KAUVAI v R [2017] NZCA 241

KAUVAI v R [2017] NZCA 241 [9 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA114/2017[2017] NZCA 241BETWEEN WESLEY JOHN KAUVAIAppellantAND THE QUEENRespondentHearing: 4 May 2017Court: Miller, Gilbert and Katz JJCounsel: S Thode for AppellantRMA McCoubrey for RespondentJudgment: 9 June 2017 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Following a jury trial Wesley John Kauvai was found guilty on charges ofinjuring with intent to injure and assault with intent to injure. Judge Ronaynesentenced Mr Kauvai to concurrent sentences of two years and one month'simprisonment on the injuring charge and 18 months' imprisonment on the assaultcharge.1 Mr Kauvai appeals his sentence on the basis that the Judge erred in relationto both the appropriate starting point and the remorse discount, resulting in a sentencethat is manifestly excessive.Facts[2] The Judge noted that he had heard the evidence and was satisfied that the policesummary of facts accurately reflected what happened. With reference to thatdocument, he summarised the facts of the offending as follows:[4] About 1.00 am on 18 June last year, you were at a Castor Bayaddress. Also present at the address were Matthew [Stuart] and two youngwomen. You were heavily intoxicated. At this time you began to makeunwanted advances to one of the women. She kept telling you to stop touchingher.[5] Mr [Stuart] attempted to intervene and you punched him in the faceusing a closed fist and a physical altercation occurred. That all happenedMr Kauvai because Mr [Stuart] simply asked you to leave. One of the womenintervened and you grabbed her and threw her outside. The evidence was thatshe hit her head and lost consciousness momentarily. You attempted to helpher up from the ground. Mr [Stuart] attempted to get you away from her. Youthen threw Mr [Stuart] onto the ground. You began punching and kicking himmultiple times. You then threw another woman out of the way and onto aninternal wall of the house.[6] Mr [Stuart] received a fractured jawbone. He required surgery andnow has two metal plates in his jaw. I have victim impact statements and Ihave taken those into account.Sentencing decision[3] The Judge adopted a starting point of two years and 10 months' imprisonmenton the lead offence of injuring with intent to injure. He discounted the starting pointby 10 per cent (rounded up to four months) for prior good character.2 The Judge thenallowed a further two months' discount for remorse3 and an additional three months'discount for restrictive bail terms.4 This resulted in an end sentence of two years andone month's imprisonment on the charge of injuring with intent to injure. A concurrent1 R v Kauvai [2017] NZDC 5068 at [26] [DC Decision].2 At [22].3 At [24].4 At [25].sentence of 18 months' imprisonment was imposed for the charge of assault with intentto injure.Did the Judge err in setting the starting point for the lead offending?[4] Mrs Thode submitted that the Judge erred in relying on the police summary offacts, as that document related to alleged offending against not only Mr Stuart, butalso the two women who were present. Mr Kauvai was only convicted, however, ofassaulting Mr Stuart. Mrs Thode submitted that, due to his reliance on the summaryof facts, the Judge assessed Mr Kauvai's offending as more serious than it actuallywas.[5] It is apparent from a review of the judgment as a whole, however, that the Judgeonly had regard to the facts relevant to the offending against Mr Stuart when assessingthe seriousness of Mr Kauvai's offending. In particular, the Judge stated that:[17] I identify in your case the aggravating features of the overall offendingin this way. First, extent of violence. There was serious violence involvedhere. There were multiple punches landed. You continued your attack whilethe victim was on the ground trying to protect himself. Quite simply put, youlost control completely. You also manhandled women coming to help. Thisfactor of the extent of violence I assess as present to a moderately high degree.[18] Secondly, although it is submitted by the Crown that there was adegree of premeditation the term is perhaps, with respect, inapt. But the attackwas prolonged and it was restarted. This factor is present to a low to moderateextent.[19] Thirdly, serious injury was inflicted. The victim seems stoic but thatdoes not avid this factor, it simply means that perhaps the psychologicalimpact is not as bad as it could otherwise have been. I identify this aspect asa factor present to moderately high degree.[20] Fourthly, but taking care not to double count, you quite deliberatelyattacked the victim's head, this is self-evident. This I view as a moderatefactor in this case and that is because the extent of harm is to some extentalready reflective of this fact. Nevertheless, it is part and parcel of anyassessment of your culpability.[21] Lastly for the initial punch, I note that this was essentially a surpriseattack because you were angered by justifiably being asked to leave theproperty. You then attacked the victim once he was on the ground. This is amoderate factor.[6] Mrs Thode submitted that the Judge's reference to "manhandling womencoming to help" was inappropriate and irrelevant, given that Mr Kauvai was acquittedof the charges in relation to the two female complainants. We note, however, that itwas accepted at trial that there was at least some sort of physical contact between MrKauvai and the two female complainants, such as him pushing them out of the way.Further, the Judge's reference to Mr Kauvai manhandling women was made in thecontext of his discussion of the seriousness of the violence that Mr Kauvai inflictedon Mr Stuart. In context, it illustrates the extent of his loss of control at the time ofhis assault on Mr Stuart. The key factors relied on by the Judge, however, inconcluding that the level of violence was serious, were that there had been multiplepunches, and that Mr Kauvai had continued the attack even after Mr Stuart was lyingdefenceless on the ground. Those factors readily support the Judge's conclusion thatthe level of violence was serious.[7] The Judge's reliance on the summary of facts is also said to have resulted inhim erroneously concluding that Mr Kauvai had kicked Mr Stuart, when there was noevidence to support such a conclusion.[8] The Judge did initially refer to Mr Kauvai having punched and kickedMr Stuart while he was on the ground.5 However, when the Judge subsequently setout the aggravating features of the offending he did not refer to kicking, but onlypunching.6 There is nothing to suggest that the Judge's initial brief reference to kickingcaused him to err in his overall assessment of the seriousness of the offending. As willbe seen, we consider that the starting point adopted by the Judge was available whenkicking is put to one side.[9] Mrs Thode also took issue with the fact that there was a reference toMr Kauvai being "heavily intoxicated" in the summary of facts, but no reference tothe complainants also being intoxicated. There is nothing in this point. Intoxicationwas irrelevant to Judge Ronayne's sentencing analysis.5 At [5].6 At [17]–[21].[10] Mrs Thode's next submission was that the Judge failed to consider twomitigating features of the offending:(a) that the attacks were committed in "excessive self-defence"; and(b) the injuries sustained by Mr Kauvai during the attack.[11] In R v Taueki this Court stated that excessive self-defence is a matter reducingculpability.7 In our view it was open to the Judge to conclude, however, that MrKauvai was not acting in self-defence when he assaulted Mr Stuart.8 Therefore, anyissue of "excessive" self-defence did not arise. Further, the injuries that Mr Kauvaisustained during the attack are not a mitigating feature of the offending. They are anatural consequence of his unlawful assault on Mr Stuart.[12] Finally, Mrs Thode submitted that the starting point was excessive relative toother similar cases. In setting a starting point of two years and ten months'imprisonment the Judge referred to the tariff cases of R v Taueki9 and R v Nuku,10 butrecognised that the aggravating factors in those cases are not be applied in a"mechanically formulated way".11 The Judge also referred to two cases he consideredto be analogous: Hala v R12 (a starting point of two years and ten months'imprisonment) and Knight v Police (a starting point of three years' imprisonment).13[13] Mrs Thode submitted that Hala and Knight, in addition to a further case,R v Harris (starting point of two years and six months' imprisonment),14 all suggestthat the sentence imposed was manifestly excessive. We disagree. Judge Ronayneidentified a number of aggravating factors of the offending, as set out in the quotedpassage at [5] above. Given those aggravating factors, a starting point of two yearsand ten months' imprisonment is within the available range in accordance with7 R v Taueki [2005] 3 NZLR 372 (CA) at [32(b)].8 DC Decision, above n 1, at [7].9 R v Taueki, above n 7.10 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.11 DC Decision, above n 1, at [11].12 Hala v R [2013] NZCA 237.13 Knight v Police HC Wellington CRI-2010-485-59, 22 July 2010.14 R v Harris [2008] NZCA 528.R v Taueki15 and R v Nuku.16 Relatively limited assistance can be gained fromreferences to various High Court decisions, which each turn on their own individualfacts. In any event, the starting point adopted by the Judge is not out of step with thoseadopted in similar cases. The present offending most closely aligns with that in Hala,where this Court upheld a starting point of two years and ten months' imprisonment,the same as that adopted by Judge Ronayne.17Did the Judge err in his assessment of Mr Kauvai's remorse?[14] As we have noted above, the Judge discounted the starting point by10-per-cent (rounded up to four months) for prior good character. There was nochallenge, by either party, to the level of that discount. Such a discount was clearlywell justified in the circumstances, given that Mr Kauvai, at 37 years old, has no priorconvictions.[15] Mrs Thode did challenge, however, the adequacy of the Judge's two-monthremorse discount. The Judge made the following comments in relation to Mr Kauvai'sremorse:[7] You appear to be continuing to protest your innocence to theprobation officer because you say that you merely intervened in an argumentand, after having two bottles thrown at you, which hit your head, you felt thatyou acted in self-defence. The jury rejected that and I reject that.[8] The writer of the report said that you demonstrate remorse for youroffending and that you are willing to pay reparation and damages. You haveprepared a written apology. I also have a letter from Mr [Stuart] and I havetaken that into account. The reality Mr Kauvai is that you are still protestingyour innocence and saying that this all happened because you were hit on thehead twice with a bottle or bottles.[23] As to separate and identifiable remorse I make these comments. First,you defended the charges. Secondly, you maintain, to an extent, a self-defencefiction. This is simply trying to shift blame onto the victim. I do not acceptwhat you say. Injuries you suffered were, in my view, having heard theevidence, undoubtedly a result of the victim trying to defend himself fromyour attack and not the other way round. That is consistent with what the jurythought of the matter.15 R v Taueki, above n 7.16 R v Nuku, above n 10.17 Hala v R, above n 12, at [8].[24] Thirdly, in relation to this issue of remorse, you have prepared a letterof apology and you have told the probation officer that you apologised inperson. No doubt however in an endeavour to avoid any suggestion that youhad actually accepted responsibility, in evidence you denied apologising foranything except the situation. There is a flavour of manipulation in yourbehaviour in this regard. I do not think your remorse counts for a great deal.I give you two months' discount for your expression of remorse.[16] Mrs Thode submitted that Mr Kauvai genuinely believed (and continues tobelieve) that he was acting in self-defence. It would therefore be disingenuous of himto change his position on that issue after trial. Nevertheless, she submitted, his genuineremorse is evidenced by his apology to Mr Stuart, the letter of support that Mr Stuartwrote for him, his willingness to attend a restorative justice conference, and the pre-sentence report.[17] The remorse discount afforded by the Judge was two months, which wasalmost a six-per-cent discount from the starting point. We reject the submission thatsuch a discount was insufficient in the circumstances. Indeed it could be seen as beingon the generous side.Is the concurrent sentence on the assault with intent charge manifestly excessive?[18] In her written submissions, Mrs Thode submitted that:On the lesser charge of assault with intent, the appellant was also sentenced totwo years' and one month imprisonment.Counsel submits that in light of Tamihana v R18 that sentence – on its own, ismanifestly excessive and fails to take into account the principles of totality.[19] Mr Kauvai was not sentenced to two years and one month's imprisonment onthe assault charge, but 18 months' imprisonment, as Mrs Thode now accepts. Thereis no breach of the totality principle. Mrs Thode nevertheless submitted that thesentence on the lesser charge was manifestly excessive on a standalone basis. It shouldtherefore be reduced, regardless of the fact that any reduction will not impact on theoverall length of the sentence.18 Tamihana v R [2015] NZCA 169.[20] The injuring with the intent to injure charge relates to the initial part of theincident, when Mr Kauvai punched Mr Stuart in the head repeatedly. This resulted inprofuse bleeding from Mr Stuart's mouth and a serious fracture to his jaw, in twoplaces, requiring emergency surgery and the insertion of two metal plates.[21] The assault with intent to injure charge relates to the second part of the incident,when Mr Kauvai continued to punch Mr Stuart while he was lying on the ground. Theevidence of one of the two women present was that Mr Kauvai was crouched over MrStuart at the time, punching him around his face and shoulders or "just anywhere hecould hit him" and that Mr Stuart was "just trying to cover his face because he'd beensmacked so many times". The witness described "blood pouring" from Mr Stuart'sface and mouth.[22] Mr Stuart's degree of vulnerability at the time was high. He was suffering froma severely broken jaw, was bleeding profusely, and was lying prone on the ground witha significantly larger and stronger man crouching over him and punching himrepeatedly in the head and shoulder region. He was trying desperately to protect hisseverely injured face with his arms. We are not persuaded that a sentence of 18months' imprisonment was manifestly excessive in such circumstances.The first strike warning[23] Finally, Mrs Thode requested that we quash the first strike warning given bythe Judge, as injuring with intent to injure does not qualify as a serious violent offence(as the Crown accepted). We decline to do so, as pursuant to s 180 of the CriminalProcedure Act 2011 the jurisdiction to quash a first strike warning made in error lieswith the sentencing Judge.Result[24] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent