Dixon v The Queen
[2013] NZCA 454
•30 September 2013 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA236/2013 [2013] NZCA 454 |
| BETWEEN | CLAYTON WILLIAM DIXON |
| AND | THE QUEEN |
| Hearing: | 17 September 2013 |
Court: | Miller, Cooper and Lang JJ |
Counsel: | D G Slater for Appellant |
Judgment: | 30 September 2013 at 2.15 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
The appellant, Mr Dixon, pleaded guilty to two charges of wounding with intent to cause grievous bodily harm, and a charge of aggravated burglary.
On 4 April 2013 he was sentenced by Judge Phillips in the District Court at Invercargill to concurrent terms of imprisonment of nine years and six months on one of the wounding charges, six years on the other and four years on the charge of aggravated burglary.[1] The Judge ordered that the appellant serve a minimum term of six years.
[1]R v Dixon DC Invercargill CRI-2012-025-002797, 4 April 2013.
He now appeals against that sentence.
The facts
In his sentencing the Judge described the facts as “extremely disturbing”.[2] He recorded that at about 10.30 pm on 25 October 2012 the female victim, Ms Lewis, was at home at her Bluff address. Also present in the house were her four young children, two of whom were children of the appellant. Also there was her partner, Mr Rima, who was the second victim of the attack. They had recently commenced a relationship. Mr Rima at one stage went out to the conservatory of the house, intending to have a cigarette. When he was there, the appellant struck him over the head with an axe. Mr Rima staggered backwards into the living area of the house when the appellant again struck him on the head with the axe, knocking him to the ground. Mr Rima was incapable of any resistance.
[2]At [2].
Ms Lewis saw what was happening to Mr Rima. She screamed at the appellant to stop. She hastened to the aid of Mr Rima as he was lying on the ground, put her arms out over him and also ended up on the floor. At that point the appellant began to strike her with the axe about her head. The Judge recorded that the number of times that occurred was unknown, but it was certainly more than twice. The appellant also struck her about the hand with the axe, breaking the hand in “numerous places”. The appellant returned to stand over Mr Rima, when an associate of Ms Lewis arrived and the appellant ran away.
The police located the appellant and he made a confession about how the events had unfolded. The Judge recorded:[3]
You said you had walked down to see your ex partner. You had seen the male present in the house which had made you angry and after a short time outside you then went into a garden shed (purposely in my view) and you took an axe that you knew was in that shed. You went into the house; into the conservatory through an unlocked door; the male victim comes out and you immediately struck him with the axe. You then said you could not remember anything further about the assault but agreed that you were acting alone; agreed that all the injuries were inflicted by you. You said that you only recalled standing over the female victim and then leaving the house.
The sentence
[3]At [4].
The Judge took the offending against Ms Lewis as the lead offence. He noted the severe impact of the attack on her, recording that it involved her skull being shattered, and brain injuries. In her victim impact statement she had described the trauma of her recovery, and serious disabilities that she had suffered. The Judge noted:[4]
She cannot care for herself or her family unaided. She cannot drive. She will have life-long disabilities from her injuries. She will not regain full use of her hand. I have a physiotherapist report which tells me that if the movement does not improve and grip strength continues to be an issue, that it may be necessary for the whole finger and metacarpal in her hand to be amputated.
[4]At [6].
The Judge then referred to submissions that had been made by counsel concerning a neurosurgeon’s report. According to the report, part of Ms Lewis’s brain had been injured with a piece of bone fracture caused by the accident. The consequence was that she had a higher risk of developing epilepsy, but the injury was to an area of the brain which meant that it was:[5]
… not in his view clinically significant in the speech or motor area of the brain or the visual cortex … at the moment there is no obvious significant clinical disability.
[5]At [6].
Having noted the content of the report, the Judge recorded that the victim suffered from constant head pain, she had lost hearing in her right ear, had permanent tinnitus, and suffered from short-term memory loss. She was experiencing speech impairment, and becoming disorientated. The Judge thought that overall it was likely that she would have long-term effects from the brain damage she had suffered.
Turning to Mr Rima, the Judge noted that 90 percent of one of his ears had been chopped off in the attack. It had to be re-attached by staples. He was suffering from severe headaches as a result of a blow with the axe to his head and was being medicated at the time of sentencing. He suffered from hearing loss, tinnitus and memory loss. His sleep was disturbed.
The Judge noted that the appellant had a long record of offending, which commenced in the Youth Court in 2000. He had received both community-based and prison sentences in the past. There was a conviction for assaulting a female in 2006, and on 30 October 2008 he was sentenced to two years and three months’ imprisonment for threatening to kill, assaulting a female and assault with a weapon. Those offences were committed against Ms Lewis. Having discussed the
pre-sentence report, the Judge referred to apparent remorse in respect of the assault on Ms Lewis, but also noted the absence of any remorse insofar as Mr Rima was concerned. That conclusion was inevitable having regard to the terms of an extraordinary letter (intercepted by the prison authorities) written by the appellant. That letter contained a poem or song lyric intended for Mr Rima in which the appellant appeared to exalt in the injuries that he had caused him and threatened that next time Mr Rima would not escape with his life.The Judge said:[6]
This was an appalling attack on your victims. Extreme violence; serious injuries; both they and you are fortunate that you did not indeed kill them as you could easily have done and as you first thought you had done. Ms Lewis particularly suffers very badly and in my view will continue to do so for an extended period of time. I do not intend to enter into the debate about whether there are good or bad [prognoses]. In my view [they are] very serious injuries; that cannot be argued against and the prognosis, whilst there is hope, it is yet to be seen whether it is true or not.
[6]At [15].
On the lead charge concerning the attack on Ms Lewis the Judge took a starting point of 12 years’ imprisonment, which expressly took into account the fact that there were two victims. He added nine months having regard to the aggravating factor of the earlier attack on Ms Lewis. He then made a deduction of approximately 25 percent intending to cover the early guilty plea (noting that there had been no prospect of a successful defence to the charges) and remorse in respect of the attack on Ms Lewis. The final sentence imposed was nine years and six months.
The Judge ordered that the appellant serve a minimum term of six years. At [18] he said:
I am satisfied that it is appropriate to impose a minimum term of imprisonment because the one-third minimum period before you could apply for parole would be insufficient, in my view, for the issues of accountability, denunciation, deterrence and the protection of the community that is required. Having regard to those considerations and to the principles of sentencing and the aggravating and mitigating factors that relate to them, I conclude that a minimum term of imprisonment of six years is now imposed as the minimum period of imprisonment.
The appeal
The principal issue advanced by Mr Slater on the appeal was that the Judge adopted too high a starting point, being overly influenced by the self-reported consequences of the effect of the offending on Ms Lewis, and placing too little weight on the objective medical evidence of the specialist neurologist’s report. The neurologist had reported that the injury to the brain occurred in an area which was not clinically significant, the pain she reported would not be permanent and there were prospects for her recovery from fatigue, disorientation and speech problems.
Mr Slater also challenged the imposition of a minimum term of imprisonment, which at six years was 63 per cent of the sentence and therefore close to the maximum length of the available minimum term. Mr Slater submitted that although the case was sufficiently serious to warrant the imposition of a minimum term, the Judge had not had sufficient regard to the principles set out in ss 7, 8 and 9 of the Sentencing Act 2002 in fixing the length of the minimum term.
Discussion
We are satisfied that the facts of this case bring it comfortably within band 3 of the bands discussed in this Court’s decision in R v Taueki.[7]There was extreme violence, which was unprovoked. Both victims were viciously assaulted with an axe. The axe was deliberately taken from the garden shed to be used in the attack: what followed was clearly pre-meditated. Ms Lewis was attacked when trying to protect Mr Rima. While the injuries she sustained were more serious than his, the latter were also significant. In the case of both victims the attack was directed to the head. The victims were vulnerable, if not at the outset then very soon after the attack commenced, and as it continued. They had no means of protecting themselves. It was also a case of home invasion, occurring late in the evening.
[7]R v Taueki [2005] 3 NZLR 372 (CA).
Cases within band 3 of Taueki justify a starting point of between nine and 14 years. Such was the severity of these assaults and the array of aggravating features, we do not consider the Judge could have been criticised if he had adopted a starting point towards the upper end of that band.
Given the circumstances, the Judge was not obliged to descend into detail concerning the prognosis for Ms Lewis. There was sufficient evidence to establish that there was “serious injury” as a consequence of the appellant’s assault. Even if the neurologist’s report justified hopes for Ms Lewis’s recovery from some of the injuries in the fullness of time, the injuries sustained were still appropriately described as serious.
We note also that, while the decisions of this Court to which we were referred by Mr Slater[8] involved apparently more serious injuries, they were not cases where there were two victims.
[8]R v Stewart CA21/06, 31 August 2006; August v R [2011] NZCA 91.
We are satisfied that the starting point here was available to the Judge given all the circumstances of this case and the range of aggravating features of the offending. The effective sentence of nine years and six months was not excessive, having regard to the overall gravity of what occurred.
Insofar as the minimum term is concerned we are of the view that it was amply justified having regard to the numerous aggravating features of the offending, and the manifest need to deter the appellant, which was underlined by the terms of the poem addressed to Mr Rima.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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