R v Baird CA278/04

This appeal was against a sentence of nine years imprisonment, with a minimum non-parole period of four years and six months, imposed in the District Court at Wellington on 22 June 2004 after conviction by a jury on counts of injuring with intent and two counts of sexual violation by unlawful sexual connection. The appellant had been in a relationship with the complainant for about a year, which had been off and on. The couple went to a bach in the Akatarawa region and on 18 January 2003, the relationship turned nasty. The appellant began to question and badger the complainant concerning her relationship (if such existed) with a previous boyfriend. The appellant then set upon the complainant in a jealous, controlling rage. The complainant had 18 bruises to her body, and her finger needed splinting. She received two cigarette burns. The appellant hit her numerous times and threatened to kill her, put a necktie around her like a noose, and wanted her to crawl around and bark like a dog. The appellant removed the complainant's pants and tied her to the bed, inserted a candle into her vagina, which he lit, and then left her in the room while it was burning. The appellant then had anal sex with her, and he indicated to her that he wished to urinate on her in her mouth, which she asked him not to do. Counsel for the appellant contended that the sentence of nine years imprisonment, and the minimum non-parole period of four and a half years, were both manifestly excessive because the Judge ignored the fact that acquittals had been entered on other counts. Counsel further submitted that the imposition of the minimum non-parole period was not justified to satisfy requirements of punishment, deterrence and denunciation and the safety of the community was not an issue. Counsel relied upon mitigating matters concerning the appellant's character, background and personal circumstances which were contained in a psychological report that was before the sentencing Judge. The Crown's position was that there were serious aggravating features in respect of two grave sexual violations, which included restraint of the complainant, elements of degradation, humiliation with actual and prolonged violence as a forerunner to the sexual violation. The Court held that the Judge imposed a global sentence of nine years imprisonment but it did not appear from the sentencing notes that she differentiated so as to impose separate sentences. This was of little moment in relation to the sexual violation convictions but led to a difficulty in respect of the count of injuring with intent. In terms of s 189(2) Crimes Act 1961, the maximum penalty for such crime is a sentence of five years imprisonment. Consequently the term imposed in respect of that conviction is rectified later in this judgment. The unlawful sexual connection charges were by anal penetration (that is anal rape) and by penetration of the complainant's vagina with the candle. The Judge was entitled to view the two sexual violation and injuring crimes in the context of the factual circumstances and events that occurred on that night. There was serious violence inflicted upon the complainant as found by the jury's verdict on the count of injuring with intent. The Judge did not err in referring in her sentencing remarks to a person who was not called as a witness. The Judge was quite entitled to make the observations she did. In relation to the victim impact reports, the Judge is required to take into account contents of a victim impact statement but there was no substance to the appellant's claim that the Judge ought not have placed the emphasis she did on the victim impact statement. The matters contained in the psychological and probation officer's report providing mitigating circumstances, and including the personal and health difficulties of the appellant, were matters squarely before the Judge and referred to by her. Mitigating personal circumstances, including the late expression of remorse, was referred to but the comment balanced against the appellant's continued insistence that the acts were consensual. A starting point of 10 years imprisonment would have been fully justified based on the totality of the crimes upon which the appellant was convicted and a sentence of nine years imprisonment was fully justified. To correct the position regarding the count of injuring with intent to injure, that sentence is quashed and a sentence of four years imprisonment is imposed. It is to be served concurrently with the sentence of nine years imprisonment on each of the sexual violation charges which are also concurrent. The Judge imposed a minimum non-parole period of one-half of the term of nine years. Counsel submitted that the Judge erred because the safety of the community was not an issue and such a non-parole period was not required to satisfy the requirements of punishment, deterrence and denunciation. Applying the approach required in R v Brown [2002] 3 NZLR 670 (CA), the initial focus is on the circumstances of the offence and whether they are “sufficiently serious” to justify the imposition of a minimum period. The question is whether the Court was satisfied that the circumstances of the offence took it outside the ordinary range of offending of the particular kind and it is a matter of judicial judgment whether the sufficiently serious threshold is crossed. The Court was satisfied that that threshold was crossed in this case. The second step again as a matter of sentencing discretion is to determine what length of minimum non-parole period should be imposed. That requires a review of the circumstances of the offender as well as the offence. The Court held that the imposition of a minimum non-parole period was open to the sentencing Judge. In fixing it at 18 months more than that which would otherwise have been the case was not outside the range available to Her Honour and could not be said to be manifestly excessive. It follows that the appeal is dismissed except to the extent that the Court has indicated in relation to the sentence for the conviction of the count of injuring with intent for which a concurrent term of four years imprisonment is substituted.