R v Lake HC Christchurch CIV 2009-009-6080

[2010] NZHC 1542

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-009-006080

REGINA

v

NIGEL JOHN LAKE

Hearing:         31 August 2010

Counsel:         A R MacGougan for Crown

D N Bunce and R M Keenan for Prisoner

Judgment:      31 August 2010

SENTENCE OF PANCKHURST J

Mr Lake:

[1]      You are for sentence having been found guilty by verdict of a jury upon a charge of wounding with intent to cause grievous bodily harm.  The stabbing which gives rise to this conviction occurred on 19 April 2009.   This offence carries a maximum penalty of 14 years’ imprisonment.

[2]      The facts of the care  are important to the assessment of the appropriate penalty.   The victim, David Paul, was someone who you had known for a long period of time.  He came back to Christchurch, he said to be closer to his children. He renewed his acquaintanceship with you and you were generous to him, both in relation to money and obtaining accommodation for him at the house where you

stayed, for one night at least, and more particularly in loaning your car to him during

R V NIGEL JOHN LAKE HC CHCH CRI-2009-009-006080  31 August 2010

the daytime while you were at work.   He undoubtedly abused your trust and on Friday, 17 April, two days before the offence, he set up the theft of your car, by arranging for somebody to take it from a park while he was ostensibly engaged with his children.  To make matters worse he then lied about what had occurred.

[3]      As a result of this conduct he was told that he was no longer welcome at the address where you lived.  However on Sunday, 19 April, he came to the address in the late afternoon.  Mrs Vlahos, the occupant of the property, sent a text message to you saying that he was there.  You returned, entered the kitchen where David Paul was seated and after a very short time attacked him with a knife.  There were other people present in the house, Mrs Vlahos in the kitchen itself, and her daughter and her boyfriend, Ben Beattie-Tindall, in the near vicinity.

[4]      The  trial  was  characterised  by  difficulty  in  relation  to  the  main  Crown witnesses.   Both the victim, David Paul, and Beattie-Tindall were declared hostile and their evidence was effectively what they had said to the police as opposed to what they said in court.  I am satisfied on the basis of the evidence that was adduced that Paul was seated at the time of the attack.  You were the person who was armed with a kitchen knife.   You stabbed him in the kitchen, he made to escape and managed to run down the hallway.  You pursued him and there was then a struggle on the lawn adjacent to the front door of the house.

[5]      During all of this a number of blows were struck with the knife.  Indeed, the tip of the knife broke off on account of the ferocity of the attack and it was that, and the intervention of Mrs Vlahos, which eventually led to Paul regaining his feet and leaving the property, but only to collapse on account of his injuries a short distance away.

[6]      He had some less serious cuts and lacerations but also stab wounds as well, four in all, although only one of them had really serious consequences.  This was a penetrative wound to his trunk which compromised his breathing and, more particularly, damaged an artery and led to extensive blood loss.  He lost 80 percent of his blood volume.  It was only through surgery by a cardiothoracic surgeon that

his life was saved.   He spent five nights in hospital.   Judging, however, his appearance and behaviour at trial he had recovered totally from the incident.

[7]      As I have already said he was a hostile witness, taking the view that this was a matter between you and him which he would sooner sort out for himself rather than through the intervention of the criminal law.  Consistent with that attitude he has not provided a victim impact statement.

[8]      Your defence at trial was one of self defence.  You gave evidence, supported by Mrs Vlahos, that it was Mr Paul who was armed; that you disarmed him in the kitchen and that any injuries which he sustained were unintentional and inflicted in the course of a struggle.  Rightly, in my view, the jury rejected that version of events. I am sure they did so on the basis that this was not an occasion of self defence; rather that you were the aggressor armed with the knife.   After all, David Paul had no motive to attack you.   It would have been crazy for him to have done so in the presence of three witnesses, all of whom were close to you.  In addition, it is most unlikely that he would arrive at that address, where he was not welcome, and then sit in wait armed with a knife as was suggested.  Hence, as I have said, I am sure the jury did not see this as a case of self defence where you had simply gone too far. Rather, as a case where you were the aggressor from the beginning.

[9]      The pre-sentence report shows that you are a man of 26 years and that you have a number of previous convictions.  These were gathered from 1999 essentially through to 2005.   There are convictions for dishonesty, driving matters and what might be termed disorder type offending.  There are only three offences which are of particular relevance, being an assault on the police in 2000 for which you received periodic  detention,  an  assault  with  a  blunt  instrument  in  2001  where  you  were ordered to come up for sentence if called upon; and common assault in 2005 where you were sentenced to community work.   Although these are offences for violent acts, I accept what Mr Bunce has said that you do not have a particular record for offences of violence.   As the penalties indicate these matters were not viewed as particularly serious.

[10]     The other point about your offending record, Mr Lake, is that  you have offended less in recent years.   From about 2005, essentially, you have not been before the courts apart from, I think, a charge of possession of cannabis.  And that, I am sure, reflects the fact that you have been in regular employment as a truck driver and it seems doing well.  I note also that you have never been sent to prison; that you have received community-based sentences, although also corrective training on an occasion in 2001.

[11]     As counsel have said the sentencing in your case is guided by the decision in the case R v Taueki.[1]   The Crown maintains that you fall within the most serious band of offending identified in that case and that I should adopt a starting-point for your  sentencing  of  nine  years’  imprisonment.    Mr  Bunce,  on  the  other  hand, contends that you fall within the lower of the three bands identified or, at worst, at the bottom end of the middle band.  He contends that the starting-point should be five years’ imprisonment.

[1] R v Taueki [2005] 3 NZLR 372.

[12]     I have looked at the relevant sentencing considerations identified in Taueki and in my view this is plainly a middle band case.  I consider there are two principal factors which identify the true seriousness of your offending.  The first is that you used what can be termed a lethal weapon, albeit it was a kitchen knife.   And the second dominant feature is that you inflicted a very serious injury in relation to the penetrative stab wound to which I have already referred.  You were within a whisker of causing this man’s death in which case, of course, you would have been charged with murder and that demonstrates, Mr Lake, the senselessness of what you did, despite the fact that his behaviour towards you had been so atrocious.

[13]     As  I have  commented  to  counsel  a  few  minutes  ago,  it  is  not  only the existence of sentencing features which is important, but also judging their true significance or intensity.  I see this as a case involving retribution.  That’s why you took into your possession the knife, and I have no doubt that you were enraged at the fact that Mr Paul had the audacity to come back to your home, after he had been told not to do so in light of his appalling behaviour.   There was also a degree of persistence and determination in your actions, evidenced by the fact that this was an

attack which started in one room in the house, continued down the hallway and ended on the front lawn of the property.

[14]     Mr Bunce has submitted that there was a provocative element to Mr Paul’s behaviour, this in the sense that he is a man  with a violent past, a number of convictions for serious offences of violence.  As I have said he had been told he was no longer welcome at your home.  He was effectively banned from returning there. Yet he did so on that Sunday afternoon, with the result to which I have already referred.  Mr Bunce went so far as to say that the atmosphere that afternoon was one of alarm; that the other occupants of the house were fearful on account of his presence, which I think is right; but also on account of the concern that this was likely to engender the very reaction from you which in due course unfolded.  I do not see, and it was not suggested by Mr Bunce, that this behaviour on the part of the victim was provocation in the ordinary sense of that word; but it was provocative behaviour which does have a bearing in the assessment of this case.   It does not mitigate, but it explains why you acted in the way you did and at least shows that this was not purely gratuitous violence on your part.

[15]     In my view the appropriate starting-point for your sentence is six and a half years’ imprisonment.   I consider that there is nothing to warrant an addition, or a reduction, from that point.  Accordingly you are sentenced to six and a half years’ imprisonment.   The Crown, somewhat tentatively, has suggested that a minimum non-parole period may be appropriate but, given your past record and having regard to the particular features of this case, I do not consider that an MPI is warranted. Accordingly your release is left entirely to the discretion of the Parole Board.