Bartlett v The Queen
[2015] NZHC 1536
•2 July 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-32 [2015] NZHC 1536
BETWEEN ROBERT HAMIORA BARTLETT
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 July 2015 Counsel:
R O Gowing for appellant
A J Pollett for respondentJudgment:
2 July 2015
ORALJUDGMENT OF KATZ J [Sentence appeal]
Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
Gowing & Co Lawyers Limited, Whakatane
BARTLETT v THE QUEEN [2015] NZHC 1536 [2 July 2015]
Introduction
[1] Robert Bartlett was sentenced on 22 April 2015 to five years’ imprisonment on one charge of wounding with intent to cause grievous bodily harm under s 188 of the Crimes Act 1961.1 He appeals that sentence on the grounds that it is manifestly excessive as a result of a starting point being adopted that was too high.
Factual background
[2] On 26 February 2015, in the early evening, Mr Bartlett arrived home drunk. He picked up a knife from the kitchen, and went to the bedroom where his wife was attempting to sleep and laid down next to her. He produced the knife from his trousers, and said “If I can’t have you, nobody can”. He then repeatedly attempted to stab his wife around the abdomen. She defended herself, including by covering up with a duvet cover but she was eventually stabbed once in the lower abdomen.
[3] The commotion alerted their daughters, who ran to the bedroom to investigate. They found their mother on the floor beside the bed with Mr Bartlett on top of her holding a knife near her head. One of the daughters saw Mr Bartlett attempting to stab her mother in the stomach area a second time. She intervened and attempted to pull her father off her mother. The other daughter called the police. Mr Bartlett’s wife was taken to Whakatane Hospital for treatment.
[4] Surgery was required to ascertain the extent of any injuries. It revealed that the knife had penetrated the skin and fatty tissue, but no internal organs had been penetrated. As a result, no life-threatening injuries were caused.
[5] Mr Bartlett left the house following the incident and immediately made his way to the police station.
District Court Decision
[6] Judge Wolff, in the District Court at Whakatane, sentenced Mr Bartlett to five
years’ imprisonment on the charge of wounding with intent to cause grievous bodily
harm. Unfortunately the sound recording system was inoperative during the sentencing, meaning that full sentencing notes are unavailable. Judge Wolff did, however, summarise his key findings and sentencing approach in a subsequent Minute.
[7] It was common ground before Judge Wolff that the offending fell within band 2 of R v Taueki (being 5 to 10 years imprisonment). Judge Wolff adopted a starting point of seven years and three months imprisonment based on the guidance in R v Taueki regarding attacks which fall within the category of “premeditated domestic assaults”.2
[8] The Judge allowed deductions for Mr Bartlett’s early guilty plea, remorse and in recognition of the fact that he went straight to the police station after the incident. The end point reached was five years, which is a 31 per cent discount on the starting point. Assuming a full 25 per cent discount was given for the early guilty plea, this suggests that a six per cent discount was given for remorse and early reporting of the incident.
Was the starting point adopted too high?
[9] The sole issue on appeal is whether the starting point of seven years three months imprisonment adopted by the Judge was too high.
[10] The guideline case on grievous bodily harm offending is R v Taueki, which sets out bands of offending according to the seriousness of the offence, assessed with reference to the aggravating factors of grievous bodily harm offending set out in the Court of Appeal judgment. It was common ground that band 2 applies in this case.
The court in Taueki said that:3
Band 2 (5 – 10 years)
[38] This band will be appropriate for GBH offending which features two or
three of the aggravating factors referred to in [31] above. …
[39] Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the
2 R v Taueki [2005] 3 NZLR 372 (CA) at [39].
3 R v Taueki, above n 2.
inflicting of serious and lasting injury would require a starting point in band 2. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band 2.
[11] Counsel for Mr Bartlett submitted that the violence involved was moderate and the injury was slight (being a single wound that was not life threatening). He noted there were no attacks to the head of the victim. He submitted that a starting point near the lower end of Taueki band 2, of around five years, would be more appropriate. The Crown submitted, on the other hand, that the starting point adopted by Judge Wolff was within range.
[12] In my view the aggravating factors of Mr Bartlett’s offending are, with
reference to the Taueki factors:
(a) Extreme violence: Taueki states that violence is more extreme where it is unprovoked.4 Here, the attack was unprovoked. Mr Bartlett said to his wife “If I can’t have you, nobody can” and then attempted to stab her multiple times, albeit he succeeded only once. He continued to try to stab her even as his daughter intervened. The level of violence is not extreme compared with many cases. It is still,
however, a matter of concern.
(b)Premeditation: Mr Bartlett entered the bedroom with a knife, for no other purpose than to use it against his wife. His attack was not, however, carefully planned over an extended period. Premeditation, while present, is not at the top end of the scale although it is still significant.
(c) Vulnerability: Mr Bartlett’s wife was lying down in bed unarmed when she was attacked, leaving her relatively defenceless to the attack. It was an unprovoked attack on a woman who had no opportunity to prepare for, or defend herself against that attack.
(d)Use of weapon: The use of a knife was seen as “severely aggravating” and considered a lethal weapon in Taueki.5 Here, the fact that Mr Bartlett brought it into the bedroom, and his accompanying words, indicate a deliberate intent to inflict fairly serious violence on his wife.
(e) Seriousness of injury: The injury in this case was moderate rather than severe. The knife blow caused a 1 to 2 centimetre stab wound into the skin and fatty tissue of the victims’ lower abdomen. While there were no serious or life threatening wounds, surgery was required to assess the extent of the damage. The wound was to the abdomen region which is a vulnerable part of the body. Save for the defensive actions of Mr Bartlett’s wife and daughter, significantly more serious injuries could have resulted. I accept, however, that they did not.
[13] Four or five aggravating factors are therefore present, which in theory, could place the offending in band 3 of Taueki. Many of the factors are at a fairly moderate level of seriousness, however, meaning that band 2 is clearly the appropriate band. Further, taking into account the need to not double-count Mr Bartlett bringing the knife to the scene toward both “use of a weapon” and also “premeditation”, suggests that band 2 is indeed the appropriate band.
[14] As I have already noted, the Court of Appeal stated in Taueki that premeditated domestic violence involving serious and lasting injury, inflicted with a weapon brought to the scene will generally fall at the top of band 2 (namely ten years). In this case, although there was premeditated domestic violence involving a weapon, the injuries sustained were not serious or long lasting. Mr Bartlett’s culpability will accordingly clearly be lower than the top of band 2.
[15] Counsel for Mr Bartlett referred to several cases which involved attempted murder and wounding with intent, and he submitted that, relative to those cases, Mr Bartlett should receive a lower starting than that adopted by Judge Wolff.
[16] Those cases are potentially relevant because attempted murder is assessed using the R v Taueki factors and bands, but taking into account the element of murderous intent. However, I do not find the cases that were referred to particularly helpful in assessing Mr Bartlett’s culpability. One involved a woman who attacked her daughter-in-law, while suffering some form of mental breakdown. She received
an eight year starting point.6 Another case referred to involved a man who randomly
approached an associate he was staying with, punching him in the face and then cutting his throat with a knife, causing very significant injuries. That offending was placed in band 3 of R v Taueki, and warranted a nine and a half year starting point.7
Both of those starting points, which are obviously higher than that adopted by the sentencing judge in this case, appear to be appropriate given the nature and scale of the offending, and the circumstances of those cases. Given the different factual contexts, however, I am not persuaded that they suggest any significant disparity in the starting point adopted by Judge Wolff, even noting that those sentences had to account for murderous intent.
[17] Counsel for Mr Bartlett also referred to a District Court judgment, involving three young men who attacked an unarmed man, which warranted a starting point of around seven to seven and a half years.8 Although the attack in that case appears to have been significantly more serious than Mr Bartlett’s, it is not a domestic assault. The high starting point set in Taueki for “premeditated domestic assault” reflects the seriousness of domestic offending, and specifically sanctions it. I also note that there
is no clear identification in that District Court decision of the band of offending, or reference to any comparable cases in setting the starting point. It may well be that the starting point that was adopted in that case was on the low side.
[18] I therefore do not consider that the cases referred to offer much assistance in determining the correct starting point in this case.
[19] An analysis of the case law in this area reflects a fairly wide range of different starting points and end sentences reflecting the almost infinite variation in
the factual circumstances of such cases. In my view, the preferable course in this
6 R v Yu [2015] NZHC 89.
7 R v Pengelly [2013] NZHC 527.
8 R v Warren DC Whakatane CRI-2014-087-001225, 28 October 2014.
case is simply to focus on the guidance given in Taueki itself, given that it directly addresses offending of this type.
[20] Taueki indicates that if serious and lasting injury had resulted, then a starting point could be expected at the upper end of band 2, which is 10 years. That direction needs to be adjusted in this case, however, to reflect the lesser culpability of Mr Bartlett, given the significantly more limited injury suffered by his wife.
[21] Taking that into account I consider that a starting point roughly in the middle of band 2, rather than at the upper end of band 2, is appropriate. In light of Mr Bartlett’s premeditation, the victim’s vulnerability, and his use of a weapon, a starting point of seven years three months was in my view within range, and in accordance with the guidance given in Taueki itself.
[22] Counsel for Mr Bartlett did not take any issue with the discounts applied by the Judge, which are clearly appropriate.
[23] It necessarily follows from my conclusions that the end sentence reached was not manifestly excessive.
Result
[24] The appeal is dismissed.
Katz J
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