Geros v R
[2011] NZCA 122
•31 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA321/2010 [2011] NZCA 122 |
| BETWEEN MARCELL SYDNEY GEROS |
| AND THE QUEEN |
| Hearing: 3 March 2011 |
| Court: Chambers, Chisholm and Venning JJ |
| Counsel: W C Pyke for Appellant |
| Judgment: 31 March 2011 at 3 pm |
JUDGMENT OF THE COURT
A An extension of time for appealing is granted.
B The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Beating up a 73 year old
During the evening of 18 December 2008 and into the early hours of the next day, Marcell Geros, the appellant, drank heavily at his cousin’s house in Kaitaia. After the cousin went to bed at approximately 3 am, Mr Geros left the house and went to the neighbouring property. He entered that property through an unlocked ranchslider door. Two men were asleep inside: Alexander Cameron, aged 73, and his brother, John. Mr Geros was holding a small torch, which he used to help him search the house for items to steal. He shone the torch on Alexander Cameron as he slept. Alexander woke with the light. Mr Geros feared that Alexander would recognise him. So he resolved to beat him up. He punched Alexander repeatedly on the head and grabbed him around the throat. Alexander was unable to defend himself.
Mr Geros then fled, leaving Alexander on his bed in a semi-conscious state. John woke up with the commotion. He went in to Alexander’s room and found him with blood gushing from his nose and mouth. John immediately called an ambulance.
An ambulance quickly came. While the ambulance officers were attending to Alexander, Mr Geros went to the ambulance and stole from it a medical bag containing essential supplies and IV equipment. He also took a nurse’s personal bag containing high visibility vests and a watch.
A little later, Mr Geros went to another neighbouring property and stole a motorbike from a shed.
Alexander Cameron suffered severe injuries. He sustained fractures to his face, swelling to his face and eye, cuts to his face and neck and bruising to his body. Following the attack he was no longer able to look after himself, as he had done prior to it.
Mr Geros was charged with wounding with intent to cause grievous bodily harm, burglary and theft (two charges). Eventually he pleaded guilty to these charges. Judge de Ridder sentenced him to seven years three months’ imprisonment.[1]
[1] R v Geros DC Kaitaia CRI-2009-029-1127, 5 November 2009 (“Sentencing notes”).
Mr Geros has appealed on the basis that the sentence is manifestly excessive. He was late in filing his appeal, but the Crown does not oppose his being granted an extension of time for appealing. Accordingly, we grant that extension.
Was the sentence manifestly excessive?
Judge de Ridder reached his end sentence of seven years three months’ imprisonment in the following way. First, he took the wounding charge as the most serious. He correctly identified R v Taueki[2] as the leading appellate authority. He concluded the offending in this case fell within band 3. The starting range for band 3 offending was fixed by this Court as nine to 14 years’ imprisonment. Judge de Ridder fixed a start point of 11 years’ imprisonment.[3]
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] Sentencing notes at [15].
The Judge then applied an uplift of one year on account of past relevant offending.[4]
[4] At [16].
The Judge then considered mitigating factors. He allowed 25 per cent for the guilty pleas.[5] He then allowed a 15 per cent discount on account of Mr Geros’s age - he was 17 at the time of this offending – and on account of his personal history as outlined in a report obtained under s 333 of the Children, Young Persons and Their Families Act 1989.[6] A 40 per cent discount came to 57 months, reducing the sentence from 12 years to seven years three months’ imprisonment.
[5] At [17].
[6] At [18].
The Judge then considered the other offending. He sentenced Mr Geros to one year’s imprisonment on the burglary charge and to one month’s imprisonment on each of the theft charges. He ordered all sentences to be served concurrently.
Mr Pyke, for Mr Geros, submitted that the Judge had erred in two respects. First, the starting point was too high. It should have been in the range of nine to ten years’ imprisonment. Secondly, the one year uplift was impermissible as the prior “offending” had been dealt with in the Youth Court. Mr Pyke submitted that the end sentence should have been “closer to six years’ imprisonment”.
The fact that Mr Pyke concentrated on the starting point and the uplift does not mean, of course, that we are confined to analysing those parts of the Judge’s reasoning. For it is possible that the Judge might have been “tough” in those areas but “soft” in other areas. For instance, his discount on account of age and personal history might have been generous; his discount for guilty pleas might have been generous; and his apparent non-inclusion of the other offending (the burglary and the thefts) when fixing the starting point for the wounding might have been unduly favourable to Mr Geros. This Court has repeatedly stressed that, with respect to multiple offending, what matters is that the final sentence reflects “the totality of the offending”. How the sentence is made up has never been important.[7]
[7]R v Barker CA57/01, 30 July 2001; R v Xie [2007] 2 NZLR 240 (CA) at [15]-[18]; McDonald v R [2011] NZCA 97 at [9].
Mr Tantrum, for the Crown, supported the Judge’s analysis. But he went on to demonstrate that a similar final outcome was able to be reached by a slightly different route. Mr Tantrum accepted the Judge’s 11 year starting point was “stern” and at the top of the available range. He submitted a ten year starting point (the top of Mr Pyke’s range) was, however, easily defensible, especially when one took into account the other offending to which Mr Geros had pleaded guilty. He then suggested the Judge would have been fully entitled not to make a discount for youth on the basis of Mr Geros’s Youth Court and District Court history. If one then allowed a 25 per cent discount for the guilty pleas, one ended up with a sentence of seven and a half years’ imprisonment, just a little higher than the Judge’s.
We think, with respect, that Mr Tantrum’s analysis was on the mark. We agree with both him and Mr Pyke that the Judge’s 11 year starting point was a little on the high side, even taking into account the other offending which it was designed to encompass. The ten year starting point supported by both counsel would have been more consistent with the authorities to which Mr Pyke referred us.[8]
[8]R v Stewart CA21/06, 31 August 2006; R v Connelly [2008] NZCA 550; Likio v R [2010] NZCA 284; Saber v R [2010] NZCA 603.
Mr Pyke submitted that proceedings in the Youth Court do not result in a conviction. Accordingly, he submitted, s 9(1)(j) of the Sentencing Act 2002, which provides that the Court must, when sentencing, take into account, so far as applicable, “the number, seriousness, date, relevance, and nature of any previous convictions of the offender”, did not apply. It is true that a Youth Court history cannot be taken into account under that paragraph, but that does not mean the Youth Court history is irrelevant. As this Court held in R v Putt, the sentencing court is not limited to a consideration of the aggravating or mitigating factors listed in s 9(1) and s 9(2) but may consider, by virtue of s 9(4), other factors as “the court thinks fit”.[9] This court went on to quote what Anderson J had said in Kohere v Police:[10]
[While the Youth Court] behavioural history does not amount to prior convictions, it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the court of criminal record.
[9] R v Putt [2009] NZCA 38 at [18].
[10] Kohere v Police (1994) 11 CRNZ 442 (HC) at 444.
In Putt, this Court determined that the appropriate response to Mr Putt’s Youth Court history was to set it off against what would otherwise have been the normal discount available to him on account of his youth. In that case, the previous history involved no application of violence and was not particularly extensive. No uplift was therefore warranted; but on the other hand there should not have been any discount for youth.
Mr Geros’s history is in a different category from that of Mr Putt. Mr Geros, despite his youth, has a history of violent offending. He first came to the Youth Court’s attention at 15 for charges of wounding with intent to cause grievous bodily harm, burglary, resisting police and aggravated assault. Further, just the day before this offending, Mr Geros had been before the Kaitaia District Court on three charges of wilful damage, in respect of which he had been sentenced to pay reparation and to come up for sentence if called upon within the next six months.[11] That history was plainly relevant in any assessment of how the courts should respond to Mr Geros’s latest offending.
[11]It appears Judge de Ridder may not have been aware of this offending at the time he sentenced Mr Geros.
So there was clearly a case for an uplift. There was a slim case for a discount on the grounds of youth and perhaps also on the grounds of diminished intellectual capacity and the other matters referred to in the s 333 report. The Putt solution rather appeals to us here, just as Mr Tantrum submitted: these personal factors, up and down, effectively cancelled one another.
Mr Pyke did not challenge the guilty plea discount. Obviously, he could not, as, given when the pleas were entered, the discount was generous in terms of this Court’s decision in Rv Hessell,[12] the controlling authority at the time. An even lower discount would have been justified on the basis of the Supreme Court’s judgment in Hessell.[13]
[12] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[13] Hessell v R [2010] NZSC 135, (2010) 24 CRNZ 966.
We are quite satisfied the overall sentence was fair and appropriate; it was not manifestly excessive. We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
11
5
0