REIHANA v NEW ZEALAND POLICE [2020] NZHC 1786

REIHANA v NEW ZEALAND POLICE [2020] NZHC 1786 [22 July 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-57[2020] NZHC 1786BETWEEN MARK PETER BENNY MAIKAREIHANAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 July 2020(Heard at Tauranga)Appearances: R E Nabney for the appellantS J Revell for the respondentJudgment: 22 July 2020ORAL JUDGMENT OF PALMER JCounsel/Solicitors:R E and W T Nabney, Barristers, TaurangaPollett Legal, Crown Solicitor, TaurangaWhat happened?[1] On 7 August 2019, Mr Mark Reihana, aged 38, had been in a relationship withhis partner for about two years. She was 12 weeks pregnant. That day, he becameangry trying to get belongings out of a jammed wardrobe door. He followed hispartner into the kitchen and kicked the dining table over. He picked up a table legwhich had broken off and threw it at his partner, hitting her lower leg and leaving alarge red mark on her shin. She managed to get outside. As he left, Mr Reihana toldher "you just wait bitch I'm gonna fucking kill you." Throughout the day, he textedher saying "Touch my shit bitch and I'll kick your head in" and "Fuck you, your deadbitch" and "fuck off bitch you wonder why I want to smash your face in". The nextmorning, his partner found him asleep on the couch and, after another argument, calledthe Police and asked him to leave. Before leaving he said "you wait, I'm gonna getyou, I'm gonna kill you."[2] On 14 February 2020, Mr Reihana was on bail with conditions not to associatewith, or have any contact, with his partner. Yet he turned up at her address and tookher and her children, including the baby they have together, for a drive. After droppingoff her older children at kindergarten, Mr Reihana got into an argument with hispartner. He told her he was going to smash her head in and that she had it coming. Heyelled at her and called her abusive names.[3] Mr Reihana pleaded guilty to assault with a weapon, threatening to kill andwilful damage in relation to the August 2019 offending and speaking threateningly inFebruary 2020. These offences are punishable by maximum sentences ofimprisonment of five years, seven years, three months and three months' respectively.Mr Reihana has a significant criminal history dating back to 1999. Before the presentoffending, he had been convicted of five violent offences in the last five years,including for male assaults female and common assault. There had been two recordedprevious family harm incidents between Mr Reihana and his partner before theseincidents.[4] On 12 June 2020, in the Tauranga District Court, Judge T R Ingram sentencedMr Reihana to one year and eight months' imprisonment.1 He set a starting point of15 months for the lead charge and uplifted that by six months for prior convictions.2He uplifted it by two months for the February 2020 offending while on bail and gavea discount of three months for the guilty plea, noting it had not been entered promptly.3Submissions[5] Mrs Nabney, for Mr Reihana, submits the starting point for the August 2019offending was too high because there were not three aggravating features. She submitsthere was no attack to the head, no pre-meditation and only fleeting use of a weapon,causing much less serious injury which was not an aggravating factor. Sheacknowledges the vulnerability due to pregnancy. She submits the starting point forall those 2019 offences should have been no more than six to nine months. Shesubmits the uplift of 40 per cent for previous offences was not proportionate and itshould not have exceeded two months. She submits the two-month uplift for theFebruary 2020 offence was excessive and one month was required, at most. Shesubmits, overall, a sentence around eight months or in the range of seven and a half to10 months would have been appropriate and the 20-month sentence was manifestlyexcessive. She submits rehabilitation can take place in the community.[6] Mr Revell, for the Crown, submits the Judge did not materially err and thecorrect sentence was imposed. He submits there were three aggravating factors to theassault with a weapon: use of a weapon, victim vulnerability (being 12 weekspregnant) and injuries and cited other cases.4 He submits the starting point of15 months for all of the August 2019 offences, the six months uplift for previousrelevant and recent offending, and the two month cumulative sentence for the February2020 offending were all "stern, but within range". He acknowledges issue can be takenwith the overall elements of the sentence but is up to me to stand back and examinethe end sentence overall in totality.1 New Zealand Police v Reihana [2020] NZDC 10976.2 At [5].3 At [7].4 Mohib v New Zealand Police [2017] NZHC 123; Edmonson v Police [2015] NZHC 3184; Barrettv Police [2014] NZHC 1259.Should Mr Reihana's appeal succeed?[7] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there is a material error in the sentence and a different sentence should beimposed. My focus is on whether the end sentence is within the available range. Thereis no tariff case for assault with a weapon, but factors from R v Taueki and Nuku v Rcan be taken into account.5[8] Any family violence is serious. But the cases cited by Mr Revell involvedappreciably more prolonged and serious assaults with more serious weapons; ahammer, a carving fork and an aluminium baseball bat in family violence contexts.The starting points in those cases, for assault with a weapon, were 15, 14 and 12months respectively. I agree with Mrs Nabney that the use of a weapon was relativelyfleeting, was not pre-meditated and the injuries not particularly serious. But, being 12weeks pregnant, the victim was particularly vulnerable. I would set a starting point ofnine months for the assault with a weapon charge and uplift it by three months forthreatening to kill and wilful damage, so a starting point of 12 months for the August2019 offending. I consider the 15-month starting point adopted in the District Courtwas an error.[9] I also consider the 40 per cent uplift, of six months, for previous convictionsto be disproportionate. The convictions are relevant and some are recent. But I woulduplift the 12-month starting point by three months for the previous convictions.The uplift of two months for the February 2020 offending while on bail for offendingagainst the victim, with a condition not to associate with her and in the presence oftheir baby, is within range. The discount of three months for the guilty plea is notchallenged. But, following Moses v R, in the Court of Appeal recently, it must now bea discount from the starting point.65 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372; Nuku v R [2012] NZCA 584, [2013] 2 NZLR39.6 Moses v R [2020] NZCA 296.[10] Accordingly, I uphold the appeal. I set aside the sentence of one year and eightmonths' imprisonment imposed by the District Court, and impose instead a sentenceof one year and two months' imprisonment.Palmer JPostscript: After I delivered the above judgment, my attention was drawn to the factthat the Judge made directions for special release conditions to apply, after thesentence expiry date, as per a pre-sentence report. For the avoidance of doubt, thataspect of the District Court's decision remains intact.