what she said was the immediate background to her offending.[21] Mr Prince referred to information that had been given to him by MsTaputoro's mother. Much of that information was double hearsay in that the mother was recounting what she said Ms Taputoro had told her. Mr Prince reported the mother: was told by her daughter that [the victim] would provoke her and even be physically aggressive towards her and that Ms Taputoro would then lash out violently. Due to her extreme reactions, she was the one who inflicted injuries and came to the Police attention.[22] The mother reported that prison had provided the best outcome for her daughter. The mother told Mr Prince that Ms Taputoro had time to reflect on things, had undertaken the treatment required and sorted out how to progress things in her life. There were no mood difficulties and Ms Taputoro was in an "excellent" head- space.[23] Ms Taputoro's sister also told Mr Prince that she felt Ms Taputoro had improved on a number of fronts since being in prison and out of the negative relationship that she had been in.[24] A social worker assigned to Ms Taputoro since early 2016 said the pattern appeared to be that the victim was emotionally manipulative towards Ms Taputoro and that she would then lash out physically. She reported to Mr Prince that, while Ms Taputoro had spoken of the victim having pushed her at times, there were no Police reports to substantiate the claim. The social worker considered that the couple had an unhealthy relationship and both parties were victims. The social worker also referred to the progress Ms Taputoro had made in prison and the resilience she had shown in this regard.[25] In expressing his opinion as to the nature of the relationship, Mr Prince referred to the allegations of verbal and psychological abuse. He said Ms Taputoro had reported ways in which the victim had been violent towards her but noted there appeared to be less supporting collateral information about that. Mr Prince recognised that it was for the Court to determine the reliability of that claim. There is no evidence before the Court on which I can do that.[26] Mr Prince referred to reasons Ms Taputoro gave for remaining in what she had described as an abusive relationship. He said she believed that, due to poor self- esteem, she did not think that anyone else would want her. He said she reported to him that she did not have the skills to know how to regulate her emotions (especially her anger) and she lashed out physically when feeling overwhelmed. Mr Prince considered that, at the time of the offending, she was likely to have been suffering from a decline in her mood, that she had felt overwhelmed by her context, stuck and did not know how to cope. He said:Her failed efforts to obtain help from the victim for their children left her with the perception that he was once again psychologically abusing her (and the children). Due to a lack of coping skills and material resources available to her, she became increasingly angry and adopted the old pattern of lashing out physically.[27] The information provided in this report is in greater detail than, but consistent with, information which was provided to the Judge in the pre-sentence report. I notethat, in his concluding opinion, Mr Prince referred to Ms Taputoro having "theperception that the victim was once again psychologically abusing her (and thechildren)". He does not express an independent opinion that the victim was in fact then psychologically abusing her. The report refers to the pattern she had of lashing out physically, of her becoming increasingly angry and adopting the old pattern of lashing out physically. The information in the report does certainly confirm that this had been a toxic relationship for both Ms Taputoro and the victim.Discussion[28] In R v Whiu, the Court of Appeal has said that, if an offender wishes to argue that she has suffered prolonged abuse at the hands of a partner that has contributed materially to her offending, and so is relevant to sentence, she will have to point to an evidential basis for the submission.6 The evidence will need to address the underlying facts of the abuse, its impact on the offender and the way it is said to have made a material contribution to the offending.[29] Mr Taputoro has not done that on the hearing of the appeal. She did not seek to do so when she was sentenced in the District Court. Her then counsel, in seeking a discount for the unusual circumstances of the matter, did refer to the domestic background and the difficult relationship between the parties, but also sought a creditfor Mr Taputoro's recognition "of her inappropriate behaviour and her steps involuntarily completing a 12 week stopping violence course since the offending". Hereferred to her shame and remorse for the offending.[30] The summary of facts referred to the parties' "on again and off again"relationship and the 13 recorded domestic incidents involving the parties where the6 R v Whiu [2007] NZCA 591.Police had previously attended. Ms Taputoro told Mr Prince that, some days beforethe offending, the victim took their children to his mother's house in Clyde. BecauseMs Taputoro was trespassed from this house, she was not allowed in to see the children. Subsequently, she obtained legal advice and was granted a parenting order for the two children. It was a condition of the parenting order that she was to immediately relocate to Christchurch.[31] The summary of facts said that on 27 September 2016 a non-parenting order was served on the victim. At that time, Ms Taputoro was served a trespass notice to stay away from his home. Ms Taputoro was also subject to a Police safety order not to contact the victim.