August v R
[2011] NZCA 91
•24 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA372/2010 [2011] NZCA 91 |
| BETWEEN JUSTIN CODY TAI AUGUST |
| AND THE QUEEN |
| Hearing: 24 February 2011 |
| Court: O'Regan P, Winkelmann and Chisholm JJ |
| Counsel: T Sutcliffe for Appellant |
| Judgment: 24 March 2011 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed in part.
B The first warning under s 86B of the Sentencing Act 2002 is quashed.
C In all other respects the appeal is dismissed.
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Reasons of the Court
(Given by Chisholm J)
After pleading guilty in the Hamilton District Court to intentionally causing grievous bodily harm which left the victim in a permanent vegetative state, Mr August was sentenced by Judge Spear to nine years, four months imprisonment. When arriving at that sentence the Judge took the maximum sentence (14 years imprisonment) as his starting point. Mr August was ordered to serve a minimum period of imprisonment of six years and a first warning was issued under the s 86B of the Sentencing Act 2002.
This appeal against sentence alleges that the Judge erred in two respects:
(a)by erroneously issuing a first warning under s 86B of the Sentencing Act;
(b)having erroneously adopted the maximum penalty as his starting point, he arrived at a sentence that was manifestly excessive.
If the appeal succeeds, a corresponding adjustment is sought to the minimum period of imprisonment.
The offending
Early in the evening of 1 October 2009, Mr August indicated to another person that he was “going to bash someone”. Later that evening, he and a number of other people began drinking at the victim’s home.
A verbal disagreement between Mr August and the victim resulted in Mr August pushing the victim onto a couch and beginning to punch him. When the victim fell to the floor, Mr August started kicking him about his upper body and head. He also stomped on the victim’s head. Although the victim lost consciousness, the attack to the head continued.
Following the attack, Mr August left the address and the other people present put the unconscious victim into his bed where he was left for the night. The next morning the victim was found to be still unconscious and in a critical condition. He was transferred to the Waikato Hospital where it was established that he was suffering from facial and skull fractures, brain swelling and bleeding in his brain.
When Mr August was spoken to by the police later that day he admitted that he had assaulted the victim. He said that he had kicked him on the head at least 10 times, that by the fifth kick the victim had lost consciousness, and that he had stomped on the victim’s head about 15 times. He estimated that the assault would have lasted 10 to 15 minutes and said that he wanted the victim to feel pain. His explanation for the assault was that the victim had been spreading rumours about him and had sexually harassed a female friend.
For some time the victim’s life hung in the balance and the police delayed formulating a charge until the outcome became more certain. Mr August pleaded guilty as soon as the charge was laid. The victim remains in a permanent vegetative state. He is bed-bound and unable to talk or move. He is fed and hydrated through a drip and has a tracheostomy to assist with breathing.
The appellant
Mr August is 23 years of age. Prior to this offending his only conviction of any significance was for possessing an offensive weapon in respect of which he was required to come up for sentence if called up. He had not served any prison or community based sentences.
Although the probation officer’s analysis using the Department’s methodology indicated that the risk of re-offending was low, the probation officer considered that it was more realistic to regard the risk as medium to high. This reflected the nature of the offending and the unpredictable conduct of Mr August when he is indulging in alcohol and drugs.
The sentencing Judge also had the benefit of a psychiatric report which indicated that Mr August suffers from abnormal personality development with predominant anti-social and borderline traits. The psychiatrist considered that Mr August was suffering from dysthymia (which is chronic depression characterised by low mood more days than not, which is influenced largely by life events).
Sentencing in the District Court
After summarising events giving rise to the charge, Judge Spear turned to the consequences for the victim. He noted that the victim would never recover from the vegetative state in which he was left and that there was a fine line between this offending and murder. The Judge rejected any suggestion of provocation by the victim or diminished responsibility on the part of Mr August.
Aggravating features of the offending were identified by the Judge:
(a)the offending was premeditated;
(b)there was an extensive attack to the head involving both kicking and stomping even after the victim had lost consciousness;
(c)the effect on the victim was extreme.
Judge Spear endorsed the Crown’s submission that the intensity and brutality of the attack “defied belief”.
Having considered R v Taueki[1] and s 8(c) and (d) of the Sentencing Act the Judge addressed, and rejected, the defence submission that this case could not be considered the most serious of its kind. He decided that the injury to the victim was the overriding factor and that the only difference between this case and murder was “a formal pronouncement of death”. He adopted a starting point of 14 years imprisonment and, having allowed a one third discount for the guilty plea, arrived at the sentence of nine years, four months imprisonment.
First ground of appeal – the s 86B warning
[1] R v Taueki [2005] 3 NZLR 372 (CA).
At the time of sentencing, the Judge expressed uncertainty about whether a first warning was required under s 86B of the Sentencing Act. However, he took the precaution of issuing a warning.
It is now common ground the warning should not have been given because the offending pre-dated the Sentencing and Parole Reform Act 2010, which inserted s 86B into the Sentencing Act. Under s 12(1) of the Sentencing and Parole Reform Act, s 86B does not apply to any offence committed before the commencement of that Act. This limb of the appeal must succeed.
Second ground of appeal – the starting point and ultimate sentence
Appellant’s argument
Mr Sutcliffe submitted that the starting point of 14 years was too high and that this led to a sentence that was manifestly excessive. He noted that at sentencing there was no reference by counsel or the sentencing Judge to any comparable sentencing authorities. He also noted that the Crown had advanced a starting point of 12 years imprisonment. His submission was that this case could not be properly regarded as one of the most serious of its kind.
Several sentencing decisions involving intentional grievous bodily harm were relied on by Mr Sutcliffe to support the proposition that the starting point was too high: R v Stewart,[2] R v Connelly,[3] R v Turahui,[4] and R v Woodcock.[5] He argued that although each of those cases presented more aggravating features than the present case, the starting points were “manifestly lower” than the starting point in this case.
[2] R v Stewart CA21/06, 31 August 2006.
[3] R v Connelly [2008] NZCA 550.
[4] R v Turahui HC New Plymouth CRI 2006-021-17, 8 October 2007.
[5] R v Woodcock HC Rotorua CRI 2008-019-783, 30 October 2009.
Mr Sutcliffe submitted that a starting point of 11 to 12 years should have been adopted and that the one third reduction for the early guilty plea should stand. He claimed that the end result should have been a sentence in the vicinity of seven years, four months to eight years imprisonment, with an accompanying minimum period of imprisonment of between four and four and a half years.
Crown’s response
Mr Downs submitted that this offending was at the extreme end of each of the Taueki aggravating features identified by the sentencing Judge. He submitted that, in combination, the features were sufficiently grave to place the offending at or near the top of the Taueki band 3. Thus, the Judge had not erred in adopting the maximum penalty as the starting point.
The Crown acknowledged that an equally serious case could arise through very different facts, for example, a gang attack with weapons upon a police officer in the execution of the officer’s duty, or the intentional infliction of grievous and permanent harm on a child by his or her parents. But, submitted Mr Downs, other offending might be equally severe through various combinations of different aggravating features and the top of this band is not reserved for particular fact patterns but rather for the worst cases involving s 188 offending, however they arise.
Alternatively, the Crown argued, the 33% discount afforded for the guilty plea was generous having regard to the decision of the Supreme Court in Hessellv R.[6] Consequently, even if the starting point was too high, the end sentence was not manifestly excessive.
Discussion
[6] Hessellv R [2010] NZSC 135.
As this Court said in R v Xie with reference to s 8(c) of the Sentencing Act:[7]
First, s 8(c) does not confine the injunction to impose the maximum penalty to only the most serious cases it is possible to imagine. The paragraph merely requires the offending to be “within the most serious of cases”. Secondly, it is always possible to think of more serious cases; if that were not the test, no one could ever be sentenced to the maximum penalty, and that is clearly not the parliamentary intention.
Thus the primary issue in this case is whether Mr August’s offending can be properly categorised as falling within the most serious cases under s188 of the Crimes Act 1961.
[7]R v Xie [2007] 2 NZLR 240 (CA) at [26]; Section 8(c) requires the Court to impose the maximum penalty if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
We agree with Mr Downs that the top of the Taueki band 3 is not preserved for particular fact patterns and that equally serious cases can arise through different factual combinations. Moreover, as this Court said in Xie,[8] cases falling within the most serious category are not confined to cases at the limits of human imagination. We should also add that the fact that counsel were unable to locate any cases where the maximum penalty was used as the starting point for intentionally causing grievous bodily harm is not decisive. Obviously Parliament contemplated that there would be such cases.
[8]At [26].
Turning to this case, we are satisfied that it can be categorised as one of the most serious cases of its kind and that while the starting point of 14 years adopted by the Judge was stern, it was not beyond the range available to him. As Judge Spear commented, the intensity and brutality defies belief. And the impact on the victim speaks for itself.
With reference to matters contributing to the seriousness of grievous bodily harm offending this Court commented in Taueki that the extent of the violence will have an obvious impact on the level of criminality and a severe beating or kicking causing head injuries will be treated like offending involving the use of a weapon.[9] In this case the extent of the violence was at the extreme end of the spectrum. By Mr August’s own admission he continued kicking the victim on the head at least five times after he was aware that the victim had lost consciousness. In addition, he stomped the victim’s head approximately 15 times. The criminality was aggravated by the premeditation and Mr August’s admitted desire to inflict pain on the victim.
[9] At [31](a) and (e).
Taueki also highlighted that a higher starting point is called for where the injuries are potentially fatal or are such as to cause long term or permanent disability on the victim’s quality of life.[10] In both respects the injuries to the victim could not have been more serious.
[10] At [31](c).
We do not accept that these conclusions are undermined by the cases relied on by Mr Sutcliffe. In terms of injury to the victim, Stewart is the closest to this case. The victim in that case was also left in a permanent vegetative state. A starting point of 11 years imprisonment had been adopted in the District Court and an appeal to this Court against the final sentence of 10 years imprisonment was dismissed. There is nothing in the decision of this Court to suggest that the starting point was at the top of the range available to the Judge. We also believe that the violence in this case was arguably more extreme than the violence in that case.
Connelly is also a decision of this Court. It involved an unprovoked assault by the appellant and another person on a life guard. On appeal to this Court the sentence of 10 years imprisonment (after trial) was upheld. While there were two attackers in that case, the violence and the outcome were nowhere near as serious as in this case.
Mr Sutcliff also referred to two sentencing decisions of the High Court (Turahu and Woodcock). Generally, decisions of a Court of first instance are of limited value in this Court. Having considered those decisions we are satisfied that they are of no assistance on this occasion.
The only issue was whether the end sentence was manifestly excessive because the starting point was too high. We have concluded that the starting point was within the range available to the Judge. Accordingly, this ground of appeal fails.
Result
The appeal is allowed in part. The first warning issued under s 86B of the Sentencing Act is quashed. In all other respects the appeal is dismissed.
Solicitors:
Thomas Sutcliffe, Hamilton for Appellant
Crown Law, Wellington for Respondent
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