R v Rowles
[2015] NZHC 2042
•26 August 2015
NOTE: PUBLICATION RESTRICTIONS EXIST IN RELATION TO MR ROWLES' CO-ACCUSED. REFER PARAGRAPH [40] OF THIS JUDGMENT. ANY PUBLICATION OF, OR REPORTING ON, THIS PROCEEDING MUST COMPLY WITH THOSE RESTRICTIONS.
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-025-876 [2015] NZHC 2042
THE QUEEN
v
LEON TERENCE ROWLES
Hearing: 26 August 2015 Appearances:
M-J Thomas for the Crown
F Guy Kidd for the DefendantSentenced:
26 August 2015
SENTENCING REMARKS OF MANDER J
[1] Mr Rowles, I am now proceeding to sentence you. You may remain seated until the conclusion of my sentencing remarks.
[2] Leon Terence Rowles, you are for sentence this morning for causing grievous bodily harm to Mr Kahu Vincent with intent to cause grievous bodily harm. That charge carries a maximum sentence of 14 years imprisonment.
[3] You have been given a three strikes warning by Justice Davidson on the 29th of July when you entered your plea. On that day, the summary of facts were read to the Court, but it is necessary for me to traverse the factual basis upon which I
proceed to sentence you.
R v LEON TERENCE ROWLES [2015] NZHC 2042 [26 August 2015]
Facts
[4] In the early hours of 9 May this year, you and your associate entered a “Night’n’Day” convenience store in Wanaka. The events that unfolded were captured on CCTV.
[5] In the store at the time was Mr Vincent. He was doing no harm, and indeed engaged you in friendly conversation. Quite what was the trigger for you and your associate to attack Mr Vincent is not clear. However what is clear is that the attack was entirely unprovoked. At some stage, your associate, while crouching down to uplift an item, lost his balance. It appears you may have falsely indicated some involvement by Mr Vincent, as you can be seen on the CCTV footage pointing him out to your associate.
[6] In any event, the two of you can be seen confronting Mr Vincent, and, despite his protestations, he is punched by your associate. That triggers what can only be described as a brutal and unrelenting assault on him, in which you fully participated.
[7] Early in the attack, you punched Mr Vincent before holding him around the arms and shoulders while your associate delivered punches to his face and head. You too delivered blows with your hands and feet. Your involvement was such that in the course of the attack, you gestured to another customer to go away, and while your associate had Mr Vincent in a headlock, you went to check to see if anyone else was outside the shop. You can then be seen returning and rejoining the attack, kicking Mr Vincent, who was occupied trying to protect himself from your associate. You delivered a series of punches and an elbow strike while Mr Vincent was being held.
[8] There was a further series of kicks and punches by you as Mr Vincent was dragged to the rear of the shop by your associate. Mr Vincent sought to defend himself and stand his ground, but the two of you continued the attack, and he was overwhelmed by your combined blows, which included stomps by you to Mr Vincent’s stomach and strikes to his head as he went to the ground.
[9] Once Mr Vincent was on the floor the attack continued. You and your associate both repeatedly stomped on Mr Vincent’s head and face. You continued to do so, notwithstanding that he was no longer moving, was no longer conscious, and was completely defenceless. From the CCTV footage, it is apparent that this goes on for over a minute and a half.
[10] You can be seen attempting to pull your associate away from Mr Vincent. Yet, as you attempted to do so, you too delivered further kicks to him. This somewhat contradictory behaviour climaxed in you finally pulling your associate off Mr Vincent, however, before you left, it was you who delivered one last kick and one final stomp to Mr Vincent’s head. The attack from the time of the first punch until it finally ends, with you and your associate walking away from your seriously injured and unconscious victim, has lasted over four minutes and 15 seconds.
[11] Your immediate reaction when you were arrested by police a short time after the attack, and while your victim was lying unconscious and being attended by emergency staff, was to maintain you had been the victim of an assault. Later, when interviewed at the police station, you continued to claim that it was you who had been assaulted and that this was all you could remember. You provided no assistance to your victim at the scene.
[12] What I have attempted to describe cannot capture the violence you administered to Mr Vincent which is graphically captured on the CCTV footage. Some 80 blows were inflicted upon Mr Vincent’s head and body by you and your associate.
[13] The long term ramifications for Mr Vincent as a result of your attack that night remain uncertain. In the broadest of terms, Mr Vincent will not be the person he was. After the attack, he did not regain consciousness, and he was airlifted to Dunedin Hospital. He was induced into a coma due to significant swelling and bleeding to the brain. Twelve days later, Mr Vincent was still in a coma, and for three weeks remained in the critical care unit with traumatic brain injury and related complications.
[14] Mr Vincent has been profoundly affected by the damage you inflicted. Such was his critical life-threatening condition that his family are grateful simply for the fact that he is now awake and with them. As you have heard, he has had to learn to walk, speak, eat, shower and toilet again. Mr Vincent is now, at least, at home, however, he needs ongoing care, he struggles to walk properly and have normal conversations. He cannot pick his children up off the ground, and he does not have the physical ability to safely look after his young children. He has a long struggle ahead of him to put his life back together and to deal with the likely, but still unknown, complications of his brain injury.
[15] More recently you have taken responsibility for your actions. You cannot explain what you did, and you do not attempt to justify your actions. It has been submitted by your counsel that the CCTV footage reflects what she has described as some “following behaviour” by you, suggesting that you may have been influenced to act in the way you did by your associate. It was submitted that yours was a lesser role and that at times you were trying to pull your more aggressive associate from Mr Vincent, as indeed was the case.
[16] I accept, having viewed the CCTV footage myself, that out of the two of you, your associate appears the more frenzied or out of control in his attack, if only for the fact that you had to pull him away from a prone and unconscious victim. However, you fully participated in the violence from the beginning to the end. I do not consider you were less involved, or that your participation was such that you could be described as a secondary party. You had the awareness at a certain point of a need to stop the assault, but that also demonstrates how you deliberately chose to involve yourself in the attack, and to remain involved, including the decision to join in the kicking and stomping of Mr Vincent.
Victim impact statements
[17] The victim impact statements you have read, I understand, and certainly have heard this morning, attest to the devastation you have caused to Mr Vincent and his family. Your actions have caused Mr Vincent’s family, his partner, children and wider family members to be subjected to great distress and grief. Their lives have
been turned upside down by the changes they have been required to make, the emotional and financial difficulties they must now overcome are all as a result of you and your associate’s senseless actions. Despite that pain and heartache, they have rallied as a family to support Mr Vincent.
[18] Mr Vincent’s life has changed forever. The effect on him is profound and his
long term prospects uncertain.
Pre-sentence report and personal circumstances
[19] I have read the pre-sentence report and other material which has been filed on your behalf and in support of you. You are a 34 year old man with no previous convictions for violence, however, you do have previous convictions for drug-related offending, more latterly for cannabis and non-prescription drugs. While there was some unsettlement in your upbringing, there is nothing in your background which bears on the present offending. Your adult life to date has been marked by casual employment, previous use of methamphetamine and the recreational use of other drugs and alcohol. Although you claim not to have used drugs for some three years prior to this night. I have read the psychiatric report prepared on your behalf which refers to difficulties with ADHD as a child, and the use of alcohol and drugs, to which I have previously referred.
[20] You have the benefit of a number of references from family members and friends, who consider what you have done as being completely out of character. They speak of you as being a kind and respectful person. They are shocked to find you in this situation.
Starting point
[21] In sentencing you today, I am required to determine a starting point for your sentence, which will include the aggravating features of your conduct before examining possible mitigating factors that may require adjustment to that starting point.
[22] The Court of Appeal has set out clear guidelines for the approach to be taken by sentencing Courts to serious violent offending of this type. There are various factors which if present are required to be recognised in the sentence to be imposed. I can say now there are several aggravating features of your offending which I am required to take into account. There are no mitigating features of your offending.
(a) Extreme violence: I consider the violence which you inflicted on Mr Vincent, both directly yourself and as a party to that administered by your associate, to be extreme. The number and force of the blows, and the unrelenting and prolonged nature of the attack drives that conclusion. Your associate inflicted the most violent blows possible, placing his hands on a bench so he could use his full body weight to stomp on Mr Vincent’s head and body with both feet together. You too, however, kicked and stomped Mr Vincent. You watched as your associate administered the blows I have previously described, and yours was the last kick to be administered.
(b)Serious injury: The injuries which you inflicted on Mr Vincent were grave and life-threatening. Over the initial period of Mr Vincent’s hospitalisation he could very well have died. His subsequent recovery has been described as “surprising”, but that, of course, cannot minimise the seriousness of the brain injury he sustained. He suffered a subdural haematoma and was in intensive care for some 24 days, requiring specialist medical intervention. As I have already referred, Mr Vincent’s long term prognosis remains uncertain as he struggles to overcome his neurological injuries. He has had to relearn such basic functions as washing and feeding himself, which I mention only as examples. His young family has to bear the impact of their father’s incapacity.
(c) Attacking the head: Much of your attack focussed on Mr Vincent’s head. The kicking and stomping was directed at his head. Such force is potentially lethal, as this case very nearly demonstrated.
(d)Multiple attackers: There were two of you to Mr Vincent’s one. He was outnumbered and alone. The shop attendant and other member of the public present were intimidated and forced to retreat by the combined violence they witnessed.
(e) Vulnerability of victim: When you commenced your attack, Mr Vincent was by himself in a store in the early hours of the morning. He should have been safe, and could not be considered vulnerable in the ordinary sense of the word. By the later stages of your attack, however, Mr Vincent was clearly a vulnerable victim. He was lying on the ground, unconscious, unresponsive and unable to defend himself as you and your associate continued to kick and stomp on his head.
[23] These various factors to some extent overlap, and there is a need to take care to ensure there is no double counting of their effect, however, each remains an identifiable aggravating feature and must be factored into the sentence imposed. The extreme nature of the violence, the serious injury to Mr Vincent, the deliberate targeting of his head as he lay vulnerable and unconscious, I consider to be factors
which place your offending in the upper range of violent offending of this type.1
This is reinforced by the fact that the damage inflicted on Mr Vincent will have an ongoing impact on his enjoyment of life.2
Assessment
[24] In applying the guideline provided by the Court of Appeal, I have considered a starting point of somewhere between 10 and 12 years imprisonment. In narrowing that range, I have had regard to several other cases, including those that have been cited to me on your behalf by your counsel.3 I consider a starting point of 10 and a
half years imprisonment to be appropriate.
1 The offending falls within the lower to middle of band 3 of R v Taueki [2005] 3 NZLR 372 (CA).
2 At [31](c) and [41](a).
3 Peng v R [2015] NZCA 45; Lambert v R [2015] NZHC 159; August v R [2011] NZCA 91; R v
Stewart CA21/06; 31 August 2006; R v Connelly [2008] NZCA 550; Kara v R [2013] NZCA
527; R v Komene [2013] NZHC 1844; Hemaloto v R [2014] NZCA 335; Haimona v R [2011] NZCA 375; Geros v R [2011] NZCA 122; R v Tau’atevalu [2014] NZHC 27770.
Mitigating features
[25] Mr Rowles, you have offered to participate in restorative justice with Mr Vincent and his family, which is to your credit. However, it is equally understandable that this has been declined, at least at this stage.
[26] Your counsel has placed some emphasis on what she describes as a history of substantial behavioural disturbance as a child, which I have mentioned earlier. I have already noted you were diagnosed with ADHD as a child, and the psychiatric opinion is that this has persisted as a problem for you as you moved into adulthood. Your father had a serious mental illness and your mother was an alcoholic. There is reference to unresolved grief relating to the tragic death of family members. Your attraction to substance abuse is described by the psychiatrist as “understandable”. I, however, do not consider there is sufficient linkage, if any, between your personal history and the violent attack on Mr Vincent to allow me to place much weight on that material. Put simply, it does not render your offending any more explicable, nor does it provide mitigation.
[27] As I have also already referred, you have previous convictions for drug offending. To that extent, you are not entitled to credit for previous good character. I accept, however, that the offending for which you are before the Court is aberrant. On the night, you had voluntarily consumed alcohol and drugs (valium) which is consistent with your alcohol and earlier drug difficulties. The voluntary consumption of drugs and alcohol, while no doubt related - undoubtedly related to your offending, cannot as a matter of law be applied either in mitigation or justification for what you did, and for which you must take personal responsibility.
[28] Reparation - You have limited financial resources with which to make reparation. However, you have offered reparation and saved some money, and sold property to raise money. There is always a danger in making an order for reparation in these circumstances that such awards could be considered derisory in comparison to the emotional harm and loss that has been caused. In simple monetary terms, of course, they are. But you have made the offer to make payment in a genuine effort to try in some way to do the right thing by Mr Vincent and his family. Having regard
to the resources available to you, I will make an order in the sum of $1,000 for emotional harm to Mr Vincent.
[29] Remorse - Claims of remorse can attract scepticism, coming as they do after the event, when an offender’s predicament leaves them little option but to express such sentiments. It is, however, I believe, apparent from your background that you are sincere. I am prepared to accept that you are remorseful and, indeed, shocked by what you did. There is nothing in your past to indicate that you would take any satisfaction from being involved in such a cowardly and grievously violent act.
[30] In recognition of that remorse, practically illustrated in your offer to make a reparation payment and as best as I am able to take into account your personal circumstances, including your willingness to attend restorative justice, I allow a reduction of six months from the starting point.
Credit for guilty plea
[31] I acknowledge that you pleaded guilty at an early stage in the proceeding. You originally faced a charge of attempted murder, and did not seek a sentencing indication as a preliminary step before entry of your plea in respect of the grievous bodily harm charge. The case against you, however, was an overwhelming one, captured as it was in its entirety on CCTV. There simply was no defence to the
charge.4
[32] I am prepared to extend a 20 per cent discount for your early guilty plea. [33] This results in a sentence of eight years imprisonment.
Minimum period of imprisonment
[34] Because I am sentencing you to more than two years imprisonment, I am required to consider whether you should serve a minimum period of imprisonment. Your counsel has submitted that having regard to your personal characteristics, it is not necessary to impose a minimum period of imprisonment. The Crown submits
this is an appropriate case for such a term. You would be eligible for parole, in the normal course of events, before the elapse of two years and eight months. In my view, that would not be an adequate sentence, having regard to the level of your culpability and the harm that you have caused.
[35] The sentence I impose must hold you accountable for the harm done, it must denounce your conduct, it must act as a deterrent to others. For these reasons, I consider a minimum period of imprisonment of 50 per cent of the sentence I am imposing to be appropriate.
Sentence
[36] Mr Rowles, could you please now stand.
[37] Mr Rowles, on the charge of causing grievous bodily harm with intent to cause grievous bodily harm, I sentence you to a term of eight years imprisonment.
[38] I make an order under s 86(1) of the Sentencing Act 2002 that you are to serve a minimum term of imprisonment on that charge of four years. You are ordered to make reparation in the sum of $1,000.
[39] You may stand down.
Suppression
[40] Publication about, or reporting on, this matter must comply with the suppression order made by Davidson J in relation to Mr Rowles’ associate, in his minute of 31 July 2015:5
[4] The Summary of Facts read in Court identifies the involvement of a co-accused who has not been tried. All references to him and his involvement [are to] be suppressed.
[41] There is also the order made by Nation J on 8 July 2015 suppressing the
associate’s name.
Solicitors:
Preston Russell Law, Invercargill
AWS Legal, Invercargill
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