Luke v The Queen
[2011] NZCA 150
•13 April 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA715/2010 [2011] NZCA 150 |
| BETWEEN PATRICK THOMAS LUKE |
| AND THE QUEEN |
| CA716/2010 |
| AND BETWEEN FREDERICK WILLIAM THOMPSON |
| AND THE QUEEN |
| Hearing: 28 March 2011 |
| Court: Arnold, Keane and Fogarty JJ |
| Counsel: J C Hannam for Appellant Luke |
| Judgment: 13 April 2011 at 11.00 am |
JUDGMENT OF THE COURT
The appeal against sentence of two years, two months for injuring with intent to injure is dismissed.
REASONS OF THE COURT
(Given by Keane J)
In July 2010 Patrick Luke and Frederick Thompson went to trial in the District Court, New Plymouth, charged jointly with two violent offences on 24 October 2009 against their flatmate, S, at the home they then shared: wounding him with intent to cause him grievous bodily harm, then injuring him with that intent.
Before the Crown case closed the appellants pleaded guilty to a single lesser offence on an amended indictment, injuring with intent to injure. This was a very much less serious offence than those with which they were first charged. The original first count had carried a maximum penalty of 14 years’ imprisonment, the second a ten year maximum. The count to which they pleaded carried a five year maximum.
On 12 October 2010 the trial Judge, Chief District Court Judge Johnson, sentenced each of the appellants to the sentence they now appeal as manifestly excessive.[1] He first took a starting point of three years. Then, to take account of S’s contribution to the incident, he reduced that by three months to two years, nine months. Then, to credit each with his guilty plea, Judge Johnson reduced that lesser figure by 20 per cent, rounded off to seven months, to produce an end sentence of two years, two months imprisonment.
[1] R v Luke and Thompson DC New Plymouth CRI-2009-043-4591, 12 October 2010.
This appeal against sentence goes only to the extent of the discount for the guilty pleas. Each appellant contends that, according to this Court’s decision in R v Hessell,[2] which then still applied, they pleaded at the first reasonable opportunity. They were entitled, they contend, to a full one-third discount.
Amendment to indictment
[2] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
The Crown case at trial, on the indictment as it was originally, so far as we have it, was that late on the evening of 24 October 2009, all three were at home together. They had been at a party and were drunk. They argued in the downstairs lounge. Mr Luke punched S to the head several times with a closed fist, and knocked him to the floor unconscious. That was the basis for the original first count, wounding with intent to cause grievous bodily harm.
Later, according to the Crown case, when S found himself upstairs on the floor of his bedroom, Mr Luke, after speaking of breaking his jaw, lifted his head and kneed him several times under the jaw, and punched him to the face. Then Mr Thompson also punched him twice to the face, while Mr Luke held his head up. That was the basis for the original second count, injuring with intent to cause grievous bodily harm.
The incontestable result was, however S was assaulted, that he suffered three fractures to his face. One fracture, to the middle of his face, was repaired surgically by inserting a plate. The two others to his jaw, one to each side of his face, could not be repaired because of the risk of facial paralysis.
At the time of the incident, according to the Crown case, Mr Thompson admitted to punching S twice to the head intending to knock him out. That was necessary, he said, because S had become aggressive. He denied kneeing him to the head. Mr Luke, some days later, when he was apprehended, admitted that there had been a fight. That was as much as he was then willing to concede.
At trial, after S had given his evidence, as had two eye witnesses and the surgeon who made the repair, and before the Crown case concluded, the Crown applied to the Chief Judge for leave to amend the first count to allege injuring with an intent to injure and leave to withdraw the second count. The appellants pleaded guilty to the substituted count and the trial concluded.
Decision under appeal
The amendment to the indictment was made, the Chief Judge said on sentence, despite the fact that “the starkness of the injury was very, very clear” because of the “quality” of the evidence S gave. S had “plainly been highly intoxicated and contributed to the violence which took place that night by triggering the rather low threshold for violence” of the two appellants.
The amendments made, and the pleas entered, the Chief Judge said, were of value to both Crown and defence. They brought an end to “what was turning out evidentially to be a difficult case but one where responsibility lay somewhere quite plainly.” The Chief Judge accepted that the appellants were entitled to a 20 per cent discount for plea. He did not accept that they had pleaded at the first reasonable opportunity and were entitled to a full one-third discount.
This Court in Hessell, the Chief Judge accepted, did envisage a full discount where a plea is entered to an indictment amended on the first day of trial.[3] He did not accept that this was such a case. Here, he said, the amendment was made and the pleas entered “[i]n the course of the trial, after the Crown had finished, the defence had begun and some evidence had been given”.
[3] Hessell at [44].
In Hessell, the Chief Judge said, a plea was not considered to have been entered at the first reasonable opportunity, if it were entered after a dispute of facts was resolved, or plea bargaining, or a challenge to admissibility of evidence, or the position of co-accused was ascertained or a sentence indication.[4] The Court in Hessell, he said also, held that the discount to apply should not require the sentencing Judge to weigh the relative merits of the prosecution and defence cases at the time of plea.[5]
[4] Hessell at [31]–[32].
[5] Hessell at [38].
Finally, the Chief Judge mentioned that one of the reasons this Court gave why a plea at the first reasonable opportunity did justify a full discount was the saving to the State.[6]
Conclusions
[6] Hessell at [13].
The Chief Judge was incorrect, we understand, when he said that the indictment was amended and the pleas to the substituted count entered during the defence case. That happened, as we set out earlier, during the Crown case. But we see that as incidental. According to the Hessell principles as they then were, the Chief Judge was right to conclude that the appellants were not entitled to any greater discount than he gave.
The appellants did not plead at the first reasonable opportunity. They pleaded in the course of trial. None, therefore, of the three reasons for a full one‑third discount applied. The complainant and other witnesses were not spared having to give evidence. The State was not spared the cost of trial. The appellants did not obviously exhibit remorse.[7]
[7] Hessell (CA) at [13].
Nor do we accept that the appellants had to go to trial because the Crown was unwilling before trial to reduce the charges to those that were substituted eventually. If they had been prepared to plead before trial to the offence to which they finally pleaded guilty, they could, as envisaged in Hessell, have set that out in writing well before trial in a letter to the Crown, a copy of which could have been filed in Court.[8]
[8] Hessell at [43].
Nor do we consider that the Supreme Court’s Hessell decision assists the appellants.[9] The Supreme Court did require that any credit for plea reflect all the circumstances and whether it was in truth early or late and the strength of the Crown case.[10] But the 20 per cent discount the appellants received was close to the maximum the Supreme Court countenanced for a guilty plea, 25 per cent. The Court said also that after a trial has commenced there needs to be “real justification” before any credit is given.
[9] Hessell v R [2010] NZSC 135, (2010) 24 CRNZ 966.
[10] At [74]–[77].
There is no other basis on which the sentence the Chief Judge imposed is said to be manifestly excessive. We are satisfied that the sentence imposed was proportionate to the appellants’ eventually admitted offences. Their appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent.