R v Fane

[2012] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-063-959 [2012] NZHC 1807

THE QUEEN

v

CODY JAMES FANE

Hearing:         24 July 2012

Counsel:         A J Gordon for Crown

H S Edward for Prisoner

Judgment:      24 July 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Rotorua

H S Edward Law, Rotorua

R V FANE HC ROT CRI 2011-063-959 [24 July 2012]

Introduction

[1]      Cody James Fane, you appear today for sentence having pleaded guilty to one charge of causing grievous bodily harm with intent to do so, a charge that carries a maximum penalty of 14 years imprisonment; one charge of unlawful possession of a firearm, a charge that carries a maximum term of imprisonment of four years; and one of possessing cannabis for supply, a charge that carries a maximum penalty of eight years imprisonment.

[2]      The events that gave rise to the pleas occurred on 21 February 2011.  Your pleas of guilty were entered on 20 June 2012 about one [month] before your trial was due to begin.  The charge of causing grievous bodily harm with intent to do so is a qualifying charge for the “three strikes” regime.  The appropriate warning was given when convictions were entered before Peters J on 20 June 2012.

Facts

[3]      The victim, Mr Kiwi, and yourself have known each other for some five years at the time of the incident.  You are Mr Kiwi’s daughter’s partner.  You and your partner had a two year old daughter.  There had been investigations by Child Youth and Family.  Your daughter was removed from your care.  You were clearly concerned  about  the  circumstances  in  which  that  had  occurred  and,  given  that nothing followed from the investigations, I can understand your frustrations at being separated from your child.

[4]      At about 9.45am on 21 February 2011, you and Mr Kiwi became involved in an argument.   It centred around Mr Kiwi wanting to take your daughter to the hospital to visit his other daughter, who had given birth to her second child.  You did not want him to take her to the hospital.

[5]      The argument began in the kitchen and escalated to the point when you challenged Mr Kiwi to go outside with you to sort it out.   The two of you went

outside  onto  the  driveway.   You  began  to  fight  physically.    Each  of  you  were throwing punches at the other.

[6]      Your partner went outside, while her mother tried to comfort the children inside the house.  Your partner got in between the two of you to try to stop you from fighting. As a result, you were unable to land any effective blows.  You continued to trade insults with Mr Kiwi as you circled each other as you went down the driveway out towards the roadside.

[7]      In the end, Mr Kiwi turned and walked away and made his way back down the driveway towards the house.  You followed before entering the house in front of Mr Kiwi.  You and your partner went to your bedroom.  You took possession of a sawn-off pump action shotgun. You fired one shot into the bedroom wall.

[8]      At this stage, Mr Kiwi entered the room and you pointed the shotgun at him. You ignored your partner’s pleas not to do anything, but you fired a second shot at Mr Kiwi.  The shot hit him on the left hand side of his face.  He collapsed straight onto the floor. You then fled the address taking the firearm with you. You were later apprehended. You assisted the Police in location of the firearm.

[9]      While the Police were conducting a scene examination of your bedroom, a “Duff” can with a removable lid was found inside of which five pieces of tinfoil rolled into a cylinder type shape and each containing an amount of cannabis were located. The packaging was in the form of a tinnie, which usually sells for about $20 each.  A glass jar containing $240 in cash, made up of $20 notes, and a tick-list were also found.

Injuries inflicted on victim

[10]     I am going to refer in some detail to what you did to your victim.   You express in your letter to me the hope that he is recovering from his injuries.  Let me tell you what has happened to him; and these are the words of his doctor, who has written a letter recently to the Court:

I have known [Mr Kiwi], as a patient of our clinic, since 2001.  Prior to this injury I can describe him as a happy, cheerful and healthy family man who was confident and was a positive contributor to society in general.   He enjoyed socialising, activities with his kids and family, bush walks, meeting friends and being at work.  He was financially secure, with savings, and was looking forward to buying a new house for his family.  He tells me that the financial cost of this incident has wiped out all his savings and hope of buying this new house.  As his GP I am shocked and saddened by the way this injury has adversely and deeply affected [Mr Kiwi], both physically and mentally.

Following the gun shot injury [he] was admitted to the intensive care unit at Waikato Hospital.   He had five operations to repair the extensive gunshot wound, wire his jaw which was fractured by the gunshot, remove shot and blood clots and create a tracheostomy in his neck to allow him to breath while his injuries healed.  The plastic and reconstructive surgeons covered the injured area using a flap of muscle taken from the upper chest on the same side, and skin grafted the face and neck.  Complications of the surgery saw [Mr Kiwi] develop blood clots in his head for which he needed anticoagulation treatment. The shotgun injury also injured his left ear and he has permanent hearing problems now.

Seventeen months after the medical treatment [Mr Kiwi] still suffers a lot of significant medical problems from his initial injuries.  These problems are likely to be permanent now.  He may require more reconstructive surgery in the future.

Physically he has chronic pain in the head and neck area and requires regular daily strong analgesia to manage this.  His physical capability has marked reduced, where he feels fatigued most of the time.  This is exacerbated by any physical activity.   He gets headaches every day.  Any pressure on the side of his head is uncomfortable and hypersensitive.  He cannot lie on his left side now and prefers to sleep by himself in a chair sitting up to avoid pressure on his face and head.  Simple personal cares like brushing his teeth and combing his hair are difficult and painful.

[11]     Whatever happens to you, that is what your victim will live like for the rest of his life. And, you are the person responsible for doing that to him.

Analysis

[12]     I have had the opportunity of reading submissions that have been made by Ms Gordon, for the Crown, and Mr Edward, for you.  I do not intend to go through them in detail.  Rather, I will simply set out my own assessment of the sentence to be imposed.

[13]     First, I acknowledge the letter that you have provided to me today.  As I said earlier,  I understand  your frustrations about the removal of your daughter.   But

nothing in that could excuse in the slightest what you did that day in getting a shotgun and shooting this man in the head.

[14]     You are lucky that you are not facing a charge of murder.  That could easily have killed him and the charge you face now is considerably less, with a much lesser penalty than would otherwise have been available.

[15]     In my view, it was a cowardly act to go out and get a gun and shoot someone in that situation. You are not entitled to any credit for any degree of provocation that you might think was involved.

[16]     This was a vicious, unprovoked attack.  In sentencing you I am required to denounce the conduct in which you were involved, to deter you and others from behaving in this way, to hold you accountable for what you did and to protect the community from acts of this type.

[17]     There are four significant aggravating factors.[1]  They are: (a) The use of a potentially lethal weapon, the gun;

(b)      The extreme violence which was inherent in shooting the gun; (c)     The shooting of the gun towards the head of the victim; and

(d)      The serious injuries inflicted, to which I have already referred.

[1] See R v Taueki [2005] 3 NZLR 372 (CA) at para [31].

[18]   There are some aggravating personal factors relating to your previous convictions, though I do not give too much weight to those.

[19]     Other than the guilty pleas, there are no mitigating factors.  The guilty pleas were entered not long before your trial was due to take place.  However, there had been some discussion earlier about pleading to a lesser offence, though it seems that

by the time that was actually offered, you declined to take advantage of it until June.

[20]     You are entitled to some credit for your guilty pleas, nevertheless.  As Mr Edward rightly observed, you have saved the family from the trauma of having to re- live this experience in Court.

[21]     I find that your offending comes at the lower end of the highest band of the guideline sentencing decision of the Court of Appeal in R v Taueki.[2]   It involves four seriously aggravating factors. The starting point for such sentencing is, as the Crown suggests, in the region of 9 to 11 years imprisonment.  I choose 11 years as a starting point.

[2] Ibid, at [35] and [41].

[22]     I give an uplift of three months for previous convictions.  I provide a further uplift of nine months for the cannabis offending.  That in itself would have justified a sentence starting point in the region of two years, had it been sentenced alone.[3]

[3] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[23]     That takes the starting point up to 12 years imprisonment.  I deduct two years for the guilty pleas.  That is based on 15% approximately, which I have rounded up to two years.  That addition can take account of any co-operation given to the Police and any degree of remorse that you express.  That means that the end sentence will be one of 10 years imprisonment.

Result

[24]     Mr Fane,

(a)       on the charge of doing grievous bodily harm with intent to do so, you are sentenced to a term of imprisonment of 10 years.

(b)on the charge of unlawful possession of a firearm, you are sentenced to a term of imprisonment of two years.

(c)       on the charge of possessing cannabis for the purpose of supply, you are sentenced to a term of imprisonment of two years.

All of those sentences will be served concurrently, so that the effective term of imprisonment is one of 10 years.

[25]     I am asked by the Crown to impose a minimum period of imprisonment.  An increase  would  recognise  the  fact  that  it  was  insufficient  to  meet  community concerns  for  you  to  be  eligible  for  parole  after  serving  only one-third  of  your sentence.[4]

[4] R v Taueki [2005] 3 NZLR 372 (CA) at para [55].

[26]     I  consider  that  such  a  position  would  be  unacceptable.    In  my  view,  a minimum period of imprisonment of 50% should be imposed.  The minimum term of imprisonment you will serve before becoming eligible for parole is five years.

[27]     Stand down.

Addendum

[28]     Two matters were raised with me at the conclusion of sentencing, both of which were addressed in the absence of the prisoner.

[29]     First, Mr Edward asked if I was prepared to remit outstanding Court fines.  I indicated, because of jurisdictional concerns, that it was preferable for an application to be made to the District Court.  Ms Gordon indicated that the Crown would not oppose.

[30]     Second, the Registrar advised me that, when pleas were entered on 20 June

2012, the attempted murder charge was not determined.  As the Crown has offered no evidence, I discharge Mr Fane on that count, under s 347 of the Crimes Act 1961.

That discharge has the effect of an acquittal on the attempted murder charge.

P R Heath J