LAMEKO v NEW ZEALAND POLICE [2018] NZHC 1838

LAMEKO v NEW ZEALAND POLICE [2018] NZHC 1838 [23 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-179[2018] NZHC 1838BETWEEN HENRY LAMEKOAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2018Appearances: J Grainger and S Papp for AppellantH Reid for RespondentJudgment: 23 July 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Lameka pleaded guilty in the District Court to charges of assault with aweapon,1 assaulting a female2 and assault with intent to injure.3 On 4 May 2018,Judge Treston sentenced him to three years imprisonment on those charges.4Mr Lameko appeals against sentence on the basis that the Judge erred in fact andprinciple, and thereby imposed a sentence that was manifestly excessive.The charges[2] The charges were laid as a result of two separate incidents involvingMr Lameko and his partner. The first of these occurred on 7 September 2017. Asummary of facts prepared in relation to this incident records that Mr Lameko and hispartner had been in a relationship for about ten years. They had been residing togetherin a sleepout at the rear of Mr Lameko's parents' house. They do not have any childrentogether, but have children from previous relationships.[3] The summary records that on the afternoon of 7 September 2017 Mr Lamekobecame aggressive and began insulting his partner. He threw a clothing basket at hispartner's head whilst verbally abusing her. He then punched her twice on the headfollowed by two kicks to the head. Mr Lameko then picked up a nearby vacuumcleaner tube and used it to strike his partner on the head and right shoulder. He thenpulled a light tube from the ceiling and hit his partner over the head with it. When hispartner endeavoured to leave the property, he followed her and began yelling at her.When Mr Lameko's partner said she was going to call the police, he ran up to her andpunched her twice on the head. As a result, his partner fell to the ground and he thendragged her back to the sleepout where they were living.[4] Mr Lameko's partner sustained a bruise to her right shoulder from this incident,as well as bruises to her knee occasioned by being dragged up the driveway. Thisincident gave rise to a representative charge of assault with a weapon and a charge ofassaulting a female.1 Crimes Act 1960, s 202C.2 Crimes Act 1960, s 194(b).3 Crimes Act 1960, s 193.4 New Zealand Police v Lameko [2018] NZDC 8772.[5] The second incident occurred on 24 November 2017 whilst Mr Lameko wason bail in relation to the charges laid in relation to the earlier incident. On this occasionMr Lameko and his partner again got into an argument on the side of the road. Thisescalated to the point where Mr Lameko was abusing his partner and calling her abitch. When she walked away from him he continued to yell at her, and to tell her toget back in his vehicle. He then got out of his vehicle and grabbed his partner by herclothing. He dragged her back to his vehicle whilst verbally abusing her. As hispartner raised her hands over her head to protect herself, Mr Lameko punched andkicked her.[6] Mr Lameko's partner was then able to get away. He chased her and yelledabuse at her. He then got into his vehicle and followed her, whilst still yelling abuseat her through the window. He then went back to his home address, where the policelocated him. The police laid a charge of assault with intent to injure as a result of thisincident.The Judge's decision[7] It is difficult to follow the exact nature of the Judge's sentencing structurebecause he did not follow the usual Taueki approach.5 The essence of his reasoning,however, is contained in the following passage of his decision:6[16] I deal with you in this way in date order. On 7 September 2017, theassault with a weapon, you are sentenced to imprisonment for two years andassault on a female one year. It is my view that the overall starting pointshould be in the vicinity of four years for this bracket of offending. On thesecond assault on 23 November 2017 which was assault with intent to injure,two years' imprisonment and that two years' imprisonment will be added tothe one year I have already imposed in relation to charge 2433. So thesentence I today impose is for a sentence of imprisonment of three years,allowing you full credit for the pleas of guilty.Grounds of appeal[8] On Mr Lameko's behalf, Mr Grainger submits the Judge erred factually inrelation to a significant issue mentioned in the summary of facts relating to the firstincident. In addition, he submits that the Judge erred in principle by selecting a global5 R v Taueki [2005] 3 NZLR 372 (CA).6 New Zealand Police v Lameko, above n 4.starting point of four years imprisonment on all charges. Mr Grainger contends thiswas too high, and caused the end sentence to be manifestly excessive.DecisionFactual error[9] Counsel for the respondent agrees the Judge erred in his sentencing remarks instating that Mr Lameko's partner had been taken to hospital as a result of the incidentthat occurred on 7 September 2017. The summary of facts prepared in relation to thatincident records it was Mr Lameko who was taken to hospital by ambulance formedical treatment on that date. It transpires that this was for a stomach ulcer that hadnothing to do with the incident that occurred on 7 September. Mr Grainger submitsthe Judge may have been influenced by this mistake of fact in setting the starting pointin relation to the charges flowing from the incident on 7 September.