VELA v R [2020] NZCA 153

VELA v R [2020] NZCA 153 [8 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA217/2019[2020] NZCA 153BETWEEN MALAGI VELAAppellantAND THE QUEENRespondentHearing: 21 April 2020Court: French, Dobson and Nation JJCounsel: A J Bailey for AppellantM G McClenaghan and B Hawes for RespondentJudgment: 8 May 2020 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Following a judge-alone trial in the District Court, Mr Vela was convicted ofa charge of causing grievous bodily harm with intent to cause grievous bodily harmand a charge of attempting to pervert the course of justice.1[2] When it came to sentence, the District Court declined jurisdiction and referreddisposition to the High Court for consideration of preventive detention.21 R v Vela [2018] NZDC 21749.2 R v Vela DC Christchurch CRI-2016-009-12760, 27 February 2019.In the High Court, Cooke J decided that the offending did not meet the threshold forpreventive detention. Instead, he imposed a finite sentence of ten years' imprisonment,without any minimum period of imprisonment.3[3] Mr Vela now appeals that sentence.Facts of the offending[4] The victim was in a relationship with Mr Vela. They were living together.On Saturday 17 December 2016, she and Mr Vela got into a heated argument afterthe victim returned home intoxicated. He assaulted her.[5] On Tuesday 20 December 2016, Mr Vela took the victim to the hospital.[6] Clinical examination and a CT scan established that she had sustaineda significantly fractured jaw bone with severe displacement as well as significantdental trauma and extensive soft tissue swelling. She was hospitalised for four daysand underwent surgery involving the insertion of multiple metal plates and screws.She also required replacement of one of her front teeth which had been knocked outduring the assault. The treating clinicians indicated that a significant degree of forcewould have been required to cause the damage to her face.[7] Post operatively, the victim's face was very swollen and she had significantnerve damage in her lower jaw. On her last post-operative review on 2 February 2017,the surgeon noted she still had some residual numbness of her lower lip and chin andsome weakness of her left facial nerve as well as suffering from limited mouthopening.[8] In her victim impact statement two years later, the victim stated she was stillexperiencing tightness in her jaw and that the nerves in some of her bottom teeth haddied and the teeth had gone yellow.3 R v Vela [2019] NZHC 714 [Sentencing Notes].[9] After her release from hospital on 24 December 2016, the victim initiallyclaimed to have been assaulted by strangers. However, she eventually told herdaughters and the police that Mr Vela was responsible for her injuries.[10] Mr Vela was arrested and charged with causing grievous bodily harm.He denied any involvement. He was remanded in custody pending trial. The victimobtained a protection order against him.[11] Despite the protection order Mr Vela made over a thousand phone calls fromthe prison to the victim. She still had feelings for him. During the calls, he repeatedlyasked her to help him and change her story because he was looking at a long prisonsentence. In one of the phone calls, she made him aware the police were not solelyreliant on her evidence but that a neighbour would be giving evidence implicatingMr Vela. In a subsequent phone call, Mr Vela told the victim she was to speak tothe neighbour and tell him to "shut the fuck up." It was these two phone calls aboutthe neighbour that formed the basis of the charge of attempting to pervert the courseof justice.[12] Prior to trial, Mr Vela sought and obtained a sentencing indication fromJudge Kellar in the District Court.4 Counsel on both sides and the Judge agreed thata five year starting point for the violent offending would be appropriate. The Judgesaid he would uplift that by two and a half years' imprisonment for the pervertingjustice charge, with a further uplift of one year on account of Mr Vela's criminalhistory. The resulting term of eight and a half years' imprisonment would then bereduced by 20 per cent for a guilty plea were Mr Vela to accept the sentencingindication and plead guilty.5 This would result in a sentence of six years and10 months, which the Judge said would then be reduced to an end sentence of six anda half years' imprisonment on a totality basis.6 The Judge would also have imposeda minimum period of imprisonment of three years.74 R v Vela DC Christchurch CRI-2016-009-12760, 24 November 2017.5 At [10].6 At [11].7 At [14].[13] Mr Vela did not accept the sentencing indication and the matter proceeded totrial.[14] At trial, the victim maintained she could not recall the assault but was surethe perpetrator was Mr Vela. The presiding Judge, Judge Farish, found both chargesproved.Sentencing in the High Court[15] Much of the sentencing decision is concerned with issues relating to preventivedetention. It is not necessary for us to traverse those. Our focus is on the finitesentence of ten years' imprisonment that was imposed.[16] Cooke J first addressed the charge of causing grievous bodily harm.[17] He identified five aggravating factors of the offending, namely that extremeviolence had been used, significant harm had been caused, the assault had involvedan attack to the head, the victim was vulnerable because she was highly intoxicatedand the offending involved the violation of the sanctity of the home.8 The Judge wenton to say that given the presence of five aggravating factors, particularly the severityand lasting nature of the injuries, he considered the offending fell within the upper endof band two of this Court's guideline decision of R v Taueki warranting a starting pointof eight years' imprisonment.9[18] Turning to the perverting the course of justice charge, the Judge acknowledgedit was not suggested the victim had ever attempted to contact the neighbour. He statedthat while it was not a case of very serious offending, it was nevertheless significantoffending. Having regard to the seriousness of the charge, as reflected in the maximumpenalty of 14 years' imprisonment, and the potential effect of contacting the neighbour,he adopted a starting point of 18 months' imprisonment.108 Sentencing Notes, above n 3, at [50]–[51].9 At [53]; and R v Taueki [2005] 3 NZLR 372 (CA).10 At [55].[19] That resulted in a cumulative starting point for both offences of nine and a halfyears' imprisonment. In the Judge's view, the overall gravity of Mr Vela's offendingwas serious and there was nothing to suggest this starting point should be adjusted fortotality.11[20] As regards relevant personal factors, the Judge found there were no mitigatingfactors but there was one aggravating one, being Mr Vela's criminal history.[21] In 2009, Mr Vela was convicted of five offences resulting in a prison sentenceof seven years and eight months' imprisonment.12 One of those offences occurred in2007 when Mr Vela failed to obtain medical treatment for his 18 month old son whohad a broken leg and arm. The other four related to violent and sexual offending in2007 against his then partner. The latter offences involved Mr Vela in assaulting hispartner by pulling her hair and holding a knife up to her throat; by using a chair asa weapon, striking her on her back, and hitting her on the head with a glass bottle andthen forcibly removing her pants and forcing the broken bottle up her anus.She suffered significant injuries requiring medical attention.[22] In the view of Cooke J, this criminal history warranted a further uplift ofsix months. The uplift resulted in a final end sentence of ten years' imprisonment.13Grounds of appeal[23] The focus of the appeal was the Judge's starting point of eight years'imprisonment for the violent offending. On behalf of Mr Vela, counsel Mr Baileyargued eight years was manifestly excessive. In his submission, a number of factorshad led the Judge into error.[24] The first was that neither the sentencing indication nor the comparator caseson which that sentencing indication was based were brought to the Judge's attention.As it was, the Judge received submissions from stand-by counsel on behalf of Mr Vela11 At [56].12 R v Vela DC Auckland CRI-2007-090-12345, 14 August 2009.13 Sentencing Notes, above n 3, at [57].which advocated a starting point that was two and a half to three years more thanthe starting point of five years previously suggested in the District Court by the Crown.[25] The second and related factor was that the Judge did not have regard to anycomparator cases but relied exclusively on Taueki. Mr Bailey conceded it was notmandatory for a sentencing judge to refer to other cases where there is a guidelinedecision, but argued that had the Judge been referred to the decisions cited bythe Crown at the sentencing indication, including Ryan-Thoms v R and Hape v R,the outcome may well have been different.14[26] In both those other cases, Mr Bailey argued, the offending was more seriousthan Mr Vela's offending and yet the respective starting points (six and a half yearsand five and a half years) were lower. Moreover, in both cases on appeal, this Courtdescribed the sentences as "stern."15[27] The third factor which Mr Bailey submitted had led the Judge into error washis flawed treatment of the aggravating factors. The Judge had over-stated the degreeof extreme violence and had double counted when relying on both extreme violenceand significant injury as discrete aggravating factors.[28] And finally, in Mr Bailey's submission, the Judge was wrong to treatthe perverting justice charge as unrelated offending, wrong to reject any need fortotality as well as being wrong to address totality before applying the six month upliftfor previous convictions. The proper place in the sentencing process was to applytotality at the very end.[29] As to what was the appropriate starting point for the violent offending,Mr Bailey submitted that the starting point originally suggested by the Crown andadopted by Judge Kellar of five years' imprisonment was appropriate.14 Ryan-Thoms v R [2013] NZCA 518; and Hape v R [2015] NZCA 187.15 Ryan-Thoms v R at [21]; and Hape v R at [13].Our view[30] Contrary to the submission made by Mr Bailey, we do not accept that Cooke Jwas required to place any weight on a sentencing indication that Mr Vela had rejected.The Judge had to consider the sentencing exercise afresh with the benefit of allthe information. That included the evidence at trial, Judge Farish's findings andthe medical assessors' reports obtained under s 88(1)(b) of the Sentencing Act 2002,one of which stated that Mr Vela was at high risk of future intimate partner violence.[31] Taueki is the guideline decision on sentencing for serious violent offending.The decision sets out three sentencing bands with a range of starting points for each.Which band any particular case falls into will depend on the number and nature ofthe aggravating factors present. Factors identified in Taueki include extreme violence,premeditation, serious injury, use of weapons, attacking the head, vulnerability, andinvading the sanctity of the home. The description of the bands is as follows:(a) Band one: three to six years — appropriate for lower end offending.Not an appropriate band for offences of extreme violence or violencethat is life threatening. A domestic assault which is impulsive, does notinvolve the use of a weapon and does not cause lasting injuries butwhere the victim was vulnerable, may require a starting point offour years. Premeditation or use of weapon (but no lasting injuries)perhaps five years or more.16(b) Band two: five to 10 years — appropriate for offending which featurestwo or three aggravating factors.17(c) Band three: nine to 14 years — three or more aggravating features andthe combination is particularly grave. A domestic attack situationwhere the attack involves a premeditated home invasion, with the useof a weapon, vulnerable victim and lasting injuries, a starting point atthe top of the range may well be required.1816 R v Taueki, above n 9, at [36]–[37].17 At [38]–[39].18 At [40]–[41].[32] On our view, Mr Vela's offending clearly fell within band two. It was a severeattack to the head of an intoxicated victim by her partner. The attack left long lastinginjuries.[33] As to where it should be placed within band two, we agree with Mr Bailey thatbecause of the width of the bands and the element of overlap between bands, it mayoften be helpful to look at comparator cases.[34] We do not however place the weight he asks us to do on Ryan-Thoms and Hape.Significantly, neither of those two cases involved family violence. As noted by thisCourt in Solicitor-General v Hutchison, family violence has become one of thescourges of New Zealand society. 19 It involves special issues of inherent vulnerabilityand what has been described as the "breach of an intangible trust" or social contract.20In cases where the offending occurs in the home, those issues are usually encapsulatedin treating the breach of the sanctity of the home as a very significant aggravatingfactor —which is the way Cooke J put it in this case — but they apply equally to caseswhere the family violence occurs outside the home. At one point of his submissions,Mr Bailey suggested that the fact of a domestic context should be treated as a neutralfactor, that is to say neither mitigating nor aggravating. We disagree. The correctapproach, as Hutchinson makes clear, is that a domestic context is a fact that bringswith it a mixture of aggravating factors.[35] In terms of comparator cases, we therefore prefer to place greater weight oncomparable decisions involving family violence cited by the Crown such as Setu v R,Hutchison, Griffiths v R, Kauwhata v R, and Kaio v R.21 These decisions had startingpoints ranging between seven and ten years. Mr Bailey has rightly drawn our attentionto points of difference between those cases and Mr Vela's case, including differencesin the seriousness of the offending, the number of charges and the existence ofa protection order at the time of the offending.19 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420.20 At [27].21 Setu v R [2017] NZHC 1839; Griffiths v R [2011] NZCA 102; Kauwhata v R [2010] NZCA 451;and Kaio v R [2012] NZCA 168.[36] However, in our view what these cases combined with Taueki tend to show isthat the starting point adopted by Cooke J was within range, albeit towards the top ofthe range.[37] As for the uplift of 18 months on account of the perverting justice charge,we accept it was related offending in the sense it concerned the trial of the other chargebut it was discrete offending and clearly warranted a distinct, that is a cumulative,uplift. In terms of what the uplift should have been, we note that ironicallyJudge Kellar's uplift on the sentencing indication was actually higher, being acumulative uplift of two and a half years' imprisonment. The Courts have alwaystreated attempts to pervert the course of justice as serious because they strike at theintegrity of the justice system and rule of law. That said, having regard to the facts ofthis case, we do not consider an uplift any higher than 18 months would have beenjustified. There was no threat to use violence against the neighbour and nothing cameof it.[38] Finally, we accept other judges may have reduced the global starting point onaccount of totality. However, on the facts of this case, we are not persuaded thatthe Judge having turned his mind to totality made an error by declining to do so.Further, had the Judge looked again at totality after all personal factors had beenconsidered and adjustments made to the starting point so that he was consideringthe overall gravity of the offending by this offender — which we understand isthe point made by Mr Bailey — it would not have made any material differencebecause there were no mitigating personal factors. Certainly, Cooke J's uplift ofsix months for the criminal history was more favourable to Mr Vela than thesentencing indication (12 months) as was the Judge's decision not to imposea minimum period of imprisonment.[39] Standing back and looking at all the circumstances of the case, we concludethat a ten year sentence was a somewhat stern sentence. But it was clearly availableto the Judge and the appeal is therefore dismissed.Outcome[40] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent