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IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA51/2023[2023] NZCA 320BETWEEN MATIU HOPAAppellantAND THE KINGRespondentHearing: 11 May 2023Court: Miller, Woolford and Cull JJCounsel: S Brickell for AppellantFMT Culliney for RespondentJudgment: 24 July 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Hopa appeals his sentence of two years and four months' imprisonment forstrangulation, breach of a protection order and male assaults female.1 He says that thestarting point adopted by the trial Judge was too high and the uplift for a breach ofprotection order was too large. He says that he ought to have been sentenced to22 months' imprisonment.1 R v Hopa [2022] NZDC 25339 [Sentencing notes].[2] The victim was his former partner. She described the relationship ascontrolling on his part. She obtained a protection order in 2019.[3] On 27 April 2021 there was a hearing in the Family Court to do with the careof the couple's children. The victim travelled to Auckland for the hearing and stayedovernight with the appellant at his parents' address. The appellant drove the victim toand from the Family Court in the victim's car. After the hearing the two of themreturned to Mr Hopa's parents' home, where they sat outside in the car and consumedalcohol. After a time the appellant took the keys from the ignition and they wentinside.[4] Once there, he pushed her into a bedroom and assaulted her, punching her inthe face and head multiple times. At some point during the assault she was strangled.She described feeling light-headed and then unable to breathe. The offending stoppedafter she managed to call out for their son, who came into the room. It appearsMr Hopa's parents called the police. Police did not speak to the victim at that timebecause she had hidden under the house, where she remained for some hours beforewalking to another address for help.[5] Mr Hopa went to trial, where he was acquitted or discharged on two chargesof male assaults female. He pleaded guilty to one charge of male assaults female andthe charge of breaching a protection order by physically abusing the victim. He wasfound guilty by the jury on a charge of strangulation.[6] Judge Bergseng adopted a starting point of two years and six months'imprisonment for the strangulation charge.2 He uplifted that by eight months for thecharges of male assaults female and breach of the protection order.3 There was afurther uplift of four months because the appellant was on bail at the time.4 Discountswere given for cultural deprivation (20 per cent), efforts at rehabilitation(five per cent), and time spent on electronically monitored bail (three months).5 Theend sentence of two years and four months' imprisonment was imposed on the2 At [27].3 At [28].4 At [29].5 At [30]–[32].strangulation charge, with sentences of eight months for breach of the protection orderand male assaults female to run concurrently.6[7] Mr Hopa says that the starting point for strangulation was too high. The Judgeidentified five aggravating factors: the victim's vulnerability, breach of the protectionorder, aggravated violence, enduring harm to the victim and the presence of their sonfor part of the offending.7 It is said that the Judge was wrong to rely on two of them,aggravated violence and enduring harm. In terms of the level of violence, the Judgewas wrong to find that the victim was close to losing consciousness. All she said inevidence was that she was feeling dizzy or lightheaded. That does not indicate thatshe was strangled for a long time or that she was close to losing consciousness. Nordid her victim impact statement describe enduring harm. She spoke of harm causedby what she described as the violent relationship, but she did not attribute that to thestrangulation itself. Had he been sentenced on the basis that only three aggravatingfeatures were present, a starting point of no higher than two years and three months'imprisonment should have been taken.[8] With respect to the uplift of eight months for male assaults female and breachof a protection order, Mr Hopa accepts that if they stood alone these charges wouldwarrant a starting point of eight to nine months' imprisonment, but it said that whentotality is taken into account the uplift was too large. The Judge took into accountoffending for which Mr Hopa was acquitted at trial. No uplift was warranted for thebreach of protection order because that charge was based on the same physicalviolence captured by the strangulation and male assaults female charges.[9] We think this was serious offending. As the Judge noted, photographs showthat she sustained significant injuries, including pronounced bruising to her face, neckand head. She was diagnosed with a concussion and experienced headaches, nausea,fatigue and difficulty concentrating during subsequent days. A medical reportdescribes bruising to her anterior neck.6 At [34].7 At [27].[10] We accept that the violence was not aggravated to a high degree, but it wasopen to the Judge to that find it was aggravated and to infer from the victim's evidenceshe was dazed, lightheaded, unable to breathe and may have been close tounconsciousness that the strangulation lasted for some time.[11] We are also not persuaded that the Judge was wrong to identify enduring harmto the victim as a factor. It is true that it cannot be separated from harm attributable tothe abusive relationship and the assaults other than strangulation, but that does notmean the Judge must discount it. Its impact on the victim is a question of judgement.In Shramka v R this Court noted that victims of strangulation experience terror whichmay have an enduring effect.8 In her victim impact statement, the victim spoke ofbeing mentally shattered and of his physical and mental abuse still lingering.We accept the Crown's submission that the strangulation was a continuation of hisattempts to control her.[12] We find that the starting point of two years and six months was available.[13] We also accept the Crown's submission that the uplift of eight months forbreach of a protection order and male assaults female was available. The Judgerecognised the risk of double counting.9 The male assaults female charge includedvery hard punches to the victim's head. He was acquitted in respect of some of thosepunches (because the charges split them into two incidents), but it remained a seriousoffence of its type. Mr Hopa was right to accept that the uplifts would have beenacceptable starting points had this offending been sentenced alone. The question thenbecomes one of totality. We accept that all of this offending involved a single incident.However, we are not persuaded that the uplift makes the sentence manifestlyexcessive.[14] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent8 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [42(g)].9 Sentencing notes, above n 1, at [28].