[10] I place little weight on this submission because the Judge only referred to theissue once, and I do not see any indication that he placed any weight on it in settingthe global starting point. I regard it as being a neutral factor in the Judge's reasoningprocess.The sentence[11] Given the manner in which the Judge approached the sentencing exercise, ithas been necessary for counsel to endeavour to reconstruct the sentence using a Tauekiapproach. This sets a starting point for the charges and then adds uplifts foraggravating factors before applying discounts to reflect mitigating factors.The offending on 7 September 2017[12] For the respondent, Ms Reid submits the offending on 7 September 2017warranted a starting point of between two and two and a half years imprisonment. Shepoints out that it involved the use of no fewer than three separate weapons to strike thevictim's head and shoulder. In addition, Mr Lameko directed both kicks and punchesto his partner's head. These caused the injuries referred to in the summary of facts.Ms Reid also points to the fact that Mr Lameko pursued his partner and furtherassaulted her before dragging her back to her address. He thereby detained her againsther will in circumstances where she was trying to get away from him in order to seekhelp.[13] Mr Grainger submits that the first set of offending warranted a starting pointof no more than 12 months imprisonment. He points out that the use of weapons isinherent in the charge of assault with a weapon. In addition, he submits that theinjuries suffered by the victim as a result of the first incident appear to have beenrelatively minor.[14] I consider the combination of aggravating circumstances relied by therespondent places the starting point for the charges arising from the 7 Septemberincident well above the level suggested by Mr Grainger. A starting point of 12 monthsimprisonment would not begin to reflect the nature of the offending that occurred onthat date. I consider the use of multiple weapons, coupled with kicks and punches tothe head, justifies a starting point of at least two years imprisonment.The offending on 24 November 2017[15] The Crown submits the starting point for the charge arising out of the secondincident should be in the vicinity of nine to 12 months. Mr Grainger submits thestarting point should be no greater than nine months. Given that counsel are in broadagreement regarding the range, I accept that the starting point should have been aroundnine months.Uplifts[16] Both counsel agree there needed to be uplifts to reflect aggravating factorspersonal to Mr Lameko. These include the fact that he has previous convictions from2010 when he assaulted his partner, the same victim as in the present case, in a similarmanner to the assaults leading to the present charges. Mr Grainger points out,however, that Mr Lameko received a sentence of community work in relation to thecharges arising out of the 2010 offending so they cannot have been particularly serious.He submits the Court needs to adopt a proportionate approach when adding any upliftto the sentences imposed on the present charges.[17] I consider the fact that Mr Lameko has previous convictions for similaroffending against the same victim is significant, but I do not consider an uplift of morethan four months could be justified to reflect that factor.[18] Both counsel also agree that an uplift needs to be applied in relation to thesecond incident to reflect the fact that Mr Lameko was on bail in relation to the earlierincident when he assaulted his partner on 24 November 2017.[19] Again, the approach needs to be proportionate. I do not consider an uplift ofmore than two months could be justified to reflect the offending whilst on bail. Thesefactors produce an overall uplift of six months to the initial starting point of two yearsnine months. This results in a sentence of three years three months imprisonment.Discount for guilty pleas[20] It is then necessary to apply a discount of 25 per cent to reflect guilty pleas.This reduces the sentence by ten months. As a result, the end sentence using a Tauekiapproach is one of two years five months imprisonment. It follows that, by anindependent route, I have concluded the sentence the Judge imposed was manifestlyexcessive. An end sentence of around two years five months imprisonment wouldhave been appropriate.Result[21] The appeal is allowed. The concurrent sentences of two years and one yearimprisonment imposed on the charges relating to the incident on 7 September 2017are not disturbed. On the charge of assault with intent to injure, I quash the sentenceof two years imprisonment. In its place, I substitute a sentence of five monthsimprisonment. That sentence is to be cumulative on the sentence imposed on thecharge of assault with a weapon.[22] This means Mr Lameko will be required to serve an effective sentence of twoyears five months imprisonment.Lang JSolicitors:Crown Solicitor, AucklandPublic Defence Service, Auckland