New Zealand Police v Vae'Au [2019] NZDC 15226

Published 02 December 2019

Sentencing — strangulation — intentionally impeding the normal breathing of victim by applying pressure on throat and neck — breach of protection order — physically abusing protected person — remaining in building without consent — breach of supervision order — assault on person in family relationship — Kimiora v R [2015] NZHC 1940 — EWB v Police [2012] NZHC 225 — Hunia v Police [2013] NZHC 333 — Police v Ackland [2019] NZDC 4208. The defendant appeared for sentence after pleading guilty to one charge each of intentionally impeding the normal breathing of the victim by applying pressure on her throat and neck, breaching a protection order by physically abusing the protected person, breaching a protection order by remaining in a building occupied by the protected person without her consent, assault on a person in a family relationship and breaching a sentence of supervision by associating with a person he was directed not to associate with. The Judge noted strangulation was a new offence with a maximum penalty of seven years' imprisonment. The victim was the defendant's partner. A protection order had been made in relation to previous offending against the victim and he had also been directed not to associate with her. An argument began while they were at the victim's house, and the defendant refused to leave when asked and headbutted her. She went outside to let things cool off but when she returned the defendant grabbed her by the throat until she was unable to breathe or speak. Aggravating features of the offending were the protection order, the relationship between the defendant and the victim which elevated the breach of trust and the victim's vulnerability, the presence of a child during the offending, the attack to the victim's head shortly before the strangulation and the injuries suffered by the victim. With reference to case law the Judge adopted a starting sentence of two years six months' imprisonment. A three month uplift was given for the defendant's nine previous convictions for violent offending (one of which related to the same victim). An uplift of one month was given as the defendant offended while on a sentence of supervision. A four month reduction was given for the defendant's remorse and willingness to attend restorative justice. A 25 per cent reduction was then given for his guilty plea, resulting in a final sentence of 22 months and two weeks. The Judge would have considered converting this to home detention, but the defendant did not have an appropriate address. Leave was given to apply for home detention should an address become available. Six months of release conditions were also to apply following the sentence expiry date. Judgment Date: 5 August 2019.