Hannay v Police
[2014] NZHC 2015
•25 August 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-0022 [2014] NZHC 2015
BETWEEN DONOVAN GENE HANNAY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 August 2014 Appearances:
E J Forster for appellant
M Mitchell for respondentJudgment:
25 August 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] After a Judge-alone trial, Mr Hannay was sentenced by Judge Adeane in the District Court at Napier to an overall term of imprisonment of three years and three months on two charges of wounding with reckless disregard and one charge of male assaults female.1
[2] Mr Hannay now appeals that sentence as being manifestly excessive.
Mr Hannay’s offending – the facts
[3] Judge Adeane presided over Mr Hannay’s trial. The following is the Judge’s assessment of the facts of Mr Hannay’s offending:
[2] The circumstances were gone into at some length at trial. Essentially Mr Hannay was a guest, whether invited or not, at a New Year’s Eve party. Some minor item of household damage had occurred and Mr Hannay was asked to leave the property. That request was made by a
1 R v Hannay DC Napier CRI-2014-041-000003, 26 May 2014.
HANNAY v POLICE [2014] NZHC 2015 [25 August 2014]
female on behalf of another female who was the head tenant. There were a number of people who were invited and a number of people who had apparently simply arrived but whose presence did not cause any concern until this item of damage occurred.
[3] On being asked to leave the defendant’s own evidence is that he became stubborn. Other witnesses have described him as “flipping out.” The long and short of it is that he declined to leave the property and became engaged in an argument.
[4] One of the females to whom I have referred went to shepherd him from the property. The evidence is that he then advanced on that woman. A male guest present intervened, stepped in and on his evidence was punched. He concedes then pushing Mr Hannay and turning round to withdraw when he became aware that he had been struck with an object to the back of his head. It turns out to be common ground that that object was a heavy drinking glass. It was in the hand of Mr Hannay and it struck the first complainant causing a significant laceration to the back of his head such that it required surgical repair.
[5] In the seconds that followed Mr Hannay then struck another blow with the jagged glass to the forehead of the second victim who was a female. After this and while leaving the property he punched the hostess in the face with the result that he faces the three charges to which I have already referred.
[6] There was some evidential contest concerning the way in which the first of the female victims was struck, whether in an independent blow or whether as collateral damage to the blow struck to the first complainant’s head. In the circumstances and given the resolution of the self-defence issue which was raised that matter does not become of any major legal importance. I prefer the view, however, of the female complainant that she was apparently deliberately stabbed to the forehead.
[7] On arrival by the police the defendant was still in the vicinity. His behaviour was agitated and angry. There were further matters complained of subsequent to the arrival of the police.
[4] In finding Mr Hannay guilty at trial, Judge Adeane rejected a claim of self- defence based on the interaction of Mr Hannay with his male victim before Mr Hannay struck him with the glass.
The challenged sentencing decision
[5] The Judge recorded that wounding with reckless disregard for safety was a
three strike offence, with a maximum available sentence of seven years’
imprisonment. The guideline case was Nuku v R,2 underpinned by R v Taueki.3 The
Judge identified three Taueki aggravating factors: (a) the occurrence of serious injury;
(b) an attack to the head, indeed to the face of one of the victims; and
(c) the use of a weapon.
The offending was, the Judge assessed, to be seen as being at the upper end of band 2 in Nuku (up to three years’ imprisonment), arguably in band 3 (two to seven years). The Judge adopted a starting point of two years for Mr Hannay’s blow with a glass to the back of the male victim’s head. Saying that an uplift for totality was desirable, rather than a cumulative sentence, the Judge uplifted Mr Hannay’s sentence by one year for the wounding involving the first female victim and a further three months for the single punch to the second female victim.
[6] The Judge identified no personal aggravating or mitigating factors.
[7] An overall sentence of three years and three months’ imprisonment was
therefore imposed.
Case on appeal
[8] For Mr Hannay, Mr Forster said that the sentence imposed by Judge Adeane was manifestly excessive. The Judge had in error adopted the Court of Appeal’s guidance in Nuku, and on that basis fixed too high a starting point. This was a case of wounding with reckless disregard under s 188(2) of the Crimes Act 1961: Nuku only provides guidance for the charges of wounding with intent to injure under that section.
[9] When relevant cases were analysed,4 a starting point sentence in the vicinity of two years would have been appropriate for all three offences. Further, Mr Forster
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 R v Taueki [2005] 3 NZLR 372 (CA).
submits some account should have been taken of one of Mr Hannay’s victims’ conduct in punching or injuring Mr Hannay. Mr Hannay, Mr Forster says, suffered a broken jaw in the incident.
[10] For the respondent, Ms Mitchell acknowledged that Nuku does not strictly apply to instances of wounding with reckless disregard under s 188(2) of the Crimes Act. Nevertheless, sentencing Judges had taken guidance from Nuku when sentencing for such offences. In any event, the fact that Mr Hannay’s charges involved three separate victims, together with the seriousness of the violence involved, justified the sentence the Judge imposed. That could be seen from a
number of cases.5
Analysis
[11] It is accepted that the Court of Appeal’s guideline judgment in Nuku does not, on its terms, apply to Mr Hannay’s offending. Nevertheless, the overall question is whether or not the sentence imposed by the Judge was, however he determined it, manifestly excessive.
[12] I will first consider the significance of the fact that Nuku, on its terms, does not apply to Mr Hannay’s offending. I will then consider whether the sentence imposed was manifestly excessive.
Nuku and sentencing for reckless disregard – s 188(2) offending
[13] Section 188 of the Crimes Act provides:
Wounding with intent
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to anyone, wounds, maims, disfigures, or causes grievous bodily harm to any person.
(2) Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the
4 Grimshaw-Jones v R [2010] NZCA 490; R v Tuwairua [2009] NZCA 495; R v Middlemiss HC Dunedin CRI-2009-412-38, 11 February 2010; Swan v Police [2014] NZHC 69.
5 Macdonald v Police [2012] NZHC 1767; Brooking v Police [2012] NZHC 3219; R v Rowe DC Nelson CRI-2010-042-003983, 12 May 2011.
safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
[14] As can be seen, s 188 deals with the same range of actual harm caused to a person (wounds, maims, disfigures or causes grievous bodily harm). Offences under subsections (1) and (2) are distinguished by the intent which accompanies the infliction of harm. Subsection (1) offending, where the intent is to cause grievous bodily harm, attracts a maximum term of 14 years’ imprisonment. Subsection (2) offending, where the intent is intent to injure, or where the offender acts with reckless disregard for the safety of others, attracts a maximum sentence of seven years’ imprisonment.
[15] In Taueki the Court of Appeal provided guidance on s 188(1) grievous bodily harm (GBH) offending. The Court said it expected those guidelines would be applied “with appropriate adaptation” to other cases involving “serious violence”.6
[16] As the Court of Appeal in Taueki recognised, a GBH offender will be convicted only if he acted with an intention of inflicting really serious harm, and has in fact done so. There is, in other words, a reasonably direct correlation between intention and injury. In Nuku the Court of Appeal recognised the difficulty of applying Taueki to offences where the intent is to cause only injury, as the resulting level of harm to the victim may be greater than the offender contemplated. Nuku therefore adapted the Taueki guidelines to provide guidance to Judges when sentencing for offending involving intent to injure under ss 188(2) (wounding, maiming, disfiguring or causing grievous bodily harm with intent to injure), 189(2) (injuring with intent to injure) and 191(2) (aggravated injury).
[17] In Nuku the Court declined, however, to provide guidance on sentencing for ss 188(2) and 189(2) reckless disregard offending. The Court said:7
Other considerations are likely to arise when the mens rea is reckless disregard for the safety of others, so we do not comment on those cases.
6 R v Taueki, above n 3, at [9].
7 Nuku v R, above n 2, at fn 39.
[18] As Brewer J in Hepi v Police pointed out, the mens rea for wounding with reckless disregard does not include an actual intent to injure.8 It is less deliberate than that:
[12] The point is this. The gravamen of a charge of wounding with reckless disregard to the safety of others is that the offender must be taken to have had an actual and conscious appreciation of the danger of her actions to the safety of others and with that actual and conscious appreciation proceeded with her actions regardless of the risk to the safety of others. Therefore, I have to approach this appeal on the basis that the appellant did not have an actual intention to wound her partner.
[19] Given that difference in intent, there would appear to be a greater possibility of there being a lack of correlation between “intent” and the level of harm caused where reckless disregard is the charge rather than intentional wounding, maiming, disfiguring or causing GBH.
[20] Recognising that difference, in my view sentencing for offending under s 188(2) where the mens rea is reckless disregard is likely to be more straight forward where guidance is obtained from other sentences for that type of offending, rather than directly from Nuku.
[21] The Court of Appeal has recently in L (CA708/2013) v R affirmed that Nuku does not apply in reckless disregard cases.9 At the same time, however, it appeared to accept that it could provide some useful guidance. The defendant was charged with (amongst other things) injuring with reckless disregard. He had become aggressive and abused his flatmates. He obtained a knife from his bedroom and waved it around while threatening to slit their throats. The victim was standing behind the defendant trying to calm him down. The defendant thrust his knife into the back of the victim’s hand. On appeal counsel submitted the sentence imposed
was manifestly excessive because only one Nuku/Taueki aggravating factor was present: use of a weapon. In a footnote immediately after that submission was recorded, the Court of Appeal said:10
Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 does not apply but Ms Gray used it as the only possible analogy.
8 Hepi v Police [2013] NZHC 2690 at [11]-[12].
9 L (CA708/2013) v R [2014] NZCA 41.
10 At fn 6.
[22] When Nuku is applied by analogy to reckless disregard offending, care will need to be taken to account for the significance of the different intent. Care will also need to be taken when considering, in terms of how the Taueki and Nuku sentencing bands are described, the number of aggravating factors present. A number of those are unlikely ever to be features of offending with the mens rea of reckless
disregard.11 It is not clear that when the Judge sentenced Mr Hannay he took
account of those matters. Rather, he would appear to have applied Nuku directly, and without adaptation.
Is Mr Hannay’s sentence manifestly excessive
[23] Against that background I now consider Mr Forster’s basic proposition that the three year three month sentence imposed on Mr Hannay was manifestly excessive.
[24] In Hepi, Brewer J undertook a helpful survey of sentences for s 188(2), reckless disregard, offending in determining an appeal against a sentence for that offending.12
[25] In Hepi itself the defendant had, during a domestic argument, picked up a
33 centimetre long carving knife, walked up behind her partner and stabbed him in the right side of the neck. Upon being stabbed, the partner turned towards the defendant and received another wound in his left hand. The appellant was a first time offender, who showed evident remorse. In assessing the seriousness of that offending, Brewer J considered four cases of sentencing for wounding with reckless disregard.
[26] Two of those, Macdonald v Police and Brooking v Police, he considered to be less serious than the offending he was considering.13 In both those cases, the
offender had punched their victim in the head.
11 For example perverting the course of justice, carrying out gang warfare, forming part of an attacking group, or committing a hate crime.
12 Hepi v Police, above n 8.
13 Macdonald v Police, above n 5; Brooking v Police, above n 5.
[27] In Macdonald v Police the blow could have been lethal: the victim was knocked unconscious and left with a fractured skull, a blown eardrum and a brain haemorrhage. Justice Priestley upheld the District Court Judge’s starting point of two and a half years.
[28] In Brooking v Police the punch caused the victim to partially lose consciousness: her eye was lacerated, her glasses smashed and she sustained abrasion and bruising to her left forearm. The District Court Judge chose a starting point of two years four months. On appeal Fogarty J considered that a starting point of two years would be appropriate, but he did not disturb the sentence.
[29] The two more serious cases were Grimshaw-Jones v R and Middlemiss v
Police.14
[30] In Grimshaw-Jones, a Court of Appeal decision, the appellant was convicted on two counts of wounding with reckless disregard and one count of male assaults female (the same charges as involved here). In response to an alleged attack on his girlfriend, the appellant had slapped the female victim across the face. He then cut her jugular vein with a switch knife which required three stitches and inflicted a
10 centimetre cut across her face. He also attacked a male who received a cut along his jaw which was 11 centimetres long and two centimetres deep and required
24 stitches. The Judge settled on a starting point of two years and eight months. He identified as aggravating features the fact a weapon was used and taken to the scene, that the attacks were to the victim’s head and that there was a degree of premeditation. The Court of Appeal described that starting point as “by no means excessive”. Justice Brewer, and I agree with him, considered that starting point to be an outlier and observed that the starting point there was at the lowest end of the range available.
[31] In Middlemiss v Police the appellant became hostile towards her former partner, the victim, for flirting. She picked up a boning knife from a table and drove
it into her victim’s stomach. The victim required surgery for a perforated bowel and
14 Grimshaw-Jones v R, above n 4; R v Middlemiss, above n 4.
was hospitalised for two weeks. The sentencing Judge noted three aggravating factors: the seriousness of the injury; use of a lethal weapon; and offending in a domestic situation. He settled on a starting point of three years. That starting point was upheld on appeal.
[32] With regard to those cases, Brewer J assessed the degree of recklessness in the offending before him as being very high. There was a deliberate approach to the victim with a knife which had been picked up for the purpose of whatever it was the appellant intended. The appellant put the knife to a very dangerous use which resulted in significant injury. The victim suffered not one but two injuries and a period of hospitalisation was required. Brewer J considered that a starting point of three years’ imprisonment was justified.
