Julian v R
[2012] NZCA 453
•2 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA369/2012 [2012] NZCA 453 |
| BETWEEN BERNARD BOYD JULIAN |
| AND THE QUEEN |
| Hearing: 20 September 2012 |
| Court: White, Simon France and Asher JJ |
| Counsel: A R Laurenson for Appellant |
| Judgment: 2 October 2012 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
This is a sentence appeal. Mr Julian had lost his job and believed a workmate to be responsible. One night he went to the workmate’s house, forced his way inside and set upon him. Two flatmates sought to intervene and were both injured. Mr Julian ultimately pleaded guilty to:
(a)burglary;
(b)wounding with intent to cause grievous bodily harm;
(c)injuring with intent to injure;
(d)assault with intent to injure.
Judge Roberts took a starting point of eight years’ imprisonment. After adjustments the final sentence was six years, ten months’ imprisonment.[1] Mr Julian appeals on the basis that the starting point was too high, and a discount of 15 per cent for the guilty plea was too low.
Fuller facts
[1] R v Julian DC New Plymouth CRI-2011‑021‑1161, 8 June 2012.
Mr Julian mistakenly believed his former colleague was responsible for him losing his job. He decided to visit him to extract revenge. Prior to going to the house, Mr Julian taped his fingers, and the palms of his hand, with masking tape.
On arrival Mr Julian disconnected the power to the house. This caused the victim to come outside to investigate. Seeing nothing, the victim started to return indoors. As he was closing the door Mr Julian pushed it into him. It connected with the victim’s head, causing a significant wound.
Mr Julian pressed on, forcing the victim back into the house. He continued to rain punches onto him, until the victim fell. At that point Mr Julian jumped on top, and continued to punch the head area.
A first flatmate intervened, trying to pull Mr Julian off. Mr Julian bit him in the leg. A second flatmate came to their aid. Mr Julian attempted to dissuade him by grabbing at his testicles. He missed, but ended up scratching the man’s midriff. Ultimately Mr Julian was restrained.
Sentences
Judge Roberts had earlier given a sentencing indication with a starting point of nine years. By the time it came back before him, a charge of aggravated burglary (possession of knife) had been reduced to burglary simpliciter. Whilst Mr Julian was in possession of a folding knife, he disputed knowing that or intending to use it. The Judge reflected the change in charges by altering the starting point to eight years. On this basis the Judge placed the offending as upper band two of R v Taueki.[2] The starting point embraced the culpability for all offending. For previous offending (specifically noted to include burglary and injuring with intent) a six month uplift was imposed. The Judge then had regard to offers of restorative justice and to remorse, and deducted six months. Finally a guilty plea credit of 15 per cent applied, leaving a sentence of six years, ten months.
Submissions
[2] R v Taueki [2005] 3 NZLR 372 (CA).
Mr Laurenson focused primarily on:
(a) the starting point, arguing that it should be seen as lower band two with a starting point of six to seven years;
(b) the size of the guilty plea discount, submitting that there was always an offer to plead guilty to burglary, and the knife was always the only sticking point.
In support of the starting point submission, Mr Laurenson first queried the weight to be placed on a head wound caused by contact with the door. Whilst accepting the door was the probable cause, he submitted it was incorrect to suggest the door was aimed at the head. It was more likely to be a by‑product than a targeted injury.
Turning to aggravating factors, Mr Laurenson initially advanced an argument about the level of pre‑meditation. However, he accepted that on reflection it was open to the Court to see the combination of the taping of the hands, and then turning off the power, as indicative of careful planning. His instructions were that the taping was the remains of a sparring session between Mr Julian and his brother. However, Mr Laurenson rightly accepted it was open to the Court to reject that.
Mr Laurenson submitted next that the victims were not vulnerable, other than that they were at home at night. We agree, but so did Judge Roberts. Although vulnerability was listed separately from home invasion, the Judge expressly noted that, in the circumstances of this case, they wholly overlapped.[3]
[3] At [17(d)].
The conclusion of this focus on the aggravating factors was a submission that the combination of premeditation, attack to the head, and home invasion did not require an eight year starting point.
Turning to the guilty plea, it is submitted that given the early indication of a willingness to plead to burglary, there should be fuller credit of at least 20 per cent. However, Mr Laurenson acknowledged the other reason for delay was a sustained attempt to have the wounding charge downgraded to recklessness. The Crown would not budge and ultimately, once burglary was offered, a plea to everything was entered.
Decision
This was serious offending. It was plainly pre‑meditated and the actions of taping the hands and disconnecting the power are of concern. As it happens, because flatmates were home, Mr Julian was always going to have difficulty in avoiding detection. But plainly he planned the offending and intended to escape undetected.
The challenge to the seriousness of the wounding with intent charge cannot be maintained. There was only one charge in relation to the primary victim. It, therefore, covered a course of conduct starting with the assault with the door through to the punching whilst upright, through to sitting atop the prone man and pummelling at his head. In the course of that conduct, the victim sustained a significant head wound. By his plea Mr Julian accepted that the wound occurred in circumstances where Mr Julian intended to cause the victim really serious harm. Further, that intention was in this case manifested solely by attacks to the head. It was, therefore, damage to the head that was intended to produce really serious harm.
There are no matters that reduce the culpability of the attack. It was motivated by revenge, and there was no hint of provocation; indeed the whole premise was flawed since the victim had nothing to do with Mr Julian losing his job. Then, when others intervened, rather than desist, Mr Julian assaulted them both as well.
Against that background, whilst towards the top of the available range, we do not consider it can be said the Judge erred. We add that we consider the six month uplift was excessive. The previous burglary had been met with a fine, and the previous injuring with intent by a four month term of imprisonment. An uplift that is one and a half times the original served sentence cannot be supported. However, the discount given for remorse was generous, and we do not consider it necessary on appeal to make an adjustment.
As for the guilty plea, we again consider 15 per cent to be an available exercise of discretion. Mr Julian has benefited from a reduced charge; although he maintains innocence, the reality is that he did have possession of the knife and it was something that the Crown could legitimately put before the jury. Further, the delay in pleading was due in part to bargaining over other charges to which Mr Julian ultimately accepted his guilt. Twenty per cent might have been given; 15 per cent was not wrong.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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