R v Patiole
[2019] NZHC 76
•5 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-009571
[2019] NZHC 76
THE QUEEN v
DEASMOND PATIOLE
Hearing: 5 February 2019 Appearances:
J Rhodes and K Tuialii for Crown N Tupou for Defendant
Sentencing:
5 February 2019
SENTENCING NOTES OF WYLIE J
Solicitors/counsel:
Crown Solicitor, Manukau N Tupou, Auckland
R v PATIOLE [2019] NZHC 76 [5 February 2019]
[1]Mr Patiole, you may remain seated until I ask you to stand.
[2] Mr Patiole, you appear for sentence today having entered a guilty plea on 27 November 2018 to a charge of causing grievous bodily harm with intent to cause grievous bodily harm. This is an offence pursuant to s 188(1) of the Crimes Act 1961. The maximum penalty for the offence is one of 14 years’ imprisonment.
Relevant background
[3] At about 3.00am on 12 August 2017, you were drinking with associates at a bar in Manurewa. The victim was also present, along with his family members.
[4] You were standing against a wall with an associate. The victim approached you and your associate, and held out his fist in a friendly manner, inviting you and your associate to fist bump with him. Your associate did so, but you took exception to the victim’s actions. You handed your drink to one of your friends, and without warning punched the victim in the face with your right hand. This stunned the victim and caused him to step backwards. You then kicked the victim in the groin, and punched him again in the head with your left hand. You then punched the victim again with your right hand, knocking him unconscious. The victim fell to the floor, hitting his head on the ground. You stood over the victim aggressively, notwithstanding that he was then unconscious, before your associates pulled you away. You then promptly left the bar.
[5] The victim was left bleeding profusely from his ears. He was attended to by bar patrons and then ambulance staff.
[6] The victim suffered a fractured skull and extensive bleeding on his brain. He was taken to Middlemore Hospital where he underwent a CT scan. The scan identified the following injuries:
(a)a collection of blood at the back of the head;
(b)extensive fractures to the back and lower portion of the skull bone;
(c)extensive blood between the brain and skull, as well as bleeding deep within the brain;
(d)bruising of the brain on the right-hand side;
(e)a small collection of blood on the right-hand side of the brain; and
(f)due to swelling and pressure, a shifting of the brain from the right to the left-hand side of the skull.
The victim had a tube inserted into his airway so he could be placed on a ventilator to assist with his breathing. He was taken to Auckland Hospital in critical condition, and operated on on an emergency basis. A portion of his skull was removed and he was placed in an induced coma for 10 days. He had to wear a helmet for nine months before the portion of his skull which had been removed was reattached following subsequent surgery.
[7] The victim is expected to suffer permanent effects from his brain injury. He has had to undergo post-operative medical treatment. He now suffers from headaches and short-term memory loss. He has been unable to continue working as a forklift operator. The situation has caused great stress to his wife and three children for whom he is the sole provider.
Pre-sentence report
[8] I have received a pre-sentence report from the Department of Corrections. The report writer who interviewed you referred to your criminal history, and noted that you then disagreed with the police summary of facts. He also noted that you sought to shift blame to the victim, stating that his behaviour was intimidating and that he was antagonistic towards you. You are recorded as saying that the victim was “being a dick, drunk, he was being aggressive, staunching me out, staring me down”.
[9] The report writer considered that you present as immature. While you were unable to express remorse in a traditional sense, you did state that you feel terrible for what happened, and that you are grateful that the victim is recovering. Nevertheless,
the report writer considered that you show limited insight into your actions and that you seek to justify them by speaking about the effects your offending has had on you and your family, rather than on the victim and his family.
[10] Offending related factors are considered to be your offending supportive attitudes, alcohol use and your propensity to resort to violence. It was recommended that you engage in an alcohol and drug programme. You are assessed as presenting a high risk of reoffending until such time as you have engaged in and completed these interventions. It was recommended that you should be sentenced to a term of imprisonment.
Victim impact statement
[11] I have received a victim impact statement from the victim’s wife. It was read to me in Court this morning by her. She presented it on behalf of her husband. She has told me about the devastating effect the injuries have had on her husband, on her and on their family. They lost their rented accommodation, and their lives have not been the same as they were. As she says, there have been many “dark times for the family” as a result of your actions.
Submissions
[12] I have received submissions from Mr Rhodes, for the Crown, and from Mr Tupou, on your behalf.
[13] The Crown submits that I should adopt a starting point in the vicinity of six to seven years’ imprisonment, uplift that starting point because the offending was committed whilst you were subject to a sentence of intensive supervision, further uplift the starting point given your conviction history, and then discount the starting point, first to recognise that you were on EM bail prior to pleading guilty, then to recognise your relative youth and, finally, to acknowledge your guilty plea. Mr Rhodes submitted that a sentence of imprisonment is the only available outcome, and the least restrictive outcome in the circumstances of this case.
