Cornor v The King
[2023] NZHC 2752
•29 September 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2023-483-12
[2023] NZHC 2752
BETWEEN JORDAN THOMAS CORNOR
Appellant
AND
THE KING
Respondent
Hearing: 19 September 2023 (via VMR) Appearances:
J H Waugh for Applicant
T C Didsbury and P D Marshall for Respondent
Judgment:
29 September 2023
JUDGMENT OF McQUEEN J
[1] On 21 July 2023, Mr Jordan Cornor was sentenced by Judge Krebs in the Whanganui District Court on a single charge of wounding with reckless disregard,1 to 27 months’ imprisonment.2
[2] Mr Cornor appeals that sentence, alleging that the starting point adopted by the Judge was excessive, and that an excessive uplift for previous convictions was imposed. He says that the Judge erred, and that a different sentence should be imposed. Mr Cornor does not challenge the 20 per cent discount for a guilty plea nor the 10 per cent discount awarded for personal background factors.
[3] Mr Cornor’s appeal is opposed by the Crown, which says that the Judge did not err and that the final sentence was within range.
1 Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
2 R v Cornor [2023] NZDC 15327.
CORNOR v R [2023] NZHC 2752 [29 September 2023]
[4]For the reasons below, I consider that Mr Cornor’s appeal should be dismissed.
Background
The offending
[5] On 30 March 2022, at around 11:00 pm, Mr Cornor and at least one other person were near the complainant’s address in Whanganui, making a great deal of noise. The complainant, from his address, told Mr Cornor and his associates to be quiet and to leave. This angered Mr Cornor and his associate(s) who moved towards the complainant’s property. An argument began, which turned into a fight outside the address. The complainant and his mother managed to retreat inside their address and lock the door.
[6] Mr Cornor and his associate(s) pursued them, smashing panes of glass in the door, and reaching through to unlock it. Mr Cornor then went to the complainant and delivered a significant blow to his face, knocking the complainant over onto sharp shards of glass upon the floor. The complainant suffered large wounds in his right leg, as well as injuries to other parts of his body, including many other smaller wounds on his legs. The injuries that he suffered were a consequence of him falling onto the broken glass. The complainant’s mother called the Police.
Procedural background
[7] Mr Cornor was originally charged with wounding with reckless disregard, aggravated burglary, and wounding with intent to injure. However, the second and third of those charges were withdrawn by the Crown as a result of Mr Cornor pleading guilty to the charge of wounding with reckless disregard following a sentencing indication. That sentencing indication was given on 24 April 2023, and involved an indication of two years and seven months’ imprisonment, calculated as:3
(a)a starting point of two years, nine months’ imprisonment;
(b)an uplift of six months for previous convictions; and
3 R v Cornor DC Whanganui CRI-2022-083-532, 24 April 2023 (Sentencing Indication).
(c)a 20 per cent guilty plea discount.
[8] Mr Cornor then appeared for sentencing before the District Court Judge on 21 July 2023.
District Court judgment
[9] The Judge began by setting out the facts of the offending, the sentencing indication, and Mr Cornor’s criminal history. Referring to cases relied upon by counsel, his Honour adopted a starting point of two years and nine months’ imprisonment with an uplift of six months for previous convictions. The Judge considered that the offending constituted a home invasion, noted that was a significant aggravating factor, and that but for that factor he would otherwise imposed a starting point in the vicinity of 18 months’ imprisonment. He noted also that the injuries suffered by the complainant were not deliberately inflicted by Mr Cornor but were rather a result of Mr Cornor punching the complainant, and the complainant falling onto the glass broken from the door, and also that the complainant engaged with Mr Cornor at least in the early part of the incident.
[10] The Judge adopted a 20 per cent guilty plea discount, as indicated, then moving to consider any further discounts which might arise from the material contained in the s 27 report. His Honour considered that: “the report is one that shows rather than wholesale deprivation that the defendant had good and strict boundaries for much of his formative years”, and that Mr Cornor had good support from his father. The Judge accepted that:4
…there is some influence in the defendant’s past which has predisposed him to behaving in the way that he now does and that that was no doubt as a consequence of his living in the juvenile institution residential homes in Auckland and Rotorua and Palmerston North.
[11]But went on to say:5
However, I do not see the level of intergenerational deprivation or other factors which are sometimes clearly apparent as being close causes with closer nexus to the offending. The defendant has a significant violent tendency, and
4 Above n 2, at [30].
5 At [31]–[32].
that is reflected by his previous convictions, I have already reflected those in the uplift, but he has reached the point where mitigating factors have largely become risk factors in respect of further offending.
[12] Despite submissions from counsel for Mr Cornor for a discount of 20 to 30 per cent for cultural factors and the prospects of rehabilitation, the Judge considered that a 10 per cent discount was appropriate in the circumstances and calculated a final sentence of 27 months’ imprisonment.
Approach to appeal
[13] Under s 250 of the Criminal Procedure Act 2011, the Court must allow a sentence appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.6 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.7
[14] The context of this appeal is slightly altered given the fact that Mr Cornor accepted a sentence indication. A sentence indication is binding on the Judge that gives it—but not upon another Judge.8 Where a defendant has entered a guilty plea based upon a sentence indication, the Court must grant leave to them to withdraw their guilty plea if:9
… the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.
[15]As stated by the Court of Appeal in Taylor v R:10
… where there is a significant disparity between indication and final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea. An expectation has been created and not met, and the accused should not be held to his or her plea.
6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
8 Criminal Procedure Act 2011, s 116.
9 Section 115(2)(b).
10 Taylor v R [2013] NZCA 55 at [18], citing R v Gemmell [2000] 1 NZLR 695 (CA).
[16] Counsel for Mr Cornor, Mr Waugh, confirmed that Mr Cornor did not wish to vacate his plea. Instead, this appears to be a case in which Mr Cornor was unhappy with the sentence indication, but chose to accept it, because there is no right of appeal from a sentence indication,11 with the intention of challenging the final sentence, should it not fall under the two year eligibility period for home detention. There is no prohibition on taking this course of action. In any event, as I propose to dismiss the appeal, no issue as to the vacation of Mr Cornor’s plea arises.
Positions of the parties
Mr Cornor
[17] Mr Waugh submits that the sentence imposed was manifestly excessive, as both the starting point and the uplift for previous convictions were too high.
[18] Mr Waugh submits that the Judge placed excessive weight on the aggravating feature of the offending constituting a home invasion. He says that this is not a typical home invasion case involving an offender breaking into the home of an unsuspecting victim, but rather involved an argument which started outside the victim’s home, and then moved into the home. He submits that in the present case the home invasion element of the offending is only mildly aggravating rather than seriously so. He says also that the victim was an equal participant in the altercation that began outside of the house.
[19] Mr Waugh says that if not for the home invasion element, the Judge would have imposed a starting point of around 18 months’ imprisonment, and that therefore the home invasion element involved an increase to the starting point of 15 months, an increase of over 80 per cent. He submits that this was excessive and that therefore a starting point of two years’ imprisonment should have been adopted. He relies on the cases of Macdonald v Police and Brooking v Police.12
11 Criminal Procedure Act 2011, s 62(5).
12 Macdonald v Police [2012] NZHC 1767; and Brooking v Police [2012] NZHC 3219.
[20] Mr Waugh submits that the Judge erred in considering Mr Cornor’s previous convictions, and that in the circumstances, an uplift of no more than 10 per cent was appropriate.
The Crown
[21] Ms Didsbury, counsel for the Crown, submits that the starting point was within range, with the Judge rightly placing weight on the home invasion element, and that the uplift for previous convictions was appropriate. She says that the appeal should be dismissed, and notes also that Mr Cornor’s submissions for the final sentencing in the District Court adopted the starting point and uplift for previous convictions contained in the sentencing indication.
[22] Ms Didsbury submits that there are four aggravating features of the offending, being a home invasion, attacks to the head, the presence of multiple attackers, and the serious injury caused. She says that given these aggravating factors, a starting point of two years nine months’ imprisonment was available to the Judge, and that this was consistent with Brooking v Police, Hajnal-Huata v Police, Geros v R, and Nelio v Police, which suggest a range of between two years and four months to three years.13 Ms Didsbury says that this places the offending at the top of band two or the bottom of band three in Nuku v R.14 She also notes that the starting point used by the Judge is just under half the statutory maximum penalty.
[23] As to the uplift for previous convictions, Ms Didsbury submits that Mr Cornor’s criminal history shows a concerning pattern of violence, engaging the need for deterrence and community protection.15 She submits that the fact that Mr Cornor was still subject to release conditions at the time of the offending (imposed by the Court on conviction for assault with intent to injure) is an additional aggravating factor justifying an uplift.16
13 Brooking v Police, above n 12; Hajnal-Huata v Police [2020] NZHC 468; Geros v R [2022] NZHC 2269; and Police v Nelio [2017] NZDC 6822.
14 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
15 See Blackmore v R [2014] NZCA 109.
16 See Robertson v R [2016] NZCA 99.
[24] Ms Didsbury submits also that the uplift imposed was within range, saying that the level was consistent with other comparable cases, such as Ripia v R, Dass v Police, Lavea v R, and Arahanga v R.17 She says that the uplift does not render the final sentence manifestly excessive.
Discussion
[25] Counsel were agreed that the starting point for a charge of wounding with reckless disregard should be determined by analogy to the guideline judgment in Nuku v R for wounding with intent, with careful adjustments to recognise the reduced level of intent in reckless disregard cases.18 Care must be taken to ensure that any aggravating features identified are aggravating features of offending with the mens rea of reckless disregard.19 The Court of Appeal in Nuku set out a guideline as follows:20
(a)Band one: 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, a sentence of less than imprisonment can be appropriate.
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point
17 Ripia v R, above n 7; Dass v Police [2015] NZHC 2431; Lavea v R [2014] NZCA 192; and
Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
18 Nuku v R, above n 14. See also Waitohi v R [2014] NZCA 614 at [13]–[16]; and R v Taueki [2005] 3 NZLR 372 (CA).
19 Waitohi v R, above n 18 at [17]; and Hannay v Police [2014] NZHC 2015 at [18] and [22].
20 Nuku, above n 14 at [38].
within band three, even if there are few other aggravating features.
[26] The Court of Appeal further explained the approach to be taken by a sentencing judge in applying the guidelines:21
[42] We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.
[43] Finally, we emphasise that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a particular case, the sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.
[27] As noted, the Court of Appeal listed relevant aggravating factors in R v Taueki.22 Counsel also agreed that having considered a nuanced application of Nuku, the outcome should be cross-checked by considering comparable cases.
[28] I accept Ms Didsbury’s submission that the aggravating features present in this case are serious injury, attacking the head, multiple attackers, and home invasion. The victim in this matter was seriously injured. He had large and deep lacerations to his legs, and also suffered injuries to his face. The lacerations to his legs were caused after Mr Cornor attacked his head, causing him to fall upon the broken glass from the door. Mr Cornor was present and participating in the attack, with at least one other associate. Therefore, there were multiple attackers.
[29] It is useful at this point to note the Court of Appeal’s description in Taueki of what constitutes a home invasion, there, the Court stated:23
Home invasion: 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.
21 Nuku, above n 14. Footnotes omitted.
22 R v Taueki, above n 18, at [31].
23 At [31(j)].
[30] I do not accept Mr Waugh’s submission that there is any distinction in the present offending which requires a conclusion that the culpability inherent in the present offending is reduced because the home invasion involved was ‘mild’. Mr Waugh referred to Nelio, where the victim was asleep and therefore completely unsuspecting. I do not think this assists. Mr Cornor and his associate(s) undoubtedly invaded the sanctity of the victim’s home. After the door was locked in front of them by the victim seeking to escape their assault, they gained entry by breaking a window and unlocking the door. That appears to me to fall classically within the definition of a home invasion.
[31] As such, taking into account the recklessness aspect of the charge, I accept Ms Didsbury’s submission that the offending falls at the top of band two or the bottom of band three as set out in Nuku. A starting point of up to three years’ imprisonment is therefore appropriate, and accordingly, a starting point of two years and nine months’ imprisonment was within range. In addition, in my view, none of the aggravating factors identified above are inconsistent with the mens rea element of wounding with reckless disregard.
