Aitken v R
[2022] NZCA 593
•1 December 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA6/2022 [2022] NZCA 593 |
| BETWEEN | JOHN AITKEN |
| AND | THE KING |
| Hearing: | 30 September 2022 |
Court: | Miller, Brewer and Moore JJ |
Counsel: | C G Tuck, X Wang and A O Belloir-Spense for Appellant |
Judgment: | 1 December 2022 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Background
John Aitken was charged with injuring with intent to cause grievous bodily harm[1] and threatening to kill[2] after he violently attacked a person who he believed had assaulted his son a few days earlier.
[1]Crimes Act 1961, s 189(1). Maximum penalty of 10 years’ imprisonment.
[2]Crimes Act 1961, s 306(1)(a). Maximum penalty of seven years’ imprisonment.
Mr Aitken elected trial by jury. On the morning his trial was scheduled to start, he sought an adjournment in order to locate and call a witness in his defence. He claimed the assault in question was a pre-emptive strike which was justified in self‑defence. Apparently, the witness could give evidence of events which occurred about three days before the assault.
Judge Harding declined to grant an adjournment.[3] He considered that the unavailability of the witness would not adversely affect Mr Aitken’s fair trial rights because the availability of an effective defence on the basis advanced in argument was “slim”.[4]
[3]R v Aitken [2021] NZDC 18502.
[4]At [9]–[10].
Mr Aitken then pleaded guilty to both charges. On 15 December 2021, the Judge sentenced him to four years and nine months’ imprisonment.[5]
[5]R v Aitken [2021] NZDC 24869 [Sentencing notes].
Mr Aitken initially sought to appeal both his conviction and sentence. He has since abandoned his conviction appeal. This judgment deals with the sentence appeal.
The offending
On 24 February 2021, the victim, B, was sitting on a bench outside shops in Mount Maunganui. Mr Aitken parked his vehicle outside the shops and got out. He walked directly towards B.
Mr Aitken then meted out a violent and sustained assault on B. He punched him about 10 times to the head and upper body. B was knocked unconscious and fell from the bench onto the footpath. With B on the ground, Mr Aitken continued his attack. He stomped on B’s upper body, kicked him twice in the head, struck his head twice, and then a third time before, finally, punching him in the head another two times.
During the assault Mr Aitken told B to get out of town otherwise he would kill him. He asked him why he had picked on his son. B’s cousin was present as these events unfolded. She shouted at Mr Aitken asking what B had done. Mr Aitken’s response was that B “shouldn’t go around smashing up 12 year old boys”. He told her that if she did not “shut up” he would cut off B’s head and kill her with it.
Mr Aitken then left in his car.
B was taken to hospital. His injuries were serious. He was knocked unconscious. He suffered contusions to his head, blood in his lungs and several fractured ribs. He is now permanently disabled as a direct result of the attack. He has lost vision in his right eye.
District Court sentencing
Judge Harding considered that Mr Aitken’s offending involved a “serious unprovoked and unexpected attack”.[6] He placed it between bands 2 and 3 of R v Taueki.[7] He adopted a starting point of seven years’ imprisonment on the injuring with intent charge.[8] He then applied a six-month uplift to account for the threatening to kill charge and Mr Aitken’s relevant previous convictions.[9]
[6]At [14].
[7]At [14], referring to R v Taueki [2005] 3 NZLR 372 (CA).
[8]At [14].
[9]At [14].
The Judge then applied a global 35 per cent discount for Mr Aitken’s guilty pleas, personal background circumstances, attendance at a restorative justice conference, completion of a rehabilitative course and remorse.[10] The precise credit for each factor was not articulated.
[10]At [14]–[15].
The Judge thus reached an end sentence of four years and nine months’ imprisonment.[11] He concluded that this was “quite some distance from any prospect of home detention”, which he described as “not remotely feasible”.[12]
[11]At [15].
[12]At [15].
The calculation of this end sentence involved a minor mathematical error. A 35 per cent reduction from the adjusted starting point of seven years and six months’ imprisonment yields a sentence of four years and 10 and a half months’ imprisonment. This slight error meant that Mr Aitken’s end sentence was one and a half months less than that intended by the Judge.
Approach on appeal
This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.[13] The focus is on the sentence imposed, rather than the process by which it is reached.[14] The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.[15] To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.[16]
Grounds of appeal
[13]Criminal Procedure Act 2011, s 250(2).
[14]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[15]At [36].
[16]At [35].
Mr Aitken’s grounds of appeal are that the Judge erred by:
(a)adopting a starting point that was too high; and
(b)giving insufficient credit for personal mitigating factors.
Did the Judge err by adopting a starting point that was too high?
In his written submissions, Mr Tuck, for Mr Aitken, argued that the Judge adopted a starting point which was too high. He submitted Mr Aitken’s offending was spontaneous and the Judge erred by finding that premeditation was an aggravating factor. He also submitted that the remaining aggravating factors overlap, such that the offending falls squarely within band two of Taueki.
However, at the hearing, this submission was not advanced with vigour. Mr Tuck acknowledged that challenging the starting point would be difficult. He conceded that it was within the available range. Instead, he focused his argument on Mr Aitken’s second ground of appeal, which is that insufficient credit was given on account of personal mitigating factors.
For completeness we will briefly address the starting point adopted by the Judge.
The aggravating factors and corresponding bands set out in Taueki are applicable to sentencing for injuring with intent to cause grievous bodily harm, provided appropriate adjustments are made to reflect the lesser maximum penalty.[17]
[17]R v Taueki, above n 7, at [9]. See also R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [37], n 39 where this Court noted that Taueki applies to offences involving intent to cause grievous bodily harm; and Solicitor-General v Milne [2020] NZCA 134 at [34]. See for example R v Wilkie-Morris [2016] NZHC 259; and R v Abbott [2013] NZHC 62.
Where the offence is wounding with intent to cause grievous bodily harm, starting points in band two range from five to 10 years’ imprisonment, while band three spans nine to 14 years’ imprisonment.[18] Injuring with intent to cause grievous bodily harm has a lesser maximum penalty of 10 years’ imprisonment.[19] The starting point for Mr Aitken’s offending must reflect that lesser maximum penalty.
[18]At [34].
[19]Crimes Act 1961, s 189(1).
Band two of Taueki is appropriate for offending involving two or three of the nominated aggravating factors.[20] Offending is elevated to band three where it engages three or more of those aggravating factors and where their combination is particularly grave.[21]
[20]R v Taueki, above n 7, at [38].
[21]At [40].
We consider that the Judge correctly identified the following aggravating factors as engaged:
(a)Although the level of premeditation was limited, it did involve Mr Aitken identifying B as the person he believed assaulted his son and then determining to attack him.[22]
(b)The violence against B was extreme and of an unprovoked nature.[23] B did not know his attacker and was sitting on a bench in a public place in the middle of the afternoon. We consider this factor to be present to a moderate to high degree.
(c)B’s head was targeted.[24] The blows included repeated punches and kicks to B’s head after he was knocked unconscious. We assess this factor as present to a high degree.
(d)B suffered serious injuries.[25] These included his head injuries, fractured ribs and blood in his lungs. The pre-sentence report and the victim impact report both record B saying that he now suffers from a visual impairment where he is unable to see colours. This factor is present to a moderate to high degree.
(e)B was vulnerable.[26] He had no warning of the assault. The beating was sustained and continued after he lost consciousness. We consider this factor present to a moderate degree.
[22]At [31(b)].
[23]At [31(a)].
[24]At [31(e)].
[25]At [31(c)].
[26]At [31(i)].
We also agree with Mr Thompson, for the Crown, that Mr Aitken’s offending is aggravated by the element of vigilante action involved.[27] Mr Aitken’s own explanation for his offending is that he believed B to have assaulted his son in the days prior to the assault. Meting out violent retribution engages this factor.
[27]At [31(m)].
The Judge placed Mr Aitken’s offending between bands two and three, adopting a starting point of seven years’ imprisonment.[28] We agree that this starting point is within the range where bands two and three could overlap, after adjusting the Taueki bands to account for the maximum penalty of 10 years’ imprisonment.
[28]Sentencing notes, above n 5, at [14].
Given the number of aggravating factors identified above, it is difficult to see how a starting point of seven years’ imprisonment can be criticised. Indeed, it might well be at the lower end of the available range.
Did the Judge err by giving insufficient credit for personal mitigating factors?
Mr Tuck and Mr Wang shared the principal argument on this appeal that the Judge gave insufficient credit for Mr Aitken’s personal mitigating factors. The thrust of the argument was the Judge ought to have adopted a merciful approach to Mr Aitken’s personal circumstances. Mr Wang submitted that Mr Aitken’s remorse, rehabilitative efforts and participation in a successful restorative justice conference could attract a discount of 20 per cent. Mr Tuck submitted that the discounts for Mr Aitken’s guilty plea and personal background circumstances should have been greater. He submitted that giving appropriate weight to all of these factors would result in a further one-year reduction.
The 35 per cent discount applied by the Judge took into account Mr Aitken’s guilty pleas, personal background circumstances, attendance at a restorative justice conference, completion of a rehabilitative course and remorse.
We accept that the restorative justice conference was successful insofar as the victim accepted Mr Aitken’s apology. It is also evident that Mr Aitken is genuinely remorseful and has completed a rehabilitative programme. Those factors are worthy of credit. We nevertheless view a 20 per cent discount for those factors as on the generous side, even if a discount of that magnitude was available to the Judge.
If we were to apply a 20 per cent discount for those factors, the remaining 15 per cent credit would be attributable to Mr Aitken’s guilty pleas and personal circumstances. We consider those discounts within the available range. A five per cent discount for a guilty plea entered on the morning of trial is not uncommon, although greater allowance has been made in some cases.[29] Here the pleas were entered in the face of what would appear to be an overwhelming Crown case.[30] A five per cent credit would have been appropriate. Nor was a 10 per cent discount for Mr Aitken’s personal circumstances insufficient, having regard to the contents of the cultural report. His upbringing included exposure to violence and gangs, which has some nexus with the index offending insofar as it involved him resorting to violent retribution. We do not consider those factors justify any greater discount.
[29]See for example McDonald v R [2021] NZCA 531 at [37]. The greater discount allowed in that case is justifiable on the basis that it involved historic child sex offending, meaning that the guilty plea avoided the retraumatisation of the victims through having to give evidence and provided them a degree of closure.
[30]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].
Nor do we consider that the Judge erred by not adopting what Mr Tuck referred to as a merciful approach. A component of that submission characterises Mr Aitken’s offending as a spur of the moment attack on someone who he believed attacked his son. This aspect of mitigation goes to the gravity of the offending, rather than personal circumstances. The personal circumstances which call for a merciful sentence are Mr Aitken’s remorse, rehabilitative progress and his successful restorative justice engagement. For the reasons given, we consider those factors were properly recognised by the Judge as part of the global discount, especially taking into account the favourable one and a half months’ discrepancy resulting from the mathematical error. The total discount was within the available range for the identified combination of factors.
This ground of appeal must fail.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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