Brooking v Police

[2012] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000094 [2012] NZHC 3219

ANTHONY JAMES BROOKING

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 November 2012

Appearances: A Bailey for Appellant

K Basire for Respondent

Judgment:      29 November 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  against  an  end  sentence  of  two  years  five  months’ imprisonment imposed by the District Court Judge Holderness.  The appellant had pleaded guilty to charges of assaulting a female, breach of parole and the more serious offence of wounding with reckless disregard for the safety of the victim under s 188(2).  The principal difference between the appellant and the Crown on appeal is as to the starting point in the Judge’s analysis.

[2]      The incident occurred when the appellant started arguing with his partner in his car.  He stopped his car, his partner came out of the car and he was punching her when another woman stopped and got out of her car to go to the assistance of the woman being assaulted.   The appellant’s partner was by this stage on the ground,

possibly on her knees, certainly no longer standing, and the appellant had begun

ANTHONY JAMES BROOKING V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000094 [29

November 2012]

punching the partner in the stomach.   The second woman tried to intervene.   She yelled to stop and then she became a victim.  He punched her in the face.  The punch caused her to partially lose consciousness.  She was spun around by the force of the punch, she fell and landed in the gutter.  Her eye was lacerated, her glasses smashed, she sustained abrasions and bruising to her left forearm.  Her eye was bleeding.  I have seen the photo of the victim and it was clearly a very serious punch.

[3]      The  Judge  received  submissions  from  the  Crown  advising  that  the  tariff decision was R v Taueki[1].  The judge proceeded by taking this offence, the punching of the victim I have just described, as the lead offence, and taking a starting point of two years four months, having effectively adopted the Crown submission that it is in the mid range of Band 1 Taueki.  The Judge then uplifted that by seven months being offending on parole.   He then allowed for a full discount of 25 per cent of nine months leaving an end sentence in relation to the wounding offence of 26 months.

He imposed a concurrent sentence for the assault of the partner of five months and then turned to breach of parole, taking a starting point of five to six months giving credit to the guilty plea, reducing it to four months and because it was a cumulative term, applied the totality principle and reduced that term to three months; giving rise to an overall term of two years five months.

[1] R v Taueki [2005] 3 NZLR 372

[4]      The only part of that analysis that was challenged on appeal was the starting point.  Mr Bailey argued that the starting point should have been 18 months rather than two years four months.  He did that by relying upon some other Court of Appeal cases, principally the decision of the Court in R v Harris,[2] as interpreted then by the Court of Appeal in Grimshaw-Jones v R[3] and in MacDonald v R.[4]

[2] R v Harris [2008] NZCA 528

[3] Grimshaw-Jones v R [2010] NZCA 490

[4] MacDonald v R [2011] NZCA 446

[5]      Ms Basire for the Crown argued that it was appropriate to simply apply

Taueki because in [28] of MacDonald the Court said:

[28]   Offending under ss 188(2) and 189(2) require the same mens rea – an intent to injure or a reckless disregard for the safety of others. The distinction between the two is in the actus reus which, under s 189(2), is injuring the victim whereas, under s 188(2), may be wounding, maiming, disfiguring or

causing grievous bodily harm.   While it would not be incorrect to apply Taueki  principles  when  sentencing  under  s  188(2), Harris  can  be  more readily applied with appropriate allowance for the nature of the injury inflicted. That was the approach taken by this Court in Grimshaw-Jones v R in a case of wounding with reckless disregard under s 188(2).

(emphasis added)

[6]      In fact in MacDonald the Court went on to apply Harris.  Notwithstanding the opening clause in the penultimate sentence in [28] saying  “it would not be incorrect to apply Taueki principles”, it is my experience that since the decision in Harris, Harris in fact has been applied to offending under ss 188 and 189 where the maximum sentence is five or seven years and any view of it half the maximum sentence in Taueki.  The reasoning in Harris drives off the fact that when sentencing under the Sentencing Act one keeps in mind the maximum sentence and therefore there has to be an adjustment of Taueki when the maximum sentence is half or less than half of 14 years’ imprisonment.

[7]      I think the correct approach in this case is to be guided by MacDonald as follows:

[27]    Neither Taueki nor Harris have direct application. Taueki is, of course, concerned  with  the  offence  under  s  188(1)  of  the  Crimes Act  1961  of wounding, maiming, disfiguring or causing grievous bodily harm with intent to cause grievous bodily harm. The maximum sentence is 14 years.   The guidelines in Harris are adapted from Taueki for application to offending under s 189(2) of injuring with intent to injure which carries a maximum sentence of five years.  Mr MacDonald was charged under s 188(2) of the Act with wounding with intent to injure. That carries a maximum sentence of seven years imprisonment.

[8]      The maximum term of imprisonment in Harris was five years, here it is seven.  Therefore when one goes to Harris there is a need to consider at the least a slight uplift on the bands in Harris.  Applying Harris, in my view this is a case of band 2 where the injuries are moderate.  By Harris under band 2, where the injuries are moderate, sentences of up to two years’ imprisonment can be justified.  In Harris itself it is clear from the reasoning that the Court thought that it lay somewhere between band 2 and band 3.   This case in my view is a Harris band 2.   In oral exchanges with Ms Basire I discussed two years plus a nudge to adjust.  Mr Bailey drew my attention to the fact that at sentences of up to two years under band 2.

[9]      The resolution I think appropriate is to take two years, reflecting that there is an argument for less than two years were this a maximum penalty of five years, but it being a maximum penalty of seven, it needs some slight adjustment.  I would take the starting point of two years.

[10]     It is noticeable that in the reasoning of Judge Holderness when dealing with the assault of the appellant on his partner which led to the more serious assault on the victim who intervened, he said in [17]:

Although it involved a different victim that assault was really part and parcel of the one incident.

In my view it would have been appropriate for the Judge to have adjusted as an analysis of the gravity of the offence of wounding with reckless disregard the coincident conduct of assaulting his partner and that would have justified an aggravating uplift of four months.

[11]     By this reasoning I come to the same starting point that Judge Holderness took of two years four months.  So I am of the view that it is not appropriate for the Court to intervene and disturb the sentence. Accordingly the appeal is dismissed.

Solicitors:

A Bailey, Barrister, PO Box 26-127, North Avon, Christchurch 8148.

Raymond Donnelly & Co, Christchurch – [email protected]