T v NEW ZEALAND POLICE [2019] NZHC 3375

T v NEW ZEALAND POLICE [2019] NZHC 3375 [18 December 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-000040[2019] NZHC 3375BETWEEN TAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Appearances: W R Hawkins for the AppellantL M Marshall for the RespondentJudgment: 18 December 2019JUDGMENT OF DOOGUE JIntroduction[1] On 20 September 2019, the appellant, Mr T, appeared for sentence beforeJudge Sygrove in the District Court at Hastings, having pleaded guilty to one chargeof strangulation,1 one charge of assault with intent to injure,2 two charges of breachingrelease conditions3 and one charge of intimidation.4 Mr T was sentenced to threeyears' imprisonment.51 Crimes Act 1961, s 189A(b); maximum penalty seven years' imprisonment.2 Section 193; maximum penalty three years' imprisonment.3 Sentencing Act 2002, s 96(1); maximum penalty one year's imprisonment or a fine not exceeding$2,000.4 Summary Offences Act 1981, s 21(1)(a); maximum penalty three months' imprisonment or a finenot exceeding $2,000.5 Police v T [2019] NZDC 18953.[2] Mr T appeals his sentence on the basis it was manifestly excessive, a contentionopposed by the Crown.Background[3] The charges to which Mr T pleaded guilty occurred at two separate points intime: on 6 November 2018 and 3 January 2019.Breach of release conditions[4] On 22 August 2018, Mr T was released from Hawke's Bay Regional Prisonafter having been sentenced to six months' imprisonment on 18 July 2018 for a numberof property-related offences. He was subject to special release conditions for ninemonths and three days, one of which was to not move to a new residential addresswithout the prior approval of a probation officer. Mr T signed a documentacknowledging he understood these conditions.[5] On 6 November 2018, Mr T's probation officer unsuccessfully attempted tocontact him several times. A home visit was conducted. The unit where Mr T wassupposed to be residing was empty. This gave rise to the charges of breaching releaseconditions.The other charges[6] At around 5:30 a.m. on 3 January 2019, Mr T and the victim were at an addressin Camberley, Hastings. At that stage, the pair had been in a nine-year relationship.They have two children together.[7] The victim got up to take her dogs for a walk. The victim returned an hourlater and found that Mr T had been using drugs, namely synthetic cannabis. The victimhad recently decided to stop using synthetic cannabis.[8] Upon finding Mr T in this situation, the victim became upset and asked him toleave. The victim's flatmate told the victim to leave the address in order to calm down.She did so, going to a nearby address. Mr T then began "smashing up the house".This gave rise to the intimidation charge.[9] The victim returned to the house at around 8 a.m. While she was tending toone of her dogs in the back yard, she heard someone approaching. It was Mr T. Heran at the victim shouting, "if I'm going to jail, I'm going for a good reason". As heshouted this, he did a running kick to the victim, connecting with her forehead. Thevictim fell to the ground and lost consciousness. The victim awoke with a pain in herright arm as Mr T was dragging her along the ground towards the house. She toldMr T that she thought she had broken her arm to which he replied, "I don't give afuck". This gave rise to the assault with intent to injure charge.[10] Mr T then forced the victim into her flatmate's bedroom, shutting and blockingthe door with his body. It is at this stage the victim noticed blood on her chest. In anattempt to escape via the window, the victim tried to persuade Mr T that she was notupset and wanted a cigarette by the window so that she could blow smoke outside.Realising this was a ruse, Mr T went over to the victim, grabbed her around the neckin a headlock and hauled her onto the bed. The victim tried to fight him off, but shecould not. She eventually felt her lips tingle and lost consciousness. This gave rise tothe strangulation charge.[11] When the victim awoke, she realised that she had lost bladder control and hadwet herself. Mr T then attempted to apologise. Upon hearing the sound of sirensapproaching however, he fled the property. He was apprehended a short time later.[12] As a result of the offending, the victim suffered a concussion, a sprain to herjaw, a cut to the tissue connecting her ear to her scalp, bruising to the shell of her earas well as to her ribs, hip and arm.District Court decision[13] Judge Sygrove began by outlining the facts concerning the offending on3 January 2019 as above. In setting the starting point, he took the strangulation chargeas the lead offence and referred to the decision of this Court in Ackland v Police.6 Inparticular, the Judge considered the aggravating factors outlined in that case and the6 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.guidance provided by Cooke J by way of sentencing bands.7 The Judge consideredMr T's offending to be a "serious case".8 It involved an assault to the face in thecontext of a domestic relationship, loss of consciousness and injuries to the victim.The Judge therefore adopted a starting point of three years' imprisonment.[14] To this the Judge imposed an uplift of one year to account for Mr T's otheroffending.9 He then applied a 25 per cent discount to account for Mr T's time spenton electronically-monitored (EM) bail and for his "limited remorse" as expressed inthe pre-sentence report.10 This resulted in an overall sentence of three years'imprisonment.Approach on appeal[15] This is an appeal under s 244 of the Criminal Procedure Act 2011. This Courtmust allow the appeal if satisfied that, for any reason, there is an error in the sentenceimposed on conviction and that a different sentence should be imposed.11[16] A sentence appeal is an appeal against a discretion and only if the sentence ismanifestly excessive or contains an error in principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failingto take into account a relevant consideration, or if the decision was plainly wrong.12The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.13SubmissionsMr T's submissions[17] Mr T's appeal is predicated on the ground his sentence is manifestly excessivebecause the Judge adopted a starting point that was too high and gave an insufficientdiscount for his guilty plea.7 At [26] and [30]-[32].8 Police v T, above n 5, at [6].9 At [6].10 At [6].11 Criminal Procedure Act 2011, s 250(2).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].13 Ripia v R [2011] NZCA 101 at [15].[18] As to the first ground, Mr Hawkins for Mr T submits that while Acklandprovides helpful guidance for strangulation cases, the Judge placed too much emphasison the sentencing bands in that case. Relying on Houkamau v Police,14 the facts ofwhich Mr Hawkins says are broadly similar to the present circumstances, he submitsthat an appropriate starting point would have been around two years' imprisonment.[19] Mr Hawkins also submits that the Judge erred in two further respects in settingthe starting point. First, the Judge did not take into account the principle of totalitywhich, he says, should have resulted in a discount of some 10 per cent. Second, theJudge was prejudiced by both an earlier summary of facts which erroneously describedthe victim's injuries as being more serious than they were, and by the fact the summaryof facts noted that Mr T and the victim had been the subject of "16 reported familyharm episodes".[20] As to the second ground, Mr Hawkins submits that Mr T ought to have receiveda full 25 per cent discount for his guilty plea, rather than a global discount of 25 percent for all mitigating factors as was applied by the Judge. While Mr T pleaded guiltyon the day of his Judge-alone trial, he did so only because several charges had beenwithdrawn, namely burglary, injuring with intent to injure and assault on a person in afamily relationship. Mr Hawkins submits that Mr T should not be denied a fulldiscount for pleading guilty as soon as he knew the true nature of the case against him.Crown's submissions[21] Ms Marshall, for the Crown, submits that the starting point adopted by theJudge was within range when considering the aggravating factors identified inAckland. She submits that four of those factors featured in Mr T's offending:strangulation in the context of a domestic relationship, threats, loss of consciousnessand additional violence or injury.[22] In respect of the adjustments made to the starting point, Ms Marshall submitsthat while it is not clear what methodology the Judge used in coming to a total discountof 25 per cent, that figure is nonetheless defensible. She submits that credit for time14 Houkamau v Police [2019] NZHC 2743.spent on EM bail could cancel out any uplift for relevant previous convictions (Mr Thas 46 previous convictions, including two for common assault against the samevictim and five for breaching release conditions). While the Crown concedes that,depending on the Court's view of the reality of resolutions adopted which resulted inMr T's guilty plea, a full 25 per cent discount for that plea may have been available,the end sentence was not manifestly excessive.Relevant authorities on strangulation[23] In light of the disagreement between counsel as to the appropriate starting pointand given the limited appellate case law on strangulation, it is necessary for me toaddress Ackland and Houkamau in some detail.Ackland[24] Ackland was the first appeal to this Court from a sentence for strangulationfollowing s 189A of the Crimes Act 1961 coming into force on 3 December 2018.That provision made strangulation a stand-alone offence.[25] The appellant in Ackland had been in a relationship with the victim for 18 yearsand the pair had five children together. Following an argument one evening, theappellant became violent, striking the victim across the face several times. He thenforcibly put his hands around the victim's neck, causing her to gag. He yelled at hersaying "If you want I can end it for you all now". The victim's body began tinglingand she lost consciousness. In the District Court, the Judge adopted a starting point ofthree years and three months' imprisonment given the offending took place in thepresence of the pair's children, the victim lost consciousness, the strangulation wasaccompanied by a verbal threat of death, and the violence was prolonged as it was thesecond stage of an earlier incident.[26] On appeal, Cooke J agreed with the culpability factors highlighted by theDistrict Court Judge as well as the starting point.15 In dismissing the appeal, Cooke Jattempted to provide some guidance on sentencing for this new offence. He noted the15 Ackland v Police, above n 6, at [40] and [46].Law Commission had recommended the enactment of a stand-alone offence becausestrangulation was an important risk factor for a future fatal attack by a perpetrator, andit characteristically leaves few marks or signs, sometimes even when it has been lifethreatening.16 This latter point persuaded the Law Commission that the frameworkfor serious violent offences at the time was not well suited to instances of strangulationwhere no injury was visible. Cooke J noted (footnotes omitted):[20] In essence, therefore, what is involved is a recalibration of sentencingfor conduct previously treated leniently, particularly where strangulationoccurred without other offending with higher maximum sentences. Thatrecalibration is accordingly relevant when the more serious offending has notbeen triggered, and strangulation is the principal act of violence. When thatis so, the lead offence has sometimes required to be of a less serious kind.When strangulation has been part of other, more serious, violent offendingsuch as injuring with intent to injure under s 189(2) of the Crimes Act 1961(five years maximum), or injuring with intent to cause grievous bodily harmunder s 189(1) (10 years maximum), higher sentences have been imposed.[21] The primary focus is accordingly on arriving at an appropriateassessment of the seriousness of the offending in light of the recalibrationcontemplated by the new offence.[27] Pending guidance from the Court of Appeal, Cooke J sought to identifyculpability factors for the purpose of assessing the seriousness of the offending. Heidentified the following factors: strangulation in the context of a domestic or intimaterelationship/vulnerability of victim; threats, particularly threats to kill; loss ofconsciousness; the offending being one of multiple instances of strangulation; otherviolence or injury caused to the victim; significant impact on others; and the offendingoccurring in breach of a protection order.17[28] Cooke J then went on to propose the following sentencing bands forstrangulation (footnotes omitted):[30] At the lower end would be offending involving strangulation as anintentional result of pressure being applied to the throat for a brief period,potentially without any of the above factors being present. Such offendingmight attract a starting point of six months to two years' imprisonment.[31] Offending at the highest end of the range involving a starting point offive to seven years' imprisonment may correspond to the offending describedin [5.43] of the Law Commission's report — being offending with a number16 At [18]-[19], citing Law Commission Strangulation: The Case for a New Offence (NZLC R138,2016) at [1.3].17 At [26].of the factors. I stress, however, it is not the number of the above factors thatis important, but the overall nature and culpability of the offending. The abovefactors are intended simply to provide some guidance, or a framework formaking that assessment.[32] In between these two categories is the mid-range of cases where astarting point of two to five years may be appropriate. No doubt case law overtime will build up to give greater clarity on appropriate starting points forcases within this middle range. But it is important to take into accountsentencing cases involving more serious offending that have includedstrangulation. The concern in relation to strangulation addressed by the newoffence mainly arose from those cases where there was a lack of physicalinjury, or intent to cause that injury, have meant that charges needed to be laidfor more minor offences, such as male assaults female. But where there havebeen strangulation cases involving more serious offending, such as offendingunder ss 188 or 189 of the Crimes Act 1961, these cases will continue toprovide considerable assistance. For that reason the cases addressed atparagraphs [42] and [44] below will continue to provide guidance.[29] Despite proposing the above bands, Cooke J suggested that cases involvingcharges with similar maximum penalties such as wounding with intent to injure unders 188(2) of the Crimes Act 1961 and injuring with intent to cause grievous bodily harmor injury under s 189(1) or (2), would continue to be informative.18 Further, wherestrangulation was part of offending which formerly attracted a higher maximumpenalty, Cooke J noted the following:19There may also be some recalibration involved for strangulation cases evenwhen they have involved offending with the higher penalties. It might be saidthat the adverse effects of strangulation have now been more fully recognisedby Parliament. I do not want to overemphasise that last point, but it is a factorto be considered when considering earlier cases.Houkamau[30] The appellant in Houkamau had been in a relationship with the victim foraround three years. In the early hours of New Year's Day, an argument ensued betweenthe appellant and the victim. The appellant approached the victim, grabbed her by herclothing and shoved her out the front door of the house. He then punched her in theforehead and began choking her by putting both his hands around her neck andsqueezing. The victim tried unsuccessfully to pull his hands off her throat. Despiteasking him to let go of her throat, the appellant continued to choke the victim for a18 At [45].19 At [47].short period before shoving her back into the ground, causing her neck to hit thewooden edging around the garden.[31] At sentencing, the District Court Judge adopted a starting point of two years'imprisonment, noting that while the offending was less serious than that in Ackland, ittook place within the home and occurred following an earlier assault. On appeal,Thomas J upheld the starting point though noted that it could considered stern.20[32] Thomas J acknowledged that Ackland was the first attempt at identifyingmaterial considerations in respect of strangulation offending and was clearly capableof amendment or refinement.21 Referring to Ackland, Thomas J stated:22I do not disagree with the factors identified by Cooke J. I would, however,emphasise that, in respect of the first factor, strangulation in the context of adomestic or intimate relationship, the focus of the Commission's report wason strangulation being used as a means of achieving coercion and control overthe victim. That, it seems to me, is at the heart of the Commission's reportand the principal rationale for the new offence.[33] Of particular significance were Thomas J's comments in respect ofassessments of the seriousness of any strangulation offending:[33] The purpose of my discussing Ackland v Police is to emphasise theimportance of judges (and counsel) carefully considering the facts and contextof the offending. Family violence is an extremely complex area and care isneeded not to focus unduly, or only, on what might be described as key factors,falling into the trap of a somewhat mathematical approach to the exerciserather than a proper consideration of the subtleties of the offending. Indeed,the Commission's report and rationale for the new offence highlights thesubtleties that are often involved in coercive and controlling behaviour, ofwhich strangulation often forms part.[34] Expanding on the above, Thomas J emphasised the care with which sentencingbands ought to be applied given they can be subject to manipulation:[35] The Judge then described the offending as falling within the lower endof the second band in Ackland v Police. Equally, it could have been describedas the upper end of the lowest band. This, to my mind, demonstrates the wayin which banding can be subject to manipulation. By characterising theoffending as in the middle of three bands, the assessment of the seriousness ofthe offending is inevitably perceived as higher. This, then, contributes to the20 Houkamau v Police, above n 14, at [36].21 At [31].22 At [31].way in which arguments are presented on appeal, the case is used as aprecedent and matters such as the commutation of a nominal starting pointinto the end sentence are influenced. All of these observations are intended toemphasise the care with which these types of analyses should be undertaken.Starting pointGeneral observations[35] Like Thomas J in Houkamau, I do not disagree with the culpability factorsidentified by Cooke J in Ackland. However, I agree with Thomas J that Ackland oughtnot to be used to approach sentencing for strangulation in an overly mechanisticfashion. As the Supreme Court said in Hessell v R, sentencing must involve "a fullevaluation of the circumstances to achieve justice in the individual case".23 The Courtof Appeal recently added in Zhang v R that this "calls for flexibility and discretion insetting sentences. A guideline judgment is not supposed to alter that fundamentalrequirement."24[36] It is only relatively recently that strangulation within the context of domesticrelationships has attracted the attention of policy makers and scientific research.25 Theconsequence is that past cases in which strangulation formed part of the offending maybe of limited use both because the offending would have fallen under a differentoffence with potentially a different maximum penalty as Cooke J appreciated inAckland, but also because our understanding of the complexities and consequences forthe victims of this sort of offending would have been more limited.[37] In my view, the courts must be cautious of applying a rigid banding approachto sentencing for strangulation as it has the potential to restrict an examination of thecomplexities of this form of offending, particularly in the domestic violence context.Accordingly, while Ackland is informative, sentencing for strangulation must startwith an appreciation of the specific circumstances of each case and not by referenceto bands.23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].24 Zhang v R [2019] NZCA 507 at [120].25 Adam Pritchard, Amy Reckdenwald and Chelsea Nordham Nonfatal Strangulation as Part ofDomestic Violence: A Review of Research (2017) 18(4) Trauma, Violence & Abuse 407 at 407[Research Review].[38] It may be that with an increased body of case law and authority from the highercourts bands are ultimately accepted. But at this stage, I consider a particularised focuson all the complexities in the singular case (armed with our increased scientific andpsychological knowledge) is a more appropriate initial point of reference forsentencing.[39] In suggesting a maximum penalty of seven years' imprisonment forstrangulation, the Law Commission made reference to and gave an example of the"worst class of strangulation". This is the example to which Cooke J referred inAckland. The Law Commission said:5.43 An example of the worst class of strangulation within scope wouldfeature the hallmarks of coercive or controlling behaviour and theterror we have identified. For example, a perpetrator enters thevictim's home in breach of a protection order. After an altercation, hestrangles her with his hands on and off for several minutes, leavingher struggling for breath, incontinent and unconscious. The victimthinks she will die and knows that the perpetrator has the power to killher. Because he invaded her home, after the strangulation, she lives inconstant fear for her security and life. As a consequence, he hasachieved coercion and control over her.5.44 It is the terror that results from strangulation that is at the heart of thiskind of criminal conduct. That terror is likely to seriously affect allaspects of the victim's life. In our view, the terror that results from this"worst class of case" is greater than the harm of a minor injury and atleast equivalent to a serious physical injury.[40] There is sound reason behind the Law Commission's classification of thiscombination of features as forming the worst type of strangulation offending. First isthe act of strangulation itself. Strangulation can lead to unconsciousness in one of twoways: where breathing is impeded or where vascular occlusion occurs. In the lattercase, unconsciousness may be brought about within 10 to 15 seconds.26 If the pressureapplied to a person's neck or throat is maintained, death may ensue within three to fiveminutes.27 However, even where the pressure is released well before this critical point,the sustained lack of oxygen supply to a person's brain can result in irreversible brain26 Martyna Bendlin and Lorraine Sheridan Nonfatal Strangulation in a Sample of DomesticallyViolent Stalkers: The Importance of Recognising Coercively Controlling Behaviours (2019) 46Crim Just & Behavior 1528 at 1529. See also Law Commission, above n 16, at [2.2]; Gael Strackand others Why Didn't Someone Tell Me? Health Consequences of Strangulation Assaults forSurvivors (2014) 19(6) Domestic Violence Report 87 at 88 [Health Consequences].27 At 1528.injury.28 Further, studies have shown that delayed death can eventuate in cases ofstrangulation.29 It is for these reasons that unconsciousness, as with urinary or faecalincontinence, are strong indicators of near-fatal strangulation.30[41] Second is the coercive nature of strangulation. As the Law Commission noted,strangulation can be distinguished from situational violence which is intermittent innature, is not rooted in a desire to control and does not necessarily escalate over time.31In a 2001 study of 300 strangulation cases in San Diego, California — specificallydiscussed by the Law Commission — one of the key findings was that most offendersdo not strangle to kill, but rather strangle to show they can kill.32 Strangulation is inmany instances a means by which an abuser can instill and perpetuate fear in the victimfor the purpose of controlling her. This fear can persist well after the physical act ofstrangulation ceases.[42] Third is the increased risk of a future fatal attack.33 This, the Law Commissionsuggested, elevates the importance of such behaviour being understood and taken intoaccount by the person or body charged with making decisions in respect of both thevictim and perpetrator of strangulation.34 It is also relevant that in a 2010 papercommissioned by the Ministry of Social Development entitled Learning fromTragedy: Homicide within Families in New Zealand 2002-2006, the authors found thata woman is at higher risk of being killed by her male partner if, amongst other factors,he has been violent in the past and exhibits extreme jealousy or control.35Strangulation falls under both of these indicators.Starting points for strangulation in a domestic violence context[43] In recommending the enactment of a new offence for strangulation, the LawCommission acknowledged that it had "described an offence in which liability flows28 Law Commission, above n 16, at [2.9].29 Research Review, above n 25, at 416; Health Consequences, above n 26, at 89.30 Health Consequences, above n 26, at 87.31 Law Commission, above n 16, at [2.24].32 At [2.19]. See also Gael Strack and Casey Gwinn Strangulation and Domestic Violence: The Edgeof Homicide (2014) 19(6) Domestic Violence Report 81 at 90.33 At [2.26]-[2.30].34 At [2.31].35 Jennifer Martin and Rhonda Pritchard "Learning from Tragedy: Homicide within Families in NewZealand 2002-2006" (Ministry of Justice, 2010) at 41.merely from intentionally applying force to the neck (or otherwise impeding normalbreathing or blood circulation). The resulting harm or motivating intention could varywidely." In other words, the Law Commission reiterated that as with any otheroffence, the seriousness of the offending will depend on the facts of the individualcase. For example, strangulation may encompass intentionally applying force to aperson's neck which impedes their breathing in the spur of the moment in the contextof a street fight. While the charge is the same as in the present appeal, the contextsare extremely different.[44] It is not surprising then that much of the Law Commission's discussionrevolved around family violence. Strangulation in this context presents particularchallenges for the courts and for agencies and bodies who deal with both victims andperpetrators of family violence. These challenges are absent from other instances inwhich strangulation occurs.[45] Section 8 of the Sentencing Act 2002 requires the courts to consider variousfactors when sentencing offenders. While framed as considerations, these areessentially restrictions which prevent the courts from sentencing on an arbitrary basis.Relevant for the purposes of setting starting points are the requirements to: take intoaccount the gravity of the offending in the particular case, including the degree ofculpability of the offender (s 8(a)); impose the maximum penalty if the offending iswithin the most serious of cases, unless circumstances relating to the offender makethat inappropriate (s 8(c)); impose a penalty near to the maximum if the offending isnear to the most serious of cases, unless circumstances relating to the offender makethat inappropriate (s 8(d)); and take into account the general desirability of consistencywith appropriate sentencing levels in respect of similar offenders committing similaroffences in similar circumstances (s 8(e)).[46] In Hessell, the Supreme Court noted that the enactment of the Sentencing Act2002, and in particular the principles in s 8, did not alter the requirement for sentencingJudges to undertake a full evaluative exercise in each individual case.36 Rather, it36 Hessell v R, above n 23, at [44].simply sought to clarify what Judges had to take into account under the Act to assistpublic understanding of the sentencing process.[47] The principles in s 8 of the Sentencing Act 2002 remain paramount.Nevertheless, I wish to make a few observations in respect of setting starting pointsfor strangulation in a domestic context.[48] In my view, it would be unlikely that strangulation in a domestic context wouldattract a lower-end starting point. This is because strangulation in a domestic contextvery frequently encompasses certain aggravating factors. In many instances, there isan element of vulnerability, whether that is because of physical isolation (if thestrangulation occurs in a private setting as it so often does) or differences in physicalstrength between the perpetrator and the victim. For example, overseas researchsuggests that, over the course of a lifetime, women are between four and 11 times morelikely than men to report strangulation by an intimate partner.37 Strangulation in adomestic context is also strongly linked to long-term emotional and physical effects.38The result is that the impact on many victims is greater than the physical effect of theact of strangulation itself.[49] There will of course be instances of strangulation in a domestic context wheresome or all of these factors are not present. It will be for the sentencing Judge todetermine the seriousness of the offending and the appropriate starting point in eachcase. However, research suggests that these factors are common in domestic contexts.If so, the starting point ought to adequately reflect their presence. The courts must beaware of and responsive to the impact of this type of offending on both victims andthose who indirectly suffer such as dependent children or children present when theoffending occurs.37 Susan Sorenson, Manisha Joshi and Elizabeth Sivitz "A Systematic Review of the Epidemiologyof Nonfatal Strangulation, a Human Rights and Health Concern" (2014) 104(11) Am J PublicHealth 54 at 57; Gael Strack and Casey Gwinn "On the Edge of Homicide: Strangulation as aPrelude" (2011) 26(3) Criminal Justice 32. See also Kristie Thomas, Manisha Joshi and SusanSorenson "'Do You Know What It Feels Like to Drown?': Strangulation as Coercive Control inIntimate Relationships" (2014) 38 PWQ 124 at 133.38 Strack and Gwinn, above n 37.Starting point for Mr T's offending[50] I do not agree with Mr Hawkins' submission that Mr T's offending moreclosely resembles that in Houkamau than that in Ackland. This is for a number ofreasons. First, a significant aggravating factor in the present case is the fact thatMr T's actions rendered the victim unconscious and incontinent. Such an outcome —indicative of both the length of time and the force with which the strangulation is likelyto have occurred — did not eventuate in Houkamau. Second, Mr T's offendingoccurred in the context of a home invasion in that he entered the victim's home withoutpermission after he had been asked to leave, and essentially detained the victim there.The fear she must have felt is evidenced by her contemplation of escaping via thewindow; escape by any means possible. Third, Mr T's offending included verbalthreats implying serious physical harm which are likely to have increased the terrorexperienced by the victim over and above the physical act of being strangled.[51] Certain features of Mr T's offending are telling of the seriousness of hisactions. Most obvious is the victim's unconsciousness and incontinence. It isfortunate that the victim's injuries were reversible and did not result in permanentbrain injury or death. Strangulation which leads to unconsciousness or urinary orfaecal incontinence, given they are indicators of near-fatal strangulation, must be seenas increasing the seriousness of the offending.