HEMA v NEW ZEALAND POLICE [2017] NZHC 1214

HEMA v NEW ZEALAND POLICE [2017] NZHC 1214 [6 June 2017]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2017-416-0007[2017] NZHC 1214BETWEEN SAMUEL JOHN HEMAAppellantAND NEW ZEALAND POLICERespondentHearing via AVL: 2 June 2017Counsel: N H Wright for AppellantC R Walker for RespondentJudgment: 6 June 2017JUDGMENT OF WILLIAMS J[1] On 2 June 2017, I issued a results judgment allowing the appeal. I indicated reasons will be provided today. They are set out below.Introduction[2] On 26 May 2017, Judge Cathcart in the District Court at Gisborne sentenced Mr Hema to six months and 12 days' imprisonment on the following charges:1(a) threatening to cause grievous bodily harm (representative);(b) assault with a weapon (representative);(c) male assaults female (representative); and(d) possession of an offensive weapon.1 R v Hema [2017] NZDC 11228.[3] Mr Hema had pleaded guilty to these charges on the first day of his trial, once amended charges and an amended summary of facts were agreed on.[4] Mr Hema appeals, on the basis that home detention should have been imposed.Facts[5] The victim had been Mr Hema's partner for three and a half years at the timeof the offending. They were living together in Wairoa with a two year old child. Sheis the victim's biological child, but Mr Hema has been her step-father since she was seven weeks old. At around 2 pm on 10 January 2016, the victim arrived home having been away for a few days. Mr Hema told her he had been waiting for her to come home. He became verbally abusive, and they both accused each other of being unfaithful. Mr Hema became increasingly heated and the victim walked towards him. He stood up and took hold of her with both hands, pushing her towards a table. He punched her once with a closed fist to the head.[6] He then pushed her face and pulled off her earrings and necklace. She was able to free herself and started down the driveway away from him. Mr Hema followed her, and pushed her to the ground, holding her down. He took a brick fromthe garden, and said "would you like this in your fucking head?" He then said "I'm gonna fuckin' hurt you bitch. I'm gonna fuckin' hurt you. I don't love you anymore, it's over. You fucked with my head." In an effort to free herself, she bit andscratched him, telling him to let her go. He released her, but returned shortly after with a green-handled knife in his possession. He also had a blue-handled screwdriver that he held up, saying "I'll fuckin' hurt you bitch, I'll fuckin' hurt you." Hethrew the screw driver onto the front lawn.[7] The victim got away from Mr Hema and intended to run away to the river bank but Mr Hema held the knife up to his own throat and threatened to harm himself. She went inside to pack to leave. He punched a door causing the glass to smash, and kicked a box of beer bottles which also smashed.[8] The victim's sister arrived, as she was dropping off the victim's child.Mr Hema took the child and began walking down the street. The knife was in a pouch attached to a belt, slung over his shoulder in plain view. The victim followed him in an attempt to take the child back. He crossed the road. She approached a woman who was known to her, who assisted with taking the child from Mr Hema and placing her inside her vehicle. Mr Hema chased the victim twice around the vehicle, trying to get his phone from her. She got into the vehicle with her child inside. He left on foot.[9] The victim received a number of injuries: cuts and grazes to both knees and right ankle, swollen and grazed left cheek, lacerations in her mouth, tender face, headaches, bumps to her head, bruising to her stomach and legs, and a sore back.District Court decision[10] Judge Cathcart began by noting that Mr Hema's demeanour "strikes me as someone who has a bit of an attitude problem," and that in the dock when he entered his pleas "you had a certain cockiness about you which was disturbing."[11] Judge Cathcart took threatening to cause GBH as the lead offence. He took a starting point of seven months, reflecting the use of a weapon, the intention that the threats be taken seriously by the victim, the vulnerability of the victim, and the fact the threats were made directly to her. He uplifted by three months for the other offending.[12] He noted Mrs Wright's submission regarding Mr Hema's remorse. However,the Judge said, the pre-sentence report dated 14 October indicated that he displayed only a degree of remorse. In that report, the Judge noted, he talked about his problem with anger, and that he gets overheated and angry and cannot do anything but hit. The author assessed anger-management as the offending-related factor. The report recommended imprisonment. The Judge noted further reports, but did not comment on their content. He gave a discount for remorse, acknowledging that the appellant had undertaken counselling and that the prospect of imprisonment had engendered a change of attitude from the arrogance he had displayed previously.[13] The Judge also took into account the victim's views. She had provided astatement saying what happened was only on that day. They had two young children, and were still happily together. They had changed towns and lifestyles. The victim said the only issue making the family struggle was this case hanging over their heads. The Judge also noted the submission from Mrs Wright that Mr Hema was taking on the role of primary carer of a child. It had been suggested that the victim was suffering from thyroid cancer, but the Judge said he did not have any material on that other than the submission. He gave a two month discount for all mitigating factors.[14] The Judge gave around a 20 per cent discount for guilty pleas, as these were not at the earliest opportunity. This brought the sentence to six months and 12 days.[15] He then turned to home detention. He noted that the 24 May PAC report recorded that an address was proffered and that Mr Hema had advised that he would be residing there with his aunt and a child in her care. She refused to complete the occupant forms. He then advised that she was not residing at that address and was there to assist him with Court matters. The author accordingly expressed concern about whether he would allow other occupants to reside at the address despite his protestations that they would not. Also, in a memorandum dated 16 November 2016, officials from the Ministry for Vulnerable Children expressed significant concern for any children in the home given the family violence between Mr Hema and the victim. They advised that they would complete a safety plan which is likely to involve him leaving the address should any family violence incidents occur. This would make the requirements of EM monitoring unmanageable. Accordingly, the report writer recommended imprisonment.[16] The Judge considered that home detention was not appropriate, due to concerns expressed in the 24 May report, the lack of insight into the offending, and the gravity of the offending.Appellant's submissions[17] The first appeal ground is that the Judge took into account incorrect information in the 24 May PAC report. Concerns about potential visitors to theproperty were misplaced because the visitors at the property were officials from Housing New Zealand and a contractor, in that capacity. And the reference to domestic violence concerns in the report should not have been taken into account, because there was no suggestion that the victim would reside at the address.[18] Second, Mrs Wright submits that the Judge failed to take into accountrehabilitation prospects. She submits that the Judge's assessment of Mr Hema aslacking insight was based solely on comments recorded in the 14 October 2016 PAC report. She submits this report was too out of date to be relied on in terms of insight, remorse and progress by Mr Hema. Since then, she says, he has attended counselling in Wairoa and Gisborne, become a hands-on father, relocated to Gisborne, secured stable Housing Corporation accommodation and was due to start work in the week of 29 May.[19] Third, Mrs Wright submits that the Judge adopted the Crown's focus on theserious nature of the offending and the need for denunciation and deterrence, but gave no consideration to the fact that home detention itself includes these features.2The Court failed to balance all the purposes and principles in light of Mr Hema'spersonal circumstances.[20] Finally, Mrs Wright submits that the Judge failed to take into account the disproportionate severity of a sentence of imprisonment on Mr Hema and his family, pursuant to s 8(h) of the Sentencing Act. Information was provided to the Court by way of affidavit that the victim is suffering from thyroid cancer and this was not challenged by the Crown. Mr Hema has acted as the primary caregiver of his step- daughter for most of her life. Had the Court adequately considered the interests of the victim and the child, this would have tipped the balance in favour of home detention.Crown submissions[21] Counsel submits that the Judge was correct in imposing a term of imprisonment for the following reasons:2 Fairbrother v R [2013] NZCA 340.(a) Mr Hema was being sentenced for an ugly incident of domestic violence involving physical and verbal abuse and intimidation;(b) the incident was not isolated; he said to the probation officer that hehad an anger problem, saying "I overheat and get angry, I can't do nothing but hit";(c) he has appeared before the Court for a variety of offences over the last 21 years, and received sentences including imprisonment, community detention and supervision;(d) the Judge's observation of Mr Hema was that he was arrogant andappeared to have an attitude problem;(e) the Judge was aware that the probation officer had assessed Mr Hema as having limited insight into the consequences of his offending, but also acknowledged that he had begun counselling;(f) the Judge could not ignore the concern of the Ministry for Vulnerable Children at the number of reports they had received in relation to Mr Hema's emotional abuse of his step-daughter and his violent relationship with the victim. The likely safety plan that would need to be put in place would be incompatible with home detention.