R v Morrison

[2007] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/06
[2007] NZCA 78

THE QUEEN

v

DEAN MORRISON

Hearing:6 March 2007

Court:Chambers, Gendall and Heath JJ

Counsel:M E Goodwin for Appellant

P K Feltham for Crown

Judgment:19 March 2007     at 2 pm

JUDGMENT OF THE COURT

A        The time for appealing is extended. 

B        The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Morrison was committed for trial on one count of wounding with intent to cause grievous bodily harm and, in the alternative, one count of wounding with intent to injure.  The charges arose out of an incident that occurred on the morning of 22 June 2004 during which Mr Morrison attacked the complainant, Mr Hohepa.

[2]       Mr Morrison was tried before Judge Weir and a jury in the District Court at Rotorua.  The jury found him not guilty on the charge of wounding with intent to cause grievous bodily harm but guilty on the alternative charge.

[3]       Mr Morrison was sentenced by Judge Weir on 15 April 2005.  Sentencing took place before the guideline judgment of this Court in R v Taueki [2005] 3 NZLR 372 (CA) was delivered on 30 June 2005. Accordingly Judge Weir applied the pre-existing authorities.

[4]       Judge Weir imposed a sentence of four years imprisonment.  Mr Morrison appeals against that sentence.

[5]       The sentence appeal was filed late.  Without opposition from the Crown, we make an order extending time for bringing the appeal.

Background facts

[6]       Mr Hohepa was known to Mr Morrison.  It appears that, for some time, there had been a long-running dispute between Mr Morrison and Mr Hohepa’s son.

[7]       On 22 June 2004, at about 9am, Mr Morrison was driving into Rotorua.  Mr Hohepa was driving in the opposite direction.  Mr Morrison turned his vehicle around and went to where Mr Hohepa had parked his vehicle.

[8]       As Mr Hohepa got out of his vehicle, he dislodged a jack-handle that had been in his car.  Mr Hohepa picked up the jack-handle.  Immediately after that, Mr Morrison confronted him.

[9]       After an argument developed, Mr Hohepa went back to his vehicle.  At this stage, no violent conduct had occurred.  Mr Hohepa’s evidence was that Mr Morrison attacked his vehicle, kicking it and then smashing the front window.  As Mr Hohepa got out of the vehicle Mr Morrison lunged at him, biting him on the cheek.  Mr Morrison tackled Mr Hohepa to the ground, picked up the jack-handle and hit Mr Hohepa over the head, inflicting a gash to his forehead of some 5cm which required stitching.  Mr Hohepa was also kicked on the left side of his head.  The photographic evidence suggests that the injuries inflicted were relatively serious.

[10]     The Judge described Mr Morrison as “a fit, strong, young man”, while Mr Hohepa had a partially paralysed left leg which had resulted from a stroke some years ago. 

[11]     Mr Morrison has spent only about four to five months in the community since 2001 and committed the offending while on bail on other charges, namely contravention of a protection order, assault with a weapon and male assaults female. 

Sentencing in the District Court

[12]     During the trial, Mr Morrison had maintained that he was acting in self‑defence.  At sentencing, Mr Morrison, through his counsel, was forced to accept the jury had rejected self-defence.  He continued to maintain, however, that he had been acting in self-defence and submitted that the jury must have rejected the defence on the basis his response was excessive.  Judge Weir did not accept that submission.  He said in his sentencing remarks that Mr Morrison’s actions were “entirely inappropriate”. 

[13]     When assessing the appropriate starting point, the Judge tended to merge aggravating factors relevant to the offences and those relevant to the offender.  The use of a weapon and the attack on someone in a vulnerable position are properly regarded as aggravating features of the offending, while those involving offending while on bail for assault charges and previous convictions for offending of this type were personal to the prisoner. 

[14]     Judge Weir arrived at a starting point of between three and three and a half years imprisonment, which was increased to four years to reflect “the aggravating factors” to which he had referred.  No mitigating factors were identified.

Competing submissions

[15]     Mr Goodwin referred us to R v Lambert CA456/05 4 April 2006.  In that case this Court upheld a sentence of four years imprisonment on a lead charge of wounding with intent to injure.  The circumstances were, Mr Goodwin submitted, more serious than the present case.  He submitted that it followed the sentence in the present case should be less than four years’ imprisonment.

[16]     Mr Goodwin also referred us to Taueki, submitting that an adaptation of the sentencing guidelines set out in [37](a) of that judgment should apply to the lesser offence on which Mr Morrison was convicted.  In Taueki, at [9], this Court said:

We propose to deal with the guidelines for sentences for serious violent offending at the outset, before dealing with the present appeals. We focus our attention on offences under s 188(1) of the Crimes Act (we will refer to these as “GBH offences” or “GBH offending”), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.

[17]     While recognising that Taueki had not been determined at the time of sentencing, Mr Goodwin submitted, nevertheless, that it should be applied on appeal with the type of adjustment contemplated at [9].

[18]     Mr Goodwin submitted that the injuries suffered by Mr Hohepa ought not to be characterised as serious.  Rather, he submitted they were moderate in nature.  We have already expressed our view on that point.

[19]     Mr Goodwin accepted, that had the higher intent to cause grievous bodily harm been found by the jury, the attack could have been characterised as a concerted street attack involving the use of a weapon found at the scene, attracting a starting point at the lower end of band two of Taueki.  That band involves a starting point of between five and ten years imprisonment.  Mr Goodwin submitted that we should halve a notional starting point of five years imprisonment (to reflect the maximum penalty of seven years imprisonment for the offence on which Mr Morrison was convicted) to reach a starting point of two and a half years imprisonment for the lesser offence.

[20]     Mr Goodwin accepted that an uplift of six months for aggravating features personal to the offender was justified.  That would result, he submitted, in an end sentence of three years imprisonment.

[21]     Ms Feltham took the view that the starting point employed by the Judge was within the range available to him and that, having regard to personal aggravating features (previous convictions and offending on bail), the uplift of six months was appropriate.

Analysis of competing submissions

[22]     Prior to Taueki, the relevant guideline authority on a charge of wounding with intent to cause grievous bodily harm was R v Hereora [1986] 2 NZLR 164 (CA). As Taueki had not been decided at the time Mr Morrison was sentenced, we prefer to apply Hereora.  Having said that, there is no material difference in approach between Hereora and Taueki on the facts of this case.

[23]     Before leaving Taueki, we add that we do not accept Mr Goodwin’s proposed adjustment of the guideline complies with the spirit of what was said in that case at [9]. The difference between the two offences is one of intent. The harm caused to a victim when a person is convicted on the lesser offence may be the same or even more serious. The adjustment is not mathematical. It is an exercise in judgment to reflect the overall criminal culpability of a particular offender.

[24]     Hereora made it clear that an impulsive act of violence (committed with an intent to cause grievous bodily harm) involving the use of a weapon would ordinarily attract a sentence of between three and five years imprisonment.  In Hereora, the Court used that range to reflect an end sentence, as opposed to the type of starting point described in Taueki.

[25]     In this case, the actions of Mr Morrison in biting Mr Hohepa on the cheek, hitting Mr Hohepa over the head with the jack-handle and kicking him to the head must be characterised as a serious street attack involving a weapon undertaken by a fit young man against a middle aged man with a partially paralysed left leg.  Having regard to the maximum penalty of seven years imprisonment and the guidance in Hereora, it was open to the Judge to take a starting point of between three years and three years six months imprisonment.  Further, the offending on bail and the previous convictions of Mr Morrison plainly required some uplift from the starting point.

[26]     We do not see Lambert as assisting Mr Morrison’s case.  Lambert involved more serious offending, but the starting point in that case was five years’ imprisonment, as opposed to three and a half years’ imprisonment in the present case.  The end points are the same, but that reflects both mitigating factors in Lambert (in particular, guilty pleas) which are absent here and aggravating factors in the present case that justify an uplift to the starting point.

[27]     We agree that a starting point of three years six months imprisonment was appropriate.  An uplift of six months for aggravating factors relevant to the offender was also within the available range, as Mr Goodwin responsibly acknowledged.  Although the Judge did not express himself precisely in those terms in imposing sentence, we are satisfied that was the approach he intended to take.  The appeal must fail.

Solicitors:
Crown Law Office, Wellington