T (CA143/2018) v R [2018] NZCA 342

T (CA143/2018) v R [2018] NZCA 342 [3 September 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF VICTIMS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA143/2018[2018] NZCA 342BETWEEN T (CA143/2018)AppellantAND THE QUEENRespondentHearing: 25 June 2018Court: French, Duffy and Katz JJCounsel: P K Hamlin for AppellantE J Hoskin for RespondentJudgment: 3 September 2018 at 11 amRecalled andReissued:4 September 2018Effective dateof Judgment: 3 September 2018JUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentences imposed in the District Court are quashed and substituted withthe sentences set out in the table at [32].D Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 of the Criminal ProcedureAct 2011.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] The appellant T pleaded guilty to and was convicted of 22 charges of violenceagainst four of his children:(a) one charge of wounding with intent to injure;1(b) five charges of injuring with intent to injure;2(c) three charges of assault with a weapon;3(d) one charge of disabling;4(e) eight charges of assault with intent to injure;5(f) three charges of assault on a child;6 and(g) one charge of assault.7[2] Judge D G Harvey sentenced T to a term of imprisonment of seven years andfour months.81 Crimes Act 1961, s 188(2). Maximum penalty seven years' imprisonment.2 Section 189(2). Maximum penalty five years' imprisonment.3 Section 202C(1). Maximum penalty five years' imprisonment.4 Section 197(1). Maximum penalty five years' imprisonment.5 Section 193. Maximum penalty three years' imprisonment.6 Section 194(a). Maximum penalty two years' imprisonment.7 Section 196. Maximum penalty one year's imprisonment.8 R v [T] [2017] NZDC 11093 [sentencing notes].[3] T now seeks to appeal against his sentence on the ground it is manifestlyexcessive.[4] The appeal was filed out of time. However, there was a reasonable explanationfor the delay and the Crown does not oppose an extension of time being granted.We so order.Factual background[5] The victims were T's daughters. Most of the offending occurred at a time whenhe was their sole caregiver between 1 August 2015 and 19 September 2016.[6] The details of the offending in relation to each victim are as follows.Offending against V aged 12[7] The appellant slapped her in the face, punched her in the face giving her a blackeye, repeatedly pulled her ears leaving visible injuries, and also repeatedly punchedher in the chest despite her heart condition. Most seriously in relation to V, he chokedher until she lost consciousness.[8] These incidents gave rise to three charges of assaulting a child, two charges ofinjuring with intent to injure, and one charge of disabling.Offending against A aged 13[9] Twice, T kicked A hard in the face while wearing shoes, resulting in her nosebleeding badly; he also hit her in the face with a jandal, punched her to her body andback, threw a butter knife at her chest, repeatedly kicked her in the head with bare feet,and hit her in the head. He also repeatedly punched her in the stomach and body onseveral occasions, headbutted her in the face, threw a television remote control at herface, and stomped on her head while wearing Timberland boots.[10] These instances gave rise to a charge of wounding with intent to injure, acharge of inuring with intent to injure, five charges of assault with intent to injure, andtwo charges of assault with a weapon.Offending against H aged 15[11] T hit H on her arms, on her head, and slapped her on her face. This gave riseto a charge of assault.Offending against HA aged 15 (H's twin)[12] T hit HA in the face with a toy, repeatedly punched her body, smacked herrepeatedly across the back and side of her head, repeatedly punched her in the head,and kicked her in the stomach while wearing Timberland boots. He also repeatedlywhipped her on her bottom with a belt and buckle, hit her hand with a wooden spoonuntil the spoon broke, hit her with a jug cord, and with a vacuum cleaner pipe.He choked her until she could not breathe properly and smacked her head against awall.[13] These instances give rise to three charges of assault with intent to injure,two charges of injuring with intent to injure, and one charge of assault with a weapon.Further aspects of the offending[14] Some of the violence occurred when the older siblings attempted to protecttheir younger siblings. One of the assaults on HA happened because she took theblame for something A had done. On another occasion A was assaulted because shestepped forward to shield V from further violence. Once at school, after a schoolfriend had seen V with a black eye, and suggested she report the abuse, V's responsewas to say "Nah, because he'll give me another hiding". On one occasion both V andA were assaulted after a visit by their aunt during which T overheard them telling theiraunt of the abuse they were suffering. The assaults were followed by threats that ifthey told others about the abuse he would go to prison.[15] In summary, the offending was cruel and brutal. It was inflicted on vulnerableyoung persons by the very person they were most entitled to look to for protection andcare. It left them living in a climate of fear of their father. And given theirwell founded fear of repercussions if they attempted to seek outside help, they musthave felt helpless to do anything about their predicament.Sentencing[16] In accordance with the approach approved in P (CA429/2008) v R,9Judge Harvey imposed cumulative sentences for the offending against each daughter— setting a starting point for each girl by reference to one offence and then upliftingfor the other offences against that girl.10 The Judge said he would take totality intoaccount at the time he set the starting points for the lead sentence relevant to eachvictim.11 He accepted that the end sentence for each victim should be discounted25 per cent to reflect T's guilty pleas.12[17] The Judge commenced with the offending against V. The disabling offencewas identified as the lead offence although the chosen starting point was said to reflectboth the disabling offence and the other offences against V. Nothing was said aboutan adjustment for totality. This resulted in a starting point of three years'imprisonment, which was then reduced to reflect the guilty plea discount, leaving anend sentence of two years and three months' imprisonment.13[18] For the offence of wounding with intent to injure against A, the Judge adopteda starting point of three years' imprisonment, which was said to be chosen in part toreflect the totality principle. This was followed by an uplift of six months to reflectT's previous convictions. These express adjustments were only made in relation tothe sentence for the offending against A. After the guilty plea discount was applied,the end sentence for the offending against A came to two years and seven months'imprisonment.14[19] There was one offence of common assault against H for which the Judgeadopted a starting point of four months' imprisonment, but reduced to three months toreflect the discount for guilty plea.159 P (CA429/2008) v R [2008] NZCA 476 at [31]–[33]; and see Clarke v R CA128/06, 6 June 2006.10 Sentencing notes, above n 8, at [44] and [48]–[49].11 At [49].12 At [46].13 At [50].14 At [51].15 At [52].[20] For the offending against HA the Judge identified the offences of assault withintent to injure as the lead offences. He adopted a starting point of three years'imprisonment for those offences, but then included the other offending against HA aswell. The sentence was then reduced to two years and three months to reflect theguilty plea discount.16[21] The cumulative total of the end sentences for the offending against eachdaughter came to a final sentence of seven years and four months' imprisonment. TheJudge specified the individual concurrent sentences he was imposing for eachconviction within each victim grouping, except the disabling conviction.17[22] Finally, although T was assessed at high risk of reoffending,18 the Judge didnot impose a minimum period of imprisonment.Analysis[23] In support of his contention that the sentence was manifestly excessive, Tadvances two grounds of appeal. The first is that the Judge made an insufficientallowance for totality and secondly that a discount should have been granted onaccount of rehabilitation efforts made while on remand.[24] As the Crown acknowledges, the Judge's approach to totality was unorthodox.Although the Judge stated he had applied totality when arriving at the respectivestarting points for each victim, he did not quantify the adjustment he had made.[25] There is no guidelines decision for violent offending against children and it isdifficult to find comparator cases involving offending on a similar scale to T'soffending. Cases cited to us by counsel either involved offending against an adult16 At [53].17 At [55]. Although the Judge said he was imposing one year for "assaults", we take him to bereferring to the assaults on a child as there was only one common assault, and one year is themaximum sentence for that offence.18 At [39].partner,19 or offending against children which attracted lower starting points than thatadopted by Judge Harvey and which do not seem to be as serious.20[26] It has been held in this Court that violence inflicted on a child is worse thanviolence inflicted on an adult,21 and that a starting point of three and a half years wasappropriate for a serious, prolonged, one off assault on a very young child.22 We aremindful too of the amendment made to the Sentencing Act 2002 in 2008; s 9A sets outcertain aggravating factors the court must take into account when sentencing offendersfor violent offending against children under 14.23 It reflects the community's deepconcern about child abuse in our society, and is an indication by Parliament that violentoffending against children is to be treated with the utmost seriousness.24[27] The offending in this case was serious. It involved significant violence,multiple victims, and multiple charges. Those charges included some representativecharges and six charges which would fall within band two or three of Nuku v R andthus, on a standalone basis, would attract starting points in the vicinity of three years'imprisonment.25 In all those circumstances, we consider the Judge was justified intaking a stern approach.[28] However, we are also satisfied, having reviewed all the relevant case law, thatthe Judge's overall starting point of nine years and four months (excluding the upliftfor the previous convictions) was outside the available range and that a further totalityadjustment was warranted. In our view, the appropriate starting point for the overalloffending was seven and a half years' imprisonment.19 Maihi v R [2016] NZCA 205; Clark v R [2013] NZCA 63; and Ngamotu v R [2010] NZCA 121.20 M (CA314/2016) v R [2017] NZCA 395, where this Court upheld a sentence based on a cumulativestarting point of five and a half years' imprisonment; and Stretch v Police [2016] NZHC 1713,where the High Court upheld a sentence based on a cumulative starting point of seven years and11 months' imprisonment.21 R v Leuta [2002] 1 NZLR 215 (CA) at [77] at [79]; and R v Wilson [2004] 3 NZLR 606 (CA)at [43].22 Brown v R [2009] NZCA 288 at [22].23 This provision applies only in relation to V and A.24 R v Shailer [2016] NZHC 1414 at [47].25 Nuku v R [2012] NZCA 584, [2013] NZLR 39.[29] Turning to factors personal to T, there was no challenge on appeal to the upliftof six months on account of previous violent offending.[30] As mentioned, the appellant does however contend that in addition to thediscount given on account of his guilty plea, he was also entitled to recognition in theform of a 10 per cent discount for the efforts made towards rehabilitation while onremand. We are not persuaded that a discount was warranted. T did complete what isdescribed as a "brief" programme on alcohol and drugs. On the other hand, wheninterviewed by the pre-sentence report writer only a week or so before the sentencing,he initially denied several of the more serious aspects of the offending. We note toothat the discount of the maximum allowable for the guilty plea was generous havingregard to the fact the pleas were not entered at the first available opportunity.[31] It follows from all of the above that on the basis of what we consider was thecorrect starting point, the overall end sentence in our view should have been animprisonment term of six years, instead of the seven years and four months that wasimposed. We are satisfied that a total sentence of six years' imprisonment moreappropriately and properly reflects the level of criminality of this offending and thisoffender.[32] In order to achieve that outcome and at the same time preserve the Judge'sstructure of concurrent and cumulative sentences, we quash the sentences that wereimposed and substitute the following sentences in respect of each conviction:Victim Conviction Sentence ofimprisonmentCumulative orconcurrentA Wounding with intent x 1CRN 16027002165Two years and twomonthsNot applicableInjuring with intent x 1 One year and 10monthsConcurrentAssault with a weaponx 2One year and 10monthsConcurrentAssault with intent x 5 One year and threemonthsConcurrentV Disabling x 1CRN 16027002149One year and 10monthsCumulative onCRN 16027002165Injuring with intent x 2 One year and 10monthsConcurrentAssault on a child x 3 10 months ConcurrentHA Injuring with intent x 1CRN 16027002147One year and 10monthsCumulative onCRN 16027002149Injuring with intent x 1 One year and 10monthsConcurrentAssault with a weaponx 1One year and 10monthsConcurrentAssault with intent x 3 One year and threemonthsConcurrentH Assault x 1CRN 16027002141Two months Cumulative onCRN 16027002147Outcome[33] The application for an extension of time to appeal is granted.[34] The appeal against sentence is allowed.[35] The sentences imposed in the District Court are quashed and substituted withthe sentences set out in the table at [32].[36] To protect the victims, we make an order prohibiting publication of the name,address, occupation or identifying particulars of the appellant under s 200 ofthe Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent