Eden v R
[2011] NZCA 54
•7 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA542/2010 [2011] NZCA 54 |
| BETWEEN MATTHEW DAVID EDEN |
| AND THE QUEEN |
| Hearing: 23 February 2011 |
| Court: Arnold, Gendall and Allan JJ |
| Counsel: S Saunderson-Warner for Appellant |
| Judgment: 7 March 2011 at 3pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Allan J)
On 5 May 2010, Mr Eden pleaded guilty on arraignment in the Dunedin District Court to a charge of injuring with intent to injure.
On 3 August 2010, he was sentenced by Judge O’Driscoll to two years three months imprisonment.[1] He now appeals against that sentence.
[1] R v Eden DC Dunedin CRI-2009-002-0610, 3 August 2010.
The appellant’s offending was accurately summarised by the Judge as follows:
[1] ... The offending occurred on 26 September last year. You were involved in a fight in Centennial Avenue, Alexandra with a group of other youths. You suffered an injury to your ear. I have a medical report before me which indicates that as a result you suffered a ruptured eardrum.
[2] Later that evening a group of young people congregated in Pioneer Park, Alexandra. That runs alongside the main street, Centennial Avenue. You were travelling past the park with a group of other males. You stopped at the park after you recognised a person from the fight which you had been involved in earlier. You approached the person. He was aged 16. You began punching him around the head. You knocked him to the ground. You then began kicking him to his head and body. The summary of facts says that on two occasions during the attack you jumped into the air and landed on the victim’s head with both feet. The attack took place on grass and you were wearing gym shoes. The attack stopped when you were dragged away by friends. The victim was left on the ground unconscious and bleeding from the face. He was taken by ambulance for medical observation. He refused treatment and was discharged.
[3] Both you and the victim were affected by alcohol. You were located some two hours later and interviewed by the police. You said that you had been subject to an assault earlier in the evening by the victim and his friends, and after seeing this person in the park you admitted punching him several times about the head. You denied kicking or jumping on him.
The District Court decision
In selecting a starting point the Judge had regard to the decision of this Court in R v Harris.[2] There, the Court observed that the sentencing exercise in respect of charges of injuring with intent to injure will logically commence with a consideration of the significance of the injuries suffered by the victim. In Harris it was said that:
[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 [R v Taueki [2005] 3 NZLR 372 (CA)]. 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).
[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.
[2] R v Harris [2008] NZCA 528.
The Judge considered that the case fell within band 2 of Harris, so warranting a starting point of two years imprisonment, but he added six months in order to reflect not only the gravity of the offending, but also “ … the huge potential for harm by stomping on someone’s head …”.[3] There was a further six months uplift to reflect the appellant’s previous convictions for violent offending.
[3] At [16].
From the resulting starting point of three years imprisonment, the Judge allowed a discount of nine months in order to reflect the guilty plea, and certain steps already taken by the appellant to address his alcohol problems and his propensity for violent offending. He therefore imposed a sentence of two years three months imprisonment.
The appellant’s argument
For the appellant, Ms Saunderson-Warner submits that the sentence imposed on the appellant was manifestly excessive. She argues that the learned Judge fell into error in selecting a starting point that was too high, and failing to allow a sufficient discount for mitigating factors.
The starting point
Ms Saunderson-Warner does not challenge the uplift of six months imposed for the appellant’s poor previous record, nor does she cavil at the placement of the case in band 2 of Harris. But there was no proper basis, she argues, for the Judge’s decision to add six months to the two year starting point in order to recognise the potential for even more serious injury, as distinct from the harm actually suffered.
To place that submission in its proper context, it is appropriate to note that the victim was knocked unconscious in the assault, and that two months later he was still suffering from severe headaches and blurred vision. It is however at least possible that these continuing symptoms were caused or exacerbated by concussion sustained by the victim some months earlier.
In a victim impact statement the victim thought that he had largely recovered from the assault. Remarkably, upon waking up in hospital, he chose to discharge himself. In his statement, he put that down to the fact that he had been drinking that night. Although he has suffered severe headaches which affect his concentration at school, and which at times result in blurred vision, he has not seen a doctor about his injuries.
The Judge plainly considered the victim to have been relatively fortunate, in that the assault on him by the appellant was capable of producing much more serious harm by reason of the use of the appellant’s feet on the victim’s head.
The summary of facts discloses that, on two occasions during the attack, the appellant “…jumped into the air and landed onto the victim’s head with both feet. The attack took place on grass and the [appellant] was wearing gym shoe style footwear at the time”.
Counsel for the appellant argues that in terms of Harris there is a presumption that there was a broad correspondence between the actual injury, and what the appellant intended. Accordingly, she submits, sentencing ought to have proceeded on the basis of the injuries actually sustained, not on the footing that an intent to cause more serious harm can properly be inferred.
