Guild v Police HC Wanganui CRI 2010-483-54

[2010] NZHC 1554

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-54

DANNY NASIRMIJA GUILD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 September 2010

Counsel:         M J Bullock for Appellant

M Jacquiery for Respondent

Judgment:      1 September 2010

JUDGMENT OF SIMON FRANCE J (Appeal against Sentence)

[1]      Mr Guild appeals a sentence of seven months’ imprisonment imposed for assault with intent to injure.   There were also one month concurrent sentences for assault and for intimidation, and a total of $1,050 reparation to two victims.

[2]      The appeal ground is that a sentence of home detention should have been imposed both in its own right and because a co-offender received home detention.

DANNY NASIRMIJA GUILD V NEW ZEALAND POLICE HC WANG CRI 2010-483-54  1 September 2010

Facts

[3]      Mr Guild and a friend had been drinking.  Walking home they passed in front of the home of a man Mr Guild believed to be responsible for calling the police a month earlier.  That call had led to Mr Guild being stopped by police while driving.

[4]      It was 11.20 p.m.   The men made a ruckus so as to cause the occupant, a

70 year old man, to come out.  Mr Guild challenged the man, and blamed him for the loss of his driving licence.   He walked towards him, intimating by his words and actions that he had a gun.

[5]      The  commotion  attracted  the  elderly  man’s  neighbours  who  sought  to intervene.  The neighbour told Mr Guild to leave.  For his troubles he was shoved by Mr Guild two handed in his chest.  In his effort to get to the neighbour Mr Guild also knocked the man’s wife to one side.  He then assaulted the neighbour by punching him.  The co-offender joined in; the assault continued.

[6]      The neighbour fell to the ground.   These two young men then set about kicking him while he was on the ground.  His wife’s yells attracted more people, at which time the appellants left.  The neighbour suffered bruising to his face and chest area, and his right arm; he also had sore ribs.  His wife was bruised on the arm when she was shoved out of the way.

[7]      The original target of Mr Guild’s ire is largely unaffected by it all.   The neighbours, who were more directly the victims, have been affected.   Seeing her husband assaulted and kicked was obviously traumatic for Mrs X, and rightly so. Both express disgust at the sense of entitlement the offenders showed.

[8]      The picture one gets of the appellant, however, is very different.  Mr Guild is

19 years old.  He has convictions for driving while his licence was suspended, and two  offences  of  breaching  the  resultant  community work  sentence.    Before  the sentencing Judge were a large number of supportive references.  The picture is of a polite  young  man  who  has  inexplicably  acted  out  of  character.    However  the pre-sentence report also notes he had been expelled from school, which Mr Guild

explains as being because he was “a smart a..” with a bad attitude.  It is noted that subsequent to the community work breaches, he was compliant and completed his community work sentence.

[9]      A home detention report was prepared.  Mr Guild proposed to live with his mother and brother.  Issues were raised, however, because a neighbour had taken out a trespass notice against Mr Guild, and because police had been called to an incident between he and his brother.   This led the report writer to assess the address as unsuitable.

Sentencing remarks

[10]     The Judge noted it was a difficult case particularly it seems as to whether to send the co-offender to jail.  The offending called for the firmest denunciation, but there were obviously positive features about the offenders.   In the end it was concluded  Mr Guild’s  leading  role  as  instigator  and  initial  assaulter  allowed differentiation.   The lesser role of the co-offender made home detention an issue.

[11]     As  for  Mr Guild,  the  Judge  considered  there  was  need  for  deterrence, denunciation and public protection.   The offending was unacceptable, and it was aggravated by attacking late at night people who merely seek to assist a 70 year old man who was himself being attacked.  There was a community concern with young men getting drunk and then acting violently.  A message was needed.

[12]     The Judge took a starting point of nine to ten months, gave credit for the plea and imposed a sentence of seven months’ imprisonment.

Appellant’s submissions

[13]     The focus of Mr Bullock’s typically able submissions is on the appellant’s circumstances in that it is submitted home detention was available and should have been imposed.  Before that, however, whilst the conduct is not minimised, it is noted no serious injuries resulted.

[14]     Concerning Mr Guild, it is noted he is 19 years old and the offending was out of character.   It is plain that Mr Guild has alcohol issues which can be addressed. Mr Guild  is  motivated  to  do  so,  and  alcohol  is  the  only  explanation  for  this unexpected conduct.   A letter of apology has been written.   Current information indicates Mr Guild is struggling in prison, and is presently in the at risk unit.

[15]     It is submitted that in terms of the Sentencing Act 2002 the least restrictive available outcome is mandated.  A sentence short of home detention would send the same messages, whilst better promoting rehabilitation.  Mr Guild’s short exposure to prison has already had a salutary effect.  Concerning a suitable address, Mr Bullock suggests neither feature should rule out the address.   Nothing came of the police visit, and an inability to enter the neighbour’s property is not relevant.

[16]     Reliance  is  placed  on  R  v  Iosefa[1]   where  the  Court  acknowledged  home detention is a stand alone sentence that involves deterrence, and denunciation.

[1] R v Iosefa [2008] NZCA 453.

[17]     Finally concerning disparity it is submitted that the differences in sentence are unjustified.   There is a gulf between seven months jail and five months home detention that the reasonably minded independent observer would not understand in the present case.

Respondent’s submissions

[18]     The respondent notes it is an appeal from the exercise of discretion.   The Judge’s assessment that home detention was inappropriate must be shown to be plainly wrong.

[19]     The  respondent  submits  the  circumstances  necessitated  a  sentence  of deterrence.  Entry onto an elderly couple’s property late at night, and then a serious assault on people who came to his aid must be met with a forceful response.  It is noted that the discount was 30–33% against a Hessell[2]  starting point of 20%.  The

extra credit, presumably for factors such as age, is submitted to be as much or more than could be expected given previous offending.

[2] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 450

[20]     Concerning disparity it is submitted the different roles explain the different sentence.  One offender’s actions ruled out home detention, but there is no reason why the other should not benefit from his own circumstances.

[21]     Asked  by the  Court  to  identify what  made  this  an  available  exercise  of discretion, Ms Jacquiery pointed to the extent of the violence, the context in terms of entering onto a property, the fact it only ended because more neighbours rushed to the scene, the fact Mr Guild was the instigator, and the concern identified by the Judge about this level of this type of offending in the community.

Decision

[22]     In my view the decision reached by the Judge was well open to him.  One always regrets when people of generally good character and with good prospects act in a way that exposes them to jail.  If it is possible to do something to avoid that, generally one will.  But sometimes other imperatives must prevail, and in this case I consider it was open to the Judge to see it as one of those situations.

[23]     Mr Bullock put well the features that make Mr Guild, as an individual, a suitable candidate.   The question though is whether those features had to be the dominant focus, or whether there was something about the offending that meant a Judge could conclude the necessary focus was elsewhere.   Establishing, therefore, that Mr Guild might be a home detention candidate is not decisive.  Further, I am not convinced about aspects of his situation.  I agree there is no known history of this sort of violence but the context is not so surprising.  Expelled from school because of how he acted has over a relatively short span of two to three years been followed by being  trespassed  by  his  neighbour,  the  police  being  called  to  intervene  in  an argument with his brother, initial breaches of a community work sentence and now a major grievance over a perceived reporting to police of his conduct.

[24]     Mr Bullock fairly points out that past bad conduct does not disqualify one from home detention.  I accept that but more make the point that to me anyway the context for the offending is not so out of the blue as some references might suggest.

[25]     This was really quite shocking lawless conduct.  One tends to focus quickly on the wrongness of assaulting a person who is just trying to defuse things, but it is worth dwelling on what started it.  It is almost midnight.  Mr Guild thinks a person has reported his driving so he makes a noise, sparks a confrontation.  It happens that the occupant is 70 years old yet this young man pretends to threaten him with a gun. There are two of them present to add to the intimidation.

[26]     And then a neighbour comes out.  He does not try to physically do anything, just tells Mr Guild to desist.  The result is a brutal assault, and a group kicking while the man is prone on the ground.

[27]     If out of this a Judge decides it is an occasion to say no, to place deterrence and denunciation above what may be best for the offender, then I consider it was an appropriate time to do so.   Accordingly it was an available exercise of discretion. Other judges may have decided differently, but perhaps not too many.

[28]     Concerning disparity, I consider there is nothing so out of the kilter as to concern the objective by-stander.  It is beyond doubt that this was Mr Guild’s issue. He is the one who thought he had a grievance, he is the one who assaulted a woman, threatened and intimidated a 70 year old man, and began the assault on the main victim.

[29]     It is no credit to the co-offender he soon after joined in.  He too may have gone to jail and the Judge was acutely aware of that.   His conclusion it could be avoided for the co-offender does not create any issue as regards Mr Guild’s sentence.

[30]     For these reasons the appeal is dismissed.

Simon France J

Solicitors:

M J Bullock, Barrister & Solicitor, Wanganui, email:  [email protected]
M Jacquiery, Barrister, Wanganui