R v Brown

[2009] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND

CA20/2009
[2009] NZCA 288

THE QUEEN

v

FRANK JAMES BROWN

Hearing:15 June 2009

Court:Chambers, MacKenzie and Simon France JJ

Counsel:I D Farquhar for Appellant

M F Laracy for Crown

Judgment:7 July 2009 at 11 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The sentence of:

(a)Three years nine months’ imprisonment for wounding with reckless disregard is quashed and a sentence of two years eight months’ imprisonment is substituted;

(b)     Two months’ imprisonment for assault is confirmed;

(c)Two months’ imprisonment for resisting a constable in the execution of his duty is confirmed;

(d)Two years’ imprisonment for burglary is quashed and a sentence of one year’s imprisonment is substituted;

(e)Two years’ imprisonment for receiving is quashed and a sentence of six months’ imprisonment is substituted –

And sentences (a)-(c) are concurrent and sentences (d) and (e) are concurrent but cumulative on sentences (a)-(c), making a total effective sentence of three years eight months’ imprisonment.

C        The fines, which were remitted without jurisdiction, are reinstated. 

REASONS OF THE COURT

(Given by MacKenzie J)

[1]       This is an appeal against a total sentence of five years nine months imprisonment by Judge Weir in the District Court at Rotorua.  That followed pleas of guilty to one charge of wounding with reckless disregard for the safety of others;  one charge of assaulting a child;  one charge of resisting police;  one charge of burglary;  and one charge of receiving.

Background

[2]       On 29 July 2008 the appellant, who is an unemployed 23 year old man, was drinking with neighbours and his partner.  Also present was the victim, their 14 month old son.  The appellant became very drunk.  His partner left to get a bottle for the victim.  The appellant’s partner returned 30-45 minutes later.  She found the victim lying on a couch with a black eye.  She took him and fled the scene, seeking assistance from the residents of another house.  The victim suffered from scratches and abrasions to his back, bruising and a small cut on his mouth, severe bruising around his right eye and a cut on his right eyelid requiring six stitches.  He spent three nights in hospital.  The injuries were consistent with the victim being punched about the head at least twice and possibly more than that.

[3]       Police were called and located the appellant in the street shortly after the incident.  He was screaming incoherently and pacing around in a very agitated state.  He fled when he saw the police and police cordoned off the area.  When the appellant was seen again he was still screaming incoherently and approached the police aggressively.  After police ordered him to remain stationary he fled down the street again.  He was caught trying to climb a fence.  He struggled with them and attempted to escape, before he was apprehended.  When questioned, the appellant had no memory of inflicting the injuries, but admitted hitting the victim on the leg (which was the subject of the charge of assault on a child) and also said that he fell down some stairs while holding the victim.  The paediatrician described that as a “very unlikely” cause of the injuries.

[4]       When police were later doing a scene examination in relation to the incident involving the child, they located a computer which the appellant had stolen from a nearby school, having removed the glass from a window and climbed in.  They also located a cash box containing antique jewellery and foreign coins, collectively valued at approximately $1,500.  That property came from a house in Taupo bordering the address of one of the appellant’s associates.  The appellant admitted knowing it was stolen.

Sentencing

[5]       The sentencing Judge said that the appellant had a completely disruptive and dysfunctional lifestyle, with gang associations and alcohol problems.  He acknowledged that the appellant’s youth had been very hard but said that it was time for him to move on and take responsibility for his adult life.  He noted that the appellant had a very bad record with 73 convictions.  He considered the factors in R v Taueki [2005] 3 NZLR 372 to determine the band of a violent offence, and noted that this violence had included serious injury, attack to the head, vulnerability of the victim and breach of trust. He determined that this offending fell into the top end of band two. He then considered the issues about the cross application of the Taueki bands to offending other than grievous bodily harm.  He imposed a starting point of five years, reduced to three years nine months for remorse and the guilty plea. 

[6]       The Judge then also sentenced the appellant to two years (from a three year starting point) on each of the burglary and receiving charges.  These sentences were to be served concurrently with each other, but cumulatively on the wounding sentence.  He stated that he had taken account of the totality principle.  He imposed a concurrent sentence of two months on each of the other charges.

