Aydon v Police
[2023] NZHC 3122
•6 November 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2023-488-47
[2023] NZHC 3122
BETWEEN ISAAC VINNIE AKANGARO AYDON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 31 October 2023 Appearances:
J Scott for the appellant
D Soich for the respondent
Judgment:
6 November 2023
JUDGMENT OF CAMPBELL J
[Appeal against Sentence]
This judgment was delivered by me on 6 November 2023 at 10.00 am
Registrar/Deputy Registrar
AYDON v NEW ZEALAND POLICE [2023] NZHC 3122 [6 November 2023]
[1] Mr Aydon pleaded guilty to one charge of injuring with intent to injure. On 5 May 2023, Judge B A Gibson sentenced him to two years and seven months’ imprisonment.1 Mr Aydon appeals.
The Offending
[2] On 9 March 2023, Mr Aydon was at the Whangārei District Court to attend a Family Court matter between himself and his former wife. The assault occurred just before the matter was scheduled to be heard. The victim of the assault was a lawyer acting as counsel for Mr Aydon’s children.
[3] The attack occurred in a courthouse lift. The victim had taken the lift to the second floor, where the matter was to be heard. When the lift doors opened Mr Aydon saw the victim, launched at him, and punched him in the face knocking the victim backwards. The attack was unexpected and unprovoked.
[4] Mr Aydon entered the lift and the door closed behind him, trapping the victim. Mr Aydon’s attack continued as he punched the victim numerous times in the face and head and knocked him to the ground leaving the victim in a semi-conscious state.
[5] Mr Aydon was arrested immediately after the lift doors opened. He said he had assaulted the victim because he was the one keeping his children away from him.
Injuries and harm to the victim
[6] The victim suffered lacerations to his lip and forehead, extensive bruising to his face, back and arms, a fractured thyroid cartilage, a fractured nose and a deviated septum. In a victim impact statement made five weeks after the attack, the victim said he was suffering the effects of concussion. He had memory loss and was struggling with simple daily tasks. The victim requires further surgery on his nose, though a medical condition may make that inadvisable, in which case he will have to live with a crooked nose.
1 Police v Aydon [2023] NZDC 8621.
[7] The psychological effect of the attack was profound. He was unable to concentrate or cope with the triggers associated with his work. He had reassigned all his lawyer for child files to other lawyers and had another lawyer step in to supervise the two lawyers he employed.
[8] The victim had been referred to acute mental health services and was working with a clinical psychologist to deal with the trauma he had experienced. He was suffering panic attacks just travelling to Whangārei and had no intention of ever appearing in the Whangārei District Court again or working in this area for the foreseeable future.
District Court judgment
[9] Judge Gibson described the offending and referred to the victim impact statement. The Judge said a significant aggravating factor was that Mr Aydon attacked the victim owing to his perception of how the victim was carrying out his duty to the Court and to Mr Aydon’s children.
[10] Judge Gibson observed that the facts could have sustained a more serious charge, the obvious one being injuring with intent to cause grievous bodily harm, which he thought there would have been no difficulty in establishing. His Honour said Mr Aydon would be sentenced only on the charge he faced. However, because the Judge considered this a serious example of injuring with intent to injure, he said he had to take into account s 8(d) of the Sentencing Act 2002, which obliges the Court to impose a penalty near the maximum prescribed if the offending is near the most serious of cases for which the penalty is prescribed, unless circumstances relating to the offender made that inappropriate. The Judge said such circumstances in Mr Aydon’s case were his guilty plea and that he was appearing in court for the first time at 35 years of age.
[11] The Judge referred to a pre-sentence report. This noted that Mr Aydon did not dispute the summary of the offending. It recorded Mr Aydon’s absence of previous convictions and that he had been suffering from depression and anxiety and was using cannabis at the time. The report recorded Mr Aydon’s openness to attend programmes to address his behaviour and willingness to participate in restorative justice.
[12] The Judge also referred to a report under the s 27 of the Sentencing Act 2002. The Judge said his impression was that whilst Mr Aydon had struggled to make his way in life, he was a person of good character and that was to his credit. The report writer said the level of violence and the impact upon the victim was serious. Judge Gibson agreed.
[13] As to the starting point, the Judge referred to the Court of Appeal’s judgments in Nuku v R2 and R v Taueki.3 His Honour identified five aggravating features to the assault: the attack to the head; the very high level of violence; the victim’s vulnerability (having been surprised and then trapped in the lift); the serious injuries; and that the attack was motivated by Mr Aydon’s perception of how the victim was carrying out his duty to the Court and to the children.
[14] The Judge therefore considered that the offending fell squarely within band 3 of Nuku (which applies where three or more aggravating features set out in Taueki are present). Band 3 of Nuku provides for a starting point of two years’ imprisonment up to the maximum of (in this case) five years’ imprisonment. The Judge adopted a starting point of four years’ imprisonment.
[15] The Judge allowed a 10 per cent credit for Mr Aydon’s absence of previous convictions and previous good character and a 25 per cent credit for Mr Aydon’s early guilty plea.
[16] Judge Gibson then referred to Mr Aydon’s background. The Judge accepted that Mr Aydon had a difficult childhood with some traumatic aspects to it. But the Judge considered that Mr Aydon had, up until the time of the assault, got past that childhood. He noted that Mr Aydon had obtained qualifications, had been able to work overseas and had not previously committed any offences. He considered there was no linkage or necessary connection between Mr Aydon’s background and the assault, which was effectively a one‑off. His Honour therefore declined to give any credit for Mr Aydon’s background.
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 R v Taueki [2005] 3 NZLR 372 (CA).
[17] Applying total credits of 35 per cent to the four-year starting point produced an end sentence of two years and seven months’ imprisonment. Judge Gibson observed that even if he had reached a sentence of two years or less, he would not have selected any sentence other than imprisonment because of the plain need for deterrence for this offending.
Grounds of appeal
Mr Aydon says Judge Gibson made two errors in sentencing:
(a)The Judge adopted a starting point that was too high.
(b)The Judge should have allowed a credit for Mr Aydon’s background.
[19] Mr Aydon says that as a consequence his sentence was manifestly excessive. It should have been a term of imprisonment of two years or less, and leave should be granted to him to apply for home detention.
Principles governing sentence appeals
[20] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.4 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.5
Was Judge Gibson’s starting point too high?
[21] When the Court of Appeal gave guidance in Nuku on how Taueki should be adapted to charges such as injuring with intent to injure,6 the Court emphasised two points. First, a sentencing judge needs to not only identify aggravating features but also evaluate the seriousness of a particular feature. One very serious aggravating
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
5 At [36].
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [37].
feature could lift the offending into a higher band. The level of seriousness also affects where offending lies within a band.7
[22] Secondly, the guidance is not to be applied in a formulaic manner. The sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.8
[23] Mr Scott, counsel for Mr Aydon, said that there were only three aggravating features of Mr Aydon’s offending: serious injury, to a moderate degree; attacking the head, also to a moderate degree; and vulnerability, to a low degree. He submitted Judge Gibson erred in finding that the victim was serving a role akin to a public official and erred in finding the offending involved a very high level of violence.
[24] I largely disagree. I consider that Judge Gibson correctly identified the following aggravating features of Mr Aydon’s offending.
[25] First, there was a very high level of violence. It is relevant in this respect that the attack was prolonged and unprovoked.9 I consider this feature to be present to a moderate degree. Even in the context of a charge of injuring with intent to injure, it is not difficult to imagine higher levels of violence.
[26] Secondly, the attack was to the victim’s head. This is present to a serious degree, as the attack was repeated and prolonged.
[27] Thirdly, the victim suffered serious injuries. This feature is present to a serious degree. I make that assessment in the context of this charge. The extent of the injuries and harm suffered by the victim, set out earlier, speaks for itself.
[28] Fourthly, the victim had a degree of vulnerability. This arose because he was surprised by Mr Aydon’s attack and was then confined in the lift with Mr Aydon. This feature was present to a low degree, as the victim was not vulnerable in the way that
7 At [42].
8 At [43].
9 R v Taueki [2005] 3 NZLR 372 (CA) at [31](a).
a child is, for instance. The victim was no more inherently vulnerable than some others who suffer surprise attacks.
[29] Fifthly, Mr Aydon’s immediate explanation for the attack was that the victim was keeping his children away from him. As Judge Gibson said, Mr Aydon attacked the victim for the way he perceived him to be carrying out his duty to the Court and the children. I consider Judge Gibson was correct to treat this as an aggravating feature. The victim, although not a public official in the sense described in Taueki, was performing duties that have a public element to them. Further, the effect of Mr Aydon’s assault was to interfere with the administration of justice in the Family Court. These have broad analogies with two of the aggravating features identified in Taueki.10 To put them to one side because they do not fall clearly within the Taueki aggravating features would be to apply Taueki and Nuku formulaically, and to ignore s 9(4)(a) of the Sentencing Act 2002.
[30] That said, this last feature is not as serious as it would be if the victim was, for example, a police officer or ambulance officer performing their duties. Such officials put themselves in dangerous situations in a way that a lawyer performing their duties to the Court does not.
[31] While I agree with Judge Gibson that Mr Aydon’s offending involved these aggravating features, and therefore falls squarely within band 3 of Nuku, I disagree with the starting point that the Judge adopted. Although the Judge did not explicitly say so, his adoption of a four-year starting point suggests he considered each of these aggravating features to be present to a serious degree.11 As will be apparent from the above, I consider some of them to be merely moderate or low. I consider that a starting point no higher than three and a half years’ imprisonment was warranted.
Should the Judge have allowed a credit for Mr Aydon’s background?
[32] Judge Gibson had before him a report on Mr Aydon’s background. In childhood, Mr Aydon was the victim of violence, largely at the hands of his father. His
10 At [31](g) (perverting the course of justice) and [31](l) (public official).
11 This is consistent with his indication, at [9], that the offending was near to the most serious of cases of injuring with intent to injure.
parents separated when he was six or seven, after which he was largely in the full-time care of his father, who was violent. There were some other deeply traumatic aspects to Mr Aydon’s childhood.
[33] Judge Gibson acknowledged Mr Aydon’s difficult upbringing, but declined to make any allowance against the starting point for it. The Judge said that, by the time that Mr Aydon committed the assault, he had got past that childhood. Mr Aydon had been able to gain a qualification, work overseas, and live offence-free until this assault. The Judge therefore concluded that there was not the necessary linkage between Mr Aydon’s background and the offending.
[34] In Berkland v R,12 the Supreme Court said that where an offender’s background factors “help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing”.13 I consider that the background factors to which I have referred continue to provide some explanation for how Mr Aydon came to offend on this occasion. Violence to some extent became normalised in Mr Aydon’s childhood, in a way that does not happen for most New Zealand children. It is true that this has not resulted, before now, in Mr Aydon coming before the courts on criminal charges. But it does not follow that that normalisation of violence has lost all its causative potency. Ms Soich, counsel for the Police, accepted that a causative link could still be found.
[35] Mr Scott also submitted an allowance should be made to reflect events once Mr Aydon was an adult. These included unhealthy drug and alcohol usage problems, relationship issues, financial issues, health conditions and the loss of a child. I am not satisfied that these factors help explain Mr Aydon’s violent attack.
[36] I therefore consider that an allowance should have been made against the starting point to reflect Mr Aydon’s childhood background. In my view, and with respect, Judge Gibson erred in declining to make any allowance.
12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
13 At [109].
[37] That said, I consider that the allowance should be modest. Mr Aydon experienced violence and trauma as child, but not to the level that this Court often sees. I allow five per cent.
Was the sentence manifestly excessive?
[38] I would have adopted a starting point of three and a half years’ imprisonment. I would have made the same allowances as Judge Gibson for Mr Aydon’s pervious good character (ten per cent) and guilty plea (25 per cent), neither of which were questioned by either counsel on this appeal. I would also have allowed five per cent for Mr Aydon’s background. This would have produced a sentence of two years and one month’s imprisonment.
[39] This is six months less than the sentence imposed by Judge Gibson. This is more than mere tinkering. I consider therefore, that the Judge’s sentence was manifestly excessive.
[40] Given the conclusion I have reached, it is unnecessary to address the possibility, raised by Mr Scott, of home detention.
Result
[41] Mr Aydon’s appeal is allowed. I quash the sentence of two years and seven months’ imprisonment. In substitution, I sentence Mr Aydon to two years and one month’s imprisonment.
Campbell J
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