IN THE Court of appeal OF new Zealand
	
CA672/2014
[2015] NZCA 169

BETWEEN	
AARON STEPHEN TAMIHANA
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
23 April 2015	

Court:	
White, Keane and Wylie JJ	

Counsel:	
A J D Bamford for Appellant
B D Tantrum and G E Hughes for Respondent	

Judgment:	
14 May 2015 at 11:00 am	

JUDGMENT OF THE COURT

A	The application for an extension of time to appeal is granted.
B	The appeal against sentence in respect of the offence of assault with intent to injure is allowed.
C	The sentence imposed by the District Court for the offence of assault with intent to injure is set aside.
D	The appeal against sentence in respect of the offence of driving whilst disqualified (third or subsequent offence) is dismissed.
E	A sentence of 13 months’ imprisonment for the offence of assault with intent to injure is imposed.  This sentence is to be served cumulatively with the sentence of three months’ imprisonment for the offence of driving whilst disqualified (third or subsequent offence).  The total end sentence for all offending is 16 months’ imprisonment.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)
[1]	On 17 June 2014 the appellant, Mr Tamihana, pleaded guilty to one charge of assault with intent to injure, under s 193 of the Crimes Act 1961.  He was sentenced to 22 months’ imprisonment by Judge Zohrab in the Nelson District Court on 29 September 2014.  At the same time, he was sentenced to three months’ imprisonment for driving while disqualified (third or subsequent offence) contrary to s 32(4) of the Land Transport Act 1998.  Judge Zohrab directed that both sentences should be served on a cumulative basis, resulting in an end sentence of 25 months’ imprisonment.
[2]	Mr Tamihana appeals on the ground that the sentence imposed is manifestly excessive.
[3]	The appeal was brought out of time.  Mr Tamihana sought an extension of time to appeal the sentence imposed.  His previous counsel became unavailable and he had to instruct new counsel.  The application was not opposed by the Crown and we grant it accordingly.
Factual background
[4]	Mr Tamihana and an associate, a Mr Guerin, were outside a bar in Nelson in the early hours of the morning of 24 October 2013.  Mr Guerin became involved in an argument with the victim.  He punched the victim in the face with a closed fist.  The victim fell to the ground.  Mr Guerin kicked him while he was on the ground.  Mr Tamihana then ran up to the victim and kicked him once in the head.  As a result of the assault, the victim suffered bruising and grazes to his face.  
[5]	Mr Tamihana was spoken to by the police.  He told the police that the victim had got what he deserved.
[6]	Following their first and second appearances, both Mr Guerin and Mr Tamihana asked for sentence indications.
[7]	Mr Guerin was given a sentence indication by Judge Zohrab on 13 January 2014.  The Judge noted that Mr Guerin had struck the victim once, and then followed up that strike by a kick, when the victim was defenceless on the ground.  He noted that the kick was not to the head.  He considered that 12 months’ imprisonment would be the appropriate starting point.  He indicated that there would be no uplift, because Mr Guerin had only a limited criminal history.  He advised that he would allow a discount of two months for a guilty plea. The Judge noted that the issue would then become whether or not home detention, or community detention coupled with community work and supervision, would be the appropriate sentence.
[8]	Mr Guerin promptly accepted the sentence indication and entered a guilty plea.  He was sentenced by Judge Zohrab on 15 April 2014 to six months’ community detention, one year’s intensive supervision and 180 hours’ community work.
[9]	Mr Tamihana was also given a sentence indication by Judge Zohrab on 13 January 2014. The Judge noted that Mr Tamihana had a number of convictions for offences involving violence, assault, disorderly behaviour and the like.  He observed that Mr Tamihana had previously been sentenced to imprisonment.  The Judge indicated that he would adopt a starting point of 18 months’ imprisonment and then uplift that starting point by six months to allow for Mr Tamihana’s prior criminal history.  He indicated that a discount would then be allowed for any guilty plea and that the discount would take the sentence to “18 or say 19 months”.  The Judge did say that, given the nature of the offending and Mr Tamihana’s criminal history, imprisonment would be the appropriate response.
[10]	Mr Tamihana did not plead guilty immediately.  Rather he pleaded guilty shortly before trial.  He was sentenced on 29 September 2014 by Judge Zohrab.  He was also sentenced at the same time on the driving charge.  In respect of the assault offence, the Judge adopted the starting point and uplift that he had earlier indicated in the sentence indication.  However given the late plea, he allowed a lesser discount for the guilty plea than he had previously advised.  In effect, the Judge gave Mr Tamihana a two month discount for the guilty plea.  As already noted Judge Zohrab imposed an end sentence of 22 months’ imprisonment for the assault offence.  The Judge then imposed an additional sentence of three months’ imprisonment for the offence of driving whilst disqualified.  
Submissions
[11]	Mr Bamford for Mr Tamihana submitted that the sentence for the assault with intent to injure offence was manifestly excessive, given the 12 month starting point adopted for Mr Guerin and when compared to similar cases involving similar offending.  He further submitted that the six month uplift for prior offending was disproportionately excessive and wrong in principle.  He did not challenge the two month discount for the guilty plea.  Nor did he challenge the three month sentence imposed cumulatively for the driving offence.
[12]	Mr Tantrum for the Crown submitted that the end sentence was not manifestly excessive, having regard to the totality of the offending.  He noted that the assault with intent to injure offending involved violence, that Mr Guerin and Mr Tamihana acted in concert, that the victim was vulnerable and that the kick Mr Tamihana inflicted was to the head area.  He submitted that the starting point adopted was within the available range.  He did acknowledge that the uplift of six months was stern.  He suggested that it could nevertheless be justified given Mr Tamihana’s criminal history.  He further submitted that the sentence imposed for the driving offence was lenient and that if an error had been made in the uplift for the previous convictions, it was corrected by the approach the Judge took to the driving conviction.
Analysis
[13]	The Crown prosecution notice in relation to the assault charge was dated 20 January 2014.  It follows that the Criminal Procedure Act 2011 applies.  Section 250(2) of that Act requires that this Court allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should have been imposed.  In any other case, the Court is required to dismiss the appeal.  
[14]	This Court has recently confirmed that s 250(2) was not intended to change the approach previously taken by the courts under equivalent provisions in the Summary Proceedings Act 1957.  An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.  Unless there is a material error in the end sentence, this Court will not intervene.  There will be a material error if, for example, the end sentence is manifestly excessive or wrong in principle.  In general, the focus is on whether the end sentence is within the available range, rather than the process by which it was reached.  
[15]	Against these principles, we first consider the 18 months’ imprisonment starting point adopted by Judge Zohrab in sentencing Mr Tamihana for the assault.  
[16]	There is no guideline judgment for the offence of assault with intent to injure under s 193 of the Crimes Act.  There are however guideline decisions of this Court concerning similar offending under s 188(2) (wounding with intent), 189(2) (injuring with intent) and 191(2) (aggravated wounding or injury) of the Crimes Act.  Offending under any of these sections involves the same mental element as does offending under s 193 – namely, an intent to injure.  As a result the principles discussed are helpful in sentencing for offending contrary to s 193, notwithstanding that the decisions focus on different offences, with higher maximum sentences.
[17]	The first guideline decision is R v Harris.  This Court there observed that in cases where there is a broad correspondence between the injury resulting from the offending and what was intended, sentencing can proceed primarily by reference to the seriousness of the injury, as reflected in the three bands discussed in that case. Beyond the extent of the injury, the appropriate starting point will depend upon the effect of any additional aggravating and mitigating features.  
[18]	Harris has been overtaken by the more recent decision of this Court in R v Nuku.  The Court there discussed bands into which offending involving assaults falls.  It commented that sentencing for such offending should not focus solely on the seriousness of the resulting injury, and that the aggravating and mitigating factors of the offending should be built into the band category decision rather than later in the sentencing process as suggested in Harris.  The Court in Nuku recognised three bands applicable to offending under ss 189(2), 188(2) and 191(2) when the offending involves intent to injure.  Band one applies where there are few aggravating features, the level of violence is relatively low or the sentencing Judge considers that the offender’s culpability is at a level that might have been better reflected in a less serious charge.  In such cases, the Court acknowledged that a sentence of less than imprisonment could be appropriate.  In band two cases, a starting point of up to three years’ imprisonment will be appropriate, where three or fewer aggravating features are present.  Band three offending will require a starting point of two years and up and it will apply where three or more aggravating features are present, and the combination of those features is particularly serious.  
[19]	In our view Mr Tamihana’s offending was comparable to band two in Nuku.  There were three aggravating features.  First, Mr Tamihana’s kick was to the victim’s head.  Secondly, Mr Tamihana acted in concert with Guerin.  The victim was faced with two attackers.  Thirdly, the victim was vulnerable when Mr Tamihana kicked him.  He was lying defenceless on the ground, having been punched by Mr Guerin.  We do not, however, consider that the offending was at or towards the higher end of such offending.  There was no extreme violence used.  The kick to the head was a one-off attack.  There was no premeditation and no serious injury resulted.  Weapons were not involved.  There is nothing to suggest that the offending was to facilitate the commission of any other crime.  
[20]	To assist in our analysis we have considered sentences imposed for broadly similar offending by the High Court:  
(a)	In Ransfield v Police, the appellant successfully appealed his sentence for injuring with intent to injure.  He had grabbed his son by the throat and pulled him off a horse he was riding.  Once his son was on the ground the appellant kicked him in the right side more than once.  He was wearing steel-capped boots at the time.  He also pushed his son against the side of a car that was driving slowly by.  The appellant then dragged his son back along the road to their property.  He punched him twice in the back of the head with a closed fist while doing so.  The District Court adopted a starting point of two years, taking the view that the offending fell within band two of Nuku.  On appeal, Moore J upheld the band two classification, but considered that a starting point of 18 months’ imprisonment was more appropriate.  
(b)	In Kojeunikov v Police, the offending involved a verbal exchange with the victim, followed by a punch to the head, which knocked the victim to the ground.  The victim was then kicked while he was on the ground.  Woodhouse J on appeal adopted a starting point of 12 months, taking into account the attack to the head, and the fact that the kicking took place once the victim was on the ground.  
(c)	In Kohu v Police, the lead offence of injuring with intent to injure was against the appellant’s de facto mother-in-law.  The appellant punched her in the eye causing her to fall onto her bed.  He then shut the bedroom door and punched the victim again to the nose and to the mouth.  Simon France J considered a starting point of 12 months’ imprisonment was within range.
[21]	In Tiplady-Koroheke v R, in this Court, the appellant faced two charges of injuring with intent to injure and one charge of common assault for his involvement in an unprovoked street fight.  The appellant assaulted three separate victims.  The aggravating features were the use of punches and kicks, attacks to the head, the fact that the attacks continued after the victims were on the ground and the fact that one of the attacks was on a victim who was retreating.  This Court upheld a starting point of two years’ imprisonment.
[22]	In our view, Mr Tamihana’s offending is similar to that considered by Woodhouse J in Kojeunikov , albeit that there was only one attacker in that case.  It is less serious than the offending in Ransfield, Kohu, or Tiplady-Koroheke.  This suggests that the 18 month starting point adopted by Judge Zohrab was too high.
[23]	The starting point adopted for Mr Guerin also falls to be considered.  It is a principle of sentencing and also generally desirable that there should be consistency of sentences between similar offenders committing similar offences in similar circumstances.  Fixing the appropriate starting point is a key mechanism for seeking consistency in sentencing.
[24]	In the present case, we agree with Mr Bamford that Mr Guerin’s and Mr Tamihana’s culpability for the offending here in issue was broadly similar.  Mr Guerin punched the victim to the face, with a closed fist and with sufficient force to knock the victim to the ground.  Mr Guerin then kicked the victim while he was defenceless on the ground, albeit not to the head area.  Mr Tamihana kicked the victim once to the head area, while he was lying on the ground.  The assaults by both involved attacks to the head, in one case by a punch, and the other case by a kick.  On an objective analysis, it cannot be said that Mr Tamihana’s offending was worse than Mr Guerin’s offending. 
[25]	We consider the adoption of a starting point of 12 months for Mr Guerin and a higher starting point of 18 months for Mr Tamihana, was wrong in principle.  The starting point for Mr Tamihana was too high when consideration is given to sentences imposed for similar offending.  Further a reasonably minded independent observer considering the respective starting points adopted for Mr Guerin and Mr Tamihana, and aware of all the circumstances of the offending and of the two offenders, would think that something had gone wrong with the administration of justice.
[26]	We also consider that the uplift to the starting point of six months, representing 33 percent of the 18 months starting point adopted by Judge Zohrab, was excessive.  
[27]	Previous convictions can be relevant, particularly where the previous convictions indicate a tendency to commit the type of offence for which the offender is being sentenced.  Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending.  Similarly, previous convictions may bear on the issue of character.  Nevertheless the Court must be careful to see that a sentence for a person who has been previously convicted is not increased merely by reason of those previous convictions.  A prisoner should not be sentenced again for an offence which he has already expiated.
[28]	In the circumstances of this case, we consider the six month uplift to a starting point of 18 months was disproportionate.  It had the effect of re-punishing Mr Tamihana for earlier offending.  That is wrong in principle.  An uplift of three months would have been justified, primarily as a deterrent given Mr Tamihana’s proclivity for this type of offending, and to send a message to Mr Tamihana and others in similar circumstances.
[29]	Both Mr Bamford and Mr Tantrum accepted that the discount of two months for the guilty plea was appropriate.  That was plainly the case.
[30]	In relation to the sentence of three months for the offence of driving while disqualified (third or subsequent offence), as we have noted above, there was no challenge to this aspect of the sentence on Mr Tamihana’s behalf.  Nor was there any challenge to the fact that this sentence was imposed on a cumulative basis.  Mr Tantrum did, however, suggest that this sentence was lenient.  
[31]	We accept that Mr Tamihana has a number of prior driving related convictions.  They range from 2005 through to 2013.  Significant sentences including imprisonment for up to nine months, had been imposed in the past, although for a number of driving-related offences committed at the same time, and not simply for the offence of driving while disqualified.  Nevertheless, the offending at issue in respect of which he was being sentenced by Judge Zohrab was unremarkable.  It seems from the Judge’s sentencing notes that there was no associated bad driving.  Presumably Mr Tamihana was randomly stopped by the police.  It seems that he gave a false name when he was stopped.  We do not however have a summary of facts in relation to this offending. 
[32]	Judge Zohrab was in the best position to assess the seriousness of this particular offending.  We are not persuaded that there was any error in principle made by Judge Zohrab in sentencing on the driving offence.  
[33]	In our view the starting point in sentencing Mr Tamihana on the assault charge should have been a sentence of 12 months’ imprisonment.  This should have been uplifted by three months to allow for his previous convictions and in an attempt to deter similar offending by him and others in the future.  The resulting sentence of 15 months’ imprisonment should then be discounted by two months to recognise and give credit for the guilty plea.  The sentence imposed for the driving offence should be added to the resulting 13 month sentence to give a total end sentence of 16 months’ imprisonment.
Result
[34]	The application for an extension of time to appeal is granted.
[35]	The appeal is allowed in respect of the sentence imposed for the offence of assault with intent to injure and the sentence of 22 months’ imprisonment imposed by Judge Zohrab in respect of this offending is set aside.
[36]	The appeal in respect of the sentence of three months’ imprisonment for driving whilst disqualified (third or subsequent offence) is upheld.  
[37]	A sentence of imprisonment of 13 months’ imprisonment in respect of the offence of assault with intent to injure is imposed.  It is to be served cumulatively with the sentence of three months’ imprisonment, imposed for the offence of driving while disqualified (third or subsequent offence).  

Bamford Law, Nelson for Appellant
Crown Solicitor, Auckland for Respondent