Bean v The Queen

[2004] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

CA278/03

THE QUEEN

v

PETER WILLIAM BEAN

Coram:Glazebrook J
Hammond J
William Young J

Appearances:  V C Nisbet for Appellant

M F Laracy for Crown

Judgment (On the Papers) :    7 April 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

INTRODUCTION

[1]        Mr Bean was convicted after a jury trial in the District Court at Wellington of one charge of wounding with intent to cause grievous bodily harm. He was sentenced to three years’ imprisonment. He appeals against that sentence on the ground that it is manifestly excessive. Mr Bean’s appeal against conviction has been abandoned.

[2]        A Judge of this Court has determined, pursuant to s392A(1) of the Crimes Act 1961, that the appeal can be fairly dealt with on the papers. We have considered under s392A(4) (as Mr Bean asked us to do) whether to change the mode of hearing of this appeal to an oral hearing but we consider that the original determination on the mode of hearing should not be disturbed as, in our view, this matter does not require an oral hearing.

[3]        Accordingly, this appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[4]        The facts may be stated briefly. In July 2002 Mr Bean’s partner told him that she was having an affair with the victim in this matter, an old friend of hers who she had bumped into at a restaurant a month or two previously and had introduced to Mr Bean. Her story was a lie. As a result of his partner’s lie Mr Bean became enraged and, with his partner, drove to the victim’s offices. Mr Bean’s partner went into the victim’s offices and came outside with him. When they got out to the landing the victim saw Mr Bean who turned around to face him and hit him over the head with a solid metal object which may have been a telescopic rifle sight that was later found in Mr Bean’s car.

[5]        The force of the blow caused the victim to fall immediately to the floor. He dragged himself back to his office where the staff took him to get medical help. He received a deep wound to his forehead requiring 10 stitches and he suffered headaches and dizziness for about a week after the incident. Fortunately he suffered no ongoing effects apart from a scar. Two days later Mr Bean phoned the victim to apologise after his partner had confessed that she lied about the affair.

[6]        Mr Bean pleaded not guilty to the charge and gave evidence at trial that the victim had pushed first and he responded causing the victim to lose his balance and knock his head against the stair rails. Mr Bean’s partner, now wife, was charged with being a party to the offence but was acquitted.

The sentencing remarks

[7]        The District Court Judge, Gaskell DCJ, considered that the decision of this Court in R v Hereora [1986] 2 NZLR 164 laid down a tariff for sentencing on charges of this kind and that a sentencing range of three to five years’ imprisonment was therefore appropriate. The Judge noted that Mr Bean’s wife was instrumental in creating the situation that led to the offending but in her view, imprisonment was the only appropriate sentence for such a serious offence that was unprovoked and involved premeditation, actual violence and serious physical injury to the victim. She, however, took into account Mr Bean’s reasonably short list of previous convictions (with none since December 2000) and apparent remorse, selecting what she said was the least restrictive outcome possible of three years’ imprisonment.

[8]        The Judge took into account that Mr Bean had no previous convictions for violence, had a supportive family, young children and that he had apologised to the victim shortly after the incident and had now expressed remorse and accepted responsibility for the offending. She also, however, referred to previous drug and firearms convictions and the fact that Mr Bean was seen to be at high risk of re-offending as he had denied any propensity towards violence and therefore did not see any need to address the issue.

Appellant’s submissions

[9]        Mr Nisbet, for Mr Bean, submitted first that although the sentence imposed would, in normal circumstances, arguably be appropriate, in this case it is manifestly excessive. Mr Nisbet drew attention to the fact that Mr Bean and his wife were, at the time, regular daily users of the drug methamphetamine and that it may be significant that no mention of this was made at the time of sentencing. He submitted that the drug use perhaps gives some explanation for the behaviour, irrational though it may seem, of the wife setting up the contact between the victim and Mr Bean.

[10]      Mr Nisbet also drew attention to Mr Bean’s lack of previous convictions for similar behaviour, submitting, therefore, that Mr Bean’s argument that he was not normally a person inclined to violence had some solid foundation. In Mr Nisbet’s submission, Mr Bean was put in this position by his wife and his drug use clearly impacted on his ability properly to understand or appreciate the position she was putting him in. The fact that, after realising he had been lied to, Mr Bean had immediately attempted to contact the victim and apologise should have been taken into account to a greater degree than the sentencing Judge did.

[11]      Finally, Mr Nisbet submitted that the offending in this case was an act that could have been and should have been dealt with by a less serious charge such as assault with intent to injure and therefore the sentence imposed in this case was both inappropriate and manifestly excessive.

Crown submissions

[12]      Ms Laracy, for the Crown, submitted that the term of three years’ imprisonment is not only not manifestly excessive having regard to the nature of the offending but that it would have been open to the Judge to find that there was sufficient premeditation in this offending to carry it into the second category of Hereora warranting a starting point of five to eight years. In this case the assault exhibited the significant aggravating features of premeditation, lack of provocation and the fact of striking the victim over the head. In the Crown’s submission, Mr Bean is fortunate that the victim did not suffer more serious or long-term consequences, as the potential for serious injury is always especially high when a weapon is used to commit an assault in the area of the head. The Crown also pointed to the Probation Officer’s assessment of Mr Bean as being at a high risk of re-offending.

[13]      Ms Laracy further submitted that Mr Bean’s remorse and willingness to accept responsibility for his actions must be looked at in light of the unlikely scenario he maintained at trial, namely that the victim had pushed first and sustained injury when he knocked his head on the stair rails. Relevant too, in the Crown’s submission, is the fact that Mr Bean could not claim the special credit commonly given to first offenders since he had been sentenced in 2000 to a term of one years’ imprisonment suspended on moderately serious charges.

[14]      In the Crown’s submission, although the sentencing judge did not identify a starting point she found that the offending fell in the lowest category of Hereora and imposed the least restrictive outcome in that bracket. A starting point of around four years was, in the Crown’s submission, appropriate for the offending, in relation to which the final sentence of three years cannot be criticised.

[15]     Ms Laracy considered the submissions for Mr Bean as coming close to suggesting that his wife was to blame for the offending and that she effectively tricked him into committing the assault. In Ms Laracy’s submission, since the wife was acquitted at trial on charges as a co-offender it is not now open to Mr Bean to suggest that she was in fact a party to the offending or that there is any unfairness arising from her acquittal as against his conviction.  In any event, Ms Laracy submitted that  the wife’s role, whatever in fact it was, does not mitigate Mr Bean’s own highly deliberate conduct and decisions. Although Ms Laracy accepted that the wife’s lie was clearly a catalyst for the offending, in her submission the Judge took this fact into account as an explanatory and mitigating feature of the offending.

[16]     In Ms Laracy’s final submission, no allowance can be given on appeal for the recent disclosure that both Mr and Mrs Bean were regular users of methamphetamine at the time of the offending. This follows from s9(3) of the Sentencing Act 2002 and as a matter of principle. It was in any event, Mr Bean’s own choice that that information, if considered relevant, was not before the sentencing Judge via the pre-sentence report or through his counsel.

Discussion

[17]     The offending here was serious. It involved a premeditated assault with a weapon on the head of a completely unsuspecting and innocent victim.

[18]     Dealing with the points raised by Mr Nesbit, we note that the sentencing Judge explicitly took the wife’s lie into account as being the cause of the offending and also took into account Mr Bean’s personal and family circumstances.

[19]     Secondly, as the Crown submitted, no allowance could have been given for Mr Bean’s regular methamphetamine use at the time of the offending. Section 9(3) of the Sentencing Act is clear on that point.

[20]     Mr Bean has not identified any error or oversight in the sentencing process. In our view the sentence imposed was squarely within the available range.

Result

[21]     For the reasons given, Mr Bean’s appeal against sentence is dismissed. 

Solicitors:

V C Nisbet, Wellington for Appellant
Crown Law Office, Wellington