McCausland v Police HC Christchurch CRI 2010-409-120

[2010] NZHC 1271

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000120

NEVILLE DEEVER MCCAUSLAND

Appellant

v

POLICE

Respondent

Hearing:         15 July 2010

Counsel:         R G Glover for Apellant

T J Mackenzie for Respondent

Judgment:      15 July 2010

JUDGMENT OF FRENCH J

Introduction

[1]      This is an appeal against sentence.

[2]       Following pleas of guilty, the appellant was sentenced in the District Court on five charges; one breach of release conditions, two charges of breach of a protection order, one of male assaults female and a charge of assault with intent to injure.

[3]      He was sentenced to a total term of imprisonment of two years and two months.

MCCAUSLAND V POLICE  HC CHCH CRI 2010-409-000120  15 July 2010

Facts of the offending

[4]        On 16 September 2009 the appellant was released from prison subject to six months’ parole.  This followed a sentence of imprisonment for aggravated robbery.

[5]        His compliance with his release conditions was said to be poor.  He received two warnings for reporting late without reasonable excuse and was then issued a written instruction to report on 11 March 2010.  He failed to do so.  That failure was the subject of the charge of breach of release conditions.

[6]      On 18 March 2010 the appellant assaulted his partner who had obtained a temporary protection order against him.  The assault involved closed fist punches to her head which resulted in swelling to her ear.

[7]       A few weeks later on 4 April 2010 there was a similar but more serious assault against the same victim.  The appellant punched her in the head, then dragged her out of a vehicle by her hair and kneed her in the upper body forcing her to the ground.   The appellant walked away but returned and twice stood on the victim’s head while she was still lying on the ground.  He then paced around before picking her up and forcing her back into the car, instructing her to drive.

[8]      During  this  attack  the  victim  momentarily lost  consciousness.    She  also suffered significant swelling to her face which included grazes to her forehead and chin, bruises to cheek and nose.

[9]      According to the police summary of facts when arrested the appellant said:

I don’t have anything to say to you.   This is the start of the process bro, she’ll never turn up to court and tell the Judge anything.   If she does go, she’ll say nothing anyway.  I’ll go not guilty and serve time in remand and that’ll be the end of it.”

The District Court decision

[10]     The information before the Judge included victim impact reports.  These told the Judge that the victim was fearful of the appellant and that the offending had had a significant impact on her.

[11]      The information also included a pre-sentence report.

[12]     The pre-sentence report stated that the appellant was 34 years of age with a very sad upbringing involving alcohol abuse. It also told the Judge that the appellant has an extensive criminal history.

[13]     As  noted  in  the police  submissions  for  this  appeal  hearing,  the criminal history began in 1992 and appears to demonstrate continual offending every year until the present, save for periods of incarceration.   The appellant’s previous convictions include 11 violence convictions, 14 breach convictions, nine dishonesty convictions and six drink driving convictions.   Notably the convictions involve a four year prison term for an offence of aggravated robbery as well as male assaults female, and breaches of parole conditions.

[14]     On the more positive side, the pre-sentence report recorded that the appellant was remorseful and was not disputing the summary of facts because he did not want to diminish his guilty plea.

[15]     In  his  sentencing  notes  the  Judge  identified  the  aggravating  features  as follows:

1.The  appellant’s  previous  convictions  including  as  they  did  eight violence convictions, four of which were domestic related (three convictions for male assaults female); a conviction for aggravated robbery as well as convictions for breach of Court orders.

2.The  fact  that  actual  and  sustained  violence  was  used  against  this victim; and

3.The fact the offending occurred while the appellant was subject to a protection order and release conditions.

[16]     The Judge also identified the mitigating features as being the guilty pleas which were entered at a status hearing as well as the appellant’s remorse, the Judge, quoting from the probation officer’s report.

[17]     The Judge went on to state that after weighing aggravating features against mitigating features and taking into account the victim’s views, any sentence short of imprisonment would be an inadequate response to the recidivist violent offending. The Judge also noted that he had considered s 85 and the principle of totality.

[18]      On the charge of male assaults female, the Judge adopted a starting point of

15 months imprisonment, with an uplift of three months on account of aggravating features.

[19]     On the charge of assault with intent to injure, the Judge adopted a starting point of 18 months and uplifted that by three months on account of aggravating features resulting in a 21 month term of imprisonment. The Judge stated this was to be cumulative on the 18 months imposed in respect of the male assaults female. From the total of 39 months, the Judge then gave a discount of 13 months arriving at an end sentence of 26 months.

[20]     On the other charges (the breach of release conditions and the breaches of the protection order) the appellant was convicted and discharged.

Grounds of appeal

[21]     The appeal was brought only in relation to the male assaults female charge which, as I have mentioned, attracted a sentence of 18 months imprisonment cumulative upon the 21 months imposed in respect of the injuring charge.

[22]     Counsel  for  the  appellant  Mr  Glover  submits  that  the  starting  point  (15 months) and uplift (3 months) were manifestly excessive having regard to the gravity of the offending, the maximum penalty available and the fact of accumulation with the undisputed sentence for the injuring offence. In his submission, even as a stand-

alone sentence, a starting point of 18 months for the assault would have been too high.

[23]     In support of his submissions Mr Glover referred to me two decisions of the Court of Appeal:   R v Reihana CA143/03, 3 July 2003 and R v Werahiko [2008] NZCA 24.

Discussion

[24]     The maximum penalty for the offence of male assaults female is two years imprisonment.

[25]     There is no tariff case and as any review of the authorities demonstrates the range of sentences varies greatly because there is such a wide variety of situations.

[26]     I accept that unfortunately in this case the sentencing Judge has not followed the  R  v  Taueki  [2008] 3 NZLR 372 model of sentencing in that he has not distinguished between aggravating features relating to the offender as opposed to those relating to the offending.

[27]     I also accept that on the face of it a starting point of 15 months with an uplift to 18 months was on the too high side having regard to the authorities.

[28]     On the other hand, it is highly arguable the Judge was overly generous in relation to the discount he allowed for mitigating factors and misapplied R v Hessell [2010] 2 NZLR 298. The guilty pleas were only entered at a status hearing and there were no prior indications regarding a willingness to plead to a lesser offence. That means that under Hessell the appellant was strictly speaking only entitled to a 20% discount with no added component for remorse.   It may be that the Judge considered the remorse in this case was exceptional because it related to a decision not to contest the summary of facts.  It is impossible for me to conclude what his view was on that issue because the Judge has not specifically articulated it in the sentencing remarks.

[29]     Ultimately,  however,  from  the  point  of  view  of  an  appellate  Court,  the concern is not so much with the way in which the component parts of the end sentence  have  been  arrived  at  but  whether  the  end  sentence  appropriately  and properly reflects the level of criminality for this offending and for this offender.

[30]     Looking at the matter in the round, I am driven to agree with Mr Mackenzie’s submissions when he says the end sentence of two years two months imprisonment for this sentence is appropriate considering:  the violence used; the fact that on two different occasions the offending was against the same victim; offending occurred while the appellant was on parole; the offending occurred whilst the appellant was subject to a protection order; and finally the appellant’s extensive criminal history, including as it does convictions for violence, breaching sentences and Court orders.

[31]     For those reasons I have decided that to be true to the appellate role I must dismiss this appeal.  It is accordingly dismissed.

Solicitors:

R G Glover, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent