R v Tunupopo [2023] CKHC 22; CR 777 of 2022 (24 March 2023)

NAME SUPPRESSION ORDER MADE FOR NON-PUBLICATION OF THE NAMES OF THE COMPLAINANT AND FAMILY MEMBERS INLCUDING THE CHILDREN

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 777/22

R

v.

OSWELL METUA TUNUPOPO

Hearing: 13 to 15 March 2023

Appearances: M Pittman for the Crown
T Clee for the Defendant

Sentence: 24 March 2023

SENTENCING NOTES OF TOOGOOD, J

[9:40:18]

[1] Oswell Tunupopo, you appear for sentence after having been convicted by a jury of a charge of injuring [A] by an unlawful act on 3 July 2022.
[2] I remind representatives of the news media that I have made orders, which are final orders, suppressing from publication the names of the complainant and other family members including the children. I recognise that that may create some difficulties in providing a full report of the case because it is very much concerned with the family relationships and the family relationships are very much part of the sentence which I will impose.

The facts

[3] Mr Tunupopo, your partner [B] has two sons from her marriage to her now deceased husband: [E] who was about 7 at the time of the offence and [F], aged 5 or 6. [B] and you have three children from your relationship, which has lasted about five years. [E] and [F] are very close to [B]’s parents, [C] and [D], and to [B]’s younger sister, [A], who is the victim of your offending. After [E] and [F]’s father died when they were very young, [B] resumed living with her parents and, I think, [A] until she entered into the relationship with you. You lived as a family from then until [B] moved to Auckland with her children after your offending.
[4] [E] and [F] frequently spent time with their grandparents and [A], and regarded it as a treat to stay over with them.
[5] On Sunday 3 July 2022, [B] and her parents, [A] and the five children met at the family café restaurant on Rarotonga. You were also present. As I understand it, [B] and you had taken over the running of the restaurant after [C] had a stroke and he and [D] were no longer able to manage it on their own.
[6] There was a disagreement between [B]’s parents and you about whether [E] would be permitted to leave the restaurant that day with his grandparents so that [F] and he could stay with them for a while as had previously been arranged. [C], [D] and [A] understood that [B] had agreed that [E] could go with them, but you had grounded [E] two days earlier for breaking a window. [B] considered that the punishment of grounding him was to apply for only one night, whereas you maintained it should be for a week so that he would miss out on staying with his grandparents.
[7] It appeared to me from the evidence that [E]’s grandfather [C] became quite agitated about your insistence that [E] would not be permitted to go with [D] and him. There was an underlying tension within the family about your asserting a role as father to [E] and [F] when [B] did not agree with you. You said in evidence that your view was that you had authority over the boys as the father figure in the household in which they had lived for several years. [C] said that the blood relationship that he, particularly, and [D] and [A] had with the boys was stronger and should take precedence. [B] had apparently told her parents that she agreed that both boys should accompany them away from the restaurant.
[8] As I say, the disagreement became quite heated and noisy. As [C] and [D] were preparing to leave the restaurant, [C] gestured to [E] who was standing in the rear of your Jeep, motioning for him to get down and go with them.
[9] In the lead up to the confrontation in which [A] was assaulted, there was also some argument about the running of the restaurant – the details of that were not entirely clear. But the background was one of domestic disharmony in the circumstances where [B]’s parents and her sister were unhappy that you should be determining that they were not allowed to take [E] with them. I will come back to the unhappy relationship between [B]’s family and you in a moment.
[10] The immediate events leading up to the assault occurred in a very brief timeframe. Remarkably, they were captured by a CCTV video camera on the building directly across the road from the restaurant. Your Jeep was parked off the road adjacent to the café and it partly obscured the view of events from the camera.
[11] After [C] gestured to [E] to get down off the Jeep, you lifted [E] off the vehicle and carried him to the driver’s door, placing him in the driver’s seat. You remained standing with your back close to the open driver’s door. [A], who had played a part in the arguing, moved towards [E] and it seems, at some point, may have been able to touch him. She maintained in evidence that, because the child was upset and crying, she wished to comfort him. It was not her intention to grab him and take him away. I accept that evidence. [A] – who is a 30-year-old early childhood worker – impressed me in evidence as a mature, intelligent and assured person and I accept that she feels a special bond to [E] and [F].
[12] I observed that, although there was no oral evidence about this, [A] is slightly built and much shorter than you are. You are a tall and powerfully built man.
[13] As [A] was moving towards the driver’s seat where [E] was sitting, you put out your hand to stop her moving forward. You said in evidence that that is all you did; she gave evidence that you pushed her. It was not possible to see that interaction on the CCTV recording, but I accept [A]’s evidence. I regard it as cogent and consistent with the level of agitation which I am satisfied you were feeling about what you described as the undermining of your authority by [B]’s family.
[14] [A] pushed you back to indicate, as she put it, that she objected to being pushed by you. You reacted immediately, pulling back your right hand and punching her in the face, the blow connecting above her right eye. As seen in the video footage, the punch appeared to be so swift and forceful that it caused a number of the jurors to gasp when they first viewed the recording. While your arm could be seen with your fist drawing back and then rapidly moving forward, the contact was not recorded because the view of [A] was obscured by your vehicle. The punch caused a deep laceration which split [A]’s eyebrow and caused bruising and a small scratch below her eye. It was described by the doctor who attended [A] as being a 6cm laceration which went down through the fatty tissue under the skin but did not damage the layer of tissue immediately above the bone, or the bone itself. [A] did not appear to suffer any immediate ill-effects from the blow at that point. She was not knocked out and did not fall, and she had sufficient presence of mind to hit you in the groin area as a defensive move and then hit you across the forehead with a porta filter from the espresso machine in the café. It was suggested by Mr Clee, your counsel, that the porta filter had been placed on a table just outside the entrance to the café by [D] at some point during the argument, which related to the possession or ownership of some of the restaurant chattels. It is not entirely clear how the porta filter got within [A]’s reach. It was suggested to [A] in cross-examination that she had been given it by [D], but she denied that and said that she had picked it up off the ground.
[15] The physical confrontation was ended by [A]’s father [C] grabbing you in a tackling motion with his head to one side and pinning your arms to your sides. It seems that [E]’s distressed shouting at the adults to stop what they were doing may have helped to calm things down.
[16] [A] was treated at the hospital but did not suffer any lasting injury, although she had two weeks off work while she recovered. You were similarly treated and also suffered no lasting injury, although you were apparently groggy and fainted at the police station after you were apprehended. There was no evidence that you had consumed alcohol or drugs prior to the assault.
[17] I am satisfied on the evidence, and this is in a sense supported by the jury’s verdict, that punching [A] was a thoughtless overreaction on your part, against a background of a tense and loud argument between family members, and that you just snapped. As you said in evidence, “I know I reacted – she either hit me or pushed me, I don’t know which one it was. That’s when I reacted with the punch.”
[18] The Crown’s case was put to the jury on the basis that you meant to injure [A]; that is, to cause her actual bodily harm, which is defined in law as some discomfort that is more than minor or momentary. The Crown submitted to the jury that you were angry and that when you punched [A] you knew it would hurt her. When that was put to you in cross-examination, you said: “No, you don’t think like that when you punch someone. It did cut her eye and I did say in my statement that I saw the cut in her eye, that’s why I stopped ....” It was then suggested to you that you could foresee that the punch would probably cause an injury. You said: “You don’t punch someone to do that, I don’t know what you mean by that but the way you’re putting it, it’s like I’m going to punch her to cut her eye but that’s not what happened that day.” You accepted however that if you were to punch someone in everyday life you would probably hurt them, but when it was put to you that you intentionally punched [A] in the face, not because you were worried for anyone’s safety but just because you were overwhelmed and frustrated and angry and took it out on [A], you denied that. I am in no doubt that you were not thinking of [E] when you hit [A]; you were just lashing out in frustration at being challenged by [A] and her parents.
[19] You were charged with injuring [A] with intent to injure her. You could have faced a more serious charge of wounding because that was clearly available on the evidence of the nature of the injury. However that was the charge you faced and I directed the jury that if they were not satisfied beyond reasonable doubt that you intended to injure [A], they would be required to find you not guilty of injuring with intent but guilty of injuring [A] by an unlawful act. That is because, as a matter of law, the charge of injuring by an unlawful act is necessarily included in the charge of injuring with intent to injure.
[20] It is clear to me that the jury took a sympathetic view of what you did that day. I do not mean by that that they must have taken your side in the argument, but it is clear from the verdict that the jury was not persuaded beyond reasonable doubt that you intended to cause [A] harm and that the punch was in the nature of a reflex action to a physical confrontation, minor though it was, in a very tense situation.
[21] In her victim impact statement [A] discussed her family’s concern about whether your former bail conditions of having no contact with [A] and her family and an overnight curfew would continue to apply. I will address that later.
[22] I take into account in approaching the appropriate sentence or sentences to impose upon you, the purposes and principles of sentencing set out in the relevant legislation which includes the New Zealand Sentencing Act 2002.^[1] The sentencing purposes that I consider to be important in your case are:

• (a) holding you accountable for the harm done to your victim and the community by your offending;
• (b) promoting in you a sense of responsibility for, and an acknowledgment of, that harm;
• (c) denouncing your conduct;
• (d) protecting the community by deterring you and others from offending in this way; and
• (e) assisting, as far as is possible, your rehabilitation and reintegration.

[23] In sentencing you, I need to take account of the gravity and seriousness of the offending and your degree of culpability or blameworthiness.
[24] I bear in mind that I should impose the least restrictive outcome that is appropriate in the circumstances and in doing so to take into account your personal circumstances.
[25] The approach that one usually follows in these cases is, first, to calculate a starting point incorporating all aggravating and mitigating features of the offending, and then to consider all aggravating and mitigating factors personal to you with a discount for any guilty plea. Those discounts are calculated as a total percentage of the starting point and an end sentence is then reached.^[2]
[26] In this case the Crown leaves open the possibility that you will be sentenced to imprisonment and clearly that is an available sentence. I agree with Ms Pittman that the aggravating factors of your offending included:

• (a) a single forceful punch to the head, which is the most vulnerable part of the body;
• (b) the injury to the victim, which was a 6cm laceration requiring medical treatment; and
• (c) the vulnerability of the victim, [A] being much smaller than you.

[27] Mr Clee submits, however, that although a sentence of imprisonment would be appropriate as a starting point in my sentencing considerations, such a sentence would not be appropriate because of the nature of the evidence and the offence for which you are ultimately convicted, because of the background and particularly, and I will refer to this also, your genuine remorse.
[28] In the particular circumstances of this case I do not need to follow a formulaic approach. Sentencing options in the Cook Islands for an offence of this type are limited to a sentence of imprisonment; a term of probationary supervision which may be accompanied by a direction that part of that period would comprise some community service; or a fine. If a sentence of imprisonment was appropriate for your offending it would have been for only a relatively short term in the end, possibly between 3 and 6 months. In the New Zealand context you might have been eligible for a punishment of home detention. You did not plead guilty but I am aware that there was some discussion between the Crown and you about appropriate charges. I do not think it is relevant that during the trial you indicated your willingness to plead guilty to the included defence because your conviction on that charge was inevitable.
[29] You have a history of criminal offending in New Zealand where I note you were born and spent considerable time before, I think, around about 2015. I disregard that history, however, because it is not relevant as an aggravating factor and your last offence in New Zealand was a relatively minor conviction in 2016.
[30] You have one previous conviction in the Cook Islands for violence: common assault in February 2015, but it cannot have been a serious offence because you were sentenced only to a fine of $200. You are now aged 35 and you are employed at a resort in Arorangi where you live and I understand that you are well-regarded by your employer. You regularly send money to [B] who is in New Zealand to help support her and the children and you are hopeful she will return to Rarotonga so you can be reunited as a family. I do not know what prospect that holds for you and I am not going to speculate about it.
[31] You spent 17 days in custody pending trial and you have had restrictive bail conditions for at least some of the period since you were arrested. Importantly, Mr Tunupopo, I accept that you are genuinely remorseful for what you did and I accept that the apology which you have offered and which will be forwarded to [A] and her parents is genuinely felt. I do not know whether you and the other members of [B]’s family can be reconciled but I certainly would not want to make any order that stood in the way of that.
[32] I am satisfied however that no useful purpose would be served by sending you to jail even though this was a serious assault. The Probation Officer does not recommend imprisonment.
[33] In my view a period of probationary supervision will assist your rehabilitation in that it will provide you an opportunity to receive an appropriate intervention in the form of counselling or the attendance at courses if they are available to learn how to control your temper and to help you find the tools to avoid confrontation in your family interactions. There is no doubt that [A] and her parents are fearful of you and concerned for [B] and the children. That is a matter which you need to address.
[34] Probationary supervision may limit your ability to travel to New Zealand but I would not want a term of probation to get in the way of a reconciliation with [B] and your family if that is something that she would welcome.
[35] The probation officer recommends a period of 12 months’ probation which is the minimum but I think a longer period is necessary to enable any anger management problems to be addressed. The letter that I received from [B] when there was an issue about whether you should have bail pending sentence suggests she may not be as concerned about your behaviour as the other members of her family but that, as I say, is a matter between you and her. You need to stay away from [B]’s family however if they do not want to see you.
[36] I note that Mr Clee does not oppose a period of community service being served by you, which is appropriate because violence in the community is a community problem and you should acknowledge that by doing something to benefit the community as a whole.
[37] Would you please stand and go into the dock, Mr Tunupopo.
[38] On the charge of injuring by an unlawful act on which you were found guilty, I convict you and order that you serve a period of 18 months’ probation, the first three months of which will comprise community service. The conditions of your probation will be that:

• (a) you shall undergo any counselling or course to address violent tendencies and anger management problems;
• (b) you are not to contact or attempt to contact [C], [D] or [A] without the prior approval of a probation officer; and
• (c) you are not to leave the Cook Islands without the prior approval of the probation officer.

[39] You have offered to pay compensation to both [A] and [C] in substantial sums and I take that into account, and it is to your credit that you have done that. I realise that that will not be an easy thing for you to do. As a further condition of your probation and with your consent I order that you pay [A] $1,000 to compensate her for her loss of two weeks’ wages and for the harm that she suffered; and that you should pay [C] also the sum of $1,000 to compensate him for the distress and also for the need for him to come to Court and give evidence on two days.
[40] I wish you well in the future, Mr Tunupopo. I hope you and the family can sort this out and that you are never before the Court again. You may stand down.
[41] During my delivery of the sentence, I overlooked dealing with the porta filter, an exhibit produced during the trial. I order that the exhibit shall be released and returned to Mr Tunupopo immediately.

________________________

C H Toogood, J

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^[1] See Criminal Procedure Act 1980-81, Part II.

^[2] R v Kamana CA 504/22, 28 June 2022.