Devery v Police
[2013] NZHC 264
•20 February 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2012-425-61 [2013] NZHC 264
RICKY KONRAD DEVERY
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 February 2013
Appearances: K McHugh for the Appellant
E Higbee for the Respondent
Judgment: 20 February 2013
RESERVED JUDGMENT OF FOGARTY J
Introduction
[1] This is an appeal against sentence by the District Court at Invercargill (Judge M Turner). It is made difficult by reason of the distinction between gravity and culpability.1 It is a case where it is plainly wrong to apply a common presumption that a sentence can be reliably based on the degree of harm that was caused, on the assumption that there will be a congruence between the degree of harm and the culpability of the person who inflicted the assault. Section 8(a) is the first principle
of sentencing, it distinguishes gravity and culpability. Section 8(a) provides:
1 Section 8(a) of the Sentencing Act 2002.
DEVERY V NEW ZEALAND POLICE HC INV CRI-2012-425-61 [20 February 2013]
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
The assault
[2] The assault arose out of a road rage incident. The appellant was convicted for injuring with intent to injure, and sentenced to two years and eight months imprisonment. After a disputed facts hearing, he was sentenced on the following facts. He was the front seat passenger in a vehicle travelling along Herbert Street in Invercargill. It is unclear whether he had been drinking. While the car was in motion, he was leaning out the window, yelling and abusing motorists and anyone he saw. His vehicle came to a stop at the intersection of Yarrow Street and Queens Drive, as did the victim’s vehicle. The appellant got out of his vehicle and approached the victim, who also got out of his car. He attacked the victim. He punched the victim, with multiple blows to his head with a closed fist. On at least two or three occasions, he kicked the victim in the back. He returned to his vehicle and removed a “V” bottle from the car, approached the victim and struck him, either from the side or from behind, striking him about the head. There were at least two blows.
[3] The appellant was on a high that day. His partner was pregnant. The assault that I have just described was against a person who was unknown to him. It did not arise out of any prior dispute or relationship with the person.
[4] The victim sustained injuries. Initially, the victim thought his nose was broken, but it appears that that was not the case, although he still has a lump on it. He received a swollen black eye, which lasted about 10 days. He received cuts around his mouth, nose and eye area, including cuts inside his mouth. There were grazes on his elbow, as the force of the punching made him fall to the ground. He had bruising to his torso. Three earrings, which he wore in his ears, had been ripped out. He was sore, disorientated and, it seems, concussed. He suffered headaches for weeks.
[5] The offending caused considerable trauma to the victim. As a result, he changed his appearance. He gave up being involved in a local band. He avoided environments which were crowded. He had and still suffers from anxiety attacks. He does not know what the appellant looks like and is afraid of running into him when out in public. The assault has also had an impact on his children. All in all, he and his family have suffered significant physical and psychological effects.
Sentencing analysis
[6] Judge Turner followed the guidance of the Court of Appeal in R v Harris.2
He decided that the injuries the victim sustained were above moderate, placing the offending in band three. The banding in Harris is relatively simple:3
[10] An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:
• Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];
• Band two: where the injuries are moderate, sentences of up to
two years’ imprisonment can be justified;
• Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).
[7] As the Court of Appeal explained in the recent decision of Nuku v R,4 the thinking of the Court in Harris was that in general terms the mens rea for the offence of intent to cause injury will coincide with the actus reus.5 In lay terms, the mental
culpability will coincide with the actual resulting injury. Therefore, in R v Harris the
2 R v Harris [2008] NZCA 528.
3 At [10].
4 Nuku v R [2012] NZCA 584.
5 At [15].
Court was of the view, that where there is a broad correspondence between the actual injury and what was intended, it is reasonably safe to sentence primarily by reference to the seriousness of the injury. The Court in Harris6 did qualify that proposition.
[8] It was Judge Turner’s classification of this case as to band three which underpinned and justified his reasoning.
Argument on appeal
[9] On appeal, the submissions attacked the classification of the Judge that the victim had suffered serious injury, as distinct from moderate injuries. There was a lot of force in that argument, reinforced by numerous cases cited to me.
[10] Without reading Nuku,7 I was troubled by the inadequacy in this case of a Judge using the degree of injury as a proxy for culpability. I do not think Judge Turner did. Rather, I read the judgment as seeking to give weight to the circumstances surrounding this event. He said:8
[10] In terms of the circumstances of the offence, it was an unprovoked attack. It was sustained. It involved multiple blows to the head, multiple kicks and blows with a bottle to this victim’s head. I regard the blows with the bottle to be cowardly. He had turned his back on you. You had to be dragged away by your girlfriend after punching and kicking this man. You then took your shirt off and went back for more. You went to the car, got the bottle, returned and hit him with it.
[11] Judge Turner also had some prior remarks to say as to the use of the bottle. He said:9
[9] I am entitled to have regard to the use of the bottle in as much as you intended to do and cause greater harm to the victim than you did. That the injuries were not more serious was a matter of chance. I rely particularly on the Court of Appeal decisions of Eden v R [2011] NZCA 54 and Ross v R [2010] NZCA 306 when adopting that approach.
6 R v Harris, above n 2, at [11].
7 Drawn to my attention, but deliberately not analysed before me, because of the clear statement of the Court of Appeal that it is only to take effect from 14 December 2012, and that appeals against sentences prior to that date are to continue to be guided by Harris.
8 New Zealand Police v Devery DC Invercargill CRI-2012-025-001300, at [10], per Judge Turner.
9 At [9] per Judge Turner.
[12] The Judge took a starting point of three years, from within the Harris band three range, and above the band two range. The appellant has previous convictions for assault with a blunt instrument, in 2009. That arose out of a domestic incident. He was convicted of common assault in 2005 and 2006. The Judge uplifted the sentence by four months, having regard to these previous convictions. That brought the sentence to one of three years and four months imprisonment. He recognised remorse and the completion of a stopping violence programme, and made an adjustment of four months for those mitigating factors. He allowed a 10 percent reduction for the guilty plea. That reduced the end sentence to two years and eight months.
[13] In Harris, the Court having set out the bands said as follows:10
[11] Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.
[14] In Harris, the sentencing Judge identified aggravating features as follows:11
The factors the Judge took into account were: the gratuitous violence; the seriousness of the injuries; the attack on the complainant’s head, which resulted in loss of consciousness on two occasions; the vulnerability of the victim, including the fact the initial attack was from behind and that the complainant was going in and out of consciousness; the length of the attack; and the abuse of trust.
[15] In this case, Judge Turner came to a starting point based on the following reasons/justifications:12
I consider your offending falls within band 3. The injuries and the circumstances of your offending, including the fact that you were on community detention as I understand it at the time, justify a starting point of three years’ imprisonment. I need to consider whether there should be an uplift for personal aggravating circumstances. In this case I consider there should.
[16] The case of Harris involved an assault by the male in a domestic relationship on his female partner. It was at least as serious as here in terms of gravity of injury.
10 R v Harris, above n 2, at [11].
11 At [13].
12 New Zealand Police v Devery, above n 8, at [11], per Judge Turner.
The Court in Harris treated it as a band two classification. Ms McHugh submitted with some force that this was a band two Harris case rather than band three, and accordingly the starting point was too high.
[17] I consider that this is a case where the qualifications in Harris can be applied, although I have to say I am encouraged in that regard after reading the decision of the Court of Appeal in Nuku. Harris was never intended to be more than a guideline decision. It was intended primarily for cases where, in general terms, the culpability
coincides with the gravity of harm. The Court in Harris:13
Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach we think is broadly consistent with Taueki.
[18] That should not be read as a closed proposition. In my view, equally, in cases where there is gratuitous violence on a stranger who has done nothing to warrant in any way such an assault, random unprovoked violence is a very culpable activity. It threatens the sense of safety that citizens are entitled to have when using public streets or driving about in a car. This is that they will not be subject to entirely unjustified and random assaults by strangers. In my view, that sentiment was also driving the analysis of Judge Turner who, working within what he saw were the constraints of the case law, was endeavouring to deliver a firm sentence.
[19] After a very good quality argument from Ms McHugh, I was left with the view that I should not disturb Judge Turner’s judgment as to the final outcome, but support it for slightly different reasons. I am directed by the Court of Appeal not to be guided by Nuku in this case. But I think I can be guided by the observations in Nuku which are a general application to all sentencing under the Sentencing Act
2002.
[20] The distinction between gravity and culpability is often conflated, but here in s 8, at the start of the Act, it is separated and properly so. In our civilisation, there is no necessary coincidence between gravity of harm done and culpability. There can
be cases, and I think this is one of them, where the culpability has serious ramifications to social order, even though the harm done is not of a high order.
[21] The Court of Appeal in Nuku said:14
[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.
[22] To my mind, it is the very high degree of culpability which needs to drive the sentencing in this case, and that appears to be what drove Judge Turner’s thinking. For these reasons, I think this Court should not intervene. The appeal is dismissed.
Solicitors:
AWS Legal, PO Box 1027, Invercargill
Preston Russell Law, PO Box 827, Invercargill
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