TUWHANGAI v NEW ZEALAND POLICE [2020] NZHC 3428

TUWHANGAI v NEW ZEALAND POLICE [2020] NZHC 3428 [18 December 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000036[2020] NZHC 3428BETWEEN JAMES TUWHANGAIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2020Appearances: M J Scally for AppellantC J Bernhardt for RespondentJudgment: 18 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 18 December 2020 at 12.15 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 18 December 2020Introduction[1] On 17 September 2020 Judge Turner sentenced James Tuwhangai to two years'imprisonment for strangulation, injuring with intent to injure and threatening to kill.He declined to impose home detention. The Judge also made a protection order infavour of the victim.[2] Mr Tuwhangai initially appealed his sentence on two grounds:(a) on the basis of a cultural report under s 27 Sentencing Act 2002 thatwas not before the District Court for sentencing which he saidwarranted a reduction of his sentence of between 5–10 per cent;(b) that his sentence of imprisonment should have been converted to one ofhome detention on the basis of his youth, remorse and rehabilitativeprospects.He now only pursues the second ground of appeal.Facts[3] At the time of his violent offending against his partner in January 2020,Mr Tuwhangai was 18 years old. They had been in a relationship since mid-2019.[4] On 26 January 2020 the pair were together at a family property in Waitahunanear Lawrence. Mr Tuwhangai's father and several children under 10 were alsopresent. At some point Mr Tuwhangai became upset while examining the victim'sphone because he discovered a photo of the victim together with another man andwrongly assumed it evidence of an intimate liaison. They began to argue.[5] This sparked a verbal and physical attack on the victim over the course ofsix hours.[6] Mr Tuwhangai started to yell at her and throw things about. He punched her inthe face several times until she ran from him and he chased her around the property.She called out for someone to call the police. Mr Tuwhangai threw the victim's phoneon the ground, smashing it, and told her she couldn't call anyone now.[7] Mr Tuwhangai smashed a bedroom window with his hand. He then wentoutside to the victim's car and threw objects at it, smashing the windscreen and frontwindows. He then drove away in her car.[8] He returned shortly afterwards. He wrenched the steering wheel and columnfrom the vehicle, rendering it undriveable. He told the victim she now had no vehicleand then began to chase her around the property again. He grabbed her around theneck and she called out to Mr Tuwhangai's father for help. Mr Tuwhangai draggedher to a bed and threw her on it, then punched her to the face and eye. He chased heragain.[9] Mr Tuwhangai again took hold of the victim by her neck, using both hands,and he lifted her so she was at the extent of her toes. The victim could not breathe. Hetold her he was going to kill her and that she was going to die. One of the children saidto him, "don't kill my aunty". The strangulation lasted about 10 seconds. In her victimimpact statement, the victim reports losing consciousness and thinking she was goingto die.[10] When he released her she dropped to the ground and was on her hands andknees. She covered her head with her hands as Mr Tuwhangai punched her severaltimes to the head. He told her to "fuck off" and he put her belongings outside thehouse. She took her bags and began to walk away.[11] Mr Tuwhangai got into a car and drove aggressively towards the victim. Shehad to get out of the way quickly to avoid getting hit. He turned around and drove backtowards her quickly, stopping quickly at her feet. He got out of the car took the victim'sbags from her and threw them over a fence into a nearby school's grounds.[12] He then jumped the fence, opened one of the victim's bags, tearing propertyfrom the bag and casting it around the field. He returned to the car and drove it ontothe field where the possessions were strewn, told the victim no one was going to saveher and then drove back to the house.[13] The victim gathered her things with the help of the children and walked backto the house. When she got there Mr Tuwhangai was still sitting in the car in thedriveway. He began to verbally abuse her, calling her names such as "slut". He got outand punched her in the face twice. He got out and punched her in the face twice beforedriving off.[14] The victim was taken to hospital. As a result of the assaults she received afractured left cheek bone, a concussion, a black right eye, marks and bruising of herneck and shoulders.District Court decision[15] On 5 May 2020 Judge Turner gave a sentence indication of two years'imprisonment to Mr Tuwhangai.1 Mr Tuwhangai accepted that indication and wassentenced on the basis of the indication by Judge Turner on 17 September 2020.2 Thequestion for the Judge at sentencing was therefore whether the sentence should beimprisonment or home detention.Sentence indication[16] The Judge considered Mr Tuwhangai's actions in attacking the victim aroseout of jealousy, possessiveness and control. She was entitled to feel safe at the familyhome and in the company of other family members. This included young andimpressionable children. The property was in an isolated rural area and the resultantvulnerability of the victim was increased by Mr Tuwhangai's immobilisation of hercar and destruction of her phone.