TUMAI v NEW ZEALAND POLICE [2019] NZHC 1119

TUMAI v NEW ZEALAND POLICE [2019] NZHC 1119 [21 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000082[2019] NZHC 1119BETWEEN MARCUS TUMAIAppellantAND NEW ZEALAND POLICERespondentHearing: 30 April 2019Appearances: Julie-Anne Kincade for the AppellantHenry Benson-Pope for the RespondentJudgment: 21 May 2019JUDGMENT OF MOORE J[Appeal against sentence]RE-CALLED AND RE-ISSUED ON 23 MAY 2019 AT 4:00 PMThis judgment was delivered by me on 21 May 2019 at 4:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] After pleading guilty to 11 charges, the appellant, Marcus Tumai was sentencedby Judge D J Harvey on 6 March 2019 to a total of two years and eight months'imprisonment.1[2] The charges and sentences imposed are set out in the table below:Charge Sentence ProvisionAssault with a weapon Two years and eight months'imprisonmentCrimes Act 1961,s 202C(a)Male assaults female(x 5)One year's imprisonment Crimes Act 1961,s 194(b)Assault on a child (x 3) One year's imprisonment Crimes Act 1961,s 194(a)Breach of protectionorder (x 2)One year's imprisonment Domestic Violence Act1995, s 49[3] The essence of Mr Tumai's appeal is that the Judge erred in failing to givediscounts for remorse (as evidenced by a willingness to attend restorative justice) andhis efforts at rehabilitation. It is thus submitted the sentence was manifestly excessiveand that an end sentence of home detention should have been imposed.The offending[4] The principal victim of Mr Tumai's offending was his long term partner, G. Ghas six children; four with Mr Tumai and two from a previous relationship. The childvictim is D. He was Mr Tumai's stepson. Over the course of the offending D wasaged between 8 and 11 years.[5] The offending for which Mr Tumai was sentenced covers a period ofapproximately four years between August 2013 and August 2017. However, with theexception of the first charge in time (assault on a child) the offending occurred duringthe last 20 months of that period.1 Police v Tumai [2019] NZDC 4174.[6] The nine violent offences spanned seven separate occasions. I turn now toexamine each in chronological order.Assault on a child[7] Between 1 August 2013 and 16 August 2016 Mr Tumai punched D in theshoulder. On another occasion he struck him with a jandal.Assault with a weapon and male assaults female[8] On 4 July 2016 Mr Tumai was at home with G and their three daughters. Anargument arose. Fearful, G fled the house. Mr Tumai pursued her outside and threwa cricket bat at her legs. G was knocked to the ground where she was kicked andpunched. Then Mr Tumai grabbed her by the hair and dragged her inside. There heagain kicked her and hit her. G escaped. Mr Tumai pursued her into a bedroom. Therehe continued his attack, kicking and punching her with a closed fist. G suffered ablack eye.Male assaults female and assault on a child[9] Between 24 July and 16 August 2016 Mr Tumai was at home with G and D.He became angry with D and struck him with a broomstick a number of times. Gheard D crying and came into the room to investigate. Mr Tumai was standing overD. He struck him with the broomstick again; this time with such force that thebroomstick broke in half.[10] G attempted to intervene. Mr Tumai threw her against the wall. He struck herin the face a number of times. G escaped into a bedroom with D and the other children.D suffered red marks on his legs from the attack.Male assaults female[11] Between 1 and 16 August 2016 Mr Tumai returned home from work to find Gwith one of her friends. Mr Tumai was annoyed that the friend was present. Heexpressed his displeasure. G challenged him. Mr Tumai responded in rage. Hepunched G in the head. Then he kicked her and punched her; this time to the body.Mr Tumai only stopped when his step-parents arrived at the house unexpectedly.Assault on a child[12] Between 1 January 2016 and 16 August 2016, Mr Tumai was at home with D.He called out to D, who was in the lounge. D did not respond. Mr Tumai becameangry. He entered the lounge and found D lying on a mattress. Mr Tumai picked upa vacuum cleaner pipe and began striking D. G heard D's screams. She tried tointervene. Undeterred Mr Tumai continued to strike D with the pipe. D shielded hishead and rolled up into a ball. Mr Tumai continued to rain blows upon D's legs andback. Eventually, G managed to rescue D and escape from Mr Tumai. D sufferedheavy bruising to his legs.[13] On 7 December 2016 the Manakau District Court granted G a protection orderagainst Mr Tumai.Male assaults female and breach of protection order[14] Seven months later on 15 July 2017, G was at a family member's address.Mr Tumai arrived. At Mr Tumai's invitation he and G went out to share a meal.Afterwards, the pair returned to Mr Tumai's address. G fell asleep. She awoke to findMr Tumai berating her about how much money she had spent. She ran outside.Mr Tumai gave chase. He grabbed G by the hair and slammed her head into the sideof the house. This he did about five times. G was dazed. Mr Tumai then dragged herback inside by the hair. G suffered a black eye and bruising to her face.Male assaults female and breach of protection order[15] On 3 August 2017 G was visiting a friend's address. Mr Tumai met her there.She got into his car and the couple drove off. Mr Tumai was angry. He questioned Gabout being at her friend's address. As he drove Mr Tumai punched her in the face.This he did a number of times. The car stopped in traffic. G took the opportunity toflee. She got out of the car and waved down a member of the public who reported theincident to the Police.Mr Tumai's personal circumstancesPrevious criminal history[16] Mr Tumai is aged 33. His criminal history is limited. It consists of one driving-related conviction and two convictions for common assault. Significantly, theconvictions for violent offending were domestic in nature. The complainant was G.The criminal history records that the offence dates were in 2009 and 2010. In respectof the 2009 offending Mr Tumai was sentenced to 50 hours of community work. Forthe 2010 conviction he was sentenced to supervision for one year with specialconditions.PAC report[17] The pre-sentence report makes for concerning reading. Apart from recordingthat Mr Tumai's appearance for sentence reflects a significant increase in theseriousness of his offending, it also points to his evident lack of remorse; heacknowledged his wrong doing but the author of the report commented there was nomention or acknowledgment of the impact his actions had on his victims. The reportwriter also observed that Mr Tumai seemed unable to accept his relationship with Gwas over. He expressed a desire to reconcile and be reunited with his family.[18] The PAC report recorded that Mr Tumai's inability to deal with conflict ormanage his own anger in a rational way was something which required a significantlevel of rehabilitative intervention. It was noted, to Mr Tumai's credit, that he hadcompleted a "Man Up" programme but recognised he still continued to get angry andstruggled with those emotions. He acknowledged a willingness to engage in other likeprogrammes.Victim impact statement[19] In her victim impact statement, G reveals levels of ambivalence andcontradiction not uncommon in victims of domestic violence. She appears tominimise the effects of the physical abuse by observing that the punching and abuseshe received at Mr Tumai's hands was " a common thing" and that she was "uncomfortable for a few weeks ". But she insisted she did not suffer any long termeffects and just lived with the fact and accepted "that someone could punch you",adding that she remembered " heavy bruises and black eyes ".[20] In terms of emotional harm she records that she does not know exactly howshe feels, adding that she is " probably more confused and angry at Marcus" forhurting her and her children.Sentencing decision[21] The Judge identified the following aggravating features of Mr Tumai'soffending:2(a) the extent of the violence and the resulting harm;(b) the fact that the offending was continuous and prolonged;(c) the vulnerability of the victims; and(d) that other children were present.[22] The Judge referred to the "shame" caused to New Zealand by "serious,sustained family violence".3 He adopted a global starting point of three-and-a-halfyears' imprisonment. He then made a reduction of 25 per cent, or 10-and-a-halfmonths, to reflect Mr Tumai's guilty pleas. This led to an end sentence of two yearsand eight months' imprisonment.Approach to appeal[23] Under s 250 of the Criminal Procedure Act 2011, the Court must allow theappeal against sentence if it is satisfied that there has been an error in the sentenceimposed for any reason and that a different sentence should be imposed. Ultimately,the focus is on the sentence imposed, rather than the process by which the sentence isreached.42 At [9].3 At [11].4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].SubmissionsAppellant[24] As noted, this appeal focusses on the claim that the Judge failed to givesufficient discount for Mr Tumai's remorse and his efforts and willingness to engagein rehabilitation.[25] On the question of rehabilitation, Ms Kincade for Mr Tumai pointed to anumber of "genuine efforts" reflective of the appellant's sincere commitment torehabilitation. These include:(a) obtaining a certificate of completion for the five-week "SuccessfulParenting Programme" at Destiny Family Services;(b) obtaining a certificate of completion for the Triple P – PositiveParenting Programme at IOSIS Transforming Family Life for Good;(c) completing the nine-week Te Whare non-violence programme with TeWhare Ruruhau O Meri Trust and enrolling in a further nine sessions;and(d) participating in the 15-week Man-Up Tu Tangata programme.[26] Mr Tumai has also attended Narcotics Anonymous sessions with the Heart ofthe South at Friendship House.55 Verification of Mr Tumai's involvement in this programme was before the sentencing Judge.However, an email confirming the duration of his attendance was not. Ms Kincade submitted thatthe email was not fresh evidence but if the Court was to consider it as such, the appellant made anapplication to adduce the email. I am satisfied that the admissible material before the Courtprovides sufficient proof that Mr Tumai attended Narcotics Anonymous with the Heart of theSouth at Friendship House as is claimed.[27] Ms Kincade also seeks a discount for genuine remorse in accordance withHessell v R.6 She points out that Mr Tumai made an offer to participate in restorativejustice with his victims. That this did not eventuate was through no fault of his. Itwas because the victims were unable to be contacted.[28] Ms Kincade also confronted the comments in the pre-sentence reportsuggesting an evident lack of remorse on account of Mr Tumai's failure to mentionthe impact his actions had had on his victims. Ms Kincade submitted thatacknowledgment of wrong doing is sufficient to demonstrate remorse and that noteveryone expresses this sentiment in the same way.[29] Drawing these factors together, Ms Kincade submitted that the appropriatediscounts bring the end sentence to one under two years thus opening the door forhome detention to be considered as an available sentencing option. In support of thatproposition she submitted that by the time the appeal is heard Mr Tumai would havespent approximately eight weeks in custody.Crown[30] Mr Benson-Pope, for the Crown, submitted that any suggestion Mr Tumaishould have been the beneficiary of a discount for rehabilitative efforts must betempered by the fact that he has two previous convictions for violent offending againstG. He received a "rehabilitative" sentence in respect of the 2010 offending of oneyear's supervision with special conditions.[31] Furthermore, Mr Benson-Pope points out that the index offending involvedrepeated acts of violence committed against two complainants over a number of years.As such, the offending cannot be characterised as an impulsive or isolated lapse ofjudgement or loss of control.6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[32] Mr Benson-Pope says there is no "hard evidence of genuine regret andremorse";7 that any purported expression of remorse by Mr Tumai must be viewedwith some scepticism having regard to his previous offending against G.[33] Thus Mr Benson-Pope submitted that while the Judge might have affordedMr Tumai a limited discount for rehabilitative efforts, this would have been limited tofive per cent. He submitted that on the authorities,8 the starting point of three and ahalf years was available and, furthermore, it was open to the Judge to apply an upliftfor Mr Tumai's previous offending against G. The Judge's failure to do so operatedto Mr Tumai's benefit.AnalysisStarting point[34] I begin with examining the starting point. Because the Judge set a globalstarting point it is not possible to analyse, with any precision, how the 42-month figurewas arrived at. However, it is plain from the Judge's sentencing remarks9 that insetting that figure he not only took into account the nature of the violence, its repetitivequality and the duration over which the violent conduct occurred, but he alsoconsidered Mr Tumai's previous convictions.[35] Significantly, it does not seem that the Judge considered the seriouslyaggravating factor that from 7 December 2016 G was the subject of a protection orderagainst Mr Tumai and yet serious violent offending against her continued as reflectedin the two charges of male assaults female in July and August 2017 and the charges ofbreaching a protection order. Mr Benson-Pope aptly described the imposition of theprotection order as a "Court-imposed circuit breaker". I agree with him that it is aseriously aggravating factor of the offending that despite this intervention Mr Tumaicontinued to violently abuse his family.7 See Martel v R [2018] NZCA 305 at [24] citing Senior v Police (2000) 18 CRNZ 340 (HC) at [21].8 See Solicitor-General v SC [2017] NZHC 2252; R v Haggar [2014] NZHC 3082; C (CA155/2014)v R [2015] NZCA 33; SM v Police [2016] NZHC 960; Anderson v R [2016] NZCA 346.9 At [11].[36] Helpful guidance on sentencing levels involving prolonged and repeateddomestic violence may be obtained from the decision of Whata J in Solicitor-Generalv SC. This was a successful Solicitor-General's appeal.[37] The offending in SC involved violence committed against SC's partner and herchildren over a period of approximately two-and-a-half years leading to charges ofassault with a weapon, representative charges of assault on a child, injuring, maleassaults female and assault with intent to injure. On appeal Whata J reviewed anumber of cases involving multiple acts of domestic violence committed overextended periods.10 Starting points ranging from two years and four months to threeyears and three months were adopted.[38] Taking into account those authorities and the guiding principles in Nuku v R11Whata J considered the starting point of two years and six months' imprisonmentadopted by the District Court was too low and imposed a starting point of three years'imprisonment.[39] As Mr Benson-Pope properly accepted, the offending in SC involved moreserious injury (a broken ankle), included more victims, and, in all but a technical sense,spanned a longer period.[40] But, as previously noted although not specified, the starting point in the presentcase must also have taken into account an uplift for the two previous violenceconvictions against G and the fact that during the later incidents of serious violence Gwas the beneficiary of a protection order made against Mr Tumai. Both of these areseriously aggravating factors justifying an uplift.[41] Against those background factors it cannot be said that the starting point wasoutside the range reasonably available to the Judge. For example, it would have beenopen to the Judge to adopt a starting point of two years and nine months for the violentoffending and then impose uplifts of six and three months respectively for the breachesof the protection order and Mr Tumai's previous offending against G. Indeed, as I10 R v Haggar; (CA155/2014) v R; SM v Police all above n 8.11 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.understood Ms Kincade, she did not seriously challenge the Judge's global startingpoint given the combination of factors he took into account. Her submission was thatthe Judge gave inadequate credit for remorse and rehabilitative efforts. And it is tothose matters I now turn.Remorse[42] Remorse is a mandatory consideration for the Court at sentence.12 The Judgemade no explicit reference to remorse in his remarks.[43] As the Supreme Court observed in Hessell13 remorse is not necessarily shownsimply by pleading guilty. In criticising the Court of Appeal's approach that if remorsejustified a separate discount it could lead to "a discount creep" in cases where a pleaof guilty had been entered, McGrath J, delivering the judgment of the Court,observed:14"Sentencing Judges are very much aware that remorse may well be no morethan self pity of an accused for his or her predicament and more properly besceptical about unsubstantiated claims that an offender is genuinelyremorseful. But a proper and robust evaluation of all the circumstances maydemonstrate a defendant's remorse. Where remorse is shown by the defendantin such a way, sentencing credit should properly be given separately from thatfrom the plea."[44] As Ms Kincade pointed out, where there is tangible evidence of remorse, adiscount in the range of five to eight per cent may be given. It is in this context thatshe pointed to Mr Tumai's expressed willingness to engage in restorative justice.[45] It is also in this context that Ms Kincade squarely confronted the comments ofthe author of the PAC report. She was critical of the writer's observation that whileMr Tumai acknowledged his wrong doing there was an evident lack of empathy interms of the impact his actions had on his victims. Ms Kincade submitted that onlylimited weight should be placed on these comments; the report does not reveal whatline of questioning, if any, led to the writer's conclusion. As Ms Kincade observed,unless a direct question was asked, the absence of comment does not necessarily12 Sentencing Act 2002, s 9(2)(f).13 Hessell v R above n 6 at [64].14 At [64].provide evidence of lack of remorse. I agree with that submission. In my view limitedweight should be given to the author's comment in the absence of any discerniblefoundation.[46] However, as the Supreme Court observed, the assessment of remorse isnecessarily an evaluative exercise requiring a proper and robust examination of all thecircumstances.[47] The question in the present case is whether Mr Tumai's willingness to engagein restorative justice processes evinces a level of remorse beyond that which is implicitin pleas of guilty.[48] I am not satisfied it does. While it would seem that Mr Tumai now exhibitssome degree of insight into the extent he terrorised his family over the best part of twoyears, it cannot be overlooked that this was chronic offending committed afterconvictions for earlier offending and the imposition of a rehabilitative sentence in theform of supervision. And while Mr Tumai's active, albeit belated, engagement inrehabilitation is suggestive of insight and remorse, that is a factor which, in the contextof this case, deserves separate consideration to avoid double counting.[49] Furthermore, before I leave this topic, it is evident from the PAC report thatdespite acknowledging his wrong doing and having completed the various courses hehas, it would appear that Mr Tumai remains unable to accept that his relationship withG is over and he expressed a desire it be revived. This leaves me with real concernsas to Mr Tumai's insight and proper understanding of the scale of his offending andits effect on his victims and other members of the family.[50] For these reasons I am not satisfied that a separate and discrete discount forremorse is justified.Rehabilitation[51] As with remorse, rehabilitation is a relevant sentencing principle.15 Mr Tumaiis to be commended for his successful engagement in a wide variety of rehabilitativeprogrammes most, if not all, directed to anger management and the prevention ofdomestic violence and its drivers.[52] The Judge made reference to Mr Tumai taking "some steps to do somethingabout [his] behaviour "16 but obviously considered that given the seriousness andprolonged nature of the offending a separate discount for this personal mitigatingfactor was not justified.[53] I agree with Ms Kincade that Mr Tumai's demonstrated energy andcommitment towards rehabilitation is deserving of a separate and discrete discount.Indeed, Mr Benson-Hope accepted as much but submitted on the authorities thisshould be limited to five per cent. Ms Kincade said it should be in the range of 15 to20 per cent.17[54] In support of her submission, Ms Kincade referred me to a number of caseswhere discounts ranging from eight to 15 per cent have been given. In particular, sherelied on this Court's judgment in Sutherland v Police18 where the appellant receiveda 15 per cent discount for attending just one programme. However, I note that the 15per cent in that case was a combined discount for both rehabilitation and remorse.Furthermore, the degree of violence is incomparable. In Sutherland the offendinginvolved a single incident of spitting and, it would appear that Mr Sutherland had noprevious convictions for domestic violence.[55] The other case relied on by Ms Kincade was Kerr v R19 where an eight per centdiscount was given by the Court of Appeal in recognition of various positive effortsmade by the appellant to rehabilitate whilst in custody. However, it is not clear fromthe judgment what programmes were completed by Mr Kerr. The Court simply15 Sentencing Act 2002, s 7(1)(h).16 At [11].17 Although that range also included the remorse discount.18 Sutherland v Police [2017] NZHC 1802.19 Kerr v R [2017] NZCA 498.recorded that the Judge at sentencing had reduced the sentence by eight per cent inrecognition for " the positive steps Mr Kerr had taken while in prison and theprospect of changes in Mr Kerr's attitude and behaviour".20 The Court described thatas an appropriate discount. It is difficult to take anything more from the judgment.[56] As I have earlier observed21 a discount in recognition of rehabilitative effortsis not mandatory; lying very much within the discretion of the sentencing Judge havingregard to all the circumstances of the case. And while the Court may well view withsome scepticism rehabilitative efforts undertaken prior to sentencing, it cannot beoverlooked that in Mr Tumai's case he has not only involved himself in a wide varietyof relevant programmes but appears to have completed those successfully. He isentitled to some credit in recognition of those efforts.[57] Having regard to all of the circumstances of this case I am satisfied that adiscount greater than that submitted by the Crown is justified and that the proper levelshould be in the order of eight per cent.Conclusion[58] The starting point of three-and-a-half years remains. No discrete credit forremorse is given. An eight per cent (or three-month) discount for rehabilitation bringsthe provisional end sentence to three years and three months' imprisonment to whichthe full 25 per cent guilty plea discount should be applied. This leads to a final endsentence of 29 months or two years and five months' imprisonment.[59] Because this sentence is more than 24 months home detention is not available.However, in any event, I am not satisfied that a sentence of home detention, even if itwas available, would have been appropriate. This was sustained domestic violencecommitted on vulnerable dependents who, to use the Judge's word were "terrorised"by Mr Tumai's actions. The offending was committed against the background ofsimilar offending against the same victim despite the imposition of a rehabilitativesentence and, in respect of two charges, involved breaches of a protection order.20 At [62].21 Ross v Police [2015] NZHC 1633 at [42].Result[60] The appeal is allowed. The sentence of two years and eight months'imprisonment on the charge of assault with a weapon is quashed and substituted witha sentence of two years and five months' imprisonment. The sentences on all othercharges remain and are to be served concurrently with the sentence of two years andfive months' imprisonment.[61] Finally, I record the Court's gratitude to Ms Kincade and Mr Benson-Pope fortheir extremely helpful, succinct and focused written submissions ably supplementedby excellent oral argument.Moore JSolicitors:Ms Kincade, AucklandCrown Solicitor, Manukau