Neilson v Police

[2015] NZHC 2502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-250 [2015] NZHC 2502

BETWEEN

ORA NEILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 October 2015
Counsel:	E Priest for Appellant M Anderson for Respondent
Judgment:	29 October 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 29 October 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Public Defender, Auckland

Meredith Connell

NEILSON v NEW ZEALAND POLICE [2015] NZHC 2502 [29 October 2015]

[1]      This is an appeal against sentence. The appellant was sentenced to five years, nine months’ imprisonment  by her Honour Judge  Cunningham  in  the Auckland District Court on 3 August 2015. The sentence was in respect of:

(a)       one charge of aggravated wounding; (b)          one charge of theft; and

(c)       one charge of unlawfully getting into a motor vehicle.

[2]      He appeals against his sentence on the basis it is manifestly excessive and ought to be reduced.  In particular, it was submitted that the Judge erred in relying on the tariff case of R v Taueki.1   And further, if the Judge was correct to apply Taueki, the starting point was excessive because:

(a)      the serious injury was erroneously determined to be an aggravating factor; and

(b)blows to the head and use of a weapon were determined to be two separate aggravating factors when they ought to have been treated as single aggravating factor; or

(c)      if the above two arguments are not accepted, the starting point was too high compared to comparable cases.

[3]      It was further submitted that an uplift of one year was erroneously imposed for the theft charge when it should not have been, as committing the theft was an essential element in the charge of aggravating wounding or, alternatively, if the above argument was not accepted, the one year uplift was excessive.

[4]      The appellant also submitted that the probation report should not have been relied on by the Judge because it was completed following a ten-minute stand-down

interview,  which  was  not  extensive  enough  to  form  a  view  on  the  appellant’s

remorse.

The facts

[5]      The offending arose out of two separate incidents.   The first, and minor incident, was on 21 May when the appellant was found in a stolen car in Huntly.  He was drunk at the time.  He is charged with unlawfully getting into the motor vehicle.

[6]      The  more  serious  offending,  and  the  main  subject  of  this  appeal,  is  the charges  of  theft  and  of  aggravated  wounding.     Five  days  after  being  found unlawfully in the motor vehicle, the appellant approached and entered a Michael Hill jewellery  store  in  Sylvia  Park  in Auckland.    He  was  carrying  a  hammer.    He requested to see some jewellery.   Before the store employee could respond to his request, he pulled the hammer out and smashed the glass case which housed the jewellery.  He took a number of curb chains from the glass case and put them into his bag. The jewellery was worth $38,551.  He then left the store.

[7]      His actions were witnessed by members of the public who gave chase. As the defendant was fleeing, a citizen attempted to stop him by grabbing his T-shirt.  The defendant was still carrying his hammer.  He swung the hammer at the victim and struck him in the face. As a result of being struck in the face, the victim relinquished his grasp.   The defendant continued to flee.   He was then apprehended by other members of the public.

[8]      As a result of being struck with the hammer, the victim received an injury to his face requiring 35 stitches.

[9]      Those are the facts he entered a plea of guilty to.  The offence he pleaded guilty to was:

On the 26th  day of May 2015 at Auckland, with intent to facilitate flight of himself upon the commission of an imprisonable offence, namely, theft, wounds any person [name of victim].

[10]     This charge was laid under the Crimes Act 1961, s 191(1)(c).   Section 191 reads:

191      Aggravated wounding or injury

(1)      Every one is liable to imprisonment for a term not exceeding 14 years who with intent—

...

(c)       To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any [imprisonable offence]—

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies  or  renders  unconscious  any  person,  or  by  any  violent  means renders any person incapable of resistance.

(2)      Every one is liable to imprisonment for a term not exceeding 7 years who, with any such intent as aforesaid, injures any person.

[11]     The Crown elected to charge under subs (1) which has a maximum sentence of 14 years, rather than on subs (2), a term not exceeding seven years.

District Court judgment

[12]     In the sentencing judgment, the Judge reasoned in the following manner, this is a summary.  The Judge adverted to his history of offending.  The appellant is 22 years of age and who made his first appearance at the age of 15 in the Youth Court in Wanganui.   His previous offences were burglaries and dishonesty offences and an aggravated robbery in the Youth Court.  In the District Court, he has convictions for dishonesty offending, of which a significant number were burglaries.  There was also some violent offending, including threatening to kill in 2011, assaulting a person with a stab or cutting instrument in 2012 and demands to steal using a weapon in

2014.  The longest period of imprisonment for any of these violent offences was six months.

[13]     The sentencing Judge took guidance from the Court of Appeal decision in R v

Taueki.2    The Crown identified four aggravating features:

(a)       extreme violence with the serious injury; (b)    the attack to the head;

(c)       the use of a weapon; and

(d)      the level of premeditation in taking a hammer to the scene.

[14]     For Mr Neilson, Ms Priest submitted there was really only one aggravating factor, use of a weapon against the head.  She submitted the hammer was brought to the scene but not for the purpose of inflicting violence on anyone.   But, rather, to steal the jewellery.

[15]     The sentencing Judge proceeded on the basis that there were three separate aggravating features in relation to the charge under s 191(1).  These were: attacking the head, using a weapon and the seriousness of the injury.  The use of the weapon and the premeditation were aggravating features in respect of the theft.

[16]     The Judge assessed the offending at the lower end of band 2 and adopted a starting point of six and a half years.  She added an uplift of one year for the theft. She added an uplift of three months for his previous convictions, leading to an end sentence to seven years, nine months or 93 months.  The Judge was disinclined to give any allowance for remorse and for his youth.  She relied on a stand-down report whose writer indicated that Mr Neilson was nonchalant about this offending.

[17]     The Judge recorded that through counsel the appellant expressed how sorry he was  that  this  happened.    But  the  Judge  did  not  regard  this  as  a  sort  of an expression of remorse for which she could give a discount and she declined to do so. She also declined to give him a discount for youth.

[18]     Counsel had agreed there should be a full 25 per cent discount for the guilty plea which she calculated at 23 months, rounding it up to 24 months and arriving at an end sentence of five years, nine months.

The argument in this Court on appeal

[19]     As  I have noted, Ms Priest submitted on appeal that the Judge erred  in applying Taueki. Ms Priest acknowledged that in Taueki, at [9], the Court stated:

… but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) [aggravating wounding ] …

[20]     She submitted that Taueki should be understood to apply to s 191 offending where there is an intention to cause grievous bodily harm, but not where a lower intention to injure exists or a person acts recklessly.   She submitted that the aggravated wounding incorporates a large range of criminality, including wounding that would otherwise be prosecuted in s 188(1) as well as 188(2).  That in the same way that Taueki does not apply to s 188(2) cases, she submits on appeal that it ought not apply to s 191(1) cases where there is a lesser intent.

[21]     Section 188 provides:

188     Wounding with intent

(1)       Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.

(2)       Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety  of  others,  wounds,  maims,  disfigures,  or  causes  grievous bodily harm to any person.

[22]     She submitted on the facts of this case, the intention was one of reckless disregard.    That  the  appellant  swung  the  hammer  recklessly to  stop  the  victim holding onto him.  It was a single swing of the hammer.

[23]     As appears above, there are two completely different intent definitions in ss 188(1) and 188(2).   The latter has a maximum sentence of seven years.   That necessitates an adaption of Taueki, as the Court of Appeal did in the case of Nuku v R.3    In s 191, there is only one intent.  Subsection (2), as we have seen provides a lower maxium sentence of seven years but with the same intent.

[24]     Ms Priest argued that the only way to sentence under s 191(1) is to determine culpability in  comparison  with  similar cases.    In  this  regard, she seeks  to  take advantage of the distinction in s 188 between intent to cause grievous bodily harm and intent to injure anyone.   She distinguishes three possible categories of intent under s 191(1). These are:

(a)       wounding  with  reckless  disregard.    This  is  roughly  equivalent  to s 188(2): wounding with reckless disregard;

(b)      wounding with intent to injure a person, also equivalent to s 188(2);

and

(c)       wounding  with  intent  to  cause  grievous  bodily  harm.     (This  is equivalent to s 188(1).

[25]     I do not consider this reasoning to be entirely legitimate.   Parliament has carefully chosen separate definitions of intent in s 188(1) and 188(2) and used those differentiations to explain the maximum of 14 years for the former and seven years for the latter.  But in s 191, the intent is the same for subs (1) and subs (2), but the maximum sentence is again distinguished between 14 and 7 years.  Thus Parliament has recognised distinction for sentencing purposes under s 191 based on the degree of injury.

[26]     The blow to the victim’s head with the hammer was right in the centre of the face and caused the wound which opened from the forehead, down to the chin.  On any view of it, it was a wounding.  It was also an injury.  There was a prosecutorial discretion to charge under s 191(1) rather than charge under s 191(2).

[27]     Ms Priest relied upon analysis by the Court of Appeal in Nuku v R:4

[28]     We accept Ms Vidal’s submission that there is a crucial conceptual difference between the offences to which the Taueki guidelines apply (either directly or by analogy) and the violent offending provisions under ss 189(2),

191(2) and 188(2). This conceptual difference relates to intent.

[29]     As stated in Taueki, GBH offences involve very serious offending. This is because an offender will only be convicted if he or she has acted with an intention of inflicting really serious harm on the victim, and has actually caused harm of  that  gravity or  has  wounded,  maimed  or  disfigured  the victim. This may have consequences for one of the aggravating factors identified in Taueki: that is, the seriousness of injury to the victim.

See also:

[31]      There  is  another  aspect  of  Taueki  that  does  not  sit  easily  with offences where the intent is merely to cause injury. This is the comment that, as noted in Taueki, almost all GBH offences will involve a high degree of criminality and significant injury to the victim. The Court said that it will only be in exceptional cases that a starting point of less than three years’ imprisonment will be appropriate and this is likely to be only when a sentencing judge considers the offending to involve culpability at a level that may have been better reflected in a lesser charge.

…

[33]     On the other hand, we consider that there are difficulties with the approach in Harris. We accept that the actual injury inflicted is usually a good proxy for assessing what was intended, but this is not always so. Harris therefore causes difficulties where there is not congruence between intent and injury. Further, although Harris made it clear that the presence of aggravating and mitigating factors of the offending should be taken into account, the case gave little guidance on how that was to be done and in practice there has been a trend for sentencing judges to take into account only the harm inflicted.

[28]     Nuku then went on to set up guidelines but only in respect of s 189(2), 188(2)

and 191(2).5

[29]     I apprehended that Ms Priest on this appeal was seeking a further nuanced approach based on the differences of intent as addressed in the paragraphs of Nuku cited above.

[30]     Ms Priest also relied upon the Court of Appeal decision in R v Fanguna.6

Submissions of the respondent

[31]     The Crown argues that the tariff case of Taueki applies to all offending under s 191 of the Act.   This is made clear by the judgment which does refer to s 191. Indeed, the section is explicitly referred to twice under GBH guidelines.7

[32]     Yet, as we have seen, there are different mens rea defined in the respective sections – s 188(1) and s 191(1).

[33]     The Crown submits that to apply the sentencing bands under Taueki to some sets of offending under s 191(1) and not to others would create an anomaly.  That what  needs  to  be taken  into  account  is  that  s  191  has  been  drawn so  that  the additional aggravating elements of wounding, maiming, disfiguring or causing GBH were to be of elevated seriousness, with a maximum penalty of 14 years, despite the fact that the mens rea as distinct from the actus reas might be less than under the equivalent s 188(1). This is where the intent, rather than to cause GBH, is to commit another crime or avoid detection or avoid arrest.

Analysis

[34]     Although neither party cited it, the Court of Appeal has considered the point made by Ms Priest on a previous occasion.  In R v Hancy the Court was faced with a charge under s 191(1) that resulted from very dangerous driving to avoid being pulled over by the Police.8   The appellant had entered an intersection at high speed against a red light and smashed into the side of a car causing severe injuries to the driver of the other car necessitating eight weeks in hospital.  The front seat passenger also received serious injuries and a 5 year old child in the back of the car received minor injuries. The Court of Appeal said:

[19] The offending fell within s 191(1) of the Crimes Act but we accept Mr Bailey's submission that it did not involve the sort of conduct that s 191(1) is primarily concerned to capture. As a result, the Taueki guidelines must be applied with care.

[22] This Court said in Taueki at [9] that, although focussing on offences under s 188(1) (referred to as “GBH offences” or “GBH offending”), it was

anticipated the guidelines could apply, by analogy, to s 191(1)“and to other offences involving the infliction of serious violence”. The Court went on to say at [26] that an offender who has committed a GBH offence will have “acted with an intention of inflicting really serious harm to the victim”. It is clear that the Court did not turn its mind to those cases which fall within s

191(1) in which there is no deliberate intent to cause serious injury to the victim. In such cases the guidelines must perforce be applied with caution.

(emphasis added)

[35]     I therefore consider that the appellant’s submission that Taueki should not apply to cases where the defendant does not intend to cause grievous bodily harm has some merit.  However, I note that in Hancy the Court of Appeal went on to place the offending within band one of Taueki and then set a sentence with reference to cases involving reckless or dangerous driving causing injury or death.   I also note that despite these observations, in other cases the Court of Appeal has approved of the application of Taueki in cases where it could be suggested the intent was less than

to cause grievous bodily harm.9

[36]     I also observe that in this case there can be no question that the appellant deliberately swung the hammer at the victim.  While the extent of the harm suffered may not have been intended I consider that the appellant’s actions can at least be regarded as a deliberate action to cause some harm.   In that sense the intent was more culpable than in Hancy as while the action of driving through a red light at high speed has the potential to cause serious harm and thus a person who does so can be seen to be reckless as to that consequence, the consequence in this case was more immediately foreseeable, if not directly intended.

[37]     The result is that Taueki does apply to cases under s 191(1) where the intent is less than to cause grievous bodily harm, but that it needs to be applied with caution to reflect the fact that the culpability of an offender who wounds with a lesser intent is less than one who wounds intending to cause grievous bodily harm. Reference to comparable cases will assist in setting a starting point.

[38]     On that basis I do not consider that the Judge was wrong to apply Taueki to this case, but that it was necessary for the Judge to exercise some caution in doing so.

[39]     Ms Priest’s next submission was that if I rejected her submission that Taueki should not apply to this case that nevertheless the starting point adopted applying Taueki was too high.  Her main submissions on this point were that the serious injury was erroneously determined to be an aggravating factor and that blows to the head and use of a weapon should have been considered as one aggravating factor rather than two.

[40]     The Crown submits that the Judge was correct to conclude that there were three aggravating factors.   The injury suffered by the victim has resulted in a permanent scar from above the eyebrow to the lip and the victim impact statement records that the victim lost feeling in the right side of his nose. These factors mean that the injury suffered was serious.

[41]     In relation to attacking the head with a weapon, the Crown submits that in this case it was appropriate to treat this as two aggravating factors.   The Crown distinguishes the cases relied on by the appellant on the basis that in those cases the weapons used were already at hand as opposed to this case where the hammer was brought to the scene by the appellant.  Furthermore, the Crown says that even if this factor should only be treated as one aggravating factor, that still puts the case within band two and means that the starting point was not excessive.

[42]     I accept that appellant’s submission that the judge should not have regarded attacking the head and use of a weapon as separate aggravating factors in this case. The Court of Appeal’s decision in Flavell v R where the appellant had hit the victim in the head with a baseball bat supports this proposition.10   In that case the Court of Appeal considered that attacking the head with a baseball bat was not of sufficient seriousness to be regarded as two separate aggravating factors.  The same can be said here.  This was not a prolonged beating or kicking of the head, but rather, the use of a weapon in one blow to the head.

[43]     However,  I do  not  agree  with  Ms  Priest’s  submission  in  relation  to  the seriousness of the injury suffered.  The Court of Appeal in Taueki made clear that this aggravating factor applies when the level of harm is greater than that inherent in the charge.  The victim in this case suffered serious injury.  While the injury may not be the most serious that could be classified as a wound or grievous bodily harm, it was  still  a  serious  injury.    The  Court  of  Appeal  observed  in  Taueki  that  the

seriousness of a particular aggravating factor could vary from case to case.11   In this

case I consider that the seriousness of the injury was sufficient for it to be regarded as a separate aggravating factor.

[44]     Thus even though I consider that there were probably only two aggravating features present this case still falls within band two and the District Court Judge was right to select a starting point towards the bottom of that band.  However, given the lesser extent to which the aggravating feature of the seriousness of the injury was present and the observations I made earlier about the need for caution applying Taueki when there is a lower level of intent I consider that a starting point of six and a half years was excessive.

[45]     Ms Priest relied on several similar cases to submit that the starting point in this case was too high.12    Of those she submitted that the present case was most similar to Boote v R.   I do not consider that this case is directly comparable with Boote.  The offending in this case was more serious.  In Boote there had been some minor provocation and the weapon used was a bottle of beer from behind a bar.  The act was entirely impulsive.  In this case the appellant has taken a hammer with him

to a busy shopping centre for the purpose of facilitating his theft.  While he may not have intended to use the hammer to assault any person, the premeditation involved in taking the hammer with him makes the offending more serious.  In saying that, I do not consider that the offending in this case justifies a starting point two years in excess of the starting point of four years and six months adopted in Boote, rather I

consider a starting point of five years to be appropriate.

11     R v Taueki [2005] 3 NZLR 372 (CA) at [30].

12     Vincent v R [2015] NZCA 201; Manukailea v Police [2014] NZHC 2647; Boote v R [2014] NZCA 125; and Bowman v R [2010] NZCA 162.

[46]     I now turn to Ms Priest’s submission that the uplift for the theft charge was excessive.   Ms Priest submitted first that the uplift amounted to double counting. Her reasoning for this submission was that the presence of the theft meant that an assault which would otherwise be prosecuted under s 188(2) and thus have a maximum sentence of seven years was instead prosecuted under s 191(1) with a maximum penalty of 14 years.

[47]     I do not accept that submission. As the Crown submitted the offence requires that the wounding is committed where the defendant is facilitating flight from any offence.    It  is  the  act  of  assaulting  someone  with  the  purpose  of  fleeing  from offending that aggravates the offending.   The theft offending remains distinct and can act to justify an uplift.

[48]     Ms Priest’s next submission was that the uplift was excessive in any respect. She submitted that at most the uplift should have been three months.  I do not accept this submission. The theft was serious; property worth over $30,000 was stolen from a busy store.  As the Crown submits the offending had some characteristics of an aggravated robbery.  In those circumstances I do not think that the uplift of one year was excessive.

[49]     Finally,  I turn to address Ms Priest’s submission that the Judge was  not entitled to rely on the pre-sentence report because it was completed in a short ten minute stand down period.  The significance of this point is said to be that the Judge refused to give any discount for remorse or for offering to participate in restorative justice on the basis that the probation officer had concluded that the appellant lacked any remorse or insight and had a nonchalant attitude towards his offending.

[50]     Before a discount can be given for remorse it must be “shown”.13     The shortness of the interview conducted by the probation officer could mean that the appellant had less opportunity to show his remorse, however, I do not consider that the failure to adjourn the sentencing to allow a more extensive interview has lead to any error in the Judge’s approach.  The only evidence of remorse the appellant has

raised  is  his  expression  of  remorse  in  his  dealings  with  his  counsel.    Further,

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

although the interview was short, the probation officer was of the view that the appellant was sufficiently engaged in the interview.   The appellant stated that the offending was the result of him being drunk, but expressed  little motivation to address his alcohol use.   In those circumstances I do not consider that a longer interview would have produced a different result.

[51]     As to any offer to undertake restorative justice I do not consider that the Judge erred by not giving any discount for this.  The only evidence of the offer came from counsel’s submissions and the offer does not appear to have been taken up.  In that respect the Judge was entitled to not give any discount.

Conclusion

[52]     In summary I consider that the Judge erred by imposing too high a starting point.   If I reduce the starting point to five years, uplift by one year for the theft charge and three months for previous convictions that takes the starting point to six years and three months’ imprisonment.  From that starting point I would deduct 25 per cent for the appellant’s guilty plea which results in an end sentence of four years, eight months’ imprisonment.

[53]     The  appeal  is  allowed  and  the  sentence  for  the  aggravated  wounding  is reduced to four years, eight months’ imprisonment.   The sentences for the other offences  remain  and  are  to  be  served  concurrently  with  the  sentence  on  the aggravated wounding charge.