[17] The Judge described the offending as a "prolonged attackover a period ofsix hours". He said Mr Tuwhangai prevented the victim from leaving multiple times,he damaged her car, and noted there were two separate strangulations. Also that thiswas accompanied by a threat to kill and degrading verbal abuse. Finally, he noted thevictim had suffered significant injuries and acknowledged the impact of the offendingon others.[18] The Judge adopted strangulation as the lead offence. He highlighted that in Tv Police Doogue J noted there were several features of strangulation that make itinherently serious including the risk that death can result quite readily and that it islinked with long-term emotional and psychological harm.31 Police v Tuwhangai DC Dunedin CRI-2020-012-197, 5 May 2020.2 Police v Tuwhangai [2020] NZDC 18866.3 T v Police [2019] NZHC 3375, [2020] 2 NZLR 270.[19] For the offending before him, Judge Turner said he would adopt a starting pointof three years and three months (39 months) on the strangulation charge. He wouldthen make an uplift of six months for the other charges, noting his caution not to doublecount for these. Thus, indicating an adjusted starting point of 45 months.[20] For personal mitigating factors, the Judge recognised Mr Tuwhangai's youth(being 18 years old at the time), his lack of previous convictions (though his familyharm history and history of breaching police safety orders was noted), and therehabilitative efforts (engaging with counselling, and with the services of TokomairiroWaiora Inc – a Whānau Ora service provider) he had made. For these mitigatingfactors, the Judge made a discount of 25 per cent (11 months). Finally, he gave a22 per cent discount (10 months) for Mr Tuwhangai's guilty pleas on 14 May 2020after first entering his not guilty pleas on 25 February 2020. Thus, the end sentenceindication was two years' imprisonment.Sentence[21] At sentencing Judge Turner rejected Ms Scally's submission that thepre-sentence report, "overall, could be seen as positive". He highlighted that thereport said Mr Tuwhangai, when interviewed by the probation officer, minimised hisoffending and "victim blamed". The Judge said the report found Mr Tuwhangai'sremorse was "minimal" and stated that he described his victim as a "fucking bitch"twice. The Judge said it was notable that these comments followed steps he had takento undertake a Stopping Violence programme and his seeking counselling to addressrelationship issues, indicating he had not learnt anything from these. He consideredhis risk of harm to others was high.[22] Coming to the question of whether the sentence of imprisonment should beconverted to home detention, the Judge cited Kumar v R where in this Court Kós Jsaid:4Home detention is generally suitable only for those whose remorse is patent,such that three things can be said. First, that they deserve a less restrictivesentence. Secondly, that it is, therefore, unnecessary to imprison in order todenounce and deter a recalcitrant. Thirdly, that they may confidently be4 Kumar v R [2014] NZHC 146 at [19] (footnote omitted).expected to convert that less restrictive sentence into a meaningfulrehabilitative response. Demonstrable and verifiable remorse is a tangibleindicator of likely rehabilitation through a community-based sentence. It isalso a basis for the community to have confidence that its trust will not beabused by re-offending. Logic and experience demonstrate that the remorsefulare far more likely to correct a diversion into criminal conduct than those whoare not.[23] Judge Turner found, on the basis of the pre-sentence report andMr Tuwhangai's presentation in court, that he was not convinced there was anygenuine remorse. Mr Tuwhangai had not learnt from any of the programmes he hadbeen through prior to sentencing. Therefore, home detention was inappropriate and asentence of two years' imprisonment was imposed. The Judge also made a protectionorder in favour of the victim under s 123B of the Sentencing Act.Principles on appeal[24] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can properly be justifiedby accepted sentencing principles".6 It is only appropriate for this court to interveneand substitute its own views if the sentence being appealed is "manifestly excessive"and not justified by the relevant sentencing principles.7[25] Home detention is an alternative to a short-term sentence of imprisonment.8The court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.95 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].8 Sentencing Act 2002, s 15A(1)(b).9 Section 15A(1)(a).[26] An appeal court must focus on the identification of error, having regard to thediscretionary nature of the decision.10 The Court of Appeal in Manikpersadh v R said:11[11] This Court identified the appropriate approach in James v R in thisway:12[17] We record that an appeal against a refusal to grant homedetention does not provide an opportunity to revisit or review themerits. The question is whether [the Judge] erred in exercising hissentencing discretion: that is, did he apply an incorrect principle, giveinsufficient or excessive weight to a factor, or was he plainly wrong?Ms Guy Kidd for the Crown properly accepts that home detention cansatisfy the objectives of deterrence and denunciation, but to a degree.We are satisfied, in accordance with earlier authority in this Court, thatthe decision about whether home detention will meet those objectivesin a particular case is a strictly evaluative exercise. It is a matter ofjudgment for the sentencing Judge to determine whether homedetention is an adequate response to the seriousness of the offending.(Footnotes omitted).[12] We agree with counsel for the respondent's assessment that the properapproach of an appellate Court in cases such as this is that "the choice betweenhome detention and a short sentence of imprisonment is the exercise of afettered discretion, with appellate review focusing on the identification oferror, if any, in the court below".[27] In Fairbrother v R, the Court of Appeal stated:13[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other".14SubmissionsAppellant's submissions[28] Although Ms Scally abandoned her argument that the s 27 cultural reportrecently prepared by Monica Lei warranted a further discount, she still sought its10 Doolan v R [2011] NZCA 542 at [39].11 Manikpersadh v R [2011] NZCA 452.12 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.13 Fairbrother v R [2013] NZCA 340 (footnote original).14 R v D (CA253/2008) [2008] NZCA 254 at [66].admission on the basis it supported her submissions that the Judge gave insufficientconsideration to rehabilitation and reintegration when sentencing Mr Tuwhangai toprison. Ms Scally submits that the cultural report should be admitted into evidencebecause "it could not have with reasonably [sic] diligence been provided prior tosentencing".[29] Ms Scally also contends that Mr Tuwhangai does have genuine remorse, andpoints to a finding to that effect in the cultural report. She suggests that Mr Tuwhangaimay have had a better rapport with the cultural report writer than the pre-sentencereport writer, thus enabling him to feel comfortable in expressing his remorse. Shealso says the Judge erred by placing too much weight on the negative aspects of thepre-sentence report and insufficient weight on the positive aspects, suchMr Tuwhangai taking responsibility for "most" of the offending, distinguishing hiscase from that in Kumar, the case relied upon by Judge Turner. Counsel also contendsthe Judge did not sufficiently weigh the rehabilitative efforts undertaken byMr Tuwhangai before sentencing, including two programmes, noting the pre-sentencereport's positive comment on his engagement in this respect.[30] Ms Scally contends the Judge also failed to consider that home detention wouldadequately denounce and deter the offending.15 She notes home detention is asignificant sentence in its own right.[31] Next, she cites Moa v Police where on appeal this Court quashed a sentence of12 months' imprisonment and imposed home detention instead, emphasising thebenefits of home detention in terms of the rehabilitation of young men.16[32] In terms of Kumar, where this Court found home detention inappropriate dueto a lack of remorse, Ms Scally submits the present case can be distinguished becauseshe contends that there is remorse here and Judge Turner erred on this point. GivenMr Tuwhangai's age and rehabilitative efforts, she says a sentence of home detentionshould have been imposed.15 Fairbrother v R [2013] NZCA 340.16 Moa v Police [2017] NZHC 223.Respondent's submissions[33] Mr Bernhardt says the Police do not oppose the s 27 report being adduced forthe purposes of this appeal.[34] Mr Bernhardt says Mr Tuwhangai has been unable to point to an error in theJudge's discretionary decision to prefer a sentence of imprisonment to home detention,rather his counsel's submissions were directed at weight.[35] Counsel submits the Judge appropriately weighed the factors relevant to theassessment of the suitability of home detention, and that the Judge was not required togive an exhaustive list of every relevant sentencing factor. The Judge made aconsidered and principled choice between the two sentencing options, identifying thatimprisonment better served the principles of denunciation and deterrence, inaccordance with Fairbrother.AnalysisAdmission of s 27 report[36] The Court of Appeal has observed that s 27 reports should not be produced forthe first time on appeal.17 However, a cultural report may be admitted into evidenceon appeal where it is in the interests of justice or where the prosecutor will not beprejudiced.18 Given Ms Scally has abandoned her argument that it supports a discountin sentence and there is no prejudice to the prosecution, I allow it to be put before theCourt.