VEGA v POLICE [2023] NZHC 2476

VEGA v POLICE [2023] NZHC 2476 [5 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-304[2023] NZHC 2476BETWEEN YONIER CUEVAS VEGAAppellantAND NEW ZEALAND POLICERespondentHearing: 4 September 2023Appearances: H J Croucher for AppellantS R Bicknell for RespondentJudgment: 5 September 2023JUDGMENT OF PETERS JThis judgment was delivered by Justice Peterson 5 September 2023 at 3.30 pmRegistrar/Deputy RegistrarDate: ...................................Solicitors: Ministry of Justice – Public Defence Service, ManukauKayes Fletcher Walker Ltd, Crown Solicitor, ManukauIntroduction[1] The appellant appeals against his sentence of 11 months' home detentionimposed by Judge S Bonnar KC on 23 May 2023.1[2] The appellant contends the sentence is manifestly excessive. In particular,counsel for the appellant, Ms Croucher, submits the Judge's discount for theappellant's guilty pleas was insufficient and ought to have been 25 per cent, and thatthe Judge also erred in failing to grant discounts for the appellant's remorse and forhis personal circumstances.[3] I must allow the appeal if satisfied there is an error in the sentence imposedand a different sentence should be imposed.2 I must dismiss the appeal in any othercase. The Court does not simply substitute its own view for that of the originalsentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive orwrong in principle.4 The focus is on the end sentence, rather than the process by whichthe sentence was reached.5Offending[4] The appellant was for sentence on four charges.[5] The first was assault on a person in a family relationship, committed on 4 April2021. The appellant first appeared on this charge on 5 April 2021 and was remandedon bail.[6] The second charge was for driving whilst disqualified, committed inJune 2021. This offending came to light because the appellant was exceeding theposted speed limit. At the time, the appellant was subject to an alcohol interlock order,with which he was non-compliant.1 R v Vega [2023] NZDC 10342.2 Criminal Procedure Act 2011, s 250(2).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].4 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R , above n 3, at [30]—[35].5 Tutakangahau v R , above n 3, at [36].[7] The third and fourth charges, assault with intent to injure and strangulation,were committed on 20 August 2021. The appellant first appeared on this offending on21 August 2021. Initially the appellant was charged with injuring with intent to injure,but that charge was subsequently reduced to assault with intent to injure.[8] All of the appellant's violence offending was committed against the samewoman, the appellant's then partner.[9] In the first instance, the appellant pleaded not guilty to all of his offending,with the possible exception of the driving charge. However, at a case review hearingon 21 December 2021, the appellant intimated that he would change his pleas to guilty.A restorative justice conference was held on 22 April 2022 and the appellant enteredguilty pleas on 27 May 2022.[10] The delay to sentence — effectively a year — occurred because the appellantwas undertaking rehabilitation (drug and alcohol) courses.Sentencing[11] The Judge took the strangulation offence as the lead offending, adopting astarting point of three and a half years' imprisonment for that and, as I understand it,the assault with intent to injure charge.[12] The Judge increased this by:(a) six months to take account of the April 2021 assault; and(b) a further two months' imprisonment to take account of the fact that theAugust 2021 offending was committed whilst the appellant was on bailfor the April 2021 offending.[13] This brought the final starting point to four years and two months, or50 months', imprisonment. There was no uplift for the driving offence, nor theappellant's prior criminal record. This records historic, and what appears to berelatively modest, violence offending, which presumably explains the absence of anyreference to it in the sentencing note.[14] The Judge reduced the sentence by:(a) 10 months (effectively 20 per cent) for the appellant's guilty pleas;(b) a further 10 months for the appellant's remorse and rehabilitativeefforts; and(c) six months for time spent on electronically monitored bail.[15] This brought the end sentence to 24 months' imprisonment. The Judge wassatisfied that a sentence of home detention could be imposed.[16] Ultimately, the Judge imposed a sentence of 11 months' home detention.Whilst 24 months' imprisonment might usually equate to 12 months' home detention,the Judge gave a one month reduction to account for time spent in custody.