R v Richard Mark Steeman

[2003] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND

105/03

THE QUEEN

v

RICHARD MARK STEEMAN

Hearing:28 May 2003

Coram:McGrath  J
Panckhurst J
Doogue J

Appearances:  A N D Garrett for the Appellant

F E Guy for the Crown

Judgment:5 June 2003 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]       Following trial by jury in the High Court the appellant was convicted of attempted murder.  He had pleaded guilty on arraignment to a charge of breaching a protection order.  He was sentenced to 10 years imprisonment with a non-parole period of 6 years and 8 months on the attempted murder charge.  He appeals against that sentence.  A concurrent sentence of 6 months imprisonment was imposed for the breach of the protection order. 

The facts

[2]       The appellant and his female victim had been in a volatile de facto relationship for five or six years when in March 2001 the victim obtained a protection order against him.  In April 2001 there was a violent incident as a result of which he pleaded guilty to charges of assault, threatening to kill and breach of a protection order.  He was sentenced to 12 months imprisonment followed by 12 months supervision.  In sentencing the appellant on that occasion the District Court Judge referred to the victim suffering severe bruising to her neck and throat as a result of being held down on her bed by the appellant, who had put both hands around her neck pushing his thumbs into her windpipe so that she was unable to breathe. 

[3]       In November 2001 the appellant was released from prison.  The protection order obtained the previous March had been made final and continued in force.  The appellant nevertheless resumed his association with the victim although the two did not live together.

[4]       The events the subject of the present appeal occurred in the early morning of 1 January 2002.  The appellant and the victim had been out to a bar in Christchurch during the previous evening.  The victim at some stage decided to visit another bar to which the appellant did not want to go, and he spent a period watching her from outside, across the riverbank.  When the victim and some friends she had been with left the second bar he called out to her.  The victim invited him to join the group but he refused and went back to his home.

[5]       At 5am the next morning the appellant made a series of telephone calls to the victim’s home which she did not answer.  He left recorded answer-phone messages which included some threats towards her.  When he received no response he cycled to the victim’s home where he broke into the house after climbing over a substantial fence and locked gate.  He entered the house by smashing a glass portion of the door.

[6]       The victim dialled 111 but the appellant burst into her room before she had time to speak.  A record was made of the appellant’s initial verbal exchange with the victim because the telephone call remained connected.  The appellant then assaulted the victim as a result of which she was cut on the cheek and her wound bled profusely.  He then applied pressure with his hands to her neck, abused her verbally, and made it plain to her he intended to kill her.  He next dragged the victim to the bathroom apparently looking for halcyon pills which he intended to force her to take.  When he could not locate the pills he began to strangle the victim using a rolled up towel.  At this point the police arrived to see the appellant holding a looped towel around the victim’s neck, with its ends extended and pressure being applied.

[7]       The arrival of the police did not bring the appellant to his senses.  He struggled with them and it was necessary for the police to subdue him with pepper spray.  He told the police officers at the time that it was his intention to kill the victim.

[8]       At sentencing the Judge, who presided at his trial considered it uncertain whether in the end the appellant would have killed the victim or not, but the Judge rather fancied that the appellant would have done so.  The Judge thought the arrival of the police probably did save the victim’s life. 

[9]       The victim suffered extensive physical injuries which included severe swelling and bruising to her face and bruising to her throat and chin, to the back of her neck, and to her arms and legs.  She had also received a severe puncture wound to her cheek which required stitches.  There were cuts to the inside of her mouth, bruised lips and internal tearing to the side of her neck in the vicinity of the throat.  She was treated in hospital that evening and discharged the next day.

[10]     At the hearing of the appeal, some seventeen months after the assault, we were provided with updated information on the victim’s condition.  She told the police that she lived in fear that a jail mate of the appellant would find her.  She no longer went out and indeed had not been out socially since the offending against her other than to visit members of her family.  She suffers nightmares most nights.  She is very self conscious about the scar on her face and has no close friends, worrying how they would judge her.  She lacks confidence in crowds and has suicidal feelings.  She found continuing with her retail business too stressful and closed it.  She had suffered considerable losses as a consequence of the incident and is on an invalid’s benefit.

[11]     A recent psychiatric report confirms that the victim suffers from post traumatic stress disorder and secondary major depression developed as a direct consequence of the attack. She continues to be in need of specialised treatment which in the future is likely to involve psychotherapy.  She remains on medication for her condition.

Sentencing remarks

[12]     The Judge accepted that at the time of the assault the victim was a vulnerable woman, who had been a kidney transplant recipient, and whose ability to function normally in the community was possibly precarious in light of her health.  The attack, however, had further compromised her ability to function, in a serious way, and had also had a very significant effect on her emotional wellbeing.  Her health problems as a result of the attack plainly continued and were severe. 

[13]     The Judge said that the most serious of the appellant’s previous convictions related to the incident in April 2001.  The appellant suffered from depression and had associated suicidal ideas.  The Judge attributed the present offending to his bad reaction to perceived rejection.  It had been fuelled by the amount of alcohol he had consumed as well as a predisposition in his personality.  The telephone messages had made it clear that the appellant knew at the time that he was acting outside of the terms of the protection order.  He had at one stage undertaken an anger management course and the Judge had no doubt that he fully appreciated what he was doing at the time of the assault.  While there was no planning as such in the offending, there was appreciable premeditation, having regard to the time that had elapsed between leaving the telephone messages and in getting to the victim’s house by bicycle.  The attack itself had involved significant and sustained violence which continued after the police arrival. The immediate physical consequences of the assault may have been limited but the impact on general health and emotional wellbeing was severe.  It was the second occasion he had assaulted the victim in breach of a protection order and on this occasion he had done so while serving a sentence of supervision imposed as part of the penalty for the first offending. The Judge said that his observations at trial indicated that there was little or no remorse on the part of the appellant but the writer of the pre-sentence report had identified remorse and empathy for the appellant with the victim.  The Judge said he was encouraged by that view.  Despite the repetition of offending he was unwilling to conclude the appellant was necessarily a danger in future to other women than the victim in view of his age, and general record.

[14]     Considerations of deterrence and denunciation required a lengthy sentence.  He set the sentencing range as between 10 and 12 years having observed that the case was not in the worst category of attempted murder given the absence of severe and permanent physical injury.  The Judge also made a reparation order of $10,000, to be paid forthwith, from the solicitors’ trust account.  He said that the order for reparation warranted the imposition of a sentence at the bottom of the range he had decided was appropriate.

[15]     The Judge referred to this Court’s recent decision in R v Brown [2002] 3 NZLR 670 as outlining the principles to be considered in the fixing of a minimum non-parole period and said the case undoubtedly called for that additional element in the sentence. He imposed a sentence of 10 years imprisonment, with a non-parole period of 6 years and 8 months. As indicated, the sentence of six months’ imprisonment for breach of the protection order was made concurrent.

Submissions

[16]     In his submissions to us on behalf of the appellant Mr Garrett contended that the appropriate starting point in fixing the sentencing range was in the order of 8 to 10 years rather than 10 to 12 years.  He argued that in light of the substantial reparation order made, payment of which had been secured, a discount in the suggested range for the term of imprisonment should also be allowed.  Mr Garrett, in his earlier written submissions, had also referred to the absence of severe and permanent physical injury to the appellant and suggested that she had not been left with a permanent disfunction, but in light of the information from the psychiatrist and in the victim’s report he rightly felt unable to press that submission. In his oral submissions Mr Garrett also sought a shorter minimum non-parole period.

[17]     Ms Guy for the Crown discussed a number of cases involving sentences for attempted murder.  She submitted that the sentencing range settled on was open to the Judge on the facts of this case in light of the features of the offending.  Of particular significance was the repeated breach of the protection order coupled with the fact that the assault for which he had been sentenced took place while the appellant was still under supervision from his previous sentence.  Ms Guy submitted that the Judge had already reduced by either one or two years the term of imprisonment to reflect the order for reparation of $10,000 so that the appellant was seeking a further deduction on that account.

Decision

[18]     There is no fixed range of sentences for the crime of attempted murder.  The maximum sentence for the crime is 14 years imprisonment.  The crime is of course a very serious one, an element being the formation of an actual intention to kill.  An intention to cause bodily injury known to be likely to cause death is not enough.  The circumstances of the offending in attempted murder cases can, however, greatly differ, even in instances where, as here, offending is against a person with whom the offender has had a relationship.

[19]     Of the cases cited to us by Ms Guy this Court’s decision in R v Tuuta CA296/00, 21 September 2000 is closest to the present circumstances.  The appellant in that case had been sentenced to 10 years imprisonment for the attempted murder of a complainant with whom he had an intermittent and volatile relationship over several years.  When the victim turned her attentions elsewhere the appellant had assaulted her and was imprisoned for a short term.  Later they became reconciled and resumed living together but it did not last.  When she formed a new relationship with another man the appellant entered their house at night while the couple were out and later, after they had returned and gone to bed, he emerged from hiding.  He attacked the victim, stabbing her, cutting her throat and leaving her lying on the floor.  He then tried unsuccessfully to break into a room where her new partner had locked himself.  He gave himself up at an early stage and pleaded guilty to attempted murder and assault with intent to injure.  The sentence of 10 years imprisonment was upheld.

[20]     An aggravating feature of the present offending is the determination and sustained  rage with which the appellant carried out the assault on the victim.  The Judge who tried the case clearly saw the offending as an assault with intent to kill in which the assailant had come very close to achieving the murder of his victim.  A second aggravating feature was that the appellant had previously offended against his former partner in a very similar manner, had been imprisoned, and was still subject to a sentence of supervision in respect of that offending.

[21]     These two features of the offending put it close to the most serious of cases of attempted murder for which the maximum penalty of 14 years imprisonment for attempted murder has been prescribed in which case s8(d) of the Sentencing Act 2002 would have applied and the Judge was required to impose the maximum penalty unless circumstances of the offender made that inappropriate. Here the Judge identified circumstances of the offending and offender enabling him to fix the range at 10 to 12 years and in light of the reparation order he determined on the 10 year sentence.  The sentence is in line with the marginally more serious violence in Tuuta where a guilty plea was entered at an early stage.  There is nothing that indicates in approaching the sentencing as he did the Judge erred in principle or imposed a sentence that was manifestly excessive.  There is no basis on which we could interfere with the 10 year term of imprisonment imposed.

[22]     We have also considered the appeal in relation to the maximum non-parole period of two thirds of the sentence (6 years 8 months).  The Judge referred to R v Brown in which this Court said (at para [29]) that the prerequisite for imposing a minimum sentence is that the sentencing Judge is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment larger than one third of the period imposed. (cf s86(2) Sentencing Act 2002). In R v Moon CA366/02, 27 February 2003, the Court said that the provision for a minimum non-parole period is intended to apply in circumstances where culpability is high.  The Judge clearly decided that the serious circumstances of the offence in this case required that the appellant should serve two thirds of the term of imprisonment imposed on the appellant.  Any shorter period would not be enough to punish, deter and denounce his offending.  That assessment of the gravity of the offending was undoubtedly open to the Judge in what was a particularly serious instance of the crime of attempted murder.

[23]     Accordingly the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington