Allerby v Police
[2012] NZHC 622
•2 April 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-443-000007 [2012] NZHC 622
BETWEEN MARK JOHN ALLERBY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 2 April 2012
Counsel: J C Hannam for Appellant
A S Law for Respondent
Judgment: 2 April 2012
ORAL JUDGMENT OF COLLINS J
Introduction
[1] The appellant appeals sentences imposed in the District Court following his pleas of guilty to:
(1) a charge of wounding with intent to cause grievous bodily harm
(GBH); and
(2) a charge of wounding with intent to injure. [2] The sentences imposed were:
(1) four years and six months in relation to the GBH charge; and
(2)two years and six months in relation to the charge of wounding with intent to injure.
ALLERBY V NEW ZEALAND POLICE HC NWP CRI-2012-443-000007 [2 April 2012]
Background
[3] The events leading to the charges are fully set out in the District Court
Judge’s notes on sentencing dated 8 February 2012. In summary:
(1)On 7 October 2011 the appellant purchased a .177 calibre Phantom air rifle and slug pellets from a sports store in Stratford. The rifle is said to be able to fire a pellet at 1,000 feet per second.
(2) Later that day the appellant and associates began consuming alcohol.
They started shooting at various targets, such as cans and glass bottles.
(3)The appellant then returned to the sports store to ask for advice on how to shoot straight. He purchased more pellets and was told that the air rifle could kill small animals such as possums and rabbits.
(4)On returning home the appellant became involved in a confrontation with the first victim. The appellant pointed the loaded air rifle at this victim and shot him in the leg.
(5)The victim suffered a significant amount of blood loss. He was admitted to Taranaki Base Hospital where he underwent surgery and was treated in hospital over a period of three days.
(6)After this incident the appellant shot the second victim, who was working at a neighbouring property. It appears the appellant shot this victim through a hedge that separated his property from the property where the second victim worked.
(7)The second victim was hit in his left elbow. He was also taken to the Taranaki Base Hospital where he underwent surgery and was treated over a five day period.
Guilty pleas
[4] The appellant pleaded guilty in the Hawera District Court on 15 November
2011 to the GBH charge in relation to the first victim and the charge of wounding with intent to injure in relation to the second victim.
Sentencing decision
[5] In his sentencing decision the District Court Judge:
(1) fully set out the facts admitted by the appellant; (2) referred to the fact the appellant was 18 years old;
(3)referred to the appellant’s criminal record commencing with an appearance in the Hawera Youth Court on 12 March 2010 followed by a series of 14 convictions during the course of 2010 and 2011 on a variety of charges, including burglary and breach of community work for which he was sentenced to two months’ imprisonment;
(4)found that in this case there were three aggravating factors identified by the Court of Appeal in R v Taueki;[1]
[1] R v Taueki [2005] 3 NZLR 372 (CA).
(5) assessed that the appellant’s case fell within band two of the Taueki
bands in relation to the GBH charge;
(6) adopted a starting point of five years in relation to the GBH charge;
(7)increased the starting point by a further 12 months to take account of the charge of wounding with intent to injure;
(8)gave the appellant credit for his early guilty pleas. This resulted in a sentence of four years and six months for the GBH charge;
(9)imposed a concurrent sentence of two years and six months on the wounding with intent charge; and
(10)gave the appellant a “three strikes” warning pursuant to s 86B(1) of the Sentencing Act 2002.
Appeal
[6] In this Court the appellant submits that the sentence imposed by the District
Court Judge was manifestly excessive. The appellant suggests:
(1) there was no premeditation in respect of the offending;
(2)that in relation to the GBH charge the starting point for sentencing should have been within band one of the Taueki classification. That is to say, the appellant suggests that the starting point should have been within the three to six year range based on his belief that only one of the Taueki aggravating factors exists in this case, namely use of a weapon; and
(3)that a final sentence of three and a half years’ imprisonment would be appropriate having regard to the appellant’s age and his early guilty pleas.
Crown submissions
[7] The Crown endorses the sentencing decision of the District Court. The Crown submits that the District Court Judge accurately applied the Taueki principles and that the sentence imposed was well within the range reasonably available to the District Court Judge.
Legal principles
[8] In Taueki the Court of Appeal explained that:[2]
Almost all GBH offences will involve a high degree of criminality (and significant injury to the victim) which will require the imposition of a term of imprisonment. It will be only in exceptional cases that a starting point of less than three years’ imprisonment will be appropriate: for example where the sentencing Judge considers the offending, while technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge.
[2] At [27].
[9] The Court of Appeal explained a number of factors that should be considered in assessing the appropriate band and the starting point within those bands. The bands set out by the Court of Appeal were:
Band one: 3 – 6 years;
Band two: 5 – 10 years; and
Band three: 9 – 14 years.
[10] The Court in Taueki identified 14 factors in paragraph [31] of its judgment that contributed to the seriousness of GBH offending. Those 14 factors are:
(1) Extreme violence;
(2) Premeditated offending; (3) Serious injury;
(4) Use of weapons;
(5) Attacking the head; (6) Facilitating crime;
(7) Perverting the course of justice; (8) Multiple attackers;
(9) Vulnerability of the victim; (10) Home invasion;
(11) Gang warfare;
(12) Where the victim is a law enforcement officer or other public official; (13) Vigilante action;
(14) Hate crime.
[11] In explaining band one the Court of Appeal said:[3]
This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at para [27] above. Where none of the aggravating factors referred to at para [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.
[3] At [36].
[12] In explaining band two, the Court of Appeal said this band will be appropriate for GBH offending, which features two or three of the 14 aggravating factors summarised in [10] of my judgment.
[13] The Court of Appeal also explained that band three would be appropriate where the offending involves three or more of the aggravating features summarised
in [10] of my judgment.
[14] The Court of Appeal explained the relevance of the circumstances of the offender in the following way:[4]
Once a starting point has been determined in accordance with the above criteria, it is then necessary to determine whether the aggravating or mitigating factors relating to the offender’s particular personal circumstances require that the actual sentence should be higher or lower than the starting point. This involves consideration of the factors mentioned in ss 8 and 9 of the Sentencing Act which relate to the offender, as opposed to the offending, as well as any other matters relevant to the personal circumstances of the offender. The most significant mitigating factor will normally be an early guilty plea, for which a substantial reduction from the starting point will normally be justified.
[4] At [44].
[15] While the primary focus of the Court of Appeal in Taueki was upon GBH, the
Court also said that it anticipated its guidelines would:[5]
[5] At [9].
... be able to be applied, by analogy, ... to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.
The Taueki principles were applied to a charge of wounding with intent to injure in
Davis v Police.[6]
Analysis
[6] Davis v Police HC Invercargill CRI-2005-425-000031, 16 March 2006.
[16] The primary issue on appeal is whether or not the District Court Judge
overstated the seriousness of the appellant’s conduct.
[17] It is the appellant’s case that only one of the aggravating factors identified by the Court of Appeal in Taueki exist in this case, namely the use of a weapon. The appellant therefore argues that the case is more properly one which fits within band one of the Taueki classifications.
[18] The Crown, however, submits that the following aggravating factors in
Taueki are present in this case:
(1) Premeditation;
(2) Seriousness of the injuries; and
(3) Use of the weapon.
[19] I do not agree with everything the District Court Judge said when he concluded three of the Taueki aggravating factors can be identified in the present case.
Premeditation
[20] My assessment of the first incident that occurred on 7 October 2011 is that the appellant deliberately fired a loaded air rifle at close range at the first victim. The evidence before the District Court Judge fully entitled him to reject suggestions that the appellant’s actions were impulsive.
The severity of the injuries
[21] My assessment of both incidents is that the victims’ injuries were significant. Both required surgery. The first victim was in hospital for three days. The second victim was in hospital for five days. The second victim in particular suffered considerable pain in his elbow joint. At the time of sentencing it was thought that the second victim would need considerable rehabilitation to gain movement in his arm and that he would continue to have ongoing medical issues with his elbow. The victim impact report completed by the second victim highlights the significance of the injuries he suffered. While I regard the injuries to both victims as significant, they were not potentially fatal. It was noted by the Court of Appeal in Taueki that “... care has to be taken not to double-count the level of violence inflicted and the
seriousness of the injuries which resulted from it”.[7] For this reason, while I do not
minimise the significance of the injuries inflicted by the appellant, I do not believe they constitute a special aggravating feature in this case.
Use of a weapon
[7] At [31(c)].
[22] All agree this aggravating factor exists in the present case.
[23] I consider the GBH charge in this case is on the cusp of the first and second Taueki bands. Accordingly, I would not depart from the five year starting point used by the District Court Judge in this case.
[24] In the District Court, the appellant’s then counsel “... conceded that the Court may consider an uplift to the starting point to accommodate the second (and less serious charge)”. The District Court Judge imposed a one year addition to his five year starting point to reflect the charge of wounding with intent to injure. No issue was taken with this approach on appeal. It is an approach which I consider to be sound in principle and appropriate in the circumstances of this case.
[25] Accordingly, like the District Court Judge I reach a maximum starting point of six years’ imprisonment in this case. From that point I would give the appellant an 18 months’ discount for his early pleas of guilty.
[26] The only matter I would take issue with the District Court Judge over is the influence of the appellant’s age on the sentence that should be imposed. The District Court Judge did recognise the appellant’s age in his sentencing notes, but he did not appear to have specifically taken that factor into account when reaching his final assessment of the appropriate prison sentence in this case.
[27] Age is specifically identified in s 9(2)(a) of the Sentencing Act 2002 as a mitigating factor that can be taken into account when imposing sentence. In R v Wilson[8] the Court of Appeal said the following about the effects of age in relation to assessing the correct period of imprisonment:
[8] R v Wilson [1989] 2 NZLR 308 (CA) at 311 - 312.
...
Some allowance must always be considered in the case of young offenders, to take into account their lack of maturity and the hope - perhaps a vain one
in this case - that they have not become so set in their ways that reform or rehabilitation is out of the question.
[28] I believe that in this case it is appropriate to recognise the appellant’s age when determining the appropriate prison sentence which needs to be imposed. The sentence imposed by the District Court Judge was a hefty sentence and one that in my respectful view did not reflect the appellant’s lack of maturity and his youthful stupidity. For this reason I believe the appellant’s age requires the Court to reduce his prison sentence by a period of six months.
Wounding with intent to injure
[29] The sentence of two years six months for wounding with intent to injure should not be altered. I note in relation to that offence there were two aggravating features:
(1)The appellant appears not to have learnt his lesson from the first incident. Instead of putting the air rifle away, he continued to use it and intentionally wounded the second victim. That conduct shows a disturbing lack of regard to the safety of others.
(2)The second victim was a completely innocent person who has been traumatised by the events that unfolded.
Conclusion
[30] The appeal against sentence of four years six months in relation to the GBH
charge is allowed.
[31] A sentence of four years is substituted for that offence. The sentence of two years six months for wounding with intent to injure will be served concurrently.
[32] I reiterate for the appellant’s benefit that the “three strikes” warning given to
him by the District Court Judge on 8 February remains in force.
D B Collins J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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