Gavin v The Queen
[2018] NZHC 1826
•23 July 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-488-000018
[2018] NZHC 1826
BETWEEN TAYLOR ALLAN GAVIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 18 July 2018 Appearances:
G Skinner for the Appellant
C A Anderson for the Respondent
Judgment:
23 July 2018
JUDGMENT OF HINTON J
This judgment was delivered by me on 23 July 2018 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Thode Utting & Co, Auckland
Marsden Woods Inskip & Smith, Whangarei
TAYLOR ALLAN GAVIN v R [2018] NZHC 1826 [23 July 2018]
Introduction
[1] Taylor Allan Gavin pleaded guilty to one charge of injuring with intent to cause grievous bodily harm1 and one charge of assault with a weapon.2 He was sentenced by Judge D G Harvey on 20 April 2018 in the Whangarei District Court to four years and two months’ imprisonment3 on the charge of injuring with intent to cause grievous bodily harm, with a concurrent sentence of two-and-a-half years’ imprisonment on the charge of assault with a weapon.
[2] Mr Gavin appeals his sentence on the basis that it is manifestly excessive because the Judge should not have imposed an uplift for previous convictions and because the final sentence was not correctly calculated having regard to the full guilty plea discount.
Facts of the offending
[3] On the afternoon of 7 February 2017, Mr Gavin and a co-offender were involved in an altercation in the carpark at the Four Square on Otaika Road in Whangarei with two men who were known to them. There had been ongoing instances of threats and violence between the offenders and the victims over the past five years. The altercation ended when the four men agreed to meet for a fight at a scenic reserve.
[4] Mr Gavin and the co-offender brought weapons and a dog and arranged for several associates with weapons to also be present. The victim arrived with his two brothers who remained in their vehicle. There was a verbal exchange between Mr Gavin and the victim. Mr Gavin took out a gas-powered slug pistol from his backpack and pointed it at the victim. At a distance of some two metres, Mr Gavin discharged the pistol five times into the victim’s face, causing the pellets to penetrate his skin and lodge in his face and arm.
[5] At this point Mr Gavin’s associates and the victim’s brothers, who were armed with a baseball bat and plank of wood from their vehicle, entered the fray. The
1 Crimes Act 1961, s 189(1); maximum penalty 10 years’ imprisonment.
2 Crimes Act, s 202C; maximum penalty five years’ imprisonment.
3 R v Gavin [2018] NZDC 7909.
co-offender released the dog, which bit the victim on his left leg below the knee. Mr Gavin had a 20-centimetre-long blue-handled filleting knife which he was swinging at the face and neck of the victim’s brother, but fortunately it did not make contact. At some point Mr Gavin threw a hammer at the victim, which struck him on his left forearm, shattering his left radius and dislocating his ulnar. The victim required surgery to place two plates in his arm to repair the joint, which would likely cause him issues for the rest of his life, and it was deemed too risky to remove the pellets from his face due to their proximity to facial nerves.
District Court decision
[6] Judge Harvey adopted a starting point of five years’ imprisonment for the lead charge of injuring with intent to cause grievous bodily harm based on the aggravated features of premeditation, the use of a weapon, the serious injury and the attack to the head, while recognising a degree of provocation was a mitigating factor.
[7] The Judge imposed an uplift of three months to recognise Mr Gavin’s previous criminal convictions. The Judge then stated that Mr Gavin was entitled to receive “full credit” for his early guilty plea. Judge Harvey imposed an end sentence of four years and two months on the lead charge. A concurrent sentence of two years and six months was imposed for the assault charge.
Grounds of appeal
[8] Mr Gavin does not appeal the starting point of five years’ imprisonment, which his counsel, Mr Skinner, accepts was wholly appropriate.
[9] The appeal is advanced on the basis that the sentence was manifestly excessive because the District Court Judge erred in two respects:
(a)Imposing an uplift of three months on account of Mr Gavin’s previous convictions; and
(b)Miscalculating the full discount for the guilty plea.
Submissions
[10] Mr Skinner submits that, while Mr Gavin has previously appeared before the Court, the nature of those charges and the time elapsed since, render an uplift unwarranted. He notes that Mr Dooney, defence counsel at sentencing, accepted that a three-month uplift may be appropriate for the previous convictions generally, but submits that this was incorrect in principle because an uplift ought to reflect previous relevant convictions, not the mere fact Mr Gavin has previously appeared in Court.
[11] Mr Skinner submits that the Judge accepted the submission by Mr Dooney that a full guilty plea discount of 25 per cent was warranted because Mr Gavin pleaded guilty to the charge at the first opportunity after it was amended to a lesser charge, and that the discount was then not calculated correctly. A 25 per cent discount from the starting point of five years, after an uplift of three months, would result in an end sentence of three years, 11 months and one week imprisonment, as opposed to the sentence of four years and two months’ imprisonment imposed. Without the uplift, the end sentence would be three years and nine months’ imprisonment, which Mr Skinner submits is the appropriate sentence.
[12] The Crown submits that the uplift was warranted and proportionate, given the extent of Mr Gavin’s criminal history. The Crown points to the large number of his previous convictions starting from 2007, seven of which were for assault and two for fighting in a public place or public disorder. The Crown also points to the fact Mr Gavin has been imprisoned on eight occasions, most recently in April 2016 for a period of four-and-a-half months on a charge of driving while disqualified third or subsequent, and that he appears to commit further offences shortly after being released from prison. The Crown also highlights that Mr Gavin has a poor record of compliance with release conditions and the conditions imposed in conjunction with community-based sentences.
[13] The Crown’s position is that having regard to these circumstances, an uplift was not double punishment to simply mark the existence of previous convictions, but was the proper exercise of a discretion to reflect Mr Gavin’s character, his ongoing risk of reoffending, which is said to justify a “ratcheted” sentencing response, and the
fact that his specific relevant convictions and the scale of his history in general underscore the need to adopt a hardened deterrent approach to sentencing so as to protect the community.
[14] The Crown responsibly accepts it appears there was an arithmetical error in the final calculation of the sentence, and that the appeal ought to be allowed to the limited extent that a full 25 per cent guilty plea discount should be applied and the proper sentence substituted. The sentence ought to be reduced to one of three years, 11 months and one week imprisonment.
Relevant principles
[15] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal, if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the appeal must be dismissed.4 Despite s 250 making no express reference to “manifestly excessive”, this principle is well accepted in the Courts’ approach to sentence appeals.5
[16] An appellate court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the correctness of the end sentence rather than the process by which the sentence is reached.6
Discussion
[17] It is common ground there was an arithmetical error in applying the full guilty plea discount to calculate the end sentence. Despite clearly stating Mr Gavin would receive “full credit” for his guilty pleas, the Judge applied a discount of 13 months, or approximately 20 per cent. In accordance with Hessell v R, “full credit” for an early guilty plea ought to result in a discount of 25 per cent.7
4 Section 250(3), Criminal Procedure Act 2011.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
6 Ripia v R [2011] NZCA 101 at [15].
7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
[18] The Court of Appeal has stated that it would be unjust to leave uncorrected a plain mathematical error resulting in a sentence more severe than the Judge intended, even if the sentence imposed was still within the available range.8 I am satisfied Judge Harvey intended to apply the full 25 per cent discount and this should be corrected on appeal. Accordingly, the proper end sentence turns on whether the Judge also erred by imposing an uplift of three months for Mr Gavin’s previous convictions.
[19] Under s 9(1)(j) of the Sentencing Act 2002, a sentencing court may take into account the number, seriousness, date, relevance and nature of any previous convictions as an aggravating feature.
[20] The rationale for imposing an uplift for prior convictions invokes a tension between two competing principles, namely the deterrent aspect of punishment and the need to ensure a person is not punished twice for the same offending.9 A criminal history in and of itself does not justify an uplift, as an uplift for the bare existence of previous convictions would punish offending more than once.10 An uplift should only be a considered response to specific aspects of an offender’s previous criminal history.11 It must have some relevance to the current sentencing process, for example, by bearing on the blameworthiness of the present offending or on the increased need for further deterrence.12 Any uplift must remain proportionate to the adopted starting point.13
[21] In Reedy v Police, Dunningham J identified three broad categories of permissible lines of reasoning which may justify an uplift:14
(i)previous convictions bearing upon character and culpability;
(ii)indication of predilection to offend in a specific way (an indicator of reoffending);
8 Ferris-Bromley v R [2017] NZCA 115; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Koroheke v R [2012] NZCA 368 at [21].
9 Beckham v R [2012] NZCA 290 at [84].
10 Reedy v Police [2015] NZHC 1069 at [18]-[19].
11 O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41].
12 Reedy v Police [2015] NZHC 1069 at [18].
13 Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478; Reedy v Police
[2015] NZHC 1069 at [19].
14 Reedy v Police [2015] NZHC 1069 at [19].
(iii)the need to protect society by the imposition of a deterrent sentence.
[22] Mr Skinner helpfully referred me in oral submissions to the 2011 judgment of Johnston-Walters v R where the Court of Appeal determined that uplifts of four months and three months respectively for the two appellants’ previous convictions were not justified.15 The appellants had pleaded guilty to two counts of injuring with intent to injure and one count of assault with intent to injure. Mr Te Kanawa had a limited previous history. The most relevant, and the only convictions involving violence, were two convictions, in 2004 and 2007, for common assault. Mr Johnston-Walters had a more extensive history of prior offending for a range of relatively minor offences, none involving violence. There was one conviction for threatening to kill or do grievous bodily harm, part of a wider incident, where he was sentenced to come up for sentence if called upon.
[23]The Court of Appeal said:16
In our view, neither of these histories justified an uplift. In neither case might the previous convictions be regarded as relevant to a prediction of the appellants’ future behaviour, in a way which is relevant to the present, serious offending. They do not indicate a predilection to commit a particular type of offence. They are not so numerous or of such seriousness, that considerations of protecting the community might justify an uplift. We consider that no uplift was justified, in either case.
[24]Mr Gavin’s history is materially different to Johnston-Walters and Te Kanawa.
[25] Mr Gavin has a lengthy conviction history for a man of 28 years. His recent relevant convictions are resisting Police in April 2016 for which he was sentenced to two months’ imprisonment, which was concurrent with four-and-a-half months’ imprisonment for a charge of driving while disqualified. In July 2015, Mr Gavin received community detention for a period of one month on one charge of assaulting Police and two charges of resisting Police which occurred in February 2015. Prior to that, Mr Gavin was sentenced in January 2012 to five months’ imprisonment for behaving threateningly in August 2011, concurrent with possessing an offensive weapon. In June 2011, Mr Gavin was sentenced to one month for resisting Police in
15 Johnston-Walters v R [2011] NZCA 367.
16 At [29].
September 2010. He was convicted and discharged for fighting in a public place on Christmas Eve in December 2012, when he was also sentenced to two months’ imprisonment and one year and six months of intensive supervision for resisting Police. He also has a conviction for both possession of an offensive weapon and threatening behaviour in April 2009, for which he received concurrent sentences of two months’ imprisonment. Mr Gavin’s first sentence of imprisonment was for 10 months, imposed in February 2009 for an assault with intent to injure in 2007.
[26] I do not consider the Judge erred by imposing an uplift of three months’ imprisonment for these convictions. I recognise that Mr Gavin’s most recent offences involving violence in 2015 and 2016 were relatively low-level, but they involved offending against Police which is concerning. I recognise also that the offending involving a weapon occurred over six years ago. Nevertheless, Mr Gavin has an extensive history of offending involving offering violence or possessing weapons, with an escalation of both those features in the present offending. On the basis of the pattern of offending, it was open to the Judge to impose a modest uplift for these previous convictions based on an indication of a predilection of offending with violence, and the need to impose a deterrent sentence to protect the community. The uplift of three months, which was five per cent of the starting point to reflect these considerations, was proportionate and not in error.
[27] Accordingly, a starting point of five years’ imprisonment uplifted by three months’ imprisonment for previous relevant convictions would, after the proper calculation of full credit for the guilty plea discount, result in an end sentence of three years, 11 months and one week imprisonment.
Result
[28] The appeal is allowed in part. I substitute a sentence of three years, 11 months and one week imprisonment.
-------------------------------------------------------
Hinton J
2
10
1