[32] Ms Taputoro uplifted her children from the father. Although it was a condition of the parenting order that Ms Taputoro was to leave Alexandra and travel to Christchurch on that day, she did not do so. She found accommodation with friends. She told Mr Prince she also obtained work which she anticipated would enable her to pay for fuel which she needed for the trip. She explained to Mr Prince that, after working a long day, her accommodation had fallen through and she had to leave the home at which she had accommodation around 9.00 pm.[33] The Police safety order, for the benefit of the victim, expired at 7.00 pm on 30 September 2016. At about 7.20 pm on 30 September 2016, Ms Taputoro sent texts to the victim asking him to come outside of his address to see her and the children. He did not respond to those texts but rang the Police to seek advice. At that time, Ms Taputoro had left her accommodation and was in her car with the two children somewhere in Alexandra.[34] At 2.50 am on Saturday 1 October 2016, Ms Taputoro sent a text to the victim saying she was by the river, near the Police station, and not to worry as everything would be over real soon. Ms Cole said Ms Taputoro texted the victim saying she needed to bring a child to his home so the child could use the toilet. According to Ms Cole, the victim would not agree to this and said they should use public facilities. I note there was no mention of this explanation in the pre-sentencereport. Given the context in which that request was made and what happened withthe offending, the victim's response was reasonable and understandable.[35] At about 4.50 am on 1 October 2016, the victim awoke to Ms Taputoro coming through the front door and the actual offending occurred as previously described. Ms Taputoro told the probation officer she was angry and distraught with rage at the time of the offending.[36] Against that background, I have not been persuaded that any abuse, which Ms Taputoro may have suffered at the hands of the victim, made a material contribution to her offending.[37] In neither Mr Prince's report nor in the summary of facts, or any otherinformation which was before the sentencing Judge, is there an adequate evidential basis on which it can be said Ms Taputoro should have been sentenced on the basis she was the victim of domestic violence or that it made a material contribution to her offending.[38] There was no criticism of the Judge's starting point of three years and ninemonths' imprisonment for the offending. I agree with the sentencing Judge and with the submissions that were made by both counsel at the original sentencing that thelevel of culpability in Ms Taputoro's offending is similar to that in R v Patrick.7[39] The reduction of 10 months for guilty pleas, approximately 22 per cent cannot be criticised.[40] I do not consider the Judge can be criticised for saying there was a clear need for deterrence. The information before the Judge at sentencing was that Ms Taputoro had not been deterred from her offending by the particular terms on which she had obtained a parenting order for the children, the Police issuing the Police safety orderor the issuing of a trespass notice requiring her to keep away from the victim'sproperty. The information before the Judge, and the further information which is now before me, indicates that there was a recurring pattern of her resorting to7 R v Patrick [2008] NZCA 115.violence as a way of dealing with the stress of the situations she was in arising out of her relationship with the victim.[41] I note, however, the probation officer's reference to her remorse for herbehaviour, the support she had available from Aviva Women's Refugee, the supportshe has from her family and the way in which others told Mr Prince that she had benefitted from the time she has spent in prison. Ms Taputoro is to be commended for the progress she has made since sentencing but that cannot provide grounds for interfering with the sentence originally proposed.[42] The progress Ms Taputoro has made in this regard will be relevant to the Parole Board when they consider whether Ms Taputoro should be granted parole and the pre-release conditions that might be imposed.[43] After credit for the guilty pleas, the starting point sentence reduced to two years and 11 months. The Judge then allowed for a further reduction of six months on account of the difficulties Ms Taputoro had experienced with her separation, the responsibilities she had for her two children and for the child which would result from her pregnancy, and the greater difficulty she would encounter as a consequence of serving a term of imprisonment. He did not, at that point, expressly give her credit for the steps she had taken to deal with the causes of her offending but I am satisfied the Judge took those into account. Earlier in his sentencing remarks, he referred to the letter from Aviva, the way Ms Taputoro self-reported to them on 25 October 2016, and the course facilitators providing positive feedback about herparticipation and engagement in their Women's Family Violence Education Groupcourse. At a different point, he referred to the Crown's acknowledgement of herinvolvement in that course.[44] In all these circumstances and for these reasons, I have not been persuaded that there was any error in the sentencing of Ms Taputoro or that a different sentence should have been imposed. Her appeal is accordingly dismissed.Solicitors:M M Cole, ChristchurchRaymond Donnelly & Co., Christchurch.