R v Horrie

[2010] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA650/2009
[2010] NZCA 51

BETWEENTHE QUEEN

Appellant

ANDWAYNE ALAN HORRIE

Respondent

Hearing:24 February 2010

Court:Baragwanath, Potter and Ronald Young JJ

Counsel:S B Edwards for Appellant

C D Bean for Respondent

Judgment:4 March 2010 at 11am

JUDGMENT OF THE COURT

A            The application for leave to appeal is granted.

B            The appeal against sentence is allowed. 

CThe concurrent sentence of two years and three months’ imprisonment is quashed.

DA cumulative sentence of eighteen months’ imprisonment is imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]        On 25 April 2008 the respondent went to the victim’s home armed with a knife.  He tied the victim’s hands and feet with ties he had brought to the house and then threatened him with a knife.  He ultimately pleaded guilty to aggravated burglary shortly before his trial was due to be heard in August 2009.

[2]        On 29 April 2008 the respondent forced his way into the same victim’s house and attacked the victim, severely beating him with a cricket bat.  The respondent pleaded guilty to aggravated burglary, causing grievous bodily harm with intent and threatening to kill.  On 18 May 2009 he was sentenced to four years’ imprisonment for this offending.

[3]        Some months later on 19 September 2009 the respondent was sentenced for the 25 April 2008 offending.  Judge Tompkins, the sentencing Judge on both occasions, sentenced the respondent to two years and three months’ imprisonment for the 25 April offending concurrent with the earlier-imposed four-year sentence in respect of the 29 April offending.

[4]        The Crown applies for leave to appeal against the respondent’s sentence.  We grant leave.

[5]        The Crown says that a concurrent sentence for the 25 April offending failed to recognise this Court’s direction in R v Xie.[1]  The Crown submits that a cumulative sentence should have been imposed for the 25 April offending and, given that this is a Crown appeal, a further 18 months’ imprisonment should be added to the four-year sentence to reflect the overall criminality of the offending.

[1]R v Xie [2007] 2 NZLR 240.

[6]        No issue is taken in this appeal with the sentences of four years, and two years, three months’ imprisonment for the respective offending on 29 and 25 April.  The appellant’s submission is that four years’ imprisonment does not fairly reflect the overall criminality.

Discussion

[7]        In deciding whether to make the sentence for the 29 April 2008 offending concurrent or cumulative the Judge said:

[6]         The primary issue at today’s sentencing is whether as sought by the Crown a cumulative term should be imposed, or whether as sought by Mr Bean on behalf of Mr Horrie, a concurrent term of imprisonment should be imposed.  Having considered the links between this offending and the subsequent offending, in my view it properly forms one sequence of events, albeit interrupted by some four days given that the motivation and background to the offending was identical, and given that on this occasion Mr Horrie confronted the victim but did not injure him, but on the subsequent occasion in a very closely analogous manner, confronted the victim again and then did injure him.

[7]         In my view, had this matter been dealt with on 18 May 2009, no different end sentence would have resulted.  The Crown notes in its written submissions the comments from the Court of Appeal in R v Xie [2007] NZLR 240 CA that it is a fundamental [tenet] of the totality principle that the final sentence should reflect the totality of the offending. The Court went on to note that one of the key principles for sentencing for multiple offending must be that the total sentence should represent the overall criminality of both the offending and the offender.

[8]        The relevant sections of the Sentencing Act 2002 are ss 84 and 85 which provide as follows:

84          Guidance on use of cumulative and concurrent sentences of imprisonment 

(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)         the time at which they occurred; or

(b)         the overall nature of the offending; or

(c)any other relationship between the offences that the court considers relevant.

85          Court to consider totality of offending 

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)         If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[9]        In this case it could be disputed whether the offending on 25 April and the offending on 29 April were a “connected series of offences” (s 84(2)).  Although both sets of violence occurred at the same house, and involved the same victim and accused, the motives for the two incidents were quite different and they were four days apart.  However for reasons which will be self evident, the question whether subs 84(1) or subs 84(2) applies does not arise for consideration in this case.

[10]       The headnote in Xie sufficiently captures the relevant principle in this case:

Sections 84 and 85 of the Sentencing Act described when concurrent and cumulative sentences were “generally appropriate”, but did not trump the long-standing principle that in cases of multiple offending the total sentence had to reflect the totality and overall criminality of the offending and the offender.  The total sentence did not have to be derived at in any particular way.

[11]       The sentence of four years’ imprisonment was adequate for the offending of 29 April 2008.  But four years’ imprisonment is clearly inadequate when the first incident is also taken into account and the offending considered overall.  In this case a cumulative sentence for the 25 April events was required to reflect the overall criminality because the respondent had already been sentenced on the 29 April events, and so no lead sentence reflecting the overall criminality for both occasions could be imposed.

[12]       This was very serious offending.  On two occasions the respondent invaded the victim’s home, on the first occasion tying him hand and foot and threatening him with a knife.  On the second occasion there was a home invasion combined with a severe beating of the victim with a cricket bat.  Both occasions involved planning.  The victim’s injuries were extensive.

[13]       We agree with the Crown that this offending overall justified a sentence of six years’ imprisonment.  We accept the Crown submission however, that, given that this is a Crown appeal, an increase of no more than 18 months to the four-year sentence is now appropriate.

Respondent’s mental state

[14]       There is one further aspect of this case however which requires comment.  Before this offending the respondent, at 32 years of age, had no criminal convictions.  This violent offending therefore apparently came out of the blue.  Some insight as to the causes of the offending are however to be found in the pre-sentence report. 

[15]       It seems that as an adult the respondent suffered a series of falls from his mountain bike causing significant head injuries.  After these injuries he could not maintain employment, had increased irritability and a short temper.  Unfortunately, however, no effort was made to assess the effect of any such head injuries on him either at the time or before he was sentenced.

[16]       The pre-sentence report assessed the respondent as at low risk of reoffending based, it seems, on the fact that this was his first offending together with his motivation for counselling.  This seems a rather thin basis for that assessment.

[17]       The respondent’s parole eligibility date, based on his original sentence from Judge Tompkins, was early November 2009.  This seemingly early date was because Mr Horrie had been in custody since his offending in April 2008.

[18]       As a remand prisoner the respondent received no assessment of any neurological condition nor any rehabilitation intervention.  Since sentencing in prison he has received no rehabilitative assistance apparently on the basis of the pre‑sentence report assessment of him as being at low risk of reoffending.  We express our serious concern that he has been held as a prisoner for two years without any effort to assess his condition and his need for rehabilitation.

[19]       We have a copy of the Parole Board’s remarks when they saw the respondent in November 2009 when he had first become eligible for parole.  The Board recognised that it would be assisted in its assessment of future risk of offending if the respondent could be tested for any neurological defect from his head injury and ordered neuropsychological tests to assess future risk and treatment options.  We think the Board’s approach is to be commended.  Such an assessment and, if indicated, appropriate treatment, is essential to the respondent’s rehabilitation and society’s protection.

[20]       We were therefore concerned to ensure that nothing that we did in this appeal would obstruct any process of assessment and treatment for Mr Horrie.

[21]       We have concluded, however, that allowing the appeal and increasing the respondent’s sentence by 18 months will have little practical effect on his parole eligibility or any treatment programme proposed for him.  The increased sentence will however increase his end sentence date from July 2012 to early 2014.  We consider this increase in end sentence date may be helpful to the respondent and his rehabilitation.  It will enable Corrections to supervise the respondent for a further extended period and thus provide reassurance to the respondent and the community of the respondent’s rehabilitative progress.  Thus, although we are increasing the sentence end date this is not intended to deter the Parole Board from permitting release on parole whenever it considers appropriate.

[22]       As to parole eligibility, by increasing the respondent’s sentence by 18 months, we increase his parole eligibility date by six months to 9 May 2010.  Given the respondent’s next parole hearing is April 2010 the increase will have little practical effect.  If the Parole Board considers that the respondent is fit for release in April 2010 he could be released as soon as his eligibility date in May 2010.

Result

[23]       For the reasons given therefore the appeal is allowed.  The decision of Judge Tompkins to make the sentence of imprisonment for the offending of the 25 April 2008 concurrent with the sentence of 29 April is quashed.  The sentence of imprisonment is also quashed.

[24]       Instead, for the offending of 25 April 2008 with respect to the charge of aggravated burglary, the appellant is sentenced to imprisonment for 18 months cumulative on the sentence of four years’ imprisonment imposed with respect to the offending of 29 April 2008.

Solicitors:

Crown Law Office, Wellington for Appellant