However, as Mr Ebersohn submits, Harris[4] envisages that, beyond the extent of the injury itself, sentencing Judges may take into account any additional aggravating and mitigating features such as are identified in Taueki[5] and in ss 8 and 9 of the Sentencing Act 2002.
[4] At [11].
[5] R v Taueki [2005] 3 NZLR 372 (CA).
In R v Ross this Court noted what had been said in Harris and observed that:[6]
…once additional aggravating features have been taken into account the starting point may be at a level that would theoretically place the offending in a higher Harris band than might be indicated by the injuries alone.
[6] R v Ross [2010] NZCA 306 at [16].
We are satisfied that Judge O’Driscoll was entitled in this case to impose an uplift to recognise the potential for even greater harm than actually occurred. By reason of the appellant’s attack on him, the victim fell to the ground. There he became largely defenceless. Nevertheless, the appellant chose to stamp on the victim’s head with both feet at the same time, having launched himself into the air for that purpose. That occurred twice in succession. No imagination is required to perceive the potential for very serious harm following an assault of that sort. We consider the Judge to have properly reflected this serious aggravating factor in the approach adopted. It is a factor of the very type envisaged by this Court in both Harris and Ross. Accordingly, we reject the submission that the starting point was too high.
Was the discount adequate?
Mr Eden pleaded guilty at the first callover following committal. No discrete discount was made on account of the guilty plea. Rather, the Judge allowed a global discount of 25 per cent. It is common ground that a discount of 20 per cent was in order, in line with the decision of this Court in R v Hessell,[7] the guideline judgment which applied at that time. That leaves a further discount of 5 per cent, which the Judge may be taken to have ascribed to other mitigating factors. It is this further allowance which is in issue on appeal. Ms Saunderson-Warner submits that it was insufficient in the circumstances. Mr Ebersohn argues that the limited further discount was both understandable and justified.
[7] R v Hessell [2010] 2 NZLR 218 (CA) at [15].
It is fair to say that Mr Eden presented a mixed profile for sentencing purposes. On the positive side, there is an emerging understanding of the causes of his offending, which appears to have been underpinned by both a tendency to drink until heavily intoxicated, and a propensity for violence when in confrontational situations. On his own initiative, he had approached Moana House in Dunedin, with a view to undertaking prolonged counselling sessions, aimed at modifying his attitude to alcohol. He had already undertaken a number of those sessions. At the time of sentencing he had in addition been taking medication prescribed for depression. He was able to point also to a degree of compliance with earlier sanctions imposed by the Court, including a sentence of supervision in 2007, and release conditions fixed earlier in 2010.
Mr Eden is now 20 years of age; much of his offending occurred when he was significantly younger. He has the support of his family and an employer (which has also offered counselling and positive support). At a personal level the picture is not therefore completely bleak. Judge O’Driscoll regarded all of these factors as indicative of a “glimmer of hope that you are starting to understand and realise the consequences of your actions…”.[8]
[8] At [17].
But there are countervailing factors. Without double counting his previous offending, it is impossible to ignore the fact that this was the appellant’s fourth time before the Court on a charge of injuring with intent. The previous offences were not dissimilar. In particular, on two previous occasions, Mr Eden had employed the stomping technique which is an especially dangerous feature of the present offence. He received progressively increased sanctions on those various occasions, culminating in a 12 months sentence of imprisonment, imposed on 29 July 2008.
Moreover, and disappointingly, he was convicted on 15 April 2010 on charges of fighting in a public place and wilful damage. Those offences occurred on 13 November 2009, when he was on bail in respect of the present offence. For that most recent offending he was fined and directed to serve 100 hours community work.
It can properly be said therefore, that his rehabilitation is proving to be a slow process.
We accept that in appropriate cases very considerable discounts will be proper in order to recognise and support outstanding rehabilitative efforts already made by the time a prisoner appears for sentence. As Ms Saunderson-Warner submits, an example of that is to be found in the well known decision of this Court in R v Hill.[9]
[9] R v Hill [2008] 2 NZLR 381 (CA).
In our view this is not a case in which it would have been proper to allow a significant further discount on account of the appellant’s own rehabilitative efforts. There is evidence of a desire to make appropriate lifestyle changes, but these are early days. There is also a degree of substance in Mr Ebersohn’s submission that Judge O’Driscoll was entitled to view Mr Eden’s rehabilitative prospects with an element of cynicism, having regard to his disappointing record, and the further offending while on bail.
All in all, we are satisfied that the further allowance of 5 per cent made by the Judge on account of youth, family support and rehabilitative initiatives was within the range open to him, and indeed represents a thoroughly understandable response to the appellant’s personal circumstances. Accordingly, we reject Ms Saunderson-Warner’s submission that an overall discount of 25 per cent was inadequate.
Result
We are satisfied that both the starting point chosen by the Judge and the total discount allowed were within the available range, and that the end sentence of two years three months imprisonment was appropriate.
The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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