Devon Wayne Blackbourn v The King

[2024] NZHC 2937

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-000022

[2024] NZHC 2937

DEVON WAYNE BLACKBOURN

v

THE KING

Hearing:	8 October 2024
Appearances:	E Riddell for Defendant W J Harvey for Crown
Judgment:	10 October 2024

JUDGMENT OF GRAU J

[Sentence appeal]

[1]    Mr Blackbourn appeals his sentence of two years seven months’ imprisonment imposed in the Nelson District Court on 23 July 2024 on one charge each of injuring with intent to cause grievous bodily harm and injuring with intent to injure.1

[2]    The basis of Mr Blackbourn’s appeal is that the sentence is manifestly excessive and home detention was the appropriate and least restrictive outcome in this case. Mr Blackbourn contends the starting point of four-and-a-half years was too high and there were insufficient reductions made for remorse, rehabilitative attempts,

1      Charges pursuant to Crimes Act 1961, ss 189(1) (maximum penalty of 10 years’ imprisonment) and 189(2) (maximum penalty of five years’ imprisonment) respectively. Mr Blackbourn was charged and convicted alongside two other co-offenders, Messrs Tawheri Funnell  and  Nathaniel Dooley  (although  only  Mr  Funnell  is  listed  as  the  co-offender  in  respect  of   Mr Blackbourn on the Crown Charge Notice for resolution).

BLACKBOURN v R [2024] NZHC 2937 [10 October 2024]

personal circumstances, and the time he spent on restrictive electronically monitored (EM) bail conditions.

[3]    The respondent’s position is that the starting point was in range, as were the reductions, so that a sentence of home detention cannot be reached unless the sentence is artificially tailored to achieve that result.

The offending

[4]    Mr Blackbourn and the two co-offenders, Messrs Dooley and Funnell, were friends. At the time of the incident that gave rise to the charges, Messrs Blackbourn and Funnell were aged 23 and Mr Dooley was 20. The two victims, Messrs Brown and Brunning, were friends aged 41 and 42. The two groups did now know each other. Both were out drinking and socialising in Nelson late on the night of 21 July 2023, into the early hours of 22 July.2 The incident that gave rise to the charges was captured on CCTV.

[5]    At about 3:30 am, Mr Blackbourn and his friends were on the footpath of Bridge Street in Nelson, near the entrance to Fiddle Lane. The two victims were in Fiddle Lane near the entrance. Messrs Dooley and Blackbourn approached and began to talk to them. Mr Funnell was on a seat nearby. A few minutes later, Mr Dooley suddenly punched Mr Brunning in the head with a closed fist multiple times, causing him to fall on the ground, seemingly unconscious.3

[6]    Mr  Brunning’s  companion,  Mr  Brown,  stepped  forward  and  grabbed   Mr Blackbourn, pushing Mr Blackbourn to the ground and punching him. Mr Funnell intervened by picking Mr Blackbourn up off the ground. Mr Funnell then grabbed Mr Brown and held him in place against a wall. While Mr Brown was restrained in this manner, Mr Blackbourn proceeded to punch Mr Brown in the face and head with “hard blows” about nine times in quick succession.4 Mr Brown was then thrown to the ground by Messrs Blackbourn and Funnell. Mr Blackbourn held him down, and Mr Funnell kicked him three times in the head. Mr Brown was then dragged to his

2      R v Blackbourn [2024] NZDC 17158 [Decision on appeal] at [1]–[4].

3 At [5].

4 At [6].

feet and Mr Blackbourn kneed him in the body.5 Both Messrs Blackbourn and Funnell continued the assault on Mr Brown whose body appeared limp by this stage, although he appeared to be conscious.6

[7]    Mr Brown then ended up on the ground again. Mr Blackbourn straddled him and punched him in the face before kicking him in the head multiple times. Mr Funnell kicked Mr Brown twice more in the head. Mr Brown was motionless on the ground at this point, by which time the assault had been going for about a minute.7

[8]    Mr Brunning, who had initially been knocked to the ground, appeared to regain consciousness and began to get up off the ground into a seated position, assisted by Mr Dooley. Mr Blackbourn saw this and walked up behind Mr Brunning, swinging a kick into the back of Mr Brunning’s head, knocking Mr Brunning back to the ground. Mr Blackbourn then walked away down the alleyway.8 Mr Funnell then went over to Mr Brunning and kicked him in the head twice more before returning to continue his assault on Mr Brown.9 Soon after, all three offenders appeared to have stood over the victims, checking on their condition.10

[9]    Both victims suffered injuries. Mr Brunning suffered cuts to his face and head area, a fractured ankle and dental damage. Mr Brown suffered serious lacerations to his face and neck area, bruising around both eyes and a serious concussion.

Sentencing indication

[10]   Judge Rielly gave Mr Blackbourn and his co-defendants a sentence indication on 1 March 2024.11

[11]   After setting out the basis on which the Crown was prepared to resolve the charges, and the circumstances of the offending, the Judge dealt first with a factual

5      At [6]–[7].

6 At [8].

7 At [9].

8 At [10].

9 At [11].

10 At [12].

11     R v Dooley DC Nelson CRI-2023-042-001199, 1 March 2024 (Notes of Judge J E Rielly on Sentencing Indication) [Sentencing indication].

matter in dispute.12 It had been submitted for Mr Blackbourn that his initial involvement in the incident was an attempt  by him  to stop  Mr Dooley assaulting Mr Brunning and it was only when Mr Blackbourn was knocked to the ground that he reacted and began his assault. What followed was initially excessive self-defence, then that was followed by ongoing assaultive behaviour.13

[12]   Judge Rielly accepted the CCTV footage supported that Mr Blackbourn initially entered the fray either to stop Mr Dooley assaulting Mr Brunning or to get in the way of Mr Dooley assaulting Mr Brunning and was knocked to the ground.     Her Honour considered the relevance of that as supporting a lack of premeditation. She did not consider she needed to determine the matter any further because, as she said, the extent of the violence Mr Blackbourn meted out on the two victims was so significant that how it started was not really relevant. Instead, there was only an absence of a potential aggravating feature.14

[13]Her Honour described the offending, after watching the CCTV footage, as:15

… gratuitous violence on other members of the community by young men, likely significantly affected by alcohol and/or drugs, that started because of a violent act of one of your group, with all of your group then ready and willing to join in. This was a sustained, nasty, violent attack by three young men acting as a pack.

[14]   Her Honour listed the following features of the offending to be taken into account:16

(a)attacks to the head;

(b)multiple attackers;

(c)the group was acting in concert to assist each other in furtherance of the assault, principally towards Mr Brown, but later also Mr Brunning, in

12     Originally, all three had each been charged with two charges of wounding with intent to cause grievous bodily harm.

13 At [22].

14 At [23].

15 At [24].

respect of whom they already knew he had been knocked unconscious by Mr Dooley;

(d)the victims were vulnerable, not necessarily at the start, but they very quickly became vulnerable because of the sustained assaults on them; and

(e)the extreme violence, particularly towards Mr Brown—it was gratuitous and prolonged violence.

[15]   Judge Rielly also took into account there were two victims. She endorsed the approach suggested by the defence that this was a single incident, thus, there should be an overall starting point to encompass both charges.17

[16]   Her Honour adopted a starting point for Mr Blackbourn of four-and-a-half years’ imprisonment, on the basis that he faced a less serious charge than Mr Funnell for his assault on the second of the victims, Mr Brown. Mr Funnell’s starting point was five years’ imprisonment.18

[17]   Next, the Judge  considered personal matters.   Her Honour remarked that   Mr Blackbourn was extremely lucky the Crown did not seek an uplift for his previous convictions for serious violence and, accordingly, did not indicate there would need to be one. She did note as well that the convictions were some time ago, and it had been some years before Mr Blackbourn had been before the Court for any charges of a violent nature.19

[18]   A full credit of 25 per cent for guilty pleas was available because guilty pleas would be entered early following a change in the charges.20

[19]   In relation to Mr Blackbourn’s personal circumstances, while there would be no uplift for previous convictions, neither would there be a credit for youth, with the

17 At [25].

18     At [27]–[28].

19 At [30].

Judge noting that such credit had not been sought. She also noted there might be other personal circumstances to take into account at sentencing, including relating to his obligations as a parent, and other matters that might relate to his background.21

[20]   Her Honour said she was not taking into account Mr Blackbourn’s allegiances with a gang in assessing the starting point, or in regard to personal circumstances, given there was no suggestion of gang overtones.22

Sentencing decision

[21]   After setting out the circumstances of the offending again, the Judge noted the victim impact statements which both said they wanted Mr Blackbourn (and the others) held accountable for behaviour that one described as brutal, and expressed a desire that none of the offenders do this to anyone else again.23

[22]   Judge Rielly turned to consider Mr Blackbourn’s personal circumstances. She reiterated that, although Mr Blackbourn had previous convictions (including for serious violence offences in 2017) she did not consider an uplift was necessary. Their relevance was only that he did not come to Court as a person with a clean record.24

[23]   The Judge referred to Mr Blackbourn’s letters to her and to the victims, as well as what his family and people connected with him had said about him as a person, as a father, and their concerns about the negative effects his incarceration would have on his three-year-old son, given the time he spent with him on a day-to-day basis.25

[24]   Her Honour noted Mr Blackbourn acknowledged the effect of alcohol on his actions on the night in question. She was pleased at his level of insight. She also noted the significant effort made to apologise to the victims and willingness to engage in restorative justice, which she assessed as genuine. She also considered his remorse to be genuine.26

21 At [35].

22 At [36].

23     Decision on appeal, above n 2, at [14].

24 At [15].

25 At [18].

[25]   The Judge also acknowledged Mr Blackbourn’s motivation for rehabilitation and his approach to community agencies for help and some one-on-one counselling. She assessed his motivation likely stemmed from a desire to remain in the community and to ensure he could be a good father.27

[26]   The Judge described the sentencing as a difficult exercise when Mr Blackbourn was reported to be a very good and engaged father in his son’s life and when his son was at an impressionable age.28

[27]   In addition to the 25 per cent credit for guilty pleas, her Honour applied a credit of 10 per cent for remorse and motivation to rehabilitate. The overall credit was therefore 35 per cent, equating to 18.9 months rounded up to 19 months, with a further four-month credit to account for extremely good compliance with EM bail for 11-and- a-half months. An end sentence of 31 months or two years and seven months’ imprisonment resulted.29

[28]   Standing back and considering whether any other credits were available, the Judge expressed her concern about the effect on Mr Blackbourn’s son of a sentence of imprisonment but said that was not a factor she considered she could take into account in any meaningful way.30

[29]   Looking at the overall seriousness of the offending behaviour, her Honour considered an end point of two years seven months’ imprisonment was the appropriate sentence. She imposed that sentence on the charge of injuring with intent to cause grievous bodily harm, with a concurrent sentence of 18 months’ imprisonment imposed on the charge of injuring with intent to injure.31

Approach on appeal

[30]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an

27 At [22].

28 At [23].

29     At [27]–[29].

30 At [30].

error in the sentence imposed on conviction and a different sentence should be imposed. The Court also retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.

[31]   When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.32 It must be shown that there has been an error made by the sentencing Judge.33 The Court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.34

Discussion

Was the starting point too high?

[32]   On appeal, Ms Riddell renews her argument that excessive self-defence was engaged in this  case,  reducing  Mr  Blackbourn’s  culpability.  She  stresses  that  Mr Blackbourn did not start the incident, but instead Mr Dooley threw the first punch, and Mr Blackbourn’s involvement followed with him first trying to pull Mr Dooley away, then being attacked himself, before he committed any assault.

[33]   Ms Riddell submits the offending fell within band one of the sentencing bands in R v Taueki,35 being similar to the example of a street attack given in that band. She also complains that the Judge did not expressly adjust the Taueki sentencing band starting point to reflect that the lead charge was injuring with intent to cause grievous bodily harm, with a lower maximum penalty of 10 years’ imprisonment, as opposed to 14 years for wounding with intent to cause grievous bodily harm. Ms Riddell submits a reduction should have been made to the Taueki starting point and, bearing in mind the limited injuries caused, a starting point of around four years’ imprisonment, at most, was available, further adjusted by six months to reflect excessive self-defence. Thus, a starting point of around three-and-a-half years was at

32     Tutakangahau v R [2014] NZCA 279 at [32]–[35].

33 At [27].

34     R v Boyd (2004) 21 CRNZ 169 (CA) at [38].

the appropriate level. Ms Riddell also refers to the case of Ji v R as an example of a case of more serious offending but a lower starting point.36

[34]   I agree with Mis Riddell that, while Taueki is the applicable guideline decision, it is appropriate to adjust the bands when the lead offence is injuring, rather than wounding, with intent to cause grievous  bodily  harm.  It  is  also  correct  that  Judge Rielly did not explicitly make such an adjustment.

[35]   However, as the respondent has pointed out, this experienced Judge did refer expressly to the correct penalties for the charges in her sentence indication.37 It is also the case that her Honour adopted a global starting point for the two charges that related to two victims.

[36]   I agree with the Judge that the relevant aggravating factors in R v Taueki38 (and in Nuku v R,39 which guides the approach to lesser charges for acts intended to cause injury) are:

(a)attacks to the head;

(b)multiple attackers;

(c)vulnerability of the victims (when they were assaulted on the ground or otherwise unable to protect themselves); and

(d)prolonged and seemingly gratuitous violence.

[37]The fact of multiple victims, although not an explicit factor recognised by

Taueki, also increases the seriousness of the offending.

36     Ji v R [2015] NZCA 308.

37     Sentencing indication, above n 11, at [4].

38     R v Taueki, above n 35, at [31].

[38]   Both parties acknowledge that the street attack examples in Taueki are useful when addressing the lead offence, so I set them out here for convenience. As to the street attack example given in band one:40

Street attack: Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated. On the other hand, where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim.

And for band two:41

Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required.

[39]   I agree with Mr Harvey, for the respondent, that the offending in this case encompasses elements of both examples in band one and band two of Taueki. Accordingly, allowing for an adjustment for the lesser charge of injuring with intent to cause bodily harm, in my view, a starting point of around four years’ imprisonment on that charge alone would have been within an available range.

[40]   In relation to the injuring with intent to injure charge, where the same aggravating features apply—namely, an attack to the head, multiple attackers, and the vulnerability of the victims—placement within band two of Nuku would be warranted, perhaps even into band three, with a starting point between two years up to the statutory maximum of five years’ imprisonment.

[41]   I therefore agree that the global starting point of four-and-a-half years’ imprisonment was within an available range to reflect the totality of the offending against the two victims. Ms Riddell has relied on the case of Ji v R.42 There are other

40     R v Taueki, above n 35, at [37(a)].

41     At [39(a)].

42     Ji v R, above n 36.

cases that would tend to support the starting point arrived at in this case.43 That is a reminder that the guideline decisions for sentencing in this context remain Taueki and Nuku, not other cases which seek to apply it. I do not consider there was any error by the Judge’s reliance on a guideline decision to set a global starting point.

[42]   Nor can I accept Ms Riddell’s submission that this was a case of excessive self- defence at the start of the incident. The Judge had viewed the CCTV recording of the assault herself, and she accepted Mr Blackbourn initially entered the fray either to stop an assault on Mr Brunning, or get in the way of it, and that he was knocked to the ground.

[43]   I agree with her Honour that it supports a lack of premeditation, but no more. That is because Mr Blackbourn did not begin his assaultive behaviour until Mr Brown was being held in place against the wall. In my view, that is more akin to retaliation than to self-defence. Mr Blackbourn did not need to defend himself (or his friends) when Mr Brown was being restrained. And that happened after Mr Funnell had already come to Mr Blackbourn’s defence.

Should higher reductions have been made for personal factors?

[44]   The Judge applied a 10 per cent reduction to encompass both remorse and rehabilitative prospects.

[45]   Turning to the submission regarding a standalone discount for remorse, I agree with Mr Harvey that there has been no demonstration of remorse warranting a discount beyond the 10 per cent that was given. The Court of Appeal has recently reaffirmed that a discrete discount for remorse will be appropriate where “a proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful.44 Remorse need not be extraordinary, although it must be genuine, and the onus remains on the defendant to show it. Where warranted, remorse tends to attract a discrete discount of between five and 15 per cent.45

43     See, for example, Rapana v R [2014] NZCA 231; and R v Wilkie-Morris [2016] NZHC 259.

44     Kohu v R [2023] NZCA 343 at [40].

[46]   While it appears that Mr Blackbourn has taken active steps to rehabilitate— which may in turn indicate a level of remorse for the offending—I do not believe there has been a display of remorse warranting a standalone discount. I acknowledge the positive steps Mr Blackbourn has taken in trying to attend restorative justice, violence, and alcohol and drug programmes, but those steps also stand in contrast to other matters that suggest Mr Blackbourn’s remorse was limited (or was arrived at rather late in the piece). For example, the pre-sentence (PAC) report writer noted that Mr Blackbourn “did not make any statements reflecting either remorse or revenge towards the victims”.  Both the PAC  report and the alcohol  and drug (AOD) report noted  Mr Blackbourn’s inability to see how his affiliation with the Killer Beez gang might lead to anti-social behaviour. In the AOD report, Mr Blackbourn also suggested that he did not believe he had an alcohol abuse problem, nor did he think alcohol contributed to the offending. It appears he did not accept that the violence was essentially unprovoked and, contrary to the Summary of Facts to which he pleaded guilty, he maintained that the victims were “saying shit”. In my view the Judge did not err by giving a 10 per cent discount for remorse and rehabilitative efforts.

Should  a  reduction  have  been   made   for   the   impact   of   imprisonment   on  Mr Blackbourn’s child?

[47]   The next issue is whether a discount should have been applied to account for the impact of a sentence of imprisonment on Mr Blackbourn’s son. The Supreme Court in Philip v R affirmed that it is “uncontroversial” to say that the impact imprisonment has on an offender’s child is a relevant factor when considering personal circumstances.46 The weight to be accorded to the factor depends on the circumstances, including the type of the offending and the circumstances of the child or children.47 Unlike Mr Philip’s case, however, there is no evidence here to suggest that the child will be unusually detrimentally impacted by a sentence of imprisonment. In Philips, a psychologist’s report noted that the child had a “secure attachment” to his parents and would “experience a significant sense of loss” if Mr Philips was sentenced to imprisonment. Comments made by Mr Philip indicated that his rehabilitative prospects were linked to his relationship with his son.48 Mr Philip’s partner (the child’s

46     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [50].

47 At [50].

mother) was also facing criminal charges, so the sentences received by either party clearly had the ability to impact the day-to-day quality of the child’s care. In this case, while I acknowledge a sentence of imprisonment would likely have a significant impact on the child, there is no indication that the child’s mother (who shares his care) will be unable to look after the child adequately in Mr Blackbourn’s absence.

[48]   I take Ms Riddell’s point that the current climate makes the obtaining of reports more difficult and that it is well known that children are detrimentally affected by a parent’s incarceration. Some recognition of the effect on the child might have been appropriate in this case. But, in my view, it would have only been at the level of perhaps a five per cent reduction. That would only have amounted to a reduction of between two and a half to three months, which raises the spectre of tinkering.

Reduction for time on EM bail

[49]   The mostly commonly used approach to credit for time spent on EM bail is that set out by Simon France J in Longman v Police.49 Time spent on EM bail is a mandatory consideration when setting an appropriate sentence,50 however it is not a matter of arithmetical equivalence.51 It is a mitigating factor that feeds into the appropriate sentence length and is assessed in the same way as other factors like remorse and rehabilitative efforts.52 Discounts of about 30 to 50 per cent are within the normal range, and discounts at the upper end of this range are not uncommon.53

[50]   Judge Rielly’s reduction of four months was roughly 35 per cent of the 11-and- a-half months Mr Blackbourn spent on EM bail, apparently with excellent compliance.

[51]   Mr Blackbourn was originally on a 24-hour curfew at his mother’s address, with conditions not to contact or associate with the victims, co-offenders, or any members or associates of the Killer Beez, along with conditions not to possess or consume alcohol or non-prescribed drugs.

49     Longman v Police [2017] NZHC 2928.

50     Sentencing Act 2002, ss 9(2)(h) and 9(3A).

51 At [6].

52 At [7].

53     Gemmell v R [2023] NZCA 420 at [34].

[52]   However, after a few months on those conditions, a number of variations were granted, including permitted absences to spend time with his partner and son. From January 2024, absences were permitted to enable Mr Blackbourn to drop off and pick up his son from daycare every weekday, and to exercise for an hour three times a week. Those absences made Mr Blackbourn’s bail regime considerably less restrictive.

[53]   Considering the matter in the round it is my view that, while another Judge might have afforded a greater discount and I consider the 35 per cent reduction was at the bottom of an available range, I do not consider it was a level of discount unavailable to the Judge.

Conclusion

[54]   My overall impression is that the Judge’s sentencing response was a relatively stern one. However, the starting point her Honour adopted was in an available range, as were the credits she applied. A small reduction could have been made for the effects of a prison sentence on Mr Blackbourn’s son, but I (somewhat reluctantly) consider it would amount to tinkering to reduce the sentence by two-and-a-half to three months, in particular because it would have no effect on the ultimate sentencing outcome.

[55]Accordingly, the appeal must therefore be dismissed.

Grau J

Solicitors:
Crown Law, Wellington