[14] Mr Tupou emphasised that you wish to extend your apologies to the victim and his family. He noted the letter of remorse which you have written direct to me. Mr Tupou accepted that a sentence of imprisonment is inevitable and he submitted that I should adopt a starting point of five to six years’ imprisonment. He accepted that the offending occurred while you were sentenced to a period of supervision, and that an uplift may be required given your previous conviction history. He suggested a 5 per cent uplift. He suggested a discount of seven months for the time you spent on electronically monitored (EM) bail, a further discount of 8 per cent to recognise your youth, and a final discount of 5 per cent for your guilty plea.
Purposes and principles of sentencing
[15] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. Regrettably, gratuitous and extreme violence is all too common in our community and denunciation is important in such cases. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences.
Analysis
Starting point
[16] Violent offending of this kind is governed by the decision of the Court of Appeal in R v Taueki.1 The Court there put in place three sentencing bands for such offending – band one for violent offending at the lower end of the spectrum, where a sentence of three to six years’ imprisonment is appropriate, band two for more serious violent offending, featuring two or three aggravating factors, where a sentence of five to 10 years’ imprisonment is appropriate, and finally, band three for serious violent
1 R v Taueki [2005] 3 NZLR 372.
offending, where three or more aggravating factors are present or where their combination is particularly grave. Band three offending can result in a sentence ranging from nine to 14 years’ imprisonment.
[17] The bands set out by the Court of Appeal in Taueki are intended for guidance only and they should be used flexibly. Sentencing Judges also need to exercise judgment in assessing the gravity of each aggravating feature, and each case needs to be assessed carefully in order to establish a starting point which properly reflects the culpability inherent in the offending.
[18] A number of the aggravating factors identified by the Court of Appeal in R v Taueki are present in your case. Some of those matters overlap with the aggravating features set out in s 9 of the Sentencing Act. I note the aggravating features of your offending as follows:
(a)The violence you inflicted was unprovoked and gratuitous. It was serious violence. You punched the victim without warning. You followed the initial punch with a kick with to the groin and then with two further punches. There was no counter attack or even attempts to defend himself by the victim. Once you had rendered the victim unconscious you aggressively stood over him before you were pulled away. You then callously left the bar with your associates, exhibiting no further concern for the victim.
(b)Very serious injuries indeed were inflicted. The victim suffered life threatening injuries as a result of your actions. He required extensive surgery and the effects of your offending will be ongoing for him. He has only recently been able to return to work part-time. The work the victim is now able to do has been constrained as a result of your offending. The injuries suffered are likely to cause long-term disability, impacting on the victim’s qualify of life.
(c)Your initial attack was to the victim’s head. You delivered three separate blows to the victim’s head. The final blow was delivered with
such force as to render the victim immediately unconscious, causing him to fall backwards and hit his head on the ground. You were very lucky that you were not facing the more serious charge of manslaughter.
[19] In my judgment, your offending falls into band two identified in Taueki, permitting a sentence ranging from five to 10 years’ imprisonment.
[20] I have considered the cases referred to me by counsel to see how like assaults have been dealt with by other Judges. Those in the Court of Appeal are particularly helpful.2
[21] I have also considered the authorities to which I was referred, both in the High Court3 and the District Court.4
[22] Each case turns on its own facts, but in broad terms I accept that the attack carried out by you was similar to many of the attacks in the various cases referred to me by counsel.
[23] Your attack was not premeditated. Nor was it particularly prolonged. Instead it was brief but violent. You did not use a weapon, however, the injuries sustained by the victim were very severe.
[24] Taking into account the aggravating features I have noted and in light of the serious consequences of your actions, I consider that a starting point of six years and six months’ imprisonment is appropriate in your case.
2 E.g. R v Finn [2007] NZCA 257 – attack to head – serious injury – starting point of between five to six years’ imprisonment; Hape v R [2015] NZCA 187 – gratuitous attack to head – serious injuries – starting point of five and a half years’ imprisonment; R v Nepe [2008] NZCA 98 – attack to the head and face of victim – serious injuries – long-term consequences – starting point between eight and nine years’ imprisonment. Potae v R [2016] NZCA 146 – initial punch to the head – numerous punches to face – second attack – significant injuries – starting point five and a half years; R v Grace [2008] NZCA 243 – headbutt followed by kicking and punching to head – serious injuries – starting point of 12 years’ imprisonment.
3 R v Tehei [2017] NZHC 1744; R v Leota [2013] NZHC 2857; Reid-Manual v R [2017] NZHC 2768.
4 R v Su’a [2017] NZDC 20372; R v Fuimaono [2017] NZDC 7515; R v Wotton-Kerr [2016] NZDC 15372.
Personal circumstances
[25] I now consider your circumstances, to see whether there are any aggravating and mitigating factors personal to you which should result in an uplift to, or a discount from, that starting point.
[26] First, I note that you were subject to a sentence of intensive supervision for other violent offending at the time of the offending. That earlier sentence had been imposed on 19 January 2016 for two years. Offending whilst subject to an existing Court sentence will often justify an uplift, because it reflects a disregard of Court processes and orders. So it is in your case. Your attitude to Court processes and orders is also apparent from some of your convictions which evidence a disregard for the legal process. In my judgment, an uplift of three months is warranted for this factor in your case.
[27] Secondly, in my view, an uplift is appropriate given your criminal history. You have a number of Youth Court notations. While those notations do not themselves count as aggravating previous convictions, you have three relevant previous convictions for similar offending. You have a conviction for assault with intent to rob in June 2014, a conviction for aggravated robbery also in June 2014 and a conviction for assault with a blunt instrument in August 2014. In my judgment, an uplift to the starting point of a further three months is appropriate to recognise these prior convictions. The Crown suggested an uplift of six months, but I note that you were aged approximately 17 years when the earlier offending took place, and that all involved the use of a weapon, whereas your present offending did not do so.
[28]These uplifts take the sentence to one of seven years’ imprisonment.
[29]There are some mitigating factors personal to you.
[30] Time spent on electronically monitored bail is a factor the Court should take into account in mitigation. Indeed this is required by s 9(3)A of the Sentencing Act.
[31] In the present case, you were granted EM bail on 5 October 2017. You remained on EM bail until 27 November 2018 – a period of 13 months and three
weeks. The bail conditions were restrictive. You were on 24-hour curfew apart from approved absences. You were largely compliant with your EM bail conditions, although there do appear to have been three out of 43 occasions on which you deviated from the quickest possible route home when you were granted approved absences. It also seems that on one occasion you did not present yourself at the door when a Field Officer was sent to check your GPS equipment. Despite these relatively minor matters, I accept that you largely complied with the conditions of EM bail.
[32] There is no arithmetical formula which can be applied in determining the appropriate reduction for a defendant who has been on EM bail. In one case, the Court of Appeal was prepared to allow a reduction of four to six months in a sentence for a defendant who had spent 12 months on EM bail. This was regarded as being consistent with other cases.5 In another case, a reduction of 12 months was allowed by the High Court where the offender had spent 14 months on EM bail. That was regarded by the Court of Appeal as being out of step with more recent decisions.6 In yet another case, a defendant who had spent 13 months on EM bail received a discount of four months’ imprisonment.7
[33] In my judgment, and given your age, a reduction of six months is appropriate in your case.
[34] I now address your age directly. You were 20 years old at the time of the offending. The Crown accepts that your offending was impulsive and that your relative youth may well have played a part in it.
[35] The Court of Appeal has recognised three factors which can in appropriate cases lead to a discount for a young offender:8
(a)there are age related neurological differences between young people and adults. Young people may be more susceptible to negative influences and outside pressures, and may be more impulsive;
5 R (CA 528/16) v R [2017] NZCA 210.
6 Hohipa v R [2015] NZCA 485.
7 Chea v R [2016] NZCA 207; Keown v R [2010] NZCA 492 – 18 months on EM bail.
8 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
(b)young people are thought to be more susceptible to rehabilitative programmes than older people;
(c)the effect of prison on young people and in particular a long sentence, can be crushing.
[36] Here, as I have noted, you have a concerning criminal history for somebody of a relatively young age. You first started offending when you were 15 years old and your offending has continued on a regular basis since. I accept that your present offending can fairly be described as impulsive, but your offending history and your approach to the report writer preparing the pre-sentence report does not suggest that you present with particularly good rehabilitative prospects. Nevertheless, having considered the submissions of counsel, I agree that a youth discount should be made available to you. I allow a period of six months to account for your youth.
[37] Finally, there is your guilty plea. It was entered at a very late stage – only after the jury had been empanelled. The Crown and the police had already spent many hours preparing for trial and then met with primary witnesses. The victim had attended Court with his family in anticipation of giving evidence. The victim and other Crown witnesses were ultimately saved from giving evidence, and a trial was avoided. Nevertheless, given the very late stage at which you entered your plea, I do not consider that a substantial discount should be given to you. I reduce your sentence by an additional six months to recognise your guilty plea.
[38] That takes the end sentence to one of 66 months – that is five years and six months’ imprisonment.
Sentence
[39]Mr Patiole, will you please stand.
[40] Mr Patiole, in respect of the offence of causing grievous bodily harm with intent to cause grievous bodily harm, I sentence you to five years and six months’ imprisonment.
MPI
[41] I have considered whether or not a minimum period of imprisonment should be imposed.
[42] The Crown does not seek such an order for two reasons – first, your relatively young age, and secondly, you have not served a prison sentence before. The Crown submits, and I accept, that the final sentence I have imposed on you should be sufficient to punish and denounce your conduct and to deter you and others from committing a similar offence.
[43] Mr Patiole, I trust that you will use your time in prison constructively. You have written me a letter stating that you are remorseful for your actions and that you accept that you must turn your life around. I hope that you will engage in the rehabilitative programmes that will be offered to you so that you can ultimately return to and participate in a constructive way in our community.
Addendum
[44] In the Crown charge list, dated 13 November 2018, there was an additional charge of causing grievous bodily harm with intent to injure pursuant to s 188(2) of the Crimes Act. The Crown offers no evidence in regard to that alternative charge and the same is withdraw. Thank you.
[45]You can now stand down Mr Patiole.
Wylie J