R v Cameron

[2016] NZHC 2604

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-000141 [2016] NZHC 2604

THE QUEEN

v

WILLIAM NICHOLAS CAMERON

Hearing:	1 November 2016
Appearances:	Mark Harborow and Luke Fraser for the Crown Nicholas Wintour for the Defendant
Judgment:	1 November 2016

SENTENCING NOTES OF MOORE J

R v CAMERON [2016] NZHC 2604 [1 November 2016]

Introduction

[1]      William Nicholas Cameron, at the age of 21 you appear for sentence having pleaded guilty to two charges.   Of those, the most serious by far is the charge of wounding  with  intent  to  cause  grievous  bodily  harm.1      That  charge  carries  a maximum penalty of 14 years’ imprisonment.  The other charge, intentional damage, carries a maximum penalty of seven years’ imprisonment.2

Facts

[2]      Before I move on to consider the question of what penalty I intend to impose I must set out the facts.  While these are contained in the agreed summary of facts and will obviously be well-known to you, sentencing is a public function and as such I am required to recite the facts which are relevant to the sentencing process.

[3]      The  victim  of  your  offending  was  your  half  brother,  Richard  Cameron. Richard moved to New Zealand from Perth in November 2015. The two of you were quite close. You had lived with him in Perth for about a year back in 2013.

[4]      Immediately following Richard’s arrival in New Zealand you travelled down to Queenstown where you picked up a van which your father had converted into a modest campervan.  Together, you began to travel around New Zealand ending up at the Muriwai Motor Camp on the evening of 8 January 2016.

[5]      Over the course of the evening you, Richard and others were drinking and by the early hours of the following morning it was just you and Richard.  Quite what sparked the argument which followed is uncertain.   The summary refers to a disagreement which had its genesis in Richard taking $20 from you to buy cigarettes. That  may  be  correct  but  to  date  you  have  offered  no  real  explanation.    In  a psychiatric report commissioned to explore the availability of a defence of automatism, as well as comments attributed to you in the pre-sentence report, this dispute may have had its origins in your relationship with Richard going back to

your childhood.  I will discuss this aspect later.

1        Crimes Act 1961, s 188(1).

2        Section 269(2)(a).

[6]      The verbal altercation escalated to the point where you took a large knife and swung it several times at Richard.  It is not clear where the knife came from.  You told the probation officer it was on the seat beside your brother.   The first blow connected with his neck.  Subsequent slashes connected with other parts of his body. These included a large puncture wound to his left shoulder, a cut to his finger which went through to the bone and, most serious of all, a deep slash wound to his throat. There were other cuts to his head and a cut to the middle of his back.   Given the ferocity and nature of the attack it is nothing short of miraculous that you are not facing a charge of murder.

[7]      After the attack you got into the campervan and drove it through the locked front gates of the camp ground smashing them.  The summary of facts records that this was for the purpose of attempting to flee from the scene although you dispute this.  You say that you were, instead, taking the vehicle to where your brother had been carried in readiness for transport to hospital.

[8]      Earlier  I  touched  on  the  question  of  an  explanation  or  motive  for  this offending.    To  others  you  have  described  Richard  as  having  been  violent  and bullying towards you as a child.   A letter from your father tends to support this account.  However, your relationship with Richard improved as you grew older and obviously, given your decision to travel around New Zealand together, neither of you foresaw events unfolding in the dreadful way they did.  It seems that as you travelled together some of your childhood resentment may have resurfaced;  you say you found your brother manipulative and domineering.  You felt he took advantage of your generosity and this may explain why you objected so strongly when he took

$20 to buy cigarettes.

[9]      There is also some suggestion in the materials I have read that your brother behaved aggressively and threateningly in the weeks which preceded this incident. Those comments are supported by your father’s observations as well as what you told Dr Galpin, the author of the psychiatric report.  This records you saying that you believed your brother might use the knife against you and that it was a “me or him” situation.  For the purposes of the present exercise I accept that you and your brother may well have had a difficult relationship and I also accept that you might have felt

genuinely  aggrieved  by  his  conduct  in  the  weeks  leading  up  to  these  events. However, even with that background, it is difficult to reconcile this with your disproportionate reaction on the night.  You allowed what, on any analysis, was a minor incident erupt into something which has had a catastrophic effect on your brother, your family and on you.  It is plain there was no question of self defence or automatism engaged here.  You simply lost your temper and you reacted in a way which has had dire consequences.

[10]     To the author of the pre-sentence report you appeared genuinely and sincerely remorseful.  You said that you would rather die than live with what you had done. You presented in a similar fashion to Dr Galpin and I have read the letter that you have penned for today’s sentencing and which you read in open Court.  I accept that you now have a real insight into your offending and you accept total responsibility for it. That is a most encouraging step.

Victim impact statement

[11]     But how does your half brother, Richard, feel and what has been the effect on him as a result of what you did?  In his victim impact statement he described your relationship with him as “reasonably close”.  He said that the two of you got on well. Despite all that has happened, he clearly still cares for you.  It is telling he felt that the attempted murder charge was “too severe”.   He told the Police that he wanted you to receive a sentence which would help you make better life decisions in the future.

[12]     Those   comments   are   generous   particularly   when   read   beside   the consequences he now has to live with as a result of your attack on him.  Aside from the effects of the scarring he has a lack of feeling around the wounds and in his jaw area.  The stab to his back has caused nerve damage resulting in the displacement of his scapula which causes his arm to dislocate.  These symptoms, however, are likely to reduce with time.

[13]     He has trained as a barista but is now unable to perform those duties to the level he did before the injuries.  The result is he is unable to command the hourly rate he formerly did.

[14]   Aside from the physical injuries there have been both economic and psychological consequences for him.   These include a concern which he has expressed in his victim impact statement that you have lied to family members about what actually happened and you have bragged about the fact that you will only get home detention when sentenced.   It is difficult to reconcile those comments with what appear to me to have been sincere expressions of remorse.  For the purposes of the present exercise I am prepared to give you the benefit of the doubt.

Principles and purposes of sentencing

[15]     In sentencing you today, I have regard to the need to hold you accountable for the harm you have done to the community and your family by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to have regard to the interests of the victims; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation and reintegration.

[16]     I take into account the gravity of the offending; the seriousness of the type of offence; consistency with comparable cases and the need to impose the least restrictive outcome appropriate in the circumstances.

Sentencing approach

[17]     In  sentencing  you  today,  I  shall  follow  the  standard  two-step  approach adopted by Courts in this country.  First, I must set what is called the starting point. That requires me to examine the nature and extent of your offending.  You will hear me speak of a case called Taueki which Mr Wintour has referred to, and other decisions which are comparatively similar.3    The second step requires me to adjust the starting point to reflect any aggravating and mitigating factors which are personal to you, including your guilty plea.

[18]     Then, as the Crown requests, I shall consider whether I should impose a minimum non-parole period longer than the ordinary one-third.

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

[19]     As you have heard, the Crown says I should adopt a starting point of between eight and a half to 10 years’ imprisonment.  The Crown says your offending falls within the upper end of band two of Taueki (carrying a starting point of five to 10 years’ imprisonment) or the lower end of band three (with a starting point of nine to

14 years’ imprisonment).

[20]     The  distinction  between  the  two  bands  is  this.    Band  two  is  generally appropriate where there are two or three of the aggravating features present, whereas band three generally applies to more serious offending which has three or more of the aggravating features, and where the combination of aggravating features is particularly grave.

[21]     The  Crown  says  the  aggravating  features  in  your  case  are  the  use  of  a weapon, the use of extreme violence, the extent of the harm caused, targeting the head and premeditation.

[22]     Mr Wintour, on  your behalf,  properly concedes that  your offending falls within the upper end of band two or the lower end of band three and that a starting point of between eight and 10 years’ imprisonment may be appropriate.

[23]     I agree with the Crown that the use of a weapon, the serious injuries suffered and your targeting of the victim’s head are all aggravating features engaged in your case.  Obviously, the use of a knife, particularly when aimed at the neck and throat area, can have fatal consequences. There can be no question that the injuries suffered by your brother were anything other than life-threatening, and there is also no doubt that the injuries you inflicted have critically impacted on Richard’s quality of life.

[24]     I also agree with the Crown that the attack involved significant violence, although  I am hesitant  to describe it as extreme.   To a large extent this  factor overlaps with the aggravating factors I have already identified.

[25]     I do not, however, agree there was any level of premeditation.  While it is unclear where the knife was located just before the attack, I note you maintain it was there all along.  It is not suggested you brought the weapon to the scene, or went out of your way to obtain it.  In my view this is a neutral factor.

[26]     In summary I am satisfied that this combination of aggravating factors, to the degree present in your case, places your offending towards the upper end of band two.

[27]     To determine the particular starting point, it is helpful to consider other cases similar to yours.  The Crown has referred me to a number of these and for that I record my gratitude.  I will not go through the facts of those cases in any great detail but I shall footnote them in my written notes so that you and your counsel will know what cases I have considered.  But the fact is, unsurprisingly, every case is different and only limited assistance is gained by a detailed analysis of them.  For example

some  involve  more  than  one  attacker,4   others  relate  to  greater  levels  of  harm

inflicted.5   Garrett-Phillips v R6 and Lewis v R7 are probably the closest cases on the facts, although I note that in those cases, the offenders brought knives to the scene of the  attacks.     My  own  research  has  uncovered  other  cases  which  bear  some relevance.8    In all these decisions, starting points of between eight and nine years’ imprisonment were adopted.

[28]     Having regard to this, I consider the appropriate starting point in your case is one of eight years’ imprisonment.   This reflects the fact that you used a knife to inflict very serious injuries to the head and neck but that your volatile relationship

with your brother may well have contributed to your overreaction that evening.

4        R v Heitia [2009] NZCA 398.

5        R v Konui [2008] NZCA 401.

6        Garrett-Phillips v R [2015] NZCA 563.

7        Lewis v R [2015] NZCA 444.

8        R v Wereta [2015] NZHC 2683; Saber v R [2010] NZCA 603; Tuau v R [2012] NZCA 146.

[29]     The Crown accepts there are no personal factors to you which would justify uplifting the starting point.  Everything else operates in your favour.  The question for me is to what extent.

