Taitapanui v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeDunningham J
Judgment Date05 May 2021
Neutral Citation[2021] NZCA 161
Docket NumberCA229/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Clifford, Brewer and Dunningham JJ

CA229/2020

Between
David Taitapanui
Appellant
and
The Queen
Respondent
Counsel:

N P Chisnall for Appellant

C Ure for Respondent

Criminal Sentence — appeal against a sentence of 10 years and four months imprisonment with a minimum term of imprisonment of five years imposed in the District Court for 19 charges of violent and sexual offending towards his partner — proportionality of uplifts for previous offending in comparison to the original sentence — discount for mitigating factors — background of deprivation — Sentencing Act 2002

The issues were: whether the Judge applied an excessive uplift to account for T's previous convictions for violence and whether the 15 percent global discount given for mitigating factors was sufficient.

The Court held that s9(1)(j) SA (aggravating and mitigating factors) required a court to take into account the number, seriousness, date, relevance and nature of an offender's previous convictions. Previous convictions were potentially relevant as: demonstrating the need for a greater deterrent response; an indicator of the risk of reoffending; and an indicator of character and culpability. An uplift was unlikely to be proportionate if it exceeded the sentence imposed for the previous offending.

T's criminal history was extensive. Overall that an uplift of one year was not disproportionate or manifestly excessive, even though it was equivalent to T's lengthiest term of imprisonment. While a court must recognise the need to avoid double punishment in uplift cases, the need for deterrence was particularly strong in T's case.

T's head injury had exacerbated pre-existing difficulties. The cultural report under s27 SA disclosed a background of deprivation and a degree of instability. His remorse was limited as T acknowledged he had always used violence to get his own way. The overall discount given by the Judge was not erroneous. While the head injury may have exacerbated the offending, there was a clear pattern of violent behaviour before it occurred. The evidence regarding T's upbringing did not explain the extent of partner violence or the repeated sexual offending.

The ultimate question on a sentence appeal was whether the end sentence was manifestly excessive. There were repeated incidents of sexual violation against the victim accompanied by violence. The Judge's starting point could be justified on that offending alone. The discount for guilty pleas of 20 percent was generous.

The end sentence was not wrong. The appeal was dismissed.

The appeal against sentence is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Dunningham J)

Introduction
1

The appellant, David Taitapanui appeals his sentence of 10 years and four months' imprisonment imposed on him by Judge Rea at the District Court at Napier on 28 April 2020. 1 He submits the sentence is manifestly excessive and

should be reduced to between eight and eight and a half years' imprisonment. A corresponding reduction in the length of the minimum period of imprisonment (MPI) is also sought
Factual background
2

The appellant and the victim met and began a relationship in early 2016. Soon after moving in together, he began offending against her doing so on various occasions between April 2016 and August 2018. The appellant pleaded guilty to 19 charges. These included two charges of sexual violation by rape, 2 two charges of sexual violation by unlawful sexual connection, 3 two charges of assault with intent to injure, 4 six charges of male assaults female, 5 three charges of injuring with intent to injure, 6 and four charges of breach of a protection order which had been served on him in August 2017. 7

April 2016
3

The first group of charges relate to offending which took place at the family home in April 2016. The appellant pushed a door into the victim, hitting her in the face. He then punched her and, after the victim fell to the ground, punched and kicked her four or five times to the body. The appellant picked the victim up, threw her into a wardrobe, and then stomped on her ribs. He then threw the victim on the bed. The victim by that point was crying and had a bloody nose. The appellant apologised to the victim and asked for oral sex. He placed his penis in her mouth and then raped her. Throughout this, he was verbally abusive, calling her a “bitch” and a “whore”. As a result, the appellant was charged with a representative charge of assault with intent to injure, sexual violation by unlawful sexual connection and sexual violation by rape.

July 2016
4

The next offending occurred in early July 2016. The appellant returned home in the early hours of the morning and demanded sex. The victim was angry that the appellant had been out all night and did not want sex. He then raped her and after a few minutes demanded anal sex; when that was refused, he then punched the victim on the side of the face and forced his penis into her anus. Whenever the victim told him to stop, the appellant punched her to the back of her head. This happened about six times. The appellant grabbed her hair and pulled it, forcing her head back which made it difficult for her to breathe. He told her to handle it and moan like she was enjoying it. As a result, the appellant was charged with a representative charge of male assaults female and sexual violation by unlawful sexual connection.

5

Later that same month, the appellant walked up to the victim and punched her in the jaw, explaining this was because she had asked his 11-year old daughter to put her washing away. The victim said she could not eat or chew properly for two weeks and her jaw was swollen. The appellant was charged with injuring with intent to injure.

6

The next assault, occurring approximately a week later, was described by the victim as the worst incident of violence. The appellant came in from outside and punched the victim with his fist, hitting her in the right eye. The punch knocked her backwards into the kitchen where she fell on the floor. Her glasses were knocked off, the frame broken and the skin above her eye was cut. After dragging her across the floor by her hair, the appellant kicked her in the face, splitting open the cut caused by the earlier punch and making her bleed profusely. When she asked for her phone so she could call an ambulance, he refused. After about an hour, he threw the phone towards her, although it hit the wall and came apart. After she put her phone back together, she called an ambulance. Six stitches were required to close the cut. In the following days, the appellant did not allow her to go to the doctor to get the stitches removed, so she took them out herself. She now has a permanent scar above her eye. The appellant was charged with injuring with intent to injure.

September 2017
7

In mid-September 2017 the victim and the appellant were attending a birthday party at a relative's house. The appellant was angry at a family member who wanted a loan, so he gave his money card to the victim and told her to put it in her van. When she was in the van, he walked up to it asking her where his “fucking card” was. She told him it was in the glovebox, then got out of the van and locked it and went inside to get the children. He followed her and cornered her in the kitchen. He then grabbed hold of her hair pulling it out in clumps. Members of the appellant's family intervened, and the victim left and stayed at a motel that night.

8

She spoke to the appellant the following day at home where, initially, he seemed calm. At his request, she drove him to a relative's address, where she accidentally backed into another car while attempting to jumpstart another car. The appellant walked up to the driver's window and punched the victim with full force to the side of the face, calling her a “fucking idiot”. Her top tooth was knocked out and her glasses were smashed. She had a cut to her right eyelid just below her eyebrow. She went to the hospital but left before receiving treatment. As a result of these events, the appellant was charged with a representative charges of injuring with intent to injure and breaching the protection order issued only a month earlier.

October 2017
9

In the early morning on 22 October 2017 the victim was asleep at her home. She was woken by two punches to her head and two punches to her ribs. The appellant said he punched her because he had wanted to take his children to the A & P show and complained about having to go to Taranaki the previous day with the victim. This led to a charge of male assaults female and of breach of the protection order.

10

A couple of days later, when angry with the victim, the appellant grabbed her by the throat and squeezed it with his hand causing her difficulty breathing. The appellant's mother, who was present, intervened. She grabbed his arm and told him to stop and to let the victim go, but he shoved her away hurting her wrist. He was charged with male assaults female in relation to his mother and with male assaults female and breach of a protection order in relation to the victim.

Representative charges for April 2016 — June 2018
11

Between April 2016 and late 2017, the appellant punched and kicked the victim “[e]very few days” and would also have sex with her against her will. She said it felt like every time the appellant got angry with her, he would force her to have sex with him. The sex was painful and violent.

12

In November 2017 the appellant went to prison on unrelated charges of breaching a protection order.

13

On 11 June 2018 the appellant was released from prison and returned to the victim's house. Again, it is alleged that he...

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