Cameron v Police

[2016] NZHC 2678

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-111 [2016] NZHC 2678

BETWEEN

BLAIR WESLEY CHARLES

CAMERON Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 November 2016
Appearances:	L Drummond for Appellant E Henderson and K Basire for Respondent
Judgment:	8 November 2016

JUDGMENT OF MANDER J

[1]      The appellant, Blair Cameron, pleaded guilty to assault with intent to injure and male assaults female.  He was sentenced by Judge Couch to six months home detention.1   He appeals against that sentence.

Background

The offending

[2]      Mr Cameron separated from his wife in early 2016.  On 3 April 2016, in the early hours of the morning, Mr Cameron went to the house where his ex-wife was residing.  A male friend of his ex-wife was also at the address.  Mr Cameron entered the house where the occupants were sleeping.  He stood over the male victim and punched him repeatedly about the face and head causing cuts and bruising.   The male victim tried to escape.  Mr Cameron grabbed him in a chokehold and continued

choking him for some time threatening, “I can kill you”.  Mr Cameron’s former wife

1      Police v Cameron [2016] NZDC 17265.

tried to intervene.   She failed to pull Mr Cameron away.   When the man said he would leave Mr Cameron released the chokehold but began to punch him about the head and face causing further cuts and bruises.  This resulted in the charge of assault with intent to injure.

[3]      The female victim ran to the neighbour’s property for help and tried to call the police.  Mr Cameron followed her there.  He grabbed her by her t-shirt and raised his fist, threatening to punch her.  He then pushed her violently into a brick wall and grabbed a wooden stake.   He struck her repeatedly about her legs with it.   She suffered bruising to her legs and body in the assault.  This resulted in the charge of male assaults female.

The sentencing

[4]      Judge Couch regarded the offending as serious.  He accurately described the attack on the male victim as sustained.  The victim was vulnerable being asleep in bed at the time.   Numerous blows to the head were delivered and Mr Cameron choked his victim.  The female victim was also vulnerable, being outside at the time in her night-clothes trying to run away.  For all the offending Judge Couch took a starting point of 18 months imprisonment.  To reflect the serious aggravating factor that the attack involved Mr Cameron’s unlawful presence in a dwelling-house a two month uplift was applied.   Judge Couch provided a seven month, or 35 per cent, discount to reflect the mitigating features of prompt guilty pleas, remorse and the offer of reparation. This reduced the end sentence to 13 months’ imprisonment.

[5]      The Judge considered that home detention was appropriate in this case and sentenced Mr Cameron to six months’ home detention with a condition he participate in a program to address alcohol, anger management and  other offending-related issues.  He was also ordered to pay $1,000 reparation to the male victim.

The appeal

[6]      The notice of appeal states the following grounds:

(a)       the Judge failed to take into account relevant mitigating factors; (b)   the starting point adopted was too high;

(c)       the end sentence was manifestly excessive.

Submissions

Submissions for Mr Cameron

[7]      Mr Cameron’s counsel accepts the end sentence is not manifestly excessive. It is also acknowledged that while issue may be taken as to how the end sentence was reached, the focus must be on the correctness of the end result.  Unfortunately, counsel, who did not appear in the District Court, does not have instructions to abandon the appeal. Having recently had the opportunity to read Judge Couch’s sentencing notes, she accepts there are no valid grounds to disturb the sentence.

Submissions for the respondent

[8]      The respondent submitted the sentencing bands identified in Nuku v R can be applied to gauge the seriousness of the current offending.2   The aggravating features in this case include multiple attacks to the face and head with a closed fist, premeditation, strangulation, vulnerability, threats to kill, the duration of the attack, and the home invasion element.

[9]      It was submitted that a starting point of 16 months’ imprisonment would be appropriate for the assault with intent to injure offending.  An uplift of four months for the male assaults female charge would be within range and therefore the overall starting point of 20 months is unimpeachable.  It was also submitted the 35 per cent discount was appropriate.  The end sentence of six months’ home detention cannot

be described as manifestly excessive.

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

[10]     The Crown referred to the Court of Appeal Case of Tamihana v R where the Court considered a 12 month starting point on one charge of assault with intent to injure was appropriate.3     The appellant and his  associate were outside a bar in Nelson. The associate became involved in an argument with the victim.  He punched the victim in the face and kicked him while he was on the ground.  The appellant then ran up to the victim and kicked him once in the head.  As a result the victim

suffered bruising and grazes to his face.

[11]     The Court of Appeal noted there is no guideline judgement for the offence of assault with intent to injure.  However, there were tariff judgments for other violence offences which involved the same mental element – the intent to injure.  The Court of Appeal considered the offending was comparable to band two in Nuku, taking into account the kick to the head, the multiple attackers, and the vulnerability of the

victim.4    The appellate Court did not, however, consider the offending to be at or

towards  the  higher  end  and  noted  the  lack  of  extreme  violence,  premeditation, serious injury, weapons, and there was no suggestion that the offending was to facilitate the commission of any other crime.

[12]     In the present case, the aggravating features include:

(a)       premeditation – the attack was obviously planned with the appellant seeking out the victims;

(b)      attacks to the head – the appellant attacked the male victim’s head and

face with his fist;

(c)       vulnerability – the male victim was asleep in bed when the attack began; and

(d)home invasion – the appellant unlawfully entered the home in the early hours of the morning in order to carry out the attack.

3      Tamihana v R [2015] NZCA 169.

4 At [19].

[14]     The offending is comparable with top of band two offending under Nuku, if not the lower end of band three.  The aggravating features of vulnerability and home invasion were particularly serious.  The home invasion occurred in the early hours of the morning when the victim was asleep and at his most vulnerable.  The Court of

Appeal said in Taueki:5

Where the offending involves the invasion of the sanctity of the home, this will be a particularly important factor. Section 9(1)(b) of the Sentencing Act applies. As this Court noted in R v McLean [1999] 2 NZLR 263 at 266, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence.

[15]     The offending is more serious than that in Tamihana. Although there were two attackers in that case, the appellant’s role was limited to one kick to the head.  In this case the attack was ongoing.  It involved numerous blows to the head and face and also the strangulation of the victim before the appellant returned to strike his head and face.  The victim in this case was also more vulnerable.  The only way he could have been more vulnerable was if he was actually unconscious.   The premeditation was also significant.   I accept the Crown submission that a starting point of 16 months was available.

[16]     An uplift was required to reflect the further male assaults female charge. This offending featured many of the same aggravating factors.  Although there was not an attack to the head, a weapon was used, albeit a very rudimentary one.  It also involved the appellant chasing the victim as she tried to escape.  She was forced to flee from her home in the early hours of the morning.  A four month uplift would have been well within range.

[17]     While approached in a different way to that adopted by the District Court, the same combined  starting point is reached.   Applying a 10 per cent discount for remorse and reparation and then 25 per cent for the guilty pleas, the sentence reduces to 13 months.  Adjusting for a sentence of home detention, the six months imposed

was well within range and arguably at the lower end.  The order to pay reparation for

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

emotional harm in the sum of $1,000 to one of Mr Cameron’s victims was entirely

appropriate.

[18]     The appeal is dismissed.

Solicitors:

Linda Drummond Barrister, Christchurch

Raymond Donnelly & Co, Christchurch