Burton v Police

[2017] NZHC 664

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-19 [2017] NZHC 664

BETWEEN

MARK BURTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 April 2017
Appearances:	G P Tyrrell for Appellant P A Norman for Respondent
Judgment:	7 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Appeal

[1]      On 27 January 2017 His Honour Judge MacAskill sentenced the appellant, Mr Burton, to eight months home detention on one charge of injuring with intent to injure1 and concurrently to seven days home detention on one charge of intentional damage.2     The Judge ordered the appellant to pay property and emotional harm reparation of $2,820.

[2]      The  appellant  says  the  end  sentence  was  manifestly  excessive.  Counsel

Mr Tyrrell, submits that a sentence of intensive supervision, community detention, and community work would be appropriate.

1      Crimes Act 1961, s 189(2), maximum penalty five years imprisonment.

2      Summary Offences Act 1981, s 11(1)(a), maximum penalty three months imprisonment, $2000 fine.

BURTON v NEW ZEALAND POLICE [2017] NZHC 664 [7 April 2017]

[3]      Mr Burton was a passenger in a vehicle entering a McDonald’s driveway in the early hours of the morning. The victim, who was on his stag-do and extremely intoxicated, was standing in the driveway and obstructing entry to the car park. After sounding the horn, Mr Burton got out and approached the victim in an aggressive manner.  He pushed the victim in the chest and punched him in the chin, causing him to fall to the ground.  He then kicked him a number of times in the body and legs, until the victim was unconscious.   He then picked up the victim’s cell phone and threw it to the ground.

[4]      The victim made a statement that this was an unprovoked and cowardly attack which resulted in being knocked to the ground and unconscious by a direct king-hit punch and a forceful shove which caused him to fall backwards hitting the concrete ledge on an adjacent building which split the back of his head.   He remembers waking up in the ambulance but in and out of consciousness.  He had a laceration to the back of his head which required four staples.  His lips were ripped, a tooth fractured, and he had a chip to another tooth.   He could not eat solids for a week because of the pain, and his short term memory was affected for some weeks.

[5]      The offending occurred on 12 November 2015, and at the time of the victim’s impact statement, he still had recurring headaches and spells of mental exhaustion. He had to go to a four day working week.  There was pressure on his family because he and his partner were to get married within days.

[6]      I recognise from the sentencing notes that the appellant is not a first offender, but there is nothing relevant in his record, other than the fact that drink-driving convictions indicate a problem with his judgment being affected by alcohol.  He has self-referred in this regard. He presented to the court as very remorseful and offered to pay reparation, which the Judge thought should be higher.

[7]      His employer is supportive and would accommodate his being sentenced to home detention, and Mr Tyrrell says that is now in place.

[8]      A  sincere  letter  of  apology  was  written  to  the  victim  and  there  were testimonials which speak well of the appellant as a father and family man, a sportsman, player, coach and worker.

Jurisdiction and approach on appeal

[9]      Mr Burton  appeals as  of right.3     Section 250  of the Criminal Procedure Act 2011 provides that the court can only allow the appeal if satisfied there is an error in the sentence imposed, and that an alternative sentence should be imposed.  If either element is not satisfied, the appeal must be dismissed.

[10]     If the sentence under appeal is justified under relevant sentencing principles, the court may not simply substitute its own view.  The exercise of the sentencing judge’s discretion will not be upset unless the sentence imposed was manifestly excessive.

[11]     Citing Ripia v R,4 Toogood J said:5

[26]     The High 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 is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[12]     The Court of Appeal provided this guidance:6

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

[13]     For the appeal to succeed it must be demonstrated that the Judge erred in the reasons adopted and that the end sentence is wrong.

3      Criminal Procedure Act 2011, s 244.

4      Ripia v R [2011] NZCA 101 at [15].

5      Larkin v Ministry of Social Development [2015] NZHC 680.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[14]     In his sentencing notes, the Judge said the case “clearly falls within band 2 in the sentencing guideline judgment of Nuku v R”.7   The appellant’s age (23), his lack of violent history, his apparent commitment to rehabilitation, his family, sport, employment, and issues identified in counselling were addressed by the Judge as relevant to the outcome. The Judge characterised the sentencing process as “an evaluative, not a formulaic, process” and said the evaluation must “be made by the Court in the light of guideline judgment to the appellate Courts and not by close comparative analysis of other cases.”

[15]     The Judge correctly characterised the offending as “serious street violence”, saying “this was… an unprovoked, drunken, angry and aggressive, deliberate and violent assault on a man unable to defend himself”. While the pre-sentence report recommended intensive supervision, community work, community detention, and reparation, the Judge said that such a sentence would not reflect the seriousness of the offending, which required denunciation, holding Mr Burton to account, deterring further offending, while providing for rehabilitation.

[16]     His  Honour  adopted  a  starting  point  of  30  months  imprisonment.  He deducted six months for mitigating factors, and a further six months (25%) from the subtotal, resulting in a sentence of 18 months.  The Judge then imposed a sentence of

10 months home detention, according to principle.

[17]     By then, almost a year had passed since Mr Burton pleaded guilty. Much of this delay was administrative and systematic, including judicial unavailability and oversight in a report to the Court. The delay was undue, and the Judge deducted a further two months from the sentence to compensate, leaving a final sentence of

eight months home detention.

7      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

The Appellant

[18]     The appellant submits that the starting point of 30 months was outside the available range. Counsel cites a number of similar cases and submits that a more appropriate starting point would have been 21 months. No issue is taken with the six month  discount  for mitigating  factors  and  Mr Tyrrell  concedes  that  a  lower starting point may result in the discounts being reduced on a proportional basis.

[19]     The appellant also submits that the Judge erred in not following the common practice of halving the end sentence of imprisonment for home detention.  Mr Tyrrell concedes that this one month difference is probably not enough to establish that the sentence was manifestly excessive but he submits that, in the context of the starting point, this compounds the error.

[20]     Finally, it is submitted that the Judge was wrong to impose a sentence of home detention. The  administrative delay,  the  appellant  argues,  has  caused him prejudice in that he is a promising player and he will miss two seasons of rugby rather than one. In combination with the factors above, it is submitted, this means that the sentence imposed is manifestly excessive.

[21]     No issue is taken with the reparation order or the concurrent sentence on the intentional damage charge.

The Respondent

[22]     Ms Norman for the respondent submits that the starting point was well within range. The Judge correctly identified that the offending fell into band 2 of Nuku, which allows for a starting point of up to three years where there are three or fewer of the Taueki aggravating factors. The respondent submits that the Judge identified four factors.

[23]     Ms  Norman  submits  that  the  practice  of  halving  the  sentence  for  home detention is not always appropriate, and depends on factors specific to the case.

Regardless, in the context of a generous deduction of six months for mitigating factors, it is submitted that the one month discrepancy did not affect the fairness of the end result.

[24]   Finally, the respondent submits that the Judge correctly identified and considered the relevant factors in deciding to impose a sentence of home detention, and that it is not appropriate to interfere with the weight placed on those factors by the sentencing Judge.

Discussion

The starting point

[25]     In Nuku v R the Court of Appeal provided guidance for sentencing charges such as injuring with intent to injure.   It set out three bands for the starting point, based on the seriousness of the offending.  Band one is appropriate “where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge”. In such cases, “a sentence of less than imprisonment can be appropriate.”  Band two applies where there are three or fewer of the aggravating factors listed in R v Taueki.  In such cases a starting point of up to

36 months is appropriate. Band three applies where there are more than three aggravating factors, in which case a starting point of between two years and the statutory maximum (here, five years), is appropriate.8

[26]   The aggravating factors listed in Taueki include “attacking the head”, “vulnerability of victim” and “extreme violence” which may be proved by “prolonged… unprovoked or gratuitous” violent conduct.9   Although the Judge did not explicitly refer to these factors, it is clear from his sentencing notes that he considered that these three were all present.  This conclusion was clearly available to the Judge.  The victim was vulnerable and in no position to defend himself due to his

intoxication.  After striking the victim in the head, Mr Burton continued to attack

8      Nuku v R, above n 7, at [38].

9      R v Taueki [2005] 3 NZLR 372 (CA) at [31].

with violence, with repeated blows. A starting point of up to 36 months was in principle available.

[27]     The cases cited by the appellant do not in my view lend support to the contention that a starting point of 30 months was out of range.   The offending in Rewa v Police,10  where a starting point of 25 months was taken, was less serious than the present case.  There, the violence consisted of a single punch.  While the punch caused significant injuries, Mr Burton’s actions, in following up the punch with multiple kicks to the body of the victim, show a higher level of violent intent. Similarly, Elizalde v Police, where a starting point of 30 months was reduced on appeal to 21 months, involved a single punch to the head.11

[28]     Hall v R is also cited by the appellant.12    Mr Hall punched the first victim multiple times in the head, and then, with two associates, kicked the second victim multiple times in the body and head while he was on the ground.  A starting point of

30 months was adopted.  While the violence in that case was slightly higher than in the present, the Court of Appeal commented that the sentencing Judge “could have taken a higher starting point”.13   In light of that, the same starting point in a case of slightly less seriousness cannot be said to be out of range.

Home detention calculation

[29]     Although  it  is  conventional  to  halve  the  term  of  imprisonment  when converting a sentence to home detention, there is no requirement to do so.  In any case,  given  that  the  starting  point  of  30  months  was  appropriate,  and  that  the discounts applied for mitigating factors were generous, a one month discrepancy does not by itself lead to a finding of manifest injustice.

The appropriate sentence

[30]     Mr Tyrrell did not press this ground of appeal.  Section 8(g) of the Sentencing

Act requires the court to impose the least restrictive outcome that is appropriate in

10     Rewa v Police [2015] NZHC 2459.

11     Elizalde v Police [2015] NZHC 959.

12     Hall v R [2015] NZCA 249.

13 At [14].

the circumstance, in accordance with the hierarchy of sentences set out in the Act. Here, the Judge was of the view that a sentence short of home detention would be unable to meet the sentencing purposes of denunciation and deterrence.

[31]     The offence of injuring with intent to injure is serious, and almost invariably attracts a sentence of imprisonment or home detention.  Mr Burton’s offending is not low in the spectrum for this kind of offence, given the aggravating factors discussed. Mr Tyrrell has not referred to any analogous cases where a sentence less than home detention  has  been  imposed.  Indeed,  the  cases  cited  on  Mr  Burton’s  behalf  all resulted in imprisonment, albeit in the case of Rewa with leave to apply for home detention.  It cannot be contended that in ordinary circumstances the end sentence of eight  months  home  detention  was  out  of  range  and  manifestly  excessive  for offending such as Mr Burton’s.

[32]     This leaves Mr Burton’s contention that the administrative delay and the prejudice it has caused him, especially for his rugby career, means a lesser sentence should be imposed. A reduction in sentence may respond to undue delay in sentencing.14    In this case, the Judge agreed that there had been undue delay, and discounted two months in the sentence, to reflect the prejudice that the delay has caused the appellant.  The “specific prejudice”, it is submitted, is that Mr Burton will

miss  two  seasons  of  rugby  rather  than  one.    Between  his  plea  of  guilty  and sentencing he was on bail with very few restrictions, but he could not pursue the prospect of representative rugby while he was uncertain of the sentence to be imposed. The sentence imposed extends the lost opportunity.  It is only one factor.

[33]     Given the seriousness of the offending, the recognised mitigating factors, and the allowance for delay, eight months home detention was within the range available to  the sentencing Judge.     This  in  the  court’s  view was  serious  and  gratuitous violence, and it could have resulted in a much worse outcome for the victim, and for the appellant.  Deterrence and denunciation are salient sentencing principles in a case

such as this.

14     R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.

Disposition

[34]     The appellant has not demonstrated the sentence was manifestly excessive. [35]      The appeal is dismissed.

………………………………………….

Nicholas Davidson J

Solicitors:
Weston Ward & Lascelles, Christchurch
Raymond Donnelly & Co., Christchurch