HAEATA v NEW ZEALAND POLICE [2019] NZHC 3268

HAEATA v NEW ZEALAND POLICE [2019] NZHC 3268 [11 December 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-096-2539[2019] NZHC 3268IN THE MATTER of Section 200 of the Criminal Procedure Act2011BETWEEN RENEE CHAZ HAEATAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2019Appearances: R J Bayer for the AppellantN I Burt for the RespondentJudgment: 11 December 2019JUDGMENT OF COOKE J[1] On 6 November 2019 Mr Haeata was sentenced by Judge Tompkins in theDistrict Court at Hutt Valley to 18 months' imprisonment for one charge of assaultwith intent to injure following the entry of a guilty plea.1 The sentence was to beserved cumulatively with an existing term of imprisonment of seven years for sexualoffending.[2] Mr Haeata appeals his sentence on the grounds the starting point adopted bythe District Court Judge was too high and that the end sentence was manifestlyexcessive. The Crown acknowledges the starting point adopted by the Judge was atthe higher end of the available range, but given the aggravating features of theoffending submits the starting point was appropriate.1 New Zealand Police v Haeta [2019] NZDC 22101, Crimes Act 1961, s 193, maximum penaltythree years' imprisonment.Factual background[3] Mr Haeata was serving a sentence at Rimutaka Prison when the incidentoccurred. At the time of the offending he was only 20 years old. The victim is aCorrections officer.[4] At approximately 1.30 pm on 6 January 2019 Mr Haeata was on the groundfloor of Rimutaka prison. Two Corrections officers were moving property belongingto Mr Haeata's cellmate from their shared cell to another. Mr Haeata ran upstairs andattempted to prevent the officers from moving the property. The victim intervenedand tried to take the property back from the defendant. It is apparent a scuffle ensued.The victim called out for help. Mr Haeata then took out a makeshift weapon from hispocket — a sock with two pool balls placed inside it. He began to swing the sockaround aggressively. He advanced towards the victim and forcefully struck the victimon the head with the sock. The officers deployed pepper spray and Mr Haeata wasrestrained by other Corrections staff.[5] The victim has explained the impact upon him in a victim impact statement,including the continuing effects the assault have had upon him.District Court decision[6] After outlining the facts, the Judge noted the decision was governed by thedecision in R v Nuku. He considered the following features of the offendingaggravated: that there was an element of premeditation because Mr Haeata chose toarm himself with the makeshift weapon; the attack was to the head, and the attack wason a prison officer in the course of fulfilling their duties. The Judge considered thosefactors placed the offending in the second band, and adopted a starting point of twoyears' imprisonment. After discounting 25 per cent for entry of guilty plea, thatcalculated to an end sentence of 18 months' imprisonment.Approach to appeal[7] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the 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.[8] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion. An error of principleincludes an error of fact or law, failing to take into account a relevant consideration,or if the decision was plainly wrong.2 The focus is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.3Analysis[9] Ms Bayer for Mr Haeata submits the Judge erred in applying the Nuku bandswithout adjusting the starting point to reflect the fact that Mr Haeata was charged withassault with intent to injure.[10] Nuku v R provides guidance as to the application of R v Taueki to lesser chargeswhere the offending involves an intent to injure.4 The Court of Appeal stated that thedecision was applicable to offending under ss 189(2), 188(2) and 191(2) where theoffending involves intent to injure. The Court set out the following sentencing bands:5Band one: where there are few aggravating features, the level of violence isrelatively low and the sentencing judge considers the offender's culpability tobe at a level that might have been better reflected in a less serious charge, asentence of less than imprisonment can be appropriate.Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at [31]of Taueki are present.Band three: a starting point of two years up to the statutory maximum (eitherfive or seven years, depending on the offence) will apply where three or moreof the aggravating features set out in Taueki are present and the combinationof those features is particularly serious. The presence of a high level of orprolonged violence is an aggravating factor of such gravity that it will2 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].3 Ripia v R [2011] NZCA 101 at [15].4 Nuku v R [2012] NZCA 584, [2013] NZFLR 39; and R v Taueki [2005] NZCA 174, [2005] 3 NZLR372.5 Nuku v R, above n 4, at [38].generally require a starting point within band three, even if there are few otheraggravating features.[11] The Court of Appeal stated that the decision was applicable to offending underss 189(2) (injuring with intent to injure), 188(2) (wounding with intent to injure) and191(2) (injuring with intent to facilitate commission of a crime).6 The Court of Appealin Tamihana v R held that the principles discussed in Nuku are helpful in sentencingunder s 193 as the offence involves the same mental element.7 That wasnotwithstanding Nuku focuses on different offences with higher maximum sentences.8Section 193 attracts a maximum penalty of three years' imprisonment. The offencesidentified in Nuku attract maximum penalties ranging from five to seven years'imprisonment.[12] Recent High Court decisions have noted that when Nuku is applied to offencesunder s 193 allowance must be made to reflect the shorter maximum period ofimprisonment for assault with intent to injure.9 Most recently in Howes v PoliceJagose J discussed the approach to sentencing bands for s 193:[10] . In essence, where there are few aggravating factors or only low-level violence, a non-custodial sentence may be appropriate. Three or feweraggravating factors would attract a start point no higher than about 45% of themaximum sentence; three or more in serious combination would require a startpoint from about 30% "and up".