[17] The Judge imposed concurrent sentences of 11 months' home detention on theviolence offending. He disqualified the appellant from driving for six months. Healso cancelled an existing sentence of community work, of which 106 hours remained,and with which the appellant was also in a state of non-compliance.Submissions on appeal[18] Ms Croucher submits that the Judge ought to have granted the appellant themaximum 25 per cent discount for his guilty pleas; an additional 10 per cent discountfor remorse; and an additional 10 per cent discount for personal circumstances.6[19] On this basis the appellant contends the end sentence ought to have been six toseven months' home detention.6 There is no suggestion in the Judge's sentencing note that any discount was sought for personalcircumstances. However, Ms Croucher advises that it was addressed in her written submissionson sentence.[20] As to the increased discount for the appellant's guilty pleas, Ms Croucher'ssubmission is that the principal delay between the offending in August 2021 andintimating guilty pleas in December 2021 was the negotiation which led to the injuringwith intent to injure charge becoming one of assault with intent to injure.[21] As to remorse, I have already referred to the restorative justice conference thatwas held on 22 April 2022. Ms Croucher submits the appellant's expressions ofremorse and regret at that conference were accepted to be genuine, and likewise in the(first) PAC report of 6 April 2023. For myself, I would not have characterised thevictim's reported statements as wholly accepting of the appellant's expressions ofremorse. The victim said that she accepted the apology "to some extent".[22] Ms Croucher referred me to ss 9(2)(f) and 10 of the Sentencing Act 2002.Section 9(2)(f) provides:9 Aggravating and mitigating factors(2) In sentencing or otherwise dealing with an offender the court musttake into account the following mitigating factors to the extent thatthey are applicable in the case:(f) any remorse shown by the offender, or anything as describedin section 10:[23] Section 10 requires the Court to take into account any measure to makeamends.[24] Turning to the proposed discount for personal circumstances, this is a referenceto information in the PAC report regarding the appellant's early years in Cuba and thathe spent a period of time of living on the streets, this making the appellanthyper-vigilant and prone to adverse reactions if woken unexpectedly. Apparently, thevictim transgressed in this respect, and it is said that this caused him to react in aviolent manner.[25] Counsel for the respondent, Ms Bicknell, opposes any reduction in sentence.She submits that the Judge's starting point for the lead offending was lenient given thegravity of the appellant's actions, and that the Judge's discounts were within theavailable range.Discussion[26] In arriving at the discount of 20 per cent for the appellant's guilty pleas, theJudge said that he did not consider the pleas were entered at the earliest opportunity.In that, the Judge was plainly correct. I take Ms Croucher's point on the negotiationsleading to the reduced charge, but that did not affect the appellant's ability to plead tothe April 2021 offending, or to the charge of strangulation at a much earlier date. I amnot persuaded there was any error on the Judge's part in this regard.[27] As to the proposed discount for remorse, the Judge expressly acknowledgedthe appellant's extensive efforts to rehabilitate and that he was remorseful. The Judgesaid that the 20 per cent discount was to take account of both factors. Accepting this,Ms Croucher submitted the discount should have been greater.[28] Again, I am not persuaded that the 20 per cent reduction fell short of what wasrequired in any way. Reductions for such factors are constrained if the offending isserious, as this was. It is worth nothing that the victim lost consciousness and lostcontrol of her bladder during the strangulation. This is quite aside from the otherconsequences of the assault, which saw her taken to hospital by ambulance. In thosecircumstances, a discount of 20 per cent can only be considered generous.[29] That leaves the proposed discount for the self-reported personal circumstances.Taking at face value what the appellant reported in this respect, he has lived inNew Zealand since he was 20 years old. This offending occurred when he was in hislate-30s. He is well qualified, and runs both a business and a household. His offendingwas the result of intoxication, whether from alcohol, drugs, or both. As Ms Bicknellsubmits, the required causal connection between personal disadvantage and offendingis not established. In those circumstances no further reduction is permissible, let alonerequired.[30] Accordingly, and leaving aside Ms Bicknell's submissions that a more severestarting point might well have been justified under Shramka v R, the end sentence wasnot manifestly excessive.7[31] Lastly, I thank both counsel for their excellent submissions. The appellantshould understand that Ms Croucher made every possible submission on his behalf.However, the Judge treated the appellant generously, both in terms of the starting pointadopted and the discounts awarded. Other Judges would have been less so.Result[32] I dismiss this appeal.Peters J7 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.