R v Abbott

[2013] NZHC 62

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-020-1489 [2013] NZHC 62

QUEEN

v

IZIAH ROLLY ABBOTT

Hearing:         5 February 2013

Counsel:         N M Graham for Crown

E J Forster for Prisoner

Sentence:       5 February 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

Introduction

[1]      Iziah Abbott, you have pleaded guilty to, and you appear for sentence on:

(a)       One charge of injuring with intent to cause grievous bodily harm;1 and

(b)      One charge of aggravated burglary.2

[2]      You were charged initially with attempted murder, but were discharged on that count in December, pursuant to s 347 of the Crimes Act 1961.

1      Crimes Act 1961, s 189(1), with a maximum penalty of 14 years’ imprisonment.

2      Crimes Act 1961, s 232(1)(a), with a maximum penalty of 10 years’ imprisonment.

R v ABBOTT HC NAP CRI 2012-020-1489 [5 February 2013]

Details of offending

[3]      The circumstances of your offending are as follows.   On the morning of Sunday 13 May 2012, you were drinking with associates at an address at Whakatu. You had been drinking the Saturday night prior and drank on into Sunday morning. At about 11.00 am you had an altercation with one of your associates, which caused you to become angry. You were told to leave the address.

[4]      You then walked to the victim’s house, which was about 500 metres away. She is a young woman in her twenties. You knew she lived alone at that address. As you approached her house, you picked up a rock the size of a softball.  You then knocked on the front door.  When the victim opened the door you raised the rock above your shoulder intending to hit the victim on the head with it.   The victim raised her arm to block the blow, and the rock fell to the ground.

[5]      You  then  proceeded  to  push  your  way  into  the  address  and  you  began attacking the victim.  You punched her about the head and face a number of times. She fell to the floor.  You then began kicking her about the head.  You kicked her face.  The victim tried to take shelter under a table in the room.  You continued to attack her.  Throughout the attack the victim was screaming for help.  It seems that this eventually caused you to leave the property.

[6]      You then ran back to the party.  Your friends told you to hide.  You hid at a nearby river for some 30 minutes.  Then you went back to the party, and then on to your own home. There you washed your clothes to get rid of the victim’s blood.

[7]      In explanation of your offending, you told the police that when you left your associate’s party you were extremely angry and wanted to really hurt someone.  You said that you targeted the victim because you knew she lived alone and was the closest person to you at the time at which you could take out your anger.

Impact of offending

[8]      The  victim  received  severe  bruising  to  her  forehead,  a  chipped  tooth,  a swollen and cut lip, a cut to her ear and bruises over her arms and legs.  She required a week off work to recover.

[9]      I have read the victim’s impact statement, about the effect that your offending has had on her.   It is clear from her statement that she was extremely traumatised after the attack, and she is still recovering both emotionally and physically from it. She had initially trouble doing basic tasks after the attack, which was made more difficult for her because she lives alone.  In terms of longer term emotional impact, what was formerly a trusting and friendly nature has been altered adversely by your actions.

Personal circumstances and pre-sentence report

[10]     Turning to your personal circumstances, you had just turned 18 when this crime was committed by you. You have no previous convictions.

[11]     As to your family background, your mother passed away when you were six years old and you have never known your father.  As a result, you and your two brothers were raised by your grandmother and your extended family from a young age. Your grandmother has written a letter to the Court.  She says that you have been a respectful member of her family.  Similar observations are made in a further letter from your aunt.

[12]     It appears that you began to get into trouble at the end of your first year at high school.  You began smoking cannabis and drinking alcohol.  Over the following years, your behaviour became progressively worse.   Your disruptive behaviour, alcohol and drug use, truancy and fighting led you to be expelled from high school. According to your pre-sentence report, violence appears to have been common throughout your life.

[13]     Since your expulsion from high school, it appears little has changed.   You have a harmful pattern of drug and alcohol abuse, which increases your propensity to violence.  You told the pre-sentence report writer that you have often started both verbal and physical fights because of your drug and alcohol abuse.

[14]     You  have  no  professional  skills  or  qualifications  and  your  employment history is limited.  According to your report writer, you care little about employment with your drug and alcohol use taking priority.  You do not go to work if you are too hung over and you do not care about the consequences.

[15]     Psychological evidence before the Court at an earlier stage in this case shows you have issues with hearing and with depression.  You are said to lack personal, emotional or cognitive skills to deal with anger.  You have a borderline personality disorder that, in conjunction with alcohol and drug abuse, means you are prone to act impulsively and without restraint.

[16]     It also appears that you did begin prospecting for the Black Power gang after your offending.  You told the report writer that you had minimal interest prospecting before your offending, but you now wanted to join the gang because they understood your circumstances and could support and help you “survive” in jail and that you wanted the respect of being a patched gang member.  According to the pre-sentence report writer, although you regret your actions and acknowledge your problems, you have little motivation to change your behaviour.   Rather you are resigned to imprisonment and have changed your focus to “survival” in prison.

[17]     You are assessed at being at a moderate risk of reoffending and a moderate to high risk of harm to others, based on your affiliation with Black Power and your tendency towards violence.

Principles and purposes of sentencing

[18]     I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the need to hold you accountable for the harm done to the victim of your offending, and

the need to promote a sense of responsibility for, and acknowledgement of, that harm.   I need here today to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future.  I am also required to take into account the need to assist in your respective rehabilitation and reintegration into society in due course.

[19]     In terms of s 8 of the Act, I must take into account the gravity of your offending,  including  your  degree  of  culpability.     I  must  have  regard  to  the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed for the offences you have committed.   I must also consider the general desirability and consistency with appropriate  sentences  available.    And  then,  Iziah,  I  need  to  impose  the  least restrictive  outcome  that  is  appropriate  to  your  circumstances,  including  your personal circumstances. That is what the law requires.

Starting point

[20]     I consider that both the charges on which you are being sentenced today arose from one incident, so I am going to impose concurrent sentences.   That is to say sentences that you will serve at the same time.  I have to determine a lead offence. Both counsel identified aggravated burglary as the lead offence on the basis that that was the offence with the highest maximum penalty.  I note that the identification of the lead offence is done on the basis of which offence was the most serious.3   In my view, the most serious offence in this case was injuring with intent to cause grievous bodily harm.  I will treat that as the lead offence.

General principles

[21]     The Court of Appeal decision in R v Taueki is the guideline authority for serious violent offending.4   Although that decision directly addresses wounding with intent to cause grievous bodily harm as opposed to injuring, it does apply also to that

offence provided the guidelines are recalibrated to reflect the different degrees of

3      Sentencing Act 2002, s 85(4)(a).

4      R v Taueki [2005] 3 NZLR 372 (CA).

seriousness of the two charges and the different maximum penalties applicable to each.  5   That  is  not  a  strict  mathematical  exercise.6      The  Court  of Appeal  has identified in Taueki a list of aggravating features contributing to the seriousness of grievous bodily harm offending.

[22]     The Court then sets out three bands for sentencing based on those factors.  In my view only two are conceivably relevant here:

(a)      Band 1:  for offences at the lower end of the spectrum which do not involve extreme violence or violence that was life threatening.  Where no aggravating features are present a start point at the bottom of the band is appropriate.  Where one or more factors are present a higher start point obviously is required.

(b)Band 2:   appropriate for offending where there are two or three aggravating factors.  The appropriate point in that band will depend on the seriousness of those factors.

[23]     The Court of Appeal however noted that the illustrations were intended for guidance only, and that the suggested bands and starting points should be used flexibly.  The sentencing Judge must exercise judgment in assessing the gravity of each  aggravating  feature.    The  features  of  the  offending  in  each  case  must  be carefully assessed in order to establish a starting point which properly reflects the

culpability inherent in your offending.7

Crown submissions

[24]     Counsel for the Crown, Ms Graham, submits that four of the aggravating features identified in Taueki are present here.   She says that your offending was premeditated because you admitted choosing the victim’s home because you knew she lived alone.  She also notes that the victim was vulnerable, that you attacked her

head and that you invaded her home.  Ms Graham also says that your attack could be

5 At [9].

6      R v Lambert CA456/05, 4 April 2006 at [22].

7 At [42].

seen as extreme violence considering the frenzied, unprovoked and gratuitous nature of your attack.  Because there are at least three aggravating factors, she submits that your offending falls within bands two and three of Taueki. She argues, as you heard her do again today, that a starting point of seven years’ imprisonment is appropriate.

Defence submissions

[25]     Your  counsel,  Mr  Forster,  accepts  that  your  offending  involved  violence against the victim inside her home.  But he submits that the victim did not sustain significant physical or emotional harm from the attack.  He submits that a starting point of three years and six months’ imprisonment is appropriate.  He relies on the Court of Appeal cases of R v Shirley and R v Patrick.8   In those cases, the lead charge was aggravated burglary.   Although there was threatened violence in both those cases, there was no actual violence or injury to the victims.  I consider those cases less serious than this one.

Discussion

[26]     After reflecting on those submissions I consider there are four aggravating features present in this case:

(a)       home invasion;

(b)      vulnerability of the victim; (c)   attacking the head; and

(d)      use of a weapon.

But the gravity of these aggravating features varies.

[27]     First, this Court has repeatedly emphasised the importance of recognising the

sanctity of the home and insisted that violence occurring in a person’s house is to be

treated as an aggravating factor calling for a higher sentence.9   You forced your way

into the victim’s home, a place in which she was entitled to feel safe.

[28]     Secondly, your victim was vulnerable.  She is smaller in size and stature than you. When she fell to the ground, you continued to punch and kick her.

[29]     Thirdly, your blows, including your attempt with the rock, were aimed at the

victim’s head. The fact you targeted the victim’s head is evidenced by her injuries.

[30]     Fourthly, as to the use of a weapon, I accept that this factor is to be given less weight.  Your choice of the rock was opportunistic, when it presented itself by the footpath.   Although you took aim at the victim’s head with the rock, you dropped it and you did not use it further in the attack.

[31]     I do not agree with the Crown that your attack was generally premeditated. You were expelled from your associate’s party and you made the impulsive decision to take your anger out on someone.  The victim was the nearest person to you who you knew lived alone.  The impulsive nature of your attack is illustrated by the fact that you picked up your weapon outside the victim’s home.  On the other hand, once the impulse formed you selected that house because you knew the victim lived there alone. And you entered that house with the intention of hurting her.

[32]     Nor do I accept the Crown submission that your attack involved “extreme violence”.  It was nasty, it was cruel and it caused the victim physical and emotional trauma.  I do not accept your counsel’s submission that that was “not significant”. But in terms of the scale of violence relevant to setting the starting point, it was not prolonged and it does not qualify as “extreme violence”.   In this you are perhaps fortunate that the rock fell from your hand.   This factor, the degree of violence, somewhat overlaps with the factor of attacking the victim’s head, and I do not wish to double count that feature of your offending.

[33]     As  to  mitigating  factors,  the  Court  in  Taueki  identified  two  factors, provocation and excessive self-defence, as reducing the seriousness of this type of offending.  Neither consideration applies here.

[34]     When applying the Taueki bands, I must take into account that those bands apply to wounding with intent to cause grievous bodily harm.  That offence has a higher maximum penalty than the offence for which you have been convicted.  As I said  before,  it  is  not  a  strict  mathematical  exercise.    But  I  consider  that  your offending falls at the upper end of band one or the lower end of band two.

[35]     I therefore adopt a starting point of four and a half years’ imprisonment.  I reach this conclusion in particular in light of two decisions of the Court of Appeal, R v Panine and R v Gore.10

[36]     Because I have treated your home invasion as an aggravating feature of your injuring with intent to cause grievous bodily harm, I am not going to uplift the starting point to reflect that additional offence.  As I said before, the starting point that I have selected reflects the totality of the two offences that you committed at the same time.

Personal aggravating and mitigating factors

[37]     There are no personal or aggravating features in this case.

[38]     There  are  however  four  personal  mitigating  factors  that  affect  the  final sentence that I will impose:

(a)       Youth;

(b)      Remorse;

(c)       Lack of prior offending; and

(d)      Guilty plea.

[39]     As to youth, at the time of your offending, you were 18 years old – just.  It is clear that an aspect of the offending in this case reflects an immature, impulsive response to circumstances that confronted you early in the morning, at the party. Section 9(2)(a) of the Sentencing Act 2002 permits consideration of youth as a mitigating factor, although it does not follow that a discount for youth is automatic. It has been said, however, that youth is relevant because of age–related neurological immaturity of youth offenders (especially as to susceptibility to negative influences or impulsive reactions), and the psychological evidence in this case suggests that that is so in relation to you.   Secondly, the crushing anti-rehabilitative effects of long sentences  on  youths,  and  thirdly,  the  greater  capacity  of  a  young  person  to rehabilitate.

[40]     In this case the Crown accepts that you are entitled to a discount for youth.

[41]     I will therefore grant a discount for that consideration reflecting the three factors just noted.  But Iziah I do so with one significant reservation.  That is your recent association with Black Power causes me concern as to whether you will rehabilitate effectively, or whether you will instead be sucked down into a vortex of adult offending.  It is a tragedy for the community and it is a tragedy for your family, to see a young man like you, before the Court for the first time, heading for jail, and willingly entering the clutches of a gang for self-protection.  But I will give you the benefit of the doubt and discount your sentence by 10 per cent for youth.

[42]     Secondly, as to remorse, I accept that you are genuinely remorseful for your offending. You admitted the offending to the police three days after it occurred. You have written an apology letter to the victim.  I have read it.  It appears to me to be heartfelt.  Unlike a number of such letters that I see, it is properly focused on the victim, rather than on the predicament you find yourself in.  I have today received from your counsel a letter that you have written to me. Again, it seems to me to be a genuine and heartfelt expression of remorse.  Again, it is focused, as it should be, on the victim.   I accept that your record shows that this offence, against a random

victim, is entirely out of character.  I will discount your sentence by a further 10 per cent to reflect remorse.

[43]     Thirdly, you are also entitled by conventional sentencing considerations to a discount to reflect the fact that you are a first offender.  This overlaps to an extent with the fact that you are young.  But despite the distractions to which you have been prone and the influences which you have adopted, you have no Youth Court record either.  You are entitled to a discount of a further 10 per cent for that consideration also.

[44]     It follows from this, and this is mathematical, that the starting point is to be discounted by 30 per cent.  That means that the starting point is reduced from four years and six months to three years and two months’ imprisonment.

[45]     But finally, you are also entitled to a discount for your guilty plea.   The Supreme Court in Hessell v R held that the discount that is given for a guilty plea must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case.11

It  is  then  applied  to  the  sentence  that  would  otherwise  have  applied  after

consideration of mitigating features.

[46]     In this case you admitted the offending to a police officer three days after the event when you were merely a suspect.  As soon as the charge of attempted murder was discharged you pleaded guilty to the present remaining charges.  I accept that you are entitled to the full discount of 25 per cent for your guilty plea.

Sentence

[47]     Stand please.

[48]     Iziah   Abbott,   you   are   sentenced   to   two   years   and   four   months’

imprisonment on the count of injuring with intent to cause grievous bodily harm.

11     Hessell v R [2010] NZSC 135 at [74].

[49]     On the count of aggravated burglary you are sentenced to eighteen months’

imprisonment, to be served concurrently.

[50]     Therefore  the  total  sentence  today  is  two  years  and  four  months’

imprisonment.

[51]     You have now been in prison for eight and a half months.  The sentence that I have imposed today means that you have the potential for parole within a further short period. You need to take yourself in hand.  In your letter to me today, you have said to me that prison is not a place which you wish to spend the rest of your life in. You say it is a horrible place filled with horrible people.  You say to me that this is your first offence ever and you guarantee that it will be your last offence ever.  That is a very optimistic prediction and it is made all the more optimistic if you fall prey to the influences that you have recently adopted by association with gang members. One of the truly regrettable features of the criminal justice system is that people are put in prison where they cannot but be influenced by such people.  If you cut your ties with those people, and if you genuinely commit yourself to a path of decent behaviour, then it may well be that the Parole Board will see fit to release you from prison within a further short period.   But that possibility is entirely dependent on your attitude to life and those with whom you are about to associate, and will continue to associate.  Do I make myself clear?  Do you understand?  [Yes sir].

[52]     You have been given the three strikes warning on arraignment.    There is nothing more I need to say to you now. You may stand down.

Stephen Kós J

Solicitors:

Solicitor-General, New Zealand