August v R - [2011] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/2010
[2011] NZCA 91

BETWEEN JUSTIN CODY TAI AUGUST
Appellant

AND THE QUEEN
Respondent

Hearing: 24 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: T Sutcliffe for Appellant
M D Downs for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading August v R

Details

AGLC: August v R [2011] NZCA 91
Case: [2011] NZCA 91
Decision Date: 24 March 2011

CaseChat Overview and Summary

Justin Cody Tai August appealed against the sentence imposed on him by the Hamilton District Court, where he was convicted of intentionally causing grievous bodily harm, leaving the victim in a permanent vegetative state. The Crown Law Office represented the respondent, the Queen, in the Court of Appeal of New Zealand, which heard the appeal on 24 February 2011. The appeal was determined by O'Regan P, Winkelmann, and Chisholm JJ. The appellant was represented by T Sutcliffe, and the respondent by M D Downs. The Court delivered its judgment on 24 March 2011.

The appeal against sentence alleged two errors by the sentencing Judge: (a) issuing a first warning under s 86B of the Sentencing Act, and (b) adopting the maximum penalty as the starting point, resulting in a manifestly excessive sentence. If the appeal succeeded, a corresponding adjustment was sought to the minimum period of imprisonment. The Court found that the first warning under s 86B was not applicable to the case as the offending predated the Sentencing and Parole Reform Act 2010. Consequently, this ground of appeal succeeded, and the first warning was quashed. However, the Court held that the starting point adopted by the sentencing Judge was not beyond the range available to him, and the appeal against the sentence failed in all other respects.

The offending involved an attack by the appellant on the victim, resulting in severe injuries, including facial and skull fractures, brain swelling, and bleeding in the brain, leaving the victim in a permanent vegetative state. The appellant admitted to kicking the victim on the head at least five times after the victim lost consciousness and stomping on the victim's head approximately 15 times. The Court found the intensity and brutality of the attack to be at the extreme end of the spectrum and the impact on the victim to be severe. The Court also considered the psychiatric report indicating that the appellant suffered from abnormal personality development with predominant anti-social and borderline traits and dysthymia (chronic depression). The sentencing Judge had identified several aggravating features of the offending and rejected suggestions of provocation or diminished responsibility on the part of the appellant.

The Court concluded that the offending could be categorised as one of the most serious cases under s 188 of the Crimes Act 1961. Although the starting point of 14 years adopted by the Judge was stern, it was not beyond the range available to him. The Court rejected the argument that the end sentence was manifestly excessive because the starting point was too high. Therefore, the appeal against the sentence was dismissed in all other respects.

In conclusion, the appeal against sentence was allowed in part, with the first warning issued under s 86B of the Sentencing Act being quashed. In all other respects, the appeal was dismissed.

Orders