Lusty v R

[2012] NZCA 275

IN THE COURT OF APPEAL OF NEW ZEALAND

CA48/2012
[2012] NZCA 275

BETWEEN  CHRISTOPHER JOHN LUSTY
Appellant

AND  THE QUEEN
Respondent

Hearing:         18 June 2012

Court:             Glazebrook, Fogarty and Allan JJ

Counsel:         A R Laurenson for Appellant
P D Marshall for Respondent

Judgment:      27 June 2012 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
___________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

1. The appellant was sentenced at the New Plymouth District Court (by Judge Roberts) on 13 January 2012 to a total of 18 months’ imprisonment in relation to two charges of male assaults female and one charge of threatening to kill, all of which arose out of the same incident.[1]  He had previously pleaded guilty to a charge of breach of a protection order arising from the same incident and in that respect had served one month’s imprisonment.

The incident

[1]R v Lusty DC New Plymouth CRI-2011-043-1212, 13 January 2012.

1. At about 12.30 am on 13 April 2011, the appellant and the victim were at his home address.  About a year before, a full protection order had been issued by the New Plymouth District Court, protecting the victim against the appellant.  The couple had resumed living together.  They were arguing, and the argument escalated when the appellant turned physical, pushing the victim off the bed and onto the floor.  As she stood up he grabbed her and forced her down on the bed, using one of his arms to hold her there, and held the other arm across her throat restricting her airway.  She attempted to break free, but he grabbed her hair and started pounding her head into the bed numerous times.

2. She managed to struggle free and tried to leave the room when he grabbed her a second time, with both hands, pushing her up against the wall, and started to punch her on or about her face.  Letting her go from the hold, he then told her he “was going to kill her and make her life hell”.  She then escaped to a nearby neighbour’s address.  She suffered bruises to both her arms, her head, and soreness to her jaw.

Amendment of charges prior to guilty plea

1. The appellant was originally charged with: breaching a protection order; threatening to kill; and, thirdly, injuring with intent to cause grievous bodily harm.  He entered a plea of guilty to the breach of the protection order charge and was sentenced to one month’s imprisonment and was committed to trial on the other two charges.  The next step was that the Crown dropped the grievous bodily harm count and filed an indictment containing four counts of male assaults female and one count of threatening to kill.  This was in July 2011.  There were further discussions between counsel, and as a result the assault aspects of the incident were reduced to two counts of male assaults female.  The count of threatening to kill remained.  The appellant then entered pleas of guilty in relation to the three charges in October 2011. 

The full pre-sentence report

1. The appellant was 22 years old at the time the pre-sentence report was prepared.  He has a significant criminal history, amassing over 30 convictions since 2006, many of which were violent in nature, though not domestic.  At his interview for the pre-sentence report the appellant maintained his initial statement to the police after the incident that his offending was in self-defence.  The report-writer thought he showed some insight into his offending as he discerned that his initial mistake was returning to a harmful relationship and not removing himself from the situation earlier.

2. He was considered by the report-writer to be at high risk of further offending.  There was a recommendation for a sentence of community work and home detention. 

The sentence

1. Having narrated the facts of the incident, Judge Roberts recorded that he had discussed the previous convictions with the appellant’s counsel, noting that many of them were for non-domestic violence, in particular:  assault with intent to injure (2007),  wounding with intent to injure (2008), injuring with intent to injure (2009), common assault (2009) and three more common assaults in 2010.[2] 

   [2]At [7].

2. The Judge considered the recommendation of a sentence of community work, perhaps with home detention.  He then reviewed the incident, noting that the threat to kill was made after the assault and that the victim would have felt the threat was a real one given the violence she had just suffered.[3]

   [3] At [17].

3. The Judge adopted the Crown’s submission that the threat to kill was the lead charge.  The Crown recommended a starting point of 12 months, with elevations to accommodate the combination of offending and the appellant’s previous convictions.  The argument in response to that approach by the appellant’s counsel was to accept the Crown’s starting point of 12 months but to argue that the aggravating and mitigating factors essentially cancelled any escalations out.[4]  The Judge followed the Crown’s approach.

   [4] See [15] and [16].

4. The Judge took as aggravating factors:  breach of the protection order; the actual violence that preceded the threat to kill; some premeditation; a breach of trust (the victim was living with the appellant at the time); the attack to the victim’s head and her injuries.[5]  He reached an end sentence of 20 months. 

   [5]      At [19]–[22].

5. He then turned to the guilty plea.  It will be recalled that originally the appellant had been charged with intent to cause grievous bodily harm.  That count had been removed and substituted with four counts of male assaults female, later reduced to two.  The Judge allowed a partial credit for what might otherwise be an early plea of two months (ten per cent).  That reduced the sentence to 18 months.[6]  He did not make any deduction for the one month sentence already served and he allowed no additional credit for remorse or rehabilitation.  Most of his analysis was on the issue of whether or not there should be home detention, which he rejected, but included in that rejection was a note that rehabilitative sentences had been previously imposed.[7] 

Appeal in this Court

[6] At [24].

[7] At [29].

1. Mr Laurenson argued that the ten per cent reduction for the guilty plea was insufficient.  It should have been 15 per cent.  In his submission the Judge should have recognised that the reduction in charges justified a delay in entering the plea. 

2. The most significant reduction in charges was the abandonment in July of the grievous bodily harm charge.  As to the number of assaults, there was essentially one incident, which was originally split into four male assault female charges and then reduced to two.  But the sentence was always going to reflect the culpability of the entire incident.  The pleas of guilty in October were not “early” as defined in Hessell v R,[8] but on the other hand not “very late”.[9]  The discount given by the Judge was within the appropriate range, and we do not disturb it.

   [8]      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

   [9]      Hessell at [76].

3. As to the earlier one month sentence for breach of the protection order, plainly it was an election by counsel to allow that sentence to be imposed pending resolution of the other charges.  Judge Roberts had not lost sight of that sentence.  He records it at the beginning of his sentencing remarks.  If it was brought into account the most it could do is reduce the sentence by one month.

4. As to the third ground of remorse and other mitigating factors, the argument in this Court was that there has been a change in attitude shown by the young appellant.  This was primarily demonstrated by a shift in attitude as an employee and an improvement in his response to community-based sentences, both of which the Judge noted.  Counsel also relied upon the note in the pre-sentence report that the appellant did have some insight into his offending, as we have previously noted.  Overall, however, we think the pre-sentence report indicates that the appellant showed little insight into his offending inasmuch as he continued to blame the victim for the assault, saying it was in self-defence.  There is ample material on the file to support the sentencing Judge’s decision to make no additional discount for remorse.

5. We are left then with the only possible alteration to the sentence, by taking into account the month served for the breach of the protection order.  It would have been desirable if the sentencing Judge had specifically addressed that month at the point of setting the term of imprisonment.  But the fact he did not is not significant, when measured against the total sentence of 18 months.  The sentence arrived at was appropriate to reflect the totality of the offending.

6. For these reasons we are of the view that the appellant has not made out an argument for disturbing the sentence imposed in the District Court.

7. The appeal is dismissed.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent