Gotz v R
[2019] NZCA 99
•9 April 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA603/2018 [2019] NZCA 99 |
| BETWEEN | TUATAHI TE PARAU GOTZ |
| AND | THE QUEEN |
| Hearing: | 27 February 2019 |
Court: | French, Dobson and Brewer JJ |
Counsel: | R W Ord for Appellant |
Judgment: | 9 April 2019 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Gotz was found guilty by a jury on one charge of burglary,[1] and one charge of assault with intent to injure.[2] Judge D C Ruth sentenced him to three years and six months’ imprisonment on the burglary charge and six months concurrently on the assault with intent to injure charge.[3] Mr Gotz now appeals his sentence as being manifestly excessive.
[1]Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
[2]Section 193; maximum penalty three years’ imprisonment.
[3]R v Gotz [2018] NZDC 20256.
We must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on Mr Gotz such that a different sentence should be imposed.[4]
Background
[4]Criminal Procedure Act 2011, s 250(2).
Mr Gotz and the complainant occupied rooms in a residential complex known as the Franklyn Village. Something occurred which made Mr Gotz hostile to the complainant. Security video footage showed Mr Gotz go to the door of the complainant’s room at about 10:30 am, open the door and look in. The complainant was asleep. Mr Gotz closed the door and went away for a short time before returning. He went into the room and attacked the sleeping complainant. He struck the complainant a number of times, including to the head. The assault left visible injuries to the complainant’s face, the right-hand side of his head and the back of his head. However, they were not described as serious.
Judge Ruth took the charge of burglary as the lead charge. He adopted a starting point of three years’ imprisonment.[5] The Judge imposed an uplift of eight months’ imprisonment to take account of Mr Gotz’s criminal history and because the offending occurred while Mr Gotz was subject to release conditions. The Judge then reduced the starting point by two months to take account of the period of 22 weeks spent by Mr Gotz on electronically monitored bail.[6] The Judge refused to further reduce the sentence to take account of Mr Gotz’s mental health.[7]
The appeal
[5]R v Gotz, above n 3, at [22].
[6]At [23].
[7]At [20].
Mr Gotz contends the sentence is manifestly excessive because:
(a)The Judge adopted too high a starting point; and
(b)the Judge should have given a discount for Mr Gotz’s mental health issues.
The gravamen of the submission on starting point is this was not a burglary motivated by an intention to steal. Mr Gotz was angry with the complainant and entered his room to attack him. The attack consisted of a flurry of blows which left bruising, but which did not inflict serious injury. It is submitted the burglary charge artificially inflated the criminality of an incident which was essentially an assault.
Mr Ord for Mr Gotz analysed a number of cases, both in the High Court and in this Court, and submits:
·In this case the offender entered to assault. He is either guilty of assault with the aggravating feature of home invasion or he is guilty of burglary in order to assault, in which case it is hard to apply older precedents like Senior, with its sprees, repeats and first offender criteria.
·The appellant is not saying that the burglary charge cannot be laid. What is in issue is the burglary being the lead offence at sentencing when both the intention and substance of the harm was the assault.
Mr Ord’s submission on the mental health issue is that mental health reports from 2014 justify a discrete reduction of the starting point.
The Crown submits the starting point of three years’ imprisonment was available to the Judge given the aggravating features of the offending. The most significant aggravating feature is that the attack constituted a form of home invasion.[8] It is true the complainant occupied a room in a residential complex. This Court, however, in Pohutuhutu v R, confirmed that where a person rents a room in a house, invading that person’s room is no less serious than invading the house as a whole.[9] This reflects the “importance of recognising the sanctity of the space invaded and the effect such invasion has on the community as a whole”.[10]
[8]Sentencing Act 2002, s 9(1)(b).
[9]Pohutuhutu v R [2017] NZCA 501 at [64].
[10]At [63].
The Crown submits there was also an element of premeditation. Mr Gotz looked into the room and saw the complainant was asleep. He then left, thought about it, and returned to make his assault.
The vulnerability of the complainant is the third aggravating feature. He was asleep in his bed and unable to defend himself. Mr Gotz attacked a sleeping person, striking multiple blows to the complainant’s head.
Mr Marshall for the Crown referred to two decisions of this Court. The first, S (CA115/2013) v R,[11] involved the appellant entering a motel unit in which his estranged partner and her friend were staying. He assaulted both women, punching and kicking them, and dragged his partner from the unit. He fled when the occupier of a neighbouring unit intervened. The appellant was convicted at trial of burglary, assault with intent to injure, male assaults female and theft. The starting point adopted was three-and-a-half years’ imprisonment. This Court confirmed the sentence was “well within the available range”.[12]
[11]S (CA115/2013) v R [2014] NZCA 84.
[12]At [57].
In Samiu v R,[13] the appellant and a co-offender went to the complainant’s house with the purpose of assaulting him. They kicked open the door, rushed inside and assaulted the complainant with repeated kicks and punches to his head. The complainant was left with bruising and grazing but did not require medical attention. The appellant was charged with burglary and assault with intent to injure. This Court held the appropriate starting point was three years’ imprisonment.[14]
[13]Samiu v R [2007] NZCA 419.
[14]At [12].
As to a discount for mental health issues, the Judge had before him two reports from psychiatrists, although he mentioned only one. The first report, from Dr Richard Tranter, was written in February 2014. Dr Tranter considered there was clear evidence Mr Gotz had a borderline intellectual disability as well as borderline personality traits, antisocial personality traits and a lack of empathy towards others. Dr Tranter concluded Mr Gotz posed a particular risk of further violence towards others, “related to his poor level of emotional regulation and poor interpersonal skills”.
Dr Huw Thomas assessed Mr Gotz in September 2014. He considered Mr Gotz displayed antisocial personality traits, but he did not have any symptoms of mental illness and did not require psychiatric treatment.
Mr Marshall submits these reports do not establish sufficient connection with the offending to justify a reduction in the starting point.
Analysis
In our view, contrary to Mr Ord’s submission, it was appropriate to charge Mr Gotz with burglary as well as with assault with intent to injure. The two charges properly address the criminality of Mr Gotz’s offending which was to unlawfully enter the complainant’s private living environment and then attack him while he was asleep in his own bed. The burglary charge does not “ratchet up” the sentence for the assault. It addresses a distinct and serious component of the offending.
We agree with Mr Marshall that Mr Gotz’s offending is broadly similar to that in S (CA115/2013) v R and Samiu v R. Both of those cases also involved brief home invasion burglaries for the purpose of attacking an occupant or occupants and with the complainants suffering no serious physical injuries. The culpability of the burglary is to be assessed against the violation of the sanctity of the complainant’s home for the purpose of subjecting the complainant to a violent attack. The seriousness of the assault with intent to injure is to be assessed by reference to the premeditation of the attack, the vulnerability of the complainant, the targeting of the head and the extent of the injuries suffered.
We do not find the Judge made an error in setting a starting point of three years’ imprisonment.
Likewise, we do not find error in the Judge refusing to discount the starting point by reason of Mr Gotz’s mental health difficulties. That he has antisocial personality traits is apparent from the reports of Dr Tranter and Dr Thomas. That is not uncommon with violent offenders. However, mental illness or mental impairment is generally relevant to sentencing by way of mitigation where:[15]
(a)it is causative of the offending;[16] or
(b)it may render less appropriate or more subjectively punitive a sentence of imprisonment.[17]
[15]E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68].
[16]Sentencing Act, ss 8(a) and 9(2)(e).
[17]Section 8(h).
This Court, in E (CA689/2010) v R, commented that mental illness or mental impairment may affect the risk of reoffending. This in turn may direct attention to issues of personal deterrence or public protection.[18] We note that the reports, considered against Mr Gotz’s record of criminal violence, could have been relied on by the Judge in this way.
[18]E (CA689/2010) v R, above n 15, at [69].
There is no indication in the two mental health reports (which significantly predated the offending) that Mr Gotz’s mental state was causatively linked to the particular offending or that imprisonment is likely to be especially punitive for him.
We note Mr Gotz does not criticise the Judge’s increase in the starting point by eight months to take account of his criminal history and the fact he offended while subject to release conditions. That is appropriate. The uplift represents 22 per cent of the starting point and given Mr Gotz’s extensive relevant criminal history it is clearly within the available range.[19]
[19]See Drewett v R [2007] NZCA 48; Lavea v R [2014] NZCA 192; and Waterworth v R [2012] NZCA 58.
Finally, Mr Gotz was fortunate to have his term of imprisonment reduced by two months to account for the five months he spent on electronically monitored bail. Mr Gotz breached his conditions of bail four times, culminating in him cutting off his monitoring bracelet and absconding for around 10 days. It was open to the Judge not to accord any discount.
Result
Taking all circumstances into account, we are satisfied the sentence of three years six months’ imprisonment was within the range available to the Judge. There is no error. The appeal is dismissed.
Solicitors:
Rob Ord, Nelson for Appellant
Crown Law, Wellington for Respondent
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