Greathead v The Queen

[2005] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/05

THE QUEEN

v

DANIEL JEFFREY GREATHEAD

Hearing:26 May 2005

Court:William Young, Panckhurst and Doogue JJ

Counsel:H Roose for Appellant

M N Zarifeh and M T Bradley for Crown

Judgment:27 May 2005 

JUDGMENT OF THE COURT

THE SENTENCE OF FIVE AND A HALF YEARS FOR AGGRAVATED WOUNDING IS QUASHED, AND A SENTENCE OF FOUR YEARS SUBSTITUTED.  THE MINIMUM PERIOD OF IMPRISONMENT OF THREE YEARS IS ALSO QUASHED, AND REPLACED BY A MINIMUM PERIOD OF TWO AND A HALF YEARS.

____________________________________________________________________

REASONS

(Given by Panckhurst J)

INTRODUCTION

[1]       In the District Court at Nelson the appellant was sentenced to five years six months imprisonment, with a minimum period of imprisonment of three years, upon a charge of aggravated wounding.  He appeals against that sentence on the basis that Judge McKegg adopted a starting-point which was too high, made an inadequate deduction for an early guilty plea and remorse, and, in consequence, also arrived at a minimum term which was clearly excessive.

The background

[2]       At the relevant time the appellant lived alone in a bach on Tata Beach, near Takaka.  Six girls aged 15 and 16 years, after finishing school examinations, went to holiday accommodation also located at the beach.  On the evening of 24 November they socialised on a patio to their accommodation.  The appellant could hear the girls from his address and drove there.  He endeavoured to engage the group in conversation but was asked to leave.

[3]       Some time later he returned to the address on foot.  He entered the house via a high rear window which was unlatched.  Once inside he hid beneath an unoccupied bunk in one of the bedrooms.

[4]       Later the six girls went to bed leaving the property in darkness.  The appellant entered another of the bedrooms which was occupied by the lone complainant.  She woke aware someone was in the room.  The appellant attacked her.  He gripped her throat with both hands.  Strangulation resulted.  This continued, according to the appellant’s subsequent account, for between one to two minutes.  The complainant twice blacked out, but then managed to bite his hand, causing the appellant to momentarily release his hold.  A struggle followed during which the complainant freed herself and screamed for help.

[5]       At this point the appellant left the house via the same window that he had entered.

[6]       When spoken to later by the police the appellant admitted his involvement, expressed remorse for his actions and said that he panicked and attacked the victim in order to quieten her.  With regard to his motivation the appellant initially said he entered the property in order to steal, but later commented that he was unsure whether his intention was theft or sexual in nature.  Police inquiries indicated that the subject address was surrounded by numerous unoccupied holiday homes.

[7]       As a result of the attack the victim suffered a severe nose bleed, bruising and swelling to the neck and throat area, and haemorrhaging to the eyeballs.  The latter symptom is one which commonly accompanies manual strangulation.

The plea and sentencing

[8]       Mr Greathead first appeared in the District Court at Nelson a little over a day later, on 26 November 2004.  He entered pleas of guilty on request to the aggravated wounding and burglary charges. 

[9]       Judge McKegg sentenced the appellant on 20 January 2005.  In the course of his sentencing remarks the Judge observed:

[2]     You are 30 years of age and you bring to the sentencing a life blighted by substance abuse.  While that substance abuse provides an explanation, it does not provide an excuse for your actions.

After reference to the facts the Judge continued:

[9]     I have read (the complainant’s) victim impact statement and I assume that you have also.  She describes the event, quite correctly one would suppose, as a sickening memory that will last her a lifetime.  She describes various effects that this evening has had upon her and while I do not deal with it in full in this sentencing, I acknowledge that this event had an enormous effect upon her generally.

[10]   I have read your probation report and the Probation Officer is correct when he says that drug and alcohol abuse obviously played a significant part in the events.  As to whether what you had planned by entering that house was a burglary or not, there must be some considerable doubt.  I suspect from the nature of the facts that it was not just a burglary that you had in mind.

[10]     In light of counsel’s arguments, including submissions that the offending exhibited planning and determination in it’s execution on the one hand, and that the appellant was entirely remorseful and did not have a lengthy record on the other, the Judge concluded that a starting-point of seven years imprisonment was justified.  He then made an allowance of 18 months for the very early guilty plea and imposed a sentence of five years six months imprisonment upon the aggravated wounding.  The burglary attracted a concurrent term of two years imprisonment.

[11]     Attention was then turned to s 86 of the Sentencing Act 2002, whether a minimum period of imprisonment was required.  After reference to the need to hold offenders accountable, to the need for denunciation and deterrence, and to the issue of protection of the community, the Judge identified this as a serious crime involving invasion of the sanctity of the home which well justified a minimum term.  This was fixed at three years imprisonment.

Grounds of appeal

[12]     Mr Roose challenged the sentencing response on three fronts.  He argued that the Judge erred in fixing a starting-point of seven years imprisonment for the aggravated wounding.  Second, counsel submitted that the reduction of 18 months (about 18%) was markedly inadequate for a plea which was entered less than 48 hours after the offences were committed and which was accompanied by genuine remorse.  Finally, while not contending that the imposition of a minimum period of imprisonment was inappropriate, Mr Roose argued that reflective of the excessive sentence arrived at (on account of the earlier two factors), the minimum term of three years was likewise clearly excessive.

[13]     Mr Zarifeh with reference to the categories referred to in R v Hereora [1986] 2 NZLR 164 (CA), submitted that although the strangulation may have been an impulsive reaction to the particular circumstances, the offending generally was characterised by aggravating features which warranted the case being positioned in the middle category, where sentences between five to eight years are recognised as appropriate. In this regard counsel referred to the premeditation involved, the invasion of a holiday home, the extreme violence employed and the considerable and ongoing harm to the victim. Hence, it was said, a seven year starting-point was not beyond the available range.

[14]     Mr Zarifeh acknowledged that the 18 month reduction for the early guilty plea was “not overly generous”, but submitted that in the end result both the effective sentence and the minimum period of imprisonment were within range, albeit they gave rise to a stern sentencing response.

Discussion

[15]     Before we turn to the grounds of appeal it is necessary to refer to the appellant’s personal circumstances.  He is aged 30 years.  He lived and worked in Australia for about ten years, returning to New Zealand in 2003.  While overseas he developed a severe drug and alcohol habit, for which he sought treatment subsequent to his return to New Zealand.  After completing a residential treatment programme Mr Greathead moved to the Takaka area.  On the day of the offence, however, he consumed a considerable quantity of alcohol and a “herbal high”.

[16]     With reference to what motivated the offending the pre-sentence report included this:

He said he did not know what got into him, because he was not normally a violent person, and why he simply did not run away when he was discovered is a mystery, in the first place.  Furthermore, Daniel Greathead said, he had a job, a place to live and why he decided to commit a burglary was still a puzzle to him, and why he resorted to violence against the victim was an even bigger puzzle.

These remarks perhaps find support in the appellant’s criminal record.  His ten previous convictions were all entered in Australia and were essentially drug or dishonesty related.  Fines and community work were imposed.  None of the offences involved violence.

[17]     Another case to which counsel referred was R v McLean [1999] 2 NZLR 263 (CA). This case is valuable to the extent that the head sentence was one imposed in relation to aggravated wounding, being likewise a case of wounding to avoid detection in the course of commission of a house burglary. However, the case is dissimilar to the extent that Mr McLean had a significant previous record, was subject to a suspended sentence at the relevant time and appeared for sentence in relation to other unrelated offending. Nonetheless, there are sufficient similarities in relation to the major offence of aggravated wounding, as to render the case of assistance. When disturbed Mr McLean subjected the householder to a vicious attack in which she suffered significant facial injuries. Before leaving the house he stole items.

[18]     At first instance a sentence of nine years imprisonment was imposed on the aggravated wounding charge.  This Court, after reference to Hereora and other decisions said at [12]:

Justifiable alarm has been sounded at the advent of violence by intruders within the home.  In sentencing such offenders, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person’s home is to be treated as an aggravating factor calling for a higher sentence.  Conduct of this kind affects the sense of security of the whole community …  This Court would again emphasise that violence committed in a private house will not be tolerated and that violent intruders can expect to receive a severe sentence.

Nonetheless the nine year sentence imposed, from a 12 year starting-point, was overturned and a sentence of seven years imprisonment substituted. 

[19]     Even accepting the need for a severe sentence in the present case, we are satisfied that a starting-point of seven years imprisonment was not justified.  Here the aggravating features were confined to those attendant on the crime itself.  The appellant’s past record did not justify an increase in the starting-point which was otherwise appropriate.  We conclude that a starting-point of six years imprisonment is as much as is required for this offence and this offender.

[20]     We are also satisfied that the 18 months allowance made for the guilty plea and remorse was inadequate.  The entry of pleas of guilty to such serious charges on first appearance is rare.  In this case the pleas represented a progression from the admissions made by Mr Greathead when he was first interviewed by the police.  Thereby the victim knew from a very early stage that her assailant had not only been apprehended, but had accepted responsibility and that the need for a trial was obviated.

[21]     In addition there was clear evidence of genuine remorse on the appellant’s part.  His response when first interviewed, his pleas and his expressions of regret to the pre-sentence report writer, and others, confirmed as much.

[22]     In these circumstances we are well satisfied that a one-third reduction from the revised starting-point of six years is justified.  This results in a lead sentence for the aggravated wounding of four years imprisonment.

[23]     We agree with the conclusion reached by Judge McKegg in relation to the need for a minimum period of imprisonment.  However, in light of the conclusions we have reached as to the starting-point, and the appropriate reduction from it, some revision of the minimum term is also required.  We conclude that the appropriate term is two years six months.

Result

[24]     The sentence of five and a half years for aggravated wounding is quashed, and a sentence of four years substituted.  The minimum period of imprisonment of three years is also quashed, and replaced by a minimum period of two and a half years.

Solicitors:
Crown Solicitor, Christchurch