[37] For completeness, I add that the evidence before the Court, including from thes 27 report, does not suggest that Mr Tuwhangai has suffered cultural deprivation inthe requisite way articulated by the Court of Appeal in Zhang v R.19 He was raised "ina stable and supportive family environment" and, while his parents' relationship wasnot perfect, they clearly cared deeply about his welfare, to the extent of moving theirfamily and children to a different island to protect them from the influence and pull of17 Carroll v R [2019] NZCA 172 at [8].18 Poi v R [2020] NZCA 312 at [30].19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.gang life in their original area. Further, from the ages of five to 13 – spanning hisprimary and intermediate schooling – he attended a kura kaupapa Māori, a schooloperating under tikanga Māori and using te reo Māori as a medium of instruction. Hismother, fluent in te reo, was instrumental in establishing the kōhanga reo he attendedbefore his kura days. The report also notes Mr Tuwhangai developed an affinity forthe environment at an early age, noting he explained how he helped his fathers raiseand ride horses, and hunt and dive for kai. Thus, during his upbringing he was fortunateto have had parents who strived to ensure he was connected to his culture, te reo andto the whenua, and steered away from the negative influence of gangs.[38] This is not in my view, a case of obvious cultural deprivation and it wasappropriate that this ground of appeal was abandoned.Remorse[39] I address the submissions on remorse because although a discount is not soughton this ground it is relevant to Mr Tuwhangai's rehabilitative prospects. WhileMr Tuwhangai challenges the Judge's finding that he had not shown remorse, on thematerial before this Court on appeal, I consider the Judge was justified in reaching thatview. Although Ms Scally says the pre-sentence report notes him taking ownershipfor some of his offending, a bare (and incomplete) acceptance of responsibility cannotrise to the level of demonstrated remorse required before a discrete discount will bemade.20[40] Moreover, the entirety of the pre-sentence report must be understood tocontextualise Mr Tuwhangai's incomplete acceptance of responsibility. It reports thathe denied there was more than one punch (despite his guilty plea to the charge ofinjuring with intent to injure). It says he stated that he said, "all the injuries shesustained to her head and face were from one punch, not multiple". The report set outthat:During the interview he was assessed as being unaware to the severity of thecrimes and situation. Hedeniedaspects [of the offending] such as therebeing more than one punch. Remorse was minimal and he called her a"f*cking b*tch" twice.20 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [24].[41] Later the report restates the probation officer's conclusion that remorse wasminimal and there was no offer to make amends. Clearly from his lack of insight intothe harm of his offending, his minimisation of his offending and his highly offensivereferences to the victim, the probation officer was justified in concluding remorse wasminimal.[42] I also do not consider that the s 27 report materially changes the position.While the report comments that Mr Tuwhangai is "definitely keen to do restorativejustice" the statement that he takes ownership of the offending and shows genuineremorse is not consistent with other information in the report. For example, earlier inthe s 27 report, he seeks to minimise his offending by introducing a narrative of theoffending that involved him being provoked into his attack by the victim coming athim with a knife. This is a fact, of course, that was not agreed to by the parties whenMr Tuwhangai came up for sentencing and forms no part of the summary of facts.[43] According to the s 27 report, he also claims he never intended to physicallyhurt the victim; yet he pleaded guilty on the basis of the summary of facts21 which sayshe punched her a number of times over the course of the hours-long verbal andphysical attack, strangled her twice, and threatened to kill her during one of theinstances of strangulation. Thus, he continues to minimise his offending.[44] Further, this latest claim of a lack of intent to physically hurt the victim is notonly inconsistent with his guilty pleas and his acceptance of the summary of facts, itis consistent with his earlier insistence with the probation officer during hispre-sentence report interview that he only punched the victim once, despite theextensive injuries she suffered. The probation officer saw this claim as going to hislack of remorse. It appears nothing has changed.