Hancock v R
[2012] NZCA 36
•24 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA688/2011 [2012] NZCA 36 |
| BETWEEN KEVIN ALLAN HANCOCK |
| AND THE QUEEN |
| Hearing: 14 February 2012 |
| Court: Stevens, Ronald Young and Andrews JJ |
| Counsel: M A Stevens for Appellant |
| Judgment: 24 February 2012 at 11.45 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of seven years six months imprisonment is quashed and a sentence of six years nine months imprisonment is imposed in its place.
___________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
The appellant pleaded guilty in the District Court at Dunedin to a charge of causing grievous bodily harm with intent to do so,[1] and a charge of intentional damage.[2] He was sentenced by Judge O’Driscoll on 29 September 2011 to seven years six months imprisonment.[3]
[1] Crimes Act 1961, s 188(1).
[2] Crimes Act 1961, s 269.
[3] R v Hancock DC Dunedin CRI-2011-012-2819, 29 September 2011.
The appellant has appealed against sentence on the grounds that it is manifestly excessive. In particular, he says that the District Court Judge gave insufficient recognition to provocation by the victim, and that the starting point adopted by the Judge was too high.
Factual background
On 2 July 2011 the appellant, his son (Dylan Hancock) and a third person drove to an address in South Dunedin. They deliberately rammed their car into the side of a car being driven by a woman associate of the male victim, Lance Barbarich, who was a passenger in the car.
The appellant and his son then got out of their car. They and the associate were armed with weapons described by witnesses as being a sledge hammer, knives, sticks, and a log splitter. The appellant accepted that he had a log splitter. The woman was removed from the car and the appellant, his son, and the associate struck the victim repeatedly about the head. The victim was also stabbed and cut with knives. It was not suggested that the appellant had used a knife. The appellant, his son, and the associate had to reach into the car to carry out the attack.
The major injury to the victim was described by a neurosurgeon as being a moderately severe head injury (fractured skull), in keeping with multiple blows with a heavy object. The victim also received several other injuries, including contusions, lacerations, and abrasions. One of his ears was almost severed.
District Court sentencing
In order to set a starting point, the Judge identified aggravating factors of the appellant’s offending as follows (referring to the factors set out in R v Taueki):[4]
(a) There was extreme violence and this was a prolonged incident.
(b)It was premeditated and it was premeditated to the extent that you had armed yourself with a weapon. I note also in the pre-sentence report that you made comments about drinking before going to the victim’s address in order to make yourself angry.
(c)There were serious injuries to the victim.
(d)There was the use of a weapon and/or other weapons by you and others.
(e)There was clearly an attack to the head region of the victim.
(f)There were multiple attackers. You were not acting by yourself.
[4] At [12]; see R v Taueki [2005] 3 NZLR 372 (CA) at [31].
The Judge also took into account the fact that the victim was confronted with a number of people who had weapons, when he was in a confined space and could not leave the vehicle.[5]
[5] At [14].
The Judge then considered “the issue of provocation and/or vigilante action”.[6] This was because the Judge accepted that the appellant became involved in the offending as a direct result of an incident between his son and the victim on 30 June 2011, in which the victim had bitten Dylan Hancock’s ear off.[7] The appellant was recorded in his pre-sentence report as having said that the attack on the victim was for the purpose of retribution to “hurt him” and to “teach him a lesson”. The Judge noted that vigilante action is referred to in Taueki as an aggravating factor.[8]
[6] At [15]–[20].
[7]We were informed by Mrs Stevens that Mr Barbarich pleaded guilty to a charge of injuring with intent to injure, arising out of this incident.
[8] At [15]. See R v Taueki at [31(m)] .
The Judge said:
[19] It is difficult, however, on the one hand to assess what happens where you have one particular scenario, namely what has happened to your son, and I have on the one hand an aggravating factor and on the hand a mitigating factor. It is difficult to place the appropriate weight on those two competing factors because I think in this case it may be an aggravating factor and it may be a mitigating factor the vigilante action and the provocation but I suspect that probably at the end they balance out so it is really a neutral matter at the end of the day.
The Judge concluded that the combination of premeditation, weapons, multiple attackers, and the nature and extent of the injuries, resulted in the appellant’s offending being in band three.[9] He adopted a starting point of ten years imprisonment.
[9]At [22]. The range of starting points for band 3 offending is 9-14 years imprisonment: R v Taueki at [34].
The Judge then allowed a discount of 25 per cent (two years six months) for personal mitigating factors, including the appellant’s guilty pleas, to arrive at the end sentence of seven years six months. A concurrent sentence was imposed for the charge of intentional damage. The Judge rejected a submission made on behalf of the Crown that a minimum period of imprisonment should be imposed.
Provocation and vigilante action
Mrs Stevens submitted that the Judge was wrong to find that the elements of provocation and vigilante action (retribution) cancelled each other out for the purposes of setting a starting point. She submitted that provocation as a mitigating factor far outweighed vigilante action as an aggravating factor. She submitted that, if the appropriate weight had been given for provocation (allowing for some (lesser) recognition of the element of vigilante action) the starting point would have been in the order of eight years six months.
In support of this submission, Mrs Stevens said that the appellant had been called to his son’s house after he was attacked by the victim. Although the Police had also been called, Dylan Hancock refused to make a complaint. Mrs Stevens submitted that the appellant received a text message from his son on 2 July 2011, advising that there had been a further threat from the victim. The attack on 3 July therefore occurred within a reasonably short period of time after the initial attack and the further threat.
