MAIHI v R [2016] NZCA 205

MAIHI v R [2016] NZCA 205 [16 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA507/2015[2016] NZCA 205BETWEEN LUKE NAHI CAIN MAIHIAppellantAND THE QUEENRespondentHearing: 2 May 2016Court: Kós, Courtney and Gilbert JJCounsel: G A Walsh for AppellantP K Feltham for RespondentJudgment: 16 May 2016 at 12.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B The effective end sentence of six years, four months' imprisonment is setaside and replaced with an end sentence of five years, six months'imprisonment as set out in [34] of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Mr Maihi pleaded guilty to one charge of wounding with intent to injure1 and three charges of injuring with intent to injure2 arising out of four separate attacks against his partner over a 19 month period. He also pleaded guilty to assault on a child which occurred during the course of one of these attacks.3 He was sentenced by Judge Cocurullo in the District Court at Hamilton on 2 September 2015 to a combination of cumulative and concurrent sentences resulting in an end sentence ofsix years and four months' imprisonment.4[2] Mr Maihi appeals against this sentence on the ground that it is manifestly excessive. In particular, he contends that the overall starting point adopted of eightyears' imprisonment is disproportionate to the totality of his offending.The factsFirst attack — injuring with intent to injure — 24 December 2012[3] On 24 December 2012, the victim told Mr Maihi that she was pregnant to him. She also told him that their relationship was over due to ongoing domestic abuse. That night, Mr Maihi approached the victim while she was in the kitchen. After verbally abusing her, Mr Maihi punched her in the head, knocking her to the ground. While she was on the ground, he kicked her multiple times in the head, even as she attempted to crawl away and was fading in and out of consciousness. Mr Maihi only desisted in the attack after other people in the house intervened.[4] The victim spent one night in hospital where she received treatment for her injuries, being cuts and swelling to her head, including her right eye socket; loss of sensation of her right cheek and upper teeth; tenderness in her jaw and neck; and bruising to her lower back and forearms.1 Crimes Act 1961, s 188(2).2 Crimes Act 1961, s 189(2).3 Crimes Act 1961, s 194(a).4 R v Maihi [2015] NZDC 17525.Second attack — injuring with intent to injure, assault on a child — 30 October 2013[5] Around 30 October 2013, the victim was at home lying in bed with thecouple's three month old daughter. Mr Maihi climbed into the bedroom through a window and accused the victim of being unfaithful. He stood on the bed with one foot either side of the victim and leaned down towards her. Without warning, he punched the victim in the head numerous times. One or more of these blows glancedoff the victim's head and struck their baby on her head. The victim managed to getout of the bed and put the baby in her bassinet. Mr Maihi continued to punch her on the head as she did this. When the victim covered her head, Mr Maihi punched her once, but with full force, in the ribs.[6] As a result of this attack, Mr Maihi's partner sustained a broken rib, bruisingto her right eye socket and swelling and bruising to her head. The baby received minor bruising above her eyebrow.Third attack — injuring with intent to injure — 29 May 2014[7] After a night of drinking with Mr Maihi on 28 May 2014, the victim went to sleep with her now 10 month old daughter. Mr Maihi woke the victim up the next morning and complained that she had spent all the money on his eftpos card. He then punched her repeatedly about the face. The victim got off the bed and crawled along the floor in an attempt to get away from him but he followed her and continued to punch her in the head. The attack stopped when other people in the house intervened, having been woken by the noise.[8] As a result of this attack, the victim received cuts to both her eyes and swelling to her face and head. The following day she was unable to open her eyes properly because of the swelling.Fourth attack — wounding with intent to injure — 22 July 2014[9] On the afternoon of 22 July 2014, without warning, Mr Maihi punched the victim in the head with a closed fist knocking her onto a couch and causing her to lose consciousness. When she regained consciousness, Mr Maihi was on top of herrepeatedly punching her about the head. She fell onto the floor and Mr Maihi then kicked her in the genitalia. The victim, who was losing consciousness, put her arms around her head in an effort to protect herself from the continuing assault and cried out for someone to help her. Fearing that no one would come to her aid, she decidedto 'play dead' in the hope that Mr Maihi would stop attacking her. However, hecontinued to strike her, even as she lay motionless holding her breath. Fortunately,Mr Maihi's stepmother came into the room and lay on top of the victim in order toprotect her. Mr Maihi stopped and left the room.[10] The victim was taken to hospital where she was kept overnight for observation. She suffered a broken nose, bruising and swelling about her face and eyelids, tenderness over her scalp and bruising behind her left ear and on her leg. She had tenderness on her chest, shoulders, the back of her neck and scratches on the front of her neck. She had a hoarse voice, consistent with strangulation.Victim impact statements[11] Mr Maihi's partner prepared two victim impact statements, the first inOctober 2014 and the second in August 2015. Fortunately, she does not appear to have sustained any lasting physical injuries. However, in her first statement she spoke of the emotional harm caused by the violence. She reported that the last time Mr Maihi assaulted her it felt like he was going to kill her and said that the incident still gives her nightmares. She said "he broke my spirit and strength".[12] In her more recent statement, the victim said that although she does not excuse what Mr Maihi did, she has forgiven him. She said that Mr Maihi has many good qualities but needs intense counselling for his drug and alcohol problems and assistance with anger management. She does not believe that prison is the best option.Sentencing in the District Court[13] Judge Cocurullo was faced with a difficult sentencing exercise. He considered that the offending in each case fell within band 3 of R v Nuku because it involved extreme violence, attacks to the head, victim vulnerability and seriousinjury.5 In relation to the lead offence of wounding with intent to injure on 22 July 2014, the Judge identified a degree of cruelty as an additional aggravating feature. He adopted starting points for these offences as follows:(a) Wounding with intent to injure on 22 July 2014 – three years'imprisonment.(b) Injuring with intent to injure, including uplift for assault on a child, on 30 October 2013 – two and a half years' imprisonment.(c) Injuring with intent to injure on 24 December 2012 – two and a halfyears' imprisonment.(d) Injuring with intent to injure on 29 May 2014 – two years'imprisonment.[14] The Judge considered cumulative sentences were appropriate in this case for the reasons set out in the following two paragraphs of his judgment:[29] As to the sentencing approach, (concurrent versus cumulative sentencing) I am aware of the decision of R v Clarke (CA 128/06), where a cumulative sentence and approach in domestic violence was considered. At para 14, the Court said:Cumulative sentences for the acts of violence inflicted upon the victim were fully justified. Those who inflict serious violence upon females, whether partners or not, at different times and different places, cannot expect as a general course for sentencesof imprisonment to be concurrent. A "concession" for multipleoffending cannot be expected by such offender.Of course, the totality principle requires that the effective sentences not be out of proportion to the overall culpability of the offender but established authority is clear that the totality principle is not a discount for bulk offending.[30] Mr Walsh has provided a number of cases which cannot be read easily with the rationale as espoused in R v Clarke. I have considered the approach that he urged me to take. I do not approach the matter in that way and [prefer] the general approach as proffered by the Crown in the sentencing exercise. In my view, this is a clear case where it is proper to impose for the main, cumulative sentences.5 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.[15] Applying the totality principle, the Judge discounted the indicativecumulative starting point of 10 years' imprisonment by two years, to eight years.[16] The Judge then applied an uplift of three months to reflect Mr Maihi's fourprevious convictions for violence, three of which were serious: aggravated assault in 2014, for which he was imprisoned for six months; injuring with intent to cause grievous bodily harm in 2010, for which he was imprisoned for two years, two months; and robbery by assault in 2006, for which he was imprisoned for 12 months.[17] The Judge allowed a discount of six months to recognise Mr Maihi'swillingness to make amends, his remorse and his efforts while on remand to address his propensity to resort to violence.[18] Finally, the Judge allowed a discount of approximately 18 per cent for Mr Maihi's guilty plea. This resulted in an effective end sentence of six years and four months' imprisonment, as follows:(a) Wounding with intent to injure, three years' imprisonment.(b) Injuring with intent to injure on 30 October 2013, two and a halfyears' imprisonment, cumulative on (a).(c) Injuring with intent to injure on 24 December 2012, ten months'imprisonment, cumulative on (b), thereby totalling six years' and four months' imprisonment.(d) Assault on a child on 30 October 2013, 18 months' imprisonment,concurrent with the other sentences.(e) Injuring with intent to injure on 29 May 2014, 18 months'imprisonment, concurrent with the other sentences.Was the end sentence manifestly excessive?Submissions[19] Mr Walsh submits that the cumulative approach that the Judge adopted hasled to an end sentence that is wholly out of proportion to the gravity of Mr Maihi'soffending. He argues that the purposes and principles of sentencing could have beenmet by concurrent sentences giving an effective end sentence of four years'imprisonment, arrived at as follows:(a) Starting point on the lead offence of wounding with intent to injure,three years' imprisonment.(b) Uplift of 18 months' imprisonment for the balance of the offending,taking into account the totality principle.(c) Uplift of six months' imprisonment for previous convictions.(d) Aggregate discount of 20 per cent for mitigating factors and guiltypleas, resulting in an end sentence of four years' imprisonment.[20] Ms Feltham submits that although the sentence is stern, it is within the range of the Judge's sentencing discretion, given the significant levels of violence inflicted on the victim on four discrete occasions. She contends that the appellant was fortunate not to have been given a minimum period of imprisonment. Ms Feltham did not offer an alternative sentence computation based on concurrent sentences. Her submission was that this was a case where cumulative sentences were appropriate given the discrete nature of the offending. The ultimate issue was whether the overall sentence was manifestly excessive.Discussion[21] Although the offences were of a similar kind and involved the same victim, each attack was separated by many months and occurred at a different location. It was open to the Judge to treat them as not forming a connected series of offences andto impose cumulative sentences accordingly.6 As the Judge said, such an approach was endorsed by this Court in R v Clarke,7 a case also involving serious assaults of a similar kind against the same victim but not otherwise connected in time or location. However, where cumulative sentences are imposed, the Court must ensure that they do not result in an end sentence that is disproportionate to the gravity of the overall offending.8[22] While the Judge was entitled to impose a combination of cumulative and concurrent sentences, he could have followed the alternative approach of identifying an appropriate starting point on the lead offence and then applying an uplift to reflect the other offending. Regardless of which approach is adopted, the result should be similar and should reflect overall culpability.[23] There can be no criticism of the starting points adopted by the Judge for each of the separate offences. Mr Walsh takes no issue with this. The sole issue iswhether the adjusted overall starting point of eight years' imprisonment was disproportionately high.[24] The offending in the present case is of a more serious nature than in any of the cases cited to us. Of those, the decision of this Court in Clark v R provides the most assistance on the appropriate starting point.9 In that case, the appellant had pleaded guilty to three charges arising out of separate incidents of injuring with intent to injure spanning a five month period; a representative charge of male assaults female covering offending over a five and a half year period; and one charge of threatening to cause grievous bodily harm. The appellant also faced representative charges of assaulting his three children on various occasions over a three year period.[25] While Clark involved a greater number of offences committed over a longer period, the individual instances of offending were less serious and the injuries inflicted more minor. The first offence of injuring with intent to injure involved a6 Sentencing Act 2002, s 84(3).7 R v Clarke CA128/06, 6 June 2006.8 Sentencing Act, s 85(2).9 Clark v R [2013] NZCA 63.single backhand hit to the victim's face causing bruising to her left eye. The secondinvolved the appellant grabbing the victim by her throat and choking her for a short period. The third involved a slap to the face followed by a punch to the stomach andkicking to the victim's thigh and hip resulting in a visit to the doctor and time offwork but no significant injury. The representative charge of male assaults female reflected a pattern of violence involving hitting or punching causing minor injuries. The second representative charge related to a regular practice of threatening to kill the victim and put her where she would not be found. The representative charges relating to each of the children arose out of punching and slapping them.[26] The Crown accepted that the overall starting point adopted in the District Court in Clark of eight years' imprisonment was too high. This Court substituted a starting point of six years comprising a starting point of four and a halfyears' imprisonment for the offending against the appellant's partner and 18 monthsfor the offending against the children.[27] In reaching a starting point of four and a half years' imprisonment for the offending against the appellant's partner in Clark, this Court was guided by its earlier decision in Ngamotu v R.10 Mr Ngamotu pleaded guilty to 21 charges: assault with a weapon (x 2); assault on a female (x 6); injuring with intent to injure (x 2); assault with intent to injure (x 4); threatening to kill (x 3); assault on a child (x 3); and one charge of cruelty to a child. The primary victim was Mr Ngamotu's partner. Theother victims were their three children and a friend of his partner. The Court alsoadopted an overall starting point of approximately four and half years' imprisonment for all of the offending against Mr Ngamotu's partner including: hitting his partner inthe mouth with sufficient force to cause the loss of a tooth; hitting her four times in the face with a closed fist and punching her friend when she tried to intervene; head butting her causing a laceration to her right eyebrow requiring stitches; pulling her from the car and forcing her up against it using his forearm pressed to her throat causing her to have breathing difficulties for some time; grabbing her head in his hands with a clawing motion and ripping an earring from her ear causing a laceration and considerable bleeding; punching her in the head and pushing her to the ground; punching her in the head in front of two of the children for visiting a friend in10 Ngamotu v R [2010] NZCA 121.hospital rather than attending to his needs; punching her in the face four times causing a gash above her eye and a black eye; throwing a Stanley knife at her, but missing; kicking her in the leg and stomach with steel capped boots and continuing to do so as she lay on the floor; similarly kicking her with his boots on another occasion; and punching her and threatening to kill her.[28] Mr Maihi's offending is more serious than in Clark and Ngamotu. Eachincident involved a prolonged and seriously violent attack on the victim's head; shelost consciousness on two of these occasions and was therefore defenceless and extremely vulnerable, yet Mr Maihi continued to punch her. On three of the four occasions, Mr Maihi only stopped the attack as a result of the intervention of others. The victim suffered moderate to serious injuries on each occasion, including a broken rib on one occasion and a broken nose on another, both requiring her to be hospitalised overnight.[29] Nevertheless, while the individual starting points adopted by the Judge wereappropriate, we consider that the effective overall starting point of eight years'imprisonment for all of the offending against Mr Maihi's partner wasdisproportionate viewed in the light of the four and a half year starting points confirmed by this Court in both Clark and Ngamotu. We consider that an overall starting point of six years, six months' imprisonment should have been adopted.[30] We note that the same overall starting point was adopted by this Court inRasmussen v R for 17 charges of serious domestic violence against a partner over an eight year period: male assaults female (x 7, four of which were representative charges); threatening to do grievous bodily harm (x 2, including one representative charge); threatening to kill; assault with a weapon (x 5); injuring with reckless disregard; and assault with intent to injure.11 The sentencing Judge described the summary of facts in relation to the lead offence of threatening to cause grievousbodily harm as "about as bad as it gets". It involved Mr Rasmussen forcing hispregnant partner down on the ground on all fours, holding a shotgun to her head, (which she believed was loaded as she had seen him load it the previous evening), and then putting it into her mouth and threatening to kill her. On another occasion,11 Rasmussen v R [2011] NZCA 626.Mr Rasmussen pushed his partner to the floor, picked up the shotgun and threatened to beat her with it. As she crawled away, he hit her across the back three or four times with the shotgun. She was three months pregnant at the time. Other offending was described as involving severe beatings and threats. The offending included punching, strangling, kicking and pulling her by the hair across the room while her hands were tied behind her back and using a lighter to threaten further harm. This Court upheld an overall starting point of six and a half years to reflect the totality of the offending over the eight year period.[31] We accept Mr Walsh's concession that an uplift of six months should beapplied to reflect Mr Maihi's prior convictions for violent offending, rather than themore modest uplift of three months applied by the Judge. A further uplift of three months should be added to reflect that the offending in 2013 and 2014 occurred while Mr Maihi was subject to release conditions for prior offending. We note that the Judge did not impose any uplift for this.[32] No issue is taken with the discount of six per cent which the Judge allowed for personal mitigating factors. Nor is there any issue with the further discount of 18 per cent the Judge allowed for the guilty pleas. These adjustments result in an end sentence of five years and six months' imprisonment.Disposition[33] The appeal is allowed.[34] The following sentences are confirmed or substituted as shown:(a) Charge 7 — wounding with intent to injure on 22 July 2014 — thesentence imposed in the District Court of three years' imprisonment isconfirmed.(b) Charge 10 — injuring with intent to injure on 30 October 2013 — thesentence imposed in the District Court of two years, six months'imprisonment, cumulative on (a), is confirmed.(c) Charge 9 — injuring with intent to injure on 24 December 2012 —the sentence imposed in the District Court of ten months'imprisonment is confirmed, save that it is to be served concurrently with (a).(d) Charge 5 — assault on a child on 30 October 2013 — the sentenceimposed in the District Court of 18 months' imprisonment is confirmed, save that it is to be served concurrently with (a).(e) Charge 8 — injuring with intent to injure on 29 May 2014 — thesentence imposed in the District Court of 18 months' imprisonment isconfirmed, save that it is to be served concurrently with (a).[35] This means that the effective end sentence is reduced from six years, fourmonths' to five years, six months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent