KOHU v R [2023] NZCA 343

KOHU v R [2023] NZCA 343 [4 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA552/2022[2023] NZCA 343BETWEEN PETER THOMAS KOHUAppellantAND THE KINGRespondentHearing: 9 May 2023Court: Mallon, Moore and Fitzgerald JJCounsel: A T Sykes and H J Rameka for AppellantA J Gordon and G Banuelos for RespondentJudgment: 4 August 2023 at 12 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] Following a sentence indication, Mr Kohu pleaded guilty in the RotoruaDistrict Court to one charge each of wounding with intent to cause grievous bodilyharm,1 assault with a weapon,2 and intentional damage.31 Crimes Act 1961, s 188(1); maximum penalty 14 years' imprisonment.2 Section 202C(1)(a); maximum penalty five years' imprisonment.3 Section 269(2)(a); maximum penalty three years' imprisonment.[2] On 19 September 2022 Judge MacKenzie sentenced Mr Kohu to five years andtwo months' imprisonment on the wounding charge and concurrent sentences ofsix months' imprisonment on the charges of assault with a weapon and intentionaldamage.4[3] Mr Kohu appeals his sentence on the grounds that the Judge failed to giveproper or sufficient weight to the tikanga Māori aspects of the restorative justiceprocess, the genuine remorse expressed by Mr Kohu and the combined weight of thevarious cultural factors set out in a comprehensive s 27 report.The procedural background[4] We set out the events that preceded the sentence indication because this isnecessary to properly understand the circumstances surrounding the entry ofMr Kohu's guilty pleas and whether he properly understood the alleged factual basison which he was sentenced.[5] Mr Kohu first appeared on 13 January 2021 and was remanded in custody. On16 February 2021 he pleaded not guilty to all charges and elected trial by jury.A standby trial was set for 8 November 2021, but it was not reached. Mr Kohu thensought a sentence indication.[6] On 11 May 2022 he appeared before Judge Marshall for the sentenceindication.5 Because the defence submissions raised an alternative and contradictorynarrative to that in the summary of facts, the Judge observed that he could only givean indication on the basis of an agreed summary, explicitly noting that he was awareMr Kohu did not accept material aspects of the summary.6 As the Judge said, thealternative account Mr Kohu had given to counsel would materially affect the startingpoint.74 R v Kohu [2022] NZDC 18479 [Sentencing notes].5 R v Kohu DC Rotorua CRI-2021-063-000155, 11 May 2022 [Sentence indication].6 At [2].7 At [8].[7] He pointed out that Mr Kohu had three options:8 to accept the summary andseek an indication (which could be accepted or not after legal advice); to plead guiltyand proceed to a disputed facts hearing;9 or to plead not guilty and go to trial. TheJudge said that where a sentence indication is sought, he "must proceed on the basisof" the summary of facts.10 The Crown expressed reservations about the Courtproceeding to a sentence indication where the defendant had raised a defence.Ms Sykes, who appeared for Mr Kohu in the District Court and on this appeal, told theCourt that she had spoken to her client three times that week and was bound by herinstructions, which was why she was appearing. She said that Mr Kohu was very clearhe wanted the first option offered by the Judge.[8] The Judge then proceeded to give the sentence indication.11 He considered theoffending sat at the upper end of band two or the lower end of band three of R vTaueki,12 and indicated a starting point of eight years' imprisonment and a 20 per centdiscount for the guilty pleas.13 He noted that in the event the indication was acceptedthere could be other reports of benefit to Mr Kohu, adding however that the endsentence would be unlikely to be one that would permit a court to consider anelectronically-monitored option.14[9] On 19 May 2022 Mr Kohu accepted the indication, and a sentencing date wasset. In advance of sentencing, a restorative justice conference was convened on13 June 2022 with W, Mr Kohu's partner, the primary victim in respect of thewounding charge. A s 27 report was also prepared, as was a Provision of Advice tothe Courts (PAC) report. Letters of support were obtained. Mr Kohu wrote a letteraddressed to the sentencing Judge.