Austin v The King
[2024] NZCA 420
•4 September 2024 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA514/2017 [2024] NZCA 420 |
| BETWEEN | SHAUN DAVID AUSTIN |
| AND | THE KING |
| Court: | Thomas, Jagose and Grice JJ |
Counsel: | Applicant in Person |
Judgment: | 4 September 2024 at 3.30 pm |
JUDGMENT OF THE COURT
The application for leave to withdraw the notice of abandonment of sentence appeal is declined.
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REASONS OF THE COURT
(Given by Thomas J)
In 2017, Shaun Austin was sentenced to 11 years’ imprisonment on one charge of aggravated robbery and one of wounding with intent to cause grievous bodily harm, with a two-year concurrent sentence on one charge of injuring with intent to injure.[1] His appeal against conviction was dismissed by this Court on 30 August 2018.[2] Mr Austin had abandoned his appeal against sentence.
[1]R v Austin [2017] NZDC 18676 [sentencing notes]; and Crimes Act 1961, ss 235(c), 188(1) and 189(2).
[2]Austin v R [2018] NZCA 334.
Mr Austin has now applied for leave to withdraw the notice of abandonment in respect of the sentence appeal on the grounds the Judge failed to consider relevant factors set out in a cultural report completed on 15 September 2023.
Procedural background
Mr Austin originally purported to appeal his sentence but, given his earlier abandonment of his sentence appeal, the application has been treated as an application for leave to withdraw the notice of abandonment.
At the time of the application, Mr Austin was represented by counsel. He confirmed the sole ground of appeal was that the sentence was manifestly excessive on the grounds the Judge failed to consider relevant factors set out in a much later obtained cultural report. The cultural report was completed in 2023 and, in counsel’s submission, outlined a nexus between Mr Austin’s background and the offending.
Counsel acknowledged the timetable for submissions and sought an extension of time to confirm instructions. He then filed a memorandum dated 15 July 2024, saying that multiple attempts had been made but Mr Austin refused to engage with counsel and declined to attend the meetings and telephone calls counsel organised.
The application was set down for a hearing on the papers in the week of 29 July 2024. The cultural report, being a Hōkai Tapuwae report completed by Kōhatu Mauri on 15 September 2023, is on the Court file.
A party is not obliged to file submissions. The Court of Appeal (Criminal) Rules 2001 notes that the Registrar must appoint a period within which “submissions may be made”.[3] By Minute dated 24 July 2024 sent to counsel and separately to Mr Austin, the Court directed that any submissions which were to be filed were required by 31 July 2024.
[3]Court of Appeal (Criminal) Rules 2001, r 29(4) (emphasis added).
No further submissions have been received either from counsel or Mr Austin. The Crown filed and served submissions.
Sentencing
Mr Austin was sentenced on 22 August 2017 in the District Court at Auckland by Judge Blackie.
As the charges suggest, the offending was serious. It involved two male victims who had been fishing at Ti Point Wharf at Leigh in the late evening of 31 March 2015.[4] When one of them was in his car, Mr Austin approached him, brandishing an axe, threatening and punching the victim to force him to hand over his wallet and keys. Mr Austin then dragged the victim out of the car and got in himself, driving off at speed. He then stopped and there was a physical confrontation with the victim, whom Mr Austin kicked and punched while the victim was on the ground. Mr Austin hit the victim on the head with the axe. When the other victim tried to intervene, he was prevented from doing so by Mr Austin’s co-offender. The other victim was assaulted by both offenders. Mr Austin and the co-offender drove off, leaving “a bloody mess”.[5] The first victim survived but required extensive treatment. He sustained two serious injuries to the top of his head through being struck with the axe, a fractured cheekbone, wounds to his hands, multiple abrasions and bruises, and a fractured nose. He was traumatised by the attack. The second victim suffered bruises and scratches, as well as a minor neck injury.
[4]These facts are as set out in the sentencing notes, above n 1.
[5]Sentencing notes, above n 1, at [6].
The Judge set a starting point on the wounding charge by reference to R v Taueki.[6] He noted the aggravating factors of extreme violence, with the use of an axe to inflict injury to the head of an innocent individual, and the number of offenders, among others.[7] There was also the aggravated robbery charge. The Judge took a starting point of eleven and a half years’ imprisonment.[8] He noted the pre-sentence report did not offer much help and he said:
[22] … The only thing of a personal circumstance which are set out in the letter that has been obtained or has been provided to me by your partner. To some extent that is touched on in the pre-sentence report but that may be explained on account of the fact that things about your past, your very distant past, your early childhood, have never been properly brought to light. I am prepared to give some weight to what your partner says and give you a credit, discount of six months from the sentence which I would otherwise have imposed. So the ultimate sentence for you is going to be one of 11 years’ imprisonment.
Assessment
[6]At [12], citing R v Taueki [2005] 3 NZLR 372 (CA).
[7]Sentencing notes, above n 1, at [14]–[17].
[8]At [21].
A notice of abandonment may be set aside if exceptional circumstances exist meaning the abandonment needs to be withdrawn in the interests of justice or when the abandonment is not the result of a deliberate and informed decision.[9] There is no suggestion Mr Austin was in the latter position.
[9]Herlund v R [2022] NZCA 464 at [37], citing Warren v R [2022] NZCA 179 at [19] and R v Cramp [2009] NZCA 90 at [26].
We have considered the cultural report prepared by Kōhatu Mauri. It is described as a Hōkai Tapuwae commissioned report, being a report commissioned by the Department of Corrections to address cultural factors and as an alternative to a cultural report prepared pursuant to s 27 of the Sentencing Act 2002. To participate in Hōkai Tapuwae, whānau must identify as Māori.
The report provides details of Mr Austin’s childhood, frequent moves around the country, and the violence he experienced at home. By the age of 13, he was homeless and had left school. He experienced abuse on a number of fronts.
The letter to which the sentencing Judge referred is on the Court file. It is a detailed two-page letter and contains essentially the same information as that now before the Court by way of the Hōkai Tapuwae report.
It is therefore evident that this information about Mr Austin was before the sentencing Judge, who made an allowance in respect of it and who sentenced Mr Austin in accordance with the guideline judgment for the offending.[10]
[10]Sentencing notes, above n 1, at [22].
There is nothing before the Court to suggest that the overall sentence was in error and that it would be in the interests of justice to grant Mr Austin leave to withdraw his notice of abandonment of appeal.
Result
The application for leave to withdraw the notice of abandonment of sentence appeal is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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