Green v Police

[2017] NZHC 2378

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000034 [2017] NZHC 2378

BETWEEN

DARRYL CRAIG GREEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 September 2017
Appearances:	A Dawson for the Appellant R D Smith for the Crown
Judgment:	29 September 2017

JUDGMENT OF NATION J

[1]      The appellant, Mr Darryl Green, was sentenced to two  years one month imprisonment after pleading guilty to charges of injuring with intent to injure, assaulting a police officer and resisting arrest.1   He appealed that sentence, arguing it was manifestly excessive.

The offending

[2]      Mr Green was visiting his brother who resided with the victim in shared accommodation.  Mr Green did not know the victim before the visit.  He had been drinking excessively throughout the day.  Without warning or provocation, Mr Green came up behind the victim, who was in the kitchen preparing a meal, and attacked

him with three blows to his back and the rear of his head.  When the victim turned

1      Police v Green [2017] NZDC 14080.

around, Mr Green punched him again.  With clenched fists, Mr Green punched the victim five more times in the face, and the victim fell to the ground.

[3]      Mr Green stood over the victim and verbally abused him as he tried to crawl out  of  the  kitchen  and  the  house.    Shortly after  he  managed  to  escape,  Police attended the address, where Mr Green had remained.  Mr Green verbally abused the Police and threatened violence.  As he was being placed in the holding cell, he thrust his leg backwards towards an officer, narrowly missing his leg.   Mr Green then refused to be searched pursuant to arrest.   He thrust his knee into the thigh of the officer attempting to carry out the search and had to be restrained by four officers.

[4]      The victim had to have multiple stitches in his mouth, his face was bruised and swollen and he subsequently suffered from headaches.  No officers were hurt.  In explanation, Mr Green said the victim had been stealing his brother’s food and deserved to be punched in the mouth.

District Court decision

[5]      Judge Phillips, after recalling the facts, noted Mr Green’s history of repeated driving offences, breaches of protection orders  and breaches of supervision and release conditions.   He noted the pre-sentence report that assessed Mr Green at a high risk of reoffending as a result of his lack of remorse and history of non- compliance with court orders.  He noted the need to ensure consistency in sentencing as well as the need to hold the appellant accountable for what he described as an unprovoked attack on a “totally vulnerable person.”

[6]      The Judge assessed the violence as at the higher end of the scale, falling on the cusp of bands 2 and 3 in the Court of Appeal’s guidance in Nuku v R.2  The injury level the Judge accepted was only moderate, but “the attack to the head” and the “vulnerability” of the victim were assessed as high.  His Honour took a starting point of two years three months, which he uplifted by three months for the other two charges.   He then added a further four months for “prior offending and overall

attitude” before deducting 25 per cent for early guilty plea.

2      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

Jurisdiction and approach to appeal

[7]      The appellant appeals as of right.3   This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.4   If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge.   The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[8]      It is not enough that the Judge made an error in his or her reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.5

Submissions

Appellant

[9]      First,  the  appellant  through  his  counsel  Mr  Dawson  submitted  that  the starting point adopted by the Judge was too high.  Mr Dawson said, comparative to other cases, the level of injury in this case was low: there were no broken bones, brain injuries or other serious injuries.   For comparison, he cited Pokaia v Police, where the offender and an accomplice shoved their victim against a wall, punched him in the head and body several times and then stomped on his head and body once

he fell to the ground.6  A two year starting point was not disturbed on appeal, but the

High Court disagreed that on those facts ‘extreme violence’ as an aggravating factor

in terms of Taueki and Nuku was made out.7

[10]     Mr Dawson also argued that the Judge’s finding, that vulnerability was a serious aggravating feature, was in error.  Although he accepted there was a degree

3      Criminal Procedure Act 2011, s 244.

4      Criminal Procedure Act, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Pokaia v Police [2015] NZHC 1718.

7      Nuku v R, above n 2; R v Taueki [2005] 3 NZLR 372 (CA). The Nuku bands are categorized by reference to the number of aggravating features present listed in Taueki at [31].

of vulnerability by virtue of the fact the victim was attacked from behind, he submitted this was not sufficient for it to be counted as a Taueki/Nuku aggravating factor.   He submitted that,  overall, there was here “one moderately aggravating feature” – the attack to the head – and “two lower end aggravating features” – the vulnerability of the victim and the level of injury.   This, he submitted, placed the offending in the lower end of band two, justifying a starting point of around 18 months.

[11]     The second challenge to the decision was that the four month uplift for “prior offending and overall attitude” was in error.  Mr Dawson submitted that “attitude” cannot  legitimately  give  rise  to  an  uplift:  lack  of  remorse  is  an  absence  of  a mitigating factor and not an aggravating factor.  Additionally, Mr Dawson noted that Mr Green’s only prior violence convictions were one for common assault in 2011, for which he was sentenced to seven days’ imprisonment, and one for male assaults female in 2006, for which he received 60 hours’ community work.  The breach of protection order convictions, which the District Court Judge said “intimate a level of violence”, could not properly be described as violence convictions and should not have been taken into account.

[12]     In response to submission from the Crown, Mr Dawson argued the fact the offending occurred within the victim’s home should not have been treated as an aggravating factor.   Mr Green was a visitor in the house.   This offending did not occur in the context of a home invasion, as had been referred to as an aggravating factor in Taueki.

[13]     Mr Dawson submitted the appropriate overall sentence should have been 16 months’ imprisonment.

Respondent

[14]     For the respondent, Mr Smith submitted the Judge correctly identified the aggravating factors from Nuku/Taueki and gave them the appropriate weight.   He said the Court of Appeal in Graham v R made it clear that a victim who is subject to

a surprise attack is a vulnerable victim.8     He also argued that the fact Mr Green attacked the victim in the victim’s own home was also a significant aggravating feature in itself.

[15]    Mr Smith submitted the four month uplift for previous convictions was appropriate.  He noted that the Judge did not give a discrete uplift for the fact the offending occurred whilst subject to an order to come up if called upon in respect of the protection order breaches.   Mr Smith submitted that, on that basis, even if the Court considered four months was excessive for the previous offending, the uplift was appropriate taking into account that further factor.

Analysis

Starting point

[16]     The Court of Appeal’s guidance in R v Nuku set out the following three sentencing bands for this kind of offending:9

(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.

8      Graham v R [2011] NZCA 131 at [14].

9 At [38].

[17]     The bands must be read in conjunction with the Court of Appeal’s further comments that sentencing is an evaluative and not a formulaic exercise, and that it is not only the number of aggravating factors but their seriousness which informs the evaluative exercise.10

[18]     Here,  there can  be no  dispute that  the attack  to  the head  was  a serious aggravating feature of the offending.   Mr Green struck a number of blows to the head, and the injuries sustained were injuries to the head.   The Judge was also correct to identify that the vulnerability of the victim was a serious aggravating feature.  Graham v R is authority that one way in which a victim can be vulnerable is in being taken by surprise in an attack.  Here, the victim was attacked from behind and had no opportunity to gather himself or defend himself.  The blows kept coming until he was on the floor.

[19]     In addition, there were a number of other aggravating features, albeit at a lower level of seriousness.  While the injuries were not life-threatening, they were not minor and have had ongoing effects on the victim.  He gets headaches and has had to have stitches in his mouth.  The level of violence, too, cannot be said to be minor.  There were repeated blows to the head and back – the level of violence could quite easily have had more serious consequences.  As a result of the strikes to his face, the victim suffered a cut mouth that bled profusely over his clothing and the floor of the kitchen.   The cut was a wound of the sort that could have led to Mr Green facing a more serious charge.