[45] I do not consider the Judge was wrong to find Mr Tuwhangai had notdemonstrated any genuine remorse and he was not required to take unsubstantiatedclaims of remorse at face value.2221 See Sentencing Act 2002, s 24; and Criminal Procedure Rules 2012, r 5A.1.22 Moses v R, above n 20, at [18], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].Rehabilitative efforts[46] Ms Scally points to the letter from Mr Sayles who confirms Mr Tuwhangaiengaged in counselling sessions with him and has "made good changes" in that time.She also points to the letters from Tokomairo Waiora Inc, a kaupapa Māori health andsocial service provider, which was supporting Mr Tuwhangai and his family, whichspeak about his progress in getting his driver licence and doing voluntary work, andto the evidence he had engaged with Stopping Violence through a referral fromTokomairo Waiora. However, as the Judge noted, the fact Mr Tuwhangai did notdemonstrate remorse, and actually minimised his offending and called the victim a"fucking bitch" twice, indicated that he has not learnt anything from the courses heattended in the lead-up to his offending. On appeal Mr Tuwhangai has not been ableto show that conclusion was not justified.Should home detention have been imposed?[47] In an appeal against a refusal of home detention, an appeal court will bereluctant to interfere with the sentencing judge's assessment, having regard todiscretionary nature of the decision.23 Here, Judge Turner considered the contents ofthe pre-sentence report and concluded Mr Tuwhangai had a high propensity forviolence and was at a high risk of harming others, pointing to his failure to learn fromthe courses and counselling he attended prior to sentencing. He considered the patentlack of remorse to guide his decision to decline to impose home detention, inaccordance with Kumar.24[48] I do not depart from the Judge's concerns in that regard. I accept that the veryserious and prolonged physical and psychological violence by Mr Tuwhangai againsthis partner, with a lack of genuine remorse after the fact, demanded a strong deterrentand denunciatory sentencing response.[49] However, there are particular concerns here which I consider were not fullyaddressed. Mr Tuwhangai is clearly at risk of being drawn into gang culture. It23 Doolan, above n 10, at [39]. See also Simon France (ed) Adams on Criminal Law – Sentencing(online ed, Thomson Reuters) at [SA80A.10].24 Kumar, above n 4.prompted his parents' decision to move from the North Island. It was also a concernmentioned in the pre-sentence report which ultimately recommended intensivesupervision and community detention. The report writer pointed out thatMr Tuwhangai presented in all red clothing and has notable swastikas on his hands,tattooed into his skin, and there was a concern that Mr Tuwhangai aspired to beinvolved in the Mongrel Mob despite denying this. The report writer said thatMr Tuwhangai "presents as an impressionable teenager". The report noted that he hadgood support from his whānau to be compliant with a sentence of home detention anda suitable address was identified where he would be with family members. It says thathe "appears ready and willing to participate in programmes and counselling" and, ifhe actively participates in such programmes, his likelihood of reoffending wasassessed as medium.[50] In my view, Mr Tuwhangai is particularly vulnerable to embarking on a careerof offending, and this would only be exacerbated by a minimum of a year in prison.At this juncture, he has already served three months' imprisonment. I consider thishas given him a taste of prison life and if it is to have a deterrent effect, it should havehad that by now.[51] There is a clear fork in the road for Mr Tuwhangai. His family are reachingout to him and urging him to take one path, but I suspect the gangs and prison life willbe urging him to take another. In these circumstances, I consider the principles ofrehabilitation and reintegration, particularly for a first time offender, need to be givengreater prominence in the sentence which is handed down.[52] It is for this reason, and this reason alone, that I am allowing this appeal.[53] The sentence of two years' imprisonment is quashed and in its place I imposea sentence of nine months' home detention to commence on 22 December 2020. Thisshort delay is to allow appropriate travel and transfer arrangements to be made.[54] Home detention is to be served at the residence of X. It is to be served on thestandard conditions and the following special conditions:(a) You are not to associate with or contact X without the prior writtenapproval of a probation officer.(b) You are to attend an assessment for a domestic violence programme asdirected by a probation officer and to attend and complete anycounselling, treatment or programme as recommended by theassessment as directed by and to the satisfaction of a probation officer.[55] I expect that should the opportunity for employment arise, then the conditionsof home detention should be able to be varied to accommodate this, as I believe thiswill assist Mr Tuwhangai's rehabilitation.[56] I reserve leave to the parties to seek additional or varied orders should anypractical difficulties arise with the proposed conditions for commencing and servinghome detention.Solicitors:Public Defence Service, DunedinCrown Solicitor, Dunedin