R v Goldstone

[2007] NZCA 321

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/07 [2007] NZCA 321

THE QUEEN

v

JOHN GOLDSTONE

Hearing:         18 July 2007

Court:            Arnold, Potter and Venning JJ Counsel:          N Cooke for Appellant

M T Davies for Crown

Judgment:      27 July 2007         at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

R V GOLDSTONE CA CA151/07  27 July 2007

Introduction

[1]      The appellant entered a plea of guilty to one charge of injuring with intent to injure contrary to s 189(2) of the Crimes Act 1961.  As he did not accept the police summary of facts upon which he was to be sentenced, a disputed facts hearing was held.

[2]      In sentencing the appellant, Judge Blackie took a starting point between two and two and a half years imprisonment, which he reduced to one year eight months to reflect the appellant’s guilty plea and other mitigating factors.

[3]      The appellant now appeals against that sentence.

Factual background

[4]      The factual background can be briefly stated.  The appellant was employed as a construction worker.  He was working on the construction of a motorway adjacent to a property which was rented to the victim, a 61 year old man.

[5]      The victim was required to vacate his property to permit the construction work to proceed.  He went to the property on the day of the incident to remove the last of his effects.  A friend was helping him.  While the victim and his friend were at the property, the appellant approached the victim and, after a verbal exchange, began to push, punch and kick him.  The appellant then left the scene and the victim and his friend continued to gather the victim’s belongings.  The victim also did some tidying with a broom.  Shortly after the appellant returned, held the victim in a headlock, punched him, threw him to the ground and kicked him with his steel toed boots.

[6]      The victim’s cries attracted the attention of some of the appellant’s work mates.   They pulled the appellant off the victim.   Despite being restrained, the appellant continued to lash out.

[7]      The appellant’s explanation was that he had been told by his employer to watch out for unauthorised personnel on the site.   He apparently assumed that the

victim  and  his  friend  were  unauthorised  personnel  who  were  removing  his employer’s property.  He also said that he thought the broom was a weapon of some kind.

District Court

[8]      We deal first with the disputed facts hearing and then with the sentencing.

Disputed facts hearing

[9]      The disputed facts hearing focused on five questions: (a)       Who started the fight?

(b)       How many blows were struck?

(c)       Was there any kicking while the victim was on the ground? (d)        What was the duration of the incident?

(e)       What was the nature of the victim’s injuries?

[10]     Five witnesses gave evidence - the victim, his friend, a co-worker of the appellant, the site foreman and the appellant himself.  Having heard these witnesses, the Judge concluded:

(a)      The appellant had started the altercation;

(b)The appellant had given the victim a “thorough going over”, although it was not possible to state how many blows had been landed;

(c)      The appellant kicked the victim several times while he was on the ground;

(d)      The assault lasted for at least seven minutes; (e)         The victim suffered significant injuries.

[11]     In  his  judgment  recording  his  findings  after  the  disputed  facts  hearing

Judge Blackie described the appellant’s evidence as follows:

[14]      You gave evidence this afternoon on your own account.  I have to say that I found your evidence fanciful.  You sat there making it up as you went along.  Not even your own Counsel had been properly briefed on the evidence that you intended to give the Court.  It was simply a ploy in my view to try and minimise what had occurred and put the blame on [the victim] rather than on yourself.  I reject entirely the evidence that you gave this afternoon.

[15]      I have to say that one of the benefits of hearing evidence firsthand is that one can assess the attitude of the witness.  It did not take very long for you to become somewhat aggressive with regards to answering questions in the witness box.  That confirms in my view the sort of attitude that you in all likelihood had, and in fact I find that you had, on the day for which we are concerned.

Sentencing

[12]     In sentencing the appellant the Judge applied the decision of this Court in

R v Taueki [2005] 3 NZLR 372. Judge Blackie said in his sentencing notes:

[11]     I return to what the Crown submitted by way of an appropriate starting point.   Initially, they considered that having regard to all the circumstances the starting point should be between 18 months and two years and had I simply dealt with this on the papers, as one normally does, I would consider that to be about right.

[12]      But you, for reasons best known to yourself, disputed the context of what occurred, and the seriousness of what occurred, which meant that this afternoon I listened to four witnesses describing what they saw, and in my view what I now understand to be the position or accept to be the position is more serious than I would simply have gleaned from reading the papers.

[13]      In other words, this hearing this afternoon has not assisted you at all, and in fact what it has done is aggravated the situation as far as the Court is concerned, because I have had described to me firsthand what went on and it is much more graphic when you hear it firsthand from the witnesses who observed what went on than it is simply reading a Police Report, which I have to say you had initially signed as being correct.

[14]      So I accept now what [the Crown] says, that that initial starting point requires the bar to be raised.  … [T]he Crown in their submissions initially put the range between 18 months and two years.   I now put that between two years and two and a half years.  That is the starting point.  Now, had you maintained a Not Guilty plea right through these proceedings then that in all likelihood would have been a sentence up to two and a half years.

[15]     However, I have to give you credit as the law requires for pleading Guilty, but the degree of credit I can give you having disputed the facts this afternoon does have the effect of reducing that credit by some degree.

