RIHIA v R [2016] NZCA 90

RIHIA v R [2016] NZCA 90 [5 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA549/2015[2016] NZCA 90BETWEEN JOSHUA KANI RIHIAAppellantAND THE QUEENRespondentHearing: 12 February 2016Court: Miller, Fogarty and Toogood JJCounsel: R J Laybourn and L S Caley for AppellantP K Hamlin for RespondentJudgment: 5 April 2016 at 3.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Toogood J)Introduction[1] In the District Court at Hamilton, a jury found Joshua Kani Rihia guilty of one charge of wounding with reckless disregard for the safety of another.1 This was an alternative to a charge of wounding with intent to injure, on which Mr Rihia was acquitted. On 14 September 2015, Judge Turner sentenced him to imprisonment for1 Crimes Act 1961, s 188(2); maximum penalty, 7 years' imprisonment.two years and two months.2 Mr Rihia now appeals this sentence on the ground that it is manifestly excessive.[2] The issues on appeal are whether the sentencing Judge made a material error in declining to discount the term of imprisonment on account of genuine remorse and, if so, whether a different sentence should be imposed.3 If a discount was called for, Mr Rihia may have been eligible for home detention rather than imprisonment.The facts[3] On the afternoon of 31 May 2014, Mr Rihia played rugby, following which members of his team and he socialised at various places in and around Raglan. Ultimately, they ended up at the same bar as the victim, Mr Horwood, and his friends. At about 2:00 am, Mr Rihia and some of his associates, and Mr Horwood and some of his friends, left the bar in a van with the idea that the driver would drop the passengers off at various places. At one point, one of the passengers needed a toilet break and everybody left the van.[4] An argument developed between Mr Horwood and Mr Rihia when Mr Rihia refused to allow Mr Horwood to re-enter the vehicle. When Mr Horwood told theMr Rihia to stop trying to be "the man", Mr Rihia replied, "I'll show you who's the fucken man" and immediately punched Mr Horwood on the right side of his jaw. Mr Horwood and another witness, Ms Splett, said the force of the blow was such that Mr Horwood was rendered unconscious instantly. He fell to the ground, striking his head on the concrete. Others present went to Mr Horwood's aid; eventually anambulance was called and he was taken to hospital. According to the Judge, who had presided over the trial, Mr Rihia showed no concern for Mr Horwood at any stage that morning.The victim[5] Mr Horwood suffered a fracture at the back of his skull, bruising to the brain and post-traumatic amnesia. He was referred to the Auckland Brain Injury2 R v Rihia [2015] NZDC 18309.3 Criminal Procedure Act 2011, s 250.Rehabilitation Unit where he remained for 15 days before he discharged himself. The amnesia had lasted for a period of seven days, which a specialist said was indicative of a brain injury of a moderate level of severity. Mr Horwood experienced difficulty walking due to poor balance, he suffered headaches and had difficulty sleeping.[6] The consequences of Mr Horwood's brain injury were serious. He had still been unable to return to work by the time of the sentencing, some 16 months after Mr Rihia assaulted him, and he was unable to drive a motor vehicle for about a year. He has suffered emotional harm and the incident and the injuries he suffered have inhibited his enjoyment of recreational activities.[7] A medical report on Mr Horwood that was disclosed to defence counsel indicated that he had earlier suffered head injuries and it suggested that some, at least, of the victim's ongoing difficulties may be attributable to his pre-existing condition.The starting point adopted by the sentencing Judge[8] Judge Turner assessed the attack as being unprovoked. He was satisfied that Mr Rihia was the aggressor, acting in an unjustified way preventing Mr Horwood from getting into the van, and reacting to the taunt that Mr Rihia should stop tryingto be "the man". The Judge regarded the punch to the head as a serious aggravatingfactor; he noted that it was a forceful blow and not the push or fend Mr Rihia had claimed it to be.[9] The Judge rejected the assertion by Mr Rihia's counsel that the unconsciousness resulted from Mr Horwood striking his head on the ground, saying he accepted the evidence given by Mr Horwood and Ms Splett that it was the punch that made Mr Horwood unconscious. The Judge also considered that Mr Horwood was vulnerable in the sense that the punch was entirely unexpected; that he was affected by alcohol; and that he was considerably smaller than Mr Rihia. The Judge referred to the seriousness of the injuries and their ongoing effect.[10] Judge Turner acknowledged that the jury rejected the Crown's allegation thatMr Rihia intended to injure Mr Horwood. He accepted that the verdict of the jury meant that the offending occurred when a "fit well-built young man appreciated the danger of [his] actions to the safety of others and proceeded regardless of that risk".4The Judge assessed the recklessness as moderate but regarded the blow as having potentially lethal consequences.[11] Taking account of the circumstances of the offending, and after looking at a comparable case,5 Judge Turner adopted a starting point of two years and six months'imprisonment as an appropriate response to the seriousness of the offending. Mr Laybourn disputed that assessment but we agree that the Judge, having heard the evidence at trial, made no error in his determination of the gravity of the offending and that the starting point he chose was within the available range, albeit at the higher end.6[12] The real issue for decision in this appeal is whether the Judge erred in his approach to mitigating factors which, it is submitted on behalf of Mr Rihia, calledfor a reduction from the starting point down to two years' imprisonment and the substitution of a sentence of home detention.7The Judge's treatment of mitigating personal factors[13] The Judge noted that at the age of 28, Mr Rihia's only previous conviction isone for driving with excess breath alcohol in 2011. He is the father of three children, one of whom resides permanently with him, and is seeking a parenting order for the day-to-day care of the other two with whom he has regular contact. Mr Rihia livesin an apparently settled relationship of nine months' duration; his partner has a 6 yearold son who lives with them. His partner's father, the principal of a Waikatosecondary school and a trained counsellor, provided a reference that spoke verypositively of the relationship and of Mr Rihia's personal qualities.4 R v Rihia, above n 2, at [18].5 MacDonald v Police [2012] NZHC 1767.6 See, for example, Rewa v Police [2015] NZHC 2459 and Elizalde v Police [2015] NZHC 959.7 Sentencing Act 2002, ss 15A(1)(b) and 4(1), definition of short-term sentence; and Parole Act 2002, s 4(1), definition of short-term sentence.[14] The Judge recorded the following observations drawn from the references provided to the Court, and from the pre-sentence report:[14] In terms of your employment you have worked for Fonterra since September 2011 as a machine operator in the company's dairy product manufacturing plant. This requires you to work on a rotating shift roster. Your employer is supportive of you, demonstrated by the reference provided.[15] You are assessed [by the probation officer] as a man, "Who typically lives his life in a pro-social manner with strong family values and work ethic." In that regard you have consistently played competitive rugby and recently taken up another sport which you hope to compete in at international level. I have read the letter from the secretary/treasurer of your rugby club. This offending is described in the probation report as "clearly uncharacteristic" and you are said to have expressed remorse at the impact your offending had on the victim. An offer to pay reparation was noted. In submissions you have offered to pay $3000 by way of an emotional harm reparation payment, payable initially at the rate of $20 per week.[16] The recommendation of the report writer is for a sentence of home detention and reparation. This is based on Probation assessing you as having a limited criminal history, insight into your offending, remorse, living typically a pro-social lifestyle and being assessed as at low risk of re-offending and harming others. Probation states that imprisonment or loss of employment would not be considered in the public interest.[15] The Judge allowed a discount of four months' imprisonment for the mitigating personal circumstances including Mr Rihia's previous good character andhis offer to pay reparation for emotional harm to Mr Horwood. Judge Turner noted that the probation officer had said that Mr Rihia accepted responsibility for his violent behaviour, but said that the statement was difficult to reconcile with the approach the appellant had taken at interview. Mr Rihia had provided the probationofficer with Mr Horwood's medical report, which reveals a history of traumatic brain injuries, the most recent being as a result of a motor vehicle accident in 2013.[16] The Judge said:[17] Plainly, you were intending to suggest that the impact of youroffending was not as significant as detailed in the material presented to the Court. Furthermore, you told the probation officer that your case at trial was based on self-defence and maintained your position to the probation officer that you did not punch the victim but rather pushed him with an open hand, like a rugby fend. In my view the probation officer was influenced by your statements because the report refers to the victim losing balance resulting in him sustaining a brain injury. In these circumstances I cannot agree with thereport writer that you have accepted responsibility for your violent behaviour nor [that you have] expressed genuine remorse for it.[17] Judge Turner summarised his view on the issue of remorse in this way:[28] In terms of remorse I do not assess you as exhibiting genuine remorse. You claimed at trial you were acting in self-defence. That was rightly rejected by the jury. When interviewed by Probation you maintained you did not punch the victim but pushed him away with an open hand. Today, you claim the victim was not knocked out by the blow. In these circumstances it is difficult to accept that you have demonstrated genuine remorse for your conduct. I discern you to be saying that you have learnt from your mistake rather than accepting responsibility for it.[18] The resulting end sentence of two years and two months' imprisonmentrendered Mr Rihia ineligible for a substitute sentence of home detention.8Counsel's submissions[19] Taking the starting point of two years six months' imprisonment adopted by the sentencing Judge, it was appropriate for the Judge to apply a discount of fourmonths' imprisonment in recognition of Mr Rihia's prior good character and theoffer, accepted by the Judge, to make a reparation payment to Mr Horwood of $3,000.[20] The essential argument for Mr Rihia is that the Judge erred in not acceptingas genuine Mr Rihia's expression of remorse and allowing a further discount of atleast two months in addition to the allowance of four months that he made. Such a discount would have led to the appropriate sentence being reduced to one of 24 months' imprisonment or less, with the result that the Judge would then have been able to consider whether home detention should be imposed. Mr Laybourn submits that the Judge made an error in failing to adopt the opinion of the probation officer that Mr Rihia took responsibility for his offending and was genuinely remorseful for it. It is argued that had the Judge not erred in his consideration of the probationofficer's view that Mr Rihia was genuinely remorseful, a different sentence would have been imposed.8 Sentencing Act, ss 4(1) and 15A(1)(b); and Parole Act, s 4(1).[21] For the respondent, Mr Hamlin relied on the observation of this Court inEdri v R that "an assessment of whether any expression of remorse conveyed for thepurposes of sentencing is genuine is quintessentially for the sentencing Judge, particularly where he or she has also presided over a trial".9 Counsel submitted that the Judge was entitled to identify a pattern of Mr Rihia refusing to accept responsibility for his actions from the moment he offended.Discussion[22] The Judge rejected the favourable view taken by the probation officer. His reasons for concluding that Mr Rihia did not fully accept responsibility for his offending and did not express genuine remorse may be summarised as follows:(a) Mr Rihia claimed at trial that he was acting in self-defence, that he did not punch Mr Horwood and that the victim became unconscious only because he fell, after being fended off, and struck his head.(b) He claimed to the probation officer that Mr Horwood sustained the brain injury because he lost balance and struck his head.(c) He provided the probation officer with Mr Horwood's medical report, which reveals a history of traumatic brain injuries, the most recent being the result of a motor vehicle accident in 2013. The Judge held that Mr Rihia was intending to suggest that the impact of this offending was not as significant as detailed in the material presented to the Court.(d) He told the probation officer that his case at trial was based on self-defence and maintained his position that he did not punch Mr Horwood but, rather, pushed him with an open hand, like a rugby fend.9 Edri v R [2013] NZCA 264 at [28].(e) The probation officer was influenced by Mr Rihia's statementsbecause the report referred to the victim losing balance resulting in his sustaining the brain injury.[23] Mr Rihia was entitled to run self-defence at the trial. In terms of assessing remorse, no adverse inference could properly be drawn from his informing the probation officer that he had done so. The Judge erred in taking the passing on of that information into account.[24] The medical report on Mr Horwood's condition, which had been disclosed to Mr Rihia's counsel by the Crown, was relevant to a determination of theconsequences of the offending. Mr Rihia was entitled to seek to persuade the probation officer and the Judge that the assault was not the sole cause of the longstanding and significant consequences for Mr Horwood. Mr Rihia was directed by his counsel to hand the report to the probation officer. The Judge did not know that it was counsel's decision to make the report available but, nevertheless, we consider he fell into error in regarding the provision of the report as a factor indicating absence of genuine remorse.[25] Mr Rihia said in his letter to the Court that he "most definitely" regretted thetrauma he caused Mr Horwood, that he never intended to injure Mr Horwood, and that he wished there was more he could do to amend his "poor and recklessdecision-making." Mr Rihia said he understood and acknowledged that he was responsible for all that had happened following the incident. He wrote an apologetic letter to Mr Horwood and offered to meet him personally. In addition to Mr Rihia'sown expressions of remorse, the Judge had before him strongly supportive lettersfrom Mr Rihia's partner, her parents, a representative of his rugby club, and two representatives of Mr Rihia's employer, including his workplace supervisor, all ofwhom testified to his remorse and the out-of-character nature of the offending. Another Judge may have been prepared to accept these views and agree with the probation officer that a sentence of imprisonment would not serve the public interest. One member of this Court would have done so had he been dealing with the matter at first instance.[26] Mr Rihia said in his letter, however, that he had been provoked and he was reported by the probation officer as saying that he had not punched Mr Horwood, but had pushed him as in a rugby fend. That was the basis for his defence at trial. Maintaining that position was inconsistent with the evidence of Mr Horwood and a witness that Mr Rihia had punched Mr Horwood in the head with considerable force; evidence which was accepted by the Judge. It was also inconsistent with the jury's verdict that he had been reckless. Notwithstanding Mr Rihia's expressions of regretabout the injuries suffered by his victim, it was open to the sentencing Judge to regard Mr Rihia's attempts to minimise the seriousness of his actions as indicating that he did not genuinely hold himself fully accountable.[27] An appellate court does not lightly interfere with the assessment of mitigating factors such as remorse by a sentencing judge, particularly one who has seen and heard a prisoner giving evidence. Moreover, a sentencing judge does not have toaccept a probation officer's views and may refuse to follow a probation officer'srecommendation as to the appropriate sentence. In this case, the Judge was entitled to emphasise the nature of the offending — an unprovoked blow of such severity that the complainant was immediately rendered unconscious — and the serious consequences for Mr Horwood. Although the Judge made errors in his sentencing approach by regarding the explanation of Mr Rihia's defence to the probation officerand the provision of the medical report as factors demonstrating lack of remorse, we have concluded that the other factors provided a tenable basis for Judge Turner to decline to make a further deduction for remorse.Conclusion and result[28] Because of what Mr Rihia did, and the serious consequences for his victim,we are not satisfied that the sentence of two years and two months' imprisonmentwas manifestly excessive. Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow a sentence appeal under s 244 of the Act if it is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. Although the first limb of the test is satisfied in this case, the second is not.[29] We dismiss the appeal.Solicitors:Crown Law Office, Wellington for Respondent