R v Finn

[2007] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA427/06
[2007] NZCA 257

THE QUEEN

v

SYMON BLAIR FINN

Hearing:12 June 2007

Court:Ellen France, Ronald Young and Keane JJ

Counsel:R A B Barnsdale for Appellant

M F Laracy for Crown

Judgment:25 June 2007 at 10.30 am

JUDGMENT OF THE COURT

A        Extension of time to appeal granted.

B        Appeal against sentence dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       The appellant was convicted by a jury on one count of causing the complainant grievous bodily harm with intent to cause such harm (s 188(1) Crimes Act 1961).  He appeals against his sentence of six years imprisonment alleging it is manifestly excessive.  The appeal was two weeks out of time.  The Crown did not oppose leave being granted.

Facts

[2]       The appellant and complainant were neighbours who, a few days before 13 January 2006, had argued.  On the 13^th the appellant went to the complainant’s house to apologise for the previous disagreement.   A fight broke out between the two men which continued through the house and outside.  Near the entrance to the house the complainant fell over hitting his head on a concrete step.  While the complainant was on the ground the appellant punched and kicked him on the head.  The complainant suffered fractures to the bones around his left eye socket and cheekbones.  He also suffered a number of cuts to his head which required stitching.  He was kept in hospital for three nights.  The victim impact report recorded that the complainant suffered nerve damage to his face which persisted to the time of sentencing.  The appellant’s “defence” of self-defence was rejected by the jury. 

Sentencing

[3]       The trial Judge (Judge Phillips) did not sentence the appellant.  With the agreement of both counsel this was undertaken by Judge Wolff.  Counsel agreed to this course after they had been provided with a brief memorandum by the trial Judge which summarised the facts and rejected the possibility that the injuries were caused by the fall rather than the appellant’s assault.  That memorandum was then provided to Judge Wolff.

[4]       At sentencing, Judge Wolff accepted that initially the appellant’s reaction may have been a form of self-defence.  However, the Judge said the appellant’s punching and kicking could not be categorised as self-defence.  He also rejected the claim that the complainant’s fall could be responsible for his injuries.  The Judge identified as relevant the significant victim impact in this case.  The Judge acknowledged the appellant’s lack of previous convictions for violent offending and his addiction problems as especially relevant.  He considered that the offending was in the middle of band two of R v Taueki [2005] 3 NZLR 372 (CA). He concluded that taking into account the mitigating factors a sentence of six years was appropriate.

Submissions

[5]       The appellant submits that the Judge mis-categorised this offending as band two of Taueki when it did not fit easily within the Taueki bands.  He said the Judge had not identified how he reached the conclusion that this was band two offending.  The appellant argued that while the offending involved serious injury it was not at the middle of band two especially given the absence of premeditation.  Secondly, the appellant says the Judge failed to take into account the relevant statutory provisions (s 9 Sentencing Act 2002).  Finally, the appellant says the Judge failed to take into account the appellant’s drug problem and the concern for the appellant’s father’s health. 

Discussion

[6]       We agree with the appellant that the Judge in his sentencing remarks did not specifically identify how he reached the conclusion that this offending was in the middle of band two of Taueki.  As to this he said:

I will not get into arcane considerations of the differences in the band structure of R v Taueki (supra) but it seems to me that on the facts of this case you do, indeed, fall in the second band and I accept the proposition that you fall in the middle of that band.

[7]       Nor did the Judge identify how he arrived at an end sentence of six years imprisonment.  The middle of band two of Taueki would have required a starting point of somewhere between seven and eight years imprisonment.  This then required a reduction of somewhere between one and two years for mitigating factors before the final sentence of six years imprisonment could be arrived at.

[8]       In Taueki this Court emphasised the importance of consistency in sentencing through consistency of approach by Judges.  This consistency of approach is illustrated by the sentencing Judge identifying the factors which might increase or decrease the seriousness of the offending, then fixing the relevant band and where within the band the particular offending falls.  The Judge will then need to identify relevant personal factors which might also influence the final sentence.  Far from being arcane this process makes it clear to the prisoner, the Crown and others how the final sentence is reached and whether a consistent approach to sentencing has been understood and applied.  In this case applying the correct approach may have averted the need for an appeal.

