MIHINUI v NEW ZEALAND POLICE [2018] NZHC 2705

MIHINUI v NEW ZEALAND POLICE [2018] NZHC 2705 [18 October 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000042[2018] NZHC 2705BETWEEN SATRIANI MIHINUIAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2018Appearances: G Prentice for AppellantA A R Pell for RespondentJudgment: 18 October 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Mihinui pleaded guilty in the District Court to the following charges:• 22 December 2017Male assaults female – assault with intent to injure – assault with aweapon• 26 December 2017• Injuring with intent to injure• 13 January 2018• Assault with intent to injure• 22 January 2015• Male assaults female – intentional damage – assault with intent to injure –assault on police (x 2)[2] On 26 March 2018, Judge Cocurullo sentenced Mr Mihinui to an effective termof three years nine months imprisonment on all charges.1 Mr Mihinui appeals againstsentence on the basis that the Judge erred in several respects when constructing thesentence, and these errors led to an end sentence that was manifestly excessive.The charges22 December 2017[3] In the early hours of 22 December 2017, Mr Mihinui and his partner were athis partner's mother's address in Waitara. After they began to argue Mr Mihinui saton top of his partner whilst she was lying on the bed. He then used his open left handto push her face up against the wall. Whilst his partner was in this position, he placedhis right hand around her throat and squeezed, thereby restricting her ability to breathebut leaving her with no lasting injury.1 New Zealand Police v Mihinui [2018] NZDC 5734.[4] Mr Mihinui and his partner then went outside the address. When his partnerbroke free from him, Mr Mihinui swung a piece of wood at her head. This glancedoff her scalp, narrowly avoiding injury.26 December 2017[5] On this date, Mr Mihinui and his partner were together at an address inHamilton, during which an argument again occurred Mr Mihinui grabbed an extensioncord and wrapped it round his partner's neck to the point where she could not breathe.She attempted to escape by scratching and hitting Mr Mihinui. He eventually loosenedthe cord to allow her to breathe. At that point he began apologising to his partner andkissing and hugging her. Shortly thereafter, however, he put the cord back around herneck and squeezed it tightly. On this occasion, his partner lost consciousness andeventually passed out. He did not loosen the cord until after she had lost consciousnessand begun twitching.13 January 2018[6] On 13 January 2018, Mr Mihinui and his partner were in the garage of anaddress. Another argument ensued. Mr Mihinui began throwing clothing around thegarage. He then walked up to his partner and punched her three times to the head witha clenched fist. After the third punch, his partner fell to the ground on her knees. Hethen continued to punch her in the head. Mr Mihinui concluded this episode with threefinal punches, the last of which connected with his partner's nose, making it bleed. Hethen took her outside to a garden shed and locked her in the shed overnight.22 January 2018[7] On this date Mr Mihinui and his partner were at an address in Hamilton.Another argument arose, this time about whether or not a room should be tidied. Hepushed his partner down the hallway and out to a shed, where he threw asthma inhalersat her. He then left her in the shed.[8] The owner of the property had witnessed what was going on and toldMr Mihinui she was calling the police. He then pursued her, and during the course ofthe pursuit he picked up a metal-framed chair and threw it at her. He also threw a beerbottle at her. Neither missile found its mark. The police arrived at the address andsaw Mr Mihinui shouting and running back into the house. They endeavoured to speakto him through a bedroom window and also asked to speak with his partner. Withoutwarning, Mr Mihinui smashed the window directly in front of the police officers.Shards of glass flew over the officers. Mr Mihinui then armed himself with a chairand smashed another window, again sending glass over the officers. They receivedminor injuries as a result of these incidents. They were required to pepper-sprayMr Mihinui in order to arrest and restrain him.[9] When the police interviewed Mr Mihinui regarding the incident on26 December 2017, he told them he had wanted to hurt his partner.The Judge's decision[10] Not surprisingly, the Judge viewed the incidents that occurred on 26 December2017 and 13 January 2018 as being extremely serious. In particular, the violence on26 December 2017 proceeded to the point where the victim had lost consciousness andwas at risk of asphyxiation. The Judge selected a starting point of 30 monthsimprisonment to reflect both incidents. The Judge said, however, that the offendingon 26 December 2017 could easily attract a starting point of three years imprisonment,and the offending on 13 January would justify a starting point of two yearsimprisonment on a standalone basis.[11] The Judge then added an uplift of 12 months to reflect the assaults that occurredon 22 December 2017. He considered this offending could easily attract a startingpoint of 18 months to two years imprisonment, but obviously applied totalityprinciples. He added a further uplift of 15 months to reflect the offending against thefour separate victims on 22 January 2018, although he considered a starting point forthat offending on a standalone basis would be between 15 months and two years. Thisproduced an end sentence of four years nine months before taking into accountaggravating and mitigating factors personal to Mr Mihinui.[12] The Judge applied an uplift of four months to reflect previous convictions foroffending involving violence. He then added a further uplift of four months to reflectthe fact that Mr Mihinui had committed all of the offending after 22 December 2017whilst on bail on charges arising out of the incident that occurred on that date. Thisproduced a sentence of five years five months imprisonment before taking into accountmitigating factors.