T (CA251/2017) v R [2017] NZCA 595

T (CA251/2017) v R [2017] NZCA 595 [15 December 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAMES, DETAILS AND IDENTIFYING PARTICULARS OF APPELLANTAND HIS MOTHER REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA251/2017[2017] NZCA 595BETWEEN T (CA251/2017)AppellantAND THE QUEENRespondentHearing: 29 November 2017Court: Winkelmann, Venning and Duffy JJCounsel: R J Stevens and C F Dunne for AppellantZ R Johnston and H G Max for RespondentJudgment: 15 December 2017 at 10.30 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Mr T was convicted of 30 charges involving a range of assaults on six childrencommitted over four years. Judge David Sharp sentenced him to four years andsix months' imprisonment.1 Mr T appeals against conviction and sentence.Background[2] The complainants in each case were children living in a household with Mr Tand his mother, Ms T. The oldest complainant A and his sister B went to live with MsT while their mother was receiving extended medical treatment. Also at the homewere four younger children from a related family — C, D, E and F, ranging in agebetween four and nine. They had been placed in Ms T's care by Child, Youth andFamily Services because of ongoing issues in their own home.[3] Mr T originally faced 43 charges. Three were dismissed pursuant to s 147 ofthe Criminal Procedure Act 2011 at the end of the prosecution case. Mr T was foundnot guilty on 10 of the charges. The jury convicted him on the remaining 30 charges.Twenty charges involved assault with a weapon, three were assault with intent toinjure, six were assault on a child and one was for common assault. The weapons usedincluded a belt, wooden spoon, jandal, plastic spatula and back-scratcher.[4] Ms T was also charged with assaults on the children and was to face a jointtrial with Mr T, although they were not jointly charged. Prior to trial she pleaded guiltyto 41 charges. The Crown did not pursue the remaining 29 charges against her.Evidence of Ms T's convictions was led at Mr T's trial.[5] Mr T gave evidence. He denied having any role in disciplining the children.He also denied seeing any assaults on the children. He said that while he had seen hismother growling at the children, she had never hit them in his presence. He deniedseeing any signs of abuse such as bruises or marks on the children.1 R v [T] [2017] NZDC 7866.The conviction appeal[6] Both appeals are governed by the Criminal Procedure Act 2011. Mr T appealshis convictions on the grounds there was a miscarriage of justice which created a realrisk the outcome of the trial was affected or which had resulted in an unfair trialbecause:(a) the Judge erred in admitting Ms T's 41 convictions pursuant to s 49 ofthe Evidence Act 2006 (the Act);(b) having admitted the evidence, the Judge failed to properly direct thejury as to the use that that evidence could properly be put to; and(c) the summing-up lacked balance.Admission of Ms T's convictionsAppellant's submissions[7] Mr Stevens for Mr T challenged the basis on which Judge Sharp admittedMs T's convictions. He submitted that while the violence perpetrated by Ms Tprovided some general background as to what was occurring in the home, it did nothave a tendency to prove or disprove anything of consequence to the determination ofthe proceeding. The fact the complainants may have been subjected to violence byanother person in the household was irrelevant. There was no link between Ms T'soffending and Mr T. They were not jointly charged.[8] Mr Stevens submitted the probative value of the convictions as backgroundevidence of the nature of life in the household was minor, whereas the prejudicialeffect was significant.[9] Mr Stevens also criticised the way in which the Crown was permitted to usethe evidence of the convictions. The Crown had used it to bolster the complainants'evidence and also to attack Mr T's credibility.[10] Mr Stevens submitted that there was also a risk of guilt by association, referringto the decision of R v Nguyen.2 He submitted the evidence of Ms T's convictions waseffectively an invitation to the jury to find Mr T guilty by virtue of his relationshipwith his mother and also by the clear inference that the children had been telling thetruth, at least in relation to Ms T.[11] Finally, Mr Stevens submitted that even if Ms T's offending could be said tobe relevant as background, it should not have been presented in the form of convictionsbut rather it should have been led from the children.Discussion — admission of Ms T's convictions[12] The first issue is whether the admission of Ms T's convictions was an error orirregularity which affected the trial for the purposes of s 232(4) of theCriminal Procedure Act. If the convictions were properly before the jury, s 232 is notengaged.[13] Convictions are only admissible under s 49 if they satisfy the test for relevanceunder s 7 and are not excluded by s 8 as unfairly prejudicial.3[14] The evidence of Ms T's violence in the home satisfies the test for relevanceunder s 7 of the Act. It informed the jury of the circumstances in which the childrenwere living. Without the evidence of Ms T's convictions the jury would have beendrawn into speculation about why the complainants did not tell her about Mr T'sassaults on them. The jury may have doubted the complainants' evidence that theabuse had occurred in the household by reasoning that it could not have occurredwithout Ms T noticing anything.[15] There was also a connection between some of Ms T's actions towards thechildren and Mr T's assaults on them. There was an incident when A responded toMs T calling him a shit by calling her the same thing. Mr T intervened and severelyassaulted A. Next, several of the convictions established that Ms T had used a2 R v Nguyen HC Auckland CRI-2008-092-17198, 17 September 2010.3 R v Taniwha [2012] NZCA 605 at [21].back-scratcher as a weapon, the existence of which was in issue as Mr T had deniedknowledge of such an implement.[16] Importantly, evidence of Ms T's convictions was also a response to the defencecase that the children had no visible injuries and that the children seemed unaffected.No one at school noticed anything before B spoke to a nurse at school. The convictionsconfirmed that the children had been subjected to assaults during the relevant periodeven though no one had noticed their injuries and the children had not complained.[17] Further, once Mr T gave evidence that he never saw his mother assaulting thechildren, her convictions also became relevant to the assessment of his generalcredibility. The jury were entitled to use the evidence of her convictions to determinewhether he could be telling the truth when he said he did not see Ms T being violenttowards the children.[18] The real issue is whether, as Mr Stevens submitted, the probative value of theconvictions was outweighed by the prejudicial effect of the evidence so that it shouldhave been excluded under s 8.[19] As noted, Mr Stevens submitted there was a real risk of guilt by association,relying on the following comments of Priestley J in Nguyen:4[27] I conclude that the s 49(3) purpose with which the Crown wishes tobring evidence of the convictions of the six men would result in evidencebeing placed before the jury, which, although indisputably relevant, wouldhave an unfairly prejudicial effect on the trial. Regardless of the strength ofany direction I would give, the evidence would be tantamount to an openinvitation to the jury to find the accused guilty (because of theircommunications with the convicted men) by virtue of that association alone.[20] In that case the Crown sought to lead the evidence of others' convictions fordrug offending at the trial of Mr Nguyen. The purpose was to confirm that certainparties to intercepted conversations had been guilty of drug dealing. While relevant,it was very general. This Court considered Nguyen and the application of s 49 inGoffe v R.5 The Court distinguished Nguyen on the following basis:4 R v Nguyen, above n 2.5 Goffe v R [2011] NZCA 186, [2011] 2 NZLR 771.[31] Priestley J concluded that the purpose for which the Crown sought toadduce evidence of the convictions remained at a level of generality. It would,in his view, be tantamount to an open invitation to the jury to find the accusedguilty (because of the communications with the others who had pleadedguilty) by virtue of that association alone. The probative value was minimal,and the risk of prejudice high. By contrast, in the present case, the admissionof the conviction provides specific and direct evidence as to the authorship ofthe first letter, and Mr McKay's purpose in writing the letter, both of whichwill be important issues at trial. The probative value of the conviction and itsparticulars is strong.(Footnote omitted.)[21] Similarly, in the present case the probative value of Ms T's convictions isstrong. In addition to providing relevant background, the convictions provided ananswer to an important part of the defence case that the offending did not happen asthe children were unaffected and no one noticed anything wrong with them.[22] The major risk of prejudice from admission of the convictions was the risk thejury might find Mr T guilty by association. That was dealt with in closing addresses.[23] The issue of guilt by association was touched on by the Crown and was dealtwith more directly by the defence. The Crown did not seek to argue any form of guiltby association. In closing the Crown made it clear that the issue for the jury waswhether the appellant, Mr T, had assaulted the children as alleged:As I say, the issue for you is did [Mr T] do these things. Did he hit the children,did he kick the children, did he use belts? The brown belt, the black belt withthe plastic bits on them, belts that without fail every single child mentionedhim using on those four little girls. Did he use other weapons like the woodenspoon and spatula, a jandal, the backscratcher?(Emphasis added.)[24] More directly, in closing the defence made it clear that it was impermissiblefor the jury to find Mr T guilty by association. Defence counsel told the jury:What is important though to keep in mind is this trial is not about [Ms T]. Thistrial is about [Mr T]. He maintains he is not guilty of these charges and he hastaken it to trial and you have heard the evidence both from the Crown andfrom the defence. What I ask of you is for you not to find [Mr T] guilty byassociation. Just because his mother has pleaded guilty to some of theallegations made against her does not make [Mr T] guilty of the allegationsthat have been made against him. It would [be] wrong to think that way. It iswrong in law and it's wrong in logic.(Emphasis added.)[25] The Judge also addressed the issue of guilt by association. In discussing thematter the Judge said in his summing-up:[133] The issues in this trial are not what [Ms T] did, it is what [Mr T] did.You know about what she did because you need to know that background.You need to know there was violence in the house. You need to know that theviolence involved did happen, that the children are accurately reporting thingsthat [Ms T] did to them. So you are entitled to know that, that is part of thereason you know about the convictions of another person, because it would betotally wrong to convict one person because someone else has done somethingwrong and the Crown do not invite you to do that. The Crown do not suggestthere is any guilt by association. But the Crown says you can take into accountthe fact we know for sure that these children were not telling lies about what[Ms T] did.(Emphasis added.)[26] While Mr Stevens accepted the Judge directed the jury it would be wrong tofind Mr T guilty by association, he submitted there was a further unfairly prejudicialeffect in the direction because the Judge told them that as a result of the convictionsthey could be sure that there was violence in the home and that the children werereporting what Ms T had done to them. He submitted that that led to the inference thatwhat they were saying about Mr T was correct as well.[27] We do not accept that submission. When read in context it is clear thatthe Judge was referring to the Crown submission that the children were telling thetruth when they said Ms T had assaulted them, as Ms T had accepted by her guiltypleas. Importantly, the Judge made it clear to the jury that the issue for them waswhether Mr T had assaulted the children as alleged.[28] It follows that we do not agree the jury was directed they could treat theevidence of Ms T's convictions as bolstering the complainants' credibility.Nevertheless, we accept that the production of evidence that showed their reports ofoffending by Ms T against them were truthful would have had the incidental effect ofbolstering the complainants' credibility. That was inevitable. But as this Courtobserved in R v Walker, there is nothing wrong with that.66 R v Walker [2007] NZCA 558.[29] Mr Stevens also submitted that it was unnecessary for the Crown to producethe convictions as the Crown led evidence from the children concerning Ms T'soffending. He argued for that reason the production of the convictions had littleprobative value and was highly prejudicial. However, as Mr Stevens conceded,without the convictions it would have been open for the jury to disbelieve thechildren's accounts of Ms T's actions.[30] We also agree with the observation of this Court in R v Taniwha that:7It cannot reasonably be suggested that evidence of [the other party's] guiltcould be more prejudicial if established through evidence of his convictionsas opposed to proof through primary evidence.[31] Further, as Mr Stevens acknowledged in reply submissions, the only directevidence of Ms T's violence before the jury (apart from the convictions) was from therecorded evidence-in-chief of A and B. The video evidence of the four youngercomplainants regarding Ms T's assaults on them was not before the jury.[32] Finally, we note that in his submissions in reply Mr Stevens suggested Mr Tshould have been allowed to challenge Ms T's convictions under s 49(2). That wasnot raised during trial for good reason. The detailed evidence of Ms T's assaults onthe children was likely to be more prejudicial to Mr T's case than the admission of theconvictions.[33] We are satisfied Ms T's convictions were properly before the jury.The summing-up on the use of the evidenceAppellant's submissions[34] Mr Stevens next criticised the Judge's summing-up. He submitted the Judgedid not give the jury any specific directions how to use the evidence of Ms T'sconvictions. He submitted the Judge was obliged to give the jury a direction on howthey could and could not use the evidence and in the absence of such a direction therewas a real risk the jury may have misused it.7 R v Taniwha, above n 3, at [46].Discussion — use of evidence in summing-up[35] In addition to the passage at [133] of the summing-up referred to above,the Judge dealt with the relevance and use of Ms T's convictions at [129]–[132]:[129] With the Crown closing address, the Crown position is that we knowthat six of the children were assaulted with weapons in the time period weare talking about and we know this for sure. Their mother did not know that.[Ms R, the mother of C, D, E and F] did not know that, as far as her childrenwere concerned and you can expect mothers of children are going to beinterested in what's happening to their children, they did not know. Theteachers of the children did not know. So we know for sure that there wereassaults involving weapons going on that had gone unnoticed. The reason theCrown raise this is a lot of the defence points made are that there should havebeen injuries and there were not. Well we know that there were seriousassaults going on to these children and no one saw anything and we know thatfor a fact.[130] We also know that there were 41 convictions for [Ms T] and that shepled guilty. We know also that some charges against her were discharged anda significant number at that. But we know these as part of the facts and youhave got them as admitted facts, so they are common to both sides, there is noquestion of that.[131] The evidence that we have had from [Mr T] is going to be somethingthat you need to consider. His account of events is that he knew nothing aboutviolent acts going on in that home. He did not know that his mother wasassaulting these children. The Crown says his evidence was oblivious but hisevidence is he knew about growlings and he had spoken to the childrenhimself sometimes. But that he acknowledged no violence.[132] The Crown says that there was a distancing from these violent events,that Mr T was moving himself away, and the Crown says that is significantbecause some of the events, as described by the complainants involve both[Ms T] and [Mr T], that they are linked together. The Crown says thecircumstances that these children talk about involve somebody who hasacknowledged violent offending and those same circumstances include[Mr T]. So the Crown says it is not surprising when he gives evidence he sayshe does not know anything about that. The Crown says that that is unrealisticand that when you have seen the way the children talk about what [Ms T] didand what [Mr T] did, those things are linked in a way that you are entitled totake into account.[36] In the above passages the Judge dealt with why the evidence of Ms T'sconvictions was relevant and how it could be used, namely as background and inresponse to the defence case that there were no noticeable injuries.[37] Mr Stevens made the point that the directions were given in the context of howthe Crown contended the evidence was relevant. We agree that it would have beenpreferable if the Judge had given a separate direction to the jury on how they coulduse the evidence of Ms T's convictions rather than including the direction in thecontext of his discussion of the Crown case. However, the first part of [133] wasthe Judge's direction and, importantly, the Judge did explain to the jury the reasons forthe admission of the evidence and how it could be used. Indeed, rather than dealingwith the matter obliquely as he did in [131] and [132], the Judge could have gone onto more directly instruct the jury they could use the evidence of Ms T's convictions asa factor in assessing Mr T's credibility.[38] Finally on this point, it is relevant that Mr T was found not guilty on 10 charges.That suggests the jury properly considered the evidence against Mr T on each chargeas they were directed to do.Did the summing-up lack balance?Appellant's submissions[39] Mr Stevens said the Judge gave an overview of the children's evidence in hissumming-up from [28]–[64]. This was in addition to putting the Crown and defencecases. By giving the overview the Judge reinforced the Crown evidence and did notprovide the necessary balance.[40] Mr Stevens also submitted that when the Judge directed the jury to deal withthe children's evidence, he effectively invited the jury to apply a lesser standard inrelation to the evidence given by the child complainants than would normally apply.[41] The Judge said:[29] As [A] described an incident where he called [Ms T] shit in responseto what he said had been said to him, he said [Mr T] had beaten him forspeaking to [Ms T] in that way. You have got to consider whether that situationis one where you feel an angry and, potentially, violent response might beincurred for speaking that way to [Ms T]. It is in the context of what ishappening in the household. You have to consider what the consequenceswould have been for [A] being cheeky or being disrespectful in the context ofthe way things were in that home.[31] He said that he felt shame about what was happening and he had notwanted people to know about the beatings that he got. You can reflect on howhe said that in the DVD interview. You can wonder what it would have beenlike for somebody of that age. Again, this is something where you have gotto consider the age and developmental stage. It is a question where you havegot to consider whether that is something which looks to you to be honestlysaid by him. Whether it is something which look reliably said by him. Thoseare assessment you have got to make about him. As with all of thecomplainants, credibility and reliability are significant factors for you todetermine.[42] The Judge also directed the jury how they might deal with aspects of thechildren's evidence, for example:[53] She may not have demonstrated a full knowledge of truth or lies whengave her evidence in Court. But you have seen in the evidential video whenshe was asked by the specialist interviewer, she was taken through events andshe seemed able then to be able to give the evidence. So you have got tomeasure what she says. And her evidence need not be taken in isolation.Although there are certain concessions which she made her evidence can beset aside the evidence of other witnesses. You may find consistency with otherwitnesses and you may find consistency with other aspects of the evidence. Ifyou do you are entitled to use that. But, of course, you must confront thedifficulty that is presented by her answer in cross-examination and it wouldbe wrong to overlook those because they are significant. But again, this is notan adult witness who is able to give an adult account of events and you haveto take into account her age and developmental stage when you are looking atthe way she responds. That is not to say that you need accept or reject anypart of her evidence, that remains entirely up to you.[43] Mr Stevens submitted that the overall effect would have been that the jurywould be left with the impression the Judge viewed the evidence of the complainantsfavourably. Mr Stevens submitted that the failure to deliver a balanced summing-upcreated a real risk that the outcome of the trial was affected and the trial was unfair.Discussion — balance in summing-up[44] In Nathan v R this Court approved its earlier comments regarding therequirements for a summing-up:8[20] The primary requirements of a Judge's summing up to the jury weresummarised by this Court in R v Keremete.[18] A judge's summing up must identify the fundamental facts inissue, be balanced in its treatment of opposing contentions with8 Nathan v R [2011] NZCA 578 at [20] (footnote omitted) citing R v Keremete CA247/03,23 October 2003 at [18]–[19].respect to those facts, and leave the jury in no doubt that the facts arefor them and not for the judge. Rival contentions with respect to thefactual issues will normally be summarised (R v Maratana,4 December 2002 CA102/02) but there is a wide discretion as to thelevel of detail to which the judge descends in carrying out that task.Treatment of matters affecting the cogency of evidence is not requiredas a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.[19] The judge need not, and should not, strive for an artificial balancebetween the rival cases if the evidence clearly favours one side or theother: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled toexpress his or her own views on issues of fact, so long as it is madeclear that the jury remains the sole arbiter of fact (R v Hall, supra, atp 625). Any comment on the facts should be made in suitable termswithout use of emotive terms or phrases which could lead to aperception of injustice. But provided the issues are fairly presented,the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628(CA). Inevitably these are ultimately matters of degree and judgment.[45] It is true that the Judge described the complainants' evidence. But this was inthe context of his summary of both the Crown and defence witnesses. In a caseinvolving numerous charges it can be helpful for the Judge to sum up the evidence forthe jury. Importantly, before summing up the evidence, the Judge emphasised thatwhat followed was his summation of the evidence and the jury was not to substitutehis view for their view.[46] It is also true that the Judge's description of the Crown's evidence was longerthan the description of the defence evidence, but that was because there was moreCrown evidence. However, this was balanced by the Judge including the defencecontention in relation to the Crown witness. For example, regarding A's evidence:[32] You saw [A] cross-examined, he was challenged. It was put to himthat what he had said had not occurred and you have seen his response to thecross-examination, how he reacted when it was said that things that he wassaying had happened had not happened. So, the defence put to him that thingshe said were not true and you have his response to those suggestions. You canlook at that when you are considering his evidence as a whole.[47] Regarding B's evidence:[41] Now the defence case as far as she was concerned that her evidencewas untrue and things that she was saying were something which had beensaid, despite these events not occurring; that is something that you will needto consider, and you are entitled to consider the way which she gave herevidence when you measure that against the defence case that these eventsnever happened.[48] Regarding C's evidence:[45] Now, we know the defence position is that [Mr T] did not wearjandals. The jandal which is shown in the photographs was not identified by[C] or anyone else as being the jandal used, but she talks about a jandal beingused, and that is something that you will assess. She described threats that aremote might be thrown at the children. She did not say that the remote wasthrown. Again, there is a limitation on what she says about those things. Shesaid she did not want to talk about what had happened because this might starttrouble, and the police might be involved, "And [Mr T] might be gone to jail,"were the words that she said. Again, that is a limitation she is describing onher willingness to disclose these things and you take that into account givenher age and developmental stage. Is that something which you could acceptor is that something which is outside the range that you think would beavailable to someone of her age when you are assessing her evidence?[46] She was cross-examined on the basis that the violent incident shedescribed did not happen. Her response was that they had. Again, you havegot to measure whether she is prepared to stand up to cross-examination andmaintain a story that she tells. You will have seen the process ofcross-examination, some of it is putting that events did not happen and directlychallenging the children. You see the children's response to that and you seethat the idea of cross-examination is so that the witness is aware that what theyare saying is not being accepted. So that is something that you measure whenyou are looking at the quality of a witness' evidence.[49] Regarding D's evidence:[50] In cross-examination she contradicted what she had said in theevidential video interview which you saw played. You can refer to thecross-examination but she said that [Mr T] had not thrown her against a wall.She had not seen [Mr T] pull [C's] ears. She was not hit with an ice-cream.She had not seen [Mr T] choke [E]. She could not remember [Mr T] smacking[F]. She had not seen [Mr T] punch [J — another child]. [Mr T] had notkicked her. That [Mr T] had not slapped her or the other girls. She said that[Mr T] had hit her with a belt but it was on a single occasion after she hadbeen in the shower.[51] Re-examination, she said she had not told the truth about thebackscratcher in her evidential video as this had not happened and there weresome other areas that were not true but she could not remember which parts.[52] So with her evidence you will need to consider the contradictory partsof her evidence, the way she gave her evidence, questions about credibilityand reliability. And the standards you have got to apply are high. So youhave a witness who makes concessions. But you also have a witness who isyoung. A witness who you can reflect on, her body language and the way shewas coping with the questions and the difficulties she has in expressingherself.[50] In the course of the summation of the evidence the Judge also includedreference (at [60]) to Ms R (mother of C, D, E and F) who was called by the defenceto give evidence she had not noticed any injuries on the children. He also latercorrectly referred to the way the jury could approach Mr T's evidence and in doing sodiscussed Ms R's evidence again.[51] The Judge then concluded the summing-up by setting out the respective Crownand defence cases. Taken overall the defence case was fairly put. We are satisfied thatthe summing-up addressed the facts in issue, fairly outlined the defence case and whenread in context provided proper balance.[52] That leaves Mr Steven's criticism of the way the Judge dealt with the children'sevidence. While we agree that the Judge's comments at [29] and [31] of hissumming-up were not helpful (particularly the suggestion the jury might "wonderwhat it would have been like"), in context they are not so prejudicial to have createda risk that the outcome of the trial was affected.[53] D was eight years old when she made her evidential video and was nine yearsold when she gave evidence at trial. Regulation 49 of the Evidence Regulations 2007did not apply to her. Nevertheless, it was open to the Judge to direct the jury as in[53], for example, how they might approach her evidence. It is always open to a judgeto tailor directions in order to assist the jury to better understand a witness' evidence.[54] Again, a further response to the suggestion there was a lack of balance in thesumming-up and to the criticism of the way the Judge dealt with the children'sevidence is that Mr T was acquitted on 10 of the charges he faced, a number of whichrelied on D's evidence. That shows the jury undertook their task carefully and werenot overly influenced by the directions Mr Stevens complains of.[55] The grounds for the appeal against conviction are not made out.Sentence appeal[56] Mr T was sentenced to a total of four years and six months' imprisonment.The Judge arrived at that sentence by taking two years' imprisonment for the chargesof assault with intent to injure, adding a cumulative sentence of two years'imprisonment for the charges of assault with a weapon, assault on a child, and commonassault, and then imposed an uplift of six months for Mr T's previous convictions.Submissions — sentence[57] Mr Stevens submitted the sentence imposed was manifestly excessive because:(a) the Judge adopted a starting point on the lead charges of assault withintent to injure that was too high;(b) the cumulative sentence imposed was excessive; and(c) the uplift of previous convictions was excessive.Discussion — sentence[58] We agree with Mr Stevens' observation that the Judge appears to have falleninto error when referring to the assault with intent to injure offending as being in thethird band of Nuku v R.9 That case involved a discussion regarding the appropriatesentencing bands for offending with intent to injure which carried a maximum penaltyof five to seven years. The assaults with intent to injure in the present case carried amaximum sentence of three years. Importantly, however, as this Court has said on anumber of occasions, the issue is the end sentence, not the process by which it isreached.10[59] The circumstances of the three offences of assault with intent to injure wereserious:(a) The first occurred when Mr T threw A onto a bed. A hit the corner ofthe bed and then fell to the ground. Mr T then punched himcontinuously causing A to curl up into a ball. While A was on the floorMr T continued to punch and kick him.9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].(b) The second incident involved Mr T grabbing A by his hair and throwinghim onto the ground, hitting and kicking him in the back.(c) The final incident occurred in a wash house where Mr T grabbed A byhis hair and threw his head into the wall. There was evidence of damageto the wash house wall. He then pulled A's head to the ground andpunched and kicked him.[60] The maximum penalty in each case was three years' imprisonment. Taking theaggravating features of the incidents and accounting for the three incidents, a startingpoint of two years' imprisonment was open to the Judge.11[61] An uplift was required to reflect the balance of the offending which includedthe 20 charges of assault with a weapon. While the weapons involved were domesticitems such as a belt, jandals, spatula, wooden spoon and a back-scratcher, they werecapable of inflicting serious harm on the children. In addition there were the sixcharges of assaulting a child and one charge of assault. Given the extent of theoffending, the length of time over which it occurred and the impact on the six children,again we are satisfied that an uplift of two years was well open to the Judge.12[62] That leaves the six-month uplift to reflect the previous convictions forviolence. There is a danger of double-punishment when applying an uplift forprevious convictions, but an uplift may still be appropriate where the previousconvictions show a propensity for certain types of offending.[63] The evidence in the present case was of such a propensity. While there was noevidence for the Judge's comment that some of the offending was against children, anuplift was nevertheless justified.13 Mr T has two previous convictions for commonassault (family violence), one of assault with intent to injure (family violence), andtwo counts of male assaults female. That displays a clear propensity for offending ina domestic setting.11 Tiplady-Koroheke v R [2012] NZCA 477.12 M (CA823/09) v R [2010] NZCA 94.13 R v [T], above n 1, at [17].[64] The previous convictions for family violence and for assaults on a femalewarranted an uplift of four to six months. While the uplift of six months was stern, itwas open to the Judge. We are satisfied that the end sentence of four years andsix months cannot be said to be manifestly excessive.Result[65] The appeals against conviction and sentence are dismissed.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent