MacDonald v Police

[2012] NZHC 1767

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-12 [2012] NZHC 1767

BETWEEN  CASEY DAWSON MACDONALD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 July 2012

Appearances: K L McHugh for the Appellant

R W Donnelly for the Respondent

Judgment:      17 July 2012

ORALJUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel:

K L McHugh, AWS Legal, Invercargill. Email: [email protected]

R W Donnelly, Crown Solicitor, Invercargill. Email: [email protected]

MACDONALD V NEW ZEALAND POLICE HC INV CRI-2012-425-12 [17 July 2012]

[1]      The appellant faced one charge of wounding with reckless disregard, laid under s 188(2) of the Crimes Act 1961.  The maximum penalty for that offence is 7 years imprisonment.

[2]      To his credit the appellant pleaded guilty at an early stage.  On 31 January

2012, in the Invercargill District Court, Judge K J Phillips sentenced the appellant to a term of 2 years and 2 months imprisonment.  That sentence, in the circumstances (it being common ground it was appropriate so to do), was made cumulative on a sentence of 5 years imprisonment imposed in August 2008 for serious drug related offending.

[3]      The   appeal   challenges   the   end   sentence   of   2   years   and   2   months imprisonment.   Ms McHugh accepts that she must establish that the sentence was manifestly excessive.

[4]      The  offending  took  place  some  15  months  after  the  appellant  had  been released on parole.  In the early hours of the morning in October 2011 the appellant punched the victim, in the vicinity of a bar in Tay Street.  The incident appears (on the basis of the summary of facts) to have been unprovoked.  The appellant ran from the scene but was found shortly afterwards hiding in the ceiling of a bowling club.

[5]      The blow was potentially serious.  The victim was unconscious for a period of time.  A very brief medical report before the Judge, from Kew Hospital, refers to a fractured skull, a burst ear drum and a left frontal lobe brain haemorrhage.  The blow clearly could have had lethal consequences.

[6]      The Judge took great care with his sentencing methodology and factored in in some detail all the required R v Taueki[1] categories.  It is not necessary to set out that methodology.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[7]      The respective stances of counsel at sentencing were unremarkable.   Their submissions were not far apart.  The Crown for its part suggested a start point of 2 to

2½ years.   Ms McHugh for the prisoner urged a 2 year start point and with aggravating features submitted that 2½ years was the appropriate figure from which mitigating credits should be deducted.

[8]      The  Judge  adopted  the  higher  start  point  of  2½  years.    He  incorrectly suggested that this was a submission of defence counsel but he is mistaken in that regard.  Nothing hangs on that mistake, however.

[9]      I am satisfied the Judge correctly (even generously) seized on this start point to reflect overall culpability.   He observed that the appellant was drunk; was in breach of a parole condition which prohibited him from consuming alcohol; that the assault was unprovoked; that the victim was vulnerable; and that the blow had been to the victim’s head and caused serious injuries.  In my judgment, given the 7 year maximum, a possible start point of up to 3 years might have been permissible in these  circumstances.    There  is,  however,  no  criticism  by  me  of  the  Judge  for adopting 2½ years.  (I note, however, that the first point on appeal is that the start point was too high.)

[10]     The Judge then went on to increase his start point for personal aggravating features.  He pointed to the offending taking place whilst the appellant was on parole in respect of which he added 4 months.  He then referred to the appellant’s previous criminal history.   He rightly observed that history did not include serious violent offending.   However, for that previous history the Judge added what he termed a “modest uplift only” of a further 4 months (Ms McHugh’s second appeal point is that this latter addition was wrong in principle).  This brought the Judge to 3 years and 2 months imprisonment.

[11]   The Judge then applied a series of generous discounts.   Taking into consideration the appellant’s remorse, his supportive partner, and the fact that for some 15 months whilst on parole the appellant had carried out valuable work in the community, the Judge allowed 10%, reducing the figure to 2 years 10 months.  He then applied what he termed “full credit” for the guilty plea.  Although not expressed as a percentage this appears to be somewhere in the vicinity of 20% and equated in the Judge’s view to 9 months.  This, the Judge suggested (arithmetically incorrectly),

took him to 2 years 5 months.  A 9 month reduction from 2 years 10 months would produce 2  years 1 month.   Exactly why the Judge arrived at the former figure arithmetically, however, is unclear.  Indeed I think it likely there was an error.

[12]     The Judge then, very correctly, looked at the issue of totality given that he was being asked to impose a cumulative sentence on the 5 year sentence imposed. He reduced the 2 years 5 months, which he had arrived at, down to 2 years and 2 months.

