Horner v The Queen
[2019] NZHC 1091
•17 May 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-19
[2019] NZHC 1091
BETWEEN GRAEME HIRST HORNER
Appellant
AND
THE QUEEN
Respondent
Hearing: 1 and 16 May 2019 Appearances:
Appellant in Person
S Bicknell and K Courteney for Respondent
Judgment:
17 May 2019
JUDGMENT OF MANDER J
[1] The appellant, Mr Graeme Horner, pleaded guilty to a charge of assault with intent to injure and was sentenced to four months’ home detention, 150 hours’ community work and judicial monitoring.
[2] The offending occurred when Mr Horner was visiting a friend one evening. The victim was a neighbour. He knocked on the door and asked him to keep noise levels down. Abuse was traded before Mr Horner picked up a pool cue and jabbed the victim a number of times in the torso area causing the victim to fall. Mr Horner then straddled the victim on the ground and pinned him down with the pool cue across his chest before punching him three to four times in the face.
[3] The victim received bruising to his chest and stomach and had several patches of broken skin, a cut lip and a bleeding nose as a result of the assault.
HORNER v R [2019] NZHC 1091 [17 May 2019]
[4] Mr Horner told attending officers that the victim needed medical help and explained that he gave him a couple of jabs with the pool cue. He admitted having given the victim “some good whacks to the face” and told the police the victim would need a doctor. Mr Horner was clearly upset when he was being handcuffed. He said that he should have killed him.
[5] Mr Horner was originally charged with assault with a weapon and common assault, but when the charges were amended to the single charge of assault with intent to injure on the morning of trial, he pleaded guilty. Notwithstanding the entry of his plea, Mr Horner filed an appeal, and, on 1 May, Mr Horner presented oral submissions traversing the grounds upon which he relied. Mr Horner disputed a number of factual details upon which Judge Garland proceeded to sentence him and made complaints about his counsel who represented him before the District Court.
[6] In regard to the latter issue, I outlined the process required to be undertaken to advance an appeal based on an allegation of incompetent counsel. I also engaged with him regarding the particulars upon which the Court proceeded to sentence him, which he disputed. I canvassed these matters in a minute that I issued after adjourning the appeal in order to allow Mr Horner the opportunity to consider how he would like to proceed. I now set out the content of that minute in full as it largely deals with the issues he raised:1
[1] Mr Horner was sentenced by Judge Garland to four months home detention, 150 hours community work, and judicial monitoring after he pleaded guilty to a reduced charge of assault with intent to injure on the morning of his trial. He filed an appeal.
[2] Mr Horner represents himself. He did not file written submissions but appeared in person before me this morning and addressed me on the grounds of his appeal. Essentially, Mr Horner took issue with various factual details upon which the Judge proceeded to sentence him and made several complaints about his previous lawyer, Mr Eason.
[3] Mr Horner complained that the Judge in his sentencing remarks had described him as “mouthing off at the victim, calling him a piece of shit”, when the summary of facts actually stated that the defendant was “mouthing off” and the victim called him “a piece of shit”. Mr Horner also disputed a detail in the summary of facts that referred to him picking up a broken pool cue which he used to jab the victim. Mr Horner maintained that the pool cue broke during the incident. He considered that of some significance.
1 Horner v R HC Christchurch CRI-2019-409-19, 1 May 2019.
[4] As I explained to Mr Horner, on my review of the file and the sentencing decision, neither of those aspects of the narrative would have made any material difference to the sentence. However, Mr Horner expressed complaints about his counsel. He claimed that he had told his lawyer that he considered himself to be in danger during the incident, which went on for some time, and that in the confines of his small flat he was not able to escape the situation. Mr Horner complained that his counsel had not relayed these aspects to the Court and that he had been defending himself.
[5] I observed to Mr Horner that, in order to successfully raise self- defence, it was necessary that the force used was reasonable and that it did not appear, having regard to the injuries suffered by the victim and the fact that his friend had been present at the time, that such a defence was available.
[6] It appears the issue of self-defence was to be a live issue at trial, and Ms Bicknell, who appeared on the appeal and was also counsel for the Crown at the trial was aware that self-defence could possibly be argued by the defendant. However, Mr Horner complained before me that his counsel had not discussed this potential avenue of defence with him. Essentially, Mr Horner was seeking to advance his appeal on the basis of counsel incompetence and to vacate his guilty plea.
[7] I explained to Mr Horner the process that was required to be undertaken to advance such a ground of appeal, including the provision of a waiver of privilege in order to allow the Crown to obtain an affidavit from Mr Eason. Having heard from Mr Horner and Ms Bicknell, and having made my observations, albeit provisional, regarding the merits of the appeal, I provided Mr Horner with the option of either determining the appeal this morning, or allowing him an opportunity to obtain legal advice about vacating his plea on the basis of his complaints regarding the standard of advice and representation he had received in the District Court. He advised that he would like the opportunity to obtain legal advice regarding that issue. The Crown did not oppose that course.
[8] The appeal has been adjourned to 16 May at 10 am. It will be called on that day only for the purpose of Mr Horner clarifying his position regarding the appeal and whether he wishes to pursue a counsel incompetence argument. He will need to provide the Crown with a waiver of privilege on that day to allow it to make the necessary inquiries. Timetabling directions will also be made regarding the filing and serving of evidence.
[9] If, having taken legal advice, Mr Horner does not wish to pursue the issue of counsel incompetence he should notify the registry of that decision. The call of the matter on 16 May can then be vacated. In such an event, I will deal with the appeal on the basis of the submissions made by Mr Horner this morning.
[7] Unfortunately, due to an oversight in the registry, the minute was not issued to Mr Horner, although as is apparent from the content of the minute itself, the matters traversed were addressed with Mr Horner at the hearing on 1 May. When Mr Horner appeared when his appeal was recalled on 16 May, he advised that he did not wish to
pursue the appeal on the basis of the performance of his lawyer, and he was content for me to deal with it on the basis of the submissions he made to me on 1 May.
[8] At sentencing, Judge Garland accepted Mr Horner’s counsel’s submission that a starting point of 12 months’ imprisonment would be appropriate after reviewing a number of applicable sentencing decisions.2 The Judge considered the offending was aggravated by the serious violence, the use of a non-lethal weapon, the attack to the head by punching, and the significant impact on the victim.
[9] No uplift was imposed for Mr Horner’s criminal history and a full 25 per cent discount for a guilty plea was applied. The Judge “by a narrow margin” commuted the sentence to one of home detention in light of Mr Horner being 54 years old and having only a limited history of violence. This resulted in the sentence of imprisonment being commuted to one of four months’ home detention. The community work was considered necessary to underline the need for denunciation and deterrence.
[10] In my minute, I recorded the factual issues which caused Mr Horner concern. I expressed provisional views regarding the narrative on which Judge Garland proceeded to sentence him. Mr Horner did not wish to be heard further this morning in relation to those issues, and the conclusions I expressed regarding the materiality of those disputed parts of the offending remain unchanged.
[11] As I earlier observed, the outcome of the factual disputes which Mr Horner raised would have made no material difference to the approach taken to the sentencing exercise, and in particular to the type or length of sentence imposed. Standing in the shoes of the sentencing Judge for the purposes of the appeal, I do not consider the contested aspects of the facts of the offending would have required the convening of a disputed facts hearing because those matters in comparison to the balance of the narrative that was not in dispute are largely insignificant.3 The issue of self-defence was raised by Mr Horner, more in the context of a complaint against his counsel.
2 Tamihana v R [2015] NZCA 169; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; Edwards v R
[2018] NZHC 1463; Kojeunikov v Police [2013] NZHC 551.
3 Sentencing Act 2002, s 24.
However, it does not emerge as a realistic mitigating factor when regard is had to the nature of the assault, the excessive force that was used and the injuries inflicted upon the victim.
[12] Moreover, the sentence arrived at could, for a variety of reasons, be considered generous. The starting point of 12 months’ imprisonment accorded with multiple comparable cases and was rightly acknowledged by Mr Horner’s counsel as appropriate. The Judge imposed no uplift for Mr Horner’s criminal history and afforded him a full 25 per cent discount for his guilty plea notwithstanding it was entered on the morning of the trial, with Mr Horner having already benefited from the substitution of a lesser charge. When converting the indicative nine months’ imprisonment term to home detention, Judge Garland rounded the sentence down to four months’ home detention.
[13] It follows from my review of the matters which Mr Horner wished to raise on his appeal and my review of the sentencing decision of the District Court that I do not consider the sentence ultimately imposed was manifestly excessive. In the absence of Mr Horner seeking to pursue his counsel incompetence ground there is no challenge to the conviction.
Result
[14]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to: Mr Horner
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