WAHO v NEW ZEALAND POLICE [2018] NZHC 1767

WAHO v NEW ZEALAND POLICE [2018] NZHC 1767 [17 July 2018]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2018-416-000014[2018] NZHC 1767BETWEEN TAWHITI TE RA LEROY HAPUKUWAHOAppellantAND NEW ZEALAND POLICERespondentHearing: 17 July 2018 (via AVL at Wellington)Counsel: M A Terekia for AppellantC C Gullidge for RespondentJudgment: 17 July 2018JUDGMENT OF COLLINS JIntroduction[1] This judgment explains why I am dismissing Mr Waho's appeal against asentence of two years and two months' imprisonment imposed by Judge Hastings inthe District Court on 2 May 2018.1 The sentence was, in my assessment, within therange that could reasonably be imposed in the circumstances of this case.Background[2] Mr Waho pleaded guilty to three sets of charges arising out of the same seriesof events:1 Police v Waho [2018] NZDC 8761.(1) three charges of injuring with intent to injure2 and two charges ofassault with a weapon,3 which relate to domestic violence against histhen partner;(2) one charge of male assaults female4 and one charge of threatening tokill,5 which relate to a second female victim; and(3) one charge of common assault,6 which relates to a male victim.Background[3] On the evening of Saturday 24 June 2017, Mr Waho was hosting a party withhis partner. In the early hours of Sunday 25 June, Mr Waho saw his partner and theother two victims kissing each other. Without warning, Mr Waho punched his partnerin the mouth twice with a closed fist. She was hit so hard that she fell to the ground.Mr Waho then grabbed the male victim by the throat and squeezed so hard that thevictim could not breathe. Mr Waho then punched the second female victim, causingher to fall to the ground. He then grabbed her throat and squeezed so hard that shecould not breathe. The victim thought she was going to die. Mr Waho then repeatedlytold her to shut up in expletive terms and said "I will kill you".[4] Mr Waho's partner was crying and scared so she ran out of the room and hidout the front of the property. Mr Waho followed her and, once he found her, hepunched her once in the head. He then grabbed her by the hair and dragged her aroundthe back of the house and inside. Once inside, Mr Waho threw his partner on theground. She hit her head on a coffee table as she fell. Mr Wako then punched her inthe face with a closed fist numerous times. Mr Waho let his partner go only afteranother person intervened.[5] Mr Waho's partner went to a friend's house. At 9.00 am on 25 June, Mr Wahoarrived at the friend's house and repeatedly told his partner to get into the truck that2 Crimes Act 1961, s 189(2), maximum penalty five years' imprisonment.3 Section 202C, maximum penalty five years' imprisonment.4 Section 194(b), maximum penalty two years' imprisonment.5 Section 306(1)(a), maximum penalty seven years' imprisonment.6 Section 196, maximum penalty one year's imprisonment.he had arrived in, but she refused to do so. Mr Waho then produced a knife. Hispartner ran away at this point, but he chased her and she fell to the ground. He grabbedher by the hair and dragged her back to the truck.[6] Mr Waho's mother, who was driving the truck, then drove off. During thejourney, Mr Waho punched his partner in the face and ribs. However, his partnermanaged to jump out of the truck near an intersection. Mr Waho jumped out of thetruck and chased his partner.[7] When Mr Waho caught up with his partner, she dropped to the ground. Hestood over her and kneed her in the face twice. Mr Waho then demanded his partnerreturn the truck, which she eventually did out of fear of being assaulted again.[8] Mr Waho's mother then drove them home. Mr Waho, again, punched hispartner in the face and ribs during the journey. Once they arrived home, Mr Wahotook his partner around the back of the property. He then pinned her against a lockerin a shed, holding her with his left hand around her neck. She could barely breathe.He then picked up a pair of scissors in his right hand. She thought she was going tobe stabbed. Mr Waho stabbed the locker she was pinned against instead, then releasedher and walked away. Police arrived at the address shortly after.Mr Waho[9] Mr Waho is a 26-year-old beneficiary. He has one previous conviction forcultivating cannabis arising from events in 2011. He had a good upbringing and washeavily involved in sports. However, at age 14 he was involved in a car accident,which caused multiple serious injuries that required hospitalisation for a period ofeight months. He had to undertake intensive physiotherapy to learn to walk again. Asa result of the accident, Mr Waho did not return to school and continued his educationby correspondence. He has also been unable to work. He reports losing friends andbeing unable to complete his life goals because of the accident. This has affected hismood and caused him to be irritable. He has attended psychological therapy to assist.He also has a moderate to harmful pattern of alcohol use.District Court decision[10] In reaching the sentence he imposed on Mr Waho, Judge Hastings referred tothe following sentencing principles:(1) the need to denounce the conduct;7(2) the need to deter Mr Waho and others from the similar offending;8(3) the need to hold Mr Waho accountable for the harm caused to thevictims;9(4) the need to provide for Mr Waho's rehabilitation to the extent it waspossible;10 and(5) the need for the sentence to be the least restrictive that was appropriatein the circumstances.11[11] Judge Hastings took the offending against Mr Waho's partner as the leadcharges, adopting a starting point of three years and three months' imprisonment. Thiswas based on band three of Nuku v R, which provides that sentences of between twoyears' and five years' imprisonment are appropriate for charges of injuring with intentto injure involving three or more aggravating factors, where the combination of thosefactors is particularly serious.12 Judge Hastings identified the following aggravatingfactors in Mr Waho's offending:(1) extreme violence;(2) attacks to the head;(3) choking and strangulation;7 Sentencing Act 2002, s 7(1)(e).8 Section 7(1)(f).9 Section 7(1)(a).10 Section 7(1)(h).11 Section 8(g).12 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38](c).(4) vulnerability of the victim;(5) use of weapons; and(6) psychological injury.[12] Judge Hastings then applied an uplift of four months for the offending againstthe second female victim and a further uplift of two months for the offending againstthe male victim. This resulted in a total starting point of three years and nine months'imprisonment.[13] Judge Hastings then allowed a discount of eight months for rehabilitativeefforts and good character, noting that Mr Waho had:(1) no relevant previous convictions;(2) expressed a willingness to undergo counselling for anger management;(3) attended four counselling sessions with Hauora Tairāwhiti and a drugand alcohol programme;(4) demonstrated good insight into the harm caused by his offending in aletter to the Court; and(5) self-referred to counselling sessions at the Tauawhi Men's Centre.[14] Judge Hastings also allowed a discount of two months' imprisonment forremorse. Half of that discount was made on the basis of the victim being present incourt.[15] Finally, Judge Hastings gave a 25 per cent discount for Mr Waho's guilty plea.This resulted in an end sentence of two years and two months' imprisonment.Appellate principles[16] Section 250 of the Criminal Procedure Act 2011 provides that an appeal againstsentence is to be allowed if:(1) for any reason, there is an error in the sentence imposed on conviction;and(2) a different sentence should be imposed.[17] Whether the end sentence is "manifestly excessive" continues to be animportant guide to finding an error.13 If the end sentence is within range, then theappellate court will not change it, even if the lower court made an error in the stepstaken when reaching the end sentence.Starting point[18] Mr Waho accepts that the starting point of three years and nine months'imprisonment was appropriate. His grounds of appeal focus on the adequacy of thediscounts given for Mr Waho's previous good character, his efforts at rehabilitationand his remorse.Efforts at rehabilitation and previous good character[19] Although Mr Terekia, counsel for Mr Waho, challenged these factors asseparate grounds of appeal, Judge Hastings gave a collective discount for both factorsso it is appropriate to assess them together.[20] Mr Terekia submitted that a discount of eight per cent would be appropriate torecognise the various efforts made by Mr Waho to rehabilitate. He referred to thedecision of Kerr v R where a discount of that size was given.14[21] Mr Terekia submitted that a discount of 12 to 13 per cent is appropriate torecognise Mr Waho's previous good character. He submitted that the present13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].14 Kerr v R [2017] NZCA 498.offending is a fall from grace for Mr Waho as he has no previous violence convictions,and only one previous conviction for drug offending. Mr Terekia referred to Davidsonv R and R v Findlay where discounts of 25 per cent were given, although heacknowledged that Mr Waho has not contributed to society to the same extend as thedefendants in those proceedings.15[22] Taking both factors together, Mr Terekia submitted that the appropriatediscount would have been nine or 10 months, which is approximately 21 per cent.[23] Mr Gullidge, for the Crown, submitted that the overall discount of eightmonths, which equates to approximately 18 per cent, was well within range. Heaccepted that discounts in the range of eight per cent are available for efforts atrehabilitation, however, he submitted that a discount much lower than 12 to 13 per centwas available for previous good character. By way of comparison, he referred to R vNarayan where a five per cent discount was given to a defendant who only had threeprevious convictions for dishonesty offending,16 and to R v Brown where an 11 percent discount was given to a defendant who only had one 11-year old conviction for adriving offence.17[24] Mr Gullidge further submitted that Davidson and Findlay are of limitedassistance because they involved individuals of unblemished character who had madepositive contributions to their communities.[25] In my view, altering the discount on both of these factors by a total of one ortwo months would be tinkering with the sentence.18 The discount of eight months waswell within the acceptable range, and was certainly not inconsistent with any of thecases referred to by either counsel. Mr Terekia has not been able to point to any errorin Judge Hastings' approach, instead he has simply referred to a discount that Mr Wahowould prefer to have received.15 Davidson v R [2011] NZCA 356; and R v Findlay [2007] NZCA 553.16 R v Narayan [2017] NZHC 2448.17 R v Brown [2017] NZHC 1241.18 Ripia v R [2011] NZCA 101 at [15].[26] Mr Waho has a previous conviction from 2011, which cannot yet be regardedas historic. There is evidence that he has given support to a relative with a terminalillness. There is, however, no evidence that he has contributed to his community inthe way that is usually seen in cases where the Court has given significant credit for adefendant's previous good character. Judge Hastings described Mr Waho's previouscharacter as "relatively good". In those circumstances, Judge Hastings was notrequired to give any discount for previous good character. Accordingly, any discountgiven cannot be successfully challenged on the basis of being manifestly inadequate.Genuine remorse[27] Mr Terekia submitted that a discount of three months (eight per cent) waswarranted for remorse, as Mr Waho had made a $500 reparation payment, engaged ina restorative justice process, expressed his remorse to the PAC report writer and to theCourt through a letter and the principal victim attended his sentencing.[28] Mr Terekia referred to two cases in support. In Rowels v R, a discount of eightper cent was given to a defendant who had engaged in restorative justice and made areparation payment of $1000, after pleading guilty to causing grievous bodily harm.19In McArthur v R, a defendant was given a five per cent discount for making fulladmissions and paying reparations of $10,000 after pleading guilty to child sexualoffending over a period of 17 years.20[29] Mr Gullidge submitted that reductions for remorse are case specific, andalthough reductions up to eight per cent are available in principle, such a reductionwas not warranted for Mr Waho. He referred to the victim impact statement made bythe principal victim, the fact Mr Waho denied choking the other two victims and thefact Mr Waho had never expressed remorse specifically for his offending against theother two victims.[30] I consider that the two-month discount granted by Judge Hastings was withinthe range reasonably open to him. Although the principal victim appeared in court for19 Rowels v R [2016] NZCA 208.20 McArthur v R [2013] NZCA 600.the sentencing, two weeks prior, on 19 April 2018, she had written the following in arevised victim impact statement:After his arrest he was on bail and we were not allowed to associate with eachother. I thought then he had lost everything that was important to him and Iworried that he was thinking what is there left here for me? I still wanted tobe with him at this time and I took part in the Restorative Justice process whichlead to a change in his bail conditions allowing us to associate but not to offeror threaten violence against me. He moved back to his family address just outof Gisborne and I ended up moving out there to be with him.Moving back with him was not good and he has changed a lot. I feel heshowed no remorse for his actions and was controlling. He is not the sameperson I was with before the incident.I got depressed and started having suicidal thoughts. I ended up going to myGP. I am now on anti-depressant drugs.I decided I had to leave him. I have done this and have moved overseas. Itwas difficult to leave him as I loved him and we had a history together.[31] It is difficult to ignore the detail of this statement, and its reflection upon thegenuineness of Mr Waho's remorse. By comparison, it would be easy to read too muchinto the fact that Mr Waho's partner was present in the court for sentencing. It is clearthe two had a long history together, having been in a relationship for eight years. Hersupport of Mr Waho at sentencing does not necessarily indicate a recantation of herearlier view on the genuineness of his remorse.Conclusion[32] Sentencing is not an exact science, and a mathematical comparison ofpercentages between different cases will be of little assistance to an appellate court.This is especially the case for discounts given for personal mitigating circumstances,which are necessarily specific to the facts of each particular case. In the present case,Judge Hastings carefully considered all the relevant circumstances and arrived atdiscounts that were within the range that was reasonably available.[33] There was therefore no error in the sentence imposed and the appeal must bedismissed._________________________D B Collins JSolicitors:Woodward Chrisp, Gisborne for AppellantCrown Solicitor, Gisborne for Respondent