R v Maikuku

[2008] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND

CA473/2008
[2008] NZCA 552

THE QUEEN

v

JASON TEMUMURE MAIKUKU

Hearing:27 November 2008

Court:Ellen France, Potter and MacKenzie JJ

Counsel:M D Downs for Crown

T Sutcliffe for Respondent

Judgment:11 December 2008 at 11.15 am 

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is allowed.

C        The sentence of home detention is quashed and a sentence of three and a half years imprisonment is substituted.

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1]       This is an application for leave to appeal by the Solicitor-General against a sentence of one year’s home detention on a charge of wounding with intent to cause grievous bodily harm, imposed in the District Court by Judge Lee: DC HAM CRI 2006‑070‑005755 14 July 2008.

Background

[2]       On 5 September 2006 the respondent was staying at the Bay View Holiday Park at Maketu.  Having finished work he was drinking with three associates with whom he shared a cabin.  When the beer ran out he borrowed a car and drove to get some more.  On his return he accidentally backed the car into a neighbouring cabin.  The complainant and two associates lived in that cabin and were in bed.  The complainant came out of the cabin holding a knife.  One of the complainant’s associates also came out armed with a fork.  The respondent says he apologised.  A confrontation ensued, during which the complainant took a swing at the respondent and then showed him the knife.  The respondent fled back to his cabin.

[3]       The respondent and his associates then went back to the complainant’s cabin, and although the respondent was apparently unarmed, his associates were armed with implements, including a shovel.  The respondent says that they did not go together and that two of his associates arrived independently at the scene having been at the toilet.  The complainant and his associates came out and the complainant was armed with a broom handle.  A verbal confrontation ensued which developed into violence.  The complainant struck the respondent with the broom handle, possibly in the face.  It is unclear how, but the respondent wound up with the shovel.  The complainant struck again, and the respondent warded off the blow with the shovel.  Both the broom handle and the shovel were broken.  The respondent feared further blows and struck the complainant twice with the shovel pan.  The complainant straightened up after the first blow but collapsed suddenly after the second blow.

[4]       There was a conflict of evidence over whether there were more blows.  The respondent says that he hit the complainant only twice and swung a third time but did not know whether he connected.  Mr Hunia (an associate of the complainant) says that the respondent only hit the complainant twice and everything stopped when he fell.  Mr Tipene (an associate of the complainant) says that he only saw the two blows and could not tell whether there were more after the complainant hit the ground.  Mr Enderby (an associate of the respondent) says the respondent hit the complainant on the head and then on the body when he was on the ground.  The Judge gave the respondent the benefit of the doubt and sentenced on the basis that there were no further blows after the complainant collapsed.

[5]       The complainant was left with a collapsed lung, broken ribs, a fractured skull, multiple bone fragments depressed into the brain, and a large haemorrhage in the brain.  He had a 20 centimetre gaping wound in his head.  His injuries were life threatening, and an artificial airway had to be opened to enable him to breathe.  He spent eight days in intensive care.  He says he has suffered progressive memory loss and seizures.

Sentencing remarks

[6]       Judge Lee considered that this offending fell into band 2 of R v Taueki [2005] 3 NZLR 372 (CA) because of the aggravating features of the use of a weapon, the attack to the head, and the gravity of the injuries caused. Her Honour adopted a starting point of six and a half years. She found that there were special mitigating features in the offending, in that the complainant was the one who initially “rais[ed] the temperature”, and it was also he who began the second bout of violence: at [17]. Further, none of this was premeditated on the respondent’s part. The Judge also noted that the respondent and his associates were teenagers, whereas the complainant and his associates were grown men. The starting point was therefore reduced to three and a half years. The respondent’s personal mitigating features of youth, remorse, previous good character, attempts by his family to make amends, and his self-referral for a drug and alcohol assessment further reduced this to two and a half years. The offending fell, it was accepted, under the transitional provisions in s 57 of the Sentencing Amendment Act 2007, so that home detention was available. The Judge said:

[20]     I think this is a case where a degree of mercy is justified.  You are 20 years of age, as I said at the time you were 18.  …

[21]     It seems to me that the public interest would be better served by keeping you out of prison.  I think in this case, the principles of rehabilitation and reintegration into the community are also very important.  Your record to date has been good.  You have a supportive family.  You have contributed to the welfare of others in the past and it has been identified that you have leadership qualities.  In my view, you are far more likely to make the contribution you are clearly capable of making by staying out of jail.  Sending you to prison would inevitably expose you to the bad influence of older and hardened offenders, with predictable results.