[10] On 19 September 2022 Judge MacKenzie sentenced Mr Kohu.158 At [8].9 Sentencing Act 2002, s 24.10 Sentence indication, above n 5, at [8].11 At [3]–[12].12 R v Taueki [2005] 3 NZLR 372 (CA) at [34].13 Sentence indication, above n 11, at [11]–[12].14 At [12].15 Sentencing notes, above n 4.The offending[11] The facts relied on by her Honour as set out in her sentencing remarks arereproduced below:[5] On 13 January last year, [W] went to the second victim's home. Thesecond victim is [A]. This was in the early hours of 13 January 2021. Sheappeared to be upset. While [W] was at [A]'s home, you telephoned her. Shetold you that she was at [A]'s address. About 20 minutes later, you arrived atthe address carrying a hammer. [A] answered the door. You barged into thehouse. You sat across from [W] at a table and put the hammer on the table.The two of you started arguing.[6] You became angrier and yelled at [W], "You're my bitch and comehome now." You picked up the hammer and struck [W] once to the face. Youstood up over her and hit her with a hammer about three or four times allaround the head and face. As [A] tried to intervene, you swung the hammertowards him to try and prevent him from helping. He was able to avoid theblow. You then pushed [W] out of the door and as you did, you struck thewalls of [A]'s home with your hammer, causing four holes in the wall.[7] You pushed [W] out onto the road and continued your assault. As [W]was in the foetal position on the road, you kicked at her at least twice, as ifyou were striking a soccer ball and stopped only once police had arrived. Youfled over the back fence and were located a short time later by a police doghandler.[8] [W] sustained a laceration above her right eyelid and swelling to herface. As [W]'s injuries were significant, police took her to Rotorua Hospitalfor treatment but, when police left, she discharged herself before receivingtreatment.Personal circumstances[12] At the time of his sentencing, Mr Kohu was 35 years old. He has eight children,seven from a previous relationship and one with W.[13] The s 27 cultural report records that he is a patched member of the MongrelMob, having been associated with that gang since the age of 13. He was inspired tojoin by his uncle who was a member. The report records that it was through the gangthat Mr Kohu first gained a real sense of "family" given his unsettled childhood, whichincluded exposure to physical violence, sexual abuse and alcohol abuse. Although hemaintained his affiliation with the Mongrel Mob, he did not formally join the gang asa patched member until he was an adult at about the age of 25. Through hisconnections with the gang, he witnessed extreme levels of violence and "bashing",which the writer of the s 27 report considered contributed to his proclivity for violence.[14] The s 27 report also noted that, although he described himself as Māori, he hadlimited knowledge of his whakapapa. While in prison, he had learned a basic pepehabut was unable to relay this to the report writer. Mr Kohu's lack of knowledge,connection and comprehension of Te Ao Māori was described as typical of Māori whohad been raised away from their whānau, hapū and iwi. His cultural disconnect wasfurther exacerbated by the lack of support from his mother and the fact that he did notknow who his father was.[15] Mr Kohu has an extensive criminal history going back to appearances in theYouth Court in the early 2000s. He has at least five previous convictions for violence,most if not all domestically related. The pattern of his other convictions mostlyreflects various forms of breaches of court and other orders, driving and dishonestyoffences. He has previously served five terms of imprisonment, the longest of whichwas for 12 months in 2013.[16] In the course of being interviewed for the s 27 report, Mr Kohu expressed awillingness to participate in prison programmes designed to address angermanagement, relationships and parenting. He also appeared enthusiastic about servinghis sentence in a Māori-focused unit and positive about the possibility of entering aprogramme to enhance his knowledge of te reo and tikanga should that be available.The sentencingStarting point[17] There is no challenge to the approach taken by the Judge in relation to thestarting point of eight years' imprisonment as had previously been indicated byJudge Marshall. This was based on the following aggravating factors which herHonour considered were present to a high degree:16(a) the extreme violence;16 Sentencing notes, above n 4, at [14].(b) the attack to the head; and(c) the actual use of a weapon, being a hammer.[18] Judge MacKenzie noted that Judge Marshall could have uplifted that startingpoint to reflect the offending against A but considered that the assault and theintentional damage convictions could be met by the imposition of concurrentsentences.17[19] We interpolate here, for completeness, that we agree it was open toJudge Marshall to uplift the starting point to reflect the additional charges faced byMr Kohu, even if part of the same overall course of conduct. These related to thesecond victim, A. Although not an issue raised on appeal, the fact that an uplift couldhave been applied is relevant to the ultimate question of whether the sentence imposedby the Judge was manifestly excessive.Personal factors[20] As for Mr Kohu's personal circumstances, the Judge considered the indicationof a 20 per cent discount for the guilty pleas was generous, even allowing for thecomplications of COVID-19.18 She noted that the pleas of guilty were not entereduntil some 15 months after the original pleas of not guilty and after the trial was unableto be reached.19 She stated that, generally speaking, a guilty plea credit "that far downthe track" would be in the vicinity of 10 per cent or, at the most, 15 per cent.20However, given that Judge Marshall had indicated a 20 per cent discount, her Honourwas disinclined to displace it.[21] The Judge then considered Mr Kohu's history of family violence, noting it wasnot particularly recent.21 As Judge Marshall had not addressed it, she did not consideran uplift appropriate.17 At [19].18 At [21].19 At [23].20 At [23].21 At [25].[22] The Judge rejected the submission that there should be a discount of 25 per centfor factors in the cultural report, with a further discount of 10 per cent for combinedremorse and the letters of support, which her Honour inferred to be a reference toMr Kohu's prospects of rehabilitation.22[23] Noting that remorse is a matter of fact and degree, the Judge observed thatcourts look for tangible evidence that a person is genuinely remorseful.23 She notedthat remorse was difficult to assess in the present case.24 On the one hand, Mr Kohuhad made various statements of remorse in respect of W, but had made no reference tothe other victim, A. Her Honour also referred to the apparent contradiction betweenthe comments in the s 27 report, which indicated that Mr Kohu was repentant, regretfuland wished to participate in restorative justice, and his apparent refusal to accept thefacts he had pleaded guilty to.25 She concluded that Mr Kohu was not genuinelyremorseful.26 He had presented an alternative, largely exculpatory narrative, and thusappeared not to take responsibility in any real or meaningful way. In particular, theJudge referred to the account given at the restorative justice conference whereMr Kohu claimed that the only violence he had meted out to W was when he pushedher to the ground.27 He denied calling her his "bitch". The Judge referred to otheraspects of Mr Kohu's narrative, which contradicted the summary of facts. Sheconcluded from this that there was no acceptance of responsibility by Mr Kohu andno acceptance that he had struck W repeatedly to the head with the hammer.28[24] In this context, the Judge also referred to the PAC report in which it wasreported that Mr Kohu disagreed with the summary of facts despite accepting thesentence indication.29 The report writer had concluded that this was suggestive ofminimal remorse or empathy.22 At [26].23 At [27].24 At [27].25 At [27].26 At [31].27 At [28].28 At [29].29 At [30].[25] For these reasons, the Judge was not prepared to give any allowance on accountof remorse.[26] However, her Honour did conclude that there was a nexus between the s 27report and the offending.30 She also gave Mr Kohu credit for recognising his need toengage in meaningful rehabilitation, although this was tempered by the observationthat it would be difficult if Mr Kohu chose to remain a patched member of the MongrelMob.31 Noting that there was "some glimmer of rehabilitative prospects" whilerecognising there is no set discount for cultural factors, her Honour rejected Ms Sykes'submission that a 25 per cent discount was called for.32 She noted that, in line withthe decision of this Court in Waikato-Tuhega v R, any discount could not be more than15 per cent.33[27] Thus, in summary, the Judge allowed a 15 per cent discount for personalmitigating factors which, when added to the 20 per cent discount for his guilty pleas,reduced the starting point by 33 and a half months, or two years and nine and a halfmonths' imprisonment.34 This produced an end sentence of five years and two and ahalf months' imprisonment, which she rounded down to five years and two months'imprisonment.35Approach on appeal[28] This Court must allow the appeal if satisfied that for any reason there was anerror in the sentence imposed and a different sentence should be imposed.36 The focusis on the end sentence rather than the process by which it is reached.37 The Court willnot interfere where the sentence is within the range that can properly be justified byaccepted sentencing principles.38 To this end, the concept of a "manifestly excessive"sentence is well-engrained and there is no reason not to use it.3930 At [40].31 At [40].32 At [41].33 At [42] referring to Waikato-Tuhega v R [2021] NZCA 503.34 Sentencing notes, above n 4, at [45].35 At [46].36 Criminal Procedure Act 2011, s 250(2).37 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].38 At [36].39 At [35].Case on appeal[29] Ms Sykes submitted that the sentencing Judge failed to give adequate discountsfor remorse, participation in restorative justice and Mr Kohu's cultural backgroundfactors. She submitted, as she did in the District Court, that a 25 per cent discount forcultural factors and a 10 per cent discount for remorse should have been given.[30] More particularly, Ms Sykes submitted that, in denying Mr Kohu credit forremorse, the Judge failed to recognise the paramount tikanga principle of restorativejustice. This principle values the achievement of ea40 over all else and can only bedetermined after a process has been engaged with by the victim and they haveintimated their mana has been restored in accordance with the values of manaakitangaand rangatiratanga. She submitted that the Court failed to give adequate discounts forthe responsibility taken by Mr Kohu and his remorse evident by the achievement of eathrough the process of restorative justice, and also failed to give adequate discountsfor Mr Kohu's background as set out in the s 27 cultural report.[31] Ms Sykes submitted that as of the Supreme Court's judgment in Ellis v R, it issettled that tikanga Māori is part of Aotearoa's common law.41 It is "the source ofrights"42 and a "source of values"43 and provides a "helpful perspective" whenconsidering the common law.44 Ms Sykes referred to the concepts of hara, mana,whānaungatanga and ea. She submitted, contrary to the concerns raised in theHigh Court in R v Mason, that these concepts are inherently capable of assisting in thejust determination of criminal matters.45 Against this, she submitted that Mr Kohu's40 The notion of ea indicates "the successful closing of a sequence and the restoration ofrelationships, or the securing of a peaceful outcome, although a state of ea can still be reachedeven when one or both of the parties remain unhappy with the outcome": Ellis v R [2022] NZSC114, [2022] 1 NZLR 239 at [135] per Glazebrook J and [185] per Winkelmann CJ both referringto the Statement of Tikanga in the appendix of that judgment.41 Ellis v R, above n 40, at [108] per Glazebrook J, at [171] per Winkelmann CJ, at [257]–[259] perWilliams J and at [279] per O'Regan and Arnold JJ.42 At [176] per Winkelmann CJ.43 At [176] per Winkelmann CJ.44 At [256] per Williams J. See also Takamore v Clarke [2012] NZSC 116, [2013] 2 NZIR 733 at[150] per Tipping, McGrath and Blanchard JJ and at [94] per Elias CJ.45 R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695.sentence should have reflected a term closer to three years having regard to thefollowing:(a) tikanga principles and participation in the restorative justice process;(b) remorse and acceptance of responsibility; and(c) the victim's acceptance of the appellant's apology.[32] We turn to consider the two issues raised on this appeal.Was the discount for the factors identified in the s 27 report inadequate?[33] As noted, Mr Kohu received a discount of 15 per cent for this factor. Thisrecognised the nexus between Mr Kohu's upbringing and the offending, including theviolence he witnessed both in his upbringing and through his gang associations.[34] In doing so, her Honour referred to this Court's decision in Waikato-Tuhega.46There are significant similarities between that case and the present. That case includedwhānau dysfunction and violence, care, protection and youth justice issues, limitededucation, alcohol and drugs and cultural disconnection.47 In Waikato-Tuhega thisCourt allowed a 15 per cent discount for these factors as described in a s 27 report.48The Court referred to Zhang v R and the role s 27 reports play in the sentencingprocess.49 As the full Court in Zhang observed, engrained systemic poverty resultingfrom loss of land, language, culture, rangatiratanga, mana and dignity requireconsideration at sentencing when shown to contribute causatively to an individual'soffending.50 However, to achieve justice in individual cases, flexibility and discretionis required.51[35] In Waikato-Tuhega reference was made to the extrajudicial comments ofWilliams J, that trauma in a person's background, whether intergenerational or46 Waikato-Tuhega v R, above n 33.47 At [52].48 At [57].49 At [41]–[51] referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.50 Zhang v R, above n 49, at [159].51 At [10(a)].immediate, does not guarantee they will offend.52 Williams J had observed thatadopting such a broad assumption should be avoided because it amounts toretrospective determinism, dispossessing the offender of their own agency and, inMāori terms, denying them of their mana.[36] The 15 per cent discount given in the present case for cultural factors reflectsan orthodox application of the relevant principles this and other courts haveconsistently applied.53 The present case is closely aligned to Waikato-Tuhega, whichalso attracted a 15 per cent discount. Elevating this to the 25 per cent which Ms Sykespresses for would be wholly out of proportion in the circumstances of this case.[37] It follows we cannot accept the Judge erred in this respect.Should a discrete discount have been given for remorse?[38] Ms Sykes submits that a further discrete discount of 10 per cent should havebeen given by the Judge on account of Mr Kohu's remorse. She argues thatparticipation in restorative justice, in and of itself, warrants a discount based onremorse and that this is further reinforced by the overlying tikanga framework.[39] As noted above,54 the Judge rejected the defence submission that Mr Kohu hadexhibited any conduct consistent with an expression of remorse. The Judge reasonedthat Mr Kohu's repeated failure to accept the summary of facts to which he pleadedguilty undermined any declarations he was remorseful to such an extent that nodiscount could be given.55[40] It is now well established that a discrete discount for remorse will beappropriate where a "proper and robust evaluation of all the circumstances"52 Waikato-Tuhega v R, above n 33, at [50] referring to Joe Williams "Build a Bridge and Get OverIt: The Role of Colonial Dispossession in Contemporary Indigenous Offending and What WeShould Do About It" (Robin Cooke Lecture, Victoria University of Wellington, 4 December 2019)at 20.53 See the discussion in King v R [2020] NZCA 446 at [28]–[30], citing Solicitor-General v Heta[2018] NZHC 2453, [2019] 2 NZLR 241; Carr v R [2020] NZCA 357 at [67] and [71]; and Mosesv R [2020] NZCA 296, [2020] 3 NZLR 583 at [66].54 At [23]–[25].55 Sentencing notes, above n 4, at [29]–[31].demonstrates that an offender is remorseful.56 Remorse need not be extraordinary,although it must be genuine.57 The onus is on the defendant to show it is so.58 ThisCourt has previously stated that it will look for "tangible evidence, such as engagementin restorative justice processes".59 Other examples include the voluntary payment ofreparation,60 and efforts to remedy harm to the community.61 Where established,remorse tends to attract a discrete discount of between five and 15 per cent.62[41] Mr Kohu's expressions of remorse, or lack thereof, may be found in severaldocuments. For example, in the PAC report it is recorded that Mr Kohu totallydisagreed with the summary of facts, stating that he did not take a hammer to A'saddress nor did he attack anyone with it. His version is that W went to A's house andbecause W had been away for some time, he rang her to check on her welfare. Shetold him that she was not alright and asked him to come over. It was there he claimshe was greeted by a Black Power member and a Mongrel Mob member. He wasattacked with a spade. W sustained a cut above her eye. Mr Kohu admitted heremoved his partner from the address. They argued. He said he was not angry; morefrustrated and disappointed that W had got into the situation she had.[42] In the cultural report, Mr Kohu gave a broadly comparable, but slightly moredetailed, account. He said that he knocked on the door. It was answered by A.Mr Kohu noticed a cut above W's eye. He pushed past A and walked into the housewhere he was punched by one of two gang members who were present. He said thatwas when he first noticed the hammer sitting on the table. He picked it up to defendhimself. He denied saying that W was his "bitch". He said one of the gang membershad a spade and the other a piece of wood. He admitted to swinging the hammeraround but only to protect himself and W from being hurt, and accepted that in thecourse of doing so, he damaged A's property. He said that once he and W were outsidethe house, they began to argue. He admitted he was still "hyped" from what had56 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Sentencing Act, s 9(2)(f).57 Moses v R, above n 53, at [24].58 At [24].59 At [24].60 R v Patterson [2008] NZCA 75 at [42].61 R v Devon Dairy Farms Ltd [2019] NZDC 20798.62 Poi v R [2015] NZCA 300; Rowles v R [2016] NZCA 208; A v R [2018] NZHC 543; and C v R[2022] NZHC 1807.happened. His lost his cool and pushed W causing her to fall to the ground. When thepolice arrived, he was standing over W with the hammer in his hand.[43] At the restorative justice meeting, W corroborated Mr Kohu's account statingthat she was grateful to him because he saved her. Mr Kohu offered W his sincereapologies for his "wrongdoing that night". He said that he was "remorseful for whathappened". W apparently accepted his apology as being sincere.[44] The two irreconcilable versions of events evidently complicate the sentencingexercise. Plainly, if Mr Kohu's version in the PAC report and the s 27 report is correct,then he has pleaded guilty to serious charges for which he had a complete defence.Furthermore, the eight-year starting point simply could not be justified, despiteMs Sykes not challenging that aspect of the Judge's construction of the sentence.[45] If, on the other hand, the version in the agreed summary of facts to whichMr Kohu pleaded guilty is correct, it is difficult to see how an apology for acts thatfall well short of what is alleged could qualify as sincere expressions of remorse forthe acts as charged. Viewed in that way, what Ms Sykes is effectively asking the Courtto accept is that Mr Kohu should be given a discount for seeking a restorative justiceoutcome and for apologising to the victim, the Court and others for something verymuch less serious than that which he admitted when he entered his pleas of guilty inthe informed fashion he did.[46] We accept that, in principle, engagement in restorative justice can achieve eafor the hara committed and lead to the restoration of mana. However, in the contextof sentencing credit for remorse, we consider that "the hara committed" mustnecessarily be the offending as charged. Ms Sykes appears to argue that the processnonetheless achieved a state of ea in this case, although she has not adduced directevidence from Mr Kohu or, more importantly, W to support this point. In this regardwe note the risk that Mr Kohu may have pressured W to corroborate his alternativenarrative of events, calling into question whether there was in fact a genuinereconciliation.[47] It follows that, in the circumstances of this case, we do not consider that mereparticipation in a restorative justice process, understood in the framework of tikangaMāori, may translate into a discount for genuine and tangible remorse.[48] Ms Sykes also submitted that the Judge erred in finding that the restorativejustice process proceeded solely upon the alternative narrative. This submissionappears to be based on a comment in the restorative justice conference report that thepolice summary of facts was read out and "acknowledged" by Mr Kohu, whoapologised to W. However, the report goes on to state that Mr Kohu explained hisalternative narrative of events, which was corroborated by W.[49] In our view, whether or not the restorative justice process was initiated andproceeded on the agreed summary of facts, it is plain that the appellant never trulyaccepted this version of events and that the process was dominated by the alternativenarrative.[50] As Judge Marshall and the sentencing Judge noted, it was open to Mr Kohu toelect an alternative pathway if he wished to dispute aspects of the facts. Instead, hesought and accepted a sentence indication, following which he repeatedly failed totake responsibility for his actions as charged. The existence of these undisputable factslimits any entitlement he may otherwise have had, either under orthodox sentencingprinciples or tikanga, to a discount for remorse.[51] It follows that we are not satisfied that the Judge erred in this respect.Result[52] The appeal is dismissed.SolicitorsAnnette Sykes & Co, Rotorua for AppellantCrown Solicitor, Rotorua for Respondent