Gillies v R
[2014] NZCA 115
•1 April 2014 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA675/2013 [2014] NZCA 115 |
| BETWEEN | JOHN WHAREMAKO GILLIES |
| AND | THE QUEEN |
| Hearing: | 4 March 2014 |
Court: | Miller, Goddard and Clifford JJ |
Counsel: | E R Fairbrother QC for Appellant |
Judgment: | 1 April 2014 at 4.00 pm |
JUDGMENT OF THE COURT
An extension of time to appeal against sentence is granted, but the appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Issue
The appellant, John Wharemako Gillies, pleaded guilty to charges of injuring with intent to injure and assault arising out of an incident at Waimarama in April 2012, and to a further charge of injuring a prison officer with intent to injure, arising out of an incident at Hawke’s Bay Regional Prison in September 2012.
Mr Gillies was sentenced by Judge Harrop in the District Court at Wellington on 30 August 2013 to a total term of imprisonment on those charges of five years and three months.[1]
[1]R v Gillies DC Wellington CRI-2012-020-2804, 30 August 2013 [sentencing decision].
Mr Gillies now appeals that sentence as being manifestly excessive. The appeal was filed six days late. There being no objection, we extend time.
Facts
The Waimarama incident
Mr Gillies’ extended family comes from Waimarama, the site of a
long-established Māori community in coastal Hawke’s Bay. A street in Waimarama, Gillies Crescent, is named after Mr Gillies’ branch of that family. Mr Gillies’ victims are members of another branch of that family.Mr Gillies’ victims, James Hamlin and his cousin Tamatea Barlow, were at their family home on Gillies Crescent, catching up with each other and members of their extended family. Neither Mr Hamlin nor Mr Barlow knew Mr Gillies well. Mr Hamlin had occasionally seen Mr Gillies but Mr Barlow had never met him before.
Mr Gillies arrived at the address with a female companion, but stayed for only about five to 10 minutes. He consumed a bottle of beer and then left. It would appear Mr Gillies did not receive the welcome he thought was appropriate. He returned approximately half an hour later, carrying a solid wooden stick or pole about the thickness of a broom handle or slightly bigger. On entering the garage Mr Gillies smashed a glass table and then, using what was described as a jabbing or poking motion, struck Mr Hamlin in the head in the area of his left temple and eye. Mr Gillies then swung the stick at Mr Barlow. Mr Barlow managed to avoid being hit. Mr Barlow wrestled Mr Gillies to the ground and, after a tussle, Mr Gillies left the property.
Mr Hamlin’s injury required stitches, caused swelling, serious headaches and permanent scarring. It has contributed to the degeneration of Mr Hamlin’s sight. Mr Hamlin, in his victim impact statement, records the adverse impact Mr Gillies’ attack has caused to his life and his role within the Waimarama community. Although Mr Barlow suffered no physical injuries, he reported psychological impacts.
The Hawke’s Bay prison incident
On 24 September 2012 Mr Gillies was in custody at Hawke’s Bay Regional Prison on remand awaiting trial for the Waimarama assaults. His victim, Graham Pihema, was the prison officer completing a daily phone roster. Mr Gillies was angry he was unable to have a phone call at the time he requested. Mr Gillies hit a clipboard out of Officer Pihema’s hand. Officer Pihema then asked Mr Gillies to talk to him away from other prisoners. As Officer Pihema opened a door to enable that conversation to occur Mr Gillies – without warning – punched him on the right side of his head. That blow knocked Officer Pihema out. Mr Gillies immediately punched Officer Pihema a second time in the head, at which point Officer Pihema fell to the ground.
Officer Pihema suffered swelling to his forehead and jaw, and bleeding from his right ear. He was attended by a nurse at the prison and subsequently transported to the local hospital. In addition to suffering from the immediate effects of his injury, for which he underwent substantial medical treatment, Officer Pihema also suffered ongoing physical and psychological effects.
Mr Gillies’ guilty pleas
Some time after the assault on Officer Pihema, Mr Gillies’ trial for the Waimarama assaults began. At that point, Mr Gillies was charged with wounding Mr Hamlin with intent to cause grievous bodily harm and, as an alternative, wounding with intent to injure. Difficulties with Mr Gillies’ trial arose. The agreed resolution of those difficulties involved Mr Gillies pleading guilty to the alternative charge of wounding with intent to injure. At the same time Mr Gillies, who was at that point facing a trial in November 2013 for his attack on Officer Pihema, pleaded guilty to a charge of injuring Officer Pihema with intent to injure.
The challenged sentencing decision
Reflecting the separate incidents involved, the Judge identified cumulative starting point sentences for the Waimarama and Hawke’s Bay prison offending: two years and eight months for the former and three years for the latter, giving a starting point cumulative sentence of five years and eight months.[2]
[2]At [35].
Recognising the aggravating factors of Mr Gillies’ previous offending and that, at the time of his attack on Officer Pihema Mr Gillies was on remand for the Waimarama offending, the Judge concluded that an uplift of nine months was appropriate. That resulted in a sentence at that point of six years and five months. Turning to mitigating factors, the Judge allowed a discount of two months for the guilty plea in respect of the Waimarama offending and seven months for that in respect of the attack on Officer Pihema, resulting in an end sentence of five years and eight months. Finally, the Judge considered totality, and reduced the overall sentence to five years and three months. No order for a minimum period of imprisonment was made.
Case on appeal
Mr Gillies argues his sentence was manifestly excessive because:
(a)the starting point sentence for the assault on Officer Pihema was too high;
(b)the nine month uplift for previous offending was wrong in principle, and should not have been applied at all; and
(c)remorse justified a greater discount.
Mr Gillies does not challenge the starting point sentence of two years and eight months for the Waimarama assaults.
Analysis
In arguing this appeal for Mr Gillies, Mr Fairbrother QC focussed on the challenge to the nine month uplift imposed by the Judge. At the same time, he confirmed Mr Gillies’ challenge to the starting point identified for the attack on Officer Pihema. We will deal with that aspect of Mr Gillies’ appeal first.
The starting point
The Judge identified the three year starting point for Mr Gillies’ attack on Officer Pihema based on the decision of this Court in R v Nuku.[3]
[3]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
R v Nuku is a tariff decision applying the R v Taueki[4] (grievous bodily harm) sentencing approach to offending under the Crimes Act 1961 involving the infliction of violence with intent to injure.[5] Nuku adopts the Taueki culpability factors, and applies them to three, overlapping, sentencing bands.[6] For offending where there are few aggravating factors, the level of violence is relatively low and the judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment (Band One) can be appropriate. Where three or fewer of the Taueki culpability factors are present, a starting point of up to three years’ imprisonment (Band Two) will be appropriate. Where three or more of the Taueki culpability factors are present, and the combination of those factors is particularly serious, a starting point from two years up to the statutory maximum (Band Three) will be appropriate.
[4]R v Taueki [2005] 3 NZLR 372 (CA).
[5]Crimes Act 1961, ss 188(2), 189(2) and 191(2).
[6]Nuku v R, above n 3, at [38].
The Judge’s three year starting point, which he did not attribute to a particular Nuku band, can therefore be seen as being at the top end of Band Two, or towards the middle of Band Three for s 189(2) injuring with intent to injure offending, where five years’ imprisonment is the maximum custodial sentence.
Mr Gillies’ challenge to the three year starting point for his assault on Officer Pihema is based on the proposition that, properly assessed, only two culpability factors are present: a blow to the head and the fact of this assault being on a prison officer. It was wrong for the Judge to identify vulnerability (based on the fact that the first blow rendered Officer Pihema unconscious) as a further culpability factor: the two blows here were delivered in quick succession. Mr Gillies cannot, as the Judge himself recognised,[7] be assumed to have known of that fact. Accordingly, vulnerability was not a relevant culpability factor.
[7]Sentencing decision, above n 1, at [31].
The Judge assessed the Nuku culpability factors in the following way.
First, he recognised the strong aggravating feature of the fact of an assault on a prison officer simply doing his job.[8] On top of that there was the attack to Mr Gillies’ victim’s head. There were two punches and, whether or not known to Mr Gillies, Officer Pihema was in a position of vulnerability at the time of the second punch because he was by then unconscious. The Judge accepted that the assault was not continued at that point and could have been much more serious. But the Judge recorded that any assault where there is a loss of consciousness is serious, and here there were the significant physical and mental consequences of the assault on the prison officer.
[8]At [30].
The Judge then, as both Taueki and Nuku require, looked at Mr Gillies’ offending in the round, rather than undertaking a mechanistic application of the culpability factors. On that basis he concluded, as do we, that a three year starting point was appropriate. In our view, this is better characterised as Band Two Taueki offending, but at the very top of the band. This was an attack to the head, it resulted in the victim’s unconsciousness and had long-term consequences, and it was an unprovoked attack on a prison officer carrying out his duties.
The uplift and remorse
Mr Gillies argues that the Judge was wrong to conclude an uplift in sentence was called for: whilst he did have relevant previous offending,[9] Mr Fairbrother suggested that Mr Gillies had learnt and was continuing to learn from his previous sentences for that offending. Uplifts for previous offending in terms of s 9(1)(j) of the Sentencing Act 2002, were as a matter of principle Mr Fairbrother argued, only justified on the basis that the offender had not learnt from previous sentences. Mr Gillies’ pre-sentence report recorded that he had gained significant insight into his behaviour and use of violence. The Judge had accepted that. Mr Gillies’ problem was that, notwithstanding that insight, he had so far been unable to control his violent impulses.
[9]1. Aggravated assault in 2004 earning a term of one year.
2. Assault with intent to injure in 1995 earning a term of two years.
3. Aggravated injury in 1993 earning a term of seven years.
4. Aggravated assault in 1990 earning a term of nine months.
5. Aggravated assault in 1989 earning a term of five months.
6. Convictions for assault on police or prison officers: one in 2004, three in 1993, one in 1990 and one in 1988 plus one assault on a taxi driver in 1986 dealt with in the Youth Court.
7. Numerous convictions for common assault.
The Judge concluded that a nine month uplift for aggravating factors was called for, not only by reference to Mr Gillies’ previous convictions, but also because at the time of his assault on Officer Pihema he was on remand, in custody, for the Waimarama offending and may also have been recalled to complete a previous sentence. So the uplift was not, as Mr Fairbrother submitted, solely for previous offending. Moreover, in providing a five month discount for remorse and totality, the Judge did acknowledge the letter Mr Gillies wrote to him and the insight that letter showed Mr Gillies had into his offending.
Mr Fairbrother advised us that Mr Gillies’ appeal reflects Mr Gillies’ concern the Judge had taken no account of that insight. As can be seen, that was not the case. Rather, the Judge balanced the two factors (conviction history and remorse) and, by applying an uplift for previous offending and a discount for remorse and totality, in our view reached an appropriate end sentence.
Result
An extension of time to appeal against sentence is granted, but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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