R v Owens

[2017] NZHC 319

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-012-000329 [2017] NZHC 319

THE QUEEN

v

DARYEN LESLIE JOHN OWENS

Hearing:	2 March 2017
Appearances:	R D Smith for Crown J A Westgate for Defendant
Judgment:	2 March 2017

SENTENCING NOTES OF DUNNINGHAM J

[1]      Mr Owens you are here for sentence today having pleaded guilty to a charge of attempted murder.

Background

[2]      The charge arose out of events which  occurred early in the morning on

7 February 2016.  You and your victim were known to each other. At the time of the incident she lived with your former wife, Ms Leanne Donaldson.  At approximately

5.40 am in the morning she was woken by Ms Donaldson saying that there was someone at the door.

[3]      When your victim opened the front door she found you standing there and you made a comment about her having ruined your life and that you were going to ruin hers.  You grabbed her by the throat, pushed her into a nearby wall and then

head butted her in the face.  You then stabbed her in the shoulder with a stainless

R v OWENS [2017] NZHC 319 [2 March 2017]

steel kitchen knife that you had brought with you.  While you held her by the throat you  stabbed  her  multiple  times  before  she  got  away to  the  kitchen  area.   You followed her and stabbed her multiple times in the back.

[4]      In all she was stabbed 14 times, four times in the back and 10 times in the front of her body including six stab wounds to her breasts.

[5]      Some of the more serious injuries suffered by her included:

(a)      one deep wound causing a three centimetres laceration to the liver and a puncture to the lung;

(b)one wound below her diaphragm which was deep enough to cause penetration into her abdomen resulting in the inside lining of her stomach protruding from her skin;

(c)      a deep wound to the left lower thoracic spine region, penetrating the muscles at the left edge of her spine; and

(d)a  wound  to  the  right  side  of  the  thoracic  spine  penetrating  deep enough to reach her thoracic vertebrae.

[6]      Before you left the house you told Ms Donaldson “don’t you ring them” and that would appear to be a reference to calling police and emergency services. However, at 5.42 am an ambulance was called and the victim was taken to Dunedin Public Hospital where she underwent surgery.   She remained in hospital for seven days due to the nature of her injuries.  Medical staff at the hospital advised police that she was lucky to be alive due to the number and nature of the stab wounds in her body.   While your victim was originally reluctant to make a statement out of a justifiable fear for her life she later advised that it was you who stabbed her and that is confirmed by other forensic and circumstantial evidence.

Impact on victim

[7]      In  terms  of  the  impact  on  the  victim,  the  attack  has  inevitably  had  an enormous effect on her as she has outlined today in her victim impact statement. There are of course the inevitable physical and financial consequences of surviving such an horrific attack.  However, it is the emotional consequence which is the most debilitating for her.  It was unsurprising to me that she concluded that she did not trust anyone any more, she cannot sleep at night and it has affected all her relationships.

Starting point

[8]      You  have heard that  the maximum sentence for this  charge is  14  years’ imprisonment.  There is no tariff case for attempted murder because it covers such a wide range of factual circumstances.1   The lawyers here are agreed that guidance can be taken from the judgment of R v Taueki, which relates to the charge of causing grievous bodily harm with intent.2    That case sets out a list of aggravating features which contribute to the seriousness of the offending.  Where there are three or more of those features, to the offending, it falls within the most serious category, which is band  3,  and  that  is  held  by  Courts  to  warrant  a  starting  point  of  nine  to

14 years’ imprisonment.

[9]      In this case, it is undisputed that the following aggravating features were present:

(a)       there was extreme violence as the attack was frenzied, ongoing, and involved the use of significant force;

(b)      the attack was clearly premeditated as you went to the victim’s house

armed with a knife and you arranged for her flatmate to have her answer the door;

1      R v Allen & Jannings CA4/88, 23 June 1988.

(c)      there was serious injury to the victim and it is fortunate that she survived.;

(d)      the use of the knife is a “serious aggravating factor”;

(e)      the fact that the attack took place in the home of your victim, where she had a right to expect to be safe is a further aggravating factor;

(f)      finally, your victim was vulnerable.   She was not expecting to be attacked when she opened the door and given her relative size and strength and the fact she was unarmed, she was in no position to defend herself from your repeated use of a knife.

[10]     The Crown contends for an 11 and a half to 12 year starting point while your lawyer submits that by reference to the cases referred to by the Crown in their submissions, R v Nelson3  and R v O’Kane,4  that a starting point of 10 and a half years is appropriate.   Your lawyer accepts that the decision in Nelson, where an

11 year  starting  point  was  adopted,  is  similar,  but  says  that  Nelson  has  the aggravating factor that the victim’s young daughter observed the attack.  However, as your lawyer accepts, the extent of premeditation is greater in your case and so I do not think that case can be seen as more serious.

