Fox v The Queen
[2013] NZCA 577
•25 November 2013 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA273/2013 [2013] NZCA 577 |
| BETWEEN | ELI BENSON FOX |
| AND | THE QUEEN |
| CA323/2013 | |
| AND BETWEEN | MICHAEL LINN |
| AND | THE QUEEN |
| Hearing: | 1 October 2013 (further material received on 21 October 2013) |
Court: | O’Regan P, Panckhurst and MacKenzie JJ |
Counsel: | M J Knowles for Appellant Fox |
Judgment: | 25 November 2013 at 11 am |
JUDGMENT OF THE COURT
A The appellants’ appeals against sentence are allowed.
B The sentence imposed in the District Court on each appellant for aggravated burglary is quashed and replaced with a sentence of imprisonment for five years and seven months. The concurrent terms of three years imprisonment for the charges of injuring with intent to injure remain unchanged.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
The appellants pleaded guilty to one count of aggravated burglary and one count of injuring with intent to injure. They were both sentenced by Judge MacAskill to imprisonment for a term of six and a half years.[1] Both now appeal against sentence.
Grounds of appeal: Mr Linn
[1]R v Linn DC Christchurch CRI-2012-009-3013, 24 April 2013. Both received a concurrent sentence of three years imprisonment on the convictions for injuring with intent to injure.
The grounds of appeal advanced by Mr Linn are:
(a)The Judge misstated the factual background and this resulted in the Judge setting the starting point at too high a level.
(b) The Judge gave an inadequate discount for Mr Linn’s guilty plea.
Grounds of appeal: Mr Fox
The grounds of appeal advanced by Mr Fox are:
(a) The starting point for the offending was excessive.
(b) Mr Fox’s culpability was lower than that of Mr Linn.
(c)Mental health issues were not adequately reflected in the end sentence.
(d)An inadequate discount for Mr Fox’s guilty plea was given.
Counsel complaint: new evidence
Counsel for Mr Fox submitted that Mr Fox’s counsel at sentencing had not adequately provided the Court with information about Mr Fox’s mental health issues, and had not advised Mr Fox that he could ask for a disputed facts hearing. It was accepted by Crown counsel that Mr Fox was not advised about the possibility of the disputed fact hearing. We will come back to this later.
Mr Knowles argued that the failure of Mr Fox’s counsel at sentencing to present the Court with complete information about the mental health issues faced by Mr Fox was significant because those issues would have had a material impact on the end sentence. Mr Fox’s sentencing counsel explained in an affidavit filed in this Court by the Crown that he was not given information that could be used at sentencing in relation to Mr Fox’s mental health issues until the date of sentencing.
Mr Knowles submitted a report from Dr Harvey Williams, a psychiatrist, about the mental health issues faced by Mr Fox and their impact on the offending. He also filed an affidavit and updating report from Ms Lydia Jacobs, a mental health worker specialising in Māori mental health, who has had considerable interaction with Mr Fox.
We do not propose to engage with the allegations of shortcomings on the part of Mr Fox’s counsel at sentencing. We acknowledge that an affidavit defending his performance is before the Court. Notwithstanding the submission by counsel for the Crown, Ms Bell, to the contrary, we are satisfied that the evidence about Mr Fox’s mental health issues and their impact on the offending should be taken into consideration and that the sentencing Judge did not have sufficient information before him to do this.
So, we have decided to admit this new evidence submitted to this Court by Mr Knowles on Mr Fox’s behalf about his mental health problems and we will take them into account in determining Mr Fox’s appeal.
Facts
The Summary of Facts to which the appellants pleaded guilty describes the offending as follows:
The victim in this matter ... is a 54 year old male who resided ... at the time of this incident in a flat above a commercial business.
At 12:20 am on Friday 16 March 2012 the victim was at home in bed at his address ...
He woke to the sound of breaking glass, got up, and went toward the lounge where he saw broken glass and hands reaching through the ranch slider to unlock the door.
The victim picked up a baseball bat, walked towards the door which was opening, and went outside on to the balcony where he confronted an unknown male. It was dark with some ambient light from neighbouring businesses.
This unknown male threw a liquid onto the victim, held up a lighter, and said that he was going to light him up.
The victim dropped the baseball bat and grabbed the first male. While he was wrestling with the male, a second male began to strike him in the head, while the first male was demanding money. The victim fell to the ground.
Both males went inside the victim’s flat followed by the victim. One of the accused then struck the victim in the head with the wooden baseball bat which caused it to break in two, and the victim fell onto the couch.
One of the accused moved to the victim’s bedroom and the victim followed but was sprayed in the face with a CO2 fire extinguisher, which caused him to lose sight of his assailants.
At some stage in the assault one of the accused struck the victim in the head with a claw hammer.
The accused then left the flat taking the fire extinguisher and the victim’s wallet containing $500.00, gift vouchers and numerous cash cards and licences.
As a result of the attack the victim suffered severe bruising over most of his body, two stitches to a cut on his forehead, three stitches to the back of his head, and another cut on top of his head.
A Police dog unit attended and located the accused LINN ... 200 metres from the victim’s house, 30 minutes after the attack, and the accused FOX at his home, 500 metres from the victim’s house.
The accused LINN is a 40 year old male who has previously appeared before the Courts.
The accused FOX is a 33 year old male who has previously appeared before the Courts.
Destruction Order
An order is sought for the destruction of the hammer utilised in the commission of these offences.
It was common ground that no hammer was taken to the scene and the victim was not hit with a hammer. The Summary of Facts was wrong about that. It seems that a hammer found at the scene was used to break a glass door. The blow described as being done with a hammer was in fact done with the fire extinguisher.
The liquid thrown on the victim was the contents of an RTD can. So the threat to light it was hollow. And the victim said he did not smell petrol and did not remember this aspect of the episode until the following day. So this aspect of the factual background does not seem to have been as serious as may have been indicated by the Summary of Facts.
Motivation for the offending
The pre-sentence report provided to the District Court in relation to Mr Linn contains the following statement:
Mr Linn agrees with the Police Summary of Facts. In explanation, he stated that he had recently discovered his partner was using morphine again and had taken matters into his own hands by confronting the alleged drug supplier. He stated it was an impulsive reaction and did not consider the consequences legally or the potential for physical harm.
This apparent motivation for the offending was further amplified at the hearing by counsel for Mr Linn, Ms Ayrey. She said that Mr Linn’s partner had an arrangement with the victim whereby the victim would give the partner morphine and Ritalin, then take her to Manchester Street in Christchurch and prostitute her on the street in order for her to be able to pay him for the drugs. On the night of the offending, Mr Linn had come across text messages that his partner had been sending to the victim, which indicated that she had again sought supply of drugs from the victim. Ms Ayrey said this was particularly upsetting for Mr Linn as he was on the methadone programme and understood that his partner was also free of drugs. She had assured him that she was clean, and Mr Linn had told her that her being clean was a condition of their continued relationship.
Ms Ayrey said that the motivation for the offending was the discovery of renewed drugs supply by the victim to Mr Linn’s partner. Mr Linn inferred that the arrangement involving prostitution had been reinstituted. She submitted that this contradicted the apparent assumption on the part of the sentencing judge that the offending involved a premeditated aggravated burglary.
This history was also an important part of Mr Knowles’ submission on the part of Mr Fox. Mr Knowles said that Mr Fox was drawn into the offending only because of repeated requests which were made to him by Mr Linn to accompany Mr Linn to the victim’s house after Mr Linn had found the text message. He said that Mr Fox had repeatedly tried to talk Mr Linn out of the whole idea, including during their journey to the victim’s house. This was confirmed by Mr Linn through his counsel.
Ms Bell said the Crown did not accept that this outline of the background to the offending was true. However she accepted that the option of a disputed facts hearing had not been canvassed with the appellants at the time of sentencing. She said if this version of events were to be advanced now, then a disputed facts hearing would be necessary, and the Crown did not oppose the matter to being remitted to the District Court to allow for that to occur.
After the hearing, we issued a minute asking counsel to confer with a view to reaching agreement on the factual background to the events that led to the charges. We asked counsel to identify any areas of difference and, if there were any, for counsel for the appellants to obtain instructions as to whether they sought that the case be remitted to the District Court for a disputed facts hearing or wished this Court to resolve the appeals on the basis of the materials currently before it.
In response to that minute, we received a joint memorandum from counsel in which counsel advised that it was agreed that there was an evidential basis for Mr Linn’s contention that he had, while going through text messages on his phone, learned that his partner had been sending and receiving text messages relating to the supply of morphine to her by the victim. It was also agreed that there was an evidential basis for Mr Linn’s contention that Mr Linn was trying to get off drugs at the time of the offending.
However, the following matters were not agreed:
(a)That Mr Linn’s partner had been to the victim’s house, as Mr Linn suggested she had.
(b)That Mr Linn’s partner and the victim had an arrangement involving the victim prostituting Mr Linn’s partner in order for her to pay for drugs.
Neither Mr Linn nor Mr Fox seeks a disputed facts hearing on either of these matters and both ask that this Court determine the appeal on the basis of the materials before it. We will do so.
Sentencing in the District Court
Having outlined the facts and the impact on the victim, the Judge considered the backgrounds of the appellants. He noted in relation to Mr Fox that he had been subject to a sentence of 18 months imprisonment for injuring with intent to injure in 2006 and a sentence of two and a half years imprisonment for possession of class B drugs in 2003. In relation to Mr Linn, he had four convictions for burglary and he had been imprisoned for six months on one of those charges in 2006, as well as having been imprisoned for two years and six months for robbery in 2008. He also had various drugs convictions.
The Judge recorded in relation to Mr Fox that he suffered from schizophrenia and had spent time in hospital. The Judge acknowledged that these problems were ongoing and that they were controlled by anti-psychotic medication. He referred to the fact that the reports before the Court had indicated that Mr Fox was making good progress with his rehabilitation and appeared to be disappointed in himself in having become involved in the offending.
In relation to Mr Linn he recorded that it was Mr Linn’s first appearance for violent offending. He noted the explanation contained in the pre-sentence report relating to Mr Linn’s partner and the alleged supply of morphine to her by the victim.[2]
[2]This is quoted at [12] above.
The Judge took the charge of aggravated burglary as the lead charge and sentenced on a totality basis. He took a starting point of seven years and six months, taking into account the aggravating factor being the use of a baseball bat and the fire extinguisher as weapons. This also took into account that there had been unlawful entry into a dwelling place with premeditation, there were two offenders, there had been a threat to set the victim alight and there had been considerable violence to the victim, including attacking his head.
The Judge then applied an uplift of six months for the aggravating factors relating to previous offending and deducted 18 months for the guilty pleas with a small allowance for the time served on bail. That led to an end sentence for both offenders of six years and six months imprisonment. The Judge sentenced both to concurrent three year terms for the charges of injuring with intent to injure. He made an order for destruction of the hammer seized by the police. This reflects the error in the Summary of Facts that a hammer had been involved in the offending, when this was not, in fact, the case.
Mr Linn’s appeal
We now turn to the grounds for appeal advanced on behalf of Mr Linn.[3]
Starting point too high?
[3]See [2] above.
The essence of the argument on behalf of Mr Linn was that the Judge had mischaracterised the offending as a premeditated burglary, when in fact it was a spontaneous reaction to the discovery by Mr Linn that his partner had arranged to purchase drugs from the victim. Counsel for Mr Linn, Ms Ayrey, said in fact there was no robbery planned and no joint enterprise. Rather, Mr Linn intended to verbally remonstrate with the victim in relation to the supplying of drugs to Mr Linn’s partner. The violence that occurred was not premeditated, even though it was probably obvious that the victim would seek to defend himself if his home was broken into. She said this spontaneous event which had got out of hand was different in character from the situation of two or more men plotting together in advance to target a residence. We observe that this does not explain the theft of the victim’s wallet and its contents.
Ms Ayrey pointed out that the violence that took place was instigated by the victim (albeit in defence of his property) and the weapons used, namely the baseball bat and the fire extinguisher, were weapons that were present at the victim’s residence, rather than being taken to the scene of the offending by Mr Linn or Mr Fox. She said the reference to the claw hammer in the Summary of Facts was an error, but the fact that the Judge made an order for its destruction may have indicated that he thought it had been taken to the scene by the offenders and used by them.
In light of all this, Ms Ayrey argued that the starting point should have been lower. She said that the starting point of seven and a half years adopted by the Judge was based on cases in which starting points of up to eight years have been found to be appropriate where there has been a home invasion involving significant premeditation, where violence has been anticipated, where disguises have been used and where significant injuries have been inflicted upon vulnerable victims. She said the present case was far less serious. She argued that, in light of these factors a starting point of six years six months was appropriate.
We accept that the Judge appears to have assumed a greater degree of premeditation in the offending than was apparent from the Summary of Facts. The Judge had been made aware of the motivation based on the supply of drugs to Mr Linn’s partner, but in setting the starting point he specifically referred to the fact that the offenders had entered the premises of the victim “at night with pre-meditation”. We are satisfied that it does characterise the offending more seriously than it should, and that the event should be seen as a spontaneous reaction to the news of the supply of drugs by the victim to Mr Linn’s partner. We also accept that no weapon was taken to the scene by the appellants, which supports the contention that the offending was not initially intended to be a robbery or a violent robbery.
None of this detracts from the fact that the offending was still very serious, however. The fact that the victim resisted was unsurprising, and the violence that was then inflicted on him was serious. However, we consider that the offending should be seen as at a lower level of seriousness than the Judge concluded on the basis of the information that was before him, and that a starting point of six years and six months imprisonment would have been more in keeping with the nature of the offending.
Inadequate discount for guilty plea
Ms Ayrey said that the discount for guilty plea, which was just under 20 per cent, was too low. She said there was a protracted history of negotiation between counsel for Mr Linn (not Ms Ayrey) and the Crown prior to the plea complicated by other charges that were later abandoned. She said the Judge appeared to apply the strict criteria in this Court’s decision in R v Hessell,[4] rather than those in the Supreme Court’s decision in that case.[5]
[4]R v Hessell [2009] NZCA 450, [2010] NZLR 298.
[5]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
We do not think there is anything in this point. We consider the Judge was right to proceed on the basis that the plea was not at the earliest opportunity and that a discount somewhere below (but not far below) the maximum available discount of 25 per cent mandated by the decision of the Supreme Court in Hessell v R was justified.[6]
Conclusion
[6]At [75].
We conclude that the ground of appeal based on the starting point is made out. If a starting point of six years and six months is adopted, an uplift for previous offending of six months is applied and a 20 per cent reduction for the guilty plea is given, the end sentence amounts to five years and seven months imprisonment. We allow Mr Linn’s appeal, quash the sentence imposed in the District Court and substitute a sentence of imprisonment for five years and seven months imprisonment.
Mr Fox’s appeal
We now turn to the grounds of appeal advanced on behalf of Mr Fox.[7]
Starting point too high?
[7]See [3] above.
For the reasons already given in relation to Mr Linn, we believe that a lower starting point was justified. In Mr Fox’s case, it is argued that the starting point should be lower than that for Mr Linn, because Mr Fox was a reluctant participant in the whole episode and actively sought to dissuade Mr Linn from embarking on it. Against this, however, the serious violence that was undertaken was perpetrated by Mr Fox, albeit as a result of the apparent danger that Mr Linn was in as a result of the actions of the victim in attempting to push Mr Linn off the balcony. Ultimately, we do not consider that there is such a significant difference between the roles of the participants that a different starting point is justified. We therefore adopt the same starting point as for Mr Linn, namely six years and six months imprisonment.
Was Mr Fox’s culpability lower?
We see this as essentially encompassed within the analysis of the starting point.
Allowance for mental health issues?
Mr Knowles referred us to the new evidence from Dr Harvey and Ms Jacobs which gave a full account of the significant mental health issues that have been faced by Mr Fox over a considerable period of time. Ms Jacobs outlined the factors that led to a deterioration in Mr Fox’s mental health, when his mentally ill brother was sent to live with him. Mr Fox was not equipped to handle this responsibility, and indeed the extreme behaviour by his brother was such that anyone would have found it difficult to deal with it. Mr Knowles pointed out that the evidence now before the Court indicates that the presence of Mr Fox’s brother rendered Mr Fox’s accommodation unsafe, and caused mental health agencies to commence urgent action to get Mr Fox away from it. Mr Linn argued that this led to the deterioration of Mr Fox’s mental health and made him vulnerable to suggestion at the time of the offending, which he said could be linked directly to the unwise agreement on the part of Mr Fox to accompany Mr Linn on the night of the offending.
Mr Knowles referred to the decision of this Court in E (CA689/10) v R, in which this Court observed that a mental disorder falling short of exculpating insanity may be capable of mitigating sentence if it is causative of the offending, it moderates culpability, it renders less appropriate or more subjectively punitive a sentence of imprisonment or because of a combination of these reasons.[8] A discount of 20 per cent was given in that case.
[8]E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
Dr Williams expressed the opinion that Mr Fox’s mental disorder “was operating to a degree at the time of the offence, not to the point where he was legally insane, but in such a way as to increase his vulnerability to the pressure to accompany Mr Linn”. He said that it would have been harder for Mr Fox than it would be for others to think through the consequences of becoming involved because of his mental health instability in the months before the offending.
We consider there is merit in the submission by Ms Bell for the Crown that the report from Dr Williams does at places stray into the realms of advocacy rather than expert opinion. That said, we accept that Mr Fox suffers from a significant mental illness. We do not, however, see this as having made him less able to resist the suggestion from Mr Linn that he should participate in the offending. We do not, therefore, believe that the mental health issues are a significant sentencing factor and we are not persuaded that a substantial discount from sentence should be given as was done in E (CA689/10) v R.
Guilty plea
For the reasons given in relation to Mr Linn, we do not consider the Judge erred in relation to the discount for guilty plea.
Conclusion
We allow Mr Fox’s appeal. We quash the sentence imposed in the District Court and substitute a sentence of five years and seven months’ imprisonment.
Result
The appellants’ appeals against sentence are allowed. The sentence imposed in the District Court on each appellant for aggravated burglary is quashed and replaced with a sentence of imprisonment of five years and seven months. The concurrent terms of three years imprisonment for the charges of injuring with intent to injure remain unchanged.
Solicitors:
Public Defence Service, Christchurch for Appellant Linn
Crown Law Office, Wellington, for Respondent
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