[33] I was also referred to the cases of R v Tuwairua and Swan v Police by the defence15 and R v Rowe by the Crown.16
[34] In Tuwairua a starting point of two years eight months was upheld by the Court of Appeal for offending in which following an argument, Mr Tuwairua took a steak knife from the kitchen and began lunging and pointing the knife towards the victim, eventually stabbing him in the back of his right hand severing an artery and causing a large amount of blood loss. The Court of Appeal saw the starting point as justified on the basis that this was an assault with a weapon, it involved a lunging action and caused a significant wound to the victim.
[35] In Swan, Mr Swan was coming down off a methamphetamine-induced high. He became angry with his partner and threw a pair of scissors at her, hitting her in the head and causing a laceration to the back of her head which bled heavily. The sentencing Judge had adopted a starting point of two years and two months. In allowing the appeal, and adopting a starting point of 18 months, Courtney J observed that Mr Swan was not armed, but merely picked up scissors that were at hand; was not using a weapon in close proximity to the victim so that the risk of serious injury
was not as high as in other cases and the wound was moderately severe.
15 R v Tuwairua, above n 4; Swan v Police, above n 4.
16 R v Rowe, above n 5.
[36] In Rowe, following a fist fight with the victim Mr Rowe found an abandoned empty beer bottle which he smashed to fashion a weapon and stabbed the victim in the neck. The victim received seven lacerations, some six centimetres deep, in close proximity to the major arteries in the neck. The injury required 28 stitches and left lasting severe scarring. Judge Zohrab compared the offending to that in Tuwairua and Middlemiss and considered it more serious. He adopted a starting point of three years.
[37] Coming to the facts of Mr Hannay’s offending, in my view the degree of recklessness is moderate. As the Judge described matters, it would appear Mr Hannay lashed out with a glass that was already in his hand. He did attack each of his victims’ heads. The injuries they suffered, whilst significant, were not as serious as any of the injuries in the cases I have just referred to except Swan. That is balanced to some extent by Mr Hannay having attacked two victims. The use of a weapon is significant, particularly the blow with a jagged glass to the forehead of the second victim, the glass having been broken on the first victim. I do note that, given the charge Mr Hannay faced, it was not open for the Judge to come to the conclusion, as he indicated he would prefer to do, that the female complainant was deliberately stabbed in the forehead.
[38] I also note that the Crown accepts that one of the female victims pushed Mr Hannay and he fell down a step outside the address. He then immediately arose and advanced on the woman who pushed him. The male victim stepped in and pushed Mr Hannay to the ground. Immediately after arising from this push Mr Hannay attacked the back of the victim’s head and the other attacks followed. In those circumstances I do consider that there was serious provocation which was an
operative cause of Mr Hannay’s offending and which mitigates his culpability.17
[39] When I stand back from this offending, and consider it in relationship to the offending in the cases that I have referred to, I conclude that, sentencing on a concurrent basis, an overall starting point of two years and three months is
appropriate for the reckless disregard offending, with a one month uplift for the male
17 Sentencing Act 2002, s 9(2)(c); R v Taueki, above n 3, at [35].
assaults female offending. As there are no aggravating or mitigating personal factors, that results in an end sentence of two years and four months.
[40] By comparison with the Nuku guidelines, I see this offending as being mid to upper band two offending. Whilst there are three aggravating factors, not all of these are present to a high degree. In Taueki and Nuku, the Court of Appeal cautioned against the mechanistic application of its guidance, particularly as regards the significance of a given number of aggravating factors.18 The application of that caution is reflected in any number of sentencing decisions where, although there are a sufficient number of aggravating factors present to justify a band three sentence, in fact – based on an overall evaluation – a band two sentence has been considered appropriate.19 By analogy with Nuku, I think that analysis also confirms that the starting point sentence adopted by the judge for this offending overall was manifestly excessive.
[41] The appeal is therefore allowed. Mr Hannay’s sentence of three years and three months’ imprisonment is quashed and is replaced with a sentence of two years and four months’ imprisonment.
“Clifford J”
Solicitors:
E J Forster, Barrister, Hastings for appellant. Elvidge & Partners, Napier for respondent.
18 R v Taueki, above n 3, at [30]; Nuku v R, above n 2, at [40].
19 See for instance R v Potaka-Alexander [2012] NZHC 2788 in which five aggravating factors were present, or R v Emery [2012] NZHC 391 in which four aggravating factors were present.
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