Martin v The Queen
[2020] NZHC 712
•7 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-11
[2020] NZHC 712
BETWEEN WILLIAM ALEXANDER MARTIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 1 April 2020 (teleconference) Counsel:
S J Gill for Appellant
J M Irwin for Respondent
Judgment:
7 April 2020
JUDGMENT OF SIMON FRANCE J
[1] This appeal was conducted by telephone, each participant joining from a remote location. It was recorded. The appeal was listed on the daily list and the media invited to attend if they wished. None did so.
[2] Mr Martin appeals a sentence of three years eight months’ imprisonment.1 The appeal is of narrow compass focusing only on the amount of credit given for rehabilitative efforts together with matters identified in a report presented under s 27 of the Sentencing Act 2002.
Offending and Sentence
[3] Mr Martin was convicted in relation to two sets of offending. The first occurred on 15 November 2018 and resulted in one charge of male assaults female,2
1 R v Martin [2020] NZDC 1855.
2 Crimes Act 1961, s 194; maximum penalty of two years’ imprisonment.
MARTIN v R [2020] NZHC 712 [7 April 2020]
and one of assault with intent to injure.3 During the course of an argument, Mr Martin grabbed the victim by the collar with both hands and threw her into a wall (male assaults female). As the scuffle continued, he then grabbed her by the throat, restricting her breathing (assault with intent to injure). When the victim broke free of his grip around her neck, he slapped her across her face (this contributed to the male assaults female charge). The victim suffered bruising and abrasions to her neck as a result of the strangulation, and the trauma left her sore, dizzy and nauseous.
[4] The second set of offending occurred while Mr Martin was on bail for the first set of offending, on 25 December 2018, and resulted in the charges of causing grievous bodily harm with intent to injure,4 one charge of male assaults female,5 and wilful damage.6 Mr Martin went upstairs in the early hours of Christmas morning and began an argument with the victim. He then punched her in the face twice (causing grievous bodily harm with intent to injure). As the victim tried to use her phone to call for help, he grabbed and pulled her wrist to get her phone from her, kicked her in the chest and then, once she had stood back up, pushed her in the chest back into the wall (male assaults female). He then left, taking her phone with him and slamming it into the staircase bannister causing the screen to smash (wilful damage). The victim suffered significant fractures to both sides of her jaw as a result, which was operated on and multiple metal plates were inserted to reconnect her jaw. She was hospitalised for a week and the events have caused her great stress.
[5] The stress was aggravated by Mr Martin’s reaction to an application by her for a protection order. A without notice interim order was made, but Mr Martin indicated opposition to it being made permanent. This triggered the formal processes for a contested hearing which in turn saw the victim drop her application rather than face the process. This aspect was understandably considered by the District Court as telling against any claim of remorse.
[6] Mr Martin, aged 46 years old at the time of the offending, has a significant history of offending dating back to the Youth Court, and has a number of previous
3 Section 193; maximum penalty of three years’ imprisonment.
4 Section 188(2); maximum penalty seven years’ imprisonment.
5 Section 193; maximum penalty of three years’ imprisonment.
6 Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months’ imprisonment.
convictions for family and domestic violence. His most recent convictions include three convictions for assault, convictions for assault with intent to injure, male assaults female, wounding with intent to injure and five convictions for breach of protection order.
[7] After some amendments, Mr Martin pleaded guilty to all charges and on 31 January 2020 was sentenced to three years eight months’ imprisonment.7 The pre- sentence report recommended imprisonment, with special conditions on release.
[8] When sentencing, the Judge noted the following aggravating factors relating to the offending: strangulation and attacks to the head; serious injury; the vulnerability of the victim as the assaults took place in the family home and in a family violence context; and the serious impact on the victim. She found there were no mitigating factors relevant to the offending.
[9] The Judge took a starting point of two years’ imprisonment in relation to the first set of offending, and four years’ imprisonment in relation to the second set of offending. She adjusted by one year for totality and came to a starting point of five years’ imprisonment.
[10] The Judge then imposed an uplift of six months to reflect that the second set of offending occurred while Mr Martin was on bail and the significant history of family violence, taking the sentence to five and a half years’, or 66 months’, imprisonment. In terms of mitigation, the Judge did not accept any discount for remorse, describing Mr Martin’s lack of remorse as “palpable in the pre-sentence report”, but she gave a discount of 10 per cent for the time he spent on EM bail while attending and completing the alcohol course and the s 27 factors. This brought the sentence to 59 months, which was reduced to three years eight months by the guilty plea discount. A final protection order was also made.8
7 R v Martin, above n 1.
8 Pursuant to the Sentencing Act 2002, s 123B.
Appeal
[11] As noted, the focus is on the 10 per cent discount for Mr Martin’s efforts at rehabilitation and the various matters brought out by the s 27 report.
[12] Prior to sentencing Mr Martin had been assessed as suitable for a drug and alcohol programme run by the Salvation Army. Sentencing was adjourned to allow him to attend.9 The outcome was positive. Mr Martin was bailed to attend and completed the course. The course included him being released on a weekend to visit his mother and he complied with conditions and passed all drug tests. A case worker attended court at sentencing to provide further information.
[13] The report advised that Mr Martin was motivated and had shown good progress in addressing the causes of his addictions. He had been responsive to suggestions.
[14] Concerning the s 27 report, it explains that Mr Martin comes from a background where he was exposed to domestic abuse and drunkenness. Extreme discipline was also a feature. Mr Martin’s mother is a secondary school teacher who is a fluent Māori speaker and a teacher of the language. She is supportive of him whilst recognising the need for him to change his behaviour and attitudes.
[15] In relation to both matters, Mr Gill for the defendant emphasises aspects of the recent Court of Appeal decision, Zhang v R, where rehabilitative efforts were one of the matters identified as meriting proper recognition and similarly, it was recognised that a s 27 report which explains the personal, whānau, community and cultural background of an offender may provide information not only about the offender’s present profile, but also identify causative links to historic deprivations suffered by Māori.10 Mr Gill submits that the addictions experienced by Mr Martin, his family context during his upbringing and his own resort to domestic violence illustrate the links. The Crown disputes any such link can be shown such as to merit discrete sentencing recognition.
9 Sentencing Act 2002, s 25(1)(d).
10 Zhang v R [2019] NZCA 507 at [159].
[16] A credit of around 10 per cent for successfully completing a course such as that undertaken by Mr Martin is common, but more than that is not often allocated.11 If a similar view were taken here, then no allocation has been made for the s 27 cultural factors. In my view, the pattern of behaviours exhibited by Mr Martin displays clear links to his upbringing, particularly the years before his parents split when he was seven years of age.12 He was then raised by his working mother who relied on whānau support, some of whom reinforced these experiences by themselves inflicting harsh discipline.
[17] The observations in Zhang apply here, and as a package I consider that a discount greater than 10 per cent was required. I would increase this figure by the same again. Any greater amount would not accommodate the need to denounce the serious violent offending underlying the sentences.13
Conclusion
[18]The appeal is allowed.
[19] The greater discount applied at the same stage as the District Court produces a sentence of 53 months prior to the guilty plea credit. That in turn produces a final sentence of three years and four months’ imprisonment. I give effect to this by reducing the present sentence of 16 months on the charge of assault with intent to injure to one of 12 months. The other sentences are unchanged.
Simon France J
Solicitors:
Steve Gill Law, Lower Hutt for Appellant Crown Law Office, Wellington for Respondent
11 See for example Matthews v R [2019] NZCA 208 at [6]; Sutherland v New Zealand Police [2017] NZHC 1802, where a 15 per cent discount was given for both rehabilitative steps taken and remorse (in that case the offending was common assault for spitting into defendant’s partner’s face); Kerr v R [2017] NZCA 498, where an eight per cent discount was given by the Court of Appeal in recognition of various positive efforts made by the appellant to rehabilitate whilst in custody (the offending was aggravated robbery x2, robbery, and receiving); and Tumai v New Zealand Police [2019] NZHC 1119, where an eight per cent discount was given for the appellant’s successful engagement in a wide variety of rehabilitative programmes mostly directed to anger management and the prevention of domestic violence (the offending was assault with a weapon, man assaults female x5, assault on a child x3, and breach of protection order x2).
12 See the discussion of such linkages in R v Rakuraku [2014] NZHC 3270 at [56]-[58]; and Solicitor- General v Heta [2018] NZHC 2453, [2019] 2 NZLR 24 at [49]-[50].
13 R v Patangata [2019] NZHC 744 at [44]; and R v Carr [2019] NZHC 2335 at [60].
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