PUNA v NEW ZEALAND POLICE [2022] NZHC 2123

PUNA v NEW ZEALAND POLICE [2022] NZHC 2123 [25 August 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2022-412-000016[2022] NZHC 2123BETWEEN RION ANARU PUNAAppellantAND NEW ZEALAND POLICERespondentHearing: 23 August 2022Appearances: N M Graham for the AppellantM Brosnan for the RespondentJudgment: 25 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 25 August 2022 at 10.15 amRegistrar/Deputy RegistrarDate:Introduction[1] Mr Rion Puna appeals a sentence of 11 months' home detention and an orderfor reparation in the sum of $1,000 imposed in the District Court on 7 April 2022.1This sentence was imposed for charges of injuring with intent to injure2 and unlawfullytaking a motor vehicle.3[2] Mr Puna appeals this sentence on the grounds that:(a) there should have been a separate discount applied for his offer ofreparation;(b) the end sentence was manifestly excessive; and(c) it should have more appropriately been a sentence of communitydetention and supervision.Facts[3] On 15 October 2021, Mr Puna and his co-defendant, Mr White, were at a tavernin Alexandra. The victim was serving alcohol at their table.[4] During the night, Mr Puna and his associates insulted the victim. Out ofconcern for the victim, the bar manager stopped him from serving Mr Puna and hisassociates.[5] Later that evening, the victim was driving the tavern's courtesy coach. Atapproximately 11.45 pm the bar was closed and the defendants and other patrons fromthe tavern boarded the coach. The victim was unfamiliar with the area, so followeddirections from some of the passengers.[6] When all of the passengers aside from Mr Puna and his associates weredropped off, Mr Puna moved to the left front passenger's seat. Someone started1 Police v Puna [2022] NZDC 6175.2 Crimes Act 1961, s 189(2). Maximum penalty of five years' imprisonment.3 Section 226(1). Maximum penalty of seven years' imprisonment.smoking inside the van. The victim asked that person not to smoke. A passenger theninsulted the victim.[7] The victim stopped the van. The victim exited the van, opened the sliding doorand asked Mr Puna and his associates to get out of the van. They verbally abused thevictim again.[8] The victim returned to the driver's seat and put the van into gear. Mr Puna gotinto the left front passenger seat and grabbed the victim's hand. He asked where theywere going. The victim said he was taking them back to the tavern. Mr Puna grabbedthe victim's left arm and pulled him towards him, insisting that the victim drive totheir original destination instead. The victim refused and said he was feeling unsafe.[9] Mr Puna then used his right arm to put the victim into a headlock and startedchoking him to the point where the victim could not breathe. Mr Puna squeezed hisarm tighter around the victim's neck and dragged the victim towards him, out of theleft front passengers' door and onto the ground. Once the victim was on the ground,Mr Puna put both hands around the victim's throat and squeezed. The victim struggledto breathe. Mr Puna then punched him four or five times on the left side of his head.[10] Two of Mr Puna's associates exited the van and one kicked the victim on theright side of his ribs twice. Mr Puna continued choking the victim, who thought hewas going to be rendered unconscious as a result. When the assault ended Mr Punaand his associates drove away in the van, leaving the victim alone.[11] The victim suffered bruising on the left side of his face and left hip, a sorethroat, pain in his ribs and a ruptured left ear drum. As a result, the victim haspermanently lost hearing in his left ear.[12] Mr Puna originally denied all offending, however later pleaded guilty to thecharges.District Court decision[13] After setting out the facts of the offending and the injuries sustained by thevictim, the Judge focused on the content of the presentence report. This recorded thatMr Puna was ashamed of his actions and was remorseful. Mr Puna presented withgood insight towards his offending, understood violence is not a means for resolutionand was highly motivated to rectify his wrongs. The presentence report also notedthat Mr Puna does not have a criminal history and this behaviour appears to have beenout of character for him.[14] Mr Puna's risk of reoffending and harm to others was assessed as low by thereport writer, who ultimately recommended a sentence of community detention andsupervision.[15] The Judge accepted Mr Puna had reflected on his actions and acknowledgedhis line of employment was one in which drinking is part of the culture.[16] The Judge identified Nuku v R and R v Taueki as the guideline judgments inrelation to the injuring with intent to injure charge.4[17] The Judge referred to the prosecution submission that there were six Tauekiaggravating factors which would justify a starting point of 36 months' imprisonmentfor the lead charge of injuring with intent. An uplift of 12 months in relation tounlawfully taking a motor vehicle was also submitted by the prosecution. Allowing afull discount for Mr Puna's guilty plea, this resulted in an end sentence of 34 months'imprisonment.[18] Conversely, defence counsel submitted there were only three or four Tauekiaggravating factors and a starting point of roughly two and a half years was appropriatefor the charge of injuring with intent, with a six-month uplift for the unlawful takingof the vehicle. Defence counsel submitted Mr Puna should receive a 25 per centdiscount for his guilty plea, 10 per cent for his previous character and rehabilitativeprospect, and a further discrete discount for his remorse and offer of reparation.4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).[19] The Judge found there were three to four aggravating factors, grouping someof the more minor factors together. These aggravating factors were the use ofrelatively serious violence (including strangulation); an attack to the head; the injuriessustained by the victim; and the fact Mr Puna was part of a group that had insulted thevictim throughout the evening, therefore creating a degree of vulnerability in thevictim.[20] The Judge did not accept this offending constituted a hate crime, as heconsidered its genesis lay in the victim's refusal to drive the men home rather than anobjection to the victim's ethnicity. Similarly, the Judge did not accept the offendingwas for the purpose of facilitating a crime, as taking the motor vehicle was anunintended consequence.[21] With reference to Nuku, the Judge found this offending straddled bands twoand three, with an appropriate starting point of 28 months' imprisonment for the chargeof injuring with intent. This was uplifted by six months for the unlawfully taking amotor vehicle charge, leading to 34 months' imprisonment as a global starting point.[22] Mr Puna received a full discount for his guilty plea and a further 10 per centfor his remorse, favourable criminal history and the fact this offending was out ofcharacter, totalling a 35 per cent discount. This resulted in an end sentence of24 months' imprisonment.[23] In considering whether to impose an electronically monitored sentence, theJudge noted he needed to balance the purposes and principles of the Sentencing Act2002, especially the need for accountability, deterrence, denunciation andrehabilitation. The Judge emphasised to Mr Puna the seriousness of his offending, butalso recognised that prison would not facilitate rehabilitation. Mr Puna's lack ofcriminal history, the uncharacteristic nature of this offending and his willingness toundertake whatever is required by way of sentence, were factors the Judge consideredin determining an electronically monitored sentence was appropriate.[24] The Judge explicitly rejected the presentence report's recommendation ofcommunity detention and supervision as it "simply does not appropriately respond tothis offending".5 He imposed a sentence of 11 months' home detention and ordered$1,000 by way of reparation.Principles on appeal[25] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.6 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.7 A Court will not interfere where the sentence is withinrange and accords with accepted sentencing principles.8SubmissionsAppellant's submissions[26] No issue was taken with the starting point adopted by the Judge, insteadMs Graham emphasised that Mr Puna, at age 30, had no prior convictions and hadpleaded guilty at the first available opportunity. She also provided multiple characterreferences from Mr Puna's family, employers, and co-workers to demonstrateMr Puna's "impeccable previous character". Ms Graham submitted the fact this wasMr Puna's first appearance in court and his previous good character should, bythemselves, attract a discrete discount of 10 per cent.[27] Ms Graham submitted Mr Puna was remorseful, having wished to engage inrestorative justice and offering $1,000 by way of emotional harm reparation to thevictim to be paid immediately. Ms Graham submitted the Judge erred by notrecognising Mr Puna's offer of reparation as a mitigating feature. She said the Judgedid not refer to this offer being made during the sentencing decision. Ms Grahamsubmitted this demonstrates that the offer of reparation was not factored in by the5 At [30].6 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Ripia v R [2011] NZCA 101 at [15].8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].sentencing Judge, and a separate and distinct discount should have been applied by theJudge.[28] Ms Graham also submitted the Judge erred by not considering therecommended combination of sentence, being community detention and supervision,as an appropriate response to the offending. She accepted that whether commutationof a sentence is appropriate is an exercise of judgment by the sentencing courtconsidering the statutory principles and purposes of sentencing.9 However,Ms Graham submitted that other than a brief statement that the recommendation doesnot appropriately respond to the offending, there was no express consideration of anyother principles and purposes of sentencing by the Judge. Ms Graham submittedrelevant factors to this consideration would have been that this was Mr Puna's firsttime in court, he has stable and solid family and employment, and he demonstratesinsight into the causes of the offending. For these reasons, Ms Graham submitted acombined sentence of community detention and supervision was the least restrictiveoutcome.Respondent's submissions[29] Ms Brosnan conceded Mr Puna should be treated as a first-time offender.[30] Although no issue had been raised with the starting point on appeal,Ms Brosnan submitted the starting point reached by the Judge was sound, if notlenient. She set out the sentencing bands in Nuku and submitted the injuring withintent to injure charge could have attracted a starting point in the vicinity of two and ahalf to three years, as opposed to the 28 months' imprisonment the Judge reached.This was based on the submission that the aggravating factors of an attack to the headand multiple assailants were of significant weight, and more weight could have beenplaced on the victim's vulnerability given the nature of the surprise attack.10[31] As to the discounts applied by the Judge, Ms Brosnan submitted that a failureto separately quantify a personal mitigating factor does not automatically result in an9 Citing Palmer v R [2016] NZCA 541 at [18]–[19].10 Citing Graham v R [2011] NZCA 131 at [14] as authority to support the proposition that a victimwho is subject to a surprise attack is a vulnerable victim.error.11 Ms Brosnan submitted the Judge did not err by allowing a 10 per cent discountfor Mr Puna's previous good character and remorse. She acknowledged Mr Punaappeared remorseful during his interview with the presentence report writer butsubmitted there is a clear need for genuine remorse to be evidenced rather thanasserted.12 Ms Brosnan submitted remorse is closely intertwined with an offer forreparation, and as such there was no requirement for the Judge to allow a separate anddistinct credit for Mr Puna's offer, especially without any further evidence of remorsesuch as an apology letter.[32] However, Ms Brosnan submitted that if the Court was minded to awardMr Puna a discrete discount for his remorse then no more than 5 per cent credit oughtto be afforded to him. If this discount were allowed, Ms Brosnan submitted the endsentence would still be in range.13[33] Ms Brosnan submitted it was appropriate for the Judge to impose a sentence ofhome detention despite the recommendation in the presentence report.[34] Ms Brosnan accepted the Judge did not expressly describe all of the purposesand principles of sentencing in the Sentencing Act but submitted that this cannot beexpected of District Court Judges, especially during a busy list court. Ms Brosnansubmitted the Judge was alive to the relevant considerations, namely Mr Puna'spersonal circumstances and the purposes and principles of sentencing. She noted theJudge placed significant weight on Mr Puna's capacity for rehabilitation, but alsohighlighted deterrence and denunciation as sentencing principles.[35] Ms Brosnan submitted this offending was serious, involving multiple attackers,an attack to the head and a vulnerable victim who was subject to a surprise attack froman unfamiliar assailant. In these circumstances, Ms Brosnan submitted it was open tothe Judge to impose a sentence of imprisonment. However, Ms Brosnan noted theJudge considered the seriousness of the offending could be tempered by Mr Puna'sgreater capacity for rehabilitation. Accordingly, the Judge found a sentence of home11 Citing Fugle v R [2022] NZCA 124 at [9].12 Hessell v R [2010] NZSC 135.13 Citing Bull v Police [2019] NZHC 1720 at [21].detention to be the least restrictive outcome that was appropriate in the circumstances.Ms Brosnan echoed the Judge's comment that a sentence of community detention andsupervision would not reflect the seriousness and gravity of the offending.AnalysisStarting point[36] The case of Nuku provided guidance in setting the starting point for an offenceof injuring with intent to injure.14 With reference to the aggravating factors establishedin Taueki, the Court of Appeal established the following bands for this type ofoffending:15(a) Band one: where there are few aggravating features, the level ofviolence is relatively low and the sentencing judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listedat [31] of Taueki are present.(c) Band three: a starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will apply wherethree or more of the aggravating features set out in Taueki are presentand the combination of those features is particularly serious. Thepresence of a high level of or prolonged violence is an aggravatingfactor of such gravity that it will generally require a starting pointwithin band three, even if there are few other aggravating features.[37] The aggravating factors in Taueki that were raised by counsel here were theserious injuries, attacks to the head, vulnerability of the victim, facilitation of a crime,the commission of a hate crime and multiple attackers.16 In terms of which factors arepresent here to a significant degree, I accept the Judge's reasoning in concludingMr Puna's offending was not a hate crime nor an act carried out to facilitate a crime.[38] Both in terms of the bands in Nuku and with reference to comparative cases, itis clear the starting point adopted by the Judge in relation to the injuring with intent14 Nuku v R, above n 4.15 At [38].16 R v Taueki, above n 4.charge was within range, and it may have been permissible for the Judge to adopt ahigher starting point here.17[39] I note the six-month uplift applied by the Judge for the charge of unlawfullytaking a motor vehicle was not challenged. I consider it was appropriate.18Discounts[40] Mr Puna was appropriately awarded a full 25 per cent discount for his earlyguilty plea.[41] The limited contention here is whether a 10 per cent discount should have beenawarded solely for Mr Puna's previous good character and clean record, with a furtherdiscrete discount provided for Mr Puna's offer of reparation and remorse.[42] Although there may have been leeway for a further discount relating toMr Puna's previous good character and remorse given the strength of his characterreferences, I consider this would only be in the range of an additional five per cent andthus any increase in this discount would amount to tinkering.The appropriate sentence[43] Determining what sentence to impose involves an exercise of judgment whileconsidering the principles and purposes of the Sentencing Act 2002.[44] The Judge was clearly alive to all of the relevant factors in this case, includingMr Puna's personal circumstances and the need for accountability, deterrence,denunciation and rehabilitation. I accept he did not set out all of the purposes andprinciples of sentencing individually, but this cannot be required of a judge in a busylist court. The Judge did make explicit reference to the general purposes and principlesof sentencing, then selected the ones that were relevant here.1917 See Scanlan v Police [2021] NZHC 2071; White v R [2021] NZHC 2079; Dean v Police [2014]NZHC 1542; Solomon v R [2019] NZHC 2916; and Burton v Police [2017] NZHC 664.18 Before the District Court, counsel had referenced Allport v Police [2019] NZHC 1306; and Eperev Police [2019] NZHC 336.19 Police v Puna, above n 1, at [26].[45] On appeal, many of the issues raised concerning the sentence of homedetention relate to Mr Puna's employment. According to the presentence report,Mr Puna has been employed as a shearer since the age of 15 and has since travelledboth nationally and internationally for his work, winning awards for his efforts. If itwere not for the sentence of home detention it is likely he would have recentlytravelled to the United States.[46] On 7 April 2022 Mr Puna advised counsel the main shear work had finisheddue to the weather in Hawkes Bay, and he had since picked up work at a cool storefrom 6 pm to 4 am.[47] It is evident from the character references from Mr Puna's previous employersthat he will be supported in returning to his chosen form of employment when theseason allows. Although employment is an important consideration in terms of anoffender's ability to rehabilitate, it is clear Mr Puna has employment available to himat the conclusion of his sentence and this is not a determinative factor.[48] As the Judge stated, this offending was of a serious nature. Counsel have notreferenced any cases in which a sentence of less than home detention has been imposedfor such an offence.[49] Here, it is clear the Judge made his decision to commute 24 months'imprisonment to home detention due to Mr Puna's rehabilitative prospects. However,once this need for rehabilitation is balanced with the need for accountability,denunciation and deterrence, I agree with the Judge that a sentence of community workand supervision would not be appropriate. The attack involved strangulation andblows to the victim's head. The attack has had lasting detrimental physical andpsychological effects on the victim.[50] The least restrictive outcome here was a sentence of home detention. Thesentence was not manifestly excessive and I find the Judge did not err.Result[51] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, DunedinCC:N Graham, Napier