Faulkner v R
[2016] NZCA 315
•7 July 2016 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA604/2015 [2016] NZCA 315 |
| BETWEEN | KEVIN CHARLES FAULKNER |
| AND | THE QUEEN |
| Hearing: | 9 May 2016 |
Court: | Harrison, Simon France and Woolford JJ |
Counsel: | A J Maxwell-Scott for the Appellant |
Judgment: | 7 July 2016 at 10 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of three years and eight months’ imprisonment is upheld, but is made concurrent rather than cumulative on the appellant’s existing sentence.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
Introduction
On 29 August 2014, Kevin Charles Faulkner was arrested and charged with aggravated robbery, conspiracy to possess materials for the manufacture of methamphetamine and the manufacture of methamphetamine. On 20 August 2015, he pleaded guilty to an amended charge of injuring with intent to cause grievous bodily harm. The other two charges were dismissed. On 11 September 2015, he was sentenced to three years and eight months’ imprisonment cumulative on an existing sentence upon which he had been recalled following his arrest on the original three charges.[1] He now appeals against sentence on the basis that it is manifestly excessive.
Factual background
[1]R v Faulkner [2015] NZDC 18067.
On 27 August 2014, Mr Faulkner arrived at the Helensville address of the victim. He was a regular visitor to the address and on this occasion he was again invited inside. He had with him his new wife and her friend, both of whom were sex workers. During the course of the visit, his wife informed him that the victim had propositioned her for sex. He left the address with the two women and took them to his car and then returned to confront the victim. He then assaulted the victim over what appears to have been a prolonged period. The victim was initially assaulted in his house. When he ran off he was followed by Mr Faulkner on to the driveway where the assault continued. Defence counsel accepted that the attack was “frenzied and violent”. It was also accepted that it was a sustained attack.
The victim received a laceration to the back of his head requiring six stitches and had abrasions to his head, neck and leg. Having sought hospital treatment the victim was treated and discharged after a couple of hours. The defence asserted that there were no kicks to the head and that the head injury must have been as a result of punches and/or falls and/or being pinned to the ground, facts which were accepted for the purposes of sentencing.
District Court sentence
Judge David J Harvey characterised the assault as follows:
[3] No weapons were involved, but it was a very violent attack of a frenzied nature. It involved injuries and an attack to the head and it also involved injuries to other parts of the body. Whether or not there were kicks to the head is difficult to determine and it is contested by Ms Maxwell-Scott that that, in fact, happened. But certainly it is an aggravating circumstance that there were injuries to the head clearly demonstrated in the photographs and a serious gash on the back of [the victim’s] head. Ms Maxwell-Scott accepts that the level of violence in this case was moderate to high.
In determining whether or not there was an element of premeditation, Judge Harvey noted that Mr Faulkner escorted his wife and her friend back to the car and then returned to the address. This gave the Judge the impression that:[2]
… the assault was vengeful, it was clinical and it had an element of premeditation to it. It was a retributive beating … .
[2]At [4].
Judge Harvey then referred to the guideline judgment of R v Taueki[3] and fixed a starting point for the assault at five years’ imprisonment. The Judge then uplifted the starting point by six months because Mr Faulkner had committed the offence while on parole to arrive at an end starting point of five and a half years’ imprisonment.[4]
[3]R v Taueki [2005] 3 NZLR 372 (CA).
[4]R v Faulkner, above n 1, at [7].
Judge Harvey then allowed a discount of 15 per cent to reflect Mr Faulkner’s guilty plea which, rounded up to 10 months, brought his sentence to one of four years and eight months’ imprisonment.[5] Finally, the Judge also gave recognition for the time spent on recall and accordingly gave him a further one-year discount so that the final sentence imposed was one of three years and eight months’ imprisonment.[6] Judge Harvey made that sentence cumulative on his current sentence, which expires on 17 September 2016. No explanation was given by the Judge for making it cumulative.
Mr Faulkner’s criminal and parole history
[5]At [8].
[6]At [9].
On 27 July 1995, Mr Faulkner was sentenced to a total of 17 and a half years’ imprisonment on a number of charges, mostly aggravated robbery. This comprised three cumulative sentences, the first being eight and a half years’ imprisonment, the second being eight years’ imprisonment and the third being one year’s imprisonment. On 12 December 2005 he was released on parole. A year later, on 15 December 2006, because of further offending, he was recalled to continue serving his original 17 and a half year sentence of imprisonment. On 2 February 2007 he was sentenced to a further nine months’ imprisonment on a charge of possession of ecstasy for supply, cumulative on his original sentence. Subsequently, he was also convicted of possession of LSD for supply. On 15 April 2008 he was sentenced to a further four years’ imprisonment, cumulative on his sentence of nine months’ imprisonment for possession of ecstasy for supply.
On 2 May 2012, Mr Faulkner was again released on parole only to be recalled on 23 August 2013. Then on 24 February 2014 he was again released on parole only to be recalled on an interim basis because of the present offending on 1 September 2014. A final recall order was made on 11 December 2014.
At the time of sentencing, therefore, the following dates applied to Mr Faulkner’s notional single sentence of 22 years and three months’ imprisonment:[7]
[7]Section 75 of the Parole Act 2002 provides that cumulative sentences of imprisonment are treated as a notional single sentence.
Sentence commencement date 27 July 1995 Parole eligibility date 18 July 2007 Final release date 18 June 2016 Sentence expiry date 17 September 2016
Following sentencing on the present matter, the dates were varied to become:
Sentence commencement date 27 July 1995 Parole eligibility date 6 October 2008 Final release date 16 February 2020 Sentence expiry date 17 May 2020
Discussion
Counsel for the appellant, Ms Maxwell-Scott, submits that a combination of the following factors has led to a manifestly excessive sentence:
(a)The starting point was too high for the circumstance of the offence.
(b)The reduction for the guilty plea of 15 per cent was insufficient.
(c)The allowance for time spent on recall was insufficient, particularly bearing in mind that a six-month uplift for offending while on parole was imposed.
Starting point
As this Court has observed on a number of earlier occasions, previous cases can inform, but never dictate what the starting point should be for any given offence. In the present case, we are of the view that Judge Harvey obviously characterised the offending as high level band 1 or low level band 2 in terms of the guidelines set out in R v Taueki.[8] Ms Maxwell-Scott submits, however, that the injuries suffered by the victim, though not insubstantial, were not to the degree envisaged in R v Taueki as serious, meaning injuries that were potentially fatal causing long-term or permanent disability. Thus the offence was in the middle of band 1, which set a range of three to six years’ imprisonment.
[8]R v Taueki, above n 3, at [34] and [36]–[39].
There were however, in our view, three aggravating factors present to some degree which clearly allowed the starting point of five years imprisonment to be adopted by Judge Harvey as appropriate for high level band 1 or low level band 2 offending. These were the prolonged and gratuitous violence, an element of premeditation and an attack on and injury to the victim’s head. While each of these aggravating factors was not in itself of the most serious kind, it is a combination of the three which meant that a starting point of five years’ imprisonment was within the range available to Judge Harvey.[9]
Guilty plea discount
[9]At [38].
As to the discount given for a guilty plea, we note that Mr Faulkner was charged with the original three charges upon his arrest, two days after the assault on 27 August 2014. We are advised by Ms Maxwell-Scott that she offered a plea of guilty to an alternative charge of injuring with intent to cause grievous bodily harm on 6 August 2015, almost a year later. This was only approximately two weeks before the trial commenced in the Auckland District Court. In those circumstances, Ms Maxwell-Scott submits that a 20 per cent discount should have been applied.
However, we note that Judge Harvey applied a 15 per cent discount for the guilty plea from the end starting point before deducting a further year for the time spent on recall. A more orthodox methodology would have been to apply the guilty plea discount after the deduction of the time spent on recall. If the Judge had adopted the latter methodology, the 10 months he deducted for the appellant’s guilty plea in fact represents a discount of 18.5 per cent, rather than 15 per cent.
Furthermore, as this Court observed in R v Oliver, a delayed plea entered immediately after other charges have been withdrawn, following negotiations with the Crown, does not necessarily attract a similar discount as a guilty plea entered at the first opportunity.[10] We are therefore of the view that there are no grounds to interfere with the guilty plea discount given by Judge Harvey.
Discount for time spent on recall
[10]R v Oliver [2014] NZCA 285 at [12].
Under s 91(5) of the Parole Act 2002, pre-sentence detention is not automatically deducted from the length of time to be served on a sentence of imprisonment if the offender was, during that detention, in custody and serving a sentence of imprisonment. Serving a sentence of imprisonment includes time spent in prison following an application for a recall order, but only if a final recall order is made.[11]
[11]Parole Act, s 91(6).
The general approach is that, where an offender would have been eligible for parole under the prior sentence of imprisonment in the absence of the remand in custody on the new charge/s or where an application for recall is based on the new charge/s, the time spent on remand can be taken into account in fixing the length of the new sentence of imprisonment so as to avoid an element of double punishment.[12] For the reasons we now discuss, we are satisfied the present case is one where the effect of recall requires adjustment to the sentence imposed.
[12]Tukuafu v R [2015] NZCA 251 at [12]–[13].
In the present case, Judge Harvey uplifted the initial starting point by six months to reflect the fact that the offending occurred while Mr Faulkner was on parole, but then deducted one year for the time that he had spent in custody following his recall for the present offending. This approach in itself cannot be criticised. However, we are of the view that by making the sentence of three years and eight months’ imprisonment cumulative on his existing sentence of imprisonment, the impact on the appellant is disproportionate because the new sentence will only commence on the sentence expiry date of the earlier sentence on 17 September 2016. This constitutes an error in terms of s 250(2)(a) of the Criminal Procedure Act 2011.
As it currently stands, Mr Faulkner has a final release date of 16 February 2020, which has been calculated by adding three years and eight months imprisonment to his previous final release date of 18 June 2016. Although there has also been an alteration to Mr Faulkner’s parole eligibility date, he was still immediately eligible for parole following the sentence of three years and eight months’ imprisonment imposed by Judge Harvey. This is because the various cumulative sentences are now treated as a notional single sentence of 25 years and 11 months’ imprisonment. Mr Faulkner’s new parole eligibility date has been calculated by adding one third of the sentence of three years and eight months’ to his previous parole eligibility date.[13]
[13]In accordance with s 20 and s 84(1) and (4) of the Parole Act.
If the sentence imposed was however a concurrent sentence, Mr Faulkner would not have been immediately eligible for parole, but would be eligible only after serving one third of the concurrent sentence. The new sentence would have a start date of 11 September 2015 (the date it was imposed) and Mr Faulkner’s recalculated parole eligibility date would be around 30 November 2016. On the other hand, Mr Faulkner’s statutory release date would be around 11 May 2019, being three years and eight months after he was sentenced on 11 September 2015, rather than a date calculated from his final release date in respect of his earlier sentence of imprisonment.
Overall, we think that a concurrent rather than cumulative sentence is fairer, being more proportionate to the offending. It would mean that Mr Faulkner is not immediately eligible for parole, but on the other hand he would have to be released from prison after the expiry of three years and eight months from the date of sentence on 11 September 2015. This is approximately nine months before he would have to be released if the sentence imposed was cumulative.
Although s 84 of the Sentencing Act 2002 gives guidance on the use of cumulative and concurrent sentences of imprisonment, it envisages an offender being sentenced for offences at the same time, rather than almost seven and a half years after an earlier sentence to which a sentence for fresh offending is made cumulative.
Furthermore, we note that having imposed a cumulative sentence of three years and eight months’ imprisonment, Judge Harvey did not stand back and consider whether the total period of 25 years and 11 months’ imprisonment was wholly out of proportion to the gravity of the overall offending as required by s 85(2) of the Sentencing Act. In fairness to the Judge, this would have been very difficult to do, but it is another reason why a concurrent sentence of imprisonment is preferable as eliminating any disproportionality.
Result
The appeal is allowed. The sentence of three years and eight months’ imprisonment is upheld, but the sentence is made concurrent rather than cumulative.
Solicitors:
Crown Law Office, Wellington for Respondent
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