Graham v Police
[2014] NZHC 2112
•1 September 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-36 [2014] NZHC 2112
BETWEEN GABRIEL JOHN GRAHAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 September 2014 Counsel:
M McGhie for Appellant
J Rhodes for RespondentJudgment:
1 September 2014
ORALJUDGMENT OF KATZ J [Sentence Appeal]
Solicitors: M McGhie, Whakatane
Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
GRAHAM v NEW ZEALAND POLICE [2014] NZHC 2112 [1 September 2014]
Introduction
[1] At about midnight on 10 November 2013, Gabriel Graham was at a bar in Opotiki. An altercation erupted within the bar which involved Mr Graham’s cousin and the victim. Mr Graham walked up to the victim and punched him in the face. As a result of the blow, the victim lost four of his teeth and received a large laceration to his top lip. The victim has had dental treatment for the four missing teeth and was required to have two more teeth removed. Mr Graham said he hit the victim because he thought the victim was going to assault his cousin.
[2] Mr Graham pleaded guilty to a charge of assault with intent to injure, under s193 of the Crimes Act 1961. The maximum penalty is three years’ imprisonment. Mr Graham was sentenced in the District Court at Opotiki to two years’ imprisonment. He appeals that sentence on the basis that it is manifestly excessive. He says in particular that a two year term of imprisonment is unjust for a “one punch” assault and that the starting point adopted by the sentencing Judge was too high. Further, he says that a discount should have been allowed for his remorse.
District Court Decision
[3] The sentencing Judge canvassed the background facts and identified the aggravating factors of the offending as the extent of the injuries to the victim, the fact that the blow was to the face and the physical, emotional and financial impact the offending had on the victim. Further, the offending occurred while Mr Graham was subject to release conditions.
[4] In relation to personal aggravating factors, the Judge listed Mr Graham’s “appalling list of convictions for violence” and drew the conclusion that Mr Graham was “too willing” to resort to violence.1 In terms of personal mitigating factors, the Judge noted the guilty plea, the apology to the family of the victim and Mr Graham’s employment.
[5] The Judge noted that community based sentences had proved to be an ineffective response to Mr Graham’s offending previously. He acknowledged that the assault constituted only one blow. Nonetheless, it was a significant blow to the head.
[6] A starting point of two years’ imprisonment was adopted. Taking into account Mr Graham’s previous convictions, that starting point was uplifted by six months. A 20 per cent guilty plea discount was awarded, as the Judge considered that it was a belated guilty plea to a charge that was amended. This brought the sentence back down to two years.
[7] In light of Mr Graham’s previous convictions for violence, the Judge took the view that a sentence of home detention would not achieve the relevant purposes and principles of sentencing. Further, reparation for emotional harm of $1,500 was ordered to be paid to the victim.
Mr Graham’s submissions on appeal
[8] Mr Graham submitted that a starting point of around 15 to 18 months’ imprisonment would be appropriate. He accepted that the serious injury inflicted and the fact that the attack was to the victim’s head were aggravating features.2
[9] Mr Graham had initially been charged with assault with a blunt instrument under s 202C of the Crimes Act 1961, a more serious offence which carries a maximum sentence of five years’ imprisonment. A fresh summary of facts was not, however, produced after the charge was reduced to assault with intent to injure. Rather, the existing summary of facts was altered by pen. In these circumstances Mr Graham expressed some concern that the Judge may have been influenced by a statement in the original summary of facts (subsequently crossed out in pen) that stated that Mr Graham was holding a glass bottle in his hand at the time of the assault. If so, that may have been seen as another aggravating factor.
[10] Mr Graham noted that in the Court of Appeal case of R v Nuku,3 the Court said that the seriousness of the injury can be taken into account as an aggravating factor, but care should be taken where there is disparity between the extent of the injury and the level of violence.4 Although Nuku provides bands for offences that carry maximum penalties of five to seven years, Mr Graham submitted that the principles of the case apply and that the offending in question would arguably fall between band one and band two in Nuku.
[11] Mr Graham also referred to the recent sentencing decision R v McFarland, a single punch manslaughter case.5 In that case, Andrews J referred to Court of Appeal judgments where appropriate starting points in single punch manslaughter cases might attract around three to four years’ imprisonment.
[12] Regarding the guilty plea, Mr Graham says the full 25 per cent discount was warranted as a guilty plea would have been entered sooner if the charge had been amended earlier. Further, Mr Graham has exhibited significant remorse by attempting to initiate a restorative justice conference and by offering to pay reparation. In total, Mr Graham submits that a one third discount should be given for the guilty plea, remorse and the offer of reparation.
Respondent’s submissions
[13] Mr Rhodes, on behalf of the Crown, acknowledged that the starting point was at the high end of the available range. He did not accept, however, that it was outside of the available range. Overall, the Crown submitted that the sentence of the District Court Judge was correct. It would be inappropriate to apply Nuku or Taueki directly, but the Crown accepted that the aggravating features identified in each of those cases may nevertheless provide some useful guidance. It submitted that the following aggravating factors apply in this case:
(a) seriousness of injury;
(b) attacking the head;
3 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
4 At [36].
5 R v McFarland [2014] NZHC 1106.
(c) long-term impact on the victim; and
(d) offending while subject to release conditions
[14] Taking into account these factors, the Crown submitted that the two year starting point adopted by the Judge was within range, particularly given that it was a global starting point that incorporated the uplift for the offending occurring while Mr Graham was subject to release conditions. That factor alone, the Crown submitted, could have warranted an uplift of between four and six months’ imprisonment.
[15] The Crown further submitted that because the injury and the level of violence are similar, there should be no fear, as raised by the Court of Appeal in Nuku about treating the offending more seriously than it deserves when there was no intention to cause grievous bodily harm. There was no disjunct between the seriousness of the injury and what Mr Graham would have foreseen or intended. It further submitted that the cases cited by Mr Graham differed from this case in various respects. Further, it was arguable that the starting point adopted in some of the cases referred to was in fact too low rather than the starting point in this case being too high.
[16] Finally the Crown submitted that no separate remorse discount should be given because there was no exceptional remorse. In oral submissions, however, Mr Rhodes acknowledged that the Court may well take a different view and conclude that some discount is appropriate, given the reparation that was offered and awarded.
Appeal against sentence
Approach to appeal
[17] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other
case, the Court must dismiss the appeal.6
6 Criminal Procedure Act 2011, s 250(3).
[18] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.7 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.8
[19] The approach taken under the former Summary Proceedings Act was set out in Yorston v Police where the Court said:9
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[20] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached. I will therefore undertake the sentencing exercise afresh and compare the result with the sentence imposed by the Judge, to determine whether the sentence imposed was within range.
Setting a starting point
[21] Mr Graham relied on the case of R v Nuku as providing some sentencing guidance for this type of offending. The Court of Appeal in Nuku provided bands applicable to offending under ss 189(2), 188(2) and 191(2) of the Crimes Act. Those are more serious offences than the charge faced by Mr Graham in this case. While each offence involves intent to injure, the Court of Appeal in Nuku was considering offences with maximum penalties of five or seven years’ imprisonment.
The charge in this case has a lesser maximum penalty of three years.
7 Tutakangahau v R [2014] NZCA 279 at [26]-[27].
8 At [33], [35].
9 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].
[22] The Court said in Nuku that:
[37] … We see this judgment as providing guidance on how Taueki can be adapted to apply to the lesser charges, rather than being a guideline judgment in its own right.
[38] The following bands apply:
(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing 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 can be appropriate.
(b) Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[23] I consider that, while some assistance can be gleaned from Nuku, the usefulness of that case is somewhat limited in the present context as it was directed to more serious offending.
Other relevant case law
[24] In Kohu v Police,10 the appellant unsuccessfully appealed against a sentence of one year imprisonment. The lead offence was assault with intent to injure against the appellant’s mother-in-law. There were two other charges of common assault against the appellant’s partner.