[22] Counsel submits that the Judge's reference to the probation officer's concernabout other people residing at the address was of little significance in the overallcontext. And although the Judge suggested there was no evidence of the victim's ill- health other than from counsel, he expressly took that into account in any event in accepting that Mr Hema was taking on the role of primary carer. The material before the Judge fell well short of justifying the conclusion that Mr Hema was motivated to change and that there was a realistic prospect he would do so. None of the matters raised detract from the conclusion that imprisonment is the appropriate outcome.Discussion[23] As I have said the only issue in this appeal is whether the Judge was wrong in refusing to commute the short prison sentence ultimately imposed to one of home detention. It is well settled that the choice the Judge made is a matter of discretion and that I have therefore no ability to address, or readdress, the substantive merits of the case. Rather, I must identify an error of principle, a failure of weighting or that the decision was otherwise plainly wrong.3[24] The Judge followed the various PAC report assessments in concluding that home detention was inappropriate. Neither the report writers nor the Judge were satisfied that the appellant would exclude other occupants (particularly the complainant in this case) from the address. The appellant's aunt Carol Meredith,who is a social worker, filed an affidavit to address the concerns raised. She comprehensively refuted the proposition that there were numerous visitors at the then proposed property, or that anyone else, including herself, would be living there.She said in ending this aspect of her discussion "The report is simply wrong. I amreally upset by this."[25] The 16 November 2016 report was written by Leigh Smith who reported in these terms:CYF were concerned at the number of reports they had received in relation to Mr Hema's emotional abuse of his step-daughter and of the violent relationship between Mr Hema and [the victim]. They noted significant concern for the children in the home (both Mr Hema's step-daughter and [theflatmate's] daughter) and requested that a safety assessment and notification be completed should Mr Hema be placed on a sentence there.[26] Because this material gave the impression that there may have been other examples in which the safety of the appellant's step-daughter was an issue, I asked counsel to follow this matter up. According to discussions Mrs Wright had with a manager at Gisborne Probation, the Ministry for Vulnerable Children (as it is now known) advised there was an alert in the date range of June 2015 and March 2016, and there were concerns regarding the emotional effect on the step-daughter in witnessing violence between the victim and the appellant. It seems to me very likely3 See in particular Manikpersadh v R [2011] NZCA 452 and authorities cited there.that the alert related to the offending on 10 January 2016 and would have been the result of police action taken on the day. The advice from the Ministry for VulnerableChildren is there are no current or active files for the appellant's step-daughter. It was noted that there are alerts in the computer system in 2015 relating to a child of the right age with the same first name but the address did not correspond with that of the appellant at the time.[27] In light of this information, I am satisfied that the concern expressed in the PAC report relates only to the effect on the step-daughter of the present offending.[28] I agree that the offending represented a relatively serious example of domestic violence. A threat to the complainant with a brick could well have ended very badly indeed especially since the appellant had reduced inhibitions due, itseems, to drunkenness. But I agree with the appellant's counsel that much haschanged since that unsympathetic PAC report in October 2016. In this regard, the information before me is compelling.[29] There is a letter in November 2016 from the Wairoa Youth Services Trust indicating that the appellant had voluntarily attended eight hours of family supportsession and 10 hours of men's group sessions. The social worker who provided theletter was satisfied that the appellant was "fully engaged in all sessions"; "shared love with his daughter"; "shared openly about the issues that he faced"; and "was willing to adopt new strategies to deal with conflict".[30] On 22 November 2016, the co-ordinator of the Tauawhi Men's Centre wrote that the appellant had attended the men's group on three occasions and had two further individual sessions, all voluntarily. Meanwhile, according to Ms Meredith'saffidavit:Sam has done everything he can since the offending to turn his life around. He has relocated to Gisborne and is raising [his step-daughter]. A referencewas provided at sentencing regarding his involvement as a Dad to [her]. I'malso aware that Sam should have started in the Forestry this week, working with the young trees. He was really excited about this and truly getting his life on track. The move to Gisborne, hands-on role as a father, prospect of work and change of attitude have been huge for Sam.I understand if Sam is not released from prison shortly, Housing Corp will take his house back. I do not want to see Sam go so far backwards, given how far he has come.[31] While technically the references in relation to men's and family programmesand Housing Corporation issues were before the Judge, counsel accept that they maynot have been emphasised in a manner that captured the Judge's attention in quite theway necessary.[32] The victim and the appellant are attempting to hold their relationship together despite both the violence and the separation rendered necessary by the law enforcement intervention after that.[33] The complainant attended one of the Probation Service interviews along with the appellant. And in a statement to the victim advisor in May this year the complainant said:What happened on that day was only on that day. What has happened since then is only but positive for us and the kids. We have a three year old daughter and Sam is also [step] Dad to my five year old son. We are still together and a happy couple. He was under the influence of alcohol when this all took place. I have been trying to do my all to keep him out of gaol (sic) as that is best for the kids. He knew he was in the wrong and I am under no pressure from him to paint a good picture.Our only downfall in our life is this court case still hanging over us. We have changed towns, changed our whole lifestyle. In Wairoa it was all ganging (sic) and not good. We have pulled away from that now. Sam hasenrolled in Tauawhi Men's Centre and I'm getting counselling from SueDrummond and support from Victim Support. Our lives have changed big time. We just want to get rid of this court case and move on with our lives.[34] While domestic violence offending is replete with examples of victims who walk back into an abusive relationship because they cannot escape it, and who forgive the perpetrator and blame themselves, this in my view, is plainly not such a case. My reading of that statement is that it projects a woman very much in control of the situation and her own destiny who has made a choice having weighed all things. That, in my view, ought to have been a more important factor in the choice the Judge made.[35] It is true that the Judge accepted that Mr Hema was the primary carer of his step-daughter. But, in discounting the evidence of the victim's thyroid cancer, he didnot appreciate the significance of this fact. In Ms Meredith's affidavit filed in theDistrict Court, she explained that Mr Hema was caring for the step-daughter while the victim was undergoing treatment. It is plain that if Mr Hema is able to continue caring for his step-daughter, this will ease the burden on the victim and allow her to focus on her recovery.[36] It is plain also that the Judge viewed the appellant's "swagger" (my word nothis) in the court room when he took the guilty plea at the start of the trial as indicative of a lack of insight and perhaps even of remorse (although the Judge didgive a modest discount for this). This plainly flavoured the Judge's overall attitudeto the appellant. Such assessments are, in my experience, fraught with danger. Theuse of what in the appellant's social context would be seen as body language of power, is more often an attempt to redress a defendant's own perceived lack ofpower in the criminal justice process. In contrast to the Judge's perception, there is,in my experience, very little to learn about a defendant in criminal proceedings from that kind of behaviour.[37] Also potentially significant is the live offer of work – an activity that the appellant has not engaged in for two years at least. Given that the family wish to stay together, this too ought to have been seen as a significant game changer. The appellant himself said that being stuck at home with no work was depressing and was likely to have contributed to the alcohol and/or drug abuse that fuelled the violent relationship under which the victim suffered.[38] I have some concerns about the appellant's report that he suffered asignificant head injury 11 years ago. This was significant enough for him to have been in a coma for some time and to have had to relearn basic life skills from then. This profile is often seen as an important component in the inability to moderate violent tendencies. Such tendencies can sometimes be exacerbated by home detention. In this case however, the forestry job will take him out of the house during the day and ease the tensions that often afflict offenders and families where the offender is serving a home detention sentence.[39] Finally, the Crown emphasises Mr Hema's criminal history as weighing against home detention. However, although his history is relatively lengthy, all of the offending is relatively minor and there is no violent offending aside fromcommon assault in 2010 (for which he was sentenced to nine months' supervision). The only sentence of imprisonment he has received was four months in 2003 for possessing an offensive weapon. Nor are there any convictions noted for breach of conditions or the like. In short, the criminal history is at worst a neutral factor, and does not suggest that imprisonment is necessary.[40] In my view, the Judge was in error in failing to give sufficient, or indeed any real weight, to the commitment the appellant and the victim have made to their relationship, to his extensive attempts to resolve his anger problems, to their departure from the negative context of their residence in Wairoa which was full of"ganging", and to the appellant's apparent acquisition of employment in the forestryindustry.[41] The appeal is allowed accordingly. As indicated in the results judgment, asentence of three months' home detention is substituted subject to the conditions setout in the PAC report of 24 May.[42] I would add that appropriate provision will be required to allow Mr Hema to work. I am content to leave that to Corrections. If further directions are required from this Court, counsel may apply.Williams JSolicitors:N Wright, Barrister & Solicitor, Gisborne for AppellantCrown Solicitor, Gisborne for Respondent