Appellant’s submissions

[7]       Counsel for the appellant submitted that the starting point selected was too high and that the offending fell in the lower to middle part of band two on a Taueki basis, so that two to three years would have been an appropriate starting point.  This was so because the Judge had wrongly classed the injuries as “serious”.  The injuries here were already embraced in the elements of the charge of an offence of “wounding”.  Further, although the attack injured the victim’s head, it should not be classed as an attack on the head for the purposes of a Taueki analysis because this was not a “severe beating or kicking causing head injuries”.  Counsel described this as “an assault on the head… not an attack on the head”.  Counsel submitted that the Judge should have given more consideration to the fact that some of the injuries may have occurred during a fall.

[8]       Counsel further submitted that there was an inconsistency in that the Judge applied only a 25% discount for the early guilty plea and the appellant’s remorse on the wounding with intent, yet applied a 33% discount to the burglary and receiving charges.

[9]       Counsel submitted that the Judge either failed to apply or did not adequately take into account the totality principle in imposing a cumulative sentence of two years for the receiving and burglary charges.

Crown submissions

[10]     The Crown submitted that the Judge was right to consider the injury in this case to be serious.  This is because an injury to a child is considered by the Courts to be inherently more serious than an injury to an adult: R v Wilson [2004] 3 NZLR 606 at [43]. As to the submission that this was merely an assault on the head not an attack on the head, the Crown submitted that two punches to the head of a 14 month old infant is sufficient to amount to a severe beating, that it did give rise to injuries, and the concern about the potential consequences of blows to the head raised in Taueki is very much at issue when a young child is struck on the head even once.  The Crown also said that the appellant pleaded guilty to wounding with reckless disregard and cannot therefore assert that the injuries were accidental.

[11]     The Crown supported the Judge’s discount for the plea, saying that the plea was not entered at the earliest opportunity but at depositions and the 25% discount was therefore appropriate.  Further, the fact that 33% was given for the dishonesty offences does not mean that the same discount had to be applied to the wounding offence.

Discussion

(a)       The wounding with reckless disregard charge

[12]     It is necessary to address first the factual basis of the sentencing.  At sentencing, and on appeal, the possibility of some injuries being caused by a fall was raised.  This proposition was met by reference to the expert evidence of a paediatrician.  The proper course, for sentencing, was to proceed on the basis of all facts, express or implied, essential to the plea of guilty, and of the facts disclosed in the summary of facts to which the plea was entered.  That removes any risk of reliance being placed on disputed material.  Here, the possibility that some of the injuries referred to in the statement of facts were the result of a fall was inconsistent with the plea, and was therefore not a possibility to be addressed at sentencing.  The evidence of the paediatrician, thought not admissible on sentencing, provided confirmation of that position.

[13]     The Judge in sentencing, and counsel in submissions, placed considerable reliance on Taueki.  Taueki is concerned with the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm, under s 188(1) of the Crimes Act 1961.  This case involved s 188(2).  The application by analogy of those guidelines to other offences involving the infliction of serious violence was specifically anticipated in Taueki at [9]:

We propose to deal with the guidelines for sentences for serious violent offending at the outset, before dealing with the present appeals. We focus our attention on offences under s 188(1) of the Crimes Act (we will refer to these as “GBH offences” or “GBH offending”), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.

[14]     It has become common practice to apply the Taueki guidelines by analogy not only to cases where the level of violence or intended harm is similar to that in ss 188(1) and 191(1), but also to cases involving the infliction, or intended infliction, of less serious harm, such as the offences in ss 188(2), 189 and 191(2).  Considerable care is required in the application of the Taueki guidelines to such offending.  Sections 188, 189 and 191 contain a quite complex matrix of different levels of intention and of consequences in the infliction of violence.  The gradations involved require a close focus on the facts of each case.  That will not be assisted by attempting to adapt the Taueki guidelines to offending which is essentially different in nature from that considered in Taueki.  It is well established that the adaptation of the Taueki guidelines in such cases is not a matter of mechanical adjustment.  That point is made in the decision of this Court in R v D [2008] NZCA 267 at [43]:

While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].

[15]     The need for caution in the application of the Taueki guidelines assumes particular importance if an attempt is made to equate offending for less serious violence to the bands described at [36] to [41] of Taueki.  The descriptions given of conduct falling within those bands are referable only to the categories of serious violence with which Taueki is directly concerned.  That categorisation cannot be directly applied to the less serious levels of violence involved in other offending.  Taueki is more properly applied, in such cases, by an appropriately adjusted application of the general statements of principle than by an adjusted application of the particular bands.

[16]     That point has particular relevance to counsel for the appellant’s submission that the injuries here are properly to be described as resulting from an assault on the head rather than an attack on the head.  We do not consider that a semantic analysis is appropriate.  An assault on a 14 month old child which results in injuries sufficient to cause bruising and cuts to the head is serious.  But an attempt to equate directly the circumstances of this offending with that referred to at [31](e) of Taueki, where attacking the head is described, is unhelpful. 

[17]     For these reasons, we do not consider it appropriate to assess the starting point in this case by an adaptation, by analogy, of adjusted Taueki bands.  It is better, in considering the starting point for the offending, to have regard to decisions of this Court in cases which involve violence which is, broadly speaking, of a similar level of seriousness to that in this case. 

[18]     There are a number of decisions of this Court which deal with offences under s 188(2) against young children.  In R v Filo [2007] NZCA 20, the appellant was found guilty of causing grievous bodily harm with reckless disregard to a six month old child. The appellant attempted to settle a crying child and in doing so caused injuries consistent with impact trauma and with the child having been shaken and with the child’s head being hit on a hard object. The child was admitted to hospital and treated to relieve pressure on his brain. The child spent three days in intensive care and 16 days in hospital. A starting point of two years nine months was taken by the sentencing Judge. That was described by this Court as “well within the sentencing range available”.

[19]     In R v Gatland CA330/98 26 November 1998, the offence was causing grievous bodily harm with reckless disregard to a six month old child.  The injuries consisted of a fracture to the skull and subdural bleeding.  The child suffered some local brain damage.  A sentence of three years imprisonment (after trial) was described as “well within the range”. 

[20]     In R v Wilson [2004] 3 NZLR 606, the Solicitor-General appealed against a sentence of three and a half years imprisonment imposed (after trial) on the father of a baby between six and 12 weeks old. Injuries were the result of a series of assaults by the father over a six week period, culminating in a particularly serious incident which led to the baby suffering a fractured skull. A sentence of three years six months was increased to one of six years imprisonment. This Court described the sentence of three and a half years imposed by the sentencing Judge as “more appropriate for a serious, prolonged, one-off assault on a very young child” at [58].

[21]     Also of assistance are two High Court decisions involving quite similar injuries.  In R v Te Waaka HC AK CRI-2006-092-015178 7 April 2008, a starting point of three years was adopted for causing grievous bodily harm with reckless disregard for safety to the four year old son of the offender.  The offender shook the child in a way that caused serious injury including subdural haemorrhaging, traumatic brain injury, retinal haemorrhaging in both eyes, rib fractures and bruising to arms.  In R v Peauvale HC AK T022287 6 March 2003, a starting point of two years was adopted for two counts of causing grievous bodily harm and one of injuring, with reckless disregard for safety, the offender’s infant daughter. 

[22]     In this case, the sentencing Judge adopted a starting point of five years.  In our view, that starting point was too high.  The starting point in the cases to which we have referred ranged between two years and three and a half years.  The injuries suffered in this case were less serious than those in most of these other cases, some of which also involved more than one incident.  However, the offending in this case was also serious.  An assault to the head of an infant can have dire consequences.  The injuries were described by the sentencing Judge as very serious and potentially life-threatening.  This Court must have regard to the seriousness of offending such as this against infants.  The charge of assault on a child, which arose from the appellant’s admitted actions in smacking the child on the legs, and the scratches and abrasions to the back, add to the criminality of the offending.  The abhorrence of the community to such offending needs to be recognised by giving full effect to the sentencing purposes of denunciation of such conduct and the deterrence of others from such offending.  The charge of resisting a constable in the execution of his duty arose directly out of this incident, and must be regarded as adding, to a small degree, to the totality of the offending involved in this incident.  These factors require a sentence which is at the top of the available range.  In the circumstances, we consider that a starting point of three and a half years is appropriate. 

[23]     The Judge allowed a discount of 25% from the starting point.  Counsel submits that the discount was too low, particularly in comparison with the one third discount for the dishonesty offending.  The plea was entered at depositions.  The discount was within range, and we adopt that same percentage.  We allow a discount of ten months, giving an end sentence, on that count, of two years eight months. 

(b)      Burglary and receiving

[24]     The sentencing Judge treated the appellant as a recidivist offender and adopted a starting point of three years.  We consider that, considered on a stand alone basis, and before regard is had to the totality principle, that starting point is too high.  The appellant had five convictions in the Youth Court for burglary, plus four further burglary convictions since becoming an adult in 2002.  He was therefore towards the lower end of the recidivist burglar category.  The burglary offence involved a school.  While serious, that does not have the same intrusive element as a burglary of residential premises. 

[25]     Other recent decisions of this Court, which are comparable with the burglary offending, indicate a lower starting point that that adopted here.  In R v Stevens [2009] NZCA 190, the offending included one count of burglary, involving theft of some copper piping worth about $350. This Court considered that on that count, standing alone, the appropriate starting point for the offending would have been no higher than 18 months, with an uplift of 12 months for the circumstances of the offender, who had significant dishonesty offending but was not in the recidivist burglar category. In R v Columbus [2008] NZCA 192, for a burglary of a residential property involving theft of a mountain bike and some tools, by an offender described as having habitual or recidivist tendencies, a starting point of two and a half years was considered appropriate by this Court. In R v Phillips [2008] NZCA 440, which involved burglaries from two residential properties of property valued at $390 and $4,000 respectively, by an offender with numerous dishonesty convictions including five burglaries and one attempted burglary, a starting point of two years was upheld.

[26]     The receiving charge (which did involve property taken from a home) was an aggravating factor.  Taken together, we do not consider that the dishonesty offending justified a starting point as high as three years.  Viewing that offending in relation to the totality of the offending as a whole, we consider a starting point of 18 months appropriate.  The Judge allowed a discount of one third.  That was at the top of the available range.  We see no reason to alter it.  Applying that same ratio, we consider that a sentence of 12 months is appropriate. 

[27]     A sentence cumulative on the wounding sentence is clearly required.  The offending is different in kind, and unrelated in circumstances.  That gives a total sentence of three years eight months.  We are satisfied that sentence is appropriate for the totality of the offending, including that involved in the additional minor charges, which we have reflected in the sentence on the wounding charge.

Remission of fines

[28]     When sentencing the appellant, the Judge also purported to remit outstanding fines of $17,000.  The Court, prior to the hearing, had noted this as probably having been done without jurisdiction.  But we then forgot to raise this issue with counsel.  Shortly after the hearing, we sent out a minute in the following terms:

[1] We forgot to raise one matter with counsel. Judge Weir purported to remit outstanding fines: at [17]. It seems to us he had no jurisdiction to remit those fines. Fines may be remitted under s 88(3)(h) of the Summary Proceedings Act 1957 only if the s 88 procedure has been complied with. So far as we can see, it has not been here. Accordingly, it is our view the fines should be restored, having been remitted without jurisdiction. For authority, see R v King CA23/01 21 June 2001, R v Gebbie CA452/04 2 March 2005 at [7], R v Lowe CA62/05 4 July 2005 at [18] and R v Eliu [2008] NZCA 239 at [5].

[2]       Does Mr Farquhar accept the remission was without jurisdiction?  If he does, he should send an email to that effect to the case officer.  If he disputes that, he should file submissions on the point.  Only in that event does the Crown need to respond.

[29]     Mr Farquhar subsequently advised that he accepted the remission had been made without jurisdiction.  That was a correct concession.  Accordingly, we have reinstated the fines: see order C. 

Result

[30]     The appeal is allowed.  The sentence of three years nine months imposed on the charge of wounding with reckless disregard is quashed and a sentence of two years eight months is substituted.  The sentence of two years imposed on the burglary charge is quashed and a sentence of one year is substituted.  The sentence of two years imposed on the receiving charge is quashed and a sentence of six months is substituted.  Those latter terms are to be served cumulatively on the sentence on the wounding charge but concurrently with each other.  The concurrent sentences of two months imprisonment on the resisting police and assault charges are confirmed.

Solicitors:
Ian Farquhar, Taupo, for Appellant

Crown Law Office, Wellington