Jones v R
[2012] NZCA 73
•8 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA788/2011 [2012] NZCA 74 |
| BETWEEN CASEY JOHN WALSH |
| AND THE QUEEN |
| Hearing: 13 February 2012 |
| Court: Arnold, Potter and Simon France JJ |
| Counsel: J A Westgate for Appellant |
| Judgment: 8 March 2012 at 10 a.m. |
JUDGMENT OF THE COURT
A Leave to appeal sentence out of time is granted.
B The appeal is dismissed.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
Mr Walsh pleaded guilty to one count of injuring with intent to injure. The charge stemmed from a group assault on a young man in a city street. Mr Walsh was sentenced to a term of imprisonment of one year, 11 months.[1] The sole issue on appeal is the rejection by the sentencing Judge, Judge MacAskill, of a sentence of home detention. A brief period of delay in filing the appeal is not of concern and leave to appeal out of time is granted, unopposed.
Facts
[1] R v Walsh DC Dunedin CRI 2011‑012‑055, 21 October 2011.
The offending occurred near the Octagon in Dunedin. The victim and his fiancée were walking down a street. A group of drunken young men, including Mr Walsh, were approaching from the opposite direction. Mr Walsh flicked his hand into the victim’s face as they went by. The victim called him a name. This inflamed Mr Walsh who ran at him, fist raised. The victim ducked and Mr Walsh, obviously very intoxicated, tripped.
As Mr Walsh got up, a co‑offender hit the victim with a heavy punch, causing him to fall to the ground motionless. Mr Walsh then resumed his activity, punching the victim as he lay on the ground. There were four to six blows to the head area. Eventually his companions pulled Mr Walsh off and they ran away.
The victim was hospitalised for five days. He suffered a broken jaw and nose, swelling to his face and mouth and cuts in those locations requiring stitches. His grandfather visited him in hospital and described him as barely recognisable.
The assault has had physical, emotional and practical implications for the victim. Physically he suffered on‑going difficulties. Although the physiological impact (moderate brain injury) has now healed, the psychological consequences have continued to trouble him. Anxiety led to what loosely could be termed severe panic reactions to situations. The victim is learning coping mechanisms and things are improving.
Both he and his fiancée are troubled about going out. It seems the victim’s distress over the situation and his resultant psychological problems, as well as an inability to sleep, have brought about a hopefully transient personality change whereby he is irritable and unable to cope with their two young children. The couple’s relationship is under strain. There have inevitably been financial costs, especially in the early stages with the victim hospitalised and his fiancée having two young children to manage (the children were aged two years and five weeks at the time).
We have set out the victims’ situation at some length because it captures well the reality of the consequences of wanton acts of unprovoked violence such as occurred in the present case.
Sentencing
Judge MacAskill took a starting point of three years’ imprisonment. He deducted seven months for Mr Walsh’s youth (he had turned 20 shortly before the offending), his offer to pay reparation, his compliance with bail conditions and his remorse. Six months for the guilty plea was then deducted, leaving a final sentence of one year, 11 months’ imprisonment. Reparation of $2,250 was ordered; it is to commence following release and be paid at $50 per week.
Concerning home detention the Judge observed:[2]
I am satisfied that sentences of less than imprisonment, including the community‑based sentences as recommended by the report writers and including home detention, are precluded by the seriousness of your offending, the need to denounce your offending and to deter you and others from such offending and the need to give weight to the protection of the public from street violence.
The appeal
[2] At [26].
Mr Westgate submits that the Judge, in considering home detention, did not balance Mr Walsh’s many favourable personal factors against the matters referred to in the passage just cited. This was an error in approach and meant home detention was wrongly declined.
In Mr Walsh’s favour were that he had insight and remorse, he offered to make amends, he had not previously offended and he was motivated to change in terms of both his alcohol use and his propensity to engage in violent conduct. The pre‑sentence report recommended a non-custodial sentence and assessed Mr Walsh as having a low risk of re‑offending.
Decision
In Manikpersadh v R this Court said the proper approach of an appellate court in cases such as this is that:[3]
... the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellant review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below.
[3] Manikpersadh v R [2011] NZCA 452 at [12].
The Court in Manikpersadh also referred to the observation of William Young P in R v Vhavha that, in respect of the discretion to commute a short term sentence of imprisonment to home detention:[4]
There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence.
[4] R v Vhavha [2009] NZCA 588 at [29].
It is important to note in the present case that although the sentencing Judge did not refer again to Mr Walsh’s favourable personal factors when rejecting a sentence of home detention, they had been accurately identified earlier and properly considered when fixing the lead sentence.
We consider it was open to Judge MacAskill, when considering home detention, to conclude that the circumstances and seriousness of the offending were the predominant consideration in setting the type of sentence, notwithstanding the collection of personal factors that Mr Walsh could call upon in support of home detention. The reality is that this case represents a set of facts and personal circumstances where judges could legitimately assess the balance in different ways with different outcomes. For ourselves we are not troubled by the assessment the Judge reached and we agree that this episode of unprovoked violence justified a denunciatory approach. Mr Walsh’s conduct in attacking a prone, probably unconscious man was cowardly. The consequences for the victim have been severe.
Mr Walsh’s personal mitigating factors were given full weight by the Judge when fixing the lead sentence. They were not such that a sentencing Judge had to regard them as outweighing the need to impose a sentence that clearly condemned the conduct involved. It was open to the Judge to conclude that a sentence of home detention would not adequately achieve that. Accordingly, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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