[13] In Taueki the Court of Appeal cautioned against adopting a "mathematicalapproach to any adjustment process where the charge involves a lesser degree of harmor culpability and therefore carries a lesser maximum penalty".10 So whilst someadjustment to the sentencing bands is necessary to reflect the lower maximum penalty,a flexible approach is appropriate.[14] I accept that the District Court Judge applied the Nuku bands withoutaddressing how those bands should be applied when the lesser charge of assault with6 At [37].7 Tamihana v R [2015] NZCA 169 at [16].8 At [16].9 Merrill v New Zealand Police [2016] NZHC 2140 at [25]; and Howes v New Zealand Police[2019] NZHC 1841.10 R v Taueki, above n 4, at [8], citing R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison[2007] NZCA 78 at [23]; and R v D (CA253/08) [2008] NZCA 267 at [43].intent to injure was involved. This means that it is important to address whether thestarting point was inappropriate for this type of offending. The ultimate question iswhether the starting point, and therefore the end sentence was manifestly excessive,rather than the precise process by which it was reached.[15] Ms Bayer submits a starting point in the range of 9 to 12 months wasappropriate (approximately at the start of band two of Nuku). She submits there werethree aggravating features of the offending: use of a weapon; assault on a prisonofficer, and attack to the head. Ms Burt for the Crown submits the offending sits atthe upper end of band two and close to band three. She identifies six aggravatingfeatures: attack to the head; serious injury; a degree of premeditation; use of a weapon;the fact the attack only ceased when the appellant was sprayed with pepper spray andrestrained, and assault on a public official.[16] In common with the District Court Judge, in my view Mr Haeata's offendingfalls in band two of the bands set out in Nuku. The offending involved the followingTaueki aggravating factors:(a) Attacking the head: Mr Haeata aimed and swung the makeshift weaponat the victim's head. I also note that the attack caused injury, albeit notsuch that would warrant them being treated as a separate aggravatingfactor.(b) Use of a weapon: The weapon used was two pool balls in a sock. Thatis a blunt and heavy instrument which can cause serious damage whenaimed at the head. The summary of facts records Mr Haeata began toswing while standing approximately one meter away from the victimbefore advancing towards him and striking him on the head, indicatinga significant degree of force was used.(c) Public official victim: The victim was a prison officer who was attackedin the course of carrying out his duties. That is a serious additionalaggravating factor.1111 R v Taueki, above n 4, at [31](l).[17] While not a Taueki factor, I also consider it aggravating that the offendingoccurred while Mr Haeata was serving a sentence of imprisonment.12 The fact thatMr Haeata was carrying the weapon with him also indicates a degree of premeditationtowards violence. He was also pepper sprayed to prevent continuation of the assault.Although each of these last two factors by themselves may not be independentaggravating factors, they both add to the seriousness of the offence.[18] In supporting the sentence Ms Burt relied on Gillies v R where the offenderwas charged with injuring with intent to injure, and assault.13 The injuring chargearose from an incident in custody. The offender was angry he was unable to have aphone call at the time requested and hit a clipboard out of a prison officer's hands. Hethen punched the officer twice in the head, causing him to fall unconscious andcollapse to the ground. The District Court adopted a three year starting point. Thedecision was upheld on appeal.[19] Ms Bayer relied on other cases which she said demonstrated that the startingpoint, and end sentence was manifestly excessive. In Kepu v Police there had been aserious assault of an inmate by fellow inmates, including the defendant, which hadinvolved stabbing and the charge of wounding with intent to injure.14 A starting pointof 15 months had been adopted, although the High Court described that as lenient. InTamihana v R itself a starting point of 18 months in relation to an assault with intentto injure in a bar involving kicking and punches to the head was held to be manifestlyexcessive and 12 months was substituted.15[20] The fact that Mr Haeaka's offending involved a makeshift weapon, attacks tothe head, and that the assault was on a prison officer are significant aggravating factors.But the offending in Kepu v Police seems to me to be decidedly more serious, althoughit could have warranted a higher starting point. In the circumstances of this case an18 months starting point would have been appropriate.12 Lake v R [2017] NZCA 39 at [7]; Tryselaar v R [2012] NZCA 353 at [18]; Pulete v R [2013]NZCA 216 at [28]; Karetu v R [2013] NZCA 408 at [18]–[19]; and Kepu v R [2011] NZCA 104 at[18]–[19].13 Gillies v R [2014] NZCA 115.14 Kepu v Police [2016] NZHC 2410.15 Tamihana v R, above n 7.[21] There is a further factor in assessing whether the sentence was manifestlyexcessive. At the time of the offending Mr Haeata was only 20 years of age, and hisoffending appears to have had an impulsive element. In addition the sentence willneed to be cumulative, and adds to an already long sentence being served by a youngperson. In those circumstances a modest discount of approximately 10 per cent foryouth may have been appropriate.16 Taking into account the 25 per cent discount forthe guilty plea, and an additional discount for youth of that order, it seems to me thata total end sentence of 12 months' imprisonment was appropriate.[22] In these circumstances a sentence of 18 months' imprisonment was manifestlyexcessive. Accordingly the appeal is allowed and a sentence of 18 months'imprisonment is substituted with a sentence of 12 months' imprisonment to be servedcumulatively on Mr Haeata's existing sentence of imprisonment.Cooke JSolicitors:Thomas Dewar Sziranyi Letter, Lower Hutt for AppellantCrown Law, Wellington for Respondent16 See Rolleston v R [2018] NZCA 611.