[22] Under s 80A of the Sentencing Act, home detention is available only if the Court would have sentenced the offender to a short term of imprisonment, that is, no more than two years, but this offence occurred before s 80A came into force so that limitation does not apply. The Crown accepts that the transitional requirements that apply are s 57 of the Amendment Act 2007 and that these have been met. So, Mr Maikuku you are sentenced to home detention for 12 months. The sentence will be served at 16A Whitmore Street, Kihikihi.

[7]       The final sentence was one year’s home detention.  No special conditions were imposed because the Judge found that there was no serious risk of reoffending.

The appellant’s case

[8]       The Solicitor-General takes no issue with the starting point of six and a half years, though observes that it could have been higher.  The appellant’s complaint is that the reduction of three years for the provocation and self-defence aspects was excessive.  The respondent returned to the complainant’s cabin after the initial incident with a group of armed friends, thus engineering a confrontation.  The assault continued once the complainant was unarmed, and the jury was satisfied that the respondent intended to inflict grievous bodily harm at that stage.  The seriousness of the violence is also reflected in the number and gravity of the injuries inflicted.  Although there were features that reduced the respondent’s culpability, the circumstances did not amount to self-defence.

[9]       The appellant further says that although provocation does reduce culpability, it should not invert culpability so as to overwhelm the sentencing process.  The appellant submits that reductions for provocative conduct on the complainant’s part, and excessive self defence, should be modest.  The Court of Appeal has previously applied more moderate reductions to reflect provocation in R v Moengaroa [2007] NZCA 425, where a reduction of 12 months from a starting point of six years was considered appropriate. The appellant submits:

11.Notwithstanding the obvious benefits of imposing a non-custodial sentence on an offender with a degree of positive rehabilitative prospects, even a significant discount due to mitigating features should not have produced an end sentence sufficiently low so as to raise the possibility of home detention.

The respondent’s case

[10]     The respondent maintains that the appellant’s description of the respondent’s actions in returning to the complainant’s cabin is not justified on the evidence.  The Judge overstated that aspect by saying that the respondent and his armed associates proceeded to the complainant’s cabin.  Actually only one associate accompanied the respondent, the others, having been at the toilet, arrived on the scene independently.

[11]     The respondent also says that it could not be argued that the complainant was defenceless or that the attack was sustained.  During both incidents the complainant attacked an unarmed man.  The complainant initiated violence and knocked the respondent to the ground.  The trial Judge sentenced on the basis that violence ceased when the respondent fell to the ground.  Counsel submits that the starting point of six and a half years was too high, and the starting point should have been five years.  He submits that the provocation was extreme, serious and passionate.  The conditions in R v Moengaroa were very different and that case can be distinguished.  The respondent submits that the discount of 12 months for personal mitigating factors was unremarkable.  He submits that it follows that the sentence should remain unaltered.

Discussion

[12]     It is common ground that, leaving aside the role of the complainant in the events that occurred, this offending falls squarely within band 2 of Taueki.  The aggravating features identified by the Judge as placing it within band 2 were the use of a weapon, the attack to the head, and the gravity of the injuries caused.  That assessment was clearly right.  The appellant does not take issue with the starting point of six and a half years, adopted by the Judge, on that basis.  The essential issue, on this aspect of the appeal, is whether the deduction of three years from that starting point to reflect the complainant’s role in the incident was appropriate.

[13]     In Taueki, the Court noted the relevance of conduct similar to that of the complainant in this case in these terms:

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

(a) Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

(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]     In identifying a starting point, all of the features of the offending, both aggravating and mitigating, are to be taken into account.  As this Court said in Taueki:

[8]       …  The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial” (R v Mako [2000] 2 NZLR 170 at para [34]). When we use the term “starting point” in this judgment, that is what we mean.

[15]     That circumstances such as those involved here are to be treated in that way was reaffirmed by this Court in Moengaroa where the Court said:

[17]     Having found that the offending was provoked, the Judge ought to have treated the provocation as a factor reducing his sentencing starting point, rather than a mitigating factor: Taueki at [32].  However, our concern on this appeal is with the end sentence, not the Judge’s means of arriving at it.

[16]     The range of starting points for band 2 as established by Taueki is in the range of five to ten years.  Sentences in band 1 have a range of starting points of three to six years.  The starting point adopted by the Judge here, using the term “starting point” in the same sense as it is used in Taueki, namely a starting point taking into account both aggravating and mitigating features of the offending, but not of the offender, was three and a half years.  Approached in that way, that starting point must be considered too low.  The mitigating features of the offending, whether taken as viewed by the Judge or on the slightly more favourable basis contended for by counsel for the respondent, cannot justify a starting point for this offending (which has three identified aggravating features which place it squarely within band 2) as falling towards the lower end of band 1.  We are accordingly of the view that the starting point, having regard to all the features of the offending, both aggravating and mitigating, was manifestly inadequate.  We consider that a starting point in the region of five years should have been adopted.

[17]     For circumstances relating to the offender, the Judge adopted a reduction of 12 months to reflect personal mitigating factors namely the respondent’s age (18 at the time of the offending, 20 at the time of sentencing), remorse, previous good character, attempts by the respondent’s family to make amends, and self referral for alcohol and drug assessment.  The appellant does not take issue with that reduction for personal circumstances.  The respondent also accepts that that was an appropriate reduction.

[18]     The next issue is whether the case is one where home detention was available, on the proper application of sentencing principles.  The Judge dealt with this aspect in [20] – [22] of her sentencing notes, set out above.  We appreciate the desire of the sentencing Judge to avoid a prison sentence for this young man.  We also acknowledge the degree of sentencing discretion properly available.  Giving full weight to all of those matters, we have reached the conclusion that home detention was not an available option, on the application of proper sentencing principles.  The end sentence, calculated as we have indicated, should have been of the order of four years. That is out of range for home detention, and reflects the fact that this offending was simply too serious.

[19]     This Court in Taueki said, in relation to the former regime for home detention:

[59]      We envisage that cases where the sentence imposed for a GBH offence is two years’ imprisonment or less will be rare. So it is unlikely that a Court will be called upon to determine whether leave should be given to apply for home detention except in unusual cases. We reiterate the point that GBH offences involve very serious offending. In all but exceptional cases we would expect the offender to serve a prison term, and that that term would be served in prison.

Those comments were made at a time when the ability to grant leave to apply for home detention was limited to cases where a sentence of two years or less was imposed.  Since the coming into force of ss 15A and 80A of the Sentencing Act, home detention is now an available sentence in its own right – but only if the court would otherwise sentence the offender to a term of imprisonment of two years or less.  As the sentencing Judge here correctly identified, that limitation does not apply under the transitional provisions applicable here.  However, a general legislative intention that home detention will generally be available only in respect of offending which would otherwise be met by a short term of imprisonment must be taken into account under the transitional provisions, though not providing an absolute jurisdictional barrier.  As this Court noted in R v Hill [2008] 2 NZLR 381, and reaffirmed in R v Salanoa [2008] NZCA 185 at [23], the home detention provisions sit within the general context of the Sentencing Act and therefore must be imposed in a way which is consistent with the purposes and principles of sentencing as set out in the Act. In our view, the seriousness of the offending here, and the length of the sentence applicable to it, is such that a sentence of home detention was not within the available sentencing range.

[20]     For these reasons, the sentence of home detention must be set aside and a sentence of imprisonment substituted. 

[21]     That sentence must on this appeal be fixed at the lowest point in the available range.  We consider that, on that basis, the starting point should be five years.  That is the lowest starting point within band 2.  For the reasons we have given we do not consider that a starting point below the bottom of band 2 can properly be adopted.  As to the adjustment for personal circumstances, the Judge’s reduction of 12 months reflecting a discount of nearly 30 per cent was as accepted by the parties, an appropriate one.  That reduction was from a sentence of three and a half years.  We should adjust that reduction to reflect our higher starting point of five years.  We would increase the deduction for personal circumstances to 18 months.  That maintains the relativity of the discount for personal circumstances adopted by the judge given our higher starting point.  That leaves an end sentence of three and a half years.  That is at the bottom of the available range, as befits a sentence imposed on a Solicitor-General’s appeal.

Result

[22]     The appeal is accordingly allowed.  The sentence of home detention is quashed and a sentence of three and a half years imprisonment is substituted.

Solicitors:

Crown Law Office, Wellington