[25] The circumstances surrounding the lead offence were that the appellant punched the victim above the eye causing her to fall onto a bed. The appellant then shut the bedroom door and punched the appellant again to the nose and mouth. Simon France J saw imprisonment to be inevitable and the starting point of
12 months’ imprisonment to be within range.
10 Kohu v Police [2013] NZHC 944.
[26] In Tiplady-Koroheke v R,11 the appellant successfully appealed against a sentence of two years’ imprisonment for two charges of assault with intent to injure and one charge of common assault. The appellant in that case and five other men started an unprovoked street fight with another group of men. The appellant personally assaulted three separate victims. For one particular victim, the appellant punched him in the face, knocking him to the ground and then stomped on his upper body. The other two victims were not knocked to the ground from a single punch, but once on the ground, the appellant also stomped on their bodies. The injuries suffered were described to be “not serious” although the violence of the attack was
serious.12
[27] The aggravating factors included that there were attacks to the head, the attacks continued after the victims were on the ground and one of the attacks was when a victim was retreating. The sentencing Judge adopted a starting point of two years’ imprisonment. The Court of Appeal was satisfied that the starting point was appropriate. The appeal was successful in that the uplift of six months’ imprisonment for previous offending was reduced by three months.
[28] The Court in Tiplady-Koroheke v R referred to the decision in Bennett v R.13
The appellant in that case unsuccessfully appealed against his sentence for two charges of injuring with intent to injure and one of assault with intent to injure. The offending occurred as a party was breaking up. The appellant punched the victim in the head and the appellant’s four associates joined in the assault. Once the victim was on the ground, he was repeatedly kicked in the head and stomach. He suffered a broken eye socket and severe bruising. The second and third victims were also
punched to the ground.
11 Tiplady-Koroheke v R [2012] NZCA 477.
12 At [14].
13 Bennett v R [2012] NZCA 173.
[29] The sentencing Judge adopted a starting point of two years’ imprisonment for the lead offence against the first victim. This was uplifted by nine months to recognise the totality of the offending. The Court of Appeal said:14
Although the uplift might perhaps have been towards the top of the available range for that separate offending, we consider the chosen starting point for the offending against Mr Blair to be, if anything, generous.
[30] The end sentence of two years and three months’ imprisonment was held to
be comfortably within the available range.
[31] In R v Gwatkin,15 the appellant successfully appealed against a sentence of two years and six months’ imprisonment for assault with intent to injure and threatening to kill. The assault charge, the offending occurred as the appellant and his associates approached the victim in his car, unprovoked, and punched the victim once in the jaw with a closed fist. The victim fell to the ground and the group punched and kicked the victim while he was on the ground. The victim suffered cuts and bruising to various parts of his body. The sentencing Judge adopted a starting point of two years’ imprisonment for the assault charge and considered it at the upper end of seriousness of this offence.
[32] The Court of Appeal considered that the end cumulative sentence was excessive in light of the totality principle. In particular, the Court considered the youth of the appellant, his only prior conviction for assault and parity with a co-offender and reduced the sentence down to two years.
[33] In Carson v R,16 the appellant unsuccessfully appealed against a sentence for one charge of injuring with intent to injure, four charges of assault with intent to injure, five charges of male assaults female, one charge of threatening to kill and one charge of threatening acts. The charge of injuring involved punches to the upper body. The charges of assault with intent to injure involved punches, strangulation
with a scarf, pushing and kicking with steel capped boots. The offending all took
14 At [21].
15 R v Gwatkin CA 228/02, 29 October 2002.
16 Carson v R HC Rotorua CRI-2011-463-23, 8 June 2011.
place against the appellant’s domestic partner resulting in bruising, laceration, and
extended pain.
[34] Although the sentencing Judge did not adopt a starting point for the lead offence of injuring with intent to injure, Woodhouse J indicated that a starting point of two years’ imprisonment, with an uplift to three years for the other offences, would easily be justified.
Discussion
[35] The relevant aggravating factors in this case are clearly the serious injury to the victim and the fact that the attack was to the head. If the offending were to be categorised in one of the Nuku bands, I consider that the offending would fall within the middle of band two. Whilst the injury suffered by the victim is indicative of the violence and force of the punch involved, I consider that the single punch nature of the offending is relevant to the starting point. As recognised in Taueki, whether
violent conduct is prolonged is a relevant aggravating factor.17
[36] Benchmarking Mr Graham’s offending against that involved in the various cases I have referred to above supports Mr Graham’s submission that the starting point of two years’ imprisonment was excessive. For example, in Kohu, a starting point of 12 months’ was seen as appropriate in an unprovoked punch to the head upon an elderly victim. The injuries caused in Kohu were not, however, as severe as in this case. In both Tiplady-Koroheke v R and Bennett v R, the offending involved three victims and a prolonged attack. In Tiplady-Koroheke v R, a starting point of two years was adopted for what seems to be the totality of the offending. In Carson, a starting point of two years was adopted for the lead offence of injuring with intent to injure which involved multiple punches to a female. The very short duration of the assault in this case, involving a single punch, in my view warrants a lower starting point.
[37] The seriousness of the victim’s injuries cannot be overlooked. Nevertheless, I must take into account the cases I have referred to, including some which are
17 Taueki, above n 2, at [31](a)].
clearly more serious than this case. Further, this was a single punch assault. Taking those factors into account, in my view a starting point of 18 months’ imprisonment would be appropriate.
Adjusting the starting point
[38] I consider that a six month uplift is appropriate to recognise Mr Graham’s previous violent offending and also the fact that the current offending occurred while Mr Graham was subject to release conditions. Mr Graham himself acknowledged that an uplift of four to six months is appropriate. In this case, whilst I recognise the importance of proportionality between the starting point and any uplift for prior convictions,18 a six months uplift recognises Mr Graham’s serious history of violent offending which has resulted in nine previous convictions. That brings the sentence to 24 months.
[39] Mr Graham submits that a discount should be allowed for his remorse and offer to pay reparation. In my view some discount is justified. I propose to give a five per cent discount to recognise that the offer to pay reparation is a tangible indication of Mr Graham’s remorse in this case.
[40] I next consider the appropriate discount for the guilty plea. Mr Graham acknowledges that it was late but essentially argues that it was given at the “first reasonable opportunity” as that was when the charge was reduced. The Supreme Court in Hessell v R said:19
Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
18 Tiplady-Koroheke, above n 11, at [24].
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
[41] Mr Graham has failed to persuade me that the guilty plea discount of 20 per cent allowed by the sentencing Judge was not an appropriate recognition of Mr Graham’s guilty plea in all the circumstances, including that the charges he faced were reduced.
[42] This therefore brings the end sentence to 18 months’ imprisonment. The difference between that and the sentence of two years’ imprisonment that was imposed in the District Court is such that the sentence imposed can be seen to be manifestly excessive.
Community-based sentence
[43] As the end sentence is a short term of imprisonment, this Court is able to consider home detention as an alternative to imprisonment.
[44] Counsel for Mr Graham did not advocate for a sentence of home detention and this concession was appropriate in my view. Mr Graham has convictions for breaches of home detention conditions, intensive supervision conditions, Court release conditions and failure to answer bail. In the pre-sentence report, the report writer noted that Mr Graham has also committed 12 offences while on bail. Given Mr Graham’s history of failing to obey Court orders, I entirely agree with the sentencing Judge that home detention is not a suitable option in Mr Graham’s case.
Result
[45] The appeal is successful to the extent that the sentence of two years’ imprisonment imposed in the District Court is quashed and replaced with a sentence of 18 months’ imprisonment. The standard and special conditions of release imposed by the District Court Judge at [18] of his judgment remain in force, as does his order
for reparation.
Katz J
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