[11]     In  O’Kane,  a starting point of 11 to 11  and a half  years was indicated. Mr Westgate has submitted that the circumstances in O’Kane can be distinguished because the offending was of longer duration and the neighbours had to drag the victim away from the offender, whereas in the present case you left of your own volition.

[12]     However, I am not satisfied that those distinctions make any difference to culpability.  First, it is not clear from the sentencing notes in that decision that the attack was of longer duration.   In O’Kane, there were 11  stab wounds which is slightly fewer than in your case.  I also consider that the only reason you left of your

own volition was that you considered you had achieved your objective particularly

3      R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005.

given your statement to an associate afterwards that you had “finished the victim off”.   In my view, your offending was broadly similar to that in O’Kane and a starting point of 11 and a half years is well justified.

Prior convictions

[13]     I then need to decide whether to take into account your previous convictions as an aggravating factor that should increase the sentence.

[14]     You  are  44  now,  and  your  criminal  history  disclosed  that  you  have accumulated 22 convictions since 1992.  These include six for drink driving, four for violence and two for other aggression.   The Crown notes that your most recent convictions for violence include a conviction for male assaults female and for common assault together with trespass, but it is accepted that, prior to that offending you had not appeared before the Court for an offence involving violence since 1999 and your most serious violence offences arose from offending back in 1993.  Now in all the circumstances, the Crown suggests that a modest uplift for your previous convictions, particularly the convictions which were entered in 2015, would be appropriate.

[15]     Your own lawyer submits  that  your recent  convictions  are for low  level violent offending and they are realistically subsumed in the sentence to be imposed for this offending given the Court is looking at a starting point over 10 years.

[16]     In my view, only the recent convictions for the 2014 offending are relevant to the question of uplift.  The other convictions are of minimal relevance given the time that has past since they occurred.  However, I will accept Mr Westgate’s submission that an uplift is not necessarily given where the starting point is to be fixed.

Mitigating factors

[17]     In terms of mitigating factors, there is nothing in the material before me that raises mitigating factors that would warrant a discount.  The only factor I have to consider is the discount to be allowed for your guilty plea.

[18]     When this matter came before Mander J in September 2016, he indicated he was prepared to give an 18 per cent discount taking into account that the entry of your plea would not come at the first reasonable opportunity and having regard to the strength of the prosecution case but, noting that a guilty plea would still provide significant benefit in terms of time, cost and avoidance of further inconvenience to witnesses and trauma to the victim.

[19]     In my view, given the passage of time, I am not prepared to maintain that discount, which in any event, I consider was generous given the strength of the prosecution case.  The Crown suggests a 10 per cent discount whereas your lawyer suggests a 15 per cent discount.  In particular, your lawyer notes that a guilty plea at this stage still provides what he calls “wider justice sector savings” and the benefit to your victim of not having to give evidence and having the criminal proceedings concluded promptly.

[20]     In my view, it is reasonable to afford a lesser discount than was available at the sentencing indication.  Your victim had to endure another four to five months of stress and uncertainty between September when the indication was given and the date when you did enter your plea of guilty.   Nevertheless I accept there are still benefits of a guilty plea being entered before the witnesses were summonsed for trial, and, of course, the avoidance of the trial itself is also a major benefit.  In my view, a discount of 13 per cent is appropriate and that would reduce an 11 and a half years sentence to one of 10 years exactly.

[21]     The final issue is whether this is an appropriate case for a minimum period of imprisonment to be imposed.   The Crown submits that a minimum period of imprisonment of half to two-thirds of the overall sentence would be appropriate having particular regard to the circumstance of the offending and  your criminal history, as well as to the need to hold you accountable.

[22]     Your lawyer submits that making such an order is unnecessary given the unlikelihood of parole when just one third of your sentence has been served.

[23]     In  my  view,  a  minimum  period  of  imprisonment  under  s  86(2)  of  the Sentencing Act is required for the particular purposes of holding you accountable for the harm done to  your victim and to denounce the conduct in which you were involved.  I say this because this was particularly horrific offending and I get no real sense that you appreciate the harm you have caused your victim, nor that you are truly remorseful for what you have done.   I therefore consider an appropriate minimum period of imprisonment is half of the full sentence.

[24]     Mr Owens would you please now stand.

[25]     Mr Owens, on the charge of attempted murder, I sentence you to 10 years’

imprisonment, with a minimum period of imprisonment of five years. [26]   Stand down.

Solicitors:

RPB Law, Dunedin

John Westgate, Dunedin