Mabry v Police HC Napier CRI-2011-441-34

[2011] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-34

BETWEEN  BRUCE MABRY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 October 2011

Counsel:         M J Phelps for Appellant

J D Lucas for Respondent

Judgment:      27 October 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 October 2011 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

AJS Phelps (Hastings) for Appellant

Elvidge & Partners (Napier) for Respondent

MABRY V POLICE HC NAP CRI-2011-441-34 27 October 2011

Introduction

[1]      On 5 August 2011, District Court Judge AJ Adeane at Napier sentenced the appellant to a total of 28 months’ imprisonment on a range of offences.  The offences fell into three separate categories and therefore the Judge had to impose cumulative sentences bearing in mind the totality principle.

[2]      The appellant appeals against only one of the sentences imposed by Judge Adeane.  This was in respect of one charge of assault on a child.  The Judge adopted a starting point of nine months’ imprisonment and reduced the sentence by 10% to eight months’ imprisonment to take account of a delayed guilty plea.

Grounds of appeal

[3]      The appeal is brought on the following grounds:

(a)      The starting point on the assault on a child charge was too high;

(b)The  discount  for  the  guilty  plea  on  the  assault  child  charge  was inadequate;

(c)       In  all  the  circumstances  of  the  case  the  sentence  was  manifestly excessive.

Facts

[4]      The summary of facts describes an incident which arose at the address which the appellant was sharing with his then de facto partner.  The partner’s son, aged 10, also lived at the address.  On the day in question the appellant’s son, who is older than the victim, was visiting.  The victim and the appellant’s son were involved in a play fight which escalated into a real fight. The summary of facts records:

As a result of this [the appellant] has then joined in and told his son ―this is how you do a Charlie‖  and proceeded to punch the victim forcefully to his leg.

As a result of this the victim has limped from the address to a neighbours house where he thought he would be safe.

According to the victim this was a substantial blow which left some bruising. When spoken to about this incident a number of days later [the appellant]

admitted punching the victim in the leg but said it was all play fighting.

Defence submissions

[5]      Mr Phelps for the appellant submits that the circumstances of the offence warranted a starting point of no more than three months’ imprisonment.  Further, a discount of at least 20% ought to have been applied.[1]

[1] In accordance with Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607

[6]      In support of the submissions Mr Phelps cites the following: (a)        The offending was not premeditated;

(b)      There was a single blow to the child’s leg;

(c)       The offending did not involve the use of a weapon; (d)          The context was not one of malice;

(e)       The injury to the victim (a bruise) was relatively minor.

[7]      Mr  Phelps  submits  that  the  appellant  readily  acknowledged  striking  the victim in the leg and has no previous convictions for assaulting a child.

[8]      So far as the discount for guilty plea is concerned, Mr Phelps submitted that a one month discount was inadequate given the following circumstances:

(a)       The plea was entered at a time when two further charges of assault against the same victim were withdrawn;

(b)The two assault charges that were withdrawn were the more serious charges and alleged that the appellant punched the victim in the face;

(c)       The guilty plea prevented the victim from having to give evidence;

(d)The guilty plea prevented the need for CCTV facilities to be utilised in Court.

[9]      Mr Phelps acknowledges that the pleas of not guilty to this charge and the two charges which were later withdrawn resulted in a defended hearing being scheduled for 28 March 2011.  That fixture had to be vacated to allow for a mode of evidence application to be heard and a new fixture date was set for 11 April 2011. The appellant failed to attend the fixture date but appeared on 27 April 2011 and a further fixture date of 14 June 2011 was set.  A guilty plea to the single charge was entered on 25 May 2011, at which point the other two charges were withdrawn.

[10]     Against the foregoing, Mr Phelps submits that a discount in the range of 20-

25% was appropriate.

Crown submissions

[11]     The Crown points out that having set the starting point, the District Court Judge made no uplift to take into account that the appellant was serving a sentence of community work at the time of the offending.[2]     There was also no uplift to the starting point to recognise the appellant’s previous convictions.[3]

[2] This was not a factor which was mentioned by the District Court Judge at any point during the sentencing.

[3] The appellant has the following record of criminal violence: common assault (1990); common assault  –  domestic  (1995);  common  assault  –  domestic  (1996);  common  assault  (2001); wounding with intent to cause grievous bodily harm (2005); assault with a weapon (2009).

[12]     The Crown refers to the dicta of the Court of Appeal in R v Pene[4]  where it observed, in respect of previous cases:

[4] R v Pene [2010] NZCA 387 at [12]–[13].

[12]     What is more, since these decisions, Parliament has changed the

Sentencing Act to emphasise its concern about cases involving violence

against, or neglect of, children under 14.  Section 9A was inserted into the Sentencing  Act  by  s 4  of  the  Sentencing  (Offences  Against  Children) Amendment Act 2008:

9A Cases involving violence against, or neglect of, child under 14 years

(1)      This section applies if the court is sentencing or otherwise   dealing   with   an   offender   in   a   case involving violence against, or neglect of, a child under the age of 14 years.

(2)      The court must take into account the following aggravating factors to the extent that they are applicable in the case:

(a)       The defencelessness of the victim:

(b)       In relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim:

(c)       The   magnitude   of   the   breach   of   any relationship of trust between the victim and the offender:

(d)       Threats by the offender to prevent the victim reporting the offending:

(e)       Deliberate  concealment  of  the  offending from authorities.

(3)	The factors in subsection (2) are in addition to any factors  the  court  might  take  into  account  under section 9.
(4)	Nothing in this section implies that a factor referred to in subsection (2) must be given greater weight than any other factor that the court might take into account.
[13]	That	amendment   was   passed   unanimously   by   the   House	of

Representatives  and  reflects  widespread  public  concern  about  violence

against and neglect of children.   If anything, it signals tougher sentences might be required.

[13]     The Defence placed some emphasis on the decision of White v Police[5] where the High Court reduced a sentence of 18 months’ imprisonment following a defended hearing on a charge of assault on a child.  The assault was a slap and a punch to the face of White’s 13 year old son and had caused a black eye.  Wild J considered that

the appropriate starting point was nine months’ imprisonment and gave an uplift of four-and-a-half  months  to  reflect  White’s  bad  history  of  violence  against  his children.

[5] White v Police HC Napier CRI-2008-441-34, 12 December 2008, Wild J.

[14]     Wild J summarised a number of relevant cases in reaching his decision.[6]

These decisions show that assaults  against children which do not  cause serious injuries will normally be met by a term of imprisonment, particularly where there are previous convictions for violence (and even moreso if those convictions include assaulting children).

[6] Ibid, at [45].

[15]     The Crown’s submission is that there is no tariff case for assault on a child. However, comparing the facts of this case with the one considered by Wild J in White, including the criminal histories of the appellants, the end sentence of eight months’ imprisonment in this case is within the range considered in White. When the introduction of s 9A into the Sentencing Act is further taken into account, there is nothing manifestly excessive in the sentence reached by Judge Adeane.

[16]     As a further submission, the Crown urges upon me not to lose sight of the totality principle.  The Crown submits that no matter how the case is looked at, the overall end sentence of 28 months’ imprisonment on all of the offending is not manifestly excessive.

Decision

[17]     This appeal proceeds by way of rehearing.   I have the same powers as the District Court Judge in considering an appropriate sentence.  Although the appeal is brought  only in  respect  of the  charge of assault  on  a child,  I can  nevertheless consider the whole of the sentence and make changes if my view of the exercise of the sentencing jurisdiction differs from that of the District Court Judge.

[18] Looking first at the charge of assault on a child, I consider that the District Court Judge’s starting point of nine months’ imprisonment was too high. The factors submitted by Mr Phelps and recorded at [6] above are cogent. In my view a starting

point of six months’ imprisonment was warranted.  However, I would not have given a discount for the guilty plea.  It came just before trial and in the context of a plea bargain which removed two of the charges the appellant then faced.   To give a further discount would be to confer a double benefit.

[19]     I therefore reach an end point on the assault on a child charge of six months’ imprisonment.      This   could   reduce   the   overall   sentence   from   28 months’ imprisonment to 26 months’ imprisonment, subject to the application of the totality principle.

[20]     The other relevant charges, in their groups and with the District Court Judge’s

starting points, were:

(a)       Driving  while  disqualified  –  third  and  subsequent  –  six  months’

imprisonment and disqualified for one year and a day; (b)     Male assaults female – nine months’ imprisonment;

Breach of a protection order (x4) – three months imprisonment on each (concurrent);

(c)       Attempting   to    pervert    the   course    of    justice    –    12   months’

imprisonment;

Breach  of  bail  and  breach  of  community  work  –  one  months’

imprisonment on each (concurrent).

[21]     Each of these sentences was reduced by 25% to take account of early guilty pleas, resulting in an overall sentence of 20 months’ imprisonment on these charges. It was the addition of the eight months for the assault on a child charge which brought the total to 28 months’ imprisonment.

[22]     At this point I must step back and consider whether the end point reached by the District Court Judge (28 months’ imprisonment) on the totality of the offending was clearly excessive or inappropriate.

[23]     Judge Adeane did not linger over his assessments of starting points.  Nor did he explain how factors such as the appellant’s criminal history might affect them.  I infer that he had the totality principle firmly in mind and that he made allowances in order to come to an overall sentence that he considered would properly address the overall charge picture.

[24]     I note particularly the Judge’s statement in [7] of his sentence:[7]

... The attempting to pervert the course of justice is always viewed seriously. Generally sentences will fall in the range of 18 months’ to three years’ imprisonment.  Given my intention to proceed cumulatively a starting point of 12 months’ imprisonment is adopted...

[7] R v Mabry DC Napier CRI-2011-041-1259, 5 August 2011.

[25]     The summary of facts in respect of this charge is to the effect that, after a number of approaches by the appellant to his adult female victim:

On the 22nd  of April 2011 the victim swore a false statement in front of a Justice of the Peace stating that the defendant was innocent of any assault. The defendant had sat down with the victim and constructed this statement.

[26]     In my view, the seriousness of this charge is towards the middle of the range. Taking into account the discussion on sentences for attempting to pervert the course of justice in R v Turner,[8] a proper starting point was in the range of two-and-a-half to three years.

[8] R v Turner [2008] NZCA 217.

[27]     Nevertheless, I find that the end point reached by the District Court Judge of

28 months’ imprisonment  for  all  of  the  offending  for  which  the  appellant  was sentenced was within the range properly available to him — although towards the top of the range given the cumulative effect of the sentences.

[28]     Sentencing is not a science.  A Judge strives to find a balance between the facts of a case, the purposes and principles of sentencing, and his or her assessment of the overall requirements of justice.  I have found that the sentence for assault on a child was too high by two months.  But I have also found that the overall sentence of

28 months’ imprisonment was not clearly excessive or inappropriate.   If I were to

simply allow the appeal in respect of the one charge then the balance would be disturbed because the overall sentence would be reduced inappropriately.

[29]     In these circumstances:

(a)      I allow the appeal in respect of the charge of assault on a child.  The sentence of eight months’ imprisonment is quashed and a sentence of six months’ imprisonment is substituted;

(b)I also quash the sentence of nine months’ imprisonment on the charge of attempting to pervert the course of justice.  I substitute a sentence of 11 months’ imprisonment;

(c)      The sentences on the other charges are confirmed.   The cumulative effect of all charges remains unchanged at 28 months’ imprisonment.

Brewer J