[20]     The Judge was also right to treat the fact that the victim was in the safety of his own home as an aggravating feature.  Mr Green was a guest, and people should be able to expect to be safe from guests that have been welcomed into their home. Here, fearing for his safety, the victim had to crawl out of the kitchen on his hands and knees towards the front door, pleading with Mr Green to leave him alone.

[21]     In Taueki, the Court of Appeal referred to home invasion as being a factor that would increase the seriousness of this sort of offending but said the rationale for

this was that “the courts have repeatedly emphasised the importance of recognising

10     At [40] and [42].

the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence”.11    Although this was not a home invasion situation and, on that basis, not one of the Taueki factors, it was anticipated in Taueki, and has been confirmed in cases since, that the list of aggravating factors there was not meant to be exhaustive.12

[22]     Putting these factors together, my view is that the offending falls within the upper end of band two.  That means the range available to the Judge for a starting point was up to three years.

[23]     Undoubtedly there are cases where a lower starting point has been adopted for similarly serious offending.   However, strict analogies to other cases must be made with caution; it is trite but true that each case turns on its own facts.   In a recent sentencing for grievous bodily harm offending, Mander J found that, if a sentence can be justified by reference to the applicable guideline judgment, it will be

within range even if it is out of step with the balance of subsequent case law.13   Here,

while the starting point may have been higher than it could have been, it was within the range anticipated by Nuku, and therefore not manifestly excessive.

Uplift for previous convictions and ‘attitude’

[24]     Mr Dawson was correct to point out that lack of remorse is an absence of a mitigating feature and not an aggravating feature in itself.  In light of that, care has to be taken over the way the Judge took into account Mr Green’s “overall attitude”.

[25]     The question for this Court is whether the overall sentence, as influenced by the uplift, was manifestly excessive.  A greater uplift is justified where the previous offending indicates there is a greater risk of reoffending and thus a greater need for deterrence and protection of the public when arriving at the appropriate sentence. Here, the probation officer had noted Mr Green’s significant history of offending, including terms of imprisonment, and the fact  the offending occurred while Mr

Green was subject to an active sentence.  The report referred to his history of non-

11     R v Taueki, above n 7, at [31].

12     At [31]; Setu v R [2017] NZHC 1839 at [31].

13     Setu v R, above n 12.

compliance with community-based sentences and the extent of recidivist offending offending since 1978.  It was assessed that there was a high likelihood of Mr Green offending and a medium risk of his causing harm to others.

[26]     I acknowledge Mr Green had only two convictions from 2011 and 2006 for assault but I consider his convictions for breaching protection orders, including a conviction  in August  2015  for  which  he  was  sentenced  to  imprisonment,  were relevant.  There were three such convictions in 2015.  He was also convicted for two offences of contravening a protection order in 2016.   It was in respect of those charges that on 2 August 2016 his sentence was that he was to come up for sentence if  called  upon.    The  breaches  of  protection  orders  must  have  resulted  from  a disregard of Court orders that had been made to ensure the safety of another individual.  Mr Green was being sentenced for offending where he had caused real harm to another individual who he had contact with through a visit to that person’s home.

[27]     Mr  Green’s  criminal  record  was  relevant  to  the  extent  that  it  showed  a particular disregard for Court orders and sanctions because that justified a sterner sentence as a deterrent.  I also accept Mr Smith’s submission that it was open to the Judge to uplift the sentence for the fact that this offending was committed while Mr Green  was subject to an order of the Court.   The uplift for the convictions of resisting arrest and assaulting a Police officer were also modest and, overall, the uplifts imposed were within range.

Conclusion

[28]     Taking a step back and assessing the sentence overall, I am satisfied the sentence, while stern, properly reflects the offending and Mr Green’s culpability.  It was within the range permitted by the guideline judgment. It was not manifestly excessive, and so the appeal is dismissed.

Solicitors:

Public Defence Service, Dunedin

R P Bates, Crown Solicitor, Dunedin.