[52] The element of home invasion in Mr T's offending is a further aggravatingfactor. In Solicitor-General v Hutchinson, the Court of Appeal commented on theincidence of offending within the home, stating:39Family violence has become one of the scourges on New Zealand society. Thefamily home is a place where an occupant is entitled to feel, and be, safe. Thecourts have repeatedly emphasised the importance of respect for the sanctityof the home.[53] Mr T's behaviour emphasises the controlling nature of his actions, assertinghis dominance over the victim in the one space she ought to have felt safe. The actsof dragging the victim into her house, blocking the doorway preventing her from39 Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420 at [27].leaving and continuing the physical assault once inside all served to isolate the victimand would likely have resulted in a heightened sense of helplessness.[54] Further, Mr T's offending was prolonged and escalated in nature from simplephysical assault to more violent physical assault combined with psychological control.The strangulation offending was only one part of this sequence of events howeverthroughout, Mr T showed a complete disregard for the victim's wellbeing.[55] The impact of the offending on the victim is also significant. The injuriessustained reiterate the seriousness of the overall series of assaults. However, there isan added factor of humiliation resulting from the victim's incontinence brought on byher loss of consciousness. In her victim impact statement, the victim acknowledgedthat what "[Mr T] did to [her] was worse than anything he's ever done before".[56] Having taken these factors into account, there is little that distinguishes Mr T'soffending from the "worst class of strangulation" as proposed by the LawCommission. While his offending did not occur in breach of a protection order, itnonetheless had the hallmarks of psychological coercion and control, and physicaldomination. Certain factors I have discussed such as the victim's incontinence, thehome invasion element and the degree of coercion and control evidenced by hisbehaviour, elevate the seriousness of Mr T offending beyond that in Ackland,warranting a higher starting point.[57] In my view, the starting point adopted by Judge Sygrove was lenient in light ofthe circumstances, particularly the domestic violence context and the overall severityof the offending. However, the Judge is not necessarily to be criticised for this givenboth prosecution and defence counsel submitted that a starting point of three years'imprisonment was appropriate based on a rigid interpretation of Ackland. It does,however, show the dangers of applying culpability factors and sentencing bands in anoverly mechanistic manner. This is something to which the courts should be alertgiven the potentially fatal consequences of intimate partner violence, particularlywhere strangulation is concerned.[58] For completeness, I briefly address Mr Hawkins' submission that the Judgewas prejudiced by both an earlier summary of facts which erroneously recorded thatthe victim had also suffered a broken jaw, dislodged fillings and an infection, and bythe fact the summary of facts noted that Mr T and the victim had been the subject of"16 reported family harm episodes". Mr Hawkins also submitted that an adjustmentof 10 per cent to the end starting point of four years' imprisonment was warranted fortotality.[59] I disagree with both submissions. As professional decision-makers, Judgesfrequently must disregard irrelevant, inadmissible or prejudicial information whichthey have already seen or been given for the purposes of making a decision. This isexactly what has happened in the present case. The Police failed to omit from thesummary of facts erroneous information, something which was raised at sentencingand clarified by the Judge. No error has occurred.[60] As to totality, Mr Hawkins has provided no authority for his submission thatthe Judge should have adjusted the end starting point by 10 per cent. In R v Xie, theCourt of Appeal noted that the "fundamental tenet of the totality principle is that thefinal sentence must reflect 'the totality of the offending'. How the total sentence ismade up has never been important."40 The Court went on to confirm one of the keyprinciples of sentencing for multiple offences is that the "final sentence must representthe overall criminality of the offending and the offender."41[61] In light of these authorities and given my view on the starting point adopted byJudge Sygrove, I do not consider that the Judge erred in respect of adjusting the endstarting point for totality. On the contrary, because I consider the starting point ofthree years' imprisonment to be lenient, the end starting point after the Judge took intoaccount uplifts was well within range.[62] For these reasons, this ground of appeal is dismissed.40 R v Xie [2007] 2 NZLR 240 (CA) at [16]. See also Haywood v R [2015] NZCA 551 at [11] forcomments on the principle of totality in respect of cumulative sentences.41 At [17(c)].Guilty plea[63] From an end starting point of four years' imprisonment, Judge Sygrove gaveMr T a 25 per cent discount which "[took] into account time spent on EM bailand...limited remorse." Mr Hawkins submits that Mr T ought to have received the full25 per cent discount for his guilty plea in accordance with Hessell42 — although hepleaded guilty on the day of his Judge-alone trial, he did so after a more seriousburglary charge as well as a charge of assaulting a person in a family relationship werewithdrawn.[64] In Hessell, the Supreme Court said the following in respect of discounts forguilty pleas:[74] But, as we have emphasised, the credit that is given must reflect allthe circumstances in which the plea is entered, including whether it is truly tobe regarded as an early or late plea and the strength of the prosecution case.Consideration of all the relevant circumstances will identify the extent of thetrue mitigatory effect of the plea.[75] The reduction for a guilty plea component should not exceed 25 percent. That upper limit reflects the fact that remorse is dealt with separately.Whether the accused pleads guilty at the first reasonable opportunity is alwaysrelevant. But when that opportunity arose is a matter for particular inquiryrather than formalistic quantification. A plea can reasonably be seen as earlywhen an accused pleads as soon as he or she has had the opportunity to beinformed of all implications of the plea.[65] Mr Hawkins' submission is essentially that Mr T's guilty plea was entered assoon as he had an opportunity to be informed of all implications of that plea.[66] There is force in that submission. In Heta v R, the appellant had pleaded guiltyto an amended set of charges part-way through her trial.43 This set of chargesrepresented a lesser level of offending. The trial Judge declined to apply any creditfor this ostensibly belated guilty plea. On appeal, the Court of Appeal held that sheought to have received a full 25 per cent discount for her plea as the significantdowngrade in the charges meant that she could be said to have pleaded at the firstreasonable opportunity.44 However, it also became evident on appeal that the trial42 Hessell v R, above n 23.43 Heta v R [2012] NZCA 267.44 At [31].Judge was not aware the appellant had already made an admission to the less seriouscharges and had only sought to defend them when coupled with the more seriousones.45 She had not, therefore, set out "to defend the indefensible" as the trial Judgehad incorrectly assumed.46 Accordingly, Heta turns on its facts.[67] Heta can also be contrasted to Aupouri v R where the Court of Appeal held thata full discount for guilty plea was not warranted despite the appellant having promptlypleaded guilty to lesser charges (sexual exploitation of a person with a significantimpairment) during the course of his trial for rape.47 This was because the appellanthad taken "no earlier step to express a willingness to plead to a lesser offence on thebasis of lesser offending."48 Had the appellant shown that willingness, the Courtcommented that he might have been entitled to the full discount.49[68] I acknowledge that Mr T's guilty plea was entered only after the criticalburglary charge, for which the maximum penalty is 10 years' imprisonment, waswithdrawn. In this regard, it is not unreasonable to say that he pleaded guilty at theearliest possible opportunity. However, even if I accept this, that is likely to have ledto a further discount of five per cent, or just over two months. This is because Mr T'scounsel at sentencing (not Mr Hawkins) submitted that a discount of 20 per cent forguilty plea was appropriate. Given the relatively minor credit available for time spenton EM bail and remorse, it is likely the District Court Judge adopted this figure andincreased the total discount by a further five per cent to account for the other mitigatingfactors. However, I do not consider that a failure to give Mr T a further two-monthdiscount has resulted in an end sentence that is manifestly excessive.[69] I come to this conclusion for a further reason. The Judge included in the 25per cent discount Mr T's "limited remorse". With respect, I cannot see from theinformation before this Court any manifestation of that remorse. On the contrary, theProvision of Advice to the Court (PAC) Report indicated that Mr T showed a lack ofremorse for his actions, instead blaming the victim and asserting she was a liar.45 At [27]-[29].46 At [27].47 Aupouri v R [2019] NZCA 216.48 At [16].49 At [16].Therefore, Mr T is perhaps fortunate that the Judge gave him any recognitionwhatsoever for remorse. Even if a greater discount could have been given for guiltyplea, it was considerably off-set by the discount given for remorse.[70] Accordingly, this ground of appeal is also dismissed.Result[71] The appeal is dismissed.Suppression[72] In light of the physical and emotional harm experienced by the victim, I soughtsubmissions from counsel as to the appropriateness of suppressing Mr T's name inorder to avoid undue hardship for her. Having considered those submissions, I orderthat Mr T's name and identifying particulars be suppressed pursuant to s 200(2)(c) ofthe Criminal Procedure Act 2011._______________________Doogue JSolicitors:Bramwell Bate Lawyers, HastingsCrown Solicitor, Napier