RONGONUI v R [2015] NZHC 546

RONGONUI v R [2015] NZHC 546 [1 April 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2015-443-0028[2015] NZHC 546IN THE MATTER of an appeal against conviction andsentence pursuant to ss 232 and 250 of theCriminal Procedure Act 2011BETWEEN REECE TAURAKAHA RONGONUIAppellantAND THE QUEENRespondentHearing: 14 December 2015Appearances: J C Hannam for AppellantS J Simpkin for RespondentJudgment: 1 April 2016JUDGMENT OF M PETERS JThis judgment was delivered by Justice M Peters on 1 April 2016 at 12 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Hannam & Co Lawyers Ltd, New PlymouthC & M Legal, Crown Solicitor, New Plymouth[1] On 5 September 2014, following a Judge alone trial before Judge Roberts in the District Court at New Plymouth, the Appellant was convicted of one charge of wounding with intent to cause grievous bodily harm, one charge of aggravated burglary, and one charge of threatening to kill.1[2] On 14 September 2014, the Judge sentenced the Appellant to nine years'imprisonment on the first two of these charges and three years on the charge of threatening to kill. The Judge imposed a minimum period of imprisonment ("MPI")of six years, being two thirds of the end sentence.2[3] The Appellant appeals against conviction on the ground that a miscarriage of justice has occurred and against sentence on the ground that the sentence and the term of the MPI were manifestly excessive.3[4] The Appellant requires leave to appeal out of time. There being no prejudice to the Crown, I grant leave accordingly.Background[5] The charges arose out of events in 2013 involving the Appellant and Mr Paul Corrigan.[6] Mr Corrigan was in difficulty with associates, having misappropriated some $10,000 of what was said to be "drug money". Mr Corrigan sought the Appellant'sassistance. Mr Corrigan and another associate, Mr Jason Lilly, collected the Appellant from Huntly and returned to New Plymouth.[7] The Appellant's evidence was that he was to be compensated for his efforts on Mr Corrigan's behalf and also that Mr Corrigan owed money to the Appellant'scousin in respect of an unrelated matter.1 R v Rongonui [Summing Up] DC New Plymouth CRI-2013-043-001313, 5 September 2014; and Crimes Act 1961, ss 188(1), 232(1)(a) and 306(1), the maximum penalties being 14, 14 and 7 years' imprisonment respectively.2 R v Rongonui [Summing Up], above n 1; and R v Rongonui [Sentencing Notes] DC New Plymouth CRI-2013-043-001313, 16 September 2014.3 Criminal Procedure Act 2011, s 232(2) and s 250(2).[8] During the afternoon of 5 July 2013, the Appellant went to Mr Corrigan'saddress, primarily with the view (as the Judge found) of obtaining the funds he believed he were due.[9] There was no dispute at trial that the Appellant went into the bedroom where Mr Corrigan and his partner, Ms Farquhar, were asleep, that the door was secured in anticipation of a visit from a third party (not the Appellant), and that the Appellant kicked in the door of the bedroom to open it.[10] There was dispute, however, as to whether the Appellant had a "pen gun"with him when he entered the bedroom. That pen gun was originally Mr Corrigan'sbut he had given it to the Appellant after the return journey to New Plymouth. The pen gun constituted the "aggravated" element of the burglary charge.[11] It was also not disputed that the Appellant assaulted Mr Corrigan in his bedroom. To succeed on the wounding charge, the prosecution had to establish thatthe Appellant had in fact "wounded" Mr Corrigan and that, at the time he did so, he intended to cause Mr Corrigan grievous bodily harm. The prosecution case was that the Appellant hit Mr Corrigan several times in the face with his fists and with a hammer that was on the floor, near the bed, and that there was, inter alia, a breaking of the skin, that is a wound.[12] The Appellant's evidence was that he used only his fists and that he punched Mr Corrigan four or five times.[13] As for the charge of threatening to kill, it was alleged that the Appellant, armed with the pen gun, said to Mr Corrigan "Where do you want it, in the back orthe front?".4[14] These events having occurred, Mr Corrigan said that he would go to see his father, Mr Patrick Corrigan ("Mr Corrigan Snr"), and obtain some money from him. Ms Sherylynne Bailey, who was present with the Appellant, drove Mr Corrigan to4 R v Rongonui [Summing Up], above n 1, at [60].his father's address. Mr Corrigan Snr telephoned the police. The police then took Mr Corrigan to the hospital and from there to the police station.[15] Ms Farquhar remained at the address, as did the Appellant who went elsewhere in the house. Ms Farquhar called the police, who came to the address and took Ms Farquhar to the police station. They also arrested the Appellant, whom they found asleep. The Appellant was taken to the police station and interviewed, that interview being recorded on DVD. In his police interview, and amongst other things, the Appellant acknowledged that he had punched Mr Corrigan; denied using the hammer; denied having the pen gun; and admitted that he had gone to the property togive Mr Corrigan "a good bash".5 The Appellant also said he had told Mr CorriganSnr that he was going to give Mr Corrigan "a bloody good beating".6[16] Mr Corrigan and Ms Farquhar each made statements to the police. Those statements coincided in all material respects and were made without the two having had an opportunity to confer.Evidence at trial[17] The prosecution called evidence from Mr Corrigan; Ms Farquhar; and Mr Corrigan Snr. Briefs of evidence of the police officers involved were read by consent and the DVD of the Appellant's police interview was played to the Court.The police did not find a pen gun at the address or in the Appellant's possession.The prosecution did, however, produce a hammer located at the address and .22 calibre ammunition in the Appellant's possession.[18] A statement from a Dr Flink, which included a report from a Dr Swartz, was also read by consent. Dr Flink examined Mr Corrigan on the evening of 5 July 2013 in the emergency department of the local hospital. Dr Flink determined that Mr Corrigan was concussed and she suspected facial fractures. Dr Flink referred Mr Corrigan for further evaluation and treatment. The more detailed report from Dr Swartz recorded bruising, swelling and tenderness around Mr Corrigan's left eyeand tenderness to the bones in his nose.5 New Zealand Police Transcript from Electronically Recorded Interview dated 6 July 2013 at 53.6 At 12.[19] At the conclusion of the prosecution case, counsel for the Appellant made an application for discharge without conviction in respect of the charge of wounding with intent to cause grievous bodily harm. The Judge dismissed the application on the ground that there was an abundance of evidence to support the Crown case.[20] The Appellant, Ms Bailey and Mr Lilly gave evidence for the defence. Ms Bailey had driven the Appellant to Mr Corrigan's address, was present in the house at the time of the incident and took Mr Corrigan to his father's address. Mr Lilly's evidence related to Mr Corrigan's prior possession of the pen gun and text messages from Mr Corrigan about the same.Issues at trial[21] The trial took place over four days. Most of the prosecution case was heard on 28 and 29 August 2014. The trial was then adjourned to 4 September 2014 and it was completed on 5 September 2014. The final two days included the defence caseand the Judge's summing up and decision.[22] In summing up the Judge recorded that, prior to the trial commencing, the prosecution and defence had informed him that their "focus" would be on thefollowing matters:7(a) The wounding with intent. Was the hammer used in the attack? Is a wounding proved? Is the necessary intent proved?(b) The aggravated burglary. Did [the Appellant] have with him at the time of entry to the Corbett Road address the pen gun?(c) The threat to kill. Was in fact such a threat made?[23] One of the grounds of appeal is that the Judge was biased against the Appellant and, to a lesser extent, his fellow defence witnesses. I address that below. For present purposes it is enough to say that the Judge opened his summing up by remarking that each of Mr Corrigan, the Appellant, Ms Bailey and Mr Lilly were known to the Court.[24] Judge Roberts reviewed the evidence of each witness in detail.7 R v Rongonui [Summing Up], above n 1, at [3].[25] The Judge noted that Mr Corrigan's and Ms Farquhar's evidence at trialcoincided as to the fact that the door to the bedroom was barricaded; that the Appellant entered with the pen gun; that the Appellant was angry; that he punched Mr Corrigan and hit him with the hammer; and that the threat to which I have referred was made.[26] As I have said, both Ms Farquhar and Mr Corrigan had made immediate statements to the police to the same effect as their evidence at trial.[27] Mr Corrigan Snr's evidence was that the Appellant had come to see him with Ms Bailey at about 4 pm on 5 July 2013 (before going to Mr Corrigan's address); that the Appellant was "amped" and "fried" and focused on the debt said to be due; that his son arrived with Ms Bailey about an hour and a half later; that his son was bleeding around his face; that his son's face was swollen with welt marks; and that his son was holding a towel to his face. Mr Corrigan Snr also said that his son had asked him for money and that he, Mr Corrigan Snr, then telephoned the police.[28] In reviewing the evidence for the prosecution, the Judge also commentedupon the Appellant's DVD interview, the contents of which I have referred to above.[29] As to the evidence for the defence, the Judge noted that the Appellant denied seeking any money except for a trivial sum in respect of the unrelated matter to which I have referred; repeated his denials of possession of the pen gun; advised thatMr Corrigan had previously told him he could "make himself at home"; said that he had gone to the address to have a sleep, hence his entry into the bedroom; and admitted punching Mr Corrigan and uplifting the hammer, but not using it. TheAppellant's evidence was that he simply intended to deny Mr Corrigan the opportunity to hit him.[30] Ms Bailey's evidence was that the Appellant had told her he intended to sleepat Mr Corrigan's address. The Judge considered this evidence inconsistent with Ms Bailey waiting in the car and then coming inside to investigate. Ms Bailey'sevidence was that she did not see that Mr Corrigan was bleeding and in fact she gave evidence that, en route, Mr Corrigan had suggested they have sex.[31] As to Mr Lilly, as I have said, he gave evidence as to Mr Corrigan's priorpossession of the pen gun and of some text communications from Mr Corriganseeking to secure Mr Lilly's silence about his ownership of the pen gun.[32] The Judge's view was that he was required to make credibility findings. Thelargely, but not wholly, similar statements made by Mr Corrigan and Ms Farquhar to the police immediately after the incident without any opportunity to confer led theJudge to be satisfied "beyond any doubt that their basic recital is an accurate one".8[33] Despite that finding, the Judge did express doubts about some of Mr Corrigan's evidence, and considered that Mr Corrigan had been economical with the truth in some respects. The important matter to the Judge, however, was the similarity in the accounts on the crucial points.[34] In contrast, the Judge did not consider the defence evidence credible. TheJudge considered the Appellant's account that he did not go to Mr Corrigan'sproperty intending to do violence but to sleep to be implausible, given theAppellant's stated intention of giving Mr Corrigan "a bloody good beating". Heconsidered that the Appellant had "tailored [his evidence] so as to provide an answer to an overwhelming prosecution case".9[35] Nor did the Judge accept Ms Bailey's evidence that she noted nothing out oforder when Mr Corrigan left the property and that she observed no blood on Mr Corrigan's face. This conflicted with the clear evidence to the contrary to whichI have already referred.10 The Judge thought the evidence that Mr Corrigan had proposed that they have sex to be ridiculous and he concluded Ms Bailey was lying and that her evidence should be dismissed in its entirety.[36] The Judge considered Mr Lilly's evidence to be entirely peripheral, and notedthat Mr Corrigan had already acknowledged ownership of the pen gun.118 R v Rongonui [Summing Up], above n 1, at [52].9 At [65].10 Notes of Evidence at 122.11 R v Rongonui, above n 1 [Summing Up], at [51].[37] Having undertaken this detailed review of the evidence and having expressed his views on credibility, the Judge found that:(a) the Appellant had the pen gun when he arrived at Mr Corrigan'saddress and that he had it in his hand when he entered Mr Corrigan'sbedroom.12(b) the Appellant entered the property unlawfully in that he intended violence to Mr Corrigan.(c) the Appellant had wounded Mr Corrigan, in that Mr Corrigan's skinwas broken in the attack and he was bleeding. Each of Mr Corrigan, Mr Corrigan Snr and Senior Sergeant Quinn gave evidence that Mr Corrigan was bleeding.(d) at the time of the wounding the Appellant intended to cause grievous bodily harm, being harm that is really serious to Mr Corrigan.13 The Judge found as a fact that the Appellant had struck Mr Corrigan with the hammer about the head.14 The Judge inferred intent from this, from the other injuries inflicted to Mr Corrigan's face, and the concussion and suspected facial fractures diagnosed by Dr Flink.(e) the Appellant, with the pen gun in hand, had said to Mr Corrigan"Where do you want it, in the back or the front?" and that the same constituted a threat to kill.15Application to adduce fresh evidence on appeal[38] The Appellant seeks to adduce fresh evidence on appeal, being a statement from Dr Clare Healy as to the nature of the injuries observed by Dr Flink and their severity.12 At [57].13 At [61].14 At [65].15 At [60].[39] As a general rule an appellant who wishes to adduce further evidence must demonstrate that the evidence is fresh, that is that the evidence could not with reasonable diligence have been obtained for the original trial, and that the evidence is credible. Credible evidence that is not fresh may nevertheless be admitted if to exclude it would risk a miscarriage of justice.16[40] Dr Healy's evidence is not fresh as it could have been adduced at trial.[41] I do not consider that excluding Dr Healy's evidence creates a risk of a miscarriage of justice, because it adds nothing to the evidence before the Court. The essence of the Judge's finding on wounding was the break in Mr Corrigan's skin andthe bleeding. There was no suggestion that the wounding was particularly serious or that it was long lasting. With respect to the Appellant, the evidence as to wounding was favourable to him.[42] I decline the application to adduce further evidence accordingly.Appeal against conviction[43] The Appellant appeals against conviction on the ground that a miscarriage of justice occurred, that is that there was an error, irregularity or occurrence in relation to the trial that created a real risk that the outcome of the trial was affected or that resulted in an unfair trial.17 Alternatively, the Appellant submits that the Judge erred in his assessment of the evidence to such an extent that such a miscarriage occurred.18Grounds of appeal[44] In particular, counsel for the Appellant submits that:(a) the trial was unfair because the Judge did not have an open mind; thenumber and nature of the Judge's interventions in defence counsel's16 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22]-[26]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].17 Criminal Procedure Act 2011, s 232(4).18 Section 232(2)(b).cross-examination of Mr Corrigan interfered unduly with the examination; and because of the adjournment to which I have referred.(b) the Judge erred in his assessment of witnesses to such an extent that a miscarriage of justice occurred. In particular, it is submitted that theJudge gave inadequate consideration to Mr Lilly's credibility; did notappreciate that there were inconsistencies between Mr Corrigan's and Ms Farquhar's accounts; and failed to consider whether the respects in which Mr Corrigan's evidence was "unreliable" affected his credibility as a whole.(c) the Judge erred in his assessment of the facts and in his application of the law to the facts. In particular, it is submitted that the Judge did notadequately turn his mind to what constitutes a "wound"; could nothave been satisfied beyond reasonable doubt that the Appellant entered the property with a pen gun; and could not have been satisfied that there was a threat to kill.Irregularities in the trial process[45] The submission as to bias is based on the fact that Judge Roberts had prior experience of various participants, including the Appellant, Mr Corrigan and Mr Lilly.[46] At the outset of his summing up, the Judge said:19[2] The principal players in this trial have a basic familiarity with one another. The trial extended over a number of days, the principal participants of course, the defendant Rongonui and the complainant Corrigan, who were both at the time part of the criminal underbelly here in Taranaki. A common denominator between the pair, and indeed others called as witnesses, including the last departed Jason Lilly and Sherylynne Bailey, are a common interest they share in drugs, drugs of various sorts.19 R v Rongonui [Summing Up], above n 1, at [2].[47] Counsel submitted that the Judge's assessment of the defence witnesses was influenced adversely by the Judge's view of the Appellant's participation in the "criminal underbelly".[48] The Crown submits that neither apparent nor actual bias is made out.20 TheJudge's comment regarding the "criminal underbelly" applied equally toMr Corrigan as to defence witnesses. In addition, the Judge rejected the evidence of the Appellant and other defence witnesses on the grounds of its content, and not otherwise.[49] It is almost inevitable that a District Court Judge in a centre such as New Plymouth will have had prior experience of some of those who appear before the Court.21 This on its own does not give grounds to suspect bias, real or apparent.22[50] For me, however, the compelling point is the Judge's careful assessment ofthe evidence given by each witness and the reasons he gave for rejecting it. These reasons did not concern his prior experience of the witnesses but were based squarely on the various accounts.[51] Counsel also submitted that the number of and nature of interventions by the Judge during cross-examination by defence counsel rendered the trial unfair. Counsel submitted that the interventions bolstered the witness's confidence andcredibility and evidenced pre-determination.[52] Counsel advises that the Judge interrupted counsel's cross-examination of Mr Corrigan 17 times. Counsel also objected to a "joke" the Judge made with Mr Corrigan while he was giving evidence.2320 Per the test set out by the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company [2009] NZSC 72, [2010] 1 NZLR 35.21 Britton v Police HC Whanganui AP4/97, 22 April 1997.22 Saxmere Company Ltd v Wool Board Disestablishment Company, above n 20, at [3], [80] and [127].23 Notes of Evidence at 55.[53] Having reviewed the transcript, I am not satisfied that the Judge's approachcaused a miscarriage of justice.[54] I accept the Crown's submission that many of the Judge's interventions were to clarify questions posed by counsel or answers given by witnesses, or related to the relevance and in some cases repetition of a defence question. These are proper grounds for intervention.[55] In addition, the Judge's interventions were not one sided. They included telling Mr Corrigan to "just answer the question" and "It's a yes or no".24[56] That said, the interventions became more frequent as the cross-examination proceeded. These later interventions might have (I put it no higher than that) required closer examination had the trial been before a jury. I am not persuaded, however, that the interventions came close to being improper given that this trial was before a Judge alone.[57] The final irregularity relied upon was the adjournment of the hearing between 29 August 2014 and 4 September 2014, that is for three working days. Counsel submits that the adjournment gave the Appellant the impression that the case was not sufficiently important to be heard in one sitting; that the adjournment gave the Judge considerably more time to consider the prosecution evidence than the defence evidence; and that it also gave the impression that the Judge had made up his mind prior to hearing the whole case.[58] Counsel informed me the reason for the adjournment was an intervening jury trial. Whatever the reason, I am not persuaded that an adjournment of three days could reasonably give rise to concerns of the nature suggested. This was a short adjournment of what was, as I have said, a judge alone trial. The situation is quite different to that in Caie v Police, where the Court held that a series of adjournments in a Judge alone trial had resulted in a verdict being considered unsafe.25 In that24 At 55 and 57.25 Caie v Police HC Auckland CRI 2004-404-535, 1 July 2005.case, the hearing took place on eight separate days over 14 months, with judgment delivered five months later.Assessment of witness credibility[59] The second ground of appeal is that the Judge erred in his assessment of the credibility of the witnesses.[60] Again, Mr Hannam made a number of submissions in support. The principal concerns raised were, first, that the Judge erred in rejecting the defence evidence and, secondly, that the Judge failed to consider inconsistencies in the initial statements of Mr Corrigan and Ms Farquhar.[61] A trial judge's findings on credibility are not immune from scrutiny on appeal but are not to be interfered with lightly.26[62] I have already referred at length to Judge Roberts' detailed consideration of the evidence of all witnesses and the reasons the Judge gave for preferring the prosecution evidence. I shall not repeat any of it. The point is that the Judge'sfindings were plainly open to him. The Judge acknowledged there were some inconsistencies in the prosecution evidence. The critical matter for the Judge was the consistent statements made by Ms Farquhar and Mr Corrigan at the outset, independent of one another.[63] I am satisfied therefore that it was open to Judge Roberts to prefer the prosecution evidence and I do not consider that he erred in doing so.Errors in assessing the elements of the offence[64] Mr Hannam advanced three arguments on this ground.[65] First he submitted that the Judge erred in finding that Mr Corrigan had been wounded.26 Munro v R [2007] NZCA 510 at [83] – [84].[66] Secondly, he submitted that the conviction for aggravated burglary was unsafe because the presence of the pen gun was not established beyond reasonable doubt.[67] Thirdly, he submitted that the uncertainty surrounding the presence of the pen gun also undermined the conviction for threatening to kill.[68] I do not consider that there is anything in the second and third submissions.[69] There was clear evidence that the Appellant had the pen gun when he entered the bedroom and that the Appellant was in possession of .22 ammunition. Judge Roberts was entitled to find beyond reasonable doubt that the Appellant had, and presented, the pen gun.[70] It was also open to the Judge to accept Ms Farquhar's and Mr Corrigan'sevidence that the Appellant asked Mr Corrigan "Where do you want it, in the back or the front?". Again, they both said as much at the outset.[71] The question of whether a wound was inflicted requires further analysis.[72] Mr Corrigan's evidence was that he received a cut to the outside of his noseand that he was bleeding – something Mr Corrigan described as "nothing major".27Mr Corrigan Snr said that Mr Corrigan was bleeding, although Mr Corrigan Snr was not sure where, and said that Mr Corrigan had "fairly big welts on his face".28Sergeant Quinn's evidence was that Mr Corrigan was bleeding from his nose.[73] Counsel for the Appellant submits that there was nothing in the medical records to confirm there was bleeding. That is correct but that examination took place later in the evening.[74] Counsel for the Appellant submits that, even if there were some form of injury (to use what I hope is a neutral word) to Mr Corrigan, it was not sufficient to sustain a charge of wounding with intent to cause grievous bodily harm.27 Notes of Evidence at 60.28 At 122.[75] A wound is a "rupture of the tissue or skin of the body, whether internal or external".29 The Court of Appeal discussed the matter in R v Scott, with reference to an earlier decision, R v Waters.30 The Court of Appeal said:31[38] The decision of this Court in Waters has now stood for nearly 30 years and has, throughout that time, been regarded as the definitive statementof what amounts to a "wound" in New Zealand law. A close reading of the judgment shows two things. The first is that despite the necessity shown by later English cases require the breaking of the whole of the skin to bedemonstrated to amount to a "wound", the word "wound' was not defined inNew Zealand law as incorporating that requirement. Secondly, as the later of the passages cited clearly shows, although a breaking of the skin willusually be a feature of a "wound", the judgment is careful to note that "where the bleeding which evidences the separation of tissues may beinternal", that may still amount to a "wound". It is significant that, in that passage, the judgment does not confine the definition of "wound" either toincision of skin or to trauma on the surface of the body.[76] Waters concerned an assault in which the offender banged the victim's face against the floor several times, causing her nose to bleed heavily. The offenderappealed his conviction on the basis that causing another's nose to bleed did notconstitute wounding within the meaning of s 188(1) of the Crimes Act 1961.[77] The Court of Appeal stated that "whether bleeding of the nose caused byviolence can amount to a wound for the purposes of s 188 may be a question of factfor determination in each case".32 In that case, however, the medical evidence did not establish that the bleeding resulted from a breaking of the skin. Although the Court said there was some force in the Crown's submission that, absent specific evidence, the jury should be taken to know that bleeding from the nose would result from such a breaking, it reduced the charge to one of injuring with intent to cause grievous bodily harm under s 189 of the Crimes Act 1961.[78] The Judge's reasoning on the "wounding" charge is set out in the following passages:33[61] As to the remaining charge, the Crown must prove beyond reasonable doubt that a wound was occasioned. A wound of course, a29 R v Scott [2007] NZCA 589 at [48]-[49].30 R v Waters [1979] 1 NZLR 375 (CA).31 R v Scott, above n 29, at [38].32 At 378.33 R v Rongonui [Summing Up], above n 1, at [61] and [62].breaking of the skin, a cut or laceration of some kind that produces bleeding, whether external or internal. Secondly, at the time the wounding was done, the accused here had the intention to cause grievous bodily harm to thecomplainant. "Cause grievous bodily harm" means to cause harm that isreally serious. On those matters, I find in regard to the wounding there was certainly a skin break.[62] I discount, as I have said, the evidence of Bailey which is worthabsolutely nothing. Corrigan's evidence was that he was punched to the eye,struck twice in the bedroom with a hammer and again in the hallway. He refers to his face, extremely swollen and numb. Corrigan Snr I see at page122 observes blood. Line 15, "He had a towel around his face. He was bleeding, wrapped in a towel." "Are you able to tell where he was bleedingfrom?" "Nah, he had some fairly big welts and a bit swollen in the face."Corrigan snr observed blood. The observation is confirmed too in the brief of Senior Sergeant Quinn.[79] The Judge's analysis is consistent with Waters, ie a breaking of the skin will usually constitute a wound. As I have said, Mr Corrigan's evidence was that he had a cut to the nose and he, and others, said he was bleeding. Given that, I am not persuaded that the Judge erred in his factual finding that Mr Corrigan's skin wasbroken and that a wound was inflicted.[80] For these reasons I dismiss the appeal against conviction.Appeal against sentence[81] The appeal against sentence is governed by s 250 Criminal Procedure Act 2011:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[82] Section 250(2) does not alter the approach that the Court took to appeals against sentence under the Summary Proceedings Act 1957.34 An appeal against sentence is an appeal against discretion and proceeds on an "error principle".35 The Court will not intervene where the sentence is within the range that can properly be justified on accepted sentencing principles. The question of whether a sentence is manifestly excessive is to be determined on the basis of the sentence imposed, rather than the process by which it was reached.36Sentencing[83] On sentencing, the Judge took the wounding with intent to cause grievous bodily harm as the lead offence. He identified that four of the aggravating features referred to in the guideline judgment of R v Taueki were present: premeditation of violence; use of a weapon, that is the hammer; attack to the head by the punches; and home invasion intending violence.37[84] The Judge considered that the four factors were present to a moderate to high degree and that the offending was within Taueki band three or, if in band two, then at the upper end of the range. The range of starting points for band two offending is from five to 10 years and for band three is from nine to 14 years.[85] The Judge adopted a starting point of eight and a half years, uplifted to nine years to take account of the Appellant's previous convictions. No reduction was required for mitigating factors personal to the Appellant.[86] The Judge sentenced the Appellant to concurrent sentences of nine years on the charge of wounding with intent to cause grievous bodily harm, nine years on the aggravated burglary charge and three years on the charge of threatening to kill.38[87] As I have said, the Judge also imposed an MPI under s 86 Sentencing Act 2002, imposing the maximum available of two thirds of the sentence.34 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].35 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].36 Ripia v R [2011] NZCA 101 at [15].37 R v Taueki [2005] 3 NZLR 372.38 R v Rongonui [Sentencing Notes], above n 2, at [29].[88] The Judge also gave the Appellant a "first warning" under the "three strikes"provisions in the Sentencing Act 2002.Grounds of appeal[89] The Appellant challenges both the starting point and the imposition and length of the MPI.[90] The Crown submits that Judge Roberts' application of the Taueki factors was orthodox and that the four identified factors brought the case well within band three, indicating a starting point of nine to 14 years' imprisonment. Crown counsel also submits that the imposition of, and length of, the MPI were open to the Judge and no variation is called for.Starting point[91] In so far as concerns the starting point, counsel took issue with the identification or weight attributed to the Taueki aggravating features to which I have referred, as follows.[92] To the extent there was premeditation of violence, it was of an assault. The use of the hammer was opportunistic.[93] Counsel also submitted that home invasion was not present in the usual sense as Mr Corrigan acknowledged giving the Appellant permission to enter the home as the Appellant wished.[94] I do not accept this submission. Mr Corrigan did not give the Appellant permission to enter the home for the purpose of inflicting violence, nor to kick in the bedroom door.[95] On the facts of this case, however, there is an element of double counting as between the home invasion and premeditation of violence. The Appellant entered the home intending to assault Mr Corrigan. The two factors overlapped.[96] Counsel also submits that the Judge "double counted" the use of the hammer and the attack to the head as aggravating factors. The Judge dealt with these two factors as follows:392. The use of the weapon. As I have said, you were armed; you uplifted and used another weapon, the sledgehammer. The threatsyou issued to Corrigan, "Where do you want it, front or back."Clearly registered with him and the female there present. The hammer was specifically used in the striking of Corrigan about the head area.3. There can be no dispute at all, the focus on the head as the third standalone factor. Punches and blows left him bloodied. A towel was held to his face as he travelled with Bailey, a woman I have determined to be an unmitigated liar, and was present still at the time he met with his father.[97] The discussion in Taueki as to the use of a weapon equates lethal weapons, such as a firearm or knife, with the use of a club, baseball bat or similar which"particularly when aimed at the head" can cause significant and permanent injury.40[98] The reason for treating the presence of a weapon as an aggravating factor is because of the likelihood of significant injury. The examples given by the Court of Appeal in Taueki indicate that likelihood arises because of the very nature of the weapon or because of the combined effect of the weapon and the area of the body to which it is directed. Clearly a weapon such as a hammer applied to the head carries considerable risk, sufficient in my view to engage the "use of a weapon" as anaggravating factor.[99] As to an attack to the head, in Taueki the Court said that "even whereweapons are not used, attacks on the head ... can have particularly seriousconsequences".41 The Court gave examples of "a severe beating or kicking causinghead injuries" and said that such conduct will be treated similarly to offending involving the use of a weapon.4239 R v Rongonui [Sentencing Notes], above n 2, at [22].40 R v Taueki, above n 37, at [31](d).41 At [31](e).42 Also at [31](e).[100] In this case the Judge found that there was a separate attack to the head by reason of the Appellant's punches. I accept counsel for the Appellant's submissionthat, if the punches in this case were sufficient to engage the "attacking the head"aggravating factor – and I have my doubts – they did so only to a modest extent.[101] Counsel also submitted that the mitigating factor of excessive self-defence, as identified in Taueki, was present given that the Appellant picked up the hammer after Mr Corrigan reached for it or appeared to do so.43[102] I do not accept this submission. Excessive self-defence may apply if a party has acted in self-defence but has gone too far. That is not what occurred in this case. It was the Appellant who initiated the violence.Discussion[103] Counsel for the Appellant's submits that this is a Taueki band two case, not a band three case.[104] I accept that submission. Band two is for grievous bodily harm offending which features two or three aggravating features.44 A band three case encompasses"serious offending which has three or more of the aggravating features where thecombination of aggravating features is particularly grave".45[105] I consider there were two principal aggravating features, being the home invasion intending violence and the use of the hammer to the head. If I am wrong in that, I do not consider the combination of those factors to be particularly grave insofar as concerns the wounding charge. I bear in mind also that the wound and other injuries inflicted were transitory. The gist of Mr Corrigan's evidence on this matter was that the Appellant had "held back" with the hammer. Mr Corrigan put this down to the previously friendly relationship he and the Appellant had enjoyed.43 R v Taueki, above n 37, at [32](b).44 Counsel's Further Submissions on Appeal Against Sentence dated 14 December 2015 at [5]; andR v Taueki, above n 37, at [38].45 At [40].[106] It is then necessary to determine the appropriate starting point within the band two range of 5 to 10 years imprisonment.[107] Counsel for the Appellant referred me to several authorities in support of a starting point of five years, that being at the very bottom of the band two range.46 I have also considered the Court of Appeal's decision in Hutchinson v R, to which the Crown referred me.47[108] In Garrett-Phillips, the Court of Appeal upheld a starting point of eight years'imprisonment in respect of one charge of wounding with intent to cause grievous bodily harm. The offending was spontaneous and occurred in a bar. Mr Garrett-Phillips, who had pulled a knife from his pocket, made a "large slicing wound" under the victim's ear and down his neck, and then inflicted two further wounds to the upper left side of the victim's body. The victim was bleeding heavily, underwent what he described as "life-saving surgery", required surgery to repair facial nerve damage and suffered permanent and serious injuries. These injuries adversely affected the victim's ability to work, caused him financial loss and prevented him from engaging in recreational activities that he had previously enjoyed.[109] In Lewis, Mr Lewis pleaded guilty to one charge of wounding with intent to cause grievous bodily harm and one charge of male assaults female. The incident resulting in the wounding charge occurred on a boat on which Mr Lewis and the victim worked. Mr Lewis entered the wheelhouse of the boat, holding a fishing knife with a 15 cm blade. Holding the victim's head, Mr Lewis slashed down theback of the victim's neck, across his left ear and again horizontally across the leftside of his neck. This occasioned bleeding to the victim's neck.[110] Mr Lewis stabbed the victim twice more, causing puncture wounds to his chest and abdomen. The stab wounds to the chest and abdomen resulted in thevictim's lung collapsing. The victim was hospitalised for eight days and was unable to work for at least four weeks.46 Garrett-Phillips v R [2015] NZCA 563; Lewis v R [2015] NZCA 444; and Vincent v R [2015]NZCA 2015.47 Hutchinson v R [2013] NZCA 16.[111] The District Court Judge placed the offending within band two and adopted a starting point of eight years and six months. The Court of Appeal considered that the placement within band two and the starting point were appropriate, as the offending constituted a serious assault involving a weapon and resulted in significant injuries.[112] In Vincent, Mr Vincent and his victim were inmates at Rimutaka Prison. Mr Vincent stabbed the victim four times in the back of his neck using a makeshift knife fashioned for the purpose. The victim's injuries were stitched and he suffered no permanent consequences. Mr Vincent was convicted of wounding with intent to cause grievous bodily harm. The Judge adopted a starting point of six years'imprisonment. The Court of Appeal substituted a starting point of five years'imprisonment.[113] In Hutchinson, the offender was convicted of wounding with intent to cause grievous bodily harm and aggravated robbery.[114] Mr Hutchinson and his co-offender, Mr Glen, followed a vehicle to an area near Lake Rotomanu. They intended to have the three occupants get out of the car and then to steal it. On arrival at lake, Mr Hutchinson opened the driver's door ofthe other vehicle. He hit the driver on the temple with a hammer, causing a laceration that required medical treatment and a number of stitches. As the drivertried to get out of the car, Mr Hutchinson swung a wheel brace, missing the victim'shead but hitting him on the knee and fracturing his knee cap. The victim and his two friends managed to escape, following which Mr Hutchinson and Mr Glen stole the car.[115] The Judge adopted a starting point of nine years' imprisonment, being at the lower level of band three. The Judge considered the aggravating features present were extreme violence, premeditation, serious injury, use of a weapon, an attack to the head and the purpose of the offending being to facilitate another crime, namely the taking of the motor vehicle.[116] The Court of Appeal upheld that starting point of nine years.[117] The injuries inflicted in Garrett-Phillips, Lewis and Hutchinson were more significant than in the present case. Also, to the extent there was premeditation inGarrett-Phillips and Lewis, it was not to the same extent as in the present case.[118] I am, however, particularly troubled by the home invasion aspect of this case. That essentially constituted the burglary which was aggravated by the carrying of the pen gun. There was also the threat to kill. Taking those matters into account I am satisfied that a starting point of, say, seven and a half to eight years for all offending was warranted.[119] The six month uplift for prior convictions on account of the Appellant'scriminal history was at the top of the range open to the Judge. The Appellant has many prior convictions for violence. That he continues to resort to violence demonstrates that previous sentences have not deterred him. In those circumstances it is open to a Judge to impose a substantial uplift.[120] The Judge considered an MPI was required to hold the Appellant to account for harm done to the victim, to denounce his conduct, for deterrence purposes and to protect the community. I consider it was open to the Judge to identify that an MPI was required to meet each of these purposes, and particularly the last three.[121] That said, an MPI of two thirds of the end sentence was not warranted. I have had regard to Keane J's decision in Barrett v Police.48 That decision and the cases to which the Judge referred demonstrate that offending involving similar violence generally attracts an MPI in the region of 50 per cent of the end sentence. Nothing on the facts of this case warrants the maximum non-parole period available. In my view the MPI properly available in this case was up to, say, 55 per cent of the end sentence.48 Barrett v Police HC Auckland CRI-2010-404-261 at [18].Result[122] I reduce the sentences imposed on the charges of wounding with intent to cause grievous bodily harm and aggravated burglary. Each is reduced to eight yearsand three months' imprisonment, to be served concurrently.[123] I reduce the minimum period of imprisonment to four years, six months.[124] I dismiss this appeal in all other respects...................................................................M Peters J