[30]     Mr Wintour asks that a discount of 10 to 15 per cent be applied in recognition of your youth, previous good character and remorse.   The Crown submits that a youth discount would be inappropriate in the circumstances but you may be entitled to a modest discount for your previous good character and remorse.

[31]     I  cannot  accept  that  you  are  entitled  to  a  discount  for  your  age.    An assessment as to whether a youth discount should be applied must be made in light of all the circumstances of the case.9    There is no presumption in favour of such a discount and where the offending is particularly serious, such as here, any discount offered is likely to be limited.10   You were 21 at the time of the offending.  This is certainly pushing the upper end of the qualifying range.11    You were not immature and the attack on your brother was very serious indeed.

[32]     I recognise the fact that you have no previous convictions.  I also note that the letters I have received on your behalf from your father and Mr Greig paint a very different picture of you than what would otherwise be inferred from the offending. Both your father and Mr Greig describe you as a kind and good natured person without a hint of violence or aggression about you.  In my view you are entitled to some credit for this although the fact that you admitted that you had been financing yourself by selling drugs for some time must operate to some extent to detract from an assessment of your good character.  In combination with your remorse, which I

have already described, I consider this factor justifies a five per cent reduction.

9        Huata v R [2013] NZCA 470 at [32].

10       R v Rapira [2003] 3 NZLR 794

11       Huata, above n 9, at [34].

[33]     Mr Wintour also submits you are entitled to a discount for your mental health issues.  The psychiatric report provided by Dr Galpin discusses these in some detail. Plainly, you had a difficult and somewhat fractured childhood.  You have suffered from depression and suicidal thinking since your early teenage years.   You have attempted to manage this by experimenting with alcohol and drugs.  You continue to suffer  from  these  issues  and  worry  about  your  capacity  to  cope  with  a  prison sentence without contemplating self-harm.   I do note that you are now receiving medication for your condition and that treatment is likely to continue in prison.   I will reduce your sentence by 10 per cent in recognition of this factor.

[34]     I now come to the question of your guilty plea. Mr Wintour asks that you be given the full available credit of between 20 to 25 per cent.  The Crown says you are only entitled to a reduction of 10 to 15 per cent.  You were originally charged with wounding with intent to cause grievous bodily harm on 11 January 2016.   The Crown added a charge of attempted murder on 3 May 2016.  The wounding charge remained  as  an  alternative.    You  pleaded  guilty  to  the  alternative  charge  on

28 September 2016.  Your counsel explains that this delay was due to the fact that a psychiatric report had been commissioned to explore the possibility of a defence of automatism.  As soon as this defence was ruled out as a possibility the guilty plea was entered.   I consider that a 15 per cent reduction is appropriate in the circumstances.  This reduction recognises the strength of the evidence against you. Furthermore, in my view the availability of a defence of automatism was always speculative.

[35]     Mr Cameron, this brings your end sentence to five years and nine months’

imprisonment.

Minimum period of imprisonment

[36]     Finally, I come to the issue of whether or not to impose a minimum period of imprisonment or “MPI.”   Ordinarily, a defendant who is sentenced to a term of imprisonment of more than two years will be eligible to apply for parole after they have served one third. However, s 86 of the Sentencing Act 2002 gives the Court the power to order a defendant to serve a longer minimum period of imprisonment

where the grant of parole after the normal period would not be adequate to address the sentencing principles of deterrence, denunciation and accountability or to protect the community from the offender.

[37]     This issue has given me reason to pause and reflect.  I accept that you are a young man for whom this violent and frenzied attack was certainly most uncharacteristic.  You appear to have adopted a constructive attitude towards your future and, if this continues, I accept that your prospects beyond prison are positive. However, the seriousness of your attack was such that I consider parole after one third of your end sentence would be insufficient to address the sentencing principles of deterrence, denunciation and accountability.   In my view, it would be seen as inadequate to address these purposes in the eyes of right thinking members of our community.

[38]     I thus impose an MPI of 50 per cent or 34 months which means you cannot be considered for release on parole before the expiration of that time.12

Conclusion

[39]     Mr Cameron, please stand.

[40]     On the charge of wounding with intent to cause grievous bodily harm, I sentence  you  to  five  years  and  nine  months’ imprisonment.    On  the  charge  of intentional damage I sentence you to 12 months’ imprisonment.  Both terms of are to be served concurrently with each other which means they are to be served at the same time as each other.

[41]     I impose an MPI of 50 per cent or 34 months.

[42]     Reparation of $13,179 is sought by the Crown in relation to the costs of replacing the gate.   Plainly you do not have the means to meet these costs and it would be an exercise in futility for me to make the order sought.  I decline to make

that order.

12     Rounded down from 34.5 months.

[43]     Stand down.

Moore J

Solicitors:
Crown Solicitor, Auckland

Mr Wintour, Auckland