IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CRI-2019-441-42
[2020] NZHC 62	

BETWEEN	ROBERT JOHN JENNER
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	3 February 2020	
Counsel:	L R H Grant for Appellant L M Marshall for Crown	
Judgment:	3 February 2020	

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]	On 29 November 2019, Mr Jenner was sentenced by Judge Sygrove in the Napier District Court to three years’ imprisonment on the charge of strangulation,1 and 18 months’ imprisonment on the charge of assault with intent to injure and breach of a protection order.2

[2]	Mr Jenner appeals the sentence on the grounds that the Judge erred in adopting too high a starting point for the sentence, imposed a disproportionate uplift for the appellant’s previous conviction history, and that he did not grant a discount for time spent on electronically monitored bail.

1	Crimes Act 1961, s 189A(b).
2	Crimes Act 1961, ss 193; Domestic Violence Act 1995, ss 19(1)(a), 49(1)(b) and 49(3).

JENNER v NEW ZEALAND POLICE [2020] NZHC 62 [3 February 2020]

[3]	The Police oppose the appeal. They submit that the end sentence of three years’ imprisonment in this case cannot be considered manifestly excessive, and that the Judge did not err in imposing that sentence.

Factual background

[4]	On 18 February 2019, the appellant and complainant were residing at their home address in Napier. They have been in a relationship for the past eight or nine years, and the appellant has committed previous domestic violence offences against the complainant, although Ms Grant, for the appellant, draws my attention to the fact that the prior offences are of a lesser nature than the offences involved in this case.

[5]	In the morning of the 18th, an argument between the two had occurred concerning the appellant borrowing the complainant’s car to go and buy cigarettes. The argument continued for a period of time, and then the complainant went into the bedroom to gather clothes and other personal belongings in order to leave the house. The appellant followed the complainant into the bedroom and began to assault her.

[6]	The appellant firstly grabbed the complainant by the legs, pulling them out from under her, causing her to fall on the floor on her back. The appellant then grabbed the complainant’s legs again and slammed her onto the floor on the back of her neck. He then ‘spear-tackled’ her to the ground, causing her to land on the ground on her neck again.

[7]	The appellant started to stomp on the complainant’s ribs and chest as she lay on her back on the floor. The complainant yelled at the appellant to stop. The appellant yelled back “I don’t fucken care, I just want to smash your fucken face in”. The complainant described the stomping as “full force” and “10/10” in terms of strength. While the appellant was stomping on the complainant, he was also punching her head and body multiple times.

[8]	The complainant was able to get up off the floor and make her way to the bedroom window. As she put her leg over the bedroom window, the appellant grabbed her by the arm, turned her around and put his arm around her neck in a choker style hold. He then threw her to the floor again, placing both hands around her neck and

strangled her until she lost consciousness. The complainant described everything going “white and starry” and said that she knew that she was being choked because the appellant had done it before.

[9]	When the complainant regained consciousness, the appellant was still in the bedroom with her. She pulled herself up off the floor, and the appellant punched her several more times to her head, stopping only when he heard a vehicle coming. The complainant was able to get out of the house and was initially chased by the appellant until he stopped when a passer-by intervened, allowing the complainant to escape.

[10]	The complainant was hospitalised because of the assault. She had received bruising to various parts of her body and a raspy voice from strangulation.

[11]	The appellant has previous convictions relating to the complainant. These included two charges of male assaults female and a breach of a family violence protection order in 2017, and a charge of male assaults female in 2015 and 2016.3

[12]	When questioned by Police, the appellant admitted that he had been arguing with the complainant but denied any violence or threats of violence towards the complainant.4

District Court decisions and sentencing

[13]	The appellant first came before the Court on these charges on 14 June 2019, when Judge Rea issued a sentencing indication. The Judge considered the combination of the three offences warranted a starting point of three years three months’ imprisonment.5 The Judge recommended an uplift of four months to reflect past convictions, as well as reductions for time spent in custody and EM bail, leading to an end sentence in the vicinity of two years nine months’ imprisonment.6

3	Police v Jenner [2019] NZDC 24122 at [5].
4	At [9].
5	Police v Jenner DC Napier CRI-2019-041-000447, 14 June 2019 at [12].
6	At [12]-[13].

[14]	As the appellant did not accept the sentencing indication, the case went to trial and was heard before Judge Sygrove on 10 September 2019. The Judge found the appellant guilty of all three charges and remanded him on EM bail.7

[15]	The appellant was sentenced by Judge Sygrove on 29 November 2019. After outlining the facts, charges and the appellant’s previous convictions, the Judge discussed the Provision of Advice to Courts Report. The Judge noted that this report recommended either home detention or imprisonment, and that it indicated that the appellant expressed “zero” remorse. The appellant denied his offending, alleging the complainant had drug and mental health issues, implying that because of this, what occurred on 18 February 2019 was not true.8

[16]	In submissions before me, Ms Grant has emphasised the fact that at the sentencing process, she was able to produce to the sentencing Judge correspondence from the appellant indicating that he did have some remorse.

[17]	The Judge then considered the submissions by counsel for the appellant which indicated that the appellant had made a significant effort to improve himself, such as attending a number of non-violence, rehabilitation and future employment workshops. The Judge considered these efforts towards rehabilitation to be considerable and extensive, warranting a reduction of the end sentence by 10 months.9

[18]	The Judge then considered the aggravating factors, particularly those analogous to Ackland v Police,10 a domestic violence strangulation case cited by counsel on both sides. Aggravating factors included strangulation in the context of a domestic relationship, the vulnerability of the victim, threats made by the appellant during the assault, the loss of consciousness of the complainant, the other violence that occurred during the assault, and the breach of the protection order.11

7	Police v Jenner [2019] NZDC 23352.
8	Above n 3, at [6].
9	At [11].
10	Ackland v Police [2019] NZHC 312.
11	At [8].

[19]	Given these aggravating factors, the Judge considered that the starting point for the strangulation alone should be three years’ imprisonment. The Judge noted that on the basis of applicable authorities and statutory factors in this case, a sentence of imprisonment was required, and the purposes for which the sentence was being imposed could not be achieved by any less restrictive sentence or combination of sentences.12

[20]	Given the number, seriousness, date and relevance of the appellant’s previous convictions as well as the other current charges of assault with intent to injure and breach of protection order, and that these related to the same victim, the Judge considered an uplift of 10 months was appropriate.13

[21]	Therefore, an uplifted sentence of three years 10 months, which was reduced due to the mitigating factor of rehabilitation by 10 months, led the Judge to issue an end sentence of three years’ imprisonment.14 The Judge also sentenced the appellant to 18 months’ imprisonment for the other two current charges.15 The Judge did not indicate whether these sentences should run concurrently. The Court is therefore obliged to proceed on the basis that the more severe of the two sentencing options mainly cumulative sentences, was intended by the Judge.

Standard on appeal

[22]	This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.16 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.17

12	At [9].
13	Above n 3, at [10].
14	At [11].
15	At [11].
16	Tutakangahau v R [2014] NZCA 279.
17	Ripia v R [2011] NZCA 101 at [15].

Submissions on appeal – Mr Jenner

[23]	The principal submission by Ms Grant, counsel for the appellant, is that the Judge imposed a manifestly excessive sentence on the appellant. That submission consists of three grounds:

(a)	firstly, that the District Court Judge erred in adopting too high a starting point for the sentence;

(b)	secondly, that the District Court Judge erred in imposing a disproportionate uplift for the appellant’s previous conviction history; and

(c)	thirdly, that the District Court Judge erred in not granting a discount for time spent on EM bail.

[24]	In her submissions, counsel for the appellant, has dealt with grounds one and two together. The crux of her argument is that the Judge has erred in not properly considering the totality of the offending when imposing his sentence. Counsel submits that because the other offences committed in the course of the strangulation (the assault with intent to injure and breach of the protection order) were taken into account by the Judge in determining the starting point to the sentence of imprisonment of three years,18 to include these other offences as aggravating factors,19 as well as imposing an additional separate sentence of 18 months,20 is effectively ‘double counting’. Counsel submit that this approach disregards the totality principle and has led to a sentence that is manifestly excessive.

[25]	With regard to the third ground, counsel submitted that the Judge erred in failing to take into account the appellant’s time spent on EM bail when considering the sentence of imprisonment. Counsel referred to s 9(3A) of the Sentencing Act 2002, which stipulates that:21

18	Above n 3, at [9].
19	At [10].
20	At [11].
21	Sentencing Act 2002, s 9(3A).

In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—

(a)	the period of time that the offender spent on bail with an EM condition; and

(b)	the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

(c)	the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d)	any other relevant matter.

[26]	The appellant was granted EM bail on 15 May 2019. This was on a 24-hour curfew. Counsel submitted that because the appellant was on EM bail for six months, a discount of three months was applicable. Counsel cited the case of Rangi v R, where the Court of Appeal recognised that a “modest discount” for EM bail on a sentence of imprisonment was appropriate, although it was noted that there is no rule as to how much discount should be given.22

[27]	Counsel was unable to point to any appellate authority which supported a proposition that effectively a 50 per cent discount was required and I am unaware of any caselaw that would support such a conclusion.

[28]	Counsel for the appellant ultimately submitted that the end sentence should have been two years’ imprisonment. This was calculated by a starting point of three years’ imprisonment, with a 20 per cent discount for the appellant’s significant efforts at rehabilitation, a three-month discount for time spent on EM bail and a two-month discount for the appellant’s personal circumstances and remorse. Counsel also submitted that the appellant should have been granted a sentence of home detention rather than imprisonment.

Submissions on appeal – Police

[29]	Counsel for the Police submitted that the sentence of three years’ imprisonment imposed could not be considered manifestly excessive and that the appeal should be dismissed. Counsel submitted that in the sentencing indication hearing, Judge Rea

22	Rangi v R [2014] NZCA 524 at [10].

had taken a similar approach by adopting a starting point of three years three months’ imprisonment for all offending, imposing an uplift of four months for the appellant’s personal history and then indicated an end sentence of around two years nine months to take into account mitigating factors and the possibility of a guilty plea (which the appellant did not ultimately make).

[30]	Counsel referred to a number of aggravating factors in the circumstances that were analogous to Ackland v Police, which addressed the approach for sentencing strangulation offences and was submitted by counsel to be “remarkably similar” offending with a starting point of three years three months. The analogous aggravating features in this case included strangulation in the context of a domestic relationship, the vulnerability of the victim, threats made by the appellant during the assault, the loss of consciousness of the complainant, and other violence that occurred during the assault, and the breach of the protection order.

[31]	Counsel submitted that while care had to be taken to avoid ‘double-dipping’ of the aggravating features, as long as the total sentence imposed reflected the overall criminality of the offending, there could be no criticism of the methodology used to arrive at the end sentence. In this case, counsel submitted that no issue could be taken with the six-month increase to the starting point adopted by the Judge to reflect the associated offending, given the severity of that associated offending.

[32]	Counsel submitted that although it was “unfortunate” that the Judge did not make an express reference to a discount on the sentence due to time spent on EM bail, the overall adjustments to the starting point, as well as the end sentence, were appropriate.

[33]	In the submissions to the District Court on sentencing, counsel for the Police submitted that there should be a starting point of three years for the strangulation, and then a moderate uplift to the overall starting point for the additional offending. This suggests, counsel submitted, the imposition of a single sentence, rather than separate sentences.

[34]	As I have already indicated, although the sentence is ambiguous on this point, the Court is obliged to approach the matter on the basis that the Judge adopted the more severe of the sentencing options when his actual approach is not clear.

Relevant law – the totality principle

[35]	There are two key legal issues with the sentencing judgment that need to be considered. Firstly, the application of the totality principle to the sentence of imprisonment. Secondly, whether any discount for time spent on EM bail ought to have been applied. The relevant authorities concerning sentencing for the offence of strangulation are also need considering.

[36]	Section 85 of the Sentencing Act 2002 details the totality principle in this way:

(1)	Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)	If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)	If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)	If only concurrent sentences are to be imposed,—

(a)	the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)	each of the lesser offences must receive the penalty appropriate to that offence.

[37]	The totality principle is a standard principle of general application that requires the Court as set out in Hall’s Sentencing to:23

…where it has imposed a series of cumulative sentences or a combination of concurrent and cumulative sentences upon an offender, review the overall

23	Geoff Hall (ed) Hall’s Sentencing (online ed, LexisNexis) at [SA85.2].

sentence in order to ensure that the total is not excessively harsh or grossly disproportionate to the general level of gravity of the individual offences.

[38]	The Courts have recognised that this is a flexible principle that cannot be applied in a single, rigid manner. In R v Williams, the Court of Appeal rejected the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. Instead the issue of what is an appropriate total sentence for the various charges is constructed in the particular circumstances, as a matter of individual discretion and assessment.24

[39]	The Court of Appeal reiterated this point in R v Barker, setting out the key principles of totality as:25

(a)	With multiple offences the sentence must reflect the totality of the offending.

(b)	In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.

(c)	The total sentence must represent the overall criminality of the offending and the offender.

[40]	In R v Wharton, it was held that the setting of the penalty for the lead offence will often require the Court to consider matters which constitute separate offences themselves.26 That case concerned the appellant being charged with both the kidnapping of his former partner, and for assault with intent to injure which occurred shortly before the kidnapping event.27 The Court of Appeal held that even though factors of aggravation may constitute separate offences, it does not mean that they cannot be considered as part of the sentencing exercise for the lead offence.28

[41]	R v Clarke involved multiple offences in the context of domestic violence. In that case, the Court of Appeal dismissed an appeal by the appellant against a sentence of two years nine months’ imprisonment for a combination of cumulative sentences for domestic violence offences against the appellant’s partner. Counsel for the

24	R v Williams CA 91/00, 31 May 2000 at [11]. 25	R v Barker CA 57/01, 30 July 2001 at [10]. 26	R v Wharton (2003) 20 CRNZ 109 at [14].
27	At [1].
28	At [14].

appellant argued that the sentencing Judge had erred in imposing cumulative sentences. The Court of Appeal disagreed, observing that:29

Cumulative sentences for the acts of violence inflicted upon the victim were fully justified. Those who inflict serious violence upon females, whether partners or not, at different times and different places cannot expect as a general course for sentences of imprisonment to be concurrent. A “concession” for multiple offending cannot be expected by such offenders. In addition, it may be a proper ground for making a sentence cumulative if it was committed after the grant of bail. Of course, the totality principle requires that the effective sentence not be out of proportion to the overall culpability of the offender but established authority is clear that the totality principle is not a discount for bulk offending.

We do not accept the submission of the appellant’s counsel that concurrent sentences were appropriate for the serious separate assaults, on both occasions accompanied by possession of a knife. Of course, the offences were of a similar kind against the same victim. But they were not otherwise connected, whether in time or location. In this present case the Judge was perfectly entitled to impose cumulative sentences and the only issue is whether on a totality basis the sentence of two years nine months imprisonment was manifestly excessive.

[42]	Although both this case and R v Clarke concerned multiple offences relating to domestic violence, R v Clarke involved offences occurring at separate times over a period of several months. This influenced the Court of Appeal’s decision to uphold the cumulative sentencing. Conversely, in the more recent case of Maihi v R, which also involved multiple offences in the context of domestic violence, the Court of Appeal helpfully observed:30
Although the offences were of a similar kind and involved the same victim, each attack was separated by many months and occurred at a different location. It was open to the Judge to treat them as not forming a connected series of offences and to impose cumulative sentences accordingly. As the Judge said, such an approach was endorsed by this Court in R v Clarke, a case also involving serious assaults of a similar kind against the same victim but not otherwise connected in time or location. However, where cumulative sentences are imposed, the Court must ensure that they do not result in an end sentence that is disproportionate to the gravity of the overall offending.

While the Judge was entitled to impose a combination of cumulative and concurrent sentences, he could have followed the alternative approach of identifying an appropriate starting point on the lead offence and then applying an uplift to reflect the other offending. Regardless of which approach is adopted, the result should be similar and should reflect overall culpability.

29	R v Clarke CA128/06, 29 May 2006 at [14]-[16].
30	Maihi v R [2016] NZCA 205 at [21]-[22].

[43]	In the present case, it is obvious that the offences which the Judge imposed a separate sentence occurred at the same time as the lead offence. Unlike the decisions of the Court of Appeal that I have just discussed where cumulative sentences were upheld, these were not a series of offences on separate dates or against separate complainants.

[44]	In fact, Ms Marshall for the Crown, acknowledged that if the sentences were to be regarded as having been intended as cumulative sentences by the Judge, the Crown could not support a total sentence of four and a half years. That is an appropriate concession.

Relevant law – EM bail sentence discount

[45]	Section 9(3A) of the Sentencing Act 2002 is something I have already discussed. The Court of Appeal has expressed that there is no rule about how much of a discount, if any, should be given.31 In Chea v R, the Court of Appeal found that the level of discount is left to the Judge’s discretion, and while on occasions Judges will apply some modest discount relief for this factor, no arithmetical formula can be applied.32 Adams on Criminal Law has also indicated that an allowance made for an EM bail discount is often “modest”, and that the amount of credit will depend on the circumstances of the case, having regard to the factors set out in s 9(3A).33

[46]	While there is no single formula or particular allowance applicable for EM bail discounts, and this is left to the discretion of the Judge, the authorities indicate that EM bail as a potential discount factor must at the very least be taken into account or acknowledged. Under s 9(2)(h) of the Sentencing Act 2002, a Court must take into account the fact that the offender spent time on bail with an EM condition.34

[47]	In Chea v R, the Court of Appeal allowed the appeal against sentence of one of the appellants on the basis that the sentencing Judge arguably did not properly take into account EM bail as a discount factor in the sentence. The Court said:35

31	Carroll v R [2019] NZCA 172 at [17].
32	Chea v R [2016] NZCA 207.
33	Adams on Criminal Law (online ed, Thomson Reuters) at [SA9.23A].
34	Sentencing Act 2002, s 9(2)(h).
35	Above n 32, at [111].

The difficulty in the present case is that the Judge’s reasons for declining to make an allowance are brief. If anything they suggest the Judge may not have been aware of the restrictive nature of the bail terms and the length of time on EM bail. We are satisfied the circumstances are such that a modest allowance ought to have been made. To make no allowance was an error.  We  consider a discount of four months’ imprisonment is appropriate. Although this is a small change to the ultimate sentence, we consider it is necessary to allow the appeal, given that there was an identifiable error by the Judge.

Relevant law – sentencing for strangulation

[48]	The offence of strangulation is a relatively new one. It was introduced under the Family Violence Amendment Act 2018 and is now set out under s 189A of the Crimes Act 1961. This section says:36
189A Strangulation or suffocation

Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:

(a)	blocking that other person’s nose, mouth, or both:

(b)	applying pressure on, or to, that other person’s throat, neck, or both.

[49]	The purpose behind introducing the new offences is set out in the Law Commission’s 2016 Report, Strangulation: The Case for a New Offence:37

Our analysis of how strangulation in family violence circumstances is currently handled by the criminal justice system has led us to conclude that strangulation is often not treated as the significant form of offending that it is. Less serious offending is often not prosecuted, and more serious offending is often not charged in a way that reflects the criminality of the behaviour.

The main problem is that the current framework of serious violent offences is not well suited to those instances of strangulation that do not result in visible injuries. This means that type of strangulation tends to be charged as “male assaults female”. The maximum penalty of two years’ imprisonment for that offence does not adequately reflect the seriousness of strangulation. There is, therefore, a gap in the current framework of offences. We consider that this gap justifies an amendment to the law to create an offence more suited to prosecuting strangulation. There should also be other, non-legislative action taken to ensure that strangulation is better understood so that perpetrators are held accountable and victims are kept safe.

36	Crimes Act 1961, s 189A.
37	Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at 4.55-4.56.

[50]	The most relevant authority for the purposes of this case is Ackland v Police. That case also concerned strangulation and assault in the context of domestic partner violence, with the appellant assaulting the victim by slapping her several times, and then strangling her until she lost consciousness, making verbal threats while doing so.38 Cooke J detailed how the new offence should be approached in the context of sentencing. He said:39
In essence, therefore, what is involved is a recalibration of sentencing for conduct previously treated leniently, particularly where strangulation occurred without other offending with higher maximum sentences. That recalibration is accordingly relevant when the more serious offending has not been triggered, and strangulation is the principal act of violence. When that is so, the lead offence has sometimes required to be of a less serious kind. When strangulation has been part of other, more serious, violent offending such 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 harm under    s 189(1) (10 years maximum), higher sentences have been imposed.

The primary focus is accordingly on arriving at an appropriate assessment of the seriousness of the offending in light of the recalibration contemplated by the new offence.

[51]	Cooke J identified a number of aggravating features which may influence the length of sentence.40 He then set out an overall range, or spectrum of cases to assist in determining appropriate sentence length:41

At the lower end would be offending involving strangulation as an intentional result of pressure being applied to the throat for a brief period, potentially without any of the above factors being present. Such offending might attract a starting point of six months to two years’ imprisonment.

Offending at the highest end of the range involving a starting point of five to seven years’ imprisonment may correspond to the offending described in [5.43] of the Law Commission’s report — being offending with a number of the factors. I stress, however, it is not the number of the above factors that is important, but the overall nature and culpability of the offending. The above factors are intended simply to provide some guidance, or a framework for making that assessment.

In between these two categories is the mid-range of cases where a starting point of two to five years may be appropriate. No doubt case law over time will build up to give greater clarity on appropriate starting points for cases within this middle range.

38	Above n 10, at [7]-[8].
39	At [20]-[21].
40	Discussed at [30] above.
41	At [30]-[32].

[52]	I acknowledge that in Houkamau v R42, Thomas J, and in T v Police43, Doogue J, both emphasised that while categorisation into bands can be helpful, it does not displace the obligation on the Court to consider the overall nature and culpability of the offending. I adopt that approach.

[53]	Returning to the discussion in R v Ackland, given the aggravating factors in that case and based on the overall range of cases I have discussed, Cooke J held that the end sentence of two years nine months imposed by the sentencing Judge was appropriate. The Judge had reached a starting point of three years three months, uplifted the sentence by nine months for the additional offences, and then discounted four months for Mr Ackland’s personal circumstances and a 25 per cent discount for an early guilty plea.44

[54]	Ackland v Police was followed by R v Houkamau. While that case also involved strangulation in the context of domestic violence, combined with assault, counsel for the appellant conceded it was not highly applicable in the present case due to the different personal circumstances of the offender. That concession was appropriate.

[55]	I accept that the recently decided case of T v Police is more analogous to the circumstances of this case. There the appellant was charged with the offences of strangulation, assault with intent to injure, breaching release conditions and intimidation, all in the context of a domestic violence dispute that was somewhat similar to what has occurred in the present case.45 Given the aggravating factors, the sentencing Judge adopted a starting point of three years’ imprisonment, uplifted by one year to account for the appellant’s other offending, and applied a 25 per cent discount for the appellant’s time spent on EM bail, and for his “limited remorse”, leading to an end sentence of three years’ imprisonment.46 This was upheld on appeal.

42	R v Houkamau [2019] NZHC 2743 at [32].
43	T v Police [2019] NZHC 3375 at [35] and [37].
44	Above n 37, at [13]-[15].
45	Above n 42, [6]-[12].
46	At [13]-[14].

Analysis

[56]	I am satisfied that the Judge, in this case, has erred on two grounds. The first ground relates to the issue of the totality principle and the imposition of cumulative sentences, while the second ground relates to consideration of EM bail as a discount in sentencing.

[57]	In relation to the totality principle, the Judge has effectively ‘double-counted’ the offences additional to the strangulation, namely assault with intent to injure and breach of protection order. This is because the Judge at [8] and [9] used the additional offences to justify a starting point of three years, and then at [10] used the offences again as aggravating factors to uplift the sentence by 10 months.47 Then at [11], the Judge imposes separate sentences of three years’ imprisonment on the charge of strangulation, and 18 months’ imprisonment for the additional offences.48 The Judge did not detail whether these sentences were to run cumulatively or concurrently as I have previously discussed.

[58]	It is therefore necessary to consider whether the sentences should appropriately have been cumulative or concurrent. The observation of the Court of Appeal in R v Maihi, where the Court suggested the possible approach of identifying an appropriate starting point on the lead offence and then applying an uplift to reflect the other offending, provides a useful indication of what the Judge should have done.

[59]	In relation to the consideration of EM bail, the Judge appears to have erred by failing to take it into account at all. Under s 9(2)(h) of the Sentencing Act 2002, a Court must take into account the fact that the offender spent time on bail with an EM condition,49 and in the sentencing judgment, the Judge does not mention the appellant’s EM bail time at all. This is despite Judge Rea acknowledging in the sentencing indication to the appellant that “you would get credit for the time you have been on EM bail as well”.50 Given that the appellant was on EM bail for six months, the Judge should at least have referred to or acknowledged it as a relevant factor.51 A

47	Above n 3, at [8]-[10].
48	At [11].
49	Sentencing Act 2002, s 9(2)(h).
50	Above n 5, at [13].
51	Above n 42, at [13]-[14].

failure to do so could be considered an error potentially leading the sentence to be manifestly excessive.

[60]	An analysis of the authorities on strangulation indicate that the Judge did not err in fixing the starting point. Given the analogous nature of this case to Ackland where the starting point was three years three months and T v Police where the starting point was three years, if anything, the starting point in this case was lenient. However, in imposing a cumulative sentence the totality principle has been infringed. The Judge has already considered the other offending and the breach of the protection order as aggravating features in setting the starting point of three years.

Conclusion

[61]	I therefore conclude that the sentence of 18 months’ imprisonment on the charges of assault with intent to injure and breach of the protection order should have been concurrent rather than cumulative.

[62]	Having altered the sentence in this way, I need to consider the overall nature and culpability of the offending and whether the three-year start point requires adjustment. Into this assessment, I factor some allowance for the time spent on EM bail. I would have been inclined to make a modest adjustment upwards to reflect the overall criminality of the offending given the imposition of concurrent rather than cumulative sentences but that is cancelled out by the modest reduction to reflect time spent on EM bail that is required. I therefore will not adjust the three-year sentence on the strangulation charge given that, overall, this reflects the totality of the criminality involved.

[63]	Obviously, given the end sentence arrived at, no consideration of home detention arises.

[64]	Accordingly, the appeal is allowed on the basis that the two sentences are to run concurrently rather than cumulatively other than, in that respect, the appeal is dismissed.

Churchman J

Solicitors:
Cathedral Law, Napier
Crown Solicitor’s Office, Napier