Coulson v R
[2012] NZCA 420
•17 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA22/2012 [2012] NZCA 420 |
| BETWEEN PETER NEIL COULSON |
| AND THE QUEEN |
| Hearing: 22 August 2012 |
| Court: White, Heath and Fogarty JJ |
| Counsel: A J McKenzie for Appellant |
| Judgment: 17 September 2012 at 10.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
Mr Coulson pleaded guilty in the District Court at Timaru to 17 charges involving dishonesty, physical assault and administration of justice offences.[1] On 25 November 2011, Judge Crosbie imposed an effective sentence of five years and six months imprisonment, seemingly to reflect the totality of the offending.
[1]R v Coulson DC Timaru CRI-2010-009-10586, 25 November 2011 (the Sentencing Notes) at [1].
Mr Coulson appeals against sentence, on the ground that the end sentence is manifestly excessive.
Although Mr Coulson was charged in respect of his wide range of offending both indictably and summarily, this Court has jurisdiction to hear the appeal relating to all of the offending by virtue of s 384A of the Crimes Act 1961.
The facts
The dishonesty offending arose mainly out of incidents that occurred between January and April 2010. Mr Coulson (on some occasions assisted by a female accomplice, who was later the victim of a number of assaults) stole (among other things) four large brass rings from a retailer, items of jewellery, an expensive watch, two laptop computers, one data show projector, a diamond ring and two iPod players. Additionally, on 13 July 2010 Mr Coulson stole some petrol.
The violence began on 21 April 2010. Mr Coulson punched the complainant (the female accomplice in the thefts) in the right eye, threw her to the ground and held her there a short while. He then took her home.
On 12 May the appellant returned to the complainant’s home. She asked him to leave four times and he refused. He only left when told the police had been informed. This event formed the basis of the trespass charge.
The complainant made a complaint of assault against Mr Coulson on 12 May. Subsequently, he was arrested and released on a bail condition requiring that he not contact her. On 14 May 2010, the complainant obtained a protection order against Mr Coulson.
Notwithstanding the terms of bail and the existence of the protection order, Mr Coulson arrived at the complainant’s home in Christchurch at about 10 am on 10 July 2010. A series of assaults followed, over a period of some 20 minutes. They took place after Mr Coulson had entered the house without permission. At the time, the complainant and her partner were in bed. A closed circuit television camera captured a number of the assaults.
After some initial verbal abuse, Mr Coulson grabbed the female complainant and pushed her off the bed. He then kicked her in the stomach and ribs while she was lying on the floor. Mr Coulson then turned his attention to the male complainant and grabbed his left arm, twisting it behind his back and jerking it repeatedly up towards his head. After that, Mr Coulson punched the male complainant in the face on about 8–10 occasions.
On one occasion, the female complainant attempted to stop him from assaulting the male complainant. Mr Coulson grabbed her arm and threw her to the ground.
The male complainant put his hand up to protect his head. Mr Coulson used a screwdriver that he was holding to jab at him. The screwdriver entered the victim’s hand. Mr Coulson said that he was “trying to stab [the male complainant] in the head”. After that, Mr Coulson continued to punch the male complainant, kicked him on three or four occasions and kneed him once in the ribs.
Mr Coulson left the premises and drove, with the female complainant, to an address in Hornby. While there, he attempted to get the female complainant to write an affidavit to support withdrawal of the assault charge laid in relation to the event of 12 May 2010.
On the morning of Friday 16 July 2010, Mr Coulson again went to the female complainant’s home and informed her that he had stolen her cellphone. He added that he was “going to get a gun and [would] be back to kill [them] all”. Mr Coulson left the address in his car.
In July and August 2010, Mr Coulson wrote twice to the male complainant, in an attempt to dissuade him from proceeding with a complaint to the Police.
Sentencing in the District Court
Mr Coulson came up for sentence before Judge Crosbie on 25 November 2011. Over time, guilty pleas had been entered to all charges; though Mr Coulson had earlier sought to resile from a plea entered on one of the charges of attempting to pervert the course of justice.
Judge Crosbie grouped the offending into three categories. Group one involved dishonesty offending between March and April 2010; group two comprised the offending involving violence that occurred in July and August 2010 and group three collected the charges of attempting to pervert the course of justice.
This was a difficult sentencing exercise. Unfortunately, even though it is clear that he intended to impose an end sentence reflecting Mr Coulson’s culpability for all offences, it is not altogether clear from the sentencing remarks precisely how the Judge approached the question of totality. A series of cumulative sentences were imposed.[2] Without wishing to criticise the sentencing Judge, we have decided that the best way to approach the appeal is to consider the sentencing exercise afresh and then to determine whether the Judge’s end sentence responded appropriately to the totality of the offending.[3]
[2] See [46] and [47] of the Sentencing Notes set out at [18] below.
[3] Sentencing Act 2002, s 85. See also Skipper v R [2011] NZCA 250 at [33] and [34].
Judge Crosbie approached sentencing by reference to the charge of burglary as the lead offence, that carrying the highest maximum period of imprisonment. He then considered aggravating and mitigating factors relating to the offence:
[40] . . . aggravating features of the offending are, first, premeditation. Mr Owen [for Mr Coulson] says there was not premeditation. However, in the context of your offending it is sensible to assume that there was some, given the background and the prior assault. He says you went there to talk. You went there to do something. In the context of having been trespassed and committing an assault on this young woman previously there is a clear inference that there was some premeditation there.
[41] The second feature is, the extent of violence. There was actual violence. It was over an extended period. There was bruising and a stab to [the male complainant]. Third, there was the use of a weapon on this occasion. Fourth there was the extended duration of the violence. Fifth, there were two victims. Six, there was a profound effect on them, which I have read from the victim impact reports. Not only did they suffer physically at your hands, but once the threats were made they lived in very real fear that you would follow through with them, and the letters that you wrote to [the male complainant] were, frankly, disgusting. They evidenced a real intention to do harm to that man at some stage. Finally, there was an attack to the head.
[42] Aggravating in addition to that, obviously, is the attempt to get [the female complainant] to make the statement following the violence, the subsequent return to that home on 16 July and a threat made, and then as I have said, the letters to [the male complainant].
[43] The Crown has referred to R v Harris (CA 497/08, 3 December 2008). I accept from that case that this matter falls within band 2 where there are moderate injuries, up to two years. In this case, however, there were two victims, and an incident that occurred for some time. Looking at totality, it is appropriate to see a start point of two years nine months on the Group 2 injuring with the intent to injure and the other violent offences of the same date will attract concurrent sentences.
[44] Looking at the next band of offending of perverting the course of justice and threatening to kill, the Crown refers me to R v Churchward, (CA 439-05, William Young P, Hugh Williams & Gendall JJ) Court of Appeal, 2 March 2006, and a decision of Potter J in R v Dutt (T 025524) 2 April 2004, where Her Honour observed as a starting point 18 months to two years’ imprisonment for less serious attempts, while three for serious.
[45] The Crown also referred to Bailey v R [2010] NZCA, 50. In that case a start point of three years and nine months was upheld on charges of attempting to pervert the course of justice and injuring with intent to injure, with the attempt to pervert the scene as the lead.
[46] Given the presence of three attempts to pervert the course of justice and a threat to kill (while in prison in respect of the latter offending and post the assault) I regard your actions and attempted undermining of the criminal justice system as in the serious category of three years. Taking into account the totality, I propose to add to what I fix as a start point of two years and nine months on the Group 2 offences a further period of two years three months; a starting point of five years.
[47] On the burglary and Group 1 offence, I have already noted a suggested cumulative approach of two years. I want you to note that, had I just been dealing with the burglary alone, that starting point of two years would likely be uplifted by at least 18 months for your previous convictions.
Looking at personal aggravating and mitigating factors, Judge Crosbie considered Mr Coulson’s extensive list of previous convictions as an aggravating factor but noted that there were only “limited” previous convictions for violence and that, given his comments on totality he would not treat Mr Coulson’s previous convictions for burglary as an aggravating factor.[4] Other aggravating factors were the assault on the female victim at a time when he was on bail and she had a protection order in her favour.[5] The Judge gave credit for the guilty pleas, reflecting the different periods during which they were entered.[6]
[4] At [48].
[5] At [48].
[6] At [49].
Judge Crosbie concluded:
[50] So on the injury with intent, I have said two years nine months. In relation to the attempt to pervert and threatening to kill I have said two years three months, which is a starting point of five years. I believe there needs to be an uplift by six months for the offending while on bail, to five years six months. My position is that five years six months is the starting point.
[51] I propose to give you a discount of 18 months for your plea, and impose a sentence of four years on the Group 2 10 July offences and the subsequent Group 3 perverting the course of justice and threatening to kill.
[52] On the burglary, as I have said, two years, less a credit for your plea. That comes to 18 months which I propose to accumulate on the four years, meaning an end sentence in total of five years and six months.
[53] Within those bands I intend to place those sentences with respect to the most serious offences, and for the least serious offences concurrently. There will be sentences respectively of one month’s imprisonment on each other matter.
Competing submissions
Mr McKenzie, for Mr Coulson, submitted that an end sentence of two years for dishonesty offending (before taking account of guilty pleas) could not be gainsaid. But he contended that the accumulation of two years and nine months imprisonment for the violence and administration of justice offending rendered the sentence manifestly excessive.
Mr McKenzie attacked the Judge’s approach on the basis that Mr Coulson had no previous convictions for administration of justice offences, few for violent offending and none for threatening to kill, or offending of that ilk. Based on a totality approach, Mr McKenzie submitted that an end sentence of no more than four years, 10 months imprisonment could have been imposed.
Mr Collins, for the Crown, submitted that, in terms of s 84 of the Sentencing Act 2002, cumulative sentences were appropriate, as the offences were different in kind.[7] Further, he contended that the overall sentence reflected an adequate response to the offending that was not “wholly out of proportion to the gravity of the overall offending”.[8] Mr Collins referred to cases in which cumulative sentences have been imposed to reflect offences different in kind, such as administration of justice offences and those involving violence or dishonesty.[9]
Analysis
[7] Sentencing Act 2002, s 84(1).
[8] Section 85(2).
[9]For example, see R v Uon CA108/05, 27 June 2005 at [24] and [25].
Recently, this Court has reiterated that, whether cumulative or concurrent sentences are imposed, a sentence must reflect the totality of offending.[10] On appeal, “it is the appropriateness of the final sentence that counts, not how it is made up”.[11]
[10]Hughes v R [2012] NZCA 388 at [27].
[11]Hughes v R at [29]. See also R v Xie [2007] 2 NZLR 240 (CA) at [17]; R v Williams CA91/00, 31 May 2000 at [11]; and R v Barker CA57/01, 30 July 2001 at [10], [12] and [18].
Although the burglary charge carried the maximum available sentence, the nature and extent of the violence made the physical assaults the most serious offences. We take a charge of injuring with intent to injure as the lead sentence. That charge carries a maximum penalty of five years imprisonment. We shall treat the other assaults as aggravating factors.
R v Harris[12] is the leading authority on sentencing on a charge of injuring with intent to injure. On the two counts in this case, the offending would, in our view, fall under Band 2 of that decision, justifying a sentence of up to two years imprisonment. Nevertheless, some caution is required in relation to application of the Harris bands. As this Court said recently in Samuel v R, the bands identified in Harris are directed at situations in which the intent on the part of the offender and the actual injury suffered broadly correspond.[13] Delivering the judgment of the Court in Samuel, Stevens J said:[14]
. . . In that situation it would be appropriate to sentence by reference to the seriousness of the injury suffered. Here the circumstances are different. While the mental state of the appellant involved an intention to injure his physical act involved only an assault. In the absence of the broad correspondence between the nature of the act and the relevant intention, as discussed in Harris, we consider that the appropriate starting point is to be determined by reference to all of the circumstances of the offending including the intent involved, any aggravating features and the nature of the injuries sustained.
[12] R v Harris [2008] NZCA 528.
[13] Samuel v R [2012] NZCA 376 at [14].
[14] At [14].
In terms of the mental element, Mr Coulson did intend to injure. The nature and extent of his attacks demonstrates that he was prepared to engage in prolonged conduct to achieve that goal. So far as the injuries were concerned, the most serious involved the stab wound to the male complainant’s hand, a large amount of bruising and swelling over his body and his nose and eyebrow being split open. Both complainants suffered significant harm as a result of the violence inflicted on them.
We consider, in those circumstances, that a starting point of two years imprisonment could reasonably be taken, in relation to the injuring with intent to injure charges. It is then a question of assessing the seriousness of the additional physical assaults to determine an uplift that reflects Mr Coulson’s culpability for this particular offending. In assessing culpability, it was appropriate for the Judge to have regard to aggravating factors of the type discussed in the sentencing guideline case of R v Taueki,[15] although care is required in assessing the extent of the uplift as that case involved an intention to inflict grievous bodily harm.
[15] R v Taueki [2005] 3 NZLR 372 (CA) at [31].
We agree with Judge Crosbie that there were multiple aggravating factors of the type to which Taueki refers.[16] They included: the prolonged nature of the offending; attacking the head; home invasion; that there were two victims and the emotional and physical harm suffered by each. Taking all of those factors into account, we consider that a starting point of four years to reflect Mr Coulson’s culpability for the physical assaults was open to a sentencing Judge.
[16]Sentencing Notes, above n 1, at [40]–[42], set out at [18] above.
Viewing the balance of the offending as a whole, and for present purposes dealing with it on the basis of notional concurrent sentences, the dishonesty offending and that involving attempts to pervert the course of justice would have justified an uplift of at least two years. That would make an overall starting point of six years imprisonment.
Personal aggravating factors included offending while on bail against a person in whose favour a protection order had been made and Mr Coulson’s prior criminal history. Before the offending in issue on this appeal, Mr Coulson had accumulated 114 previous convictions, including five in the High Court. He had also appeared on seven separate occasions in the Youth Court. While most of Mr Coulson’s prior convictions are for offences of dishonesty, he has previously been sentenced for aggravated robbery with a firearm (1982), common assault (1986 and 2007) and presenting a firearm (2007). Those personal aggravating factors justified a further uplift of at least six months imprisonment, making the adjusted starting point one of six years and six months imprisonment. In making that assessment we are mindful of information contained in a psychological report (to which the sentencing Judge referred) in which Mr Coulson was assessed at “very high” risk of reoffending. As the Judge rightly observed, the psychological report depicted “a tortured soul”.[17]
[17] At [32].
The pleas of guilty represented the only mitigating factor. While there were letters supporting Mr Coulson, they could be given little weight in the context of the particular offending and his prior criminal history.
Judge Crosbie gave a credit of “around 20%” to reflect the pleas of guilty. As he said, “some of them were early, not all of them”.[18] On the basis of an adjusted starting point of six years and six months imprisonment a credit of 20 per cent would amount to about 15 months. On that approach, a generic end sentence of five years and three months imprisonment would be reached.
[18] At [49].
That sentence is three months less than the sentence imposed in this case. In the context of a sentencing exercise that could have seen a credit for guilty pleas fixed anywhere between 15 per cent and 20 per cent, with the application of higher uplifts for aggravating factors relating to both the offending and the offender, we do not regard the overall sentence imposed by Judge Crosbie as manifestly excessive.
Result
Although there might be room to adjust particular penalties imposed by the Judge in reaching the end sentence, we consider that, taken together, they are not manifestly excessive. We leave the individual sentences imposed intact and dismiss the appeal.
Solicitors:
Crown Solicitor, Napier for Respondent
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