Mareikura v R
[2012] NZCA 108
•27 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA551/2011 [2012] NZCA 108 |
| BETWEEN RICO HURIANO MANUELLA MAREIKURA |
| AND THE QUEEN |
| Hearing: 14 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: J B M Henderson for Appellant |
| Judgment: 27 March 2012 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of five and a half years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted.
CThe minimum period of imprisonment is quashed.
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REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant was convicted following trial in the District Court at New Plymouth on one count of wounding with intent to cause grievous bodily harm. On 29 August 2011 the appellant was sentenced by Judge Roberts to five and a half years imprisonment with a minimum period of imprisonment of one half of that sentence.[1] He appeals against that sentence.
Facts
[1] R v Mareikura DC New Plymouth CRI-2010-043-3769, 29 August 2011.
The appellant and his partner were walking down Egmont Street in New Plymouth when they encountered the victim, who had been drinking and was having trouble finding his car. They stopped to assist him. The Judge in his sentencing notes briefly described the events in these terms:
[2] As to the trial facts, your victim the complainant, was undoubtedly drunk and was a thorough nuisance. Whatever the trigger was for the initial exchange between the two of you, the independent evidence has both of you, you and your partner, and your victim in the middle of Egmont Street in a confrontation. I am in no doubt that he was then aggressive. I am in no doubt that in removing some of his clothing to the upper body he was seeking out with you confrontation. You were literally in retreat, backing away from him with your partner. In those circumstances, though, you produced a blade. You struck him in the side of his face, the blade penetrated his cheek, his tongue, damaged some of his teeth and severed an artery.
The victim’s wounds were serious. They required surgery, including stitches to his tongue which later burst and required re-hospitalisation. The blade went between two teeth causing major damage necessitating a complete rebuild of the bottom side of the teeth and removal of a wisdom tooth.
Sentencing remarks
The Judge regarded the offending as being within band two of R v Taueki,[2] and adopted a starting point of six years, which he described as:
[10] … slightly elevated from the base level of five years detailed in paragraph 37 in Taueki dealing with the band 1 street attack, having regard to the effect those injuries had on the victim.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
The Judge allowed a discount of six months from that starting point, to reflect electronically monitored bail where “for a period approaching seven months there were no instances at all of breach.” The Judge did not uplift the sentence to reflect the appellant’s previous convictions, which included an aggravated robbery in 1997 and offending in 1998 involving aggravated robbery, rape, and unlawful sexual connection. There was also a conviction for common assault in 2006. The Judge noted a lack of remorse. He imposed an end sentence of five and a half years.
The Judge imposed a minimum period of imprisonment of one half of that sentence. He said:
[15] As to the minimum non-parole period, having regard to the provisions of s 86(2) of the Sentencing Act, and having regard to the long period of your institutional existence where you are generally non-compliant, and recognising also the three instances of parole breach, I conclude that having focused on the issues of holding you accountable, denouncing your conduct, deterring you and protecting the public that a minimum non-parole period of half of the nominated sentence is appropriate. I am satisfied, given your history of offending, to sentence you on any other basis would simply be insufficient for sentencing purposes.
Points of appeal
Counsel for the appellant in his written submissions raises four issues:
(a)whether the six month discount was sufficient for the restrictive bail conditions;
(b)whether the Judge ought to have imposed a minimum period of imprisonment;
(c)whether the starting point of six years was excessive; and
(d)whether the Judge ought to have taken into consideration the conduct of the victim, under s 9(2)(c) of the Sentencing Act 2002.
Starting point and conduct of victim
We deal first, and together, with (c) and (d). In submitting that the starting point was excessive, counsel for the appellant notes that the Judge identified four aggravating factors under Taueki: namely extreme violence; serious injury; use of a weapon; and attack to the head. The Judge grouped serious injury and use of a weapon together, when applying those aggravating features to the Taueki banding. Counsel for the appellant submits that the offending falls within band one and seeks to draw a comparison with the sentence imposed in Lauaki v Police,[3] and Police v Pritchard.[4] He submits that the latter was more serious than the present case. As to the conduct of the victim, counsel for the appellant submits that in terms of [32] of Taueki, there was serious provocation which was an operative cause of the violence inflicted. In response to a Crown submission at sentencing that the appellant had ample opportunity to defuse the situation by other non violent means, Mr Henderson submits that the appellant was confronted with a real dilemma as follows:
(a)Prior to the assault that took place within seconds, Mr Mareikura was non-confrontational and in fact was the good Samaritan.
(b)Whilst retreating, the victim was advancing with his shirt off yelling at Mr Mareikura.
(c)The victim was much larger than Mr Mareikura.
(d)Mr Mareikura had his vulnerable girlfriend with him.
(e)The victim is no stranger to violent confrontations.
[3] Lauaki v Police HC Auckland CRI-2005-404-429, 2 March 2006.
[4] Police v Pritchard HC Auckland CRI-2005-404-42, 8 August 2005.
Counsel for the respondent submits that, whether the appellant’s offending is placed at the top end of band one or the bottom end of band two, the six year starting point adopted was within the available range. She submits that the Judge was entitled to place the appellant’s offending in band two because of the use of the weapon and the infliction of serious injuries to the victim’s head. While they were not life threatening, the act of driving a knife through another person’s face could well have resulted in much more serious injury. She notes the references by this Court in Taueki to street attacks. As to the victim’s conduct, she acknowledges that provocative conduct from a victim can lead to a reduction in sentence, but submits that while the victim’s conduct may have incensed the appellant it did not amount to serious provocation. She submits that the Judge recognised that the victim’s conduct was annoying, aggressive, and confrontational, but notes that the Judge emphasised the appellant was in retreat at the time of the offence and could have continued that backward path. She submits that the provocative conduct involved in Lauaki involved actions of a plainly dangerous nature exacerbated by the presence of the appellant’s wife and children. She submits it was open to the Judge to take the view that the victim’s actions, in this case, were not in that category.
We consider it preferable to deal with both the starting point and the conduct of the victim together. Section 9 of the Sentencing Act describes aggravating and mitigating factors that are to be taken into account. Where, as in this case, the conduct of the victim is directly related to the circumstances of the offending, we consider the appropriate point to have regard to that factor is in fixing the starting point. That is consistent with the approach in Taueki, which involves the fixing of a starting point having regard to all of the circumstances of the offending, and then determining whether the aggravating or mitigating factors relating to the offender’s particular personal circumstances require an adjustment to that starting point. In Taueki at [32] this Court treated provocation and excessive self-defence as matters to be addressed in fixing the starting point.
In this case, we consider that the conduct of the victim was a significant mitigating factor. The Judge clearly acknowledged the part that the conduct of the victim had played in the offending, in the passage which we have set out at [2]. He further commented that he knew the victim from his Court appearances in relation to violence and confrontation and described him as “no shrinking violet”. However, while the Judge recognised the victim’s role, he made no reference to it in discussing the relevant factors for assessing the starting point. He identified the relevant aggravating factors in Taueki, but did not refer at all to the mitigating factors referred to in Taueki at [32].
We do not think that it can properly be inferred that the Judge, having earlier described the conduct of the victim when describing the circumstances of the offending, has taken that factor into account, without specifically mentioning it, when assessing the starting point. The starting point of six years that he identified was an appropriate one having regard to the aggravating factors that he mentioned. We consider that if the starting point was intended also to reflect the conduct of the victim, it was excessive.
We therefore consider that the starting point must be adjusted to reflect the conduct of the victim. It was the victim who first became aggressive and confrontational. His conduct caused the appellant and his partner to back away. The appellant’s response was excessive, but the significant contribution of the victim by initiating the aggression and creating the situation to which the appellant reacted is a significant mitigating factor. We consider that an appropriate starting point, taking into account the victim’s conduct, would have been five years.
Restrictive bail conditions
The next issue for consideration is the extent of the discount for restrictive bail conditions. As the decisions of this Court in R v Tamou,[5] and Keown v R,[6] make clear, the assessment of the appropriate discount is not a mathematical exercise. The Judge allowed six months, for a period on electronically monitored bail of just under seven months with no breaches. We consider that was a generous allowance, having regard to the authorities to which we have referred. A deduction of six months from the starting point which we have adopted of five years leads to an end sentence of four and a half years. We consider that the sentence must be amended accordingly.
Minimum period of imprisonment
[5] R v Tamou [2008] NZCA 88.
[6] Keown v R [2010] NZCA 492.
That leaves the question of the minimum period of imprisonment (MPI). Mr Henderson submits that the Crown did not seek a MPI. Counsel for the Crown indicates that a memorandum was filed, after the Crown’s submissions had been filed, seeking the imposition of an MPI, and that this memorandum was served on counsel for the appellant. Mr Henderson advised that he had not seen it. We do not consider that it is necessary to investigate this point. When regard is had to the effect of the conduct of the victim in initiating this incident, we consider that the imposition of a MPI was not appropriate. For the reasons we have given, it does not appear that the Judge has taken that factor into account in deciding to impose an MPI. We consider that the MPI must be quashed.
Result
We allow the appeal, quash the sentence and the minimum period of imprisonment imposed in the District Court and substitute a sentence of four and a half years imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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