R v Malcolm

[2023] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-083-969

[2023] NZHC 3024

THE KING

v

RICHARD TE MURA O TE AHI MALCOLM

Sentencing:

30 October 2023

Counsel:

J J Harvey for the Crown

J H Waugh for Mr Malcolm

Judgment:

30 October 2023

SENTENCING NOTES OF GWYN J

Introduction

[1]    Richard Malcolm, on 24 May 2023,1 I gave you a sentence indication. I said that if you pleaded guilty to one charge of causing grievous bodily harm with intent,2 I would set a sentence of four years and eight months’ imprisonment, with the possibility of further discounts after pre-sentence reports were received.

[2]    You accepted the sentence indication and pleaded guilty to causing grievous bodily harm with intent. You now appear before the Court for sentencing.

1      R v Malcolm HC Whanganui CRI-2022-083-969, 24 May 2023 (sentence indication of Gwyn J).

2      Crimes Act 1961, s 188(1). The maximum penalty is 14 years’ imprisonment.

R v MALCOLM [2023] NZHC 3024 [30 October 2023]

Background

The offending

[3]    Because sentencing is a public exercise, it is necessary to explain the facts leading to the charge of causing grievous bodily harm with intent to which you have pleaded guilty.

[4]    On 19 July 2022, at approximately 8.00 am, you had an argument with your partner at an address in Castlecliff, Whanganui. You left the address in your vehicle, a Toyota Estima, and parked on the road outside a neighbouring address. The argument between you and your partner continued on the roadside — you were inside your vehicle, while your partner was outside.

[5]    The victim, Mr M, who is your partner’s stepfather, went out to the roadside to tell you to leave. Mr M was standing on the grass verge outside the address, close to the shared driveway. You reversed your vehicle around into an adjoining street and lined up your vehicle to where Mr M was standing, accelerated towards him, and knocked him to the ground. You did not stop the vehicle and continued to drive over the grass verge. Mr M was dragged underneath the car for between five and 10 metres. He was left motionless on the grass verge.

[6]    You drove away without stopping to check if Mr M had any injuries. You drove to an associate’s address in Aramoho, Whanganui, and parked in front of two other vehicles in an attempt to hide your car from the roadside and evade the Police.

[7]    An ambulance took Mr M to Whanganui Hospital. He was on life support for a number of weeks. He suffered a spinal cord injury resulting in paraplegia, vascular injuries, bilateral rib fractures, bone fractures, and lacerations to his scalp and ears.

[8]    Before I come to consider your sentence, I want to mention the Victim Impact Statements provided by Mr M and his partner and to thank them for making those statements. It is fundamentally important for members of the community who have been affected by, or the victim of, an offence to speak about the impact that has had on their lives.

[9]    The seriousness of the offending and the lasting impact it has had on Mr M and his whānau is reflected in their statements. Mr M is now a paraplegic and will never be able to walk again. He suffered multiple other injuries, including a traumatic brain injury. As well as the physical impact, what you did has had huge emotional and financial consequences for Mr M, his partner and their family. Their lives will never be the same again.

Submissions

For the defendant

[10]   Mr Waugh, your lawyer, asks the Court to discount your sentence, based on the information in your pre-sentence reports. He says these reports record a lifetime of both systemic and personal deprivation.

[11]   Mr Waugh notes that for generations your whānau has been disconnected from te ao Māori, your Māori heritage. You were born into a life of poverty where domestic violence, drug abuse and other anti-social behaviour was normalised. You mirrored your father’s life path and left school at a young age. He says a life of addiction, poverty and crime was perhaps inevitable.

[12]   The offending for which you are being sentenced today involved an impulsive and violent response to a domestic argument. You have recently expressed remorse for this. You offered to attend restorative justice. The reports show you have insight into your offending and the harm it has caused the victim’s whānau and your own whānau.

[13]   Mr Waugh referred me to a similar case3 where the High Court sentenced a defendant who, like you, pleaded guilty to causing grievous bodily harm with intent and common assault. In that case the Court gave discounts of 30 per cent for the defendant’s personal circumstances as described in the cultural report, 10 per cent for restorative justice showing genuine remorse and 25  per  cent  for the  guilty  plea. Mr Waugh says that some of the factors that led to the discounts in that case are similar

3      Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.

to your circumstances: intermittent schooling, post-colonial trauma where poverty and alcohol were drivers for the offending, personal relationships marked by violence and assaults, and alcoholism.

[14]   Mr Waugh submits that an appropriate discount would total  20  per  cent. Five per cent should be applied for genuine remorse and 15 per cent for the factors identified in the cultural report filed under s 27 of the Sentencing Act 2002. With those discounts the end sentence would be three years and six months’ imprisonment.

[15]Mr Waugh also agrees that you should be disqualified from driving.

For the Crown

[16]   Mr Harvey, for the Crown, submits an end sentence of between four years and one month and four years and four-and-a-half months’ imprisonment is appropriate.

[17]   The Crown emphasises several aspects of the Provision of Advice to Courts (PAC) report. These include the high risk of your re-offending and risk of harm to others; the community work sentence you were subject to at the time of the offending; and your previous convictions for failing to comply with Court orders. The Crown also notes that although you told the report writer the offending occurred when you tried to leave the address to avoid harming anyone, you pleaded guilty to causing grievous bodily harm with intent, so these comments to the writer are inconsistent with your plea.

[18]   As to whether you are really remorseful or sorry for what you did, the Crown submits that you actively evaded the Police for over one month after the offending, avoiding being caught and therefore avoiding taking any responsibility. That indicates you are not really remorseful. It was only after the sentencing indication that you said you were sorry. In the Crown’s view, your acceptance of your offending and expression of remorse are not enough to warrant a separate discount for genuine remorse, as well as the guilty plea discount, which implicitly recognises remorse.

[19]   The Crown acknowledges that your cultural report identifies that you have had a challenging background. The Crown accepts that, even though your offending is

serious, that does not automatically mean you should not have any discount on the sentence.4

[20]   The Crown has referred me to a number of other cases where the Court has been prepared to give some discount for the offender’s background and for prospects of rehabilitation. The discounts in those cases ranged from five to 12.5 per cent.5

[21]   The Crown emphasised too that uplifts and discounts for personal circumstances should also be proportional to the harm done and the offender’s culpability.6

[22]   In light of these authorities, the Crown submits a discount of between five and 10 per cent is appropriate to reflect the connection between your background and personal circumstances and the offending for which you are being sentenced today.

[23]   The Crown submits you should be disqualified from driving for the maximum period available, which is three years, to reflect the seriousness of the offending which involved you using your motor vehicle as a weapon. The Crown asks for the order to commence on your statutory release date.7

Relevant law

Purpose of sentencing

[24]   Section 7 of the Sentencing Act, which I have to apply, sets out a number of purposes in sentencing someone for a crime. I think the following purposes are particularly relevant to your situation: holding you accountable for what you have done; denouncing what you have done; deterring you (and others) from similar actions in the future; protecting the community; and assisting with your rehabilitation and reintegration into society.

4      Davidson v R [2020] NZCA 230 at [33]–[34]; and Waikato-Tuhega v R [2021] NZCA 503.

5      Lee v R [2019] NZCA 539; Carroll v R [2019] NZCA 172; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

6      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [9].

7      The Crown refers to Edwards v Police [2012] NZHC 1350 at [26], where the High Court interpreted ss 124 and 125 to allow the order to commence on a future date if so directed by the Court.

Approach to sentencing

[25]As I explained in the sentence indication, sentencing involves two steps.8

[26]   First I have to calculate a starting point, based on the particular offence that you are charged with, and being consistent with sentences in other, similar cases.

[27]   That is the assessment I made in May when I gave the sentence indication, based on the information available at the time. I am bound by that indication.9

[28]   What I am going to do now — the second step — is to decide whether I can make any reductions to that starting point, in light of the additional information we now have in pre-sentence reports.

[29]   The Court should arrive at an end sentence that reflects the offending as a whole and is the least restrictive outcome that is appropriate in the circumstances.

Wounding with intent

[30]Section 188(1) of the Crimes Act 1961 provides:

188     Wounding with intent

(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to anyone, wounds, maims, disfigures, or causes grievous bodily harm to any person

…

[31]   As I discussed in the sentence indication, there is what is called a guideline judgment for grievous bodily harm offending under s 188 of the Crimes Act.10 In that case, the Court of Appeal set out three bands of offending, based on whether specified aggravating and mitigating features were present. The aggravating features are extreme violence, premeditation, serious injury, use of weapons, attacking the head,

8      Moses v R, above n 6, at [46].

9      Criminal Procedure Act 2011, s 116.

10     R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).

facilitation of crime, gang warfare or vigilante action.11 The mitigating factors include provocation and excessive self-defence.12

Analysis

Sentencing test — stage one

[32]   As I indicated in the sentencing indication, the starting point is five years and 10 months’ imprisonment. That is the starting point I take today.

Sentencing test — stage two

Aggravating factors

[33]   I concluded in the sentence indication that the aggravating factors present in this case are extreme violence, serious injury13 and the use of a weapon.14

[34]   There was extreme violence involved in your offending. Use of a car as a weapon is inherently violent. You failed to stop the car when you hit Mr M and he was dragged under the car for five to 10 metres.

[35]   There is no suggestion that you brought the car to the scene for the deliberate purpose of causing grievous bodily harm. While you did line up your vehicle with the victim before accelerating towards him, reversing of your car was not part of this manoeuvre, but rather because it was necessary to get out of a cul-de-sac.

[36]   There is no doubt that this is a case of serious injury. Mr M sustained severe injuries and is permanently disabled.

[37]   The use of a weapon factor also arises here, because the car you drove into the victim was a potentially lethal weapon.

11 At [31].

12 At [32].

13     At [31](c).

14     At [31](d).

Mitigating factors

[38]   Mr Malcolm, before your sentencing today, I have read four reports submitted by your lawyer: the PAC report, the restorative justice report, the cultural report and the family violence bail report.

[39]   First, the PAC report, dated 3 October 2023, prepared by the Department of Corrections (Corrections) notes you have an extensive criminal history. Violence and driving offences are features in your history.

[40]   You have previously completed a Departmental Medium Intensity Rehabilitation Programme and Short Rehabilitation Programme to learn skills and strategies to reduce the likelihood of recidivism. Corrections notes you want to use your time in prison to further your knowledge of te reo Māori and study business. The report writer recommends you attend a family violence prevention programme if you have not already done so.

[41]   Corrections assesses your risk of reoffending and causing harm to others as high.

[42]   You have 10 previous convictions for failing to comply with Court-imposed sanctions. In Corrections’ view, the biggest barrier to you being able to comply with Court orders is your lifestyle, including drug use and anti-social influences. The Corrections report notes that although the summary of facts does not suggest drugs were a direct factor in this offending, you acknowledged during the interview that you regularly use illegal substances. You have stopped using substances during your time in custody and you say you want to remain clean when you are released from custody. Corrections indicated you might benefit from a substance abuse treatment programme to strengthen your resolve and provide you with tools to cope with temptations and challenges.

[43]   Corrections requests the Court cancel a sentence of 200 hours’ community work you were subject to at the time of the offending and take this sanction into account during this sentencing. The Whanganui District Court imposed this sentence on 14 June 2022 for two charges of breach of a court release condition of an unrelated

imprisonment sentence. You completed 0.75 hours of this sentence before being remanded in custody for the current charge.

[44]   The second report I have received is  the restorative justice report, dated     27 September 2023. It notes that a restorative justice conference could not be convened because the victim’s speech is impaired, and he declines to participate. The facilitator held  a  pre-conference  interview  at  Whanganui  Prison  with  you  on  25 September. The interview revealed you are remorseful for your actions, your methamphetamine addiction has contributed to your offending, and you wanted the opportunity to apologise to the victim and your tamariki.

[45]   The third report is the cultural report filed under s 27 of the Sentencing Act, dated 22 September 2023. It records that some of your earliest memories are of domestic violence and family harm. A sense of domestic unease and pressure clouded your childhood. There were often gang members at your parents’ home.

[46]   The report writers say that adverse childhood experiences such as yours are known to profoundly impact on an individual’s positive progression later in life. Your childhood traumas can produce symptomatic post-traumatic stress disorder or other similar outcomes.

[47]   Within your whānau there has been consistent and long-standing drug use; drug use was normalised for you. As a young child, you experienced some intoxication through passive inhalation of drugs. Access to marijuana was not always carefully monitored, and you would sometimes mistakenly consume cookies containing marijuana. You later became addicted to substances, including methamphetamine, and have sought drug counselling, leading to periods of sobriety, in the past. You have been drug-free since your remand in custody.

[48]   Hunting and farming often took priority over going to school. When you did attend, you were harshly disciplined, including what you consider amounted to physical abuse from your teacher. It is clear from the report that you did not fit into the mainstream at school, and you were asked to leave high school when you were 14. When you were 18, your mother left the whānau, and you were left to provide for your

two younger siblings, alongside your father. Your other four siblings went to live with extended whānau members. Your upbringing taught you self-preservation through avoidance (flight or fight response) which cumulatively shaped your behaviour and in the report writers’ opinion led to the actions that have brought you before the Court today.

[49]   Despite all of that, the report records that you are a dedicated father to the six children you have with your former partner (the report records you allowed your Uncle Jason and his whānau to whāngai one of your sons). You provide leadership in the family’s day-to-day life and decision-making.

[50]   You are proud of your whakapapa to Te Arawa. Your father’s whānau are considered authorities in cultural tikanga and  kawa-process  and protocols within   Te Arawa. The Malcolm whānau have built a marae in Rotorua, where you have been to gatherings with your family in the past. Getting together with your cousins, who are well versed in tikanga Māori, is a pleasure for you. However, recently, you have felt dislocated from your cultural identity and you told the report writers that sometimes you have felt awkward and embarrassed when you have been to the marae because you are not familiar with tikanga Māori. You are in a sense stranded — not fitting comfortably into mainstream society, but not feeling comfortable in the Māori world either. You want to learn more about your cultural identity and make more of a connection with your Māoritanga.

[51]   It is clear from the cultural report that you are a very good hunter. The report says you are well-versed in kaitiakitanga. You and your father and siblings are well known for your manaakitanga — hunting and gathering kai for your extended whānau and marae, especially for tangihanga and other significant whānau or iwi occasions.

[52]   The writers of the cultural report note that Corrections can provide cultural therapeutic options, including Māori Focus units, one of which is in the Whanui Unit at Whanganui. Māori Violence Prevention Programmes and Work to Release Units are other options. The report writers further recommend removing you from units of the prison that house high recidivist offenders. Structured protocols, including tikanga and te reo classes, within prison can be used to enrich your connection to te ao Māori

and positive self-identity. In my view, these support mechanisms during your sentence would benefit your rehabilitation.

[53]   You have some strong support people in your life. Your father has been a source of support throughout your life. You have a good relationship with your uncle, a pastor, who has promised to support your rehabilitation. Your uncle’s church can help to provide wrap-around support. You also have a good relationship with your grandmother. The report writers recommend counselling for loss and grief and parental support interventions.

[54]   Finally, the family violence bail report prepared by the Police records that you are the subject of numerous domestic disputes. You have been both the victim of and the perpetrator of common assault. Similarly, your criminal and traffic history records that you have been convicted of, and imprisoned for, 21 driving-related offences by my count. Your first driving conviction was entered in 2006 and your most recent in 2022.

[55]   Having considered these reports, I conclude that the circumstances of your childhood and young adulthood, have been a contributing factor in your offending.15 In my view, the three significant factors doing so were your drug addiction, a cycle of family violence and offending, and being disconnected from your identity as tangata whenua and from te ao Māori generally. The fact that family violence and offending has become normalised in your life has almost certainly led to your poor impulse control and use of violence when you feel angry. You learned to react to situations in this way in your upbringing, having grown up around family harm and domestic violence. This is not to excuse your offending, but understanding this context goes some way to explaining how you came to offend in the way that you did.

[56]   In considering your background factors, I have also considered whether your offending is so serious that it outweighs that causal connection.16

15     Berkland v R, above n 5, at [107]–[112] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.

16     At [111] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.

[57]   Having weighed up all those things, I consider that a discount of 10 per cent is appropriate.

[58]   Mr Waugh, your counsel, submits a separate discount of five per cent is appropriate to reflect your genuine remorse for the offending. As I noted earlier, the Crown says that the 20 per cent guilty plea implicitly includes an acknowledgement of remorse. However, an additional discount can be appropriate when the Court ascertains genuine remorse on the part of the defendant following a “proper and robust evaluation of all the circumstances”.17

[59]   I accept that you have shown insight into your offending in your discussions with the pre-sentence report writers and that your whānau, particularly your tamariki, motivate you to change your pattern of criminal behaviour. I accept that you have reflected on the impact your offending has had on Mr M, his whānau, and your own whānau. At the hearing before me Mr Waugh handed up and read to the Court a letter you had written, apologising to Mr M, his partner and whānau, your partner and children, for the hurt and pain you have caused. In the letter you acknowledge your actions and say you will never stop trying to remedy things between you. I am very conscious that to a large extent your whānau is also Mr M’s whānau. In the longer term, what happens to you affects all of them.

[60]   As the reports note, you offered to take part in a restorative justice meeting, but Mr M has made it clear he does not wish to have anything else to do with you. That is an entirely understandable reaction. But I do give you some credit for being prepared to meet. On the other hand, I also have to take into account that fact that you evaded the Police for approximately one month following your offending.

[61]   On balance I think a further small discount is appropriate to reflect that you are truly remorseful and to recognise your prospects for turning your life around. The things in the reports that make me think that is possible are, first, your attachment to and sense of responsibility for your tamariki; second, what the report refers to as a strong work ethic in your whānau; third, the high level of knowledge and skill you bring to hunting and kai gathering for the benefit of others; and, fourth, related to that,

17     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

your desire to become familiar with te ao Māori. In addition, the support offered by your father, uncle and grandmother are critical.

[62]   I do not underestimate how hard it will be for you to make a different path in life, but you say you want to participate in whatever counselling and therapeutic interventions are available in prison, as week as immersing yourself in te ao Māori, tikanga and te reo. I would strongly urge you to take advantage of whatever support is offered to you in prison. Having regard to all of those things I will apply a further discount of eight (8) per cent to recognise your remorse and your prospects of rehabilitation.

Sentence calculation

[63]   As in the sentence indication, the starting point is five years and 10 months’ imprisonment. I apply a discount of 20 per cent for your guilty plea to one count of causing grievous bodily harm with intent.

[64]   I apply a further discount of 10 per cent for the background factors of your life which have contributed to the offending you are sentenced for today.

[65]   I also apply a further eight per cent discount for remorse and rehabilitative prospects.

[66]   Taking account of all discounts, your sentence is three years and seven months’ imprisonment, rounded to the nearest whole month.

Cancellation of sentence

[67]   Your sentence of 200 hours’ community work for a previous offence is cancelled.18

18     Sentencing Act 2002, s 68.

Disqualification from driving

[68]   I indicated in the sentence indication that I would be inclined to make an order disqualifying you from driving if you pleaded guilty.

[69]   I am satisfied that a disqualification order is necessary. You drove aggressively and used your vehicle as a weapon. As the High Court has previously recognised, a “driver’s licence is a privilege, it is not a right.”19 You have a background of driving offences. I will disqualify you from driving for a period of two years starting from the date you are released from custody.20

Withdrawal of attempted murder charge

[70]I record that the Crown withdrew charge 1, a charge of attempted murder.

Result

[71]Mr Malcolm please stand.

[72]   You are sentenced to three years and seven months’ imprisonment, with an order disqualifying you from driving for two years to commence upon your release from custody.

Gwyn J

Solicitors:

Crown Solicitor, Whanganui Crowley Waugh, Whanganui

19     R v Savigny [2021] NZHC 164 at [54].

20     Sentencing Act, ss 124 and 125.