[32] It is correct that the starting point identified by the District Court Judge for a single punch to the head following an argument and causing a wound was ‘somewhere in the vicinity of 18 months’ imprisonment’, and that the Judge, acknowledging the home invasion element, increased the starting point to two years nine months’ imprisonment. However, I do not consider that this was an error. The altercation that had occurred outside the house could (and should) have ended at the time the door was locked; but did not. Mr Cornor and his associate(s) continued to pursue the victim, invading the sanctity of his home, and ultimately causing him a serious injury by way of reckless violence. What occurred after the door was locked is properly regarded as a significantly aggravating factor.
[33] In addition, I do not accept Mr Waugh’s argument that the “victim was an equal participant in the altercation”. While the victim had told Mr Cornor and his associate(s) in no uncertain terms to be quiet and to go to bed, this in no way mitigates Mr Cornor’s resort to violence in the circumstances. To accept otherwise would be to blame the victim for his injuries and that would be wrong.
[34] Accordingly, in my view the Judge did not err in his consideration of the home invasion element. I turn now to consider the cases advanced by counsel as assisting the correct approach to sentencing Mr Corner.
[35] Mr Waugh relied on Macdonald and Brooking.24 Both of those cases involved an offender punching their victim in the head. I consider that these cases are clearly distinguishable on the basis that there was only one attacker and no home invasion element. As noted above, I consider the home invasion element to be significantly aggravating. The difficulty in the present case, as already discussed, is that the offending involved two connected events in quick succession, firstly the altercation outside, and second, the altercation inside. The second altercation inside, following forced entry to the victim’s home, is properly considered an aggravating factor which required an uplift to the starting point. Neither Brooking nor MacDonald alter that necessity.
[36] Having considered the cases relied upon by the Crown, I consider that Geros v R is the most apposite.25 In that case Mr Geros entered the victim’s motel room, intending to confront him, and carrying a knife. A struggle occurred between Mr Geros and the victim, during which Mr Geros pushed the knife into the victim’s stomach, causing a two to three centimetre long wound to the victim’s stomach. The appeal was focused on whether a sentence of home detention ought to have been imposed. The starting point of two years eight months was not disturbed. While there was no home invasion or forced entry element as in this case, it involved the use of a weapon, and entry into a dwelling for a purpose that may have included violence.
[37] Having considered the way the Judge addressed the home invasion element and the cases relied upon by counsel, I am not satisfied the Judge erred in imposing an excessive starting point. Rather, the starting point was appropriate and within range.
24 See above n 12.
25 See above n 13.
The uplift for previous convictions
[38] As noted by Ms Didsbury, Mr Cornor’s criminal history indicates a concerning pattern of violence. That history includes convictions for:
(a)assault with intent to injure (2023, 2021, 2016);
(b)possession of an offensive weapon (2022, 2020);
(c)disorderly behaviour (2022);
(d)threatening to kill (2020);
(e)fighting in a public place (2020, 2019);
(f)assault with intent to rob (2019); and
(g)aggravated assault (2018).
[39] An uplift for previous convictions is warranted if a tendency to commit the type of offence for which the offender is before the court is illustrated.26 I consider that such a tendency has been illustrated and that an uplift for previous convictions was appropriate in the circumstances. This is particularly so given that Mr Cornor was subject to release conditions at the time the present offending occurred.
[40] Mr Waugh submitted that the uplift imposed of six months was stern and resisted the District Court Judge’s description of the previous convictions as “appalling”. He suggests a ten per cent uplift is more appropriate. I prefer the view that the appropriate level of an uplift is not determined by percentages, “but rather by a careful assessment of the need for deterrence and other sentencing principles in arriving at the appropriate sentence for the offending in the relevant case”.27 In the present case, the Judge did not err in imposing an uplift of six months to recognise the properly considered aggravating factor of Mr Cornor’s pattern of violent offending. I
26 Jones v R [2021] NZCA 402 at [33]; citing Beckham v R [2012] NZCA 290 at [84]–[85].
27 Blackmore v R, above n 15, at [13], (footnote 18).
am in no doubt that the sentencing principles of deterrence and community protection required as much.
Conclusion
[41] I consider that the sentence imposed by the District Court Judge was within range. The Judge made no errors. The sentence is therefore not manifestly excessive and the appeal should be dismissed.
Result
[42]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Crowley Waugh Barristers and Solicitors, Whanganui for Applicant
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