Knight v Police HC Wellington CRI 2010-485-59

[2010] NZHC 1317

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-59

RICHARD ANTHONY KNIGHT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 July 2010

Counsel:         F C Butland for appellant

J M Webber for respondent

Judgment:      22 July 2010

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      Mr Knight pleaded guilty to one charge of injuring with intent to injure, two charges of threatening to kill, one of resisting arrest and breach of a community work sentence, and was found guilty of obstructing a constable in the execution of his duty.  He was sentenced by Judge Mill in the Upper Hutt District Court on 26 May

2010.  Mr Knight was sentenced to two years and three months’ imprisonment on the injuring with intent to injure conviction, one year on each of the threatening to kill

convictions, and one month on the resisting arrest, obstructing the course of justice

KNIGHT V NEW ZEALAND POLICE HC WN CRI-2010-485-59  22 July 2010

and breach of community work convictions.   All sentences were to be served concurrently.

[2]      Mr Knight originally gave notice of an appeal solely against the sentence for the injuring with intent to injure conviction, but subsequently indicated an intention to also appeal against the sentence for the threatening to kill convictions.

Circumstances of the offending

[3]      On 17 February 2010, Mr Knight and the victim, who was an acquaintance of his, were at Mr Knight’s house.  After what appears to have been quite substantial drinking,  they  argued.    Mr Knight  hit  the  victim  and  he  fell  to  the  ground. Mr Knight then kicked the victim around the head area, while he was on the ground. He kicked him five or six times before yelling at him and walking away.  That attack was sufficient to render the victim unconscious.  About five minutes later, Mr Knight returned and began kicking the victim around the head another five or six times. Mr Knight then left the house.  These events were observed by a neighbour.

[4]      The victim was found by the police.  He was unconscious and unresponsive. He required medical attention, and was taken to Hutt Hospital’s Accident and Emergency department.   As a result of the attack, the victim had serious facial bruising and a broken nose, and required hospital treatment.   His victim impact statement records that his nose was broken in three places, that he was given a CT scan at the hospital and was told that he was lucky his injuries were not worse.  The victim impact statement also refers to an injury to the victim’s hand, apparently caused by nerve damage that prevented movement, and the victim still has restricted movement in that hand.

[5]      When  Mr Knight  was  being  arrested  for  the  offending  at  his  house  on

17 February  2010,  he  began  fighting  with  the  Police  officers  and  had  to  be restrained.  He continued to struggle throughout the arrest and processing procedure. During the processing at the Police station, Mr Knight was again confrontational, threatening to kill the officers dealing with him.  One of the Police officers queried

who this threat was aimed at, and Mr Knight confirmed it was aimed at both of the

Police officers who were present.

[6]      The charge of obstructing a constable relates to an incident on 19 December

2009 when the Police attended an address to locate a person who was in breach of their bail conditions.  That person was located, and put into a Police car.  Mr Knight followed the Police to their car and attempted to talk to the person inside.  He was warned to close the door several times, but did not, and succeeded in pulling the door from the Police officer’s grip.  Mr Knight was bailed in respect of that offence, and was still subject to that bail when he committed the offences on 17 February 2010.

[7]      The breach of the community sentence appears to relate to drinking alcohol when one condition of that sentence is not to consume alcohol.

Sentencing decision

[8]      The Judge acknowledged the pervasive influence of alcohol on Mr Knight’s offending.    The  Judge  had  the  advantage  of  a  number  of  reports  and  other documents.  Among them was a report dated 31 March 2010 from Mr Brooking of Alcohol Drug Assessment and Counselling.  It reported Mr Knight’s reconstruction of having consumed about 45 standard drinks within two hours of the attack on the victim.    Mr Brooking’s  report  identified  that  Mr Knight  is  on  medication  for attention deficit disorder, which apparently means that he has serious difficulties with impulse control even before he starts drinking.   A review of the family circumstances suggests to Mr Brooking the probability that Mr Knight has a genetic vulnerability to alcohol.

[9]      The Judge also noted that Mr Knight was in full-time employment at the time of  sentencing,  and  wished  to  keep  that job.   He  noted  that  one  of  the  reasons Mr Knight gave for his offending was that he was frustrated that he could not work.

[10]     The  Judge  treated  the  injuring  with  intent  to  injure  as  the  most  serious offence, and hence the lead offence, despite threatening to kill having a higher maximum penalty.  In respect to the seriousness of the offending, the Judge noted

that there was no weapon used and the offending did not happen on the street.  The Judge recorded these as mitigating circumstances, whereas they are actually the absence of aggravating factors.

[11]     The Judge stated that despite those considerations, this was a “serious case of its type”.  It involved kicking a man in the head several times while he was on the floor.   Another aggravating factor was the fact that Mr Knight had returned and kicked him in the head again, when the victim was defenceless and vulnerable.  He also noted that Mr Knight made no attempt to help the victim.

[12]     The Judge concluded his assessment of the seriousness of the offence by saying that:

When I take all the things into account that I have mentioned, this was a prolonged attack and there was more than one kick and you returned again. The level of violence was high.   It was unprovoked in my view and the person was vulnerable and considering all the authorities that I have mentioned that I have considered, a starting point before any deduction for any mitigating circumstances for the injuring charge is one of three years’ imprisonment.

[13]     In  the  Judge’s  opinion,  the  only  mitigating  factor  in  this  case  was Mr Knight’s guilty plea.  The Judge was not inclined to accept that the plea was at the earliest reasonable time, in that it did not occur on Mr Knight’s first or second appearance.  Therefore, and in light of the fact that the Judge did not consider home detention  appropriate  in  this  case,  the  discount  for  a  guilty  plea  was  set  at

25 per cent, giving an end sentence of two years and three months’ imprisonment.

[14]     Given the lesser periods of imprisonment imposed on the other convictions, as described in [1] above, all to be served concurrently, the effective sentence of two years and three months was entered to reflect the totality of the offending.

Grounds of appeal

[15]     Counsel for Mr Knight submits that:

•   The starting point of three years adopted by the Judge was too high, given the statements of the Court of Appeal in R v Taueki[1] and R v Harris;[2]

[1] R v Taueki [2005] 3 NZLR 372.

[2] R v Harris [2008] NZCA 528.

•   The Judge should have adopted a starting point of between 18 months and two years, as the offending at most fell in band two as identified in R v Harris;

•   Mr Knight’s guilty plea was entered at the first reasonable opportunity, given the way the proceedings progressed, despite it being entered at his third appearance; and

•   In setting the sentence, the Judge failed to give credit for other mitigating factors, such as Mr Knight’s youth, the fact that he had apologised for the offending  the  day  after  it  occurred  and  Mr Knight’s  ADHD  and alcoholism.

[16]     In conclusion, counsel for Mr Knight submits that a sentence of less than two years  should  have  been  imposed,  and  that  an  electronically monitored  sentence should be reconsidered if such a sentence is imposed.

[17]     It is convenient to acknowledge submissions for the Police, as they become relevant in considering each of these grounds.

Starting point

[18]     The Court of Appeal in R v Taueki set down guidelines for the sentencing of grievous bodily harm offending.   The Court anticipated that its guidelines would apply, by analogy, to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.[3]

[3] At [9].

[19]     The Court of Appeal set out three bands into which offending could be placed by reference to the aggravating and mitigating factors that were inherent in the offending itself.

[20]     Those guidelines were applied to the offence of injuring with intent to injure in R v Harris.  In that case, the Court of Appeal stated that:[4]

[4] At [10]-[11].

An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting.  At least in general terms, the mens rea for this offence will coincide with the actus reus.  Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach we think is broadly consistent with Taueki.   On this basis, we envisage bands and starting point sentences (ie before allowing for personal aggravating and mitigating factors) as follows:

•Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

•Band two: where the injuries are moderate, sentences of up to two years’ imprisonment  can be justified;

•Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s

8(c)(d) of the Sentencing Act 2002).

Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect of any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.  Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

[21]     In that case the offending involved a man pushing his partner, knocking her unconscious.  He then took her back to their house and punched and kicked her until she lost consciousness again.  The defendant tried to prevent her from leaving, but she escaped.  She suffered a severe black eye, bruising over most of her body, and grazing over her face, legs and body.  A starting point of two and a half years was adopted,  and  then  uplifted  by six  months to  take  into  account  previous  violent offending by the defendant.  That starting point was challenged on appeal.

[22]     The Court of Appeal held that Harris was a case of moderate to serious injury.   The other relevant features of the case were that the victim was attacked from behind and around the head, that she was vulnerable as she was being attacked when she was intoxicated and when she was only partially conscious.   The seriousness  of  the  injuries  took  the  offending  into  the  18  month  to  five  years category.  Based on the seriousness of the injury and the aggravating features that were involved, a starting point of two and a half years was “easily justified”.

[23]     I consider that the injuries in this case are on a par, if not more serious, than those in Harris.   Here, the victim suffered a badly broken nose and serious facial bruising.  He was apparently informed that he was lucky that his injuries were not more serious.  Kicks to the head of a victim who is on the ground are the equivalent of using a weapon.  Returning to inflict a second set of harm to a defenceless, and probably unconscious, victim is a worrying aggravating feature, creating the risk of long-term neurological harm.

[24]     The victim’s impact statement also referred to an injured hand.  That injury is not  mentioned  in  the  summary  of  facts.    Counsel  for  Mr Knight  submits  that sentencing should have proceeded on the basis of the injuries as set out in the summary of facts so as to exclude the additional injury recorded in the victim impact statement.   Mr Webber for the Police submitted that the injury to the hand was appropriately taken into account.   He cited s 17 of the Victim’s Rights Act 2002, which requires a prosecutor to make all reasonable efforts to ensure the information about any physical injury is placed before the Judge for sentencing, and s 9(1)(d) of the Sentencing Act 2002, which states that the Judge is entitled to consider the extent of any loss, damage or harm for the purposes of sentencing.  Furthermore, the victim impact statement was disclosed to Mr Knight’s counsel before sentencing occurred, but it does not appear that at sentencing any objection was raised to the evidence about the hand injury.

[25]     In light of those submissions, I consider it appropriate for the injury to the hand to be taken into account.   What it suggests is some measure of neurological harm affecting the nervous system as it guides the use of the hand.

•    the victim was attacked in the head;

•    the vulnerability of  the  victim,  in that  he was  attacked  while on  the ground and while unconscious;

•    the fact that Mr Knight left and returned five minutes later to continue the assault;

•    the injuries suffered by the victim, to an extent that he needed hospital treatment;

•    the offence was committed whilst on bail for obstructing a Police officer;

and

•    the other offending that occurred at the same time as this offending, namely resisting arrest and threatening to kill two Police officers.

[27]     Taking into account the seriousness of the injuries, the aggravating factors that were present and the comparison with Harris, I consider that the three year starting point cannot be said to be manifestly excessive.  As Mr Webber submitted, the mere fact that an appellate court identifies a different starting point from the sentencing Judge does not warrant intervention.  There has to be consideration of the whole sentencing process, and ultimately it is the end sentence that counts.  Even if I were persuaded that a lower starting point, say between two years three months and two years nine months was appropriate by reference to band 3 in Harris, the Judge’s sentencing process does not identify specific additional elements for some of the aggravating factors I have identified.  When they are taken into account, the three year starting point is appropriate.

[28]     The guideline case on discounts for guilty pleas is R v Hessell,[5]  where the Court of Appeal said that a 33 per cent discount on sentence is appropriate when the sentence is entered at the first reasonable opportunity:[6]

[5] R v Hessell [2010] 2 NZLR 298 (CA).

[6] At [29].

The concept of having to enter a guilty plea at “the first reasonable opportunity” to attract the largest discount is not new. The first reasonable opportunity for the offender to plead guilty will generally be at his or her second appearance, as defined in paragraphs 4(b) and 5(b) of the Chief District Court Judge’s Practice Note, Committal Procedure in the District Court, dated June 2009. By that time, initial disclosure, as due pursuant to s

12(4) of the Criminal Disclosure Act 2008, should have been made and the offender should have arranged legal representation.  If either of those steps has not taken place, the judge may be justified in considering a later time as the first reasonable opportunity to plead guilty.

