Abrams v Police HC Wellington CRI-2011-485-40

[2011] NZHC 1045

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-40

RAYMOND TAKI ABRAMS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 June 2011

Appearances: V Nisbet for the appellant

M Ferrier for the respondent

Judgment:      29 June 2011

JUDGMENT OF CLIFFORD J

Introduction

[1]      On  27  January  2011  the  appellant,  Mr  Abrams,  pleaded  guilty  before Judge Behrens in the District Court at Wellington to one charge of assault with a weapon pursuant to s 202C(A) of the Crimes Act 1961.   Mr Abrams had initially been charged with wounding with intent to cause grievous bodily harm.  Mr Abrams was subsequently sentenced by Judge McKegg to a term of imprisonment of two years and six months.

[2]      Mr Abrams appeals that sentence.

ABRAMS V POLICE HC WN CRI-2011-485-40 29 June 2011

Facts

[3]      The events that led to the charge Mr Abrams faced occurred on 19 September

2010.  Mr Abrams was intoxicated.  He had been drinking at his home together with his victim. An argument ensued during which Mr Abrams was abused by his victim. His  victim  decided to  leave.    Mr Abrams  armed  himself  with  a metal  bar and followed him.   Mr Abrams attacked his victim from behind with the metal bar, hitting him on the top of his head.  This caused his victim serious injury including bleeding to the brain and a fractured skull.  Mr Abrams hit the victim again while he lay on the ground, although that blow did not cause significant injury.

Sentencing decision

[4]      In sentencing Mr Abrams, the Judge noted the key features of the attack, including the extreme unprovoked violence involved and the fact that Mr Abrams struck the victim as he lay helpless on the ground.  By reference to R v Harris,[1] the Judge set a starting point of three years.  He uplifted that by six months to take into account Mr Abrams’ lengthy list of previous convictions, including many for violent offending.  The Judge then allowed a full 25 per cent discount for Mr Abrams’ guilty plea, rounding that discount up to 12 months.  On that basis the Judge imposed an end  sentence  of  two  years’ and  six  months’ imprisonment.   As  that  was  not  a sentence  of  short  duration,  the  Judge  did  not  turn  his  mind  to  whether  home

detention would be a more appropriate sentence.

Grounds of appeal

[1] R v Harris CA479/08, 3 December 2008.

[5]      There   is   no   challenge   to   the   starting   point   of   three   years   set   by Judge McKegg,  nor to the uplift for Mr Abrams’ previous offending, nor to the discount for his guilty plea.  Rather, Mr Abrams argues that:

(a)       the  Judge  failed  to  fully  acknowledge  the  appropriate  mitigating features personal to Mr Abrams, and as such he should have been

given a further discount; and

(b)had the Judge properly discounted from the starting point, he would have been in a position to consider home detention.

Analysis

[6]      In effect, Mr Abrams argues that the Judge failed to give him appropriate credit for what he says  is the substantial  progress he has made away from his previous history of alcohol abuse and violence.

[7]      At  the  time  of  this  offending  Mr Abrams  was  subject  to  a  sentence  of intensive supervision for March 2010 offending involving resisting the Police, threatening to kill and doing grievous bodily harm.   Mr Abrams was also on bail following an assault on his partner.   In the circumstances, it is not surprising that Mr Abram’s pre-sentence report was less than positive.   The Judge acknowledged that there did seem to have been some positive efforts by Mr Abrams to resolve his alcohol related history of violent offending.  At the same time the Judge observed, somewhat conservatively it might be thought in light of this further offending, that such progress “has had its moments of uncertainty”.  By my assessment, Mr Abrams’ offending  in  this  serious  manner,  whilst  subject  to  a  sentence  of  intensive supervision, counts against an optimistic assessment of Mr Abrams’ progress.  Given that, I do not accept – as it was put in written submissions prepared by Ms Gould for Mr Abrams – that those matters justified a further discount of six to nine months. Moreover,  the  fact  that  Mr Abrams’  victim  may  have  expressed  a  wish  that Mr Abrams receive treatment, and if possible not be subject to a custodial sentence, was something taken account of by the Judge.  As the Judge himself acknowledged, however, the views of a victim are not determinative.

[8]      This was serious offending, which resulted in a fractured skull and bleeding to the brain.  Unfortunately Mr Abrams has a lengthy history of violent offending.

[9]      In my view, this sentence cannot be regarded as being manifestly excessive. The Judge did not err in declining to provide a further discount to  Mr Abrams because of progress with rehabilitation.

[10]     This appeal is dismissed.

“Clifford J”

Solicitors:

R Gould, Barrister, P O Box 12549, Wellington for the appellant ([email protected])

The Crown Solicitor, P O Box 10-357, Wellington for the respondent ([email protected])