Kincaid v R

[2010] NZCA 384

IN THE COURT OF APPEAL OF NEW ZEALAND

CA389/2010
[2010] NZCA 384

BETWEENSTEPHEN MARK KINCAID

Appellant

ANDTHE QUEEN

Respondent

Hearing:12 August 2010

Court:Chambers, Rodney Hansen and Heath JJ

Counsel:K L McHugh for Appellant

T Epati for Respondent

Judgment:18 August 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

[1]        On 28 May 2010, in the District Court at Christchurch, Mr Kincaid was sentenced to a term of imprisonment of 18 months.  He appeals, on the grounds that the sentence was manifestly excessive or inappropriate.  Primarily, Mr Kincaid contends that a sentence of home detention should have been passed.

The facts

[2]        Mr Kincaid has a business interest in a strip club in Christchurch, known as The Dolls House.  He is also involved in its management.

[3]        At about 7am on Friday 10 July 2009, while working at the business premises, Mr Kincaid noticed the complainant on a balcony at the rear entrance to the establishment.  When seen by Mr Kincaid, the complainant was picking up cigarette butts from the ground.  The complainant could only have accessed the balcony by climbing up a large gate.  Mr Kincaid went outside to the balcony area to confront him.  There had been an unlawful entry onto the property the previous week that had resulted in significant physical damage and economic loss to the business. 

[4]        Mr Kincaid grabbed the complainant, striking him a number of times.  He dragged the victim inside the Dolls House, through the rear door, where the assault continued.  He continued to strike the victim about the head and body, at one stage throwing the complainant “to the ground”.  Mr Kincaid kicked the complainant, while he was down.  At one stage, he used both of his feet, in a jumping motion, to stomp on the complainant (on Mr Kincaid’s view) in the region of the upper torso.  When the complainant managed to get to his feet, Mr Kincaid continued to assault him.

[5]        Subsequently, the complainant is said to have fallen from the balcony.  It seems likely that facial fractures requiring surgery resulted from that fall.  There is no evidence to suggest that Mr Kincaid pushed the complainant off the balcony.  However, at the time of the fall, Mr Kincaid accepts that he was not far away from the complainant.  We infer that he was pursuing him. 

[6]        As a result of what occurred during this incident, the complainant lost sight in one eye and sustained skull fractures.  At sentencing, the Crown acknowledged that the extent and seriousness of the facial and skull injuries were likely to have been caused by the complainant’s fall from the balcony.  It has proved impossible to assess what injuries were suffered directly as a result of the assault.

[7]        Mr Kincaid told the Police that he had assaulted the victim to prevent him from committing a burglary and “was just trying to hold him at the premises so the Police could be called”.  As indicated earlier,[1] there had been an intruder found on the premises, the previous week.

[1] See [3] above.

[8]        Although, in discussion with the probation officer who prepared the pre-sentence report, Mr Kincaid acknowledged that he “might have taken [the assault] a bit far” and expressed “his regret for his actions”, he continued to minimise the seriousness of the assault he committed.

Sentencing in the District Court

[9]        Initially, Mr Kincaid was charged with causing grievous bodily harm to the complainant, with intent to do so.  Subsequently, that charge was reduced to one of assault with intent to injure, a charge carrying a maximum penalty of three years imprisonment.  Mr Kincaid pleaded guilty to the lesser charge on 10 March 2010.

[10]       After recounting the facts, Judge Crosbie sentenced Mr Kincaid to a period of imprisonment of 18 months.  The Judge calculated the end sentence by reference to a starting point of two years and four months imprisonment.  He reduced that sentence by 10 months (a credit of almost 36%), to impose an end sentence of 18 months imprisonment.

[11]       The Judge expressly declined to impose home detention on the grounds that it “would be completely and utterly an insufficient deterrent penalty”.[2]  Judge Crosbie took that view because of what he perceived to be Mr Kincaid’s “responsibility” as part of a “hospitality industry” and, we sense more importantly, “the prolonged, vicious nature of the assault”.[3]

Competing submissions

[2]     R v Kincaid DC Christchurch CRI 2009-9-111555, 28 May 2010 at [20].

[3]     Ibid.

[12]       Ms McHugh, for Mr Kincaid, submitted that the Judge erred in not considering home detention as a viable sentencing option and in imposing it as a sentence.  She submitted that home detention is a sufficiently punitive penalty to deter offending of this type.[4]  In relation to the term of imprisonment, Ms McHugh contended that the sentencing Judge had erred in taking a starting point that was too high.  Further, she submitted that Judge Crosbie had failed to take account sufficiently of the victim’s conduct[5] and Mr Kincaid’s interest in the property as mitigating factors. 

[4]     See R v Hill [2008] NZCA 4l, [2008] 2 NZLR 381.

[5]     Sentencing Act 2002, s 9(2)(c).

[13]       Ms Epati, for the Crown, submitted that the length of sentence imposed was not manifestly excessive and that the Judge was right not to impose home detention for such serious offending.

Analysis

(a)   The term of imprisonment

[14]       As it happens, the assault was recorded on CCTV cameras.  Both the sentencing Judge and we have viewed a DVD of the incident.  We agree with the Judge that it is “arrant nonsense” for Mr Kincaid to suggest that he was trying to hold the complainant at the premises until the Police could be called in respect of a suspected burglary.[6] 

[6]     R v Kincaid DC Christchurch CRI 2009-9-111555, 28 May 2010 at [6] and [7].

[15]       

This was a prolonged and severe beating of an intoxicated man, smaller than Mr Kincaid, who, from the outset, showed no inclination to defend himself from Mr Kincaid’s attack or to resist any physical attempt to remove him from the premises.  The offence involved gratuitous violence of a serious nature that led to the

complainant suffering serious injury.  To the extent that it may be viewed as an attempt to defend property, it was grossly excessive.

[16]       Mr Kincaid was lucky to be sentenced on the basis that the complainant’s facial and skull injuries were not attributable to the assault.  In close proximity to the time that the complainant fell from the balcony, he was attempting to escape Mr Kincaid’s clutches, while the latter remained in pursuit.  There is nothing in the visual evidence to suggest any other reason why the complainant may have fallen from the balcony.

[17]       In the context of a crime involving a maximum penalty of three years imprisonment, the aggravating factors to which we have referred were sufficient to enable the Judge to take a starting point of two years four months.  Indeed, a higher starting point might also have been justified.

[18]       Likewise, the credit for the guilty plea of 10 months was very generous, in light of the guidance given by this Court in Hessell v R.[7]  Even regarding Mr Kincaid as having entered a plea of guilty at the first reasonable opportunity, a credit of nearly 36% was more than the usual one-third allowed.

[7]     Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [15].

[19]       For those reasons, the end sentence of 18 months imprisonment was available to the Judge.

(b)   Home detention

[20]       The criticism of the Judge’s approach to the option of home detention is that he failed to consider that possibility appropriately.  In particular, Ms McHugh submitted that the Judge expressed himself in a conclusory manner in declining to impose home detention.  The Judge said:

[19] ... and from the sentence of Courts, [a sentence of 18 months imprisonment] is a length of sentence that is within the range where the Court should consider the appropriateness and viability of a sentence of home detention.  [Counsel for Mr Kincaid] has addressed me on that and refers me to R v D.[8]  The Courts now have the benefit of a number of appellate authorities in terms of the exercise of the jurisdiction to impose a sentence of home detention.  I accept at once that it is a sentence in its own right.  It is part of the hierarchy of sentences.

[20]   My assessment of this case, however, is that a sentence of home detention would be completely and utterly an insufficient deterrent penalty.  That is because of the nature of the duty that you had in this situation, your responsibility as part of this “hospitality industry” shall we call it, and the prolonged, vicious nature of the assault.  All of this, in my view, means that a sentence of home detention in your case and this case would be an insufficient deterrent.

[8]     R v D (CA253/2008) [2008] NZCA 267.

[21]       In R v D(CA253/2008),[9] this Court discussed the circumstances in which a sentence of home detention might be imposed in preference to imprisonment.  The Court analysed the issue by reference to the hierarchy of sentences[10] and the need for the Court to satisfy itself that a sentence of imprisonment is required to meet specified sentencing goals.[11]  For present purposes, those sentencing goals are:[12]

a)the need to hold the offender accountable for harm done to the victim and the community by the offending;

b)promote a sense of responsibility for and an acknowledgement of that harm in the offender;

c)provide for the interests of the victim of the offence;

d)denounce the conduct in which the offender was involved; and

e)deter the offender or other persons from committing the same or a similar offence. 

[9] Ibid.

[10]   Sentencing Act, s 10A.

[11]   Sentencing Act, s 16.

[12]   Sentencing Act, s 7(1)(a), (b), (c), (e) and (f).  See also R v D (CA253/2008) [2008] NZCA 267 at [61]-[63].

[22]       It is clear that Judge Crosbie had those considerations in mind, through his shorthand reference to R v D (CA253/2008).

[23]       Ms McHugh accepted there were no decisions of this Court that had imposed home detention as an alternative to imprisonment on facts such as the present.  Correctly, Ms McHugh did point out that, in R v D (CA253/2008), this Court had indicated that it would have imposed a sentence of home detention for a serious domestic assault.[13] She also relied on R v Bishop[14] (dealing with some issues of relevant principle) and R v McCaslin,[15] a sentencing conducted in the High Court.  We examine each case in turn.

[13]   R v D (CA253/2008) [2008] NZCA 267 at [70]. Those comments were made in the context of a Solicitor-General’s appeal against a sentence of intensive supervision.

[14]   R v Bishop [2008] NZCA 97.

[15]   R v McCaslin HC Napier CRI 2007-020-2772, 7 May 2008.

[24]       In R v D(CA253/2008)[16] this Court indicated that home detention would have been an appropriate sentencing option because, while the assault was serious, there was information before the sentencing Judge identifying a personality disorder and other personal circumstances which meant that a sentence of home detention, with appropriate special conditions to meet the appellant’s particular circumstances, was likely to respond adequately to relevant sentencing goals.[17]  Those types of mitigating circumstances are not present in this case.

[16]   R v D (CA253/2008) [2008] NZCA 267.

[17]   At [68] and [69].  In relation to appropriate conditions, the Court referred to ss 80C, 80D, 80N and 80P of the Sentencing Act 2002.

[25]       In R v Bishop,[18] after discussing the hierarchy of sentences set out in s 10A of the Sentencing Act, this Court continued:

[12] The real question, on the hierarchy issue, is whether home detention or imprisonment was appropriate. In making that choice, regard must be had to s 8(g) (which requires the Court to impose the least restrictive outcome that is appropriate in the circumstances); s 15A (which sets out the basis for the imposition of a sentence of home detention); and s 16 (which imposes certain restrictions on the imposition of a sentence of imprisonment). In this case, the Judge expressly considered home detention and did not ask for a report under s 26A of the Act. The imposition of home detention as a sentence in its own right was considered by a permanent bench of this Court in R v Hill.[19] The Court considered, at [31] to [41], a number of points relevant in that case to the question whether home detention should be imposed. Two of these points are particularly relevant here. The first is the point made at [33] that the sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The second is that, as stated at [34], a sentence of home detention must be imposed in a way that is consistent with the purposes and principles of sentencing as set out in the Act.

[18]   R v Bishop [2008] NZCA 97.

[19]   R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

[26]       Bishop involved a vicious attack by a father on his 15 year old son.  Ms Bishop, the mother, was charged as a party to that assault, having been found not guilty by the jury on one count involving physical assault by her.  A sentence of nine months imprisonment imposed in the District Court was quashed and a lesser term of imprisonment was substituted.

[27]       In R v McCaslin,[20] the prisoner was sentenced having pleaded guilty to one charge of assault with intent to injure.  While the victim died, it was accepted that Mr McCaslin’s assault was not causative of death.  The victim had been involved in an incident at a local hotel.  He and Mr McCaslin left the hotel at about the same time.  After exchanging words, the victim ran off and Mr McCaslin pursued him.  Mr McCaslin threw a punch but failed to make contact.  After the victim tripped near a traffic island and fell to the ground, Mr McCaslin ran up to him and kicked him in the “upper body” area while he was lying on the ground.  Subsequently, a taxi turned into the road, inadvertently running over the victim.  At that point Mr McCaslin went immediately to the victim’s aid.  Full responsibility for involvement in the events was taken and genuine remorse expressed.  In imposing a sentence of home detention, Asher J acknowledged that the sentence “could be seen by some as a very lenient sentence given the tragic consequences of what happened”.[21]

[20]   R v McCaslin HC Napier CRI 2007-020-2772, 7 May 2008.

[21] At [26].

[28]       The more limited nature of the attack in McCaslin, the attempts made to assist the victim after the road accident, the full acceptance of responsibility for what had occurred and the genuine remorse expressed makes McCaslin a much less serious case than the present.

[29]       There are many positive personal testimonials for Mr Kincaid that were placed before the sentencing Judge.  There is no doubt that, if a prison sentence were not required to mark the offending, he would be a suitable candidate for home detention.  However, we agree with the Judge that the offending was simply too serious to be marked by a sentence short of imprisonment.  As Ms Epati, for the Crown, observed in making oral submissions, the introduction of home detention as a discrete sentence has not removed a short-term sentence of imprisonment as a sentencing option.

Result

[30]       The appeal is dismissed.

Solicitors:

McKenzie Gray, Invercargill, for Appellant

Crown Law Office, Wellington, for Respondent