Goodwin v The King
[2023] NZHC 2771
•4 October 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-463-29
[2023] NZHC 2771
BETWEEN SAMUEL WILLIAM GOODWIN
Appellant
AND
THE KING
Respondent
Hearing: 2 October 2023 Appearances:
X Wang for Appellant
T T Taane for Respondent
Judgment:
4 October 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 4 October 2023 at 9.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Pollett Legal Ltd, Tauranga,
Law Aid International, Mount Maunganui
GOODWIN v R [2023] NZHC 2771 [4 October 2023]
[1] After receiving a sentence indication Mr Goodwin pleaded guilty in the District Court to a charge of causing grievous bodily harm with intent to do so. He also pleaded guilty to charges of supplying LSD and being in possession of LSD and cannabis for the purpose of supply. In addition, he pleaded guilty to selling and offering to sell cannabis. On 24 March 2023, Judge I D R Cameron sentenced Mr Goodwin to three years nine months imprisonment on all charges.1
[2] Mr Goodwin appeals against sentence. He contends the Judge failed to give him adequate discount to recognise the fact that he was just 19 years of age when he committed the offences.
The offending
[3] In August 2021, Mr Goodwin was living with his partner in a van and deriving income by dealing with drugs. The charge of causing grievous harm with intent to do so was laid after an incident that occurred on 15 August 2021 after a person contacted Mr Goodwin and asked to buy drugs from him. Unbeknown to Mr Goodwin, this person planned to rob him. He travelled to a reserve where Mr Goodwin’s van was parked having armed himself with a knife. He then immediately confronted Mr Goodwin with the knife and demanded that Mr Goodwin hand over his money and drugs.
[4] Mr Goodwin responded by striking his would-be assailant on the head with a metal baseball bat his partner handed to him. Mr Goodwin and his partner then began packing their belongings so they could leave the scene. Whilst they were preparing to leave the victim regained consciousness and attempted to reach for his knife. Mr Goodwin struck him on the head with the bat on a second occasion to prevent him from grabbing the knife. This resulted in the victim being rendered unconscious.
[5] Mr Goodwin then struck the victim on the head on numerous occasions with the baseball bat whilst he was lying unconscious on the ground. He later told an associate he had delivered seven blows to the victim’s head and that he only stopped
1 R v Goodwin [2023] NZDC 5701.
when he thought the victim was dead. These blows led to the charge of causing grievous bodily harm with intent to do so.
[6] A short time later, Mr Goodwin and his partner left the scene. The victim subsequently regained consciousness and was driven to Tauranga Hospital. He was subsequently airlifted to Waikato Hospital, where he was placed in an induced coma. He was found to have suffered numerous injuries including shattered orbital bones, multiple facial fractures, skull fractures, bleeding on the brain and damage to the optic nerve in his right eye. The injuries will have long-term and lasting effects for the victim.
[7] The police located Mr Goodwin in his van in Te Puna the following day. They executed a search warrant on the van and found the metal baseball bat he had used to assault the victim the previous day. The police also located Mr Goodwin’s cellphones. Analysis of the data held on the cellphones showed that between 29 May and 16 August 2021, he had sold 250 tablets of LSD and 3.6 kilograms of cannabis. Inside the van the police found 14 tablets of LSD, approximately 30 grams of cannabis head material and 20 grams of cannabis powder. Other paraphernalia associated with drug dealing was also found, including the sum of more than $2,000 in cash.
The sentence
[8] The Judge considered that the violent offending against the victim sat at the upper end of band 2 identified in the guideline judgment of R v Taueki.2 Offending in this band will attract a starting point of between five and 10 years imprisonment.3 Having regard to the aggravating features of the offending, the Judge adopted a starting point of eight years imprisonment on the charge of causing grievous bodily harm with intent to do so. He then reduced the sentence by 18 months to reflect the fact that the victim had provoked the incident that led to the charge. The Judge then applied an uplift of 12 months imprisonment to reflect the drug offending. This increased the sentence to one of seven years six months imprisonment.
2 R v Taueki [2005] 3 NZLR 372 (CA).
3 At [34(b)].
[9]Turning to the discount to be given for mitigating factors, the Judge observed:
[19] As to discounts for mitigating factors there will be a 20 per cent discount for the guilty plea in accordance with the sentence indication. The defence seek a 30 per cent discount for youth and rehabilitative prospects. I note that the defendant was aged 19 years at the time of the offending and he is now 21.
[20] I make these observations. He has no previous convictions. However, 19 is towards the upper end of the youth age range. None of the offending in my view can be described as impulsive, youthful indiscretion. The prolonged attack on the unconscious victim was vicious and calculated and the defendant’s intention was to cause really serious harm to the victim, which he did. The offending was against the background that the defendant was a drug dealer and had been for some time. As he admitted he had been committing thefts to fund the purchase of drugs. The dealing in drugs was calculated.
[21] As to his prospects of rehabilitation I do note that while on EM bail the defendant obtained a job as a roofer and the Court has a positive report from his employer. There are also letters in support of him from family members and an ex-neighbour, all of which are positive. In addition, the defendant told the writer of the cultural report that he would like to engage in some form of substance use treatment. Recognising this and taking into account his age at the time of the offending I allow a 15 per cent discount for youth.
[22] The defence also seek a 10 per cent discount for cultural factors including his dependency on drugs. The s 27 cultural report discloses that the defendant’s drug use started when he was 13 years and gradually expanded. It also canvasses the fact that the defendant suffers from anxiety and depression, that there have been suicide attempts in the past and that he has some behavioural characteristics which are abnormal, including banging his head from time to time.
[23] Despite the defendant’s difficult childhood, I am unable to discern a causal link between that and the violent offending which occurred in this case. Nevertheless, I accept that a 10 per cent discount is appropriate for cultural matters including his drug addiction.
(Emphasis added)
[10] The Judge then applied a further discount of four months to reflect the fact that Mr Goodwin had been on EM bail for approximately 13 months. This reduced the end sentence to one of three years nine months imprisonment.
The appeal
[11] As I have already observed, the sole ground of appeal is that the Judge erred in failing to give Mr Goodwin an adequate discount to reflect his youth and rehabilitative prospects. Mr Wang submits that the Judge ought to have given Mr Goodwin a
discount of 30 per cent to reflect these factors given that the offending occurred when he was just 19 years of age. In other words, the Judge ought to have applied discounts totalling 60 per cent to reflect mitigating factors rather than 45 per cent.
Decision
[12] As the passage from the Judge’s remarks set out above demonstrates, the Judge considered Mr Goodwin to be towards the upper end of the youth age range. This observation is clearly open to question but the Judge nevertheless allowed a 15 per cent discount for youth and rehabilitative prospects, together with a further 10 per cent to reflect other matters identified in the cultural report. These included addiction issues from which Mr Goodwin was suffering at the time of the offending.
[13] The Judge effectively allowed a discount of 25 per cent to reflect Mr Goodwin’s youth, his rehabilitative prospects and other mitigating factors identified in the s 27 report. For the Crown, Mr Taane points out that the Court of Appeal recently observed in Dickey v R that discounts of 10 to 30 per cent will typically be given to reflect youth.4 The discount the Judge applied is clearly within this range. The Court in Dickey also noted that youth offenders commonly present with more than one mitigating factor and this means that discounts may overlap. Perhaps the most common area of overlap is that between youth and the prospects of rehabilitation. For this reason the Court observed that it is always necessary to stand back and make an overall assessment because manifest injustice must be assessed as a matter of overall impression.5
[14] In the present case the sentence to be imposed on Mr Goodwin needed to reflect the fact that he had committed an extremely serious assault. The victim may well have been fortunate not to have died of his injuries — an outcome that Mr Goodwin clearly foresaw as being likely. Even though death did not ensue, the offending has had serious and long-lasting effects for the victim. Notwithstanding Mr Goodwin’s relative youth it is also clear that he had been dealing in different forms of drugs in a reasonably significant way at the time the offending occurred. The drug offending led
4 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [175].
5 At [175].
to the assault on the victim because the victim decided to take advantage of the fact that he knew Mr Goodwin was engaged in drug dealing activity. This means that the Judge was confronted with extremely serious offending notwithstanding Mr Goodwin’s youth.
[15] I accept that another Judge may have provided a slightly greater discount to reflect mitigating factors but I consider a discount of 25 per cent to be within the available range having regard to the circumstances of this particular case. Further, having regard to the seriousness of Mr Goodwin’s offending I cannot say that an end sentence on all charges of three years nine months imprisonment was manifestly excessive
Result
[16]The appeal against sentence is dismissed.
Lang J
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