Boote v The Queen
[2014] NZCA 125
•3 April 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA707/2013 [2014] NZCA 125 |
| BETWEEN | SHANE IAN BOOTE |
| AND | THE QUEEN |
| Hearing: | 5 March 2014 |
Court: | Miller, Goddard and Clifford JJ |
Counsel: | PHB Hall QC for Appellant |
Judgment: | 3 April 2014 at 10.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Introduction
The appellant was tried before a Judge and jury in the Nelson District Court and found guilty on two charges: one count of wounding with intent to cause grievous bodily harm; and one count of assault with intent to injure. Two separate victims were involved.
Following trial, Judge Zohrab sentenced the appellant to four and a half years’ imprisonment.[1] He now appeals his sentence on the basis that it is manifestly excessive on three grounds:
(i)the starting point was too high, when compared with other cases of serial and serious violence causing significant injuries,[2] and no reduction was made to reflect elements of provocation or self-defence;
(ii)the uplift applied from the starting point was excessive; and
(iii)the Judge failed to recognise steps the appellant had taken to address his alcohol dependence, impulse control and anger management.
[1]R v Boote DC Nelson CRI-2011-009-13136, 2 October 2013 [sentencing decision].
[2]R v Hall [2012] NZCA 518; R v Taueki [2005] 3 NZLR 372 (CA).
On behalf of the appellant, Mr Hall QC argued that an end sentence in the range of two to three years would have been appropriate to reflect accurately the appellant’s culpability and sentences imposed for like offending.
Facts
The facts of the offending, which occurred at 2.00 am on 8 October 2011, were recorded by the Judge as follows:[3]
You were engaged in what the Crown characterise as a minor push and shove with the victim, William Conlon, whilst queuing for a drink in the bar. He has pulled your hair. That has led to this minor push and shove, and then, without warning, you have picked up a full bottle of beer from the bar and struck the victim in the face with it. I accept it was an impulsive act on your part but the bottle smashed, resulting in an injury which required multiple stitches to his face. When his friend tried to restrain you, you bit the friend’s thumb. The bite was hard enough to break the skin and cause his thumbnail to blacken and eventually fall off.
You were not apprehended that night. When you first spoke to the police, by way of a telephone discussion with Detective Nally, you all but admitted being involved but, subsequent to that, you sought to distance yourself from what had happened. You had a full interview with Detective Falloon. You led him to believe that you wanted to be honest and upfront about what had happened, and then lied for an hour and a half in the course of your DVD interview.
You also gave evidence before a jury and the jury concluded, with their verdict, that you also lied to them. I agree with their assessment of the situation and it should be apparent to you, from the discussion that I have had with your lawyer this morning, that the difficulty that I found myself in, in assessing all the material that has been provided on your behalf, is that it is difficult for me to assess where the truth lies given your desire to, as you said to the police officer, not to engage a lawyer and be honest and upfront about what had happened, and you adopted a similar approach in front of the jury, and then, once again, you lied.
[3]At [2]–[4].
No issue was taken by Mr Hall with the facts as described by the Judge and set out above.
The sentencing exercise
Against that factual background, the Judge turned to consider the various reports before the Court. These included: an alcohol and drug use assessment; a pre-sentence report; a psychological report; and a number of references. There was also a letter written to Restorative Justice and a letter written by the appellant.
Crown counsel sought a start point of five and a half to six years’ imprisonment with a modest uplift for the appellant’s prior convictions. As the appellant was making an offer of reparation, an appropriate discount was acknowledged in recognition of that.
Counsel who appeared for the appellant on sentence sought a lower start point of four to four and a half years. After credit for the offer of reparation and personal matters, the possibility of a sentence of home detention, community work and an order for reparation was put to the Judge. If that were not acceptable, counsel alternatively sought a sentence considerably shorter than that contended for by the Crown. Emphasis was placed on the appellant’s need to rehabilitate and reintegrate and his expressed wish to seek help and assistance for his difficulties with alcohol dependence and management of personal issues.
Referring to the guidelines in R v Taueki,[4] and the culpability factors relevant to sentencing for offences of grievous bodily harm, the Judge found three factors relevant to sentencing. First he identified the use of a weapon: in this case a full bottle of beer. He accepted, however, that the weapon was not one which the appellant carried with him or had specifically taken to a situation. The second was that the attack was to the head of the victim. In this regard the Judge noted that attacks to the head can have particularly serious consequences. The third factor was the Crown’s submission that the wounding sustained by the victim was a serious injury and this in itself should attract a higher starting point than would a case of minor injury.
[4]R v Taueki, above n 2.
The wounding to the victim’s face had resulted in what the Judge described as “a massive scar”, which has caused the side of the victim’s face to wrinkle up when he smiles, a factor which the victim is “quite self-conscious about”. Whether or not the injury were to be characterised as a “serious injury”, in terms of long term or permanent disability, the Judge observed it has had a psychological impact on the victim and a significant effect on his appearance.
Counsel for the appellant suggested to the Judge that the facts of the case would have been more appropriately reflected in a lesser charge, such as a charge of assault with a weapon, carrying a five year maximum penalty.[5] Alternatively, a charge of injuring with intent to injure could have been preferred, also carrying a five year maximum penalty;[6] or a charge of wounding with intent to injure, carrying a seven year maximum penalty,[7] or injuring with intent to cause grievous bodily harm, carrying a 10 year maximum penalty.[8] In support, counsel referred to a decision of the Christchurch District Court, Police v Kennedy,[9] and a decision of the High Court in Auckland, R v Tuaimalo,[10] both involving serious assaults and in which lesser starting points than those indicated in Taueki had been adopted.
[5]Crimes Act 1961, s 202C.
[6]Section 189(2).
[7]Section 188(2),
[8]Section 189(1).
[9]Police v Kennedy DC Christchurch CRI-2010-009-8828, 15 July 2011.
[10]R v Tuaimalo HC Auckland CRI-2006-092-11901, 12 December 2007.
The Crown’s response was that the lead offence accurately reflected the facts of the offending and the Judge ought to approach the sentencing exercise by placing the offending at the top end of band 1 or at the bottom end of band 2 in Taueki.
The probation officer who wrote the pre-sentence report recommended imprisonment, although he also canvassed the possibility of a sentence of home detention. The probation officer noted, however, that the appellant’s lack of insight, lack of remorse, and failure to take responsibility for his offending militated against this.
The Judge referred also to the psychological report made available to the Court and to the psychologist’s recommendation that, whatever the sentencing outcome, the appellant ought to be assessed for, and undergo treatment for, his alcohol dependence and should also undergo a violence prevention programme. The appellant’s willingness to undertake treatment and counselling was acknowledged by the Judge. In addition, credit was allowed for his offer of reparation.
In relation to the offending itself, the Judge found that any suggested provocation by the victim could only be characterised as minor and that any suggestion of self-defence was difficult to accept in the circumstances.
Noting that this was the seventh incident of alcohol related violence on the appellant’s part, the Judge adopted a starting point of four and a half years’ imprisonment (in line with the defence submission in relation to the appropriate starting point) and then uplifted the sentence by three months’ imprisonment to take into account the offending in relation to the second victim and by a further three months to account for the appellant’s previous convictions. This resulted in a total uplift of six months’ imprisonment.
The only available discount found by the Judge was one of six months’ imprisonment for the appellant’s offer to pay $3,000 in reparation. This resulted in an end sentence of four and a half years’ imprisonment. The Judge was satisfied that this end sentence reflected the totality of the appellant’s offending.
The appeal
On appeal, Mr Hall first outlined four factors which he said the Judge had failed to take into account in fixing a starting point. First he said the Court of Appeal in Taueki and R v Harris[11] had made it clear that sentencing courts are free to depart from strict adherence to the bands and there is a need to apply sentencing discretion to individual cases. Next he submitted that the appellant’s culpability in relation to the lead conviction for wounding with intent to cause grievous bodily harm might have been better reflected in a less serious charge. This echoed the submission made to, and rejected by, the Judge at sentencing. Mr Hall’s rationale for pressing this point was that the injuries sustained by the victim were not intended to be life threatening and were not. The suggestion again was that the appellant had been overcharged in respect of the incident. Third, Mr Hall submitted that the Judge had strictly adhered to the sentencing bands in Taueki, rather than comparing the facts in the appellant’s case with other bottling or similar cases. Fourth, Mr Hall submitted there was an element of provocation that had triggered an excessive response from the appellant. Although the Judge had referred to this, he had not appeared to take it into account, except in referring to the offending as “gratuitous violence”.
[11]R v Harris [2008] NZCA 528.
In relation to the uplifts and discounts applied, Mr Hall conceded that the discount for reparation had been reasonable and appropriate but submitted that a further discount should have been applied to recognise steps the appellant had taken to accept help and assistance in respect of his alcohol dependence, impulse control and anger management. He suggested those initiatives should be encouraged and incentives to continue with them considered by the Judge. In the context of the sentence imposed, this could only have been recognised by a discount. Mr Hall also submitted that the uplift of six months on account of the appellant’s other offending and previous convictions was excessive.
In relation to the totality principle, Mr Hall said the Judge had failed to have sufficient regard to this in assessing overall culpability in determining an appropriate sentence.
Mr Hall’s ultimate submission was that the end sentence ought to be reduced and that an end sentence in the range of two to three years’ imprisonment would appropriately reflect the appellant’s culpability and sentences imposed for like offending. In this regard he referred to the decision in R v Hall, already referred to in paragraph [2] above.
Discussion
The starting point for discussion is whether the facts of the case as found by the jury were appropriately reflected in a charge under s 188(1) of the Crimes Act 1961. This argument was advanced before the Judge and considered by him. We have no doubt that the charge accurately reflected the facts. It was well within the prosecutorial discretion and it was open to the jury to find the appellant guilty of the offence as charged. On that basis we accept Crown counsel’s submission that it is not open to the appellant to argue again that sentencing could or should have been approached on the basis of a lesser charge for reduced culpability.
We accept that in exceptional cases, a starting point of less than three years’ imprisonment for a s 188(1) charge may be appropriate. The example given in Taueki is apposite. This Court commented that a lower starting point may be appropriate where the sentencing judge considers the offending, whilst technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge.[12]
[12]R v Taueki, above n 2, at [27].
We are not satisfied that this is such an exceptional case. We accept there are some factual similarities with the cases cited by Mr Hall, such as R v Tuiamolo[13] and R v Ngarangione.[14] On the other hand, one of the examples of band 1 offending is where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive and the attack features the use of a weapon (such as a fence paling found at the scene). This Court observed that, in such a case, a starting point of around five years may well be appropriate, assuming that the grievous bodily harm does not have a lasting effect on the victim.[15]
[13]R v Tuiamolo, above n 10.
[14]R v Ngarangione HC Invercargill CRI-2005-225-115, 20 April 2007.
[15]R v Taueki, above n 2, at [37](a).
Here the appellant impulsively attacked the victim in a bar, after minimal provocation, using a weapon. The injuries he inflicted created a graphic and permanent scar on the victim’s face. Given those factors, it was well within the Judge’s discretion to place the appellant’s conduct towards the top end of band 1 in Taueki, requiring a starting point in the range of three to six years’ imprisonment based on the presence of one or more of the specific aggravating factors.
The starting point of four and a half years’ imprisonment on the lead offence is commensurate with the approach in both Flavellv R[16] and R v Bowman.[17] For example, in Flavell v R, the appellant stabbed the victim with a broken beer bottle and struck him in the head with a baseball bat during a prolonged street fight. This Court adopted a starting point of five years’ imprisonment in that case, taking into account that provocation and excessive self-defence were significant mitigating factors in that case (factors which are not present here).[18]
[16]Flavell v R [2011] NZCA 361.
[17]R v Bowman [2011] NZCA 162.
[18]At [20]–[24].
In relation to provocation this Court in Taueki said that:[19]
It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operating cause of the violence inflicted by the offender, and remained an operating cause throughout the commission of the offence.
[19]R v Taueki, above n 2, at [32](a).
We agree with the respondent that the provocation in this case was minor, and did not constitute an operative cause of the appellant’s actions in bottling the complainant.
We turn now to the remainder of the appellant’s submissions. In relation to the uplift for the offending against the second victim, the Judge effectively took a notional starting point of four years and nine months’ imprisonment to reflect both offences. That constitutes an uplift of three months’ imprisonment for the offending against the second victim. We agree with the respondent that this is a modest uplift and was open to the Judge.
In relation to the three month uplift for the appellant’s previous convictions, the Judge specifically noted when fixing the uplift that some of the offending was dated. Notwithstanding, the appellant has seven previous assault charges, with the most recent from 2012. We consider the uplift applied by the Judge to be entirely appropriate to reflect that history.
Turning to the discount applied, Mr Hall submitted that a further discount should have been granted to recognise steps the appellant has taken to address his problems. While those steps are to be encouraged, we think it significant that the appellant’s belated willingness to reform was expressed just before sentencing. In those circumstances, the Judge was entitled to decline a further discount.
Finally, Mr Hall submitted that the Judge failed to have sufficient regard to the totality principle in determining an appropriate sentence. We agree with the respondent that the Judge did have sufficient regard to the appellant’s overall culpability. That is clear from what the Judge said:[20]
I have stood back and looked at it, and asked myself, “Does that reflect the totality of the offending?” Yes, in my view it does. I appreciate it will be a difficult sentence for you but this was gratuitous late night violence in a hotel. The injuries could have been much worse.
Result
[20]Sentencing decision, above n 1, at [38].
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent