Nilsson v Police HC Rotorua CRI 2010-470-1
[2010] NZHC 144
•8 February 2010
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI-2010-470-000001
SAMUEL RODNEY NILSSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 8 February 2010
Counsel: F C Fenton for the appellant
H Derrick for the respondent
Judgment: 8 February 2010
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
F C Fenton, Adams & Horsley, PO Box 699, Seventh Avenue, Tauranga 3140
Crown Solicitor, PO Box 13063, Tauranga Central, Tauranga 3141
SAMUEL RODNEY NILSSON V NEW ZEALAND POLICE HC ROT CRI-2010-470-000001 8 February
2010
[1] This is an appeal against sentence by Samuel Rodney Nilsson (the appellant)
on three charges under the Crimes Act 1961 (the Act). The charges are: injuring with intent to injure (s 189(2)); possession of an offensive weapon (s 202A(4)(b)); and intentional damage (s 260(2)(a)) of the Act.
[2] The appellant pleaded guilty to these charges and was sentenced in the District Court at Tauranga on 21 October 2009 by Judge T R Ingram to 18 months’ imprisonment for injuring with intent to injure, nine months’ imprisonment for possession of an offensive weapon (concurrent) and 18 months’ imprisonment for intentional damage (concurrent).
[3] The appellant has appealed against the sentence imposed on the basis that the final sentence imposed by the Judge was unfair and contrary to the interests of justice, given that the sentences discussed when the matter was before the Court on
21 September 2009 were different and contemplated a final sentence of 12 months’
imprisonment.
[4] The appeal is brought out of time and Ms Fenton, on behalf of the appellant sought leave to appeal out of time. The respondent did not oppose the grant of leave and accordingly leave was granted.
Factual background
[5] On 4 April 2009 at approximately 2am, the victim and his friend were sitting
in a car on the side of the road. The appellant pulled up, jumped out of the vehicle, took a metal bar from the rear seat and smashed the driver’s side window. The appellant then repeatedly struck the victim about the head and body with the metal bar. The victim tried to get away by moving across the front seat of the vehicle. The appellant then leaned in through the window and continued to hit the victim with the metal bar. The victim tried to protect himself by lifting his arm. The two occupants
of the vehicle tried to get out the passenger’s side, but the appellant ran around and again continued to strike the victim with the metal bar. The victim eventually wrestled the appellant to the ground causing him to drop the metal bar.
[6] The victim was injured suffering extensive bruising and abrasions to his forehead, as well as contusions and minor lacerations to the rear of his head, both forearms and the backs of his hands and down his chest and back. When spoken to
by the Police the appellant informed them that the weapon was a jack handle. He said that he had been working on a vehicle earlier in the day and had it in the car to protect himself. He denied hitting the victim and the vehicle. He said that he smashed the driver’s side window with his right shoulder.
[7] This was a random unprovoked attack on the victim and his girlfriend. I agree with the observation in the victim impact statement that the victim could easily have been killed if he had been struck in the wrong place on his head or if the metal piece jutting out from the metal bar used by the appellant had made contact with his skull.
District Court decision
[8] On 21 September 2009, the appellant came before the District Court for sentencing. In discussions on that occasion, the Judge said that he was thinking of a starting point of two years’ imprisonment representing the totality of the offending. He indicated that there should be credit for the guilty pleas and other mitigating factors which would likely result in an end point in the vicinity of 12 months’ imprisonment.
[9] Given that this was a sentence within home detention range the Judge, following a request from defence counsel Mr Horsley, made the decision that the sentencing should be adjourned for a home detention report to be obtained. He directed that the appellant be remanded in custody until the report was available and sentencing could occur. The final sentencing occurred on 21 October 2009. In his sentencing remarks on that date, the Judge noted at [11]:
The position with this type of offending is pretty straight forward. It has been outlined recently by the Court of Appeal in a case called R v Harris [2008] NZCA 528. In my view this is a Harris band 2 case. I adopt a starting point here of two years and three months. The reason I do is that the violence was extreme. There was injury, it was not serious enough to take it into the realm of grievous bodily harm, but it was clearly extensive and it
involved injury to the head. There is a use of weapon, there was attacking the head. Of course, the victim was extremely vulnerable.
[10] In terms of aggravating and mitigating factors, the Judge found at [14]
and [15]:
There was clearly violence of a relatively serious kind and use of a weapon and that is a substantial aggravating factor. The harm resulting is substantial and ongoing in terms of psychological affects of your victim. The victim was completely vulnerable and you have got that bad record that I have already spoken of.
In mitigation, you are entitled to credit for a guilty plea and I accept that you are, to some extent at least, remorseful. Given your record, there is not a great deal of credit that I can give to you for your age.
[11] The Judge considered that a starting point of two years and three months’ imprisonment was justified. He then allowed nine months discount for the guilty pleas which he stated was generous in the circumstances, given the recent observations of the Court of Appeal in R v Hessell [2009] NZCA 450.
[12] The Judge then considered whether any further discount was appropriate
at [18] and [19] as follows:
I do not allow you any discount for your youth because of your bad record to date. If anybody knows what happens when you commit offences and come
to Court, it must be you. You have been here plenty and, in my view, it is not proper for me to take into account your age, given your long experience
with the Court system. You were not co-operative with the police, you lied
to them. There is little indeed that I can consider other than your guilty plea
in your favour.
It would be possible for me to increase the starting point because of your bad record but, in the circumstances, at your age, I consider that I should not do
so and keep the sentence to a minimum that I reasonably can.
[13] Finally, at [20] the Judge concluded:
Taking those matters into account, starting at two years and three months, allowing you nine months credit for your guilty plea, that will produce an outcome of 18 months. On the charge of injuring with intent to injure, you are accordingly convicted and sentenced to imprisonment for a period of 18 months.
[14] On the remaining charges, the Judge imposed concurrent sentences as already indicated. This resulted in a total effective sentence of 18 months’ imprisonment. Leave to apply for home detention was declined.
Powers on appeal
[15] The appellant has a general right of appeal against sentence pursuant to s 115
of the Summary Proceedings Act 1957. Such an appeal is by way of rehearing: see
s 119. The powers of the High Court on appeal are set out in s 121 of the Summary
Proceedings Act.
[16] There is an interesting issue in this case arising from the fact that there was a difference in the sentence imposed on 21 October 2009 from that which the Judge had in mind when he discussed the issue with counsel at the adjournment on
21 September 2009. This is confirmed by the written record of what took place on each occasion.
[17] Interestly, in his sentencing notes on 21 October 2009, the Judge does not draw attention to his reasons for departing from his earlier thinking outlined at the hearing on 21 September 2009. Neither did Mr Horsley, counsel for the appellant, draw the Judge’s attention to the difference between what was said on the earlier occasion and what was said when sentence was imposed.
[18] It occurred to me that this might be an appropriate case in which to seek a further report or additional reasons from the District Court Judge relating to his reasons for departing from the earlier sentence discussed at the time of the adjournment. There is power for a High Court Judge to seek such a report or further reasons: see R v Jefferies [1999] 3 NZLR 211 at [19] and [22].
[19] I discussed this possibility with counsel and they both were agreed that sending the matter back for further reasons or further report would only lead to unnecessary delay. Rather, the better course is to deal with the matter as a rehearing considering all matters afresh based on the submissions of counsel in relation to the appeal.
Submissions for the appellant
[20] Helpful written submissions have been filed on behalf of the appellant. Importantly, the submissions accepted that the starting point of two years and three months’ imprisonment is not manifestly excessive. Counsel then went on to discuss the mitigating factors including the discounts for the guilty pleas, youth, remorse and reparation. It was submitted that a generous allowance should be made for all of these factors amounting to around 15 months’ imprisonment. This is on the basis of a nine month discount for the guilty pleas and three months each for the remorse and reparation.
[21] No issue was taken with the Judge’s exercise of discretion to sentence the appellant to imprisonment rather than to home detention. Counsel accepted that such a course was consistent with the pre-sentence report.
Submissions for the respondent
[22] Ms Derrick noted that there was no challenge to the starting point. She submitted, consistent with the observations of the Judge, that the discount of nine months’ imprisonment for guilty pleas was “generous”.
[23] Ms Derrick further submitted that there should be no discount for youth, given the appalling record of the appellant. Further, the remorse shown by the appellant was too little, too late and the reparation was modest. Therefore, she submitted that the sentence imposed of 18 months’ imprisonment had not been shown by the appellant to be manifestly excessive.
Discussion
[24] The primary concern raised on appeal is the discrepancy between what was in the Judge’s mind when the adjournment was granted on 21 September 2009 and the sentence imposed on 21 October 2009. As already noted above, this point is met, together with any associated unfairness, by the Court taking a fresh look at the
matter today and dealing with the matter entirely by way of rehearing. This is possible because an appeal is by virtue of s 119 of the Summary Proceedings Act a rehearing.
[25] In terms of the starting point, the parties are agreed that the starting point of two years and three months’ imprisonment was appropriate. Viewing the matter afresh, I agree that this is a proper starting point. So far as the discounts are concerned, there is no dispute that a discount for the guilty pleas of nine months’ imprisonment, being the full one-third, was open to the Judge. The issue then arises as to whether any further discount should be granted.
[26] I agree that a discount might have been possible, given the appellant’s relative youth. But this was rejected by the Judge on the basis that the record of the appellant simply precluded that. This was no mere youthful indiscretion. It was a situation of random violence of a serious kind where the offender would have fully appreciated the gravity of his actions. I am satisfied that no discount on account of relative youth is appropriate.
[27] That leaves for consideration whether any discount should be given for remorse and reparation. In terms of remorse, I have considered the letter from the appellant. Whether the appellant is upon release from prison truly going to put his life of crime behind him remains to be seen. But at least he seems to have recognised the error of his ways previously. This is to be encouraged.
[28] So far as reparation is concerned, I note from the victim impact statement that modest reparation was provided so that the window of the car that was damaged could be repaired without loss to the victim.
[29] In terms of the remaining mitigating factors of remorse and reparation, I propose to allow a modest further discount of three months’ imprisonment, which would mean a total discount from the two years and three months of one year imprisonment. That would produce a final sentence of 15 months’ imprisonment.
Result
[30] For the above reasons, the appeal is allowed. The sentence on the charge of injuring with intent to injure of 18 months’ imprisonment is quashed and a sentence
of 15 months’ imprisonment imposed. The sentence of nine months’ imprisonment
for possession of an offensive weapon (concurrent) remains. The sentence of 18
months’ imprisonment for intentional damage (concurrent) is quashed and a sentence
of 15 months’ imprisonment imposed. That means that the final effective sentence
to be served by the appellant is 15 months’ imprisonment.
[31] The appellant should consider himself extremely fortunate, given the nature
of the violence involved.
Stevens J
0