R v TE HUIA [2018] NZHC 3039

R v TE HUIA [2018] NZHC 3039 [22 November 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-019-004897[2018] NZHC 3039THE QUEENvSTORM TE HUIAHearing: 22 November 2018Appearances: J Foster for the CrownT Sutcliffe for the DefendantSentenced: 22 November 2018SENTENCING NOTES OF MUIR JCounsel:T Sutcliffe, Barrister, HamiltonSolicitors:J Foster, Almao Douch, Crown Solicitors, HamiltonIntroduction[1] Mr Te Huia appears for sentence on one charge of wounding with intent toinjure,1 arising out of a violent assault in Te Awamutu. He pleaded guilty to the currentcharge five days before the start of his trial on 23 July 2017.[2] An unusual and tragic feature of this case is that the victim, Mr Hallmond, diedshortly after the assault. Mr Te Huia was initially charged with murder. However, theCrown ultimately withdrew that charge, and substituted the current charge. That wasbecause two pathologists were unable authoritatively to identify the cause of death.The Crown could not, therefore, establish a sufficient causative link betweenMr Te Huia's actions and the victim's death to support a charge of murder. For thisreason, and despite the understandable sentiments expressed in various of the victimimpact statements from relatives, who in their mind regard the assault andMr Hallmond's death as linked, for the purposes of sentencing Mr Te Huia I mustexclude from my mind any such link.[3] I appreciate that this position will inevitably invoke feelings of injustice on thepart of Mr Hallmond's relatives. However, I am sure they will appreciate that wereany of them charged with the death of another they too would require the strongestproof that their actions were responsible for the crime for which they stood trial.Background[4] In June 2016, Mr Te Huia, the victim, Mr Hallmond, and another person werepresent in a house in Te Awamutu. The police came to the house to do a bail check onone of the occupants. While doing so, they found Mr Te Huia to be in possession of astolen motorcycle, drugs and drug paraphernalia. He was charged with severaloffences, convicted and imprisoned for a five-month period.[5] Mr Te Huia blamed the victim for this arrest, believing him to be a policeinformant. He made a subsequent post on the victim's Facebook site suggesting thevictim's days were numbered, and that "narks can eat shit".1 Crimes Act 1961, s 189(2). Maximum penalty 7 years' imprisonment.[6] Nevertheless, in July 2017 the victim arranged to do a drug deal with thedefendant at the defendant's house, the victim's intention being to sell the defendanthalf a gram of methamphetamine. The defendant's intention meanwhile (so he told afemale associate), was to take the methamphetamine without paying the victim for it,as revenge for the victim having allegedly "narked" on him.[7] The victim duly came to the house, and when the drugs were passed withoutpayment an argument predictably ensued. In response to the victim's demand that thedefendant give him the money the defendant responded with words to the effect "fuckoff, you're a nark. I spent five months in jail because you're a nark". The argumentturned physical, with each throwing punches at the other. The fight started in the housebut spilled out into the front garden. Subsequently the defendant returned insidebefore he and a female occupant again went into the front garden. At that stage thefemale occupant observed the victim lying unconscious in the gateway of the gardenpath. He showed signs of injury and had blood trickling down the side of his head.The defendant then dragged the victim across the footpath to the grass verge, adjacentto the road, and left him there.[8] Shortly afterwards, two members of the public, who knew the victim, were, itis said, directed by the defendant to the victim's side as he lay on the verge. Anambulance was called and CPR was in the interim administered. The defendantattempted to help as best he could. Despite the subsequent efforts of the paramedics,however, the victim died at the scene.[9] A post-mortem examination revealed that the victim suffered numerousinjuries: lacerations, a fractured rib, broken teeth, bruising around the head and afractured and dislocated jaw, among others. A number of the victim's teeth were foundaround the scene of the fight. However, as I have indicated, the pathologists wereunable to establish that the defendant's actions caused the victim's death.