Fougere v The King
[2023] NZHC 2905
•17 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-368
[2023] NZHC 2905
BETWEEN MATTHEW PAUL FOUGERE
Appellant
AND
THE CROWN
Respondent
Hearing: 16 October 2023 Appearances:
M Jenkins and J Wickliffe for the appellant D Becker for the Crown
Judgment:
17 October 2023
JUDGMENT OF CAMPBELL J
[Appeal against Sentence]
This judgment was delivered by me on 17 October 2023 at 3.30 pm
Registrar/Deputy Registrar
FOUGERE v THE CROWN [2023] NZHC 2905 [17 October 2023]
[1] Mr Fougere pleaded guilty to charges of wounding with intent to cause grievous bodily harm and possession of an offensive weapon. On 26 May 2023, Judge J Bergseng sentenced him to four years and six months’ imprisonment.1 Mr Fougere appeals that sentence.
The offending
[2] Mr Fougere and his victim, Mr Ozane, lived in a hostel in New North Road, Kingsland. On the morning of 14 October 2021, Mr Ozane went to Mr Fougere’s room. Mr Fougere’s partner (and co-offender), Ms Nightingale, was already there. The three socialised for some time but after about an hour the mood changed. Ms Nightingale told Mr Fougere she did not trust Mr Ozane. The two of them interrogated Mr Ozane for some time.
[3] Ms Nightingale happened to have a small blowtorch with her. She placed the blowtorch about one centimetre from Mr Ozane’s skin and started to burn the top of his hand. When Mr Ozane pulled his hand away, Mr Fougere said he was to hold his hands still, otherwise he would be bashed and killed. Mr Ozane held his hands still and Ms Nightingale used the blowtorch to burn the top of both of his hands. Mr Ozane could hear and see his skin sizzling.
[4] This occurred over a period of time. Ms Nightingale would burn Mr Ozane’s hands, and then she and Mr Fougere would leave the room and talk before returning and burning Mr Ozane’s hands some more. During this time, Mr Ozane was begging Mr Fougere and Ms Nightingale to stop.
[5] Mr Ozane attempted to escape. He managed to run upstairs. Mr Fougere and Ms Nightingale gave chase. Mr Fougere grabbed a bread knife from a kitchen bench, approached Mr Ozane and told him to “shut the fuck up, or you’ll die now, come back to the room now”. Mr Ozane initially complied but then made a run for the front door. Mr Fougere grabbed him and forced him back into the room.
1 R v Fougere [2023] NZDC 10473.
[6] Once back in the room, Mr Ozane continued to beg to be let outside. At that point Mr Fougere let him out a fire exit door. Mr Ozane sprinted onto the road and into a petrol station. Mr Ozane saw Mr Fougere behind him then ran into a nearby restaurant to hide.
[7] Police arrived and Mr Ozane was taken to hospital. He suffered extensive deep burns to the tops of his hands and blistering to the palms of his hands.
[8] The possession of a weapon charge arose 12 months later, while Mr Fougere was on electronically monitored (EM) bail for the wounding charge. The Police attended at Mr Fougere’s address. When they spoke to Mr Fougere in his car they noticed an axe between the handbrake and the driver’s seat.
District Court judgment
[9] Judge Bergseng described the offending. He noted that Mr Fougere had 43 convictions, beginning from 2008. The convictions were mostly drug-related.
[10] The Judge referred to a pre-sentence report. This saw Mr Fougere as being at high risk of reoffending and a medium risk of harm to others. The report writer opined that Mr Fougere was yet to develop insight into how his beliefs and attitudes facilitate crime.
[11] Judge Bergseng also referred to a report from Corrections. This said that Mr Fougere had been engaging in rehabilitation while in custody after his arrest on the possession charge in October 2022. The report said that Mr Fougere was compliant and had maintained a positive relationship with staff and other inmates.
[12] The Judge also had a report under s 27 of the Sentencing Act 2002 from a psychologist, Dr Bramhall. This referred to a traumatic experience in Mr Fougere’s life at the age of 15 which in due course led to Mr Fougere becoming a consistent user of drugs including methamphetamine. Dr Bramhall opined that Mr Fougere met the diagnosis for post-traumatic stress disorder.
[13] As to a starting point, the Judge referred to the Court of Appeal’s guideline judgment in R v Taueki.2 Counsel agreed that Mr Fougere’s offending fell within band 2 of Taueki, which had a range of between five to ten years as a starting point. The Judge noted that there were several aggravating factors of Mr Fougere’s offending. He saw the starting point as in the range of six years. However, given that Ms Nightingale had already been sentenced for her part in the offending to five years and ten months’ imprisonment, the Judge adopted the same starting point for Mr Fougere. He uplifted that by two months for the charge of possession of a weapon. The overall starting point was therefore six years’ imprisonment.
[14] The Judge did not apply any uplift for Mr Fougere’s previous convictions. He made a number of allowances for personal mitigating factors. The Judge accepted that there was a causative link between the trauma and addiction that Mr Fougere had suffered and his offending, and reduced the starting point by 15 per cent to allow for this. His Honour allowed another five per cent for Mr Fougere’s remorse and efforts at rehabilitation. The Judge allowed ten per cent for Mr Fougere’s guilty plea.
[15] The Judge said that all up there was a 25 per cent reduction, so that the end sentence was four years and six months. The judge made an arithmetical error, as the credits that he allowed totalled 30 per cent, not 25 per cent.
Grounds of appeal
[16]Mr Fougere appeals his sentence on four grounds:
(a)The Judge adopted a starting point that was too high.
(b)The Judge did not allow a sufficient discount for the matters recorded in Dr Bramhall’s report.
(c)The Judge did not allow a sufficient discount for Mr Fougere’s efforts at rehabilitation.
2 R v Taueki [2005] 3 NZLR 372 (CA).
(d)There should have been a reduction for the time that Mr Fougere spent on EM bail.
[17] At the hearing, I pointed out to Mr Fougere’s counsel that there was also an arithmetical error in the Judge’s calculation of the various deductions from the starting point. Counsel adopted that as a further ground of appeal.
Principles governing sentence appeals
[18] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.3 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.4
Was the sentence manifestly excessive?
[19] Ms Jenkins, counsel for Mr Fougere, submitted that a five-year starting point should have been adopted for Mr Fougere. She said that Mr Fougere’s culpability was lower than Ms Nightingale’s. Ms Nightingale was the person who was holding the blowtorch to the victim’s hands. Mr Fougere had allowed the victim to leave.
[20] I did not accept that submission. While Mr Fougere did not hold the blowtorch, his physical presence and threats allowed the assault to occur and continue. Although Mr Fougere allowed the victim to leave via the back door, he then followed the victim. Given the range of aggravating factors that were present in the offending, a starting point of five years and ten months was well within range. The uplift of two months for the possession of a weapon charge was also appropriate.
[21] I also see no error in the 15 per cent allowance that the Judge gave for Mr Fougere’s background. Mr Fougere had a prosocial upbringing. He enjoyed, and continues to enjoy, the support of a loving family. I accept that Mr Fougere suffered a traumatic event when he was 15 and that this was one reason that he began abusing
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
drugs. In turn, this provides a causative link to his offending. But compared to most of the backgrounds that courts are presented with, Mr Fougere has been provided with many opportunities in his life. If anything, the 15 per cent allowance was generous.
[22] The Judge allowed five per cent for Mr Fougere’s remorse and rehabilitation. I accept that there is evidence from Dr Bramhall’s report of genuine remorse by Mr Fougere. However, this is already reflected to some extent in the ten per cent allowance for Mr Fougere’s guilty plea. As to rehabilitation, I accept that Mr Fougere has made real efforts towards this in his recent time in custody. I consider that the five per cent allowed by the Judge is sufficient recognition of this.
[23] As to time spent on EM bail, this was overlooked by counsel at sentencing and so was not drawn to Judge Bergseng’s attention. Mr Fougere spent just over six months on EM bail before his arrest on the possession of a weapon charge. Mr Becker, counsel for the Crown, submitted that no credit should be given as Mr Fougere had reoffended while subject to EM bail. I do not accept that submission. In determining the appropriate credit for time spent on EM bail, the question of compliance is focused on compliance during the time for which credit is sought. Mr Fougere’s offending in October 2022 meant that his EM bail was revoked. But it did not retract from his compliance during the time that he was on EM bail. There were no apparent issues until his arrest on the charge. I allow two and a half months for his six months of compliance.
[24] The end result is that I make the same allowances as the Judge did against the six-year starting point. However, correcting for the Judge’s arithmetical error and making an allowance for EM bail leads to an end sentence of four years rather than four years and six months. On this basis, I consider that there was both an error in the Judge’s sentence and that the sentence was manifestly excessive.
Result
[25] I allow Mr Fougere’s appeal. I quash the Judge’s sentence of four years and six months’ imprisonment and substitute a sentence of four years’ imprisonment.
Campbell J
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