[13]     It was only during the course of my delivering this oral judgment that it became apparent to both counsel and me that the Judge’s arithmetic was flawed. Had his arithmetic been strictly followed an end sentence of 1 or 2 months under 2 years would have resulted.  Ms McHugh fairly points out that had she picked this error this would have been an additional ground for her appeal.  I accept that, and indeed, as this judgment makes clear, have factored that in.  Nonetheless the ultimate test  of  whether  or  not  the  end  sentence  (reached  by  flawed  arithmetic)  was manifestly excessive would still have to be examined.

[14]     I have already foreshadowed the major appeal points raised by Ms McHugh in her highly competent submissions.  The first is that the start point was too high. The second is that the 4 month aggravating factor addition for previous offending was wrong.   Particularly in a situation where the sentence was cumulative on the most recent offending, double counting is inevitably involved.   I consider Ms McHugh is right in that regard.

[15]     Ms McHugh referred the Court to the Court of Appeal judgment of R v Kepu.[2]   This was a manslaughter appeal involving the killing of a prison officer by a blow  inflicted  by  the  inmate  appellant.     At  [19]  the  Court  of  Appeal,  in distinguishing the case before it from what it called “single punch” cases, referred to an appropriate starting point for cases of that type of 3 to 4 years imprisonment. Counsel’s submission saw some anomaly between the 2½ year start point for the appellant which was only 6 months lower than the 3 to 4 year single punch homicide

case.  I understand counsel’s submission, but do not regard it as being determinative.

Sentencing  tariffs  and  results  are  replete  with  anomalies  of  this  type.    Sexual violation sentences for instance will frequently exceed manslaughter sentences, the purported anomaly there being one victim was alive and the other dead.

[2] R v Kepu [2011] NZCA 104.

[16]     Given that serious head injuries were inflicted on the victim here by a single punch and given the 7 year maximum I do not consider that it is particularly helpful to argue by analogy from manslaughter cases.  A more appropriate analogy would be the R v Taueki[3]  serious violence bands.  I note that at the sentencing Mr Donnelly submitted for the Crown that the lower end of Taueki Band 2/top end Band 1 was appropriate.

[3] Above n 1.

[17]     I am of the view the Judge could well have ranged slightly higher than 2½

years without any criticism had he been so minded.

[18]     Care must be taken with counsel’s second point, being the additional 4 month uplift to reflect the appellant’s previous record.   The appellant unfortunately has a lengthy criminal history.  For my part, given that there was no history of violence of a serious nature (there was an assault in 2004), I would not have personally added on anything for this factor.   The more potent aggravating feature was this offending taking place whilst on parole and in breach of a parole condition.   Certainly, as I have said, Ms McHugh is right, that the Judge, by adding that 4 months in his calculations as part of the process in arriving at a cumulative sentence, indisputably double counted.

[19]     That said, what I must do is take a step back and consider whether the 2 years

2 months end sentence, which is cumulative to the 5 year term imposed in 2008, is manifestly excessive.  It is important to appreciate the role of appellate courts in this area.   The ultimate test is whether the sentence imposed is manifestly excessive. Appellate courts must, and indeed will, discourage sentencing appeals which seize on one or two points of the sentencing methodology and subject those particular features to criticism (albeit justified).  This approach was referred to recently by the

Court of Appeal in Ripia v R[4]  which involved an attack on a 44 per cent uplift for

[4] Ripia v R [2011] NZCA 101.

previous convictions in a sentence for an unprovoked punch to the mouth.   The

Court of Appeal cogently said at [10]:

We do not agree there is a rule that should be laid down.  Section 9(1)(j) of the Sentencing Act 2002 says that previous convictions must be taken into account, having regard to their seriousness and their relevance to the present sentencing exercise.  The extent then to which such convictions are taken into account, and the manner in which they are taken into account, is a matter initially for the sentencing judge.  On appeal, an assessment of the judge’s evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive.  No specific rules can or should be prescribed.

[20]     I myself, following precisely Judge Phillips methodology (assuming I agreed with it), would without difficulty have ended up with an end sentence of 1 year 11 months or 2 years.  But it is by no means clear I would have necessarily adopted the generous mitigating credits which the Judge made, or would have adopted his start point.   Had the Judge’s arithmetic been strictly correct he would probably have ended up with an end sentence in much the same area (26 months).  The assumption I am making there is that he would have given a 30 per cent discount across the board for all the mitigating features which he itemised.   Ms McHugh of course considers that he should have given a greater discount for that, being 25 per cent for the guilty plea, 10 per cent for remorse and good behaviour and another deduction to reflect totality.  On her calculations one would probably have ended up around 22 or

23 months.

[21]     Even accepting Ms McHugh’s calculations, however, I have, by a very short margin, reached the view that the end sentence of 2 years and 2 months, although with respect imperfectly arrived at, does not cross the threshold of being manifestly excessive.

[22]     For these reasons therefore this appeal will be dismissed.

.......................................…

Priestley J