MITA v NEW ZEALAND POLICE [2017] NZHC 2573

MITA v NEW ZEALAND POLICE [2017] NZHC 2573 [20 October 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-29[2017] NZHC 2573BETWEEN KEEGAN KENDRIX MITAApplicantAND NEW ZEALAND POLICERespondentHearing: 10 October 2017Appearances: S Jefferson for the AppellantC Stuart for the RespondentJudgment: 20 October 2017JUDGMENT OF CULL J[1] Mr Mita pleaded guilty and was sentenced on 9 August 2017 in relation totwo charges of male assaults female1 and one charge of attempting to pervert thecourse of justice.2 Judge Rea sentenced Mr Mita to two years and five months'imprisonment.3[2] Mr Mita appeals his sentence on the basis that it breaches the totalityprinciple under the Sentencing Act 2002 (the Act) and is manifestly excessive.[3] The Crown opposes the appeal on the grounds that the end sentence reflectsthe totality principle and is within the available range.1 Crimes Act 1961, s 194(b). Maximum penalty is two years' imprisonment.2 Section 117(e). Maximum penalty is seven years' imprisonment.3 R v Mita [2017] NZDC 17661.Factual background[4] Mr Mita was in a relationship with the complainant from late 2015. On orabout 26 May 2016, Mr Mita had a verbal argument with the complainant. Mr Mitawanted the complainant to leave with him and told her to get in the car. She wasreluctant to comply with his wishes and initially refused but then got into the car asMr Mita was being insistent. Once they left, Mr Mita punched the complainantrepeatedly to her body. The complainant was 17 weeks pregnant at the time anddescribed suffering a lot of pain because of the attack. This incident is the subject ofthe first male assaults female charge.[5] Once they got to Mr Mita's house, Mr Mita took the complainant's cell phoneand insisted she remain in his bedroom and if she wanted to use the bathroom shehad to ask his permission and leave the door open while in the bathroom.[6] The next day, Mr Mita and the complainant left the house. The complainantmanaged to escape from Mr Mita and, after contacting her family, was taken toHawke's Bay Hospital where she was admitted for treatment. While a patient at theHospital, Mr Mita visited and was observed holding her in a bear hug from behind.Mr Mita held his hands between the complainant's neck and chest. She wasrepeatedly yelling "Let me go, let me go". The complainant indicated she wanted touse a phone in private and she wanted to go to the bathroom alone. Despite theserequests, Mr Mita would not release her. Hospital staff intervened and Mr Mitareluctantly let the complainant go. This incident is the subject of the second maleassaults female charge.[7] The complainant remained in hospital for five nights and was discharged on2 June 2016. She had extensive bruising to her body, especially to her right side andwas having trouble breathing.[8] On 8 June 2016, Mr Mita was arrested and remanded in custody in relation tothis offending. While he was in custody, between 25 June and 16 August 2016,Mr Mita telephoned the complainant on 52 occasions. On some of these calls,Mr Mita was heard discussing the upcoming court proceedings and attempting topressure the complainant into providing him with assistance, including by filing falseaffidavits. On 18 August 2016, the complainant filed an affidavit with the Court, inwhich she attempted to retract her statement. This conduct represents the charge ofattempting to pervert the course of justice.District Court decision[9] The Judge considered that the two male assaults female charges required astarting point of 18 months' imprisonment. He noted that assaulting the complainantwhile she was 17 weeks pregnant is "serious offending in itself."4[10] The Judge then uplifted this by another 18 months' to reflect the perversionof justice charge. An additional uplift of three months' was given to reflectMr Mita's previous convictions. The final starting point for all charges was,therefore, three years and three months' imprisonment.[11] A "reasonably substantial discount" was considered appropriate for Mr Mita'sguilty plea. A discount of 8 months' imprisonment (25 per cent) was given.5[12] The Judge imposed a final concurrent sentence of two years and five months'imprisonment. Two years and five months' imprisonment was imposed for thecharge of attempting to pervert the course of justice. Eighteen months'imprisonment was imposed for each of the two charges of male assaults female.Approach to appeal[13] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion. An appeal against sentencemust be allowed if the Court is satisfied that, for any reason, there is an error in thesentence imposed and a different sentence should be imposed.6 The focus is on thefinal sentence and whether that was in the available range, rather than the exactprocess by which it was reached.74 Mita, above n 3, at [1].5 At [4].6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.7 Ripia v R [2011] NZCA 101 at [15].Mr Mita's position[14] Mr Mita appeals his sentence on the basis that it breaches the totalityprinciple and is manifestly excessive.[15] Mr Jefferson, counsel for Mr Mita, submits s 85 of the Act requires asentencing judge to consider each offence individually, as well as the offender'soverall culpability, to determine what the appropriate effective sentence is for thetotality of the offender's conduct. The total end sentence should not be determinedby sequentially adjusting the appropriate end sentence for each individual offence inorder to fit the totality principle. Relying on the Court of Appeal's decision inHaywood v R, Mr Jefferson submits the analysis should be guided from the outset byan appreciation that the total period of imprisonment should be in proportion to thegravity of the overall offending.8[16] Mr Jefferson further submits the sentence of three years three months'imprisonment is out of proportion to the gravity of the overall offending. Althoughthere were three separate incidents, these offences were part of a connected sequenceof events. Mr Jefferson argues that the sentencing should have been guided byrecognition of this gravity. He contents an end sentence of two years' imprisonmentwould appropriately reflect the overall offending. It is accepted home detention isnot a viable option.Crown's position[17] The Crown opposes the appeal because the end sentence reflects the totalityprinciple and is within the available range.[18] The Crown acknowledges that the Judge did not approach the sentencingexercise by arriving at discrete starting points for the individual charges and thenmaking an explicit adjustment to reflect the totality of the offending. However, theCrown submits that the approach taken was equally available and was not in error.8 Haywood v R [2015] NZCA 551.[19] The Crown submits it is implicit in the use of an 'uplift', as opposed to adiscrete starting point, that issues of totality were at the forefront of the Judge'smind. The obstruction of justice offending was sufficiently serious that a startingpoint well in excess of 18 months' imprisonment would have been justified. The factthat such a starting point was not imposed confirms that the Judge took a globalapproach to the offending. The Crown relies on the Court of Appeal's comments inR v Williams, where the validity of this approach was acknowledged.9[20] The Crown relies on two Court of Appeal decisions to demonstrate that thesentence imposed on Mr Mita was well within the available range.10Discussion[21] The circumstances surrounding the sentencing of Mr Mita are relevant to thechallenge raised about the Judge's approach to sentencing in this appeal. Mr Mitawas due to stand trial on these charges and a further charge, which was withdrawn,on the entry of Mr Mita's guilty pleas one week before the scheduled trial. Mr Mitapersonally petitioned the Judge to sentence him that day and the Judge recalled thematter in the afternoon, to sentence Mr Mita. Mr Mita had waived a pre-sentencereport.[22] The more orthodox way of approaching sentencing is to fix a starting pointfor the charge of attempting to pervert the course of justice first, as the more seriouscharge, and then apply an uplift to reflect the assaults and Mr Mita's previousconvictions. However, the Judge has adopted a starting point of 18 months'imprisonment for the charges of male assaults female and uplifted that starting pointby a further 18 months to reflect the charge of attempting to pervert the course ofjustice. He then applied an uplift of three months for the appellant's previousconvictions.[23] The alternative option was to approach the sentencing exercise by arriving atdiscrete starting points for the individual charges and make an explicit adjustment toreflect the totality of the offending. However, the Judge in his use of an "uplift" as9 R v Williams CA91/00, 3 May 2000 at [11].10 Harting v R [2016] NZCA 296; and Miller v R [2014] NZCA 382.opposed to a discrete starting point, reached the same result, as the totality of theoffending was clearly at the forefront of his mind. I reach the view that, because theassault offending was sufficiently serious a starting point in excess of 18 months'imprisonment would have been justified, as I canvass below.[24] There are no tariff cases for the present offending. However, comparablecases have been examined for the purposes of this appeal[25] For the two charges of male assaults female, Mr Mita attacked a pregnantwoman, using a moderate degree of force, with an element of detention and withserious injuries requiring hospitalisation. The starting point of 18 months'imprisonment for both of these assaults is comparable with the seriousness and typesof sentences imposed in relevant authorities.11[26] The aggravating features of the assaults include:(a) that there were two incidents, one of them at hospital while thecomplainant was seeking treatment for the earlier assault;(b) there were multiple punches to the complainant's body;(c) the complainant was 17 weeks pregnant at the time;(d) there were elements of detention in both incidents; and(e) the injuries suffered by the complainant were serious (extensivebruising and difficulty breathing).[27] This was serious domestic violence offending, which could have justified alonger sentence of imprisonment. The fact that the Judge did not impose a sentencein excess of 18 months' imprisonment signifies that the Judge was adopting a globalapproach to the offending, by considering the two discrete types of charges in theway that he did.11 R v Richardson [2012] NZHC 1465; Dockerty v Police [2012] NZHC 2500; and R v CokerCA421/04, 21 April 2005.[28] The Court of appeal in R v Williams has acknowledged that a global approachto sentencing is valid.12 The Court said:[11] We reject the argument that there is a particular way in which totalsentences must be put together in respect of multiple offending. The issue iswhat is an appropriate total sentence for the various charges which have beenadmitted or proved. How that is constructed in the particular circumstancesis a matter of individual discretion and assessment. Sometimes there isadvantage in imposing cumulative sentences on some or all of the charges,whereas others are more appropriately dealt with by one major sentencewhich subsumes all matters, with concurrent sentences imposed. [29] I do not consider, therefore, that the Judge was in error in adopting thestarting point of 18 months for the assault charges.[30] Following the assaults, Mr Mita was placed in custody. From there, he made52 phone calls to the complainant, threatening and pressuring her to deny theoffending. The content and tone of some of these calls are extremely aggressive.[31] I accept the Crown's submission that the charge of attempting to pervert thecourse of justice alone could have received a starting point above the 18 month upliftimposed by Judge Rea. In light of the decisions in Kingi and Harting, where startingpoints of two years' imprisonment were adopted, a starting point of between two andthree years' imprisonment could have been appropriate in the present case.13 InKingi, the Court of Appeal highlighted that Mr Kingi's attempts to dissuade thecomplainant from giving evidence had an undercurrent of violence as they occurredin the context of a violent relationship.14 In that case Mr Kingi wrote to thecomplainant on a number of occasions from prison. In Harting, Mr Harting wrote tohis step-daughter encouraging her to make a false affidavit and made three phonecalls, which were aggressive.[32] Here, Mr Mita's behaviour was of a similar nature to these two cases, if notmore aggressive and persistent. Mr Mita contacted the complainant 52 times.Mr Jefferson submitted that the majority of these calls were amicable and part of theongoing relationship between Mr Mita and the victim. He submits that all of the12 Williams, above n 9.13 R v Kingi CA 360/01, 1 May 2002; and Harting v R [2016] NZCA 296.14 Kingi, above n 13, at [18] and [28].calls should not be considered to be aggressive or unwanted. It is correct that thevictim was willing to be "an approved contact" for Mr Mita to phone her fromprison. However, Mr Mita, by his persistence and threats, ultimately persuaded thecomplainant to file a false affidavit, retracting her allegations. The nature of thosethreatening calls are contained in the summary of facts.[33] I consider an 18 month uplift for this offence was also appropriate. Giventhat a starting point of up to two or three years' imprisonment was within theavailable range to the Judge, it is plain that the 18 month uplift was as a result of theJudge taking into account a reduction for the totality of Mr Mita's offending.[34] The Judge also gave a three month uplift to reflect Mr Mita's previousconvictions. Mr Mita has 54 previous convictions. Several of these are minoroffences such as shoplifting, driving while disqualified and demanding to steal.However, Mr Mita also has nine convictions for various assault or violent offendingcharges and three convictions for threatening to kill or commit grievous bodily harm.I consider a three month uplift, given the pattern of violent offending by Mr Mita andhis serious domestic violence offending, was appropriate.[35] I do not consider the starting point of three years three months' imprisonmentis out of proportion to the gravity of the overall offending. The total period ofimprisonment is in proportion to the gravity of the overall offending.[36] The 25 per cent discount for guilty plea was appropriate as Mr Mita pleadedguilty the week before the trial was due to commence.[37] The appeal is dismissed.Cull JSolicitors:Crown Solicitor's Office, Napier