L v Police HC Invercargill CRI 2010-425-2

[2010] NZHC 240

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-425-000002

L 

Appellant

v

POLICE

Respondent

Hearing:         8 March 2010

Counsel:         S Vidal for Appellant

M Mika for Respondent

Judgment:      9 March 2010

JUDGMENT OF FOGARTY J

[1]      On  22  January  2010  the  appellant  was  convicted  and  sentenced  on  six charges:

1.        Injuring with intent to injure

2.        Assault with a weapon

3.        Assault with intent to injure

4.        Male assaults female

L   V POLICE HC INV CRI 2010-425-000002  9 March 2010

5.       Breach of community work

6.       Breach of supervision

[2]      The Judge took as the lead sentence the first charge of injuring with intent to injure which took place on 16 August against a 41 year old male outside the Night n Day in Invercargill.  The victim had gone into the shop to buy food.  The appellant had come up behind him.  The appellant threatened saying:

Let me go first or I’ll step you out.

The victim went outside.   He was threatened there by the appellant.   The victim came back inside the shop to get away from the appellant.   He waited there then thinking the coast was clear we went back to his car.  The appellant had been waiting for him.  The appellant said:

We have got you now.

And punched him in the back.   The appellant’s associate held him and then the appellant set about him punching him with a barrage of blows, striking him all over his  head,  then  dragging  him  around  the  corner  into  a  darker  street  where  he proceeded to kick and punch him repeatedly over the head and body.   He managed to break away and examined his body.  The victim found he had bite marks to the arm.

[3]      The Judge considered that the injuries were more serious than had been suffered by the victim in the case of R v Harris [2008] NZCA 528, a recent Court of Appeal decision where the starting point was two years. Rather, the Judge thought that the degree of violence in this case justified a starting point of three years and three months. Judge Phillips justified this reasoning following guidance from the Court of Appeal in R v Taueki [2005] 3 NZLR 372 and another Court of Appeal decision: R v Highley CA164/06 13 September 2006.  He reasoned as follows:

[13]      The Court of Appeal in R v Hiley where a two year, nine month end sentence on a charge of injuring with intent to injure was imposed clearly sets the scenario here.   The Court of Appeal said that the principles from another tariff case for more serious criminal offending, Taueki, are relevant to sentencing on charges laid under s 189(2).  I have regard to the following

principles when considering the starting point for your sentence.  First, the premeditated violence;  that is that there was the attack from behind after he went out of the dairy and then that proceeded to kicking and punching him on the ground;   you attacked his head;   it was a vicious and continuing assault, thus serious;  there was more than one attacker.  It was unprovoked and gratuitous violence against a vulnerable victim.   The Taueki decisions banding means it would fall clearly within band 2 of that decision.   The decision of Taueki makes it quite clear that intoxication does not reduce the seriousness of your conduct.  In my view here, this is offending to the extent of where, when I have regard to other starting points in respect of charges of injuring with intent to injure, that an appropriate level for your starting point is three years and three months.   I then have regard to the other charges. Totality of overall sentencing must also be taken into account.   As I have already said the other matters involving violence are also serious, they involve gratuitous street violence against vulnerable victims;   unprovoked acts;  and on one occasion a threat of assault with the use of a broken bottle. You have the breaches of the community sentencing.  When I have regard to all of those matters, in my view to account for totality and having regard to the various charges the starting point of three years and three months should be uplifted by a total of nine months, making in all four years.   A further four months uplift is then imposed for the personal aggravating factors of your prior convictions for violence.

[4]      This appeal proceeded on the basis that the decision of Harris was a tariff decision by reason of paragraph [10]:

[10]      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 the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki.  On this  basis,  we  envisage  bands  and  starting  point  sentences  (ie  before allowance 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).

[5]      To my mind this case turns partly on a judgment as to the degree of severity of the harm and partly upon a judgment as to the weight to be given to the evidence of criminal intent.

[6]      I do not think that the Court in Harris was endeavouring to displace the kind of analysis of harm and intent that we see by Judge Phillips in paragraph [13] of his sentencing notes.    Judge Phillips  could  have  followed  the  bands  in  Harris  and reached the same decision, classifying this case as a Band 3.

[7]      I am not in any better position to resolve the questions of degree inherent in that analysis.  I do not see any error of principle in his analysis of harm and intent.  It is a severe sentence.  However, in my view it is justified on the facts.

[8]      The appeal is dismissed.

Solicitors:

Southern Law, Invercargill, for Appellant

Preston Russell Law, Invercargill, for Respondent