Dean v The King
[2025] NZHC 174
•14 February 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-78 & 79
[2025] NZHC 174
BETWEEN PATRICK DEAN
Appellant
AND
THE CROWN
Respondent
Hearing: 13 February 2025 Appearances:
S W Campbell for Applicant
H M L Farquhar for Respondent
Judgment:
14 February 2025
JUDGMENT OF CHURCHMAN J
[Appeal against sentence]
Introduction
[1] On 18 October 2024, the appellant was sentenced to four years and five months’ imprisonment for the following charges:1
(a)wounding with intent to cause grievous bodily harm (‘wounding charge’);2
(b)assault on a family member (‘assault charge’);3 and
1 R v Dean [2024] NZDC 25683.
2 Crimes Act 1961, s 188(1) — maximum penalty of 14 years’ imprisonment.
3 Section 194(a) — maximum penalty of two years’ imprisonment.
DEAN v THE CROWN [2025] NZHC 174 [14 February 2025]
(c)injuring with reckless disregard (‘injuring charge’).4
The appellant now appeals his sentence on the grounds that:
(a)the Judge erred in adopting too high a starting point of five years and three months’ imprisonment for the wounding charge; and
(b)the appellant’s personal background factors, his genuine attempts at rehabilitation pending sentencing, (notwithstanding his unfortunate subsequent reoffending in prison), and remorse should have resulted in a greater reduction than the 15 per cent adopted by the sentencing Judge.
The offending
[3] On 19 March 2023, the appellant had an argument with his then partner, Ms A. The appellant then accused Mr Al-Salami, of having an affair with Ms A. The appellant punched Mr Al-Salami in the face and stabbed him multiple times with a knife. The victim sustained injuries to the neck, central chest area, arm and eyelid. The victim’s injuries required surgery.
[4] Ms A went upstairs to comfort the crying children. The appellant then followed Ms A upstairs and slapped her across the face. He told the victim to stop crying and clean up the blood. The victim did not receive any physical injuries from the slap.
[5] On 4 May 2024, the appellant — who was on remand at Rimutaka Prison — punched another prisoner with a closed fist. The victim, who fell heavily as a result of the punch, received a large open wound to the back of his head, a large split on the inside of his mouth and underneath his chin, and a sore shoulder and neck.
4 Section 189(2) — maximum penalty of five years’ imprisonment.
Procedural history
Sentencing indication
[6] On 22 September 2023, Judge Kelly gave a sentence indication in respect of the wounding charge and the family violence charge.5 The Judge indicated a starting point of five years and three months’ imprisonment for the wounding charge, an uplift of three months’ imprisonment for the assault charge, an uplift of eight per cent for aggravating factors (including that the appellant had re-offended while awaiting sentence) and a guilty plea credit of 25 per cent. The end point was 47 months’ imprisonment.
Bail history
[7] On December 2023, after accepting the sentence indication, the appellant was granted EM bail to the Whanganui Grace Foundation. However, on 19 March 2024, the appellant breached his bail and was returned to custody.
District Court decision
[8] Judge Kelly calculated a starting point of five years three months’ imprisonment for the wounding charge and an uplift of three months for the charge of assault on a person in a family relationship. She found that the grievous bodily harm offending was within band one or the bottom of band two within R v Taueki.6 The Judge identified the following aggravating factors: an attack to the head, the use of serious violence and injury to the victim, and the use of a weapon.
[9] The overall starting point for the appellant was six years and four months’ imprisonment.
[10] The Judge applied an uplift of 10 per cent in light of the injuring charge occurring while the appellant was remanded in custody for serious violence offences and the appellant’s previous convictions. The judge imposed a cumulative one year sentence on the injuring charge.
5 R v Dean DC Wellington CRI-2023-091-000459, 22 September 2023.
6 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[11] The Judge accepted that there was a causal connection between the appellant’s upbringing, his drug addiction and his use of violence. The Judge adopted a 15 per cent discount in consideration of these factors. The Judge also noted that the defendant was entitled to a 25 per cent discount for entering a guilty plea at the first reasonable opportunity. The total discount for personal mitigating factors was 40 per cent.
[12] The Judge reached a total end sentence of four years five months’ imprisonment.
Approach on appeal
[13] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.7 The Court must dismiss the appeal in any other case.8
[14] Section 245 of the Criminal Procedure Act 2011 confirms that the fact the defendant has received a sentence indication does not affect his right to appeal the sentence imposed on him.9
Submission
Appellant’s submissions
[15] Mr Campbell submits that the offending falls within the higher end of band one in Taueki, justifying a starting point of four and a half years’ imprisonment for the wounding charge. Mr Campbell refers to R v Tapatahi and Tua v Police as supporting the proposition of a lower starting point for the wounding charge.10 In both cases, the defendants had pleaded guilty. In Tapatahi, the defendant received a starting point of four years’ imprisonment for slashing the victim with a broken beer bottle. The victim received cuts to the face, finger, chest and upper arm, and required stitches. In Tua the
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
8 Criminal Procedure Act 2011, s 250(3).
9 See also Nepia v R [2015] NZHC 1226 at [25]–[27].
10 R v Tapatahi DC Kaitaia CRI-2012-027-000228, 1 February 2012; and Tua v Police HC Auckland CRI-2011-404-340, 18 November 2011.
defendant received a starting point of four and a half years’ imprisonment for attacking the victim with a machete. The victim sustained a deep cut to the arm which required surgery and a cast, and a cut to the head which required stitches. Mr Campbell submits that the appellant inflicted a lesser degree of harm on Mr Al-Salami, noting that the victim was able to drive himself to the hospital.
[16] Mr Campbell submits that a higher reduction of 25 to 30 per cent was warranted and refers to the appellant’s ‘difficult background and his real attempts at rehabilitation’ and his ‘genuine remorse’ for his offending. Counsel refers to R v Berkland where the court noted that people who experience more social, cultural, and economic deprivation during their childhood are more likely to offend later in life.11 Counsel also relies on Solicitor-General v Heta where a 30 per cent reduction was adopted to reflect the social and individual deprivation of the defendant, rehabilitative prospects, and an additional 10 per cent discount was applied for remorse and restorative justice.
Respondent’s submissions
[17] Ms Farquhar submits that the end sentence of four years and five months’ imprisonment was within the range available to the Judge and was not manifestly excessive.
[18] She submits that the starting point of five years and three months’ imprisonment was between the top range of band one or the bottom of band two of Taueki. She notes that the current offending involved violence that was life threatening
— the victim required surgery for the injuries. Counsel submits that the Judge was generous and contends that a starting point of at least six years’ imprisonment would have been more appropriate.
[19] Counsel relies on Berkland as an authority to support a 15 per cent discount for the appellant. The defendant in that case received a 10 per cent discount for his deprived background and addiction. Ms Farquhar also refers to recent authorities which indicate that a 15 per cent credit is appropriate where there is a causal link
11 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
between the offending and seriously disadvantaged personal background factors.12 Counsel refers to a pre-sentence report, dated 12 August 2024, in which the report writer considered that the appellant was likely participating in impression management to tell the report writer what he thought they wanted to hear. Therefore, counsel submits that the Judge was generous in providing a 15 per cent discount.
[20] In response to the appellant’s submissions, Ms Farquhar submits that additional credit for remorse would not be appropriate. She notes that the appellant’s ‘short’ letters of apology provide limited evidence of remorse and were insufficient to displace the finding of the pre-sentence report.
[21] Ms Farquhar also submits that it would have been open to the Judge to apply a greater uplift for personal aggravating factors and not to give any credit for rehabilitative efforts. Counsel refers to the appellant engaging in serious violent offending while being on home detention and breaching bail at the Grace Foundation.
Analysis
Starting point for the wounding charge
[22] The first issue to consider is whether the Judge erred in adopting a starting point of five years and three months’ imprisonment for the wounding charge. I accept the submission of Ms Farquhar that the offending falls between the top range of band one or the bottom of band two of Taueki.13 The Court of Appeal in Taueki held that a starting point around five years may be appropriate if the attack features the use of a weapon.14 If the attack involves blows to the head or other serious injuries are caused, then a starting point higher in the band two spectrum would be required.15 In the appellant’s case, his knife was a lethal weapon and his attack on the victim caused injuries which required surgery.
[23] While Tapatahi and Tua involved a lower starting point, those cases turned on different facts. In Tapaptahi, Judge McDonald accepted that a starting point of
12 McMillan v R [2020] NZCA 128 at [148], citing R v R [2020] NZCA 446 at [28]-[30].
13 See also Xie v R [2019] NZCA 218; and Graham v R [2011] NZCA 131.
14 Taueki, above n 6, at [37].
15 At [39].
four years was ‘exceptionally lenient’ and noted that ‘glassing’ to the face with a broken bottle would ordinarily have a starting point of five years or more.16 I do not accept the appellant’s submission that a lower starting point is justified by the fact that the victim sustained less severe injuries compared to the defendants in Tapatahi and Tua because he could subsequently drive himself to the hospital. The victim sustained injuries to vital areas such as the neck, central chest area, and head. I also note that Tapatahi and Tua are not guideline judgments but comparators. In L (CA215/2021) v R the Court of Appeal made it clear that the Court’s focus on sentencing should be the guideline decisions for the relevant offences rather than comparator cases applying the guideline judgments.17
[24] Therefore, I consider it was open to the Judge to apply a starting point of five years and three months’ imprisonment for the wounding charge in light of the aggravating factors.
Personal mitigating factors
[25] The next issue to consider is whether the Judge erred in adopting a 15 per cent discount for personal mitigating factors. The Supreme Court’s decision in Berkland provides helpful guidance as how s 27 reports and background factors are to be approached in sentencing — if the offender’s background establishes a causative contribution to the offending, this may be a mitigating factor for the Court to consider.18.
[26] As evidenced by the Alcohol and Other Drug Report (AOD) and the psychological assessment produced by Mr Robertson, I accept that the appellant was raised in environments where casual attitudes towards violence and illicit substances were modelled to him by adults. The s 27 report notes that there was a ‘drug-crime nexus’ to his offending whereby the consumption of methamphetamine caused the appellant to be aggressive and violent, coupled with his exposure to substance abuse and violence from childhood. The report further suggests that there is a correlation
16 Tapatahi, above n 10, at [18].
17 L (CA215/2021) v R [2021] NZCA 297 at [18].
18 At [109]–[121]; and see also Zhang v R [2019] 3 NZLR 648, (2019) 29 CRNZ 282 at [159] and
[162].
between aggressive behaviour in males and experiencing sexual abuse during their childhood.
[27] The Court of Appeal in McMillian v R regarded discounts of 30 per cent as being at the upper end, with 15 per cent being the most common discount adopted in cases where a causal link is made out between the offending and seriously disadvantaged personal backgrounds.19 A discount between 10 and 30 per cent has typically been available for defendants where there is a causative contribution to offending. In Waho v R, the defendant received a 15 per cent discount.20 In Poi v R, the defendant received a 20 per cent discount to recognise the defendant’s severe deprivation and disadvantage as well as the evidence of positive rehabilitative progress from the defendant.21 The defendant in Minogue v R received a 10 per cent discount.22 The Court in Kreegher v R adopted a 10 per cent discount.23
[28] I acknowledge, as did the sentencing Judge, that the appellant has experienced a difficult childhood where he has been exposed to cultural deprivation, drugs, alcohol and violence. I accept that there is a causative contribution between his background and the offending, set out in the s 27 report findings. I acknowledge that the defendant has expressed his willingness to undergo rehabilitation, but this willingness is undermined to some extent by the fact that he failed to complete an intensive Alcohol and Drug programme while on bail at the Grace Foundation. Therefore, in terms of the case law discussed in [27] above, I consider that a 15 per cent discount was open to the Judge.
[29] I accept the appellant’s submission that the defendant has showed remorse following the offending. As noted in Whitfield v Police, ‘genuine expression of remorse accompanied by a willingness to participate in a restorative justice meeting should be recognised with a small reduction in sentence.’24 A discount for remorse is typically between five and 15 per cent.25 In Old v R, the defendant received a
19 McMillian v R [2022] NZCA 128 at [148].
20 Waho v R [2020] NZCA 526 at [28] and [33].
21 Poi v R [2020] NZCA 312.
22 Minogue v R [2020] NZCA 515 at [52].
23 Kreegher v R [2021] NZCA 22 at [47].
24 Whitfield v Police [2024] NZHC 2270.
25 Kohu v R [2023] NZCA 343 at [40].
10 per cent discount for a “successful restorative justice conference involving a genuine expression”.26 In A v R, the defendant received a 16 per cent discount through the ‘utmost effort’ to participate in restorative justice, acceptance of offending, engagement with counselling, early guilty plea and abstinence from alcohol.27 In C v R, the court granted the defendant an eight per cent discount for remorse in ceasing the use of alcohol, engaging with counselling, offering to participate in restorative justice, providing an apology to the victim and offering a payment for emotional harm.28
[30] I acknowledge the appellant’s submissions regarding the letters of apology and the risk of impression management identified in the s 27 reports. I have concluded that a five per cent discount for remorse would have been justified here: the appellant has not participated in restorative justice like the defendant in Old v R nor has he had a significant opportunity to show his rehabilitative progress like the defendants in A v R and C v R.
[31] Nevertheless, the s 27 report stated that the appellant was willing to participate in restorative justice measures he had applied to participate in anger management programmes and proactively participated in a psychological assessment. He was also willing to engage with ACC to receive resources for the purposes of addressing his childhood trauma. The AOD report also noted that the appellant was ‘enthusiastic about receiving treatment for his substance use issues and underlying issues’ and his primary goal was ‘living on the Kapiti Coast, with my kids, free from drugs and alcohol’. Despite the defendant’s failure to complete the Alcohol and Drug programme at the Grace Foundation, I accept the defendant’s statements regarding his wish to rehabilitate himself at face value.
[32] I find that it would have been appropriate to grant the appellant a five per cent discount for remorse.
26 Old v R [2023] NZHC 2369.
27 A v R [2018] NZHC 543.
28 C v R [2022] NZHC 1807.
[33] I now have to turn to consider whether, because of the failure to provide a discrete discount for remorse, the overall sentence can be regarded as manifestly excessive.29
[34] I accept the submission of counsel for the Crown that a combined starting point of six years and four months’ imprisonment was at the low end of the range available, given the nature and gravity of the offences which the appellant was to be sentenced on. I accept Ms Farquhar’s submission that the starting point for the wounding charge was lenient. I also accept the submission that the injuring charge would have itself warranted a starting point in the region of at least 15 months’ imprisonment and that the uplift given was lenient. I accept the Crown’s submission that the judge could have applied a greater uplift for the appellant’s aggravating factors. Standing back and looking at it as a whole, the overall sentence is not manifestly excessive.
Conclusion
[35] I am not satisfied that there has been a material error resulting in an end sentence that is manifestly excessive and that a different sentence should be imposed.
[36]The appeal is dismissed.
Churchman J
Solicitors:
Luke, Cunningham and Clere, Wellington for Respondent
29 See R v Shipton [2007] 2 NZLR 218 (CA) at [32]–[35].
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