[29]     Here, Ms Butland argued that although the plea was entered at the third appearance,  that  was  the  first  reasonable  opportunity.     She  advised  that  at Mr Knight’s first appearance he was represented by the duty solicitor, who submitted an application for legal aid.  She was assigned the case on 22 February 2010, with Mr Knight being scheduled to next appear on 3 March 2010.  On 25 February 2010, she wrote to the Upper Hutt Police requesting disclosure.  Disclosure did not occur until  the  morning  of  3  March  2010,  very  shortly  before  Mr Knight’s  next appearance.  The matter was then remanded until 24 March 2010 so that she could review the disclosed materials and seek instructions.  Mr Knight then pleaded guilty on 24 March 2010.

[30]     On this analysis, the third appearance was argued to be the first reasonable opportunity for Mr Knight to have pleaded guilty.  Mr Webber did not contest this analysis.  Rather, he submitted that the additional 8 per cent discount could readily be offset by the extent of Mr Knight’s relevant previous convictions, including two in September 2008 for assault with a blunt instrument.

[31]     I  consider  this  to  be  a  situation  in  which  a  33 per cent  discount  was appropriate.  It was most likely not given because of the Judge’s misapprehension as

to  the  extent  of  Mr Knight’s  prior  opportunities  to  assess  his  position  on  an adequately informed basis.

Other mitigating factors

[32]     Counsel for Mr Knight submits that there are three mitigating factors that the

Judge failed to take into account in sentencing, namely:

•    Mr Knight’s youth;

•    the fact that Mr Knight apologised for the offending the day after it occurred;

and

•    Mr Knight’s ADHD and alcoholism.

[33]     Mr Knight was 20 years of age at the time of the offending.  Under s 9(2)(a) of the Sentencing Act, the age of the offender must be taken into account when setting  a  sentence.    The  commentary in  Adams  on  Criminal  Law  –  Sentencing identifies four grounds that may be relevant to taking relative youthfulness into

account:[7]

[7] Bruce  Robertson  (ed)  Adams  on  Criminal  Law  –  Sentencing  (looseleaf  ed,  Brookers)  at

[SA9.17].

[34]     However, none of those reasons apply in this case.  This was not a case of youthful indiscretion, but a serious assault by a person with a history of violent offending (two convictions for assault in 2008, and one for threatening behaviour in

2009).  Nor can it be said that Mr Knight appreciated that what he did was wrong but did not understand its full gravity.  In respect of Mr Knight’s lack of maturity, he is

20 years of age and has committed previous offences.   While his hopes for rehabilitation should not be extinguished, it is relevant that he has previously been before the courts but has not changed his ways.   It is important that the emphasis here be on rehabilitation.  However, there is no indication that the Judge did not have Mr Knight’s  need  to  be  rehabilitated  in  mind,  especially  given  the  Judge’s acknowledgment of his alcoholism.

[35]     Accordingly, there are no age-related factors that could justify any discount on the sentence imposed.

[36]     Mr Knight’s apology comes within the expression of remorse.  The Court of Appeal held in Hessell that it would be contrary to well established authority for a discount for remorse to be given distinct to that given for a guilty plea.[8]    Here a discount was given for Mr Knight’s guilty plea, so a distinct credit for actions of remorse would only be given if it was “exceptional remorse, demonstrated in a practical and material way...”.[9]   It is not such a case.

[8] At [24].

[9] At [28].

[37]     The final matter is whether the Judge should have given explicit credit for the ADHD and Mr Knight’s alcoholism.   Section 9(3) of the Sentencing Act provides that intoxication is not to be treated as a mitigating factor.   Further, the Court of Appeal in R v Moon held that alcoholism may also not qualify as a mitigating factor.[10]  In respect of the ADHD, the symptoms of that disorder were being treated with medication, and the inadequacy of that treatment appears to be due, at least in part, to Mr Knight’s consumption of alcohol.  I am satisfied that neither intoxication nor  alcoholism  can  be  a  mitigating  factor.    Given  the  circumstances  in  which

[10] R v Moon CA366/02, 27 February 2003.

Mr Knight’s  drinking  appears  to  neutralise  the  control  that  medication  might otherwise provide for his ADHD condition, it is unrealistic to expect the Judge to have treated that as a mitigating factor.

Conclusion on lead conviction

[38]     Application of the full one third discount for early guilty plea would reduce the end point on the lead sentence from two years and three months to two years. Mr Webber urged that no alteration of the sentence was required because, on a final standing back, it could not be established as manifestly excessive, and that aggravating factors not taken into account by the Judge would in any event justify the end point at which the Judge arrived.   Concern might also be raised that an

alteration of three months relative to a sentence of two years and three months is close to tinkering, so as not to be justified.

[39]     These factors do not dissuade me from upholding the appeal to an extent that demonstrably provides the full extent of discount which I am satisfied is appropriate.

[40]     Any   reduction   in   the   period   of   imprisonment   raises   the   spectre   of reconsidering home detention as an option.  The Judge was firmly against that as an appropriate sentence:[11]

[11] New Zealand Police v Knight (Sentencing Notes) DC Upper Hutt CRI-2010-078-239, 26 May

2010 at [20].

I wish to address the issue of home detention first.  I am sorry to say that I do not think it is appropriate given the seriousness of the assault committed in your home, the fact that there is some difficulty and tension within the home, your lack of self control, your abuse of alcohol, your offending whilst on bail for the obstruction charge, your breach of bail, your failure to complete community work in my view and the seriousness of the assault as I said do not make this an appropriate case for home detention.

[41]     Those  factors  apply  equally  to  a  sentence  of  two  years  and  I  am  not persuaded that there was any error in the Judge’s reasoning for rejecting home detention as an option.

Appeal on sentence on threatening to kill convictions

[42]     Ms Butland separately advanced argument that the concurrent sentence of

12 months’  imprisonment  on  the  two  convictions  for  threatening  to  kill  was manifestly excessive.  She acknowledged that it has no immediate practical impact, as the concurrent status of the sentence on these convictions means that they will be served  within  the  period  served  for  the  longer  sentence  on  the  conviction  for injuring.  However, she made the valid point that in terms of Mr Knight’s criminal record, if a sentence of 12 months’ imprisonment is out of proportion with the criminality of the conduct involved, then his overall criminal record is made to look worse than is justified.   It is therefore valid to consider the sentencing on the convictions for threatening to kill in its own context.

[43]     Mr Webber accepted that the Judge was under a misapprehension as to the factual circumstances in which the threatening to kill offences occurred.  The Judge was under the impression that the threats were issued by Mr Knight when he was initially confronted by the Police officers in Mr Knight’s own home.   In fact, the threats were issued at a relatively advanced stage of Mr Knight being processed at the Police station, after being charged.  Ms Butland suggested that the threats were issued at a time when it was physically impossible for him to make contact with the Police  officers  threatened,  and  the  connotations  of  threats  in  this  very different context must substantially reduce the relative seriousness of the conduct involved in the offending.

[44]     Mr Webber was inclined to accept my suggestion that a conviction after entry of an early guilty plea for a threat issued without any immediate prospect of carrying it out, within the confines of a Police station, ought to attract a sentence within a range including three months’ imprisonment.

[45]     That was the sort of outcome that Ms Butland contended for, and I accept that she has established a material error in that the sentencing Judge was under a misapprehension as to the factual context.

[46]   I accordingly grant the appeal against sentence on the convictions for threatening to kill, and substitute terms of imprisonment of three months, to be served  concurrently  with  the  longer  sentence.    That  aspect  of  the  appeal  has succeeded to the  extent that the lead sentence is reduced from two  years three months, to two years’ imprisonment.

Dobson J

Solicitors:

John Gwilliam & Co Ltd, Upper Hutt for appellant

Crown Solicitor, Wellington for respondent