Frelih v Police

[2014] NZHC 2217

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-181 [2014] NZHC 2217

BETWEEN

BOSTJAN FRELIH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 September 2014
Counsel:	S D Oliver for the Appellant NMH Whittington and S Navot for the Respondent
Judgment:	12 September 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 12 September 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, Auckland

Public Defence Service, Auckland

FRELIH v POLICE [2014] NZHC 2217 [12 September 2014]

Introduction

[1]      The appellant pleaded guilty to a charge under s 188(2) of the Crimes Act

1961 of wounding with intent to injure.   On 2 May 2014 he was sentenced by Judge A J Fitzgerald in the District Court at Auckland to a term of imprisonment of two years and five months.

[2]      The appellant appeals against that sentence and raises three issues:

(a)       that the starting point of three years imprisonment was manifestly excessive;

(b)      the  Judge  erred  in  failing  to  allow  a  discount  for  the  appellant’s

remorse; and

(c)      the  Judge  erred  in  failing  to  allow  a  discount  for  the  appellant’s

previous good character.

Background facts

[3]      On 1 November 2013 the appellant received a massage from the victim who is a masseuse working from her home address.  At the completion of the massage, and for seemingly unknown reasons, the appellant pinned the victim to the massage table and stabbed her head six times using a Swiss Army pocket knife.  When the victim attempted to stand up to defend herself the appellant pushed her against a wardrobe, breaking the wardrobe door off its hinges.  It appears that the attack was halted by the intervention of the victim’s partner who was upstairs in the premises when the massage was provided.

[4]      The implications for the victim were recorded by Judge Fitzgerald as follows:

[2]       As a result of that attack, she suffered large gashes between one and three centimetres in length to the top of her head requiring a total of 18 stitches.    As  well  as  a  physical  injury  suffered  there  was  significant emotional harm caused to her.  In her victim impact statement she refers to the deep effect both physically and mentally this has had.  It was completely unprovoked.  It happened in her own home and so one of the consequences

for her is a feeling of anxiety taking new clients in at home.   As a result of those anxiety issues she is having to see a doctor and receives medication.

The District Court decision

[5]      The Judge rejected a submission that the case fell within band 2 of Nuku v R,1 holding the view that the offending fell within category 3 because there were more than three aggravating features of the offending.  He said:

[6]       As I have mentioned this was a brutal and violent assault; it included attacking the victim’s head, using a weapon, there was serious physical and emotional harm caused to her and she was vulnerable in the sense that she was alone in her home having taken you in as a client.  The police have not made any submissions as to the sentence or length of any sentence.

[7]       In accordance with the approach required in Nuku v R, I am fixing the starting point by building in the aggravating and mitigating factors of the offending into fixing the starting point rather than as a separate exercise.  In my view a starting point of at least three years is warranted and that is the length I will take as the starting point.   There are no mitigating factors regarding the offending and it is accepted no mitigating factors relating to you personally.  You are not entitled to a 25 percent discount because you initially elected trial by jury when you pleaded not guilty and then some months later changed your plea to guilty and so a discount of 20 percent is what is allowed for.

Approach to appeal

[6]      An appeal against sentence is brought under s 244 of the Criminal Procedure

Act 2011.  Under s 250(2) the High Court must allow the appeal if satisfied that:

(a)      for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

The High Court must dismiss the appeal in any other case.

Was the starting point manifestly excessive?

[7]      For the appellant Ms Oliver accepted that band 3 of Nuku applied in this case. Band 3 provides for a starting point from two years up to the statutory maximum of

1      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

seven years where three or more of the aggravating features set out in R v Taueki2 are present and the combination of those features is particularly serious.

[8]      Ms Oliver also accepted that the offending involved three of the aggravating features found by the Judge, namely an attack to the victim’s head, the use of a weapon and serious physical and emotional harm caused to the victim.  What was not accepted was the fourth aggravating feature found by the Judge, namely that the victim was vulnerable in the sense that she was alone in her home.

[9]      Ms   Oliver   submitted   that   the   sentencing   Judge   erred   in   regarding vulnerability as an aggravating feature because the victim had the assistance of her partner who was in another room at the premises and who provided assistance when the victim screamed.

[10]     Ms Oliver drew attention to a number of authorities as relevant pointers to an appropriate starting point including Sheppard v R,3  where the Court of Appeal did not accept that either premeditation or vulnerability were present and considered that a starting point of two and a half years was appropriate, and Sadiq v R4  where a starting point of two years and nine months adopted by the sentencing Judge was upheld by the Court of Appeal.  Ms Oliver also noted the following cases cited in Sadiq, namely R v Stent (starting point of three years),5 R v Tuwairua (starting point of two years eight months)6  and Grimshaw-Jones v R (starting point of two years

eight months).7     It was submitted that the appropriate starting point in this case

would have been two years and nine months.

[11]     The Crown contends that by virtue of her occupation as a masseuse operating her business from her own home the victim is vulnerable, submitting that there is no difference between a masseuse running a business requiring her to invite customers

into  her  home  and  many  other  occupations  that  the  courts  have  recognised  as

2      R v Taueki [2005] 3 NZLR 372 (CA) at [31].

3      Sheppard v R [2013] NZCA 639.

4      Sadiq v R [2012] NZCA 396.

5      R v Stent CA115/98, 4 August 1998.

6      R v Tuwairua [2009] NZCA 495.

7      Grimshaw-Jones v R [2010] NZCA 490.

vulnerable, namely taxi drivers,8  prostitutes,9  fast food delivery drivers10  and bank tellers.11   The Crown contended that the fact that the victim’s partner was upstairs at the time of the offending is irrelevant to her vulnerability.  It also contends that there was a breach of trust in that the appellant was invited into the victim’s home for a

massage appointment which he then turned into a violent incident.

[12]     The Court  of Appeal  in  Sheppard  recognised  that  the analysis  of victim vulnerability in Taueki marked a shift away from attempts to categorise victims who are automatically considered vulnerable. The Court said:12

It is preferable to undertake a more fact-specific inquiry into the features of the victim and the circumstances they were in at the time of the offending. As this Court observed in Graham v R:

Many victims will have been vulnerable to some extent. Whether or not a particular factor truly aggravates offending will be a question of fact and degree requiring judicial assessment.

The Court of Appeal in Sheppard stated that recognising vulnerability in that case would have meant that all victims suffering an unexpected attack would be classified as vulnerable.

[13]     Consistent with the direction in Sheppard I do not approach the issue by considering masseurs and masseuses as a category.   My focus is on the particular circumstances of the present case.

[14]     In my view the present case, which involves a female victim providing a massage service in her own home and without a formal business structure and hence away from the public gaze, constitutes a state of affairs where it is appropriate to conclude that the victim was in a position of some vulnerability.  That is borne out by the fact that, even though her partner happened to be present on the premises, an attack of the serious nature which occurred was made before any assistance could be

sought.  I do not consider that there was error on the part of the Judge in including

8      R v Mako [2000] 2 NZLR 170.

9      R v Marsters CA269/05, 29 November 2005.

10     R v Nathan [2013] NZHC 696.

11     R v Cassidy CA254/02, 17 October 2002.

12     Sheppard v R, above n 3 at [16].

vulnerability as an aggravating feature along with the three aggravating features acknowledged on behalf of the appellant.13

[15]     I agree with the Crown submission that the offending in the present case is more serious than in Sheppard (which involved a single stabbing to the neck) and in Sadiq where the aggravating feature of an attack to the head was not present.  Like Chisholm J in Middlemiss v Police14  cited by the Crown, I do not consider that the starting point of three years was outside the range reasonably available to Judge Fitzgerald in the particular circumstances of this case, albeit it is near the top end of

the available range.  Consequently I reject the appellant’s submission that the starting

point of three years imprisonment was manifestly excessive.

Should a discount have been allowed for remorse?

[16]     As the Crown noted, it is clear that remorse is not simply shown by pleading guilty, although remorse expressed in a pre-sentence report or at sentencing carries more weight when preceded by a guilty plea.  The appellant’s contention that some discount should have been allowed for his remorse is based on the statement in the pre-sentence report as follows:

Mr Frelih displayed remorse for his actions and displayed what appeared to be genuine remorse for how his actions may have impacted his victim.  In his current financial position Mr Frelih is unlikely to be able to offer Reparation to the victim.

[17]     The Crown submitted that the Judge had closely read and turned his mind to the issue of remorse as discussed in the pre-sentence report and had made an evaluation  that  the  defendant  should  not  be  given  any  discount  for  remorse. Referring  to  the  third  sentence  in  [7]  quoted  at  [5]  above,  it  was  the Crown’s submission that that sentence indicated that the Judge clearly turned his mind to whether there were any relevant mitigating factors present (of which remorse is one) and recorded that it was “accepted” that there were none.

[18]     The difficulty with the Crown’s submission is not only the omission of any

reference in the sentencing notes to the pre-sentence report but also the Judge’s

13     At [9] above.

reference to the fact that it was “accepted” that there were no mitigating factors relating  to  the  appellant  personally.    Ms  Oliver  confirmed  that  she  had  placed reliance on the pre-sentence report and no concession had been made that, contrary to the statement in the pre-sentence report, the appellant was not remorseful.

[19]     Because the sentencing notes do not explicitly address either the pre-sentence report or the specific issue of remorse, I am concerned that there is a risk that the Judge failed to take the matter of the appellant’s remorse into account given the Judge’s perception that it was “accepted” that no mitigating factors applied in respect of the appellant personally.

[20]     Given the content of the pre-sentence report together with the absence of any reference to material contradicting that report, it is not apparent to me on what basis it could have been concluded that the appellant was not remorseful.  I consider that there was an error in the decision in not providing a discount for remorse and in failing to explain on what basis the statement in the pre-sentence report was not accepted.  Ms Oliver submits that a figure in the range of five per cent for remorse should have been adopted in this case.  I agree with that submission.

Should a discount have been allowed for previous good character?

[21]     The appellant is a tourist from the Republic of Slovenia who has been in New Zealand since 5 September 2012.  He has no previous convictions in New Zealand and, although it could not be confirmed at the date of sentencing, he has no previous convictions in the Republic of Slovenia.

[22]     In  support  of  the  submission  that  the  Judge  erred  in  not  providing  any discount for the appellant’s previous good character, reliance was placed upon two authorities, Manawaiti v R15 and R v Findlay.16   In Manawaiti  the Court of Appeal allowed a modest reduction in the sentence because the appellant had no previous convictions, was employed and contributed to the local community.  It was accepted by the Crown in that case that some credit should have been applied for that factor.

In Findlay the Court of Appeal allowed a 25 per cent discount for the appellant’s

previous good character, quoting at [91] R v Howe:17

Persons who have shown themselves generally law-abiding citizens of good character are usually entitled to invoke their creditable record in litigation when they come before the Courts, even for quite serious offences.

Ms Oliver noted that that point finds legislative endorsement in s 9(2)(g) of the

Sentencing Act 2002.

[23]     For these reasons it was submitted that a discount figure in the range of five to ten per cent for previous good character should have been applied in the present case.

[24]     Noting that the Court of Appeal in Findlay recognised “the place of good character and a life of community involvement is a mitigating factor”,18  the Crown submitted  that  previous  good  character  is  separate  and  distinct  from  the  mere absence of previous convictions.  It was contended that where it can be additionally shown that the offender is generally responsible and a contributing member of the community that may be a mitigating factor.

[25]     However it was pointed out that no other evidence of the appellant’s good character was provided, save for the absence of convictions, and attention was drawn to  the  fact  that  the  appellant  had  remained  in  New  Zealand  illegally  for approximately two months prior to the offending.

[26]     I accept the submission made for the Crown.  I do not consider that there was error on the part of the Judge in not allowing an element of discount for previous good character.

Decision

[27]     For the reasons above I accept that an error was made in respect of item (b) in

[2] above but not with reference to the other issues raised for the appellant.

[28] In consequence of my holding at [20] above, the sentence of two years five months imprisonment is quashed and it is replaced with a sentence of two years and

three months.

Brown J