Sentencing – strangulation – injuring with intent to injure – wilful damage – male assaults female – Sentencing Act 2002, s 27 – Shramka v R [2022] NZCA 299.
R v Reid [2023] NZDC 14868 per Judge Stephen Bonnar KC.
Matu Reid, 23, in March 2023 appeared for sentence on charges of strangulation, injuring with intent to injure, wilful damage and male assaults female.
The offences arose from an incident two years earlier involving Reid’s partner, with whom he was living. The couple got into an argument after they had been drinking for a few hours; the victim had said something that angered Reid.
Reid assaulted her, verbally abused her, threw something at her head, which hit her in the eye and threatened her and the rest of her family. She was kicked in the stomach and strangled for 10 seconds. After letting go of her throat, Reid continued to abuse her verbally and physically, including attacking her with scissors.
After threatening her again, Reid left the room. The victim managed to escape and call the police. When she returned to the address, she noticed some of her bedroom furniture and belongings had been burned.
Her injuries were extensive: a swollen and black right eye; a bruised jaw; scratched face, throat and left arm; and a fractured bone in her neck as a result of being strangled.
Reid initially denied any criminality, telling police the injuries were the result of consensual rough sex. He later pleaded guilty. When Reid committed the offences, he was still subject to a sentence of supervision for an earlier conviction of common assault.
Assessments
In a statement, the victim described experiencing significant, continual emotional harm because of Reid’s offending. However, she forgave him. He needed help and supervision, she believed, because she didn’t think Reid could fix what she described as the “generational anger” within him. It was a “generous expression of goodwill”, Judge Bonnar KC said.
A probation officer assessed Reid’s risk of re-offending as low, based on his limited history of offending. However, his risk of causing harm was deemed high because of the violent nature of the present offending. The probation officer recommended a sentence of home detention.
A s 27 cultural assessment report on Reid’s background detailed systemic deprivation, cultural disconnection, family instability and hardship, exposure to domestic violence and physical abuse, some mental health issues, a disrupted education, limited employment opportunities and exposure to drugs and alcohol and gangs and gang culture.
Reid’s apology letter expressed remorse and a willingness to engage in restorative justice, although this couldn’t take place.
Appellate guidance
Reid’s most serious charge, strangulation, carries a maximum penalty of seven years’ imprisonment.
Since 2022, sentencing judges have been guided by the Court of Appeal’s leading decision in Shramka v R. Confronted for the first time with sentencing for strangulation under s 189A of the Crimes Act 1961, the court looked at the legislative history of the standalone offence, previous strangulation sentencing decisions and sentencing decisions for comparable offences such as wounding with intent to injure and aggravated injuring.
The court then listed eight relevant and primary aggravating factors, including premeditation, history of very serious domestic violence and enduring harm to the victim. However, the court preferred not to set bands based on the number of factors engaged. Some factors overlapped to a degree and much strangulation offending would involve all or most of them. Instead, the court gave reference examples for the highest and moderate levels of offending, which sentencing judges could use for comparison.
The court held Shramka was an example of moderate strangulation, aggravated by the victim’s vulnerability, breach of a protection order, aggravated violence and enduring psychological harm to the victim. While no worked example of lower-level strangulation was given, as the court preferred future cases to clarify the category’s boundaries, Shramka’s offending didn’t fall within the class, the court said. However, had the strangulation been “more transitory” and the harm “less enduring”, a lesser sentence would’ve applied.
Starting point
For Reid’s offending, the Crown submitted an appropriate starting point of two years, three months’ imprisonment. Judge Bonnar KC agreed, finding the actual harm caused, the victim’s vulnerability and violent nature of the offending were aggravating features.
Eight months were added to the starting point in recognition of Reid’s other, “not insignificant” charges. One more month was added as Reid offended while subject to a sentence of supervision. For pleading guilty, Reid was given a nine-month discount. An additional seven-month discount was given in recognition of his age, his remorse and the connection his background had to his offending.
With Reid facing an end sentence of 20 months’ imprisonment, home detention was a viable alternative. Judge Bonnar KC said imprisonment for a young man with a limited history of offending, would be counterproductive and would “actually set you down the wrong path”. And Reid had already spent five and a half months remanded in custody on the charges, a period the court credited him with.
“But you need to realise, Mr Reid, you need to turn your life around from here because if you commit further offences of violence in the future, things are just going to get worse for you and you could well end up going to jail,” the judge said.
Applicable principles: Shramka v R – low, moderate or high level of strangulation – aggravating factors to strangulation – whether the offending caused actual harm – whether the victim was considered particularly vulnerable – whether the nature of the offending was violent – aggravating personal factors – more than one charge – offending while subject to supervision – mitigating personal factors – guilty plea – youth – remorse – s 27 cultural background – home detention – remand in custody.
Held: A final sentence of five months’ home detention with conditions.
Reid must not possess, consume, or use alcohol or non-prescribed drugs; must attend and complete programs on non-violence and alcohol and drugs; and must not associate with or contact the victim without written approval from his probation officer.
0 Comments