Johnston-Walters v R
[2011] NZCA 367
•8 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA899/2010 [2011] NZCA 367 |
| BETWEEN KANE HARRIS JOSEPH JOHNSTON-WALTERS |
| AND THE QUEEN |
| CA900/2010 |
| AND BETWEEN RATANA RAHUI TE KANAWA |
| AND THE QUEEN |
| Hearing: 7 July 2011 |
| Court: Glazebrook, Rodney Hansen and MacKenzie JJ |
| Appearances: J A Westgate for Appellants |
| Judgment: 8 August 2011 at 10.30 am |
JUDGMENT OF THE COURT
A Both appeals against sentence are allowed.
BIn each case, the sentence is quashed and a sentence of two years imprisonment substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellants, Messrs Johnston-Walters and Te Kanawa, appeal against sentences of two years three months imprisonment and two years two months imprisonment respectively imposed on them following their pleas of guilty to two counts of injuring with intent to injure and one count of assault with intent to injure.[1]
Facts
[1] R v Johnston-Walters DC Invercargill CRI-2010-025-498, 3 December 2010.
The victims and the offenders (including the appellants) were driving in separate vehicles in Invercargill on 5 February 2010. While both vehicles were stopped at a traffic light on Dee Street, Mr Te Kanawa without provocation, made hand gestures to the victims and directed verbal abuse at them. The offenders’ vehicle (with seven occupants) pursued the victims’ vehicle as they continued driving along Dee Street. Bottles were thrown from the offenders’ van in the direction of the victims’ car. The victims attempted to get away from the offenders’ van but were required to stop at a red light. The offenders’ van pulled alongside and more bottles were thrown. A number of the offenders alighted from their van and began to advance aggressively on the victims’ vehicle. The driver of the victims’ vehicle sped away to avoid a confrontation and in the process side swiped the offenders’ van. The power steering in his vehicle failed and he lost control of the vehicle which came to a stop outside a shop. A number of the offenders ran towards the victims and the three victims were set upon by the offenders in an unprovoked and sustained beating. The attack lasted for a couple of minutes before members of the public intervened. The offenders returned to their vehicle and drove off until stopped by police.
The driver of the van received two black eyes and two chipped teeth, as well as bruising on his back and swelling to his nose and head. He was hospitalised overnight. The second victim was also hospitalised. He received a cut to his head which he said was from a bottle being smashed over it, as well as a cut to his left ear and a split under his right eye. He suffered some swelling to his face and jaw. The third victim was not injured. The vehicle received substantial damage.
Sentencing
The appellants were two of four offenders who were sentenced by Judge Phillips in the District Court at Invercargill on 3 December 2010. In sentencing, the judge noted that, for Mr Johnston-Walters, a sentencing indication had been given of a starting point of not less than three years.
The judge noted the Crown’s submission that the offending of all three male offenders fell within band two of R v Harris.[2] The judge also noted that a further co-offender, Mr Auckram, who was charged as a party to the injuring with intent to injure charges and as a principal to the charge of assault with intent to injure, had received a sentence of 18 months, from a starting point of two years.
[2] R v Harris [2008] NZCA 528.
Mr Te Kanawa was 24 years of age, described by his mother as having a really serious anger problem. He has children but no job. It was his van and he had been drinking. He made the gesture which started the incident. The judge did not accept Mr Te Kanawa’s minimising of his involvement in the affair, noting that he has a major alcohol problem which he had done nothing about. The judge noted a clear propensity to violence obvious from Mr Te Kanawa’s record and his actions in this offending.
Mr Johnston-Walters was 21 years old. He had a partner who was three months pregnant at the time of sentencing. His prior history did not show any serious violent offending. He was assessed as at a high risk of re-offending.
The judge described the offending as deplorable, a group attack on defenceless victims, unprovoked and sustained, and gratuitous street violence. He said the victims were stranded in their motor vehicle and vulnerable to the group attack which involved punching and booting of defenceless people. He referred to the need for strong denunciation and a stern sentence to deter other like minded people. The judge noted as particularly relevant the fact that Mr Auckram, who had been sentenced by Judge Farish, was a party only to the injuring with intent to injure charges, while the offenders before him were charged as principals to that offence.
