Nathan v The Queen
[2017] NZCA 18
•21 February 2017 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA218/2016 [2017] NZCA 18 |
| BETWEEN | DWAYNE ROBERT MANUERA NATHAN |
| AND | THE QUEEN |
| Hearing: | 15 February 2017 |
Court: | Miller, Mallon and Peters JJ |
Counsel: | E J Forster for the Appellant |
Judgment: | 21 February 2017 at 3.30 pm |
JUDGMENT OF THE COURT
AThe appeal against sentence is dismissed.
BThe appeal against the minimum period of imprisonment is dismissed.
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REASONS OF THE COURT
(Given by Mallon J)
Mr Nathan was convicted of burglary,[1] theft,[2] two charges of intentionally causing intentionally grievous bodily harm and one charge of wounding with intent to cause grievous bodily harm following a jury trial before Judge Adeane in the Gisborne District Court.[3] He was sentenced to 13 years imprisonment with a minimum period of imprisonment of six years.[4] He appeals against his sentence on the grounds that provocation or the victim’s conduct justified a reduction. He also appeals against the minimum period of imprisonment.
The offending
[1]Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years imprisonment).
[2]Sections 219 and 223(b) (maximum penalty seven years imprisonment).
[3]Section 188(1) (maximum penalty 14 years imprisonment).
[4]R v Nathan [2016] NZDC 7462.
On 19 September 2014 Mr Nathan and a co-offender broke into the garage of an 88-year-old woman who lived alone in Opotiki. They took a car, valued at $20,000, and some other items from the garage. Mr Nathan, his co-offender, and a third person, drove to Gisborne to try to sell the stolen car. They went to an address where they believed a friend lived, thinking the friend would be willing to buy the car. They arrived at the address at about 2.30 am.
There was a group at the address who were up socialising. They told Mr Nathan’s group that the person they were looking for did not live at the address and they were to leave the address. One of Mr Nathan’s group asked the group at the house if they wanted to buy the car. The exchange became heated. Mr Nathan’s group was again told to leave. Mr Nathan’s group returned to the vehicle and began reversing down the driveway. A young woman, who was amongst those socialising at the house, threw a metal baseball bat at the car. The bat landed on the driveway.
Mr Nathan stopped the car, got out and picked up the baseball bat. He approached the woman and hit her in the face with the baseball bat. She was knocked out and fell to the ground. Another person from the group at the house, a man aged 54, sought to assist the woman. Mr Nathan hit this man in the head with the baseball bat. The man fell face down unconscious into a garden. A third person from the group at the house, a man aged 37, also sought to assist. Mr Nathan struck this man repeatedly on the head and body with the baseball bat. Mr Nathan’s group then left the property. They later sold the stolen car to a local person.
Each of the victims sustained serious injuries. The young woman suffered a serious head injury, which required surgery and other treatment. She has blurred vision, visible scarring on her face, ongoing headaches, depression and anxiety. The man aged 54 years underwent multiple surgeries. He has been left blind in one eye, has permanent brain damage and experiences mood swings. He requires full-time supervision and is unlikely to work again. The man aged 37 years received three large lacerations to his head which required staples. He requires medication to treat swelling in his brain, has suffered nerve damage to his left arm, has ongoing pain from a knee injury, and takes medication for anxiety.
The offender
Mr Nathan is 32 years old. He has a number of previous convictions which include lower-level assaults. The pre-sentence report writer regarded Mr Nathan as moderately motivated to address his offending and remorseful, but at a high risk of reoffending and a medium risk of harm to others because of his previous convictions and his transient lifestyle.
District Court sentence
The District Court Judge identified four aggravating factors that were present to a high degree: extreme violence, use of a dangerous weapon, attacks to the head, and serious injuries. He considered there were two aggravating factors present to a moderate degree: vulnerability of the victims in that one of the victims was aged and another was a woman, and there was an aspect of home invasion.[5]
[5]R v Taueki [2005] 3 NZLR 372 (CA) being the guideline judgment.
The Judge adopted a starting point of 10 years imprisonment for the offence against the 54 year old man. He considered the attacks on the other two victims, standing alone, would each justify starting points of at least five years imprisonment. Adjusting for totality, given the close continuum of the attacks, he applied an uplift of two years to the 10-year starting point. The Judge then uplifted the sentence by a further 12 months, taking into account totality, for the burglary and theft charges.
The Judge rejected the submission that there was any element of provocation or conduct of the victims which mitigated the offending. He described the three complainants as honest occupiers of the address, who were “peacefully minding their own business on private property”. Mr Nathan came on to their property as part of his dishonest adventure. He ought to have left the property when he was instructed to do so.
While acknowledging there were “some glimmerings of reformation” shown in the pre-sentence report, the Judge decided a minimum period of imprisonment was necessary for denunciation and deterrence of this egregious offending.
Assessment of appeal
Mr Nathan submits the Judge ought to have reduced the sentence because of the complainant’s actions in throwing the baseball bat when Mr Nathan’s group were in the process of leaving the property. He says this was provocative, that his response was spontaneous and committed with a weapon (the baseball bat) “supplied” by the female complainant, rather than premeditated, and no violence would have occurred if the bat had not been thrown.
We do not accept this submission. Whether alleged provocative conduct reduces the culpability of a defendant is a fact-dependent assessment. Relevant
non-exhaustive factors include:[6][T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.
[6]Wairau v R [2015] NZCA 215 at [29(c)].
In this case it cannot be said that the alleged provocative conduct reduced Mr Nathan’s culpability. The conduct was minor. It did not pose any danger to Mr Nathan’s group. They were in the car and leaving the property and there was nothing stopping them from continuing their departure. Mr Nathan’s response, as evidenced by the serious injuries sustained by the three victims, was entirely disproportionate. The Judge was correct not to reduce the sentence because of the complainant’s conduct.
Mr Nathan submits the Judge ought not to have imposed a minimum period of imprisonment. This is because he had no previous convictions for serious violent offending, the present offending was an overreaction to the threat of force against him, the pre-sentence report writer considered him to be a medium risk of harm to others, and he had shown remorse. It is clear the Judge took into account the personal factors in Mr Nathan’s favour. He nevertheless considered a minimum period of imprisonment was necessary for denunciation and deterrence of such serious offending. That conclusion was available to him.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent