R v Barnfather-Thomas HC Hamilton CRI 2009-019-8477

[2010] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-019-8477

THE QUEEN

v

ANDREW BARNFATHER-THOMAS

Hearing:         16 September 2010

Counsel:         L Dunn for Crown

R Laybourn for Mr Barnfather-Thomas

Sentence imposed:     Wounding with intent to cause grievous bodily harm (x1)

3 years and 7 months imprisonment

Judgment:      16 September 2010

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton
Counsel:

R Laybourn, PO Box 936, Hamilton

R V BARNFATHER-THOMAS HC HAM CRI 2009-019-8477  16 September 2010

Introduction

[1]      Andrew Robert Barnfather-Thomas, you appear for sentence today on one count of wounding with intent to cause grievous bodily harm, the maximum penalty for which is 14 years imprisonment.

[2]      While you entered a plea of guilty on the morning of your trial, you had previously indicated that you would enter a plea of guilty to that count on 22 June

2010.  Up to the date of trial, the Crown had intended to proceed with the lead count of attempted murder.  Having pleaded guilty to the charge of wounding with intent to cause grievous bodily harm, I formally discharge you on the charge of attempted murder.  That discharge has the effect of an acquittal on that charge.

The facts

[3]      On Saturday 12 September 2009, at 9.45pm, you were at your home address in Heath Street, Hamilton.  You were present with your mother and your step-father, Mr Steiner.  You and Mr Steiner got into an argument.  Prior to the argument, Mr Steiner had been giving excessive alcohol to you.

[4]      There are areas of dispute around how physical contact between the two of you started.  But, however it began, a struggle ensued in which each of you grappled with the other.  Threats to kill were exchanged.  You each head-butted the other.

[5]      At one stage, Mr Steiner twisted your wrist.  It appears that shortly after that event, you momentarily separated.  At that stage, you drew a black handled pocket knife from your right rear pocket.   You held it in your right hand with the blade pointed towards Mr Steiner.  The knife was of a folding variety.  You customarily carried it with you.  The blade is approximately three inches in length.  Your acts in taking out the knife served to escalate the tensions markedly.

[6]      While holding the knife, you said words to Mr Steiner indicating that you could kill him with the knife.

[7]      Your mother attempted to separate the two of you but  you continued to brandish the knife in a menacing manner.  You then stabbed Mr Steiner in the chest. When he realised he had been stabbed, he left the house in an endeavour to escape from you.   As he made his way out of the dwelling, you chased him, holding the knife in your hand.

[8]      During this time, as your mother watched you pursue your step-father down the street, she called the Police.

[9]      Ultimately, Mr Steiner was able to flee from you.   He made his way to a small group of shops in a suburban area close to where you lived.  At that stage, he became short of breath and unsteady on his feet.  He sat down.

[10]     The Police arrived.   They located Mr Steiner outside the shops.   He was hospitalised as a result of the wound he suffered.

[11]     You made your way to another address.  You approached people standing in front  of  the  property there  saying  you  had  just  stabbed  your  step-father.    You produced the knife, which had blood on it.

[12]     At the time of the offending you were aged 20 years.  While you have not previously appeared before the Courts, I recognise that the pre-sentence report discloses that, since your parents’ separation, you had become involved with drugs and substance abuse and had periods of self-harm.

Competing submissions

[13]     Ms Dunn, for the Crown, advises that the Crown elected to accept the plea of guilty on the morning of the trial because your mother (the Crown’s main witness) presented a letter indicating she had concerns about the charge of attempted murder, raising possible questions of self-defence.

[14]     In relation to the charge of wounding with intent to cause grievous bodily harm, Ms Dunn submits the following factors aggravate the offending:

a)        You were armed with and used a weapon, namely a knife. b)  The victim was unarmed.

c)        The argument was unprovoked.

d)       The wound was to the chest of the victim.

e)        You  pursued  the  victim  after  you  stabbed  him  and  made  further threats to kill him.

f)        Even when you were spoken to by the Police, you maintained that you wished you had done “a better job” in stabbing your step-father.

[15]     The physician who treated your step-father at Waikato Hospital says that the wound tract extended to the tip of his heart.  It was pure luck that the injury inflicted did not cause death.  If that had happened, you would be standing here today on a charge of murder.

[16]     Mr Laybourn, on your behalf, submits that this is a case involving mutual violence, instigated by the victim who plied you with excessive alcohol, stood over you, abused you for not respecting him as a father, struck and head-butted you, as well as twisting your wrist.

[17]     Mr Laybourn submits that the knife was not produced until after you had been threatened and head-butted by the victim, a larger and older man.   In those circumstances, which Mr Laybourn has described as unique, he submits that I should take into account considerably the amount of provocation that you received before these incidents occurred.

Principles and purposes of sentencing

[18]     In sentencing you, I am required to hold you accountable for the harm you have done to the victim and endeavour to promote in you a sense of responsibility

for the harm you have done.  I am required to provide for the victim’s interests.  In doing so, I take account of his views on sentencing.

[19]     Most importantly, I must denounce the conduct in which you were involved from the community’s perspective and seek to deter you and others from committing similar offences in the future.

[20]     Having said that, I am required also to impose a sentence consistent with others in similar cases and to impose the least restrictive sentence available in the circumstances, to promote rehabilitation and reintegration into the community after you have served what I regard as an inevitable sentence of imprisonment.

[21]     I say prison is inevitable because, whatever your family dynamics happen to be at the moment, including the degree to which your step-father and mother have come to terms with what happened last year, the community is just as much a victim in offending of this type as the person who was stabbed.

[22]     In a case like this,  I must protect the community from someone who is prepared to carry and to use a knife in this way.  That is a very important sentencing goal.   Overall, your offending cannot adequately be marked without a sentence of imprisonment to denounce your conduct, to hold you accountable for what you did, to deter others from committing similar offences in the future and to protect the public from people who behave in this way.

Analysis

[23]     I must first identify a starting point, by reference to the maximum penalty available, that takes account of all aggravating factors relating to the offence.   As there are no aggravating factors personal to you, I am then required to identify mitigating factors, including the entry of the guilty plea.  In sentencing you, I take account of the fact that your step-father acknowledges some responsibility for the incident and did not wish you to receive a full-time custodial sentence.

[24]     Inherent in the plea of guilty you have entered, is that you used a knife on your step-father with the intention of causing really serious harm to him.   That is what you have admitted to doing by entering the plea of guilty.  That is aggravated by the serious injury he sustained, attacking his head at various stages during the physical interaction and, perhaps most importantly, by your pursuit of him, brandishing a knife down the road while he was trying to get away from  you, suffering from a wound that could easily have been fatal.

[25]     Taking those factors into account, I regard the starting point for sentence as being five years imprisonment.[1]

[1] R v Taueki [2005] 3 NZLR 372 (CA) at paras [31]-[39] (inclusive).

[26]     I accept you have no previous convictions.  I accept this was out of character. I accept your expressions of remorse as genuine.  I also accept that you have taken genuine steps to rehabilitate through alcohol and anger management counselling since your plea was entered.   I am entitled to take those factors into account as deductions from the sentence that would otherwise be imposed.

[27]     For those factors, I deduct a period of nine months from the starting point, making the revised starting point four years and three months imprisonment.  I make no further deduction in relation to the victim’s views because I have taken them into account already in fixing the starting point.

[28]     The offending occurred on 12 September 2009.  You were committed for trial in this Court on 10 November 2009.   An indictment was presented including the attempted murder charge.  On the first appearance in the High Court on 19 February

2010, pleas of not guilty were entered to both charges.  Your trial was scheduled to begin on 26 July 2010.  Your indication of preparedness to plead to the latter charge was only given about one month before the trial.   In those circumstances, the maximum credit I can give to you for your guilty plea is 15%, which I round to eight

months imprisonment.[2]

[2] Hessell v R [2010] 2 NZLR 298 (CA) at para [15].

[29]     That means that the end sentence will be one of three years and seven months imprisonment.

Result

[30]     Mr Barnfather-Thomas, you are sentenced to a term of imprisonment of three years and seven months imprisonment.

[31]     Stand down.

P R Heath J