Mr Auckram was charged as a principal to a charge of assault with intent to injure and received an end sentence of 18 months, from a starting point of two years. The judge took that sentencing into account and reluctantly felt it necessary to reconsider the starting point assessed for the purpose of the sentencing indication, of no less than three years. He fixed a starting point of two years and six months for the three male offenders who were before him, including both appellants.
The judge described Mr Te Kanawa as fortunate that he assessed the level of his responsibility as the same as the others. He imposed an uplift of three months for his past history as a prior aggravating factor. He then allowed 20 per cent, or seven months, for the guilty plea. That led to a sentence of two years and two months imprisonment. On a charge of breach of community work which Mr Te Kanawa also faced, he was convicted and discharged.
For Mr Johnston-Walters, the judge uplifted the starting point of two years and six months by four months to reflect prior convictions. He then allowed 20 per cent, or seven months, for the guilty plea leaving an end sentence of two years and three months imprisonment.
For the third co-offender, Mr Robertson, the judge uplifted the two years six months by four months for personal aggravating factors, deducted 20 per cent for his guilty plea and deducted 10 per cent for time spent on electronically monitored bail, leaving an end sentence of one year 11 months imprisonment.
The fourth co-offender, Ms Ronald, was assessed as having a lower level of culpability and was sentenced to seven months home detention.
Submissions
Written submissions were filed by Mr J A Westgate for Mr Johnston-Walters, and by Mr P B McDonald for Mr Te Kanawa. At the hearing, Mr Westgate presented oral submissions for both appellants. The grounds of appeal, for both appellants, can be briefly stated as:
(a)The starting point was too high;
(b)Disparity with the sentence imposed on Mr Auckram; and
(c)The uplift for personal aggravating factors was too high.
It is submitted that the end sentence is accordingly manifestly excessive, and that the appropriate sentences should in each case have been within the range of 18 to 24 months.
Mr Tantrum for the Crown submits that the sentences were not manifestly excessive. He submits that the sentencing judge was entitled to set the starting point at two years six months in accordance with the guidance in Harris. He refers to a number of aggravating features of the offending: premeditation, the seriousness of the injuries, an attack to the head of one victim, and the gang connections of some offenders. Counsel also submits that the criminal history of each appellant justified a modest uplift.
Discussion
This was a street attack by seven offenders against three victims. The exact roles of each offender are unclear. We begin by setting out, as clearly as is possible from the available information, the extent of the offending and the respective involvement of the offenders in that offending.
There were three victims in the other vehicle. As we noted above at [3], the driver was the most seriously injured. He was the first to be attacked, and received what is described in the summary of facts as a material beating. He received two black eyes and two chipped teeth, as well as bruising on his back and swelling to his nose and head. He was hospitalised and released the following day. The second victim went to the aid of the first victim and was set upon by the offenders. He was also hospitalised, apparently also overnight. He received a cut to his head which he said he received from a bottle being smashed over it, as well as a cut to his left ear and a split under his right eye. He also suffered some swelling to his face and jaw. They were the victims in the two counts of injuring with intent to injure. The third victim was assaulted by a number of the offenders. He was not injured in that assault, which was the subject of the count of assault with intent to injure.
The extent of the actual involvement of the offenders in these assaults is unclear. It is necessary to consider the descriptions of their roles as described by the sentencing judges. Two of them, Mr Dollman and Ms Ronald, were found at sentencing to have played minor roles. Of the other five, Mr Auckram was the first to be sentenced. He was found to have assaulted the third victim, who was uninjured, and by his presence to have incited the others in relation to a sustained assault on the other victims. Judge Farish adopted a starting point of two years. She said that if she thought that he had in any way participated in the assaults on the other victims, she would have started at three years.
Next to be sentenced were the appellants and Mr Robertson. Judge Phillips sentenced them on the basis that they were principals to the two counts of injuring with intent to injure, of the first and second victims, but made limited findings as to the extent to which each of them actually inflicted the injuries. He noted that Mr Te Kanawa had made a gesture to the other vehicle which appeared to have ignited the whole problem. The judge did not accept his explanation that bottles had been thrown ‘back and forth’, nor his statement that he had got out of the van to ask about the bottle throwing. He described him as downplaying and totally minimising his involvement in the actions that night. He noted that his counsel accepted that bottles were thrown on two separate occasions, that Mr Te Kanawa acknowledged that he punched two victims to the face but denied being involved in the escalation of the incident.
For Mr Johnston‑Walters, the judge noted, but did not comment upon, his counsel’s submission that he was a party to the count of injury with intent with respect to the first victim, that there was no physical involvement in relation to the third victim, and one punch to the second victim. For Mr Robertson, the judge described him as a principal in relation to the second victim by punching him and a party to the injuring of the first victim only. A two and a half year starting point was taken for all three.
The final offender to be sentenced was Mr Lumsden. He was sentenced by Judge Phillips on 30 March 2011. He was the driver of the van. The judge described him as having stayed in the vehicle until the vehicles stopped for the second time. He then got out of the vehicle and went with the others to where the victims were attacked. There was no evidence that he actually took part in the attack. The judge sentenced him on the basis that he knew bottles were thrown and that there was an aggressive attitude, yet he got out of the van, did not try to stop it, and formed part of the group. He held that he did not actively participate and was not being sentenced on the basis that it was suggested that he did. He was being sentenced for his presence and support. The judge adopted a two year starting point, which he rated as being somewhat less than what he had adopted for the other co-offenders he had sentenced.
The position then is that, leaving aside the two offenders found to have played minor roles, three offenders (the appellants and Mr Robertson) have been sentenced as those most actively involved, with a starting point of two and a half years. The other two have been sentenced as having a lesser involvement, with a starting point of two years.
We consider that the offending, viewed as a whole and without at this stage differentiating between the offenders, falls squarely within band three in Harris. The description of the bands in Harris refers principally to the extent of injury. In this case, the seriousness of the injuries would not by itself put the case above band two, moderate injuries. However, injuries are only one factor. The other aggravating features referred to in R v Taueki are also relevant.[3] There were several Taueki factors present: it was a street attack by a group on several victims, and it involved blows to the heads of two victims. There was a limited degree of premeditation in that the attack was a deliberate one following a short vehicle chase after the initial insults. The attack was unprovoked, and lasted some two minutes. In our view, these features combine to place this offending squarely in band three of Harris, where sentences of 18 months up to a maximum of five years can be justified. The range for band two can be up to two years. We consider that a starting point of two and a half years for the offending is justified.
[3] R v Taueki [2005] 3 NZLR 372 (CA).
The appellants have been sentenced on the basis that they and Mr Robertson were the most culpable. The assessment of individual culpability in a group attack such as this is not easy. In such cases, sentencing judges may quite properly treat all of those who have participated in the attack as equally culpable, where there is no clear evidence to make a distinction. In this case, Mr Auckram and Mr Lumsden may have been fortunate to be assessed as having a lower level of culpability. We do not consider that there is any proper basis on which we could disturb Judge Phillips’ conclusion that the appellants and Mr Robertson were more culpable.
For these reasons, we consider that the starting point was not too high, and that there was no inappropriate disparity with Mr Auckram or Mr Lumsden.
The uplifts for personal aggravating factors were three months for Mr Te Kanawa and four months for Mr Johnston‑Walters. Mr Te Kanawa had a limited previous history. The most relevant, the only convictions involving violence, were two convictions, in 2004 and 2007, for common assault. Mr Johnston‑Walters has a more extensive history of prior offending for a range of relatively minor offences, none involving violence. There is one conviction for threatening to kill or do grievous bodily harm, part of a wider incident, where he was sentenced to come up for sentence if called upon.
This Court in R v Ward[4] noted the difficulty in harmonising two principles: the acceptance of the preventive purpose of punishment, and the rejection of punishing an offender again for earlier offences.[5] The Court described as authoritative the following statement of this Court in R v Casey:[6]
… The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly. …
[4] R v Ward [1976] 1 NZLR 588 (CA).
[5] At 590.
[6] R v Casey [1931] NZLR 594 (CA) at 597.
In our view, neither of these histories justified an uplift. In neither case might the previous convictions be regarded as relevant to a prediction of the appellants’ future behaviour, in a way which is relevant to the present, serious, offending. They do not indicate a prediliction to commit a particular type of offence. They are not so numerous or of such seriousness, that considerations of protecting the community might justify an uplift. We consider that no uplift was justified, in either case.
When the uplifts are removed, there is in each case a starting point of two years six months, with a discount of six months (20 per cent) for the guilty plea. That gives an end sentence in each case of two years.
Result
For these reasons, each of the appeals is allowed. The sentences in each case are quashed and sentences of two years imprisonment substituted.
Solicitors:
Crown Law Office, Wellington for Respondent