Greening v The King
[2023] NZCA 432
•11 September 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA590/2022 [2023] NZCA 432 |
| BETWEEN | KARL GREENING |
| AND | THE KING |
| Hearing: | 25 July 2023 |
Court: | Miller, Moore and Palmer JJ |
Counsel: | G H Vear and B M Bosomworth for Appellant |
Judgment: | 11 September 2023 at 11.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
BLeave is granted to tender the s 27 report.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Mr Greening appeals his sentence of six years and nine months’ imprisonment on one charge of wounding with intent to cause grievous bodily harm.[1] He was sentenced concurrently to one month’s imprisonment on the charge of obstructing or hindering a medical officer of health.[2]
[1]R v Greening [2022] NZDC 11352 [Sentencing notes] at [15].
[2]At [15].
The sole ground of appeal is that insufficient credit was given for personal mitigating factors disclosed in a report prepared under s 27 of the Sentencing Act 2002 for this appeal.
The appeal is approximately three and a half months out of time. Mr Greening has filed an affidavit explaining that there was a breakdown in his relationship with his previous lawyer and he was transferred around several prisons. The extension of time is granted.
Narrative of the offence and the sentencing
The charge of obstructing a medical officer arose out of Mr Greening’s insistence on travelling between addresses for non-essential purposes during the COVID‑19 lockdown. On 5 April 2020 he was tested for the virus and given clear instructions that he should remain isolated, given that he had been exposed to it. He did not follow these instructions. The police spoke to him and directed him to return to his isolating address. Instead, he went on 8 April 2020 to an address where he had formerly been a boarder.
There he drank beer with the victim, a 72-year-old man, who was lying in his bed. He assaulted the victim, targeting the victim’s head. It was alleged that he told the victim that he would kill him. One third of the victim’s ear was cut off with a sharp object, likely a knife, and he received a 12cm laceration wound to the back of his head, exposing the skull.
In his interview with the writer of the pre-sentence report, Mr Greening stated he and the victim had got into an argument over money he had transferred into the victim’s account, having lost his own bank card. He said that the victim refused to repay him.
Mr Greening elected trial. We were told that his proposed defence was that he acted in self-defence. On the information before us, that defence had no prospects of success. When that was put to Ms Vear, who appeared for Mr Greening on appeal, she suggested that the decision to plead not guilty might have had something to do with mental health issues at the time. The record does include reports into his mental state, but they conclude he was not unwell and suggest strongly that he was malingering in an attempt to avoid trial.
Mr Greening was held in custody, where he remained until sentencing on 17 June 2022. His attempt to secure bail was unsuccessful because of the risk of further violent offending.[3] The material prepared for sentencing suggests that he presents a very high risk of reoffending. He has an extensive history that began in 1984 and now amounts to 112 convictions, including approximately 40 for offences of violence and misusing drugs.
[3]R v Greening [2020] NZDC 23671 at [6].
On 7 October 2020 Judge Macdonald gave Mr Greening a sentence indication, which he declined. The starting point was eight years’ imprisonment with an uplift of eight months for his past offending history and the COVID-19 restrictions offending. A 15 per cent discount would be allowed for guilty pleas. The sentence could be reduced for other mitigating factors, including a s 27 report. It would not exceed seven years.
On 15 October 2021 Judge Orchard advised Mr Greening that if he pleaded guilty she would sentence him in accordance with the sentence indication. After what she described as more “shilly-shallying” he agreed to accept it and pleaded guilty on 25 January 2022.[4]
[4]Sentencing notes, above n 1, at [3].
There was a long delay before sentencing on 17 June. Evidently that was due, at least in part, to Mr Greening’s wish to obtain a s 27 report. At sentencing he claimed that he had wanted to get a report but no writers were available. The Judge responded that she knew that was not correct because the Court had been receiving s 27 reports throughout lockdowns.[5] She remarked, based on her knowledge of Mr Greening, that she sometimes thought he had wanted to delay, though she assured him that would not count against him in the sentence calculation.[6] She declined to adjourn further and sentenced him on the same day.
[5]At [10].
[6]At [2].
We admitted an affidavit of former counsel, Martin Hislop, about the sentencing process. The substance of that evidence was that a report writer had been briefed and commenced the process of interviewing but she was having trouble contacting whānau and needed more time to complete her report. Counsel had been assigned more than a year before sentencing. We were not told when the report writer was briefed. Nor does the record indicate that the Judge was told a report was in progress; the sentencing notes record rather that she was told no report writer was available. This evidence does not detract from the Judge’s view that there had been ample time to prepare the report. On the face of it, Mr Greening had chosen to delay and taken the risk that he would be denied a further adjournment.
No error in refusal to adjourn
We do not accept that the Judge erred by refusing to adjourn in the circumstances. She did not deny Mr Greening his right to have the Court hear from any person called to speak to his background, any connection to the offending, and the availability of whānau support. He had had a reasonable opportunity to arrange a s 27 report. Having failed to commission one, he could have called on the whānau members or supporters whose information would have been collated by the report writer.[7] We do not know what was said by counsel, who could be expected to take instructions and address these matters.
[7]We were given to understand that the report was to be prepared by a report writer engaged for the purpose; it was not suggested that she had personal knowledge of Mr Greening.
Further, the author of the PAC report had spoken to Mr Greening about the matters listed in s 27(1). The report notes his iwi affiliation and identifies his whānau and supporters, recording that on release he will build a cabin on whānau land at Ōhaewai. He explained that he was the subject of a whāngai adoption to his aunt and her husband. He described his early childhood as happy but also disclosed that he was abused from age five years to nine years by his whāngai father and an uncle. He also witnessed his whāngai father’s suicide. That led to him being returned to his birth family, where his life changed to one of daily beatings and parental alcohol abuse.
The Judge discussed these matters. She afforded Mr Greening a five per cent discount for cultural factors, based on the PAC report. The total discount including guilty plea was 22 per cent, after the Judge reduced the sentence a further two months to give greater credit for background factors.
Leave to tender a s 27 report on appeal
On appeal, Mr Greening tendered a s 27 report, prepared by a different report writer, and sought leave to adduce it, relying on Mark v R.[8] For the Crown, Ms Jamieson invited us to discount it on the ground that the primary information contained in the s 27 report was already before the District Court Judge in the PAC report.
[8]Mark v R [2019] NZCA 121 at [16].
Section 27 of the Sentencing Act envisages that those called by the offender to address the court will speak on the offender’s background and how that may have related to the offence, the availability of community and family support, and alternative resolution processes and sentencing outcomes. The section does not treat this information as evidence. It provides rather that the sentencing court must consider the information unless that is inappropriate or unnecessary for some special reason.[9] The court may give the information such weight as it thinks appropriate.[10]
[9]Sentencing Act 2002, s 27(2).
[10]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [141].
It follows that a s 27 report tendered for the first time on appeal strictly does not necessarily fall into the category of fresh evidence. But the question whether the sentence was manifestly excessive ordinarily is answered by reference to information that was before the sentencing judge. For that reason, this Court has indicated that the offender must explain why new information should be considered on appeal.[11]
[11]This Court has previously held that s 27 reports should not be produced for the first time on appeal: Carroll v R [2019] NZCA 172 at [8]. See Laipato v R [2021] NZCA 562 for an example of a case where leave to adduce a s 27 report on appeal was declined.
In Berklandv R the Supreme Court took a stricter approach.[12] A report was introduced on appeal. The Crown objected.[13] The Supreme Court treated the report as if it were fresh evidence.[14] The Court held that leave was required and assessed the report by considering whether it was fresh, why it was not adduced at sentencing, its cogency for sentencing purposes, and the risk of a disproportionate outcome should it be excluded.[15]
[12]Berkland, above n 10.
[13]At [172].
[14]At [174].
[15]At [174]. See also Orchard v R [2019] NZCA 529, [2019] 2 NZLR 37 at [23] as to this Court’s approach to new evidence offered in sentence appeals.
We respectfully consider that approach appropriate for another reason. A s 27 report often includes material which the Sentencing Act does treat as evidence for sentencing purposes.
For example, reports sometimes include the offender’s account of the offence or their role in it. (Such information is not itself background information to which those called to address the court on the offender’s behalf can attest, but it is sometimes said to relate to the commission of the offence or to be relevant in some way to available sentencing options.) Information about the nature of the offence or the offender’s role in it falls into the category of mitigating facts which must be proved by the offender under s 24 if they are material to sentence and the prosecutor disputes them.[16]
[16]Sentencing Act, s 24(3) and (2)(d).
Section 27 reports also include factual information about the offender which may justify a lesser sentence. These are also mitigating facts for purposes of s 24, but they must be proved if they are a) material to sentence, b) not already proved by evidence at trial, and c) not essential to the plea or finding of guilt.
In practice, mitigating information is usually handled in a non-technical way, the sentencing judge assigning such weight to it as the judge thinks appropriate.[17] It is important not to erect barriers to participation by the offender’s family, whānau or community, and what they have to say about background is often uncontroversial. But it remains the case that under s 24 mitigating facts are evidence and the prosecutor retains the right to insist on proof.[18]
[17]Berkland, above n 10, at [141].
[18]Sentencing Act, s 24(2)(d).
In this case we have rejected Mr Greening’s attempt to justify his failure to offer a report at sentencing, but the Crown did not invite us to exclude the report tendered on appeal. We grant leave accordingly.
Does the s 27 report change anything?
We agree that, although concise, the PAC report contained the substance of the account given in the s 27 report. The only part that might be said to be missing is the account of systemic deprivation suffered by Māori, and in particular Ngāpuhi, but Ms Vear understandably did not suggest that Judge Orchard might have been unaware of that. As the Supreme Court observed in Berkland, such information is available from authoritative sources and what is required in a s 27 report is not a generalised dissertation but a succinct summary based on the experience of the offender’s own community.[19]
[19]Berkland, above n 10, at [146].
The report contains more detail of abuse and cultural deprivation experienced by Mr Greening and traces it, in part, to the impact of military service on the men of past generations in his whānau. It also seeks to recast what Mr Greening had previously described as the positive parts of his childhood. The abuse is confirmed by Mr Greening’s brother. However, the Judge did accept the causal connection between Mr Greening’s deprived and abusive upbringing and his offending, and also his alcohol abuse.[20]
[20]Sentencing notes, above n 1, at [12]–[14].
The report also addresses prospects for the future, confirming that Mr Greening has family support and will not be denied access to whānau land. He may be allowed to work there on release. However, the s 27 report is in some respects less positive about these matters than the PAC report. It is not said that he will be able to build on whānau land, with the implication that he cannot live there permanently. His support is qualified; most of Mr Greening’s relationships are “burnt” and his brother will only support him “to a point”. There is wariness about supporting him until he has shown he has addressed his violent behaviour. He may benefit from programmes offered in a custodial setting and will need support when released.
The index offending was very serious and given Mr Greening’s high risk of reoffending, community protection had to be taken into account. These considerations may constrain discounts.[21] There was no alternative to a long sentence of imprisonment and no question of alternative processes that might resolve issues relating to the offence. (The Judge noted that Mr Greening offered restorative justice but found that entirely unrealistic, and that conclusion was not disputed before us.[22]) A s 27 discount is available in such cases, but background factors may be less meaningful.[23] In this case there is also reason to doubt that whānau support can prevent further offending.[24] So the question is what discount ought to have been offered to recognise the ways in which Mr Greening’s background may have contributed to the lead offence.[25]
[21]Arona v R [2018] NZCA 427 at [61].
[22]Sentencing notes, above n 1, at [11].
[23]Berkland, above n 10, at [112].
[24]Sentencing Act, s 27(1)(d).
[25]Section 27(1)(b).
Ms Vear argued that the allowance of five per cent was inadequate. In effect the discount given was seven per cent, the Judge remarking that a little more discount should be given for background factors and reducing the final sentence by a further two months.[26] Had we been sentencing Mr Greening ourselves we would have allowed a discount of 10 per cent. But that would result in a minor adjustment of about three months in a long sentence, which is not enough to justify appellate intervention.
[26]Sentencing notes, above n 1, at [14].
Further, any adjustment must be offset against what we regard as a generous discount given for belated guilty pleas in circumstances where there was never a viable defence. Ms Vear argued that were we to take account of this we would undermine the sentencing indication regime. We reject that submission. Mr Greening was sentenced in accordance with the indication. He has chosen to appeal. The appellate question is whether the end sentence was manifestly excessive.[27] All the circumstances, including the guilty plea discount, may be taken into account when answering it.
Disposition
[27]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35]–[36].
The application for an extension of time to appeal is granted.
Leave to tender the s 27 report is granted.
The appeal is dismissed.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Solicitor’s Office, Whangārei for Respondent
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