[10] A matter of days after the victim died, the defendant told another person thathe had hit the victim half a dozen times in the house and that he subsequently knockedhim to the ground in the garden and kicked him while he was in that position.Victim impact statements[11] I have received several statements from members of Mr Hallmond's family,which I am invited to consider on an application by the Crown under s 20 of theVictims' Rights Act 2002. I grant that application without opposition fromMr Sutcliffe. They leave me with no doubt that the victim was a much loved memberof his immediate family and that his death has left them truly bereft. I am particularlymoved by the statement of Mr Hallmond's 11-year-old daughter. She describes himas "the best dad in the world". Her agony that the victim will never get to support herin later life, will never be able to take her on all of the adventures a father should havewith his daughter and that he won't be there for her important milestones in life, spillsfrom the page of her victim impact statement.[12] Other members of his family—his aunt, his sisters, and his mother—have alsoprovided moving statements. Mr Hallmond's death coincided with the birthday of twoof his nephews. Both his mother and sister write of their sadness that this otherwisehappy day is now haunted by the death of a loved one. All of them recount how hisdeath has affected their lives: his mother has suffered severe anxiety and depression;his aunt has had to move to support her sister and now finds herself in impoverishedcircumstances. Some have lost a treasured confidant, or a guaranteed smile.[13] All of them hold Mr Te Huia responsible for Mr Hallmond's death. This is, asI have indicated, in some sense understandable, albeit not a consideration I can takeinto account for the reasons I have identified.Mr Te Huia's personal circumstances[14] Mr Te Huia is 48 years' old, and of Māori descent. He was unemployed at thetime of the offending. He reports that his peer group is predominantly made up ofanti-social people. His only pro-social connection is his sister. He is estranged fromthe rest of his family, although he says he is trying to rebuild relationships with them.He is said to have been in a highly destructive relationship at the time of the offending.That relationship has now ended.[15] Mr Te Huia has a limited history of violence. Indeed, he has only one violencerelated conviction: male assaults female, in 2015. Although he does have an extensivecriminal history, most previous offending has related to drug usage or is in the natureof driving offences. The index offending therefore represents a significant escalationin violent criminality. In addition, this offending occurred while he was subject torelease conditions.The pre-sentence report[16] The report writer notes that Mr Te Huia says he does not consume alcohol, butagrees he has a significant drug problem. He is assessed as being at high risk of harmfrom drugs and at high risk of reoffending having regard to his relationships, drugusage and the people he associates with. The author further assesses his risk of harmto others as medium, noting his limited history of convictions for violence, butconcluding that the current conviction demonstrates that he is willing to resort toviolence in conflict situations.[17] It is said that he appears to take responsibility for his offending, and hasdemonstrated some insight into the causes of his offending and a desire to makechanges in his life. He indicated he was reluctant to attend a restorative justiceconference, expressing concern about his ability to deal meaningfully with the victim'sfamily. He did, however, say that he would attend such a conference if the familywanted him to.Approach to sentencing[18] In sentencing Mr Te Huia, I must have regard to the purposes and principles ofsentencing in the Sentencing Act 2002.2 In respect of serious violent offending, ofwhich this is an example, I consider the requirements to denounce the defendant'sconduct, to deter others from committing similar offending, and to hold the offenderaccountable for the harm done to his victim's family to be particularly relevant. I mustalso bear in mind the need for consistency with sentences in similar cases and theeffect of his offending on the victims.2 Sections 7 and 8.[19] I will undertake the following process in determining the appropriatesentence.3 Firstly, I will set a starting point, based on the aggravating and mitigatingfeatures of the offending, informed by the sentences imposed in broadly similar cases.Secondly, I will consider whether any of Mr Te Huia's personal circumstances requirean adjustment to that starting point, including any remorse he has shown. Thirdly, Iwill determine what, if any, discount Mr Te Huia should be given for his guilty plea.Finally, I will consider whether it is appropriate to impose a minimum period ofimprisonment.Starting point[20] As the charge for which Mr Te Huia has been convicted is wounding with intentto injure, the tariff cases of Nuku v R and Taueki v R apply.4 To arrive at a startingpoint, I must first identify the aggravating and mitigating features of the offending.Taueki identifies a number of aggravating features which may potentially apply.5 TheCrown submits the following are present:(a) Extreme violence—the Crown submits that while the violence did notextend over a significantly extended period, it was extensive andinvolved repeated violent acts targeted at different parts of the victim'sbody. The defence responsibly accepts this feature as present.(b) Attacking the head—the Crown submits and the defence again acceptsthis feature as being present. Mr Te Huia repeatedly struck the victimin and around the head, as evidenced by the injuries sustained by him.(c) Premeditation—the Crown submits that the defendant's actions werehighly premeditated. It says this is demonstrated by the threats thedefendant made via social media, and his plan in relation to the drugdeal. The defence does not accept this factor as present, or, if it is,suggests premeditation was at a low level. I am not prepared to infer3 Following the well accepted approach articulated in R v Taueki [2005] 3 NZLR 327 (CA); andHessel v R [2010] NZSC 135, [2011] 1 NZLR 607.4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).5 At [31].from the defendant's actions that he had, substantially in advance of thealtercation, intended to wound the victim with intent to injure despitethe Facebook posting. However, he must have been aware thatfulfilment of his plan to take the drugs without payment carried a highrisk of physical altercation, which had the capacity to escalate quickly.And there was a pre-meditated plan to cause the victim harm if only inthe sense of depriving him of what he was dealing in without payment.Because identification of premeditation is not in this case essential forNuku banding I set it aside for that purpose. However, in terms of theultimate penalty I take into account the fact that the offending occurredwithin the context of a larger premeditated plan.(d) Serious injury—the Crown submits that it is "self-evident" that seriousinjury resulted. It says, however, that this feature will be of lesssignificance where the intent alleged is to injure only. The defencesubmits this factor is not present. It says that the injuries themselveswere not life threatening, in that sense falling back on the legalconstruct I must apply. Nevertheless I am, on the basis of the identifiedinjuries (including fractured ribs and jaw, loss of teeth and significantbruising to the head), prepared to recognise as an aggravating featurethat serious injury occurred.(e) Facilitation of crime—the Crown submits the use of violence resultedfrom the defendant's plan effectively to rob the victim ofmethamphetamine. That pitches the case too highly, as there is noevidence that the defendant intended to take the victim'smethamphetamine with violence or threats of violence. More likely thedrugs were voluntarily given to the defendant who then revealed hispremeditated plan. In my view the defence is correct when it says thatthe violence was not used to facilitate another crime—rather itfollowed, in what I consider an almost inevitable escalation, from anarguable crime earlier committed. I exclude this factor therefore in myassessment.(f) Vulnerability—the Crown submits that although the victim was notvulnerable at the outset of the offending, at the point he wasoverpowered and lying prone on the ground he became a vulnerablevictim in terms of the further violence (and in particular kicking)administered to him as he lapsed into unconsciousness. The defencemakes no submission in this respect. I accept that there came a pointduring the course of the assault where the victim's status is correctlydescribed as vulnerable and that the violence continued thereafter.[21] Neither side identifies any mitigating features of the offending. In this respectI regard Mr Te Huia's ultimate attempts to assist the victim as balanced by the fact thathe dragged him on to the street berm and left him there unconscious in the first place.[22] Against the background of these aggravating features, I must now decide wherethis case sits within the sentencing ranges identified in Nuku. Neither Crown nordefence suggests this is Band 1 offending. Bands 2 and 3 are defined as follows:6Band 2: a starting point of up to three years' imprisonment will be appropriatewhere three or fewer of the aggravating factors listed at [31] of Taueki arepresent.Band 3: a starting point of two years up to the statutory maximum (either fiveor seven years, depending on the offence) will apply where three or more ofthe aggravating features set out in Taueki are present and the combination ofthose features is particularly serious. The presence of a high level of orprolonged violence is an aggravating factor of such gravity that it willgenerally require a starting point within Band 3, even if there are few otheraggravating features.[23] The defence submits this offending sits in Band 2. On its case, there are onlytwo aggravating features. The Crown by contrast submits this case falls squarelywithin Band 3.[24] Although categorisation (and sentencing generally) is not a formulaic exercise(emphasised by the fact that the bands in Taueki in fact overlap), the four aggravatingfeatures I have identified plus the fact that the attack extended from the home and intothe garden over at least one or more minutes satisfy me that it is appropriate to consider6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].the offending as falling within Band 3. Within that Band, however, there is a widediscretion as to ultimate sentence between two and seven years' imprisonment. I haveconsidered in that context a number of cases referred to me by counsel and summarisedin a Schedule annexed to these sentencing notes. In my view this case is closest toWynd v Police in which a two year nine month starting point was adopted, althoughnoting that the violence in that case had none of the background or interparty historypresent in respect of the current offending.7[25] Taking both these authorities and the suggested starting points of Crown anddefence into account,8 I consider two years and 10 months' imprisonment to be theappropriate benchmark.Factors personal to Mr Te Huia[26] I now consider whether there are any aggravating or mitigating featurespersonal to Mr Te Huia that require an adjustment to that starting point.Aggravating features[27] This offending occurred while Mr Te Huia was subject to release conditions.The Crown submits this is a significant aggravating feature. It submits that an upliftof six months would be appropriate. The defence makes no submission on that point.Having regard to the authorities,9 the Crown's suggested uplift is in my viewexcessive, but I do consider the starting point appropriately increased by two monthsto recognise this factor.Mitigating features[28] The defence does not advance any personal mitigating features.[29] The pre-sentence report notes that the defendant has expressed some remorsefor his actions, and demonstrates some insight into his offending. It also notes that he7 Wynd v Police [2013] NZHC 1270.8 Respectively three years six months and as low as 18 months' imprisonment.9 Goodman v R [2016] NZCA 64 at [14]–[15]; and Hune v R [2018] NZCA 294 at [12].was willing to engage in restorative justice, but only if the victim's family wanted that.A meaningful attempt to engage in restorative justice, even in face of victim refusal,often attracts a discount in this Court. However, there was no such attempt here, norany other tangible expression of willingness to try to make amends prior to today. Iaccept the element of remorse implicit in any guilty plea and I accept that the letterprovided to the Hallmond family this morning appears genuine in its expression ofself-disgust and remorse. But the letter comes very late and there is nothing in thiscase sufficiently exceptional, in my view, to warrant a discrete discount in this respect.[30] In the result, the sentence I arrive at before consideration of guilty plea discountis three years' imprisonment.Guilty Plea[31] Mr Te Huia pleaded guilty, but only five days before the trial began.[32] This is not a case of a late amendment to a charge and resultant guilty pleaimmediately thereafter. As the Crown says, it had been open for the defendant to pleadto the charge of wounding with intent to injure for five months before the scheduledtrial. The Crown also submits that it had a very strong case. There were witnesseswho heard the assault; it was not in issue that the defendant was at the scene; thedefendant admitted to an associate what he had done, and he provided details of theoffending. The Crown submits that, in these circumstances, a discount of five per centonly is appropriate.[33] I allow a three-month discount equating to 8.33 per cent.[34] This brings me to a final sentence of two years and nine months' imprisonment.This is not within the range that would allow me to consider a community basedsentence. I would not, in any event, have regarded that as appropriate.Minimum period of imprisonment[35] The Crown submits that a minimum period of imprisonment is required todenounce Mr Te Huia's offending and, having regard to his high risk of re-offending,to provide for the protection of the public.[36] The Court may impose a minimum period of imprisonment that is longer thanthe normal non-parole period if satisfied that this period would be insufficient to holdthe offender accountable, denounce their conduct, deter the offender and others fromsimilar offending, or protect the community.10[37] I consider that the term of imprisonment I have imposed is sufficient to satisfythose purposes. I decline to impose a minimum period of imprisonment. Mr Te Huia'srelease will in that context be a matter for Parole Board consideration.Conclusion[38] Mr Te Huia, please stand.