Mackwood v Police HC Auckland CRI-2011-404-337
[2011] NZHC 1826
•17 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-337
BETWEEN MASEN PIRIPI JEREMIAH MACKWOOD
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 November 2011
Counsel: F Pereira for Appellant
J Blythe for Respondent
Judgment: 17 November 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 17 November 2011 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Frank Pereira (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
MACKWOOD V POLICE HC AK CRI-2011-404-337 17 November 2011
Introduction
[1] By notice of appeal dated 6 September 2011 the appellant appeals his sentence of two years one months’ imprisonment imposed by Judge JH Lovell-Smith in the District Court at Manukau on 19 August 2011.
[2] The essence of the appellant’s submissions is that his sentence was manifestly excessive because the Judge gave insufficient credit for mitigating factors. He submits that had sufficient credit been given then his sentence would have been within the range at which home detention could be considered. In the circumstances, home detention was the appropriate sentence.
Jurisdiction
[3] An appeal against sentence from the District Court to this Court proceeds by way of rehearing.1 That is to say, although my inquiry focuses on whether the sentence imposed by the District Court Judge was clearly excessive, my decision on that point is one for me to make without giving particular deference to the findings of the District Court Judge. I can, of course, find guidance in her reasoning but I must make my independent decision.
The facts
[4] The appellant was charged on 17 January 2011 with wounding the victim with intent to cause grievous bodily harm 10 days earlier, on 7 January 2011. The charge was originally laid under s 188(1) of the Crimes Act 1961 but was amended by consent on 15 June 2011 to a charge under s 189(1) of that Act, being injuring with intent to cause grievous bodily harm. The former charge has a maximum sentence of 14 years’ imprisonment and the latter has a maximum penalty of
10 years’ imprisonment.
[5] A sentence indication hearing was held on 15 June 2011 (the date on which the information was amended by consent), following which a plea of guilty was entered to the charge.
[6] The charge related to an incident in which the victim, who was known to the appellant, was lured to an address in Mangere by a telephone call from a friend who is related to the appellant. The summary of facts describes what happened at the address:
Once at the rear of the property the victim spoke with an associate, Stuart
Mackwood.
The victim then turned around and saw the defendant, Masen Mackwood, standing approximately two metres away holding a baseball bat in his hand.
Masen began to swing the baseball bat while walking towards the victim.
The victim was then hit once to the head area with the baseball bat causing him to fall to the ground.
While on the ground the victim used his hands to cover and protect his head. The victim was then hit with the baseball bat five times to the left and right
side of the body.
He was hit once to the left shoulder.
The defendant then stopped and threw the baseball bat down and moved away.
While on the ground the victim looked up and saw the defendant, Joseph
Mackwood, holding a piece of wood walking towards him.
Joseph approached the victim and hit him across the face with the piece of wood.
At this point other occupants of the address intervened and stopped the assault from continuing.
[7] As a result of the attacks on him, the victim suffered the following injuries:
Three lacerations to the head requiring staples (I note that it is not clear which of the two attackers caused the lacerations);
Bruising to the upper left shoulder; Bruising to the right side of the body;
Bruising to the left side of the body;
Two broken ribs on the right hand side; Contusion to right lung.
[8] The appellant initially denied the allegations when spoken to by the Police.
[9] At the time of the offending the appellant was 25 years old, having been born on 29 March 1985. He has relevant convictions for offending which occurred in January 2009. The offending was assault with intent to injure, male assaults female, and threatening to kill/do grievous bodily harm. A sentence was imposed on him on
15 July 2009 and consisted of one year’s intensive supervision plus 100 hours’
community work.
[10] Prior to sentencing, on 27 July 2011, a restorative justice conference was held. At the conference the appellant gave an explanation for attacking the victim. Essentially, the explanation was that a whanau member had tricked him into attacking the victim by telling him that the victim was out to get him. The appellant apologised. The victim accepted the apology. The appellant “produced a stylish unique t-shirt for any damage he may have caused to the victim’s clothes” and gave him $100 in reparation for a mobile phone that had apparently been damaged in the
attack.2
[11] The pre-sentence report noted that the appellant had been in employment for the previous four months as a mobile salesman. His employer spoke highly of the appellant.
[12] The pre-sentence report considered that the appellant was at a low to moderate risk of reoffending. Home detention was considered an appropriate sentence but a short term of imprisonment was recommended, with a release condition relating to attendance at suitable programmes or counselling as might be directed by a probation officer.
[13] The District Court Judge accepted that the restorative justice conference had been particularly successful, accepted that the appellant’s remorse was genuine and that he had stopped his assault on the victim immediately he realised that what he was doing was wrong.
[14] Having discussed the aggravating and mitigating factors (to which I will return later in this judgment), the District Court Judge fixed a starting point of three years’ imprisonment with an uplift of three months to take account of the previous convictions for violence. The final sentence of two years and one month’s imprisonment included a discount of 25% for the guilty plea. This means the District Court Judge gave a 14.5% discount (5.6 months) for the other mitigating factors.
Defence points on appeal
[15] Mr Pereira for the appellant submitted:
(a) The manipulation of the appellant by a relative to commit the offence was a mitigating factor reducing culpability. The District Court Judge erred in not recognising that and affording it a separate discount. A reduction from the starting point of two months should have been given.
(b)The District Court Judge erred in regarding the use of a weapon and the attack to the head as distinct aggravating factors. Consequently the starting point was too high.3
(c) Insufficient discount was given for remorse and the positive outcome of the restorative justice conference.
3 Flavell v R [2011] NZCA 361 at [22].
(d)Insufficient regard was had by the District Court Judge to the impact on the appellant’s family of a sentence of imprisonment. No specific discount was given for this factor. The appellant had been the main provider for the family which was now reduced to living on welfare benefits. The income was insufficient to cover the family’s living costs. As an aside, I note that a sentence of home detention would make it impossible for the appellant to resume his job as a mobile sales representative. However, the employer was in Court for the appeal against sentence hearing and made no demur when Mr Pereira indicated that it was likely that the employer might make some other suitable form of employment available that would be compatible with home detention.
(e) The District Court Judge erred in giving insufficient recognition to the positive progress the appellant had made prior to sentencing, particularly through his newly found employment.
(f) The District Court Judge erred in not giving a specific discount for the five months spent by the appellant on night-time curfew as part of his bail conditions.
[16] Mr Pereira also attempted to persuade me that [25] of the District Court Judge’s decision suggested that Judge Lovell-Smith may have withheld full credit for mitigating factors “on the basis of anticipated leniency of the Parole Board”.4 I have read the paragraph. No such inference can be drawn. I do not consider the matter further.
[17] As set out above, the final submission on behalf of the appellant was that the District Court Judge should have concluded that a short term of imprisonment of two years or less was appropriate and that the end sentence should be one of home detention.
[18] The Crown rejects the submissions on behalf of the appellant that the District Court Judge erred in her consideration of the aggravating and mitigating factors. Even if the District Court Judge was incorrect to take into account both use of a weapon and the presence of an attack to the head as distinct aggravating features of the offending, she does not appear to have relied on those factors in setting the starting point. Her starting point of three years’ imprisonment is at the lowest end of
the available range put forward for band 1 offending in R v Taueki.5 The Crown’s
submission is that the starting point was lenient in the context of such serious unprovoked violence.
[19] It was submitted that the District Court Judge was correct not to give any discount to the appellant on the basis that he was “manipulated”. He was not under duress. He chose to take part in the attack. He was not a secondary party and indeed initiated the violence. Further, he continued striking the victim after his first blow to the head had knocked the victim to the ground. He caused significant injury including broken ribs. Crown counsel distinguished R v Spijkerbosch.6
[20] Appropriate credit was given for mitigating features. Approximately six months’ discount was given for the mitigating features personal to the appellant. This amounted to 14.5% of the starting point. The Judge identified remorse, a supportive family and employer, and the restorative justice conference as falling within the factors for which credit could be given. The District Court Judge also noted the relatively positive pre-sentence report and the fact that the appellant had complied with his bail with a curfew. Although the District Court Judge did not favour that factor with a discrete discount, she did provide a 25% discount for the appellant’s guilty plea.
[21] Overall, and this the Crown submits is the significant point, the end sentence cannot be said to be manifestly excessive.
[22] My evaluation is of the final sentence reached by the District Court Judge. If that is within the available range for the offending then whether or not I agree with how it was reached is moot.7 My primary concern is whether the end sentence was manifestly excessive.
[23] In my view, the sentence handed down by the District Court Judge was at the lower end of the range available to her:
(a) The charge was under s 189(1) and not under s 188(1) (the latter being the section directly addressed in R v Taueki). In arriving at the appropriate starting point the Taueki guidelines must be suitably recalibrated to reflect the relative seriousness of the charge,8 although that adjustment does not entail a strict mathematical exercise.9
In this case, the use of violence was premeditated, deliberate and highly dangerous. A weapon was used and the first strike was to the head. Subsequent blows while the victim was on the ground and defenceless caused injuries including two broken ribs. The District Court Judge would have been perfectly entitled to have adopted a higher starting point. By comparison, I view the appellant’s actions
as much more serious than the offending of Mr Vagaia in R v Ati,10
which involved a single blow to the victim’s head with an unbroken beer bottle and punches to the victim, including his head, in a relatively impulsive attack. The injuries inflicted were not severe in themselves (although the subsequent actions of his co-offender were lethal). The starting point imposed in that case was three years three
months’ imprisonment.
7 R v Xie [2007] 2 NZLR 240 (CA) at [16]; R v MacCulloch [2005] 2 NZLR 665 (CA) at [50];
R v Hassan [1999] 1 NZLR 14 (CA) at 16.
8 R v Taueki at [9].
9 R v Lambert CA456/05, 4 April 2006 at [22].
10 R v Ati HC Auckland CRI-2006-092-16228, 24 April 2008, Asher J at [26]–[28].
(b) The granting of a full 25% discount for the guilty plea was generous.
It was not entered at the first available opportunity. It was entered in the context of a sentence indication hearing held five months after being charged at which the available inference is that a charge bargain was entered into. Given the fact that the appellant and the victim were known to each other and the number of witnesses involved, a conviction was inevitable. It was certainly open to the District Court
Judge to grant a lesser discount.11
(c) In cases of serious violence, discounts for factors personal to a prisoner, which are not out of the ordinary, are necessarily limited. It would be an unusual case where a discount of more than 15% was allowed for the factors cited by Defence counsel. That is assuredly the case where, as here, the appellant could not claim the benefit of a good character, having relatively recently been convicted for serious violent offending. From the uplifted starting point, the global
discount12 for all mitigating factors was 36%, which was in no way
inadequate.
[24] The sentence is not manifestly excessive. The appeal is dismissed.
Brewer J
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