Mrs Stevens submitted that it was significant to the appellant’s response to the victim’s attack on Dylan Hancock that the appellant had had very little involvement in his son’s upbringing. Dylan Hancock has a lengthy criminal history (mainly involving dishonesty and driving offences) and the appellant felt considerable guilt, believing his neglect and lack of contact with his son may have contributed to his son’s problems. Further, at the time of the offending the appellant was not working (because of an injury) and had time to brood and dwell on his son’s problems. Those matters, together with depression, over-consumption of alcohol, and anxiety as to his mother’s illness, led to the appellant responding to the attack on his son in the way he did. She submitted that the provocation of the attack on Dylan Hancock, and the further threat, resulted in a father responding to a violent person who constituted a threat to his son, and was of far greater significance than any element of vigilante action or retribution.
Ms Jelas submitted that the Judge correctly gave the appellant the benefit of provocation. Had he not done so, the starting point may well have been higher, to take account of the element of vigilante action.
In Taueki, this Court said that provocation may lead to a lower starting point:[10]
Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.
[10] R v Taueki at [32].
We are satisfied that the Judge did not err in his consideration of provocation. We accept, as did the Judge, that the earlier attack on Dylan Hancock was the reason for the later attack by the appellant and his son on the victim. But that does not mean that the court should condone a response by way of a vigilante, retaliatory attack at least one day later.[11]
[11]Accepting (as did the Judge) that the son received a threat by text message on 2 July 2011. Ms Jelas submitted that there was doubt on this point.
At the time of the appellant’s offending, his son refused to leave the matter to the Police to deal with. Instead, he and the appellant chose to respond to the victim’s violence one day later, by way of their own violent, vigilante attack. That was properly a significant aggravating factor in the offending. We are satisfied that the appellant was given any benefit available to him for provocation, by way of the Judge’s finding that the aggravating factor of vigilante action was balanced out by the mitigating factor of provocation.
This ground of appeal fails.
Was the starting point too high?
Mrs Stevens submitted that the starting point of ten years was too high and could not be justified. She submitted that the violence was not extreme, the attack was not prolonged, and that the victim’s injuries were “moderately serious” rather than “serious” or “life threatening”. She submitted that the appropriate starting point was nine years, before any consideration of a reduction for provocation.
Ms Jelas submitted that the starting point was appropriate.
We have rejected the appellant’s contention that the Judge should have reduced the starting point for provocation. However, we have concluded that the starting point of ten years was out of line with those adopted in similar cases.
We have considered the facts and starting points adopted in the following cases, which we refer to briefly:
(a)R v DSW:[12] DSW attacked his partner with a knife, causing 14 stab wounds to her chest, abdomen, and arms, which required extensive surgery. The starting point of 11 years was upheld on appeal.
(b)R v Stewart:[13] Stewart punched and kicked the victim in the head and face, when the victim was lying on the ground, causing a series long-term injuries. The starting point of 11 years was upheld on appeal.
(c)R v Konui:[14] The offender stabbed the victim several times in the back, struck him about the head and throat, then stabbed him in the lower back. This Court rejected a submission that the starting point of nine years was outside the permissible range.
(d)R v Connelly:[15] Connelly was one of two men who attacked the victim. The victim was punched, kneed, and possibly kicked, suffering a large number of blows. He suffered long-term effects. The starting point of ten years (for the offending and aggravating factors) was upheld on appeal.
(e)Rangihuna v R:[16] Rangihuna was one of several offenders who attacked the victim. They lured him into a yard and shut the gate. There were blows to the victim’s head with the offender’s fists, plastic piping, and a metal torch. There also blows to his body with a brick. A large dog was set upon the victim. The victim was told to leave and the offenders made threats to his life if he reported the attack. The victim suffered moderately serious injuries and required surgery and one week in hospital. The starting point of six years six months was upheld on appeal and was considered well within range and probably at the lower end of the range.
(f)Skilling v R:[17] Skilling and two others attacked the victim. The victim was restrained and assaulted, resulting in his arm being broken. The victim then attempted to escape, whereupon he was repeatedly kicked and punched while on the ground. There were blows to his head. He suffered significant bruising around the head and required reconstructive surgery for his broken arm. The starting point of eight years imprisonment was upheld on appeal and considered well within range.
[12] R v DSW CA334/05, 31 July 2006.
[13] R v Stewart CA21/06, 31 August 2006.
[14] R v Konui [2008] NZCA 401.
[15] R v Connelly [2008] NZCA 550.
[16] Rangihuna v R [2010] NZCA 540.
[17] Skilling v R [2011] NZCA 463.
Having regard to the factors in Taueki, the authorities we have referred to, and the circumstances of the offending, we are satisfied that the offending does fall within band 3 of Taueki – but only just. We have therefore concluded that the appropriate starting point was nine years imprisonment. It is relevant that the injuries caused, although “moderately serious” were not in fact life threatening. Neither did they result in any long term physical or mental damage. Moreover, the potentially serious aggravating factor of vigilante action was (as we have held) neutralised by the element of provocation involved.
Applying the discount of 25 per cent allowed by the Judge for personal factors and the appellant’s guilty pleas (which, apart from the issue of whether there should have been a further discount for provocation, was not challenged) we have arrived at an end sentence of six years and nine months imprisonment.
Result
The sentence of seven years six months imprisonment is quashed and a sentence of six years nine months imprisonment is imposed in its place.
Counsel:
Crown Law Office, Wellington for Respondent
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