TA’AKIMOEAKA v NEW ZEALAND POLICE [2018] NZHC 68

TA'AKIMOEAKA v NEW ZEALAND POLICE [2018] NZHC 68 [7 February 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-000050[2018] NZHC 68BETWEEN JOHN TA'AKIMOEAKAAppellantAND NEW ZEALAND POLICERespondentHearing: 7 February 2018Appearances: N S Leader for AppellantM Smith for RespondentJudgment: 7 February 2018ORAL JUDGMENT OF WYLIE JSolicitors/counsel:N S Leader, AucklandMarsden Woods Inskip Smith, WhangareiIntroduction[1] The appellant, Mr John Ta'akimoeaka, appeals a sentence of six years and threemonths' imprisonment imposed by Judge Cunningham in the District Court atWhangarei1 after he pleaded guilty to one charge of wounding with intent to causegrievous bodily harm.2[2] Mr Ta'akimoeaka accepts that a term of imprisonment is the only appropriatesentence. However, he appeals the sentence imposed, asserting that it is manifestlyexcessive.Extension of time[3] The appeal against sentence was filed some 17 working days after the statutorytime limit had expired.3 Mr Ta'akimoeaka seeks leave to extend the time allowed forfiling the appeal.[4] The delay has been explained. In essence, counsel sent a letter of advice to MrTa'akimoeaka. Unfortunately, it was not made available to him by the Department ofCorrections, but rather returned to counsel. Counsel was overseas at the time, andwhen he returned, he inadvertently overlooked the matter. There is no prejudice to theCrown, and Mr Smith, appearing on instructions from the Solicitor-General,responsibly accepted that leave to extend the time for appeal should be granted. I soorder.Factual background[5] On the afternoon of 5 December 2016, Mr Ta'akimoeaka arrived in his vehicleat an address in Whangarei. Mr Ta'akimoeaka got out of his vehicle and approachedthe victim, who was known to him. Mr Ta'akimoeaka picked up a four-pronged metalwheel brace that was lying on the ground. He walked towards the victim, carrying thewheel brace. The victim started running towards the rear of the property. MrTa'akimoeaka chased after him and struck him on the back of his right leg with thewheel brace, causing him to fall to the ground.1 R v Ta'akimoeaka [2017] NZDC 21328.2 The maximum penalty for wounding with intent to cause grievous bodily harm is 14 years'imprisonment – Crimes Act 1961, s 188(1).3 Criminal Procedure Act 2011, s 248(2).[6] The victim managed to stand up and a struggle ensued. In an attempt to defendhimself, the victim attempted to punch Mr Ta'akimoeaka. Mr Ta'akimoeakaresponded by striking the victim twice to the head with the wheel brace, hitting himonce in the face and once on the top of the head. Mr Ta'akimoeaka also attempted topunch the victim.[7] The victim was wearing a cap at the time. The blow that struck him on the topof the head was of such force that it made a round hole in the cap, before fracturinghis skull underneath. As a result of the assault, the victim was severely concussed andhe received a compressed skull fracture. The victim also received wounds to hishands.[8] No explanation has been offered for the altercation.[9] The victim is a mechanic by trade. Prior to the incident, he was looking atstarting his own business. As a result of his injuries, he is now unable to work and isfinancially destitute. He now has problems with motor skills and he lacks the abilityto co-ordinate straightforward tasks. His vision has been affected; he has problemsspeaking; he suffers from chronic headaches. He is unable to drive as a result ofseizures. He experienced some seizures prior to the assault, but they have increasedin frequency and severity consequent on the assault. He and his wife also suffer fromanxiety issues and they experience a sense of fear when they are in public places.District Court decision[10] Judge Cunningham referred to the leading tariff decision dealing withsentencing for the offence of wounding with intent to cause grievous bodily harm –namely the decision of the Court of Appeal in R v Taueki.4[11] Although the Judge accepted that there was some overlap between them, sheconcluded that there were four aggravating features to Mr Ta'akimoeaka's offending,5namely the use of a weapon, the attack to the head, extreme violence and theseriousness of the injuries caused. She considered that the offending fell at the top4 R v Taueki [2005] 3 NZLR 372 (CA).5 R v Ta'akimoeaka, above n 1, at [37].end of band two or perhaps at the lower end of band three discussed in Taueki.6 Sheadopted a starting point of eight years and six months' imprisonment.7[12] Judge Cunningham decided not to impose an uplift for Mr Ta'akimoeaka'sprevious convictions, notwithstanding that he had two previous violence convictions,namely injuring with intent to injure in mid-2014 and fighting in a public place in mid-2013.8 Nor did she impose an uplift to account for the fact that the offending wascommitted while Mr Ta'akimoeaka was on bail and awaiting sentencing on the chargeof injuring with intent to injure. The Judge gave Mr Ta'akimoeaka a 25 per centdiscount for his guilty plea,9 but she did not give him a further discount for remorse asshe did not consider it to be genuine remorse.10[13] The end sentence imposed was six years and three months' imprisonment.11Grounds of appeal[14] Mr Ta'akimoeaka submitted that Judge Cunningham set the starting point toohigh. He contended that the Judge erred in her assessment of the four aggravatingfeatures of the offending. He accepted that it involved the use of a weapon and thatthere was a serious injury, but argued that it was an error to identify extreme violenceand attacking the head as separate aggravating features. As a result, he submitted thatthe starting point should be in the middle of band two – in the vicinity of seven years'imprisonment.[15] Mr Ta'akimoeaka also submitted that the Judge erred by failing to give him adiscount for remorse, which he says was, and is, genuine.6 At [37].7 At [38].8 At [44].9 At [46].10 At [48].11 At [52]. There appears to have been an arithmetical error in the Judge's calculation. Based on astarting point of eight years and six months' imprisonment (102 months), a 25 per cent discountequates to 25.5 months – rounded to 26 months. 102 months minus 26 months equals 76 months,or six years and four months' imprisonment.Appeals against sentence[16] Section 250(2) of the Criminal Procedure Act 2011 provides that the court mustallow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.In any other case, the court must dismiss the appeal.12[17] A sentence may be set aside where it is manifestly excessive.13 Whether asentence is manifestly excessive depends on the end sentence imposed, not the processby which it was reached. The court will not intervene where the sentence is withinrange, but, if the court determines that the sentence imposed is manifestly excessive,it will then form its own view of the appropriate sentence.14Analysis[18] As noted by Judge Cunningham, the tariff case for the type of offending atissue in this case is the decision of the Court of Appeal in R v Taueki.15 In that case,the Court of Appeal noted the seriousness of this type of offending and set out threesentencing bands appropriate for it.16 The Court identified some 14 aggravatingfactors, which can be relevant in assessing the seriousness of such offending and itscriminality.17 Band one – attracting a sentence of three to six years' imprisonment –is appropriate for offending at the lower end of the spectrum.18 Band two – attractinga sentence of five to ten years' imprisonment – is appropriate for offending whichfeatures two or three of the identified aggravating factors.19 Band three – attracting asentence of nine to 14 years' imprisonment – encompasses serious offending which12 Section 250(3).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].14 Tutakangahau v R, above n 13, at [30].15 R v Taueki, above n 4.16 At [34].17 At [31](a)-(n).18 At [36].19 At [38].has three or more of the aggravating factors, where their combination is particularlygrave.20[19] Judge Cunningham considered that four aggravating features were relevant inthe present case – namely the use of a weapon, that the attacks were to the head,extreme violence and serious injury.[20] Mr Leader, acting on behalf of Mr Ta'akimoeaka, first submitted that JudgeCunningham erred by categorising the offending as involving extreme violence. Hetook particular issue with paragraph [31] of the Judge's sentencing notes, which readsas follows:21[31] In my view R v Taueki makes it clear that the factors such as violencebeing prolonged, unprovoked or gratuitous are add-ons to the extent of theviolence. Any attack to the head with a weapon that is made of steel and hasthe weight of a wheelbrace has to be extreme violence. One only needs to lookat the blow to the head which ripped through the cap material, made the markon this man's skull, caused a break in the skin that had to be cleaned andstitched and fractured the underlying skull. So I do not agree with thesubmission that this was not extreme violence.Mr Leader argued that the Judge used the other aggravating features she identified toestablish extreme violence, and that this constituted "double counting".[21] Mr Smith, on behalf of the Crown, submitted that Judge Cunningham'sapproach was appropriate given the relevant aggravating features and that they allunderscored the seriousness of the offending in this case.[22] In my judgment, Judge Cunningham did not err. She appropriatelyacknowledged that there was a degree of overlap between the aggravating factors.22In cases such as this, that will usually be inevitable. Attacking the head, the use of aweapon and serious injury will often be inherent in the violence involved and lead toits categorisation as extreme. It is impossible to isolate each aggravating feature.[23] This does not mean that there is double counting when more than oneaggravating feature is present. A sentencing Judge needs not only to identify the20 At [40].21 R v Ta'akimoeaka, above n 1.22 At [37].aggravating features, but also to evaluate the seriousness of particular factors. TheJudge needs to consider the combination of factors applying in any particular casewhen assessing the appropriate sentencing band and the starting point within thatband.23 Any risk of double counting can be addressed in the final overall assessmentof the appropriate starting point.24[24] Here, and as I have noted, Judge Cunningham acknowledged that there was adegree of overlap between the aggravating factors. Even though, on her analysis, therewere four aggravating features, she did not adopt a starting point of nine years'imprisonment or more suggested in Taueki as being appropriate for band threeoffending involving three or more aggravating features. Rather, she adopted a startingpoint towards the top end of that suggested by the Court of Appeal as being appropriatefor band two offending involving two or three aggravating features. This reflected theoverlap in the aggravating features, and in my judgment, it was not inappropriate.Starting points must ultimately reflect the overall culpability of the offender involved,rather than a mathematical calculation based on the number of aggravating featuresidentified.25[25] It was also contended for Mr Ta'akimoeaka that two blows to the head, onlyone of which appears to have caused serious injury, does not elevate the offending intothe extreme violence category.[26] The Judge did not suggest otherwise and, in any event, one act can constituteextreme violence.26 In this case, the violence was ongoing and serious. First, therewas the blow which Mr Ta'akimoeaka inflicted on the victim's right leg, then the twoblows to the head and also the punches thrown by Mr Ta'akimoeaka. It was not an actof violence comprising one blow only.[27] Mr Leader also argued, on behalf of Mr Ta'akimoeaka, that Judge Cunninghamerred in finding that the use of a weapon and attacking the head are separateaggravating features in this offending.23 R v Taueki, above n 4, at [30]-[31].24 King v R [2015] NZCA 436 at [27].25 Couper v R [2017] NZCA 588 at [17].26 See, for example, R v Roker [2017] NZHC 1637 at [14].[28] I disagree. The Court of Appeal in Taueki did not limit the application of theaggravating feature of attacking the head to situations where no weapon is used. Therecan, of course, be attacks to the head where no weapon is used. Equally, there can beattacks to the head where a weapon is employed. This is clear from the Court ofAppeal's discussion in Taueki of the use of weapons. The Court there noted asfollows:27(d) Use of weapons: The use of a lethal weapon such as a firearm or aknife will be a serious aggravating factor. In short, the more lethal theweapon that is used, the greater the aggravating factor will be. Whereoffenders use a broken bottle, the likelihood of very serious injury ishigh and this will also be a serious aggravating factor. Otherexamples are use of clubs, baseball bats and similar weapons which,particularly when aimed at the head, can cause significant andpermanent injury. The use of a syringe with infected blood or anaccelerant to set fire to the victim raise similar concerns to the use ofa weapon. Where the use of a weapon is premeditated, the criminalitywill be worse. In particular, if the offender brings a weapon to thescene with the intent of its being used, that will be severelyaggravating. Similar considerations arise if the weapon is brought tothe scene for use as intimidation, because it can be anticipated that aweapon brought to the scene in such circumstances will, in fact, beused by the offender. Another relevant factor will be the potential fordanger to the public, where, for example, a firearm is firedindiscriminately in a public place.(Emphasis added)[29] Finally, it was submitted for Mr Ta'akimoeaka that Judge Cunningham erredby failing to give him a discount for remorse.[30] Relevantly, Mr Ta'akimoeaka pleaded guilty. It was noted in the pre-sentencereport that he accepted that he had handled the situation poorly, and it was submittedthat this showed a degree of insight by him. Further, Mr Ta'akimoeaka offered toparticipate in a restorative justice conference. It was the victim who declined toparticipate. Finally, it was noted that Mr Ta'akimoeaka wrote a letter to JudgeCunningham where he expressed remorse for his actions.[31] Nevertheless, Judge Cunningham concluded that neither the letter nor MrTa'akimoeaka's other expressions of remorse were sufficient for her to conclude thatMr Ta'akimoeaka was expressing genuine remorse.27 R v Taueki, above n 4, at [31].[32] Section 9(2)(f) of the Sentencing Act 2002 requires the court to take intoaccount as a mitigating factor any remorse evidenced by an offender. It is a factorwhich should be dealt with separately – even where a guilty plea has been entered, anda discount allowed for that plea.28 In the leading decision of Hessell v R, the SupremeCourt commented as follows:29[64] Sentencing judges are very much aware that remorse may well beno more than self pity of an accused for his or her predicament and willproperly be sceptical about unsubstantiated claims that an offender isgenuinely remorseful. But a proper and robust evaluation of all thecircumstances may demonstrate a defendant's remorse. Where remorse isshown by the defendant in such a way, sentencing credit should properly begiven separately from that for the plea.[33] In my judgment, it cannot be said that Judge Cunningham erred in declining togive Mr Ta'akimoeaka a discount for remorse. Whether the remorse expressed wasgenuine was a matter for her to assess, in the context of her knowledge of the case andon the materials before her. She was entitled to be sceptical about the claim that MrTa'akimoeaka was genuinely remorseful. She was entitled to reach her ownconclusion in that regard. There was no error in principle in her approach.[34] In any event, there was something of a de facto additional discount. First, thereis the rounding and the mathematical error noted in footnote 11 above. Secondly, theJudge's decision not to uplift for Mr Ta'akimoeaka's previous convictions, or for thefact that the offending was committed whilst he was on bail, was arguably lenient andin favour of Mr Ta'akimoeaka.[35] In my view, the starting point of eight years and six months' imprisonmentadopted by Judge Cunningham was within the available range. It is consistent withrelevant case law, both in the Court of Appeal30 and in this Court.31 An appropriatediscount was given for the guilty plea which was entered.28 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].29 Hessell v R, above n 28.30 Nathan v R [2017] NZCA 18; Couper v R, above n 25; R v Roker, above n 26; Hu v R [2011]NZCA 412; Lewis v R [2015] NZCA 444.31 R v Roker, above n 26.[36] I am not persuaded that the end sentence imposed by Judge Cunningham of sixyears and three months' imprisonment was manifestly excessive. The appeal isdismissed._____________________________Wylie J