[13] Mr Mihinui is only 19 years of age. The Judge applied a discount of fivemonths to reflect that factor and a further discount of 15 months, or 25 per cent, toreflect guilty pleas. This produced the end sentence of three years nine monthsimprisonment.The appeal[14] Mr Prentice advances several arguments on Mr Mihinui's behalf. He acceptsthat the starting point the Judge selected in relation to the offending that occurred on26 December 2017 was appropriate. He also accepts the Judge acted in a generousmanner by including within that starting point the offending that occurred on13 January 2018. He submitted that the latter would warrant a starting point of nomore than 12 months on a standalone basis.[15] Mr Prentice contends the offending that occurred on 22 December 2017warranted a starting point on a standalone basis of between 15 and 18 monthsimprisonment having regard to authorities such as Teka.2 He submits, however, thatthe Judge seriously overestimated the culpability inherent in the offending thatoccurred on 22 January 2018. He points out that the charges relating to the policeofficers carried maximum sentences of just six months imprisonment. He also pointsout that the offending against the owner of the property was of a relatively minornature, and consisted of throwing missiles that did not find their mark. He submitsthat all of those charges would justify a starting point of no more than six to eightimprisonment, viewed on a standalone basis. As a result, he submits that the uplift of15 months applied by the Judge to reflect this offending was excessive.2 Teka v New Zealand Police HC Wellington CRI-2009-404-000253, 7 September 2009.Decision[16] It became apparent during argument that Mr Prentice was approaching matterson a charge by charge basis and, where he considered it appropriate, he challenged theuplifts applied by the Judge to the starting point selected on the charge relating to theoffending that occurred on 26 December 2017 and 13 January 2018. The offendingon 26 December 2017 was undoubtedly serious and could easily have attracted astarting point in excess of two years six months imprisonment on a standalone basis.It involved the strangulation of the victim on two separate occasions, with her losingconsciousness on the second occasion. Mr Mihinui is extremely fortunate that he isnot facing more serious charges as a result of that incident.[17] The appropriate manner in which to apply totality principles, however, is toascertain the sentences that would be appropriate viewing charges on a standalonebasis. The Court is then required to stand back and consider whether the end sentencethereby produced is out of all proportion to the overall culpability of the offending.3Several factors may be relevant in this regard. These may include the fact that theoffending is persistent, or has continued after the offender has been arrested andgranted bail.Starting point[18] I do not propose to analyse the starting points Mr Prentice suggests in relationto each set of charges. I consider, however, that his suggestion of a starting point of12 months imprisonment in relation to the offending on 13 January 2018 is misplaced.That was very serious offending, both in terms of violence and also the callous mannerin which Mr Mihinui locked his partner in the shed overnight after punching her onnumerous occasions. I consider the starting point of 15 months selected by the Judgeon those charges to be well within the available range on a standalone basis.[19] Even on Mr Prentice's calculations, however, the end sentence would bebetween five years three months imprisonment and five years eight months3 Sentencing Act 2002, s 85.imprisonment. This means he is forced to argue that a reduction to four years ninemonths imprisonment did not sufficiently take into account totality principles.[20] I consider several factors about the overall offending place the Judge's startingpoint well within the available range. First, it involved repeated and serious offendingagainst the same victim. Secondly, three of the four incidents occurred after MrMihinui had been arrested and granted bail in relation to the offending that occurredon 22 December 2017. Even taking into account totality principles, I cannot say thatan end starting point of four years nine months imprisonment is out of all proportionto the overall gravity of Mr Mihinui's offending. It follows that the challenge to thestarting point must fail.Uplift for previous convictions[21] Mr Prentice accepted that an uplift of four months was within the availablerange to reflect the fact that much of the offending had occurred whilst Mr Mihinuiwas on bail. He submitted, however, that an uplift of four months to reflect previousconvictions was excessive. He pointed out that Mr Mihinui does not have a significantcriminal history. He has convictions for wilful damage and common assault (x 2), allcommitted in a family violence context, on 28 December 2015. Mr Mihinui receiveda sentence of supervision on those charges. On 10 March 2016, he was in possessionof an offensive weapon, and also committed the offence of wilful damage. Then on12 May 2016 he committed two offences of assault with a blunt instrument. Hereceived a sentence of three months imprisonment on those charges. Mr Prenticepoints out that the Judge applied an overall uplift to reflect previous convictions thatwas greater than the sentence Mr Mihinui was required to serve in relation to thosecharges. He submits that this was excessive.[22] Even if it is arguable that the overall uplift for previous convictions is slightlyoutside the available range, that possibility is balanced by the fact that the Judge couldeasily have applied a greater uplift to reflect the fact that much of the offendingoccurred whilst Mr Mihinui was on bail. Furthermore, I consider the sentence on thecharges relating to the incident that occurred on 26 December 2017 was at the verybottom of the available range given the seriousness of that offending. I consider thesefactors cancel out any suggestion Mr Mihinui may have received an excessivesentence by virtue of the uplift the Judge applied for previous convictions.Result[23] It follows that the end sentence of three years nine months imprisonment on allcharges cannot be regarded as manifestly excessive. The appeal against sentence isdismissed.Lang JSolicitors:Crown Solicitor, HamiltonPublic Defence Service, Hamilton