R v Duffy HC Christchurch CRI 2009-042-2801

[2010] NZHC 482

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2009-042-002801

REGINA

v

TRINITY ELIJAH DUFFY JAMES ARTHUR BROWN

Hearing:         15 April 2010

Counsel:         K B Bell for Crown

D C Ruth for Prisoners

Judgment:      15 April 2010

SENTENCING REMARKS OF FOGARTY J

Mr Brown

[1]      James Arthur Brown you have pleaded guilty on arraignment on charges of kidnapping, blackmail and injuring with intent.   The victim in this case was a drug user  who  had  a  substantial  debt  of  about  $5,500  owed  to  some  drug  dealers. Arrangements  were  put  in  place  by  these  persons  to  use  you  to  persuade  this customer, by force if necessary, to pay the money owed or to obtain property from him to repay the debt.

[2]      You, Mr Brown, have a history of  violence  and  I am  in  no  doubt  that you were selected by the drug dealers because of that history knowing that you had the

R V DUFFY  AND ANOR HC CHCH CRI 2009-042-002801  15 April 2010

capability and the willingness to do this task.  You and your co-defendant, Mr Duffy, confronted the victim outside a house in the early hours of one morning.   You got out of your car walked up to him and punched him in the head three times.  You then grabbed him and marched him into the house that he was outside and assaulted him again.   In the house, as I understand it, there was the discussion about repaying the debt  and  approximately  an  hour  later  the  victim  was  forced  by  you  back  into  a vehicle and driven away.   While in the car you punched him again to the head no fewer than 15 times causing much bruising and subsequent swelling to his head and face.

[3]      On arrival at an address the victim was taken to a garage where you used a large piece of 4 x 2 timber to assault him, firstly across the back of his left leg and then to his head, the final blow causing the length of wood to break.   Several more assaults followed with the victim being threatened both verbally and physically by you in an attempt to obtain either money or property.   The victim was then placed back  in  the  vehicle.   You  sat  beside  him.   The vehicle  was  driven  off  and  shortly thereafter  the  victim  contacted  his  girlfriend  via  a  mobile  phone  and  arranged  for delivery of his vehicle to you.

[4]      Ms  Bell  has  explained  the  charging  to  me  in  this  way,  that  the  kidnapping commenced  when  you  were  taken  into  the  house  and  the  blackmailing,  being  the threat to use force, began inside the house and the charge of injuring with intent to injure was made in respect of the assault on the victim with the piece of 4 x 2 timber. Ms Bell submits that I should take as the lead charge the blackmail charge.  But both she,  and,  quite  correctly,  your  counsel,  Mr  Ruth,  agree  that  in  assessing  the culpability of this conduct it is appropriate to treat all the facts, that I have just laid out, as covering the criminality of this evening’s events.

[5]      The  Crown  has  sought  a  starting  point  of  four  years  for  this  offending. Mr Ruth  has  argued  for  a  starting  point  of  three  and  a  half  years,  relying  on  a decision:           Tozer  v  R  [2010]  NZCA  7.    Tozer  had  a  context  of  being  a  domestic assault of a couple after the breakup of a relationship.  It was a serious assault and it also  involved  use  of  timber. Here  the  man  who  had  been  abandoned  in  the relationship tracked down his former partner and her new partner, a man who was

known to Mr Tozer.  He tracked them down, burst into the front door of the cottage, picked up a wooden baton and began striking the man about the head.  He continued

to beat him.  The woman escaped and called the police.  The sentencing Judge, Judge Crosbie, took a starting point of three and a half years which was not disturbed on appeal.  This is a recent decision of the Court of Appeal on 11 February of this year.

[6]      I view your set of facts as more serious than Tozer because yours was a cold- blooded infliction of violence.   You were called in as an enforcer to collect a drug debt.   Tozer was obviously reacting to the abandonment of a relationship which he did not want to end and was in that sense affected by the emotions which can boil over, particularly in young men, when relationships end.

[7]      For these reasons I accept the Crown’s starting point of four years.  In terms

of  the  uplift  I  think  everybody  agrees  there  should  be  an  uplift  because  of  your criminal  history  which,  Mr  Brown,  is  deplorable. You  have  been  involved  in assaults for quite a long period of time.  For example, you were sentenced in 2006 on a number of charges, one of which included assault with intent to injure.  You were convicted in 2003 of injuring with intent to injure.  You were convicted away back in 1994 with assault with intent to injure.  I think it is appropriate to uplift that starting point to five years.   Then Mr Ruth has argued that, by way of mitigation, I should take into account your needs assessment and motivation to change.  You are now 43 years old.  Mr Ruth has submitted that the probation officer who wrote this report is very experienced and not likely to be fooled by you if you were simply making up the notion that you wanted to try to make a change in your life.  I do read the report by  the  probation  officer  as  taking  seriously  your  readiness  to  try  to  change  your lifestyle. This  is  set  out  in  some  detail  in  your  past  attendances  on  programs. Admittedly  these  were  programs  which  you  were  required  to  attend. But  the probation officer does say in his summary that the Court, when imposing sentence, may wish to take into account your unqualified acceptance of full responsibility and your stated intentions to change your ways.

[8]      I have to be careful not to impose a greater discount than is possible for the guilty plea as required by R v Hessell [2009] NZCA 450 and that guilty plea includes the acceptance of full responsibility.

[9]      Counsel  have  agreed  that  the  appropriate  level  of  discount  is  20%.   But  I consider  in  this  case  I  am  entitled  separately  to  take  into  account  your  past performance at programs and your stated intention to participate in future programs to try to break this violent history.  I do that to the extent of four months off the five months  and  then  bring  the  sentence  down  to  four  years  eight  months  and  then, following the  Court  of  Appeal,  you  are  entitled  to  a  20%  discount  for  your  guilty plea.

[10]     Accordingly, you are sentenced to three years four months imprisonment.

[Mr Brown stood down and leaves Courtroom]

Mr Duffy

[11]     Mr Duffy you have heard the  sentence  that  I  have  just  passed  on  your

co-offender, Mr Brown.  You were present with Mr Brown in this respect.  You were with Mr Brown when the victim was first confronted outside the house.  You were a party with  Mr  Brown  to  marching the  victim  back  into  the  house.   Mr  Duffy  you then remained during this assault in the house and in the removal of the victim in the car to these other addresses with Mr Brown.  So you were in the car when Mr Brown was punching the victim to the head.   You remained in the vehicle, however, when Mr Brown took him out to a garage where Mr Brown assaulted him and you were not present when the car was handed over.

[12]     Nonetheless, Mr Duffy,  you were  part  and parcel of this plan to obtain the drug  debt  from  the  victim  by  violence  and  by  threats  of  violence. You  have accordingly also been charged with kidnapping and blackmail and again I take the lead   charge   here   as   being   blackmail. Because   you   have   significantly   less responsibility  for  the  violence,  but  also  taking  into  account  you  were  obviously considered necessary or desirable in the plan, I am of the view that the appropriate starting point for the offending in your case is three years.

[13]     You have a very different criminal history from Mr Brown.  But you do have two previous convictions for violence:  one in 2008 of male assaults female, and, one

in 2001 of wounding with intent to cause grievous bodily harm.   That warrants an uplift of six months to three years six months.  You are entitled to a discount of 20%.

[14]     I  sentence  you  to  two  years  ten  months  imprisonment  on  the  blackmail charge.

[15]     In respect of the kidnapping charge the decision of the Crown to indict you

on the kidnapping charge as well as blackmail is plainly justified by the decision of the  Court  of  Appeal  in R  v  Clarke  [1982] 1 NZLR 654. There that Court upheld multiple charges in a case where the accused had driven a car recklessly and with excess alcohol. He was tried by a jury on two separate charges, firstly manslaughter by an unlawful act, namely, reckless driving, and, secondly, driving with excess blood alcohol.

[16]     In a carefully considered decision the Court of Appeal rejected an argument that that was in breach of s 10(2) of the Crimes Act 1961 which provides:

10       Offence under more than one enactment

…

(2)    Where an Act or omission constitutes an offence under 2 or more Acts other than this Act, the offender may be prosecuted and punished under any one of those Acts.

And also that it was not an abuse of process.

[17]     The   sentencing   Judge   following   the   convictions   imposed   concurrent sentences.  The Court of Appeal did not consider s 10(4) which provides:

(4)     No  one  shall  be  liable,  whether  on  conviction  on  indictment  or  on summary conviction, to be punished twice in respect of the same offence.

[18]     The Court of Appeal did expressly leave open the question of whether such a restrictive  reading  of  s  10  was  correct. The  Court  of  Appeal  in  Clarke  were confronted by the fact that there had been a jury trial and two verdicts and I am sure were affected by the very natural reluctance of all Judges to disturb jury verdicts.

[19]   More pertinently, the Court of Appeal decision in Clarke was in 1982, before the  passing  of  the  New  Zealand  Bill  of  Rights  Act  1990. Therefore,  there  is  a significant argument that that decision is now out of date because we do not know how s 10 would be construed were it subjected, as s 6 of the New Zealand Bill of Rights Act now requires, to s 26(2) of the Act which provides:

26       Retroactive penalties and double jeopardy

…

(2)   No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

[20]     I  have  gone  into  this  in  some  detail  because  I  have  been  developing  a practice,  without  full  explanation,  of  taking  into  account  all  the  criminality in  the lead  offence,  then  rather  than  imposing  concurrent  sentences  in  respect  of  the contemporaneous  offence  which  criminality  has  already  been  taken  into  account, convicting  and  discharging  under  s  108  of  the  Sentencing  Act  2002. As  the commentary to s 109 of the Sentencing Act says in Adams on Criminal Law:

SA109.01       Criterion for conviction and discharge

…  is  often  used  in  the  disposition  of  lesser  charges,  where  the  sentences imposed  for  greater  charges  are  considered  sufficient  to  meet  the  overall criminality of the offending.

…

[21]     I regard this as a somewhat unsatisfactory result.  But, it is better, in my view, than  imposing  another  sentence  in  respect  of  the  same  criminality  but  comforting oneself  that  the  person  is  not  being  punished  twice  because  it  is  being  imposed concurrently.     I  have  considerable  doubt  as  to  whether  that  was  the  intention  of Parliament  when  enacting  s  10(4).   That  is  the  reason  why  I  am  not  doing  it  any more.

[22]     Accordingly,  in  respect  of  the  kidnapping  charge  you  are  convicted  and discharged.  That completes your sentencing.

Mr Brown

[23]     I go on to complete the sentencing of Mr Brown, with the consent of Mr Ruth who has advised that this aspect can be completed in Mr Brown’s absence.

[24]     Likewise in respect of the kidnapping and injuring with intent charges in the case of Mr Brown, he is convicted and discharged.

Solicitors:
Raymond Donnelly & Co, Christchurch, for Crown
D C Ruth, Christchurch, for Prisoners