[9]       We do not consider a starting point of seven to eight years was justified by the facts of this case.  Any attack on the head of another human being is serious and when it involves kicking the seriousness is underlined.  In this case the attack caused fractures of an eye socket and cheekbones.  Fortunately there were no skull fractures nor bleeding to the brain, nor brain damage.  The Crown also accepted a starting point of seven and a half years may be too high.

[10]     In Taueki at [31] this Court identified a number of factors which can assist “when assessing the appropriate sentencing band and the starting point within the band”. The potentially relevant factors in this case are:

(i)Extreme violence.  We do not consider that this attack can be categorised as involving extreme violence.  Whilst serious, it was not a prolonged attack nor did it have other elements that took it into the extreme category.

(ii)Premeditation.  There is no evidence of premeditation and we accept that this was a spontaneous attack. 

(iii)Serious injury.  The injuries to the complainant were serious involving broken bones in his face although they were not life threatening.

(iv)Attacking the head.  This assault did involve an attack on the complainant’s head involving kicks and punches.

(v)Vulnerability.  We do not consider the complainant was an especially vulnerable victim.  Any vulnerability arising from injury is covered by (iii) and (iv) above. 

[11]     We therefore conclude that one of the significant factors identified as relevant in Taueki was fully present (an attack on the head) another partially present (seriousness of injuries), and the others not at all.

[12]     One factor was potentially relevant to reduce the seriousness of the facts.  The Judge accepted that the initial fight began because the appellant believed he had been struck by the complainant.  Up until the complainant tripped over and fell on the ground outside the house and was kicked and punched, the exchange of punches could be categorised as either self-defence or a fight.  As to this aspect the Judge said:

[7]. . . I accept the submission that this had gone past any real self defence and it became, by the time the substantial injuries were called, simply a substantial beating. Any self defence was well and truly exhausted by that time and that is clearly the view that the jury took and on reading the evidence it is a decision that, undoubtedly was the only one available on the evidence.

[13]     Excessive self-defence is identified in Taueki as relevant in this way:

[32]     Matters which may be seen as leading to lower starting points are:

. . .

(b)Excessive self-defence: Similarly, where a party has acted out of self-defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.

[14]     We consider there was some modest basis to reduce the seriousness of the attack based on the evidence that the initial altercation arose because the appellant believed he had been deliberately head-butted by the complainant.  As the Judge remarked, any self-defence was exhausted by the time of the appellant’s attack on the complainant outside the house which was categorised by the Judge as a substantial beating. 

[15]     As to the other factors raised by the appellant, the Judge was, on the evidence given, justified in concluding that most if not all of the injuries suffered were caused by the appellant’s kicks and punches and not the complainant’s fall.  The medical evidence at trial clearly established that only minor injuries were likely to have been caused by the fall.  The fact that the appellant had no convictions for violent offending (although convictions for drug and driving offending) is the absence of an aggravating feature rather than the presence of a mitigating one.

[16]     We consider that these facts illustrate that a starting point at the top of band one or the bottom of band two of Taueki was appropriate taking account of the modest reduction by the excessive self-defence.  The proper starting point for the offending was therefore between five and six years. 

[17]     As to mitigating factors, while it is clear the appellant was affected by drugs at the time of his offending, this is not a factor which reduces the seriousness of the offending: Taueki at [33], and s 9(3) Sentencing Act. Although the appellant claimed a commitment to address his addiction, the probation officer believed that, given his past offending and opportunities for rehabilitation, this commitment might have been primarily pre‑sentence motivated.

[18]     The appellant also raises his father’s medical condition.  The appellant’s father suffers from chronic depression.  The appellant, to his credit, has cared for his father who at sentencing was in a residential care centre.  We do not consider Mr Finn’s father’s health problems were a mitigating factor.

[19]     In our view, therefore, there are no mitigating factors which should properly reduce the appropriate starting point.  While we have reached our view of a proper sentence by a different route than the sentencing Judge, we do not consider the sentence of six years imprisonment was manifestly excessive although at the high end of the range available.

[20]     Leave to appeal is granted, however the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington