WATENE v POLICE [2020] NZHC 3011

WATENE v POLICE [2020] NZHC 3011 [13 November 2020]NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-117[2020] NZHC 3011BETWEEN SIMON WATENEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 November 2020Counsel: D Malcolm for AppellantG Banuelos for RespondentJudgment: 13 November 2020JUDGMENT OF WHATA JSolicitors: Redwoods Law, RotoruaCrown Solicitors, RotoruaIntroduction[1] Simon Watene (Mr Watene) pleaded guilty to one charge of breaching aprotection order1 and one charge of assault on a person in a family relationship.2 JudgeMacKenzie sentenced Mr Watene to 10 and a half months' imprisonment for eachcharge to be served concurrently.3 Mr Watene now appeals that decision on the basisthe starting point was manifestly excessive.Circumstances of the offending[2] The victim and Mr Watene have been together for eight years. They have onechild together, aged 10 months. The summary of facts to which Mr Watene pleadedguilty are as follows. Mr Watene and the victim were engaged in a heated verbalargument. As a result, the victim punched Mr Watene in the head a couple of times.The summary then states:This caused the defendant to push the victim back into their bedroom and ontotheir bed.The Defendant has placed one hand around the neck of the Victim holding herdown on the bed, the Defendant has then raised a clenched fist and threatenedto punch her in the head.The witness has entered the bedroom and seen this, the witness has then called[the] police.[3] Mr Watene pleaded guilty to the charges at a Case Review Hearing followingan amendment to the summary of facts.District Court decision[4] The District Court Judge adopted a starting point of 12 months' imprisonmentfor the offending. The Judge referred to Te Tau v Police4 involving male assaultsfemale, breach of protection order and other charges, and Manuel v Police5 involvingtwo charges breach of protection order, male assaults female and intentional damage,where combined starting points of 12 months were adopted for the assaults and1 Family Violence Act 2018, ss 90(a) and 112(1)(a) – maximum penalty three years' imprisonment.2 Crimes Act 1961, s 194A – maximum penalty two years' imprisonment.3 Police v Watene [2020] NZDC 18882.4 Te Tau v Police [2012] NZHC 1068.5 Manuel v Police [2015] NZHC 66.breaches of protection orders. The Judge also identified the following aggravatingfeatures of the offending:(a) the family violence context;(b) the attack to the neck and the presence of an element of coercion andcontrol;(c) the victim was vulnerable given the limited escape options in thebedroom; and(d) the proximity of two previous protection order breaches to the presentoffending. In particular, the Judge noted Mr Watene was sentenced toa short period of imprisonment for family violence and breach of aprotection order in relation to the victim on 18 November 2019.[5] The Judge appears to have rejected the submission that Mr Watene's actionswere in response to her punching him to the head. The Judge said:[9] But you have an ability to do something about that. You mustappreciate the moral wrongfulness of your conduct and you have choices hereand human agency. You can decide, if you wish, to end the relationship. Iaccept that it appears to be a dysfunctional relationship, but if you persist inthat relationship continuing, then it is likely that you will continue to comeback before the court and ultimately, it is not for me to tell you whether or notit is a good thing to be in that relationship, only you can decide that.[6] The Judge then uplifted the starting point to 14 months for "deterrent purposes"– referring to Mr Watene's "unrelenting" history of family violence-related assaults.The Judge emphasised the increase did not relate to the protection orders. The Judgethen applied a 25 per cent discount for early guilty plea. This resulted in an endsentence of 10 and a half months' imprisonment.[7] The Judge declined home detention or other electronic sentence because therewas no address available and there was concern regarding Mr Watene's compliancewith release conditions and there was a pattern of family violence offending.Jurisdiction[8] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow anappeal against sentence 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.[9] In any other case, the Court must dismiss the appeal.6[10] As is well known, the Court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles.7 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by reference to relevantsentencing principles.8 The Court of Appeal has emphasised that, on an appeal,whether a sentence imposed is manifestly excessive, should focus on the endsentence.9Argument[11] Mr Malcolm makes two key points in support of the appeal:(a) the Judge should have discounted the starting point because Mr Watenewas provoked by the victim's punches to his head, citing R v Taueki;10and(b) the starting point was excessive, having regard to the starting pointsadopted in other cases involving similar or worse offending, includingWilliams v Police,11 a case of 10 months being imposed for a punch6 Criminal Procedure Act 2011, s 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].9 Tutakangahau v R, above n 7.10 R v Taueki [2005] 3 NZLR 372 (CA) at [32].11 Williams v Police [2014] NZHC 3255.causing a cut lip and bruised jaw, Sorensen v Police,12 a case where 12months for punch with closed fist to mouth and nose, and Love vPolice,13 involving nine months for a punch to face.[12] Mr Malcolm submits that a starting point of three months' imprisonment wasinstead appropriate.[13] Ms Banuelos responds that the end sentence of 10 and half months is notmanifestly excessive and that a cumulative starting point of 14 months (including anuplift of two months for prior family violence) was within range, referring to Te Tauand Hamilton v Police.14 She submits Mr Watene's response to the victim's puncheswas excessive because the victim's violence was relatively modest. Accordingly, shesubmits, Mr Watene is not deserving of a discount for the claimed self-defence andprovocation.Assessment[14] Provocation was, prima facie, available to Mr Watene on the face of thesummary of facts. The summary of facts records the victim's actions "caused"Mr Watene to push her into the room. Further violence then immediately followed.As stated in R v Taueki:15(a) Provocation: Where the offender has been provoked, that may justifya lower starting point. It is not enough simply to claim to have beenincensed by the actions of the victim or another: rather, the sentencingJudge will need to be satisfied that there was serious provocationwhich was an operative cause of the violence inflicted by the offender,and which remained an operative cause throughout the commission ofthe offence.[15] I, nevertheless, agree with the Judge that provocation is not properly made outin this case because the attack to the neck went too far. It was an egregious anddisproportionate response and one to be denounced in strong terms.12 Sorenson v Police [2017] NZHC 2499.13 Love v Police [2014] NZHC 2643.14 Hamilton v Police [2014] NZHC 2698.15 R v Taueki, above n 10, at [32].[16] However, that context is not irrelevant, and I am unable to agree that acumulative starting point of 14 months was within range. In this regard, as evidentfrom the approach taken by Mallon J in Williams, a fine grain assessment of culpabilityis needed in cases like this. That case involved a single punch to the head causingbruising to the victim's jaw and a cut requiring stitches. A starting point of sevenmonths was adopted (on appeal) for that offending. This was uplifted by three monthsfor three prior family violence convictions, four breaches of protection orders andbecause the offending occurred while on release conditions. Most significantly, forpresent purposes, the Judge noted:[11] However the situation in which this incident arose must be considered.It was a single incident, precipitated when the victim went to the addresswhere Mr Williams was drinking and a single punch was inflicted. Theprincipal aggravating feature of the incident is that it involved actual violence,albeit relatively limited. The incident arose in quite different context from thecases where the defendant makes continual contact with the victim despite thevictim's clear desire that contact cease. It does not have the overlay ofintimidation about it which characterises many of these cases and where aparticularly stern response is needed.[17] Here, four factors are significant. First, like Williams, there is no suggestionof uninvited contact and intimidation. Secondly, unlike Williams, the victim in thiscase was the initial aggressor and there was no injury to her. But, third, there was anattack to the neck. Fourth, Mr Williams' background of offending appears similar toMr Watene's. Taken together, these factors suggest the starting point of 14 months inthis case appears manifestly excessive relative to the starting point of 10 months inWilliams. This is especially so, given the resulting injury to the victim in Williams.The attack to the neck is an aggravating feature, but a 40 per cent difference in startingpoint is difficult to justify.[18] I also consider reliance on Te Tau and Manuel to be misplaced. In Te Tau, therewere the elements of jealousy-driven intimidation by the appellant, an attack to theneck and an injury (albeit small) to the victim. The appellant had also amassed 14previous convictions for violence and four for breaches of protection orders. Hisoverall starting point for this was 15 months, only one month or seven per cent morethan Mr Watene's. In Manuel, the victim had been punched on the arm, causing alarge bruise. Physical injury of this kind is clearly a distinguishing factor.[19] Hamilton is also relied upon. It appears a starting point of 12 months wasadopted for an assault involving the grabbing of a cell phone and pushing. But theoffending was more much more varied (including for breach of prison releaseconditions) and with respect, the sentencing process adopted by the Court is verydifficult to follow. One aspect that stands out, however, is the finding that the appellantwas threatening and intimidating and behaved in such a way that the victim called thepolice. As Mallon J noted, that is an important distinguishing factor.[20] Accordingly, I have come to the view that a 12-month starting point foroffending that involves no injuries to the victim, plus a two-month (or 17 per cent)uplift was simply too high. I prefer to adopt the approach taken by Mallon J, andcommence with a starting point which I consider more accurately reflects theaggravating features of the offending in this case and, in particular, the attack to theneck. I therefore commence with a starting point of nine months. I uplift by twomonths for the prior offending. In the result, after a discount of 25 per cent, I imposean end sentence of eight months' imprisonment.