[39] On the charge of wounding with intent to injure, I sentence you to two yearsand nine months' imprisonment.[40] Please stand down.__________________________Muir J10 Sentencing Act 2002, s 86(2).ANNEXURE AName Citation StartingPointFacts CommentsHetherington vPolice[2015]NZHC182918 months Appeal from DC: Happroached a man outside abank in the early hours of themorning; punched victim tothe head once and thenseveral times to the body andhead as the victim fell to theground; victim attempted todefend himself with anempty bottle, but H grabbedit and hit victim twice to theback of the head with it.Starting pointreduced from 2years 3 months.Band 2 Nuku.Poi v R [2015]NZCA 3003.5 years Appeal from DC: Anargument erupted after aparty at Mr Poi's address, MrPoi's flatmate began thefight. It was not provoked bythe victim. Mr Poi joined in.The victim was knocked tothe ground. The defendantspunched and kicked himrepeatedly. They detainedhim, despite his attempts toescape, to ensure he did notlay a complaint. Thepunching, kicking andstomping continued. Mr Poihit the back of the victim'shead repeatedly with a bottle.The beating continued afterthat for another half hour.Once the defendants weresatisfied the victim wouldnot call the police, he wasmade to shower (to wash offthe blood). He was thenreleased. He had sevenlacerations to his scalp, afractured rib, a broken toothand other more minorinjuries.Court of Appealsaid this was lowerlevel band 3.Starting Pointupheld on appeal.Wynd v Police [2013]NZHC12702 Years 9monthsAppeal from DC: The victimhad an unremarkableexchange with a female atthe bar. Mr Wynd tookexception to this exchangeand became very angry withthe victim. When the victimwent outside Mr Wynd, whohad been waiting, attackedthe victim with a kick to thehead that knocked him offhis feet. As the victim laycurled up on the ground, heproceeded to punch himStarting pointupheld on appeal.Band 3 Nuku.Name Citation StartingPointFacts Commentsseveral times about the faceand head. He took hold of anempty beer bottle and rubbedit in the victim's face. Hesuffered severe injuriesWilliams v Police [2017]NZHC12992.5 years(for thewoundingcharge)Appeal from DC: MrWilliams rushed at thevictim, hitting him in thehead with a bottle. Thiscaused significant wounds tothe victim's face and neck.The wound was proximate toarteries.Starting point notchallenged onappeal. France Jdid not considerwhere the facts fellin the Nuku bands.Sheppard v R [2013]NZCA 6392.5 years Appeal from DC: MrSheppard grabbed the backof the victim's neck, pulledthe victim towards him, andat the same time thrust asmall screwdriver into theneck of the victim. Thevictim sustained a smallpuncture wound to his throat,which was cleaned anddressed by medical staff.Bruising associated with theattack made it difficult forhim to eat solids for about aweek and the victim was alsoemotionally harmed by theexperience.Starting pointreduced from 3years on appeal.Band 2 Nuku.Sadiq v R [2012]NZCA 3962 years 9monthsAppeal from DC: in thecourse of a confrontationinstigated by him, S pickedup a plank which hebrandished in the direction ofthe opposing group; thinkingthat the plank would be usedagainst his younger brother, amember of that group rantowards S who dropped thepiece of wood, kneed theother person in the chest,then drew a small knife fromhis pocket and stabbed himthree times, in the chest, theupper back and upper arm;stab wounds relatively minorbut required several stitchesand caused significant bloodloss; victim required painmedication for about twoweeks and had to take fourdays off work; suffered nolong-term ill effectsStarting point heldto be appropriate.(Before Nuku).Frelih v Police [2014]NZHC22173 years. Appeal from DC: theappellant received a massagefrom the victim who is aNuku band 3.Starting point waswithin theName Citation StartingPointFacts Commentsmasseuse working from herhome address. At thecompletion of the massage,and for seemingly unknownreasons, the appellant pinnedthe victim to the massagetable and stabbed her headsix times using a Swiss Armypocket knife. When thevictim attempted to stand upto defend herself theappellant pushed her againsta wardrobe, breaking thewardrobe door off its hinges.It appears that the attack washalted by the intervention ofthe victim's partner who wasupstairs in the premises whenthe massage was provided.available range,but at the top endof the availablerange.MacDonald v R [2011]NZCA 4462 years 3monthsAppeal from DC: While thevictim was bending over topick up a carton of beer, thedefendant struck himseveral times on the back ofthe head, using a sockcontaining heavy objects or awalking stick (disputed attrial). The injuries couldfairly be described asmoderate.Reduced from 3years on Appeal.Before Nuku.