Graeme McRAY Nicol v The Queen
[2001] NZCA 66
•2 April 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA436/00 |
GRAEME MCRAY NICOL
V
THE QUEEN
| Hearing: | 27 March 2001 |
| Coram: | McGrath J Ellis J McGechan J |
| Appearances: | R M Lithgow for Appellant R B Squire QC for Respondent |
| Judgment: | 2 April 2001 |
| JUDGMENT OF THE COURT DELIVERED BY MCGECHAN J |
The Appeal
This is an appeal against sentences of 4½ years imprisonment on a charge of wounding with intent to cause grievous bodily harm in home invasion circumstances, 6 months for assault under s196 Crimes Act 1961 and 3 months for wilful damage, all sentences being concurrent. The primary target is the 4½ year lead sentence.
The Facts
There are three separate incidents (i) the wounding in the victim’s home on 4 June 2000 (ii) the assault on the same victim in and alongside a car at another address on 11 June 2000 (iii) wilful damage in a police cell some days later.
The wounding charge arose in this way. Appellant, who nursed a grievance over the victim not repaying money allegedly owed, went to the victim’s house during hours of darkness to obtain payment. Appellant had been smoking cannabis heavily, and was in an excited state. When the victim partially opened the door Appellant pushed it inwards with the consequence it flew open and the victim fell back. Appellant then hit the victim around the head with his fists and torch and kicked him. In the result the victim suffered a badly cut lip, later requiring 19 stitches, and a broken finger. The fracture was undisplaced and (contrary to hospital advice) was not plastered. The victim was shocked and bled copiously. Appellant forced the victim outside with a view to driving the victim away. The victim made his escape, and sought safety by calling the police.
The second incident, a week later, involved Appellant calling at an address where the victim was staying. He found the victim in a car outside. Appellant punched the victim through the window twice in the face. The victim still had stitches in the lip wound. Appellant forced the victim out of the car, adding a couple more blows to the head. Appellant then forced the victim to drive him to another address from which the victim made his escape, again finding safety and reporting the matter to the police.
A day or so later, as noted, Appellant caused minor damage to a police cell.
Victim Impact
There were no permanent physical effects, although undoubtedly there was pain, discomfort and shock at the time. There were more serious social effects. The victim was labelled a “nark”, which is not a helpful label to bear where he lived. He was forced to move, change his name, and lose contact with his family. He claims to have lost custody of his two young children as a result. There could have been other contributing causes to the latter.
Personal Circumstances
Appellant received a discouraging probation report. He is aged 31. He was assessed as at high risk of reoffending. He was noted as having entrenched negative attitudes towards prison programmes, for example aimed at reducing violence. He was seen as having a propensity for violence. He has a significant criminal history from 1988 onward, including a 1990 aggravated robbery and associated assault with intent to rob for which he was imprisoned for 2½ years. There have been a number of convictions for assault since, although the most serious (in 1999) carried imprisonment for only one month. There was nothing in the probation report which would engender confidence in relation to rehabilitation.
Notes on sentencing in the High Court
The Judge found himself guided, home invasion elements aside, by R v Hereora [1986] 2 NZLR 164. The Judge assessed the case as being one “well to the bottom of Hereora”, meaning to the bottom of the 3-5 year scale. That was refined to a starting point of 2½ to 3 years. Having regard to the second assault and the wilful damage charge, the Judge chose the higher starting point of 3 years.
The Judge dealt with the home invasion element under sections 17A(1) and if necessary 17A(3) by noting but distinguishing R v Kretzschmann (unreported) CA 113, 116/00, 1 June 2000. Kretzschmann was regarded as “a very different” case involving guns, a knife, and aggravated robbery as contrasted with “only the wounding” in the present case. It was “general guidance only”. The Judge added 18 months in respect of the home invasion element without further analysis.
The total resulting sentence was 4½ years on the wounding charge. Sentences of 6 months for the additional assault and 3 months for the wilful damage were imposed concurrently without further analysis.
The Judge then noted there “would be justification” for the 4½ year sentence given Appellant’s extensive criminal history and the need for protection of the public.
Appellant’s Submissions
Counsel for Appellant submitted the correct starting point before home invasion was 1-2 years (refined to a suggested 18 months), plus an addition for home invasion of not more than 6 months. The range, therefore, was put at 1½ to 2½ years.
Emphasis was laid upon the comparatively minor injuries involved, the relatively minor home invasion element, and a categorisation of the event as a “falling out between friends” generating “a state of fury which went too far”.
The Judge’s 2½ and latterly 3 year starting point, before home invasion considerations, was put as higher than the level adopted in a range of more serious cases. In particular the Court was referred to R v Hereora [1986] 2 NZLR 164; R v Nicholson (unreported) CA 490/96, 17 March 1997 (Heron J); R v Karaitiana (unreported) CA 247/93 (Casey J); R v Braid (unreported) CA 355/97, 12 May 1994 (Holland J); R v Lepupa (unreported) CA 129/97, 18 August 1997 (Gault J); R v Ulu (unreported) CA 373/96, 17 February 1997 (Eichelbaum CJ); R v Goodin & Culpan (unreported) CA 499 and 502/96; R v Lane & Lane (unreported) CA109/97 and CA 225/97, 17 July 1997 (Heron J); R v Roa (unreported) CA 257/93, 31 August 1995 (Henry J); R v Reece & Ors (unreported) CA 74-78/95 (Casey J); R v Wei Hau Li (unreported) CA 140/00, 28 June 2000 (Blanchard J); R v Maihi (unreported) CA 221/00 (Robertson J); R v Le (unreported) CA 208/00, 209/00, 14 September 2000 (Young J); R v Kretzschmann (unreported) CA 113, 116/00, 1 June 2000 (Thomas J).
Amongst the authorities cited counsel for both Appellant and Respondent, although for somewhat different reasons, acknowledged Reece as perhaps being the closest in its circumstances, although there was no suggestion its ultimate 9 month term could be appropriate.
Counsel submitted the 18 months imposed for the home invasion factor was too high in comparison to the 2 years imposed in the much more serious case of Kretzschmann.
Counsel submitted no identified allowance had been made for the plea of guilty, which as the Judge has noted, had shortened the trial.
Decision
We accept that the Judge’s approach to starting point, before the home invasion factor, was rather too high when rounded up to 3 years. The initial proposed starting point of 2½ years would not have been revisited, although in relation to comparable cases it would have been stern. However the rounding up by reference to the later assault, and the wilful damage, both of which as it happened received separate concurrent sentences in their own right, took matters rather too far.
We do not accept, as will be evident from the above, that the starting point must be placed as low as 18 months or even 2 years. This was a serious assault with the aggravating elements of attempted debt recovery, a severe beating, and the forced departure of the victim in an injured state. While there have not been lasting physical injuries, 19 stitches in a lip is not trivial, and the social consequences have been serious. The Appellant’s previous history and personal circumstances do not warrant leniency.
The cases cited, apart from the Hereora benchmark decision, do not in the end greatly assist. Reece, advanced as the most similar, involved charges under ss 189(2) and 193 carrying much lower maximum sentences, and involved appellants with satisfactory personal backgrounds. There is, if anything, a somewhat firming trend in relation to sentences for violence of this character, quite apart from home invasion considerations, but the comparisons are not highly persuasive. If anything the adjustment to 2½ years will reflect a closer alignment to such commonalties as may exist.
The assessment of an additional factor reflecting home invasion elements is not a mere arithmetical exercise. The legislative intention to punish and deter this particular class of cases is to be kept firmly in mind. Additional sentences are not to be nominal. On the other hand, circumstances will vary greatly and so must responses, and there is, as elsewhere, a need to keep some broad parity so far as practicable between like cases. Given that last, and the 2 year increment adopted in the much more serious case of Kretzschmann, we think the 18 month increment adopted by the Judge was somewhat disproportionate. The legislative purpose will be served and relativity better maintained by an increment of 12 months.
The Judge cross-checked his derived 4½ year sentence against Appellant’s previous “extensive” criminal background and the need for public protection. For reasons expressed, we think sentence at that level was higher than needed. Appellant’s offending, while indeed extensive, is not as serious in relation to violence as the general run of cases dealt with at that level. A term of 3½ years will serve the important need for public protection adequately.
Given those adjustments, the complaint as to absence of an explicitly calculated allowance for the pleas of guilty entered after the first day of trial becomes trivial. Any allowance, as the Judge recognised, would be small, and is more than taken up by those downward adjustments.
There was no argument addressed in relation to sentences on the other assault or the wilful damage charges, and there are no grounds to disturb those modest concurrent sentences.
Order
The appeal in respect of sentence on the wounding with intent to cause grievous bodily harm charge is allowed. The sentence of 4½ years imprisonment imposed on that charge is quashed and a sentence of 3½ years imposed in its place. Concurrent sentences on the other two charges stand.
Solicitors
Crown Solicitor’s Office, Wellington, for Respondent
0
0
0