[16]      However,  I do  not  want  to  be  seen  to  be  penalising  you  twice because I have adopted a higher starting point by having heard the disputed facts this afternoon.

[14]     The Judge then considered a lengthy psychological report which had been prepared concerning the appellant.   He noted that the appellant had a reasonably good employment record but also took account of the fact that he had previous convictions for assault.

[15]     In the result, the Judge adopted a starting point of between two and two and a half years imprisonment.  Taking account of mitigating factors such as the plea of guilty  and  the  appellant’s  mental  health,  the  Judge  reduced  the  sentence  to one year eight months imprisonment.  He denied leave to apply for home detention.

Basis of appeal

[16]     Mr Cooke for the appellant argued that the Judge had erred in two respects:

(a)By increasing the starting point adopted following the disputed facts hearing;

(b)By failing to identify specifically the discounts relating to particular mitigating features.

[17]     We deal with each ground of appeal in turn.

Increase in starting point

[18]     Mr Cooke noted the Judge’s observations at [11] and [12] of his sentencing notes (see [12] above) and argued that the Judge was wrong to adopt a higher starting point following the disputed facts hearing than he would have had he relied simply on the papers.   He argued that the Judge could have increased the starting point in that way only if some new fact, not contained in the summary of facts, emerged in the disputed facts hearing.  Mr Cooke argued that, in effect, the Judge had penalised the appellant for exercising his “statutory right to challenge the facts of the offending on which [he was] to be sentenced.”

[19]     We do not accept this submission.  As the Judge explained, having seen and heard the witnesses he had a better appreciation of the dynamics of the incident and the roles of those involved.  In this connection we note the Judge’s comments about the appellant and the nature of his evidence.  The greater understanding which the Judge had of the nature and effect of the offending as a result of hearing oral evidence is to be expected.   While we agree that a Judge should not “punish” a person simply because he or she chooses to dispute something contained in a summary of facts, we do not consider that there was anything illegitimate in the present case in the Judge reassessing his initial view about the appropriate starting point at the conclusion of the disputed facts hearing to reflect his greater understanding of the offending.

[20]     Further, the disputed facts hearing in this case did much to undermine or eliminate the benefits flowing from the appellant’s guilty plea.   The Crown called four witnesses at the hearing, including the victim and his friend.  They in particular were required to give detailed evidence of the assault and were extensively cross- examined.  In addition, the appellant’s evidence, which the Judge disbelieved, sought to minimise both the incident and his responsibility for it.  So two of the important

benefits from a guilty plea – sparing the victim from giving evidence and acceptance of responsibility by an accused – were absent in this case.  That had to be reflected in the sentencing process in some way.  Consistently with Taueki at [8] and [43] – [44], the Judge identified the starting point that he would have adopted following a defended hearing (up to two and a half years) (at [14]) and fixed that as the outer limit of the available range (two to two and a half years). He then allowed the appellant some credit for his guilty plea. That was an entirely orthodox approach.

[21]     Accordingly, this ground of appeal fails.

Quantification of discount

[22]     Mr Cooke argued that, while sentencing is not a mathematical process, the Judge’s approach was so imprecise that it provided little insight into the way that he had reached his final sentence.   He said that because the Judge had identified a starting point between two and two and a half years, the discount allowed could have been anything between four and ten months (ie, between a sixth and a third).  This was  unsatisfactory he  said,  both  for  the  person  being  sentenced  and  for  others looking at the decision, including an appellate court.

[23]     We do not agree that the Judge’s approach was flawed.  The Judge did what was required, in the sense that he considered first the offending and fixed a starting point (albeit expressed as a range) on the basis of that.   He then considered the personal circumstances of the appellant to see whether there should be any adjustment.   While the identification of a precise starting point (as opposed to a range) is helpful, it cannot be said that the identification of a range means that the end sentence is necessarily inappropriate.  In R v Monkman CA445/02 3 March 2003 this Court said (at [9]):

… it may be that the Judge took a somewhat high assessment of a starting point of 4 to 5 years.  But certainly a starting point of anything between 2 and 4 years was necessary.   Whilst an exact starting point may never be precisely fixed, what is crucial is the “end point” reached in the sentencing exercise.  That is, the overall sentence must be appropriate but an offender and any reviewing court is assisted in knowing the process by which a sentencing Judge reached that end point.

[24]     The position is similar in relation to quantification of the discount allowed for individual mitigating circumstances.   Precise, component specific quantification is not required.  As this Court said in R v M CA517/04 5 May 2005:

[15]     It is not essential for sentencing judges to make specific deductions for  guilty pleas  as  opposed  to  other  mitigating  factors.    It  is  obviously desirable that defendants should be able to see that specific credit has been given for a plea of guilty, but it can be somewhat artificial to separate that deduction from a deduction for other factors.  There can be no doubt in this case that the appellant did receive a substantial discount on account of the early guilty pleas.

[25]     Accordingly, a global deduction on account of personal circumstances of the type given here was appropriate.

[26]     In the result, we consider that the sentencing Judge sufficiently explained the process by which he reached the end result, both in relation to the starting point and the discount.   Further, we are satisfied that the end result (one year eight months imprisonment) was within the range properly available to the Judge.

Decision

[27]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington