R v Taueki
[2005] NZCA 174
•30 June 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA384/04
CA417/04
CA434/04THE QUEEN
v
JASON TAUEKI
SHAWN DAVID RIDLEY
RICHARD PUNA ROBERTSHearing:17 February 2005
Court:Anderson P, Glazebrook, Hammond, William Young and O'Regan JJ
Counsel:A J S Snell for Appellant Taueki
E C Bulger for Appellant Ridley
G J King for Appellant Roberts
J C Pike for Crown
Judgment:30 June 2005
JUDGMENT OF THE COURT
AMr Taueki’s appeal against sentence is dismissed.
BMr Ridley’s appeal against sentence is allowed. The sentence of ten years imprisonment with a minimum period of imprisonment of six years is quashed and replaced with a sentence of eight years imprisonment with a minimum period of imprisonment of five years.
CMr Roberts’ appeals against conviction and sentence are dismissed.
REASONS
(Given by O’Regan J)
Table of Contents
Para No
Introduction [1]
R v Hereora [5]
GUIDELINES FOR SENTENCES FOR GBH OFFENCES [9]
Objectives [10]
Sentencing Act 2002 [13]
Approach [14]
Overseas material [18]
Should overall sentencing levels be increased? [19]
Change of approach [22]
Factors relevant to the setting of the starting point [26]
Matters contributing of the seriousness of GBH offending [31]
Matters reducing the seriousness of GBH offending [32]Matters which should not be seen as reducing
the seriousness of GBH offending [33]
Bands [34]
Band one [36]
Band two [38]
Band three [40]
Flexibility [42]
Circumstances of the offender [44]
Other sentencing principles [46]
Minimum periods of imprisonment [47]
Leave to apply for home detention [59]
Replacement of Hereora [60]
THE APPEALS [61]
Approach [62]
Mr Taueki [63]
Mr Ridley [84]
Mr Roberts [109]Introduction
[1] This judgment deals with a number of appeals which were heard together by a Full Court on 17 February 2005. We have already delivered judgment on two Solicitor-General appeals which were heard at the same time: R v Naime and Aloniu CA428/04; CA429/04 30 May 2005. We heard these cases together because they are all cases involving serious violent offending and they provide an opportunity for the Court to review the continuing application of its decision in R v Hereora [1986] 2 NZLR 164 as a guideline case for sentences for such offending. The Court issued a memorandum to counsel prior to the hearing notifying them of its intention in this regard. We received helpful submissions from all counsel (including Mr Chand and Ms Philson for Mr Aloniu and Ms Sapolu and Ms Ward for Mr Naime) for which we express our gratitude.
[2] All of the appellants other than Mr Ridley were convicted of offences under s 188(1) of the Crimes Act 1961. Mr Ridley was convicted of an offence under s 191(1) of the Crimes Act.
[3] Section 188(1) provides:
Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person.
[4] Section 191(1) provides:
Every one is liable to imprisonment for a term not exceeding 14 years who with intent-
(a) To commit or facilitate the commission of any crime; or
(b)To avoid the detection of himself or of any other person in the commission of any crime; or
(c)To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any crime-
wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.
R v Hereora
[5] The guidance provided by Hereora is contained in a short passage in a lengthy judgment, which refers to sentencing levels in England rather than explicitly specifying recommended sentencing levels in this country. The Court was considering an appeal by the Solicitor-General against sentences imposed on Mr Hereora and his co-offenders for wounding with intent to cause grievous bodily harm. The offences were committed during an inter-gang confrontation. Mr Hereora shot his victim with a rifle. Another offender, Mr Russo, stabbed his victim. Mr Hereora’s sentence of two years imprisonment was increased to six years (the Court found seven years might have been justified). The term of imprisonment for one year imposed on Mr Russo was increased to three years. The sentences of others involved in the confrontation were increased from 18 months to four years in one case and from one year to three years in another.
[6] The passage from the judgment which has been seen as providing a guide for sentencing appears at 170 and provides:
For crimes comparable but rather less serious than these [premeditated shooting with a powerful rifle and a slightly less premeditated stabbing in a public place in the context of gang warfare], this Court has upheld sentences of imprisonment for from three to five years. (For a five year sentence, see for instance R v Ruka (CA45/85, 16 September 1985.)) In England it is said, as to cases of wounding or causing grievous bodily harm with intent, that commonly an impulsive act of violence involving the use of a weapon or intent to inflict serious injury will attract a sentence within the bracket of three to five years; and that from five to eight years is reserved for cases exhibiting a combination of aggravating features. Up to 12 years is imposed there when unusually grave aggravating features are present: Thomas, Principles of Sentencing (2nd ed, 1979) pp 93-99; Thomas, Current Sentencing Practice, para B2-2.2.
In addition to the factors already mentioned, this case is marked by another totally unacceptable aggravating feature: the danger and arrogance of gang warfare…[The safety of the public] has to be given weight in considering gang crimes.
[7] For ease of reference we will refer to the categories identified in that passage as follows:
(a) Category one: 3-5 years;
(b)Category two: 5-8 years;
(c)Category three: Up to 12 years.
[8] Although the Court in Hereora referred to actual sentences in the above extract, it was describing sentencing ranges for particular types of offending. The judgment does not make it clear whether, in setting those sentencing ranges, the Court excluded from consideration mitigating and aggravating factors referable to a particular offender. So the ranges in Hereora may have been different from (higher or lower than) starting points. The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial”: R v Mako [2000] 2 NZLR 170 at [34]. When we use the term “starting point” in this judgment, that is what we mean.
GUIDELINES FOR SENTENCES FOR GBH OFFENCES
[9] 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 ss 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.
Objectives
[10] The principal objective of the guidelines set out in this judgment is consistency. Consistency has always been an objective of sentencing policy, and s 8(e) of the Sentencing Act 2002 now gives that statutory backing. We hope that this judgment will provide a single point of reference for sentencing Judges and counsel, and that this will lead to consistency in the sentencing levels imposed on offenders. What we seek to achieve is consistency in the approach adopted by sentencing Judges, which should in turn lead to consistency in sentencing levels. This does not override the discretion of sentencing Judges, but rather provides guidance in the manner of the exercise of that discretion.
[11] We note that in the Practice Note – Sentencing 2003 dated 21 May 2003 [2003] 2 NZLR 575 at 2.2(h) and 3.3(c), it is stated that, where a Court of Appeal guideline decision is available, references by counsel to other decisions will generally not be of assistance. We envisage that counsel and Judges will, in the light of that statement, use this decision as the point of reference for submissions and sentencing remarks when a sentencing exercise for a GBH offence is being undertaken. We do not think reference to cases predating this decision will be of assistance to Judges applying the guidelines set out in this decision.
[12] Another objective of these guidelines is to adapt the sentencing approach mandated by Hereora to take into account changes in sentencing law and practice since the time Hereora was decided. The most important of those changes is the Sentencing Act, particularly, in the present context, ss 8(c) and 8(d). That has the effect of broadening the range of available sentences for serious GBH offences. We discuss this in more detail at [22] – [25] below.
Sentencing Act 2002
[13] Of course, the first point of reference for a sentencing Judge is the Sentencing Act. Many of the Judge-made rules in relation to sentencing were codified in this legislation. Many of its provisions are mandatory, and nothing in this judgment affects those requirements. However, in undertaking the sentencing task in accordance with the Sentencing Act, the guidelines set out in this judgment will provide direction in the manner of application of the requirements of the Sentencing Act.
Approach
[14] Counsel for the Crown, Mr Pike, submitted that the brief passage in Hereora which has been taken as providing guidance for sentencing in this area (reproduced at [6] above) has had the unintended effect of confining or constricting sentencing in cases of serious and gravely serious GBH offences. He suggested that the Court follow the pattern set in Mako, and set out principles to guide sentencing that amplify the seriousness of any GBH offence. Counsel for Mr Roberts, Mr King, and counsel for Mr Ridley, Ms Bulger, agreed that it would be appropriate to adopt an approach similar to that adopted in Mako. Other counsel preferred a continuation of the Hereora approach, where categories are identified.
[15] In Mako at [2], this Court noted that the guidance given by reference to categories of offences in R v Moananui [1983] NZLR 537 had led to overemphasis on the appropriate category for particular offences and underemphasis on the true criminality. The Court noted at [25] that sentencers had shown a reluctance to treat the categories as guidelines which are to be departed from where the circumstances dictate a more or less severe response.
[16] We believe that the same observation can be made in relation to the Hereora categories. They are seen by some as too rigid and too inflexible. This Court noted in R v Funaki CA62/02 9 May 2002 at [22] that the Hereora categories were not closed, and that the categorisation of offences should not fall foul of “scientism”. Hereora categories were working categories for dealing with an overall sentencing problem, but the Court was required to undertake a proper assessment of the seriousness of particular conduct and to pay regard to the circumstances of each case. Similarly, in R v Curry CA272/00; 273/00; 326/00 28 September 2000 at [11], this Court warned against interpreting Hereora as suggesting a mechanical process of pigeon-holing. The need to avoid a rigid or mathematical approach was also emphasised in R v Clotworthy (1998) 15 CRNZ 651 at 655.
[17] However, while we have adopted a number of the features of Mako in this judgment, we have not followed the Mako approach in its entirety. In our view the use of examples, as was done in Mako, provides insufficient guidance to sentencing Judges in the present context, where the range of GBH offending is so broad. The Mako examples covered the spectrum of aggravated robbery situations in a way which provided strong guidance for sentencing Judges in most aggravated robbery cases. Examples of GBH offending would not, on their own, cover the much broader range of offending with which sentencing Judges must deal. For this reason we have decided to describe bands of offending, similar to the Hereora categories, as well as providing a list of factors relevant to setting starting points and some examples as was done in Mako. We think this combined approach will provide the most helpful guidance, while preserving the very important discretionary element in sentencing.
Overseas material
[18] The Hereora categories were based on sentencing practice adopted in England. However, counsel did not address us on sentencing practices in overseas jurisdictions. Our own research has revealed that sentencing levels in comparable jurisdictions vary according to the ingredients of the particular offence in each jurisdiction, the maximum penalty provided by the relevant legislation and comparisons with sentencing for other offences. Ultimately we have adopted the same approach as that taken in Mako at [32] where the Court said:
The actual sentencing levels adopted in Australia, the United Kingdom and Canada must be looked at in light of the different maximum sentences and the different systems of administration of custodial sentences. We have not attempted to draw any conclusions in respect of sentences actually served in each jurisdiction. We do not have the necessary information to enable us to do so, nor do we see it as the role of this Court.
Should overall sentencing levels be increased?
[19] Mr Pike provided us with statistics taken from a Ministry of Justice report, Conviction and Sentencing of Offenders in New Zealand: 1994 to 2003, Ministry of Justice 2004, (last accessed 30 June 2005).
[20] Table 2.7 of that report shows that convictions for violent offences generally decreased between 1995 and 2002 (from 16,714 to 14,427), before increasing in 2003 to 15,334. However, the categories of grievous assault, serious assault and threaten to kill/do grievous bodily harm all showed increases in the period between 1994 and 2003. In the case of the 'threaten to kill/do grievous bodily harm' category, the increase was from 518 convictions in 1994 to 777 convictions in 2003, an increase of 50%.
[21] These statistics do not provide a basis for concluding that sentencing levels for offences of serious violence overall must be increased (or, for the matter, decreased). The difficulty with the statistics is that they do not provide a basis for detailed analysis, because of the broad categorisations used. It is also unclear how much the increase in convictions for more serious assaults reflects changes in the policy adopted by prosecutors to charge assault offenders with more serious charges. The fact that the increase in convictions for serious violence coincides with a corresponding decrease in convictions for less serious violence suggests that this factor may have some influence on the figures.
Change of approach
[22] That is not to say that there is no need for any change in sentencing approach. We accept Mr Pike’s submission that the Hereora approach has an unduly and unintended confining or constricting influence in cases of serious and gravely serious GBH offences. In essence, Mr Pike’s submission was that Courts have been unwilling to place serious cases in category three of Hereora and that, in any event, Hereora provides for sentences of up to 12 years imprisonment for category three offending, when the maximum penalty is 14 years. He said both of these factors had the effect of inappropriately limiting sentencing options and lowering sentences for very serious offending below an appropriate level.
[23] In support of that submission Mr Pike provided an analysis of the sentencing decisions of this Court in relation to GBH offences since 1998. Sixty-six appeals of that type have been determined in that period, and in only five cases has a term of imprisonment of eight years or more been imposed. Thirteen offenders were sentenced to six years imprisonment and 11 to four years imprisonment.
[24] We accept Mr Pike’s point that category three of Hereora, which called for sentences of up to 12 years imprisonment for the most serious cases, is now out of step with the requirements of the Sentencing Act. In particular, s 8(c) requires the Court to impose the maximum penalty described for the offence if the offending is within the most serious of cases (unless the circumstances of the offender make that inappropriate). Thus, for the most serious GBH offences, a starting point of 14 years is now required. Similarly, under s 8(d) a starting point of close to 14 years is required if the offending is “near to the most serious of cases” of GBH offences. The requirements of s 8(c) and (d) must be given proper recognition, and the guidelines in this judgment are intended to ensure that occurs.
[25] That requires adjustment of sentencing levels for the most serious of offences, which expands the range of sentences for GBH offences at the top end. That will have the effect of extending the range of sentencing options for all serious GBH offences, which will permit the setting of higher starting points for more serious GBH offences than previously. However, it should not affect starting points for GBH offending at the lower end of the spectrum of seriousness.
Factors relevant to the setting of the starting point
[26] GBH offences can vary substantially in seriousness in terms of both the level of culpability of the offender and the extent of the consequences for the victim. However, it must be recognised that any GBH offence involves very serious offending. This is reflected in the 14 year maximum term. An offender will be convicted only if he or she has acted with an intention of inflicting really serious harm to the victim, and has actually caused harm of that gravity, or wounded, maimed or disfigured the victim. The statistics presented by the Crown reflect a problem of serious and often mindless violence which is a matter of widespread and continuing concern within the community.
[27] Almost all GBH offences will involve a high degree of criminality (and significant injury to the victim) which will require the imposition of a term of imprisonment. It will be only in exceptional cases that a starting point of less than three years imprisonment will be appropriate: for example where the sentencing Judge considers the offending, while technically falling within s 188(1), involves culpability at a level which may have been better reflected in a lesser charge. Some recognition of different approaches to the exercise of prosecutorial discretion in different parts of the country may be needed.
[28] Setting the appropriate starting point for sentencing will involve an assessment of a number of features which add to or reduce the seriousness of the conduct and the criminality involved. As this Court noted in Mako at [34], it is the particular combination of those variable features which requires assessment for sentencing in each case. And at [35], the Court went on to say:
the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgment calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed.
[29] As the Court did in Mako, we propose to set out a number of factors which will bear on the assessment of the appropriate starting point and, in the context of GBH offending, the appropriate sentencing band.
[30] We do, however, emphasise that a sentencing Judge needs not only to identify such factors, but also to evaluate the seriousness of a particular factor. For example premeditation is identified as a factor, but it may vary in particular cases from full scale planning and orchestration of a concerted vicious attack to a period of a few minutes or so after a perceived slight during which the offender decides to take revenge. The evaluative task is an important aspect of sentencing: without it, there would be a danger of a formulaic or mathematical approach to the assessment of sentencing starting points.
Matters contributing to the seriousness of GBH offending
[31] We now turn to the features of offending which will be seen to contribute to the seriousness of the conduct and criminality involved in a GBH offence. We reiterate that the sentencing Judge will need to consider the combination of factors applying in a particular case, when assessing the appropriate sentencing band and the starting point within that band. The factors which we highlight are:
(a)Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.
(b)Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence. This reflects s 9(1)(i) of the Sentencing Act.
(c)Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki, Mr Snell, argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double count the level of violence inflicted and the seriousness of the injuries which result from it.
(d)Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public, where, for example, a firearm is fired indiscriminately in a public place.
(e)Attacking the head: Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.
(f)Facilitation of crime: Where a GBH offence involves the use of violence to facilitate the commission of another offence (for example rape) that will also be seen as an aggravating factor. That would not apply in the case of an offence under s 191(1), where this factor is an ingredient of the offence.
(g)Perverting the course of justice: Similarly, where violence is used in an attempt to pervert the course of justice (for example stopping a person from making a complaint or testifying, or punishing a person for doing so), that will be an aggravating factor.
(h)Multiple attackers: The greater the number of attackers and the greater the disparity between the number of the attacking group and the victim group, the greater the culpability will be.
(i)Vulnerability of victim: Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(f) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.
(j)Home invasion: Where the offending involves the invasion of the sanctity of the home, this will be a particularly important factor. Section 9(1)(b) of the Sentencing Act applies. As this Court noted in R v McLean [1999] 2 NZLR 263 at 266, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person's house is to be treated as an aggravating factor calling for a higher sentence.
(k)Gang warfare: This factor was specifically identified in Hereora at 170 and in Mako at [49]. Where serious violence is perpetrated by members of a criminal gang or organised crime cartel, that would be a further aggravating feature.
(l)Public official: Where the victim is a law enforcement officer or other public official (such as an ambulance officer or fire fighter) carrying out his or her duties, that will be a serious additional aggravating factor.
(m)Vigilante action: Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.
(n)Hate crime: Where the attack is inspired by racism, homophobia or hostility to any other group, that may also constitute an additional aggravating factor. Section 9(1)(h) of the Sentencing Act applies.
Matters reducing the seriousness of GBH offending
[32] Matters which may be seen as leading to lower starting points are:
(a)Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.
(b)Excessive self defence: Similarly, where a party has acted out of self defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.
Matters which should not be seen as reducing the seriousness of GBH offending
[33] To avoid any doubt, we mention that there are some factors which are sometimes said to reduce the seriousness of conduct, but which, in our view, should not be seen in that light. We place the following factors in this category:
(a)Domestic situation: The fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a women or child, where the vulnerability of the victim is a significant factor.
(b)Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: Clotworthy at 659. That is not, however, to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest.
(c)Intoxication: The fact that an offender is under the influence of alcohol or drugs at the time of the offending will not be a mitigating factor: s 9(3) of the Sentencing Act.
Bands
[34] Bearing in mind those factors, we now describe the proposed sentencing bands for GBH offending. We emphasise again that these are ranges of starting points, not final sentences. The bands are:
(a)Band one: 3-6 years;
(b)Band two: 5-10 years;
(c)Band three: 9-14 years.
[35] While these are similar to the Hereora categories, there are some differences. In particular:
(a)The need to reflect the legislative policy in s 8(c) and (d) of the Sentencing Act requires that the highest band provide for a starting point of 14 years for the most serious of cases;
(b)We have provided for some overlap in the margins of the bands, to reflect the fact that categorising GBH offending is an evaluative exercise involving the exercise of judgement, rather than a formulaic categorisation of criteria. We are endeavouring to maintain a degree of flexibility which appears to be missing from the Hereora categories.
(c)We have extended the upper limits of each of the bands, reflecting the extension of the upper limit of the highest band to 14 years, and the need to accommodate the overlapping between the bands. This is not, however, intended to indicate a desire to increase sentencing levels for lower level offending. Rather, it broadens the sentencing discretion within each of the bands, allows for the application of ss 8(c) and 8(d) for the most serious offending and broadens the range of sentencing options for offending involving very serious violence or injury or where other factors require that the offending be regarded as at the serious end of the spectrum of GBH offences.
Band one
[36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at [27] above. Where none of the aggravating factors referred to in [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.
[37] The following examples may assist with the application of the above principles:
(a)Street attack: Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated. On the other hand, where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim;
(b)Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.
Band two
[38] This band will be appropriate for GBH offending which features two or three of the aggravating factors referred to in [31] above.
[39] The following examples may assist in the application of that principle:
(a)Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required;
(b)Assault on Police officer: A GBH offence involving an attack on a Police officer in the course of his duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required;
(c)Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.
Band three
[40] Band three would normally encompass serious offending which has three or more of the aggravating features referred to in [31] above, where the combination of aggravating features is particularly grave.
[41] The following examples may assist:
(a)Serious concerted street attack: An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they have brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of Band 3. Where the victim is particularly vulnerable, or the attack has “hate crime” aspects to it, a higher starting point would be required. Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of Band 3 will be called for.
(b)Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 range may well be required;
(c)Serious attack on Police: Where an assault on a Police officer by multiple attackers with weapons leading to a life-threatening injury, a starting point at or near the 14 year maximum may be called for.
Flexibility
[42] As the Court noted in Mako, these illustrations are intended for guidance only, and to minimise the need to refer to the large number of earlier sentencing decisions. But the suggested bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that. As indicated at [30] above, sentencing Judges will also need to exercise judgement in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. However, there is no requirement to draw fine distinctions: Solicitor-General v Lam (1997) 15 CRNZ 18 at 25.
[43] To achieve the objective of greater consistency, it will be necessary for sentencing Judges to articulate in a transparent way the basis on which they have determined the appropriate band, and the factors which have guided their assessment of the starting point. It will be important that the starting point is identified before attention is turned to the personal circumstances of the offender, because the starting point will provide the basis for assessing the consistency of one case with another.
Circumstances of the offender
[44] Once a starting point has been determined in accordance with the above criteria, it is then necessary to determine whether the aggravating or mitigating factors relating to the offender’s particular personal circumstances require that the actual sentence should be higher or lower than the starting point. This involves consideration of the factors mentioned in ss 8 and 9 of the Sentencing Act which relate to the offender, as opposed to the offending, as well as any other matters relevant to the personal circumstances of the offender. The most significant mitigating factor will normally be an early guilty plea, for which a substantial reduction from the starting point will normally be justified. Other examples are given in Mako at [62] and [65]-[66], but the list is not exhaustive.
[45] While mental illness or disorder of an offender may be a mitigating factor, this will not always be so: as this Court noted in R v Clarke CA225/98 3 September 1998, it is proper to treat any suggestion of diminished responsibility by reason of psychiatric or behavioural disorder with caution. Obsessiveness on the part of a former spouse or partner, who assaults and badly injures his or her former spouse or partner may in some cases be attributable to a mental illness or disorder. Whether that is the case will be a matter for expert evidence. If it is not, it cannot be a mitigating factor. Even if it is, it should not necessarily be seen as a mitigating factor. Indeed, an obsessive disorder manifesting in violence may require a deterrent and protective, rather than a mitigated response.
Other sentencing principles
[46] None of what we have said above derogates from the need to apply the principles of the Sentencing Act to each case. For example, in cases of multiple offending the provisions relating to cumulative and concurrent sentences (ss 83 and 84) and the totality principle (s 85) will come into play.
Minimum periods of imprisonment
[47] Counsel for the various appellants all made submissions against the imposition of minimum periods of imprisonment under s 86 of the Sentencing Act.
[48] Mr King submitted that it was illogical that, under the tests set out in R v Brown [2002] 3 NZLR 670, the seriousness of the offending was considered both in determining the length of the finite sentence and, where the case was sufficiently serious, the minimum period of imprisonment. In support, he cited the decision of this Court in R v Rongonui CA321/00 9 May 2001, which dealt with s 80(4) of the Criminal Justice Act 1985, as amended in 1993. In that case, the Court held that the focus of s 80(4) was on the protection of the public, and that a minimum non-parole period (extending the then standard parole period of two-thirds of the finite term) could be imposed only if the case was sufficiently serious in a public safety sense. Mr King submitted that this Court should interpret s 86 in a similar way, and determine that minimum periods of imprisonment be used very sparingly and be limited to cases where the normal principles of denunciation, punishment and deterrence cannot be achieved through a long finite sentence.
[49] In a similar vein, Mr Snell suggested that the imposition of minimum periods of imprisonment applying the test in Brown led to an effective re-sentencing of the offender and could lead to the double calculation of aggravating features. He argued that the imposition of a three year minimum period of imprisonment on Mr Taueki had, in effect, turned his six year sentence into a nine year sentence.
[50] That submission assumes that, in the absence of a minimum period of imprisonment, all offenders sentenced to six years imprisonment will be released at the date on which they first become eligible for parole (after serving two years) and that all offenders sentenced to nine years imprisonment will similarly be released after serving three years. Neither assumption is correct. An offender found guilty of intentionally inflicting serious violence may be seen to still constitute a risk to the public after serving one third of his or her sentence, in which case parole could not be granted. For such an offender, the effect of a minimum period of imprisonment would be to deprive him or her of the opportunity to seek parole after serving one third of his or her sentence. But it may have little or no effect on the time he or she actually serves in prison.
[51] Section 86 was amended by the Sentencing Amendment Act 2004. Prior to the amendment, s 86(2) empowered the Court to impose a minimum period of imprisonment if the circumstances of the offence were sufficiently serious to justify a minimum period longer than the standard period of one-third of the final term provided in s 84(1) of the Parole Act 2002. Section 86(3) said that the “sufficiently serious” threshold would be met if the circumstances took the offence “out of the ordinary range of offending of the particular kind”.
[52] However, s 86(2) following the 2004 Amendment removes any reference to the “sufficiently serious” test. Now the Court must simply satisfy itself that the one-third period provided for in s 84(1) of the Parole Act is insufficient for the purposes of accountability (punishment), denunciation and deterrence, or to protect the community from the offender. Parliament has therefore given legislative force to the test set out in this Court’s decision in Brown, but has also added a new factor: protection of the community. This new factor overrides the observation in Brown at [22] that it was unnecessary for the sentencing Court to assess at the time of sentencing, as the primary focus, the safety of the community in the period commencing after one third of the sentence has been served. In addition, Parliament has removed altogether the requirement in the original s 86(2) and (3) that offending be out of the ordinary range of offending.
[53] In our view, the criticism that the imposition of a minimum period of imprisonment leads to resentencing or double counting of aggravating features is unsustainable in the light of the current wording of s 86(2). The Sentencing Act contemplates a two stage process, involving the setting of the nominal (maximum) sentence as the first stage, and undertaking the exercise required by s 86 (where it is applicable) as the second stage: Brown at [35].
[54] That second stage itself requires a sentencing Judge to address two questions. The first is whether a minimum period of imprisonment should be imposed. If that question is answered affirmatively, it is then necessary to address the second question – how long should the minimum period be?
[55] The primary focus of the first question is the statutory test in s 86(2), as set out at [52] above. As this Court recently noted in R v Walsh CA281/04 19 May 2005 at [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in 7(1): s7(1)(a), (e), (f) and (g). The question before the Court is whether serving one third of the nominal sentence is insufficient for all or any of those four purposes. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent that they are relevant to those four purposes. For example, as the Court noted in Walsh at [26] - [28], a guilty plea may be relevant to the deterrence purpose (if the plea demonstrates insight into the offending) but may have little relevance to the community protection purpose.
[56] Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term: Brown at [34]. The setting of the minimum period of imprisonment requires similar analysis to that required for setting the nominal sentence. The factors in ss 8 and 9 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake: Brown at [36].
[57] In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon. It needs to be remembered that the standard parole period for offending of this kind at the time of the decision in Hereora was two-thirds of the finite term. That was reduced to one-third by s 84(1) of the Parole Act. The imposition of a minimum period of imprisonment, even to the maximum extent permitted under s 86, would reinstate the two-thirds period. That is a quite different context from Rongonui, where the Court was being asked to increase the then standard two-thirds period to a greater period, and where the relevant statutory provision made it clear that it was anticipated this would happen only in the very gravest of cases. As this Court noted in Brown at [21], the views expressed in Rongonui are no longer apt in the present legislative context.
[58] In Brown, this Court said at [34] that, once it has been determined that a minimum period of imprisonment should be imposed, “It will be wrong simply to go to the point of two-thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender”. We endorse that comment. But we add the observation that, if, after that careful review, the sentencing Judge considers that a minimum period of imprisonment of two-thirds of the sentence is appropriate, then he or she should impose such a minimum period. There is no presumption against the imposition of a minimum period of imprisonment of two-thirds of the sentence, and no reason for inhibition about imposing such a minimum period in appropriate cases, particularly where, as in the present context, offending involves the intentional infliction of serious injury.
Leave to apply for home detention
[59] We envisage that cases where the sentence imposed for a GBH offence is two years imprisonment or less will be rare. So it is unlikely that a Court will be called upon to determine whether leave should be given to apply for home detention except in unusual cases. We reiterate the point that GBH offences involve very serious offending. In all but exceptional cases we would expect the offender to serve a prison term, and that that term would be served in prison.
Replacement of Hereora
[60] This judgment is intended to supersede Hereora. The approach set out in this judgment should now be adopted in sentencing offenders for GBH offences instead of recourse to the approach outlined in Hereora. In that regard, we reiterate our observations at [11] above.
THE APPEALS
[61] We now turn to the individual cases which are before us. They are:
(a)CA384/04 – Jason Taueki: Mr Taueki appeals against his sentence of six years imprisonment (with a minimum period of imprisonment of three years) imposed by Judge Adeane in the District Court at Napier after he pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm and to a number of lesser offences for which he received lesser concurrent sentences;
(b)CA417/04 – Shawn David Ridley: Mr Ridley appeals against a sentence of ten years imprisonment (with a minimum period of imprisonment of six years) imposed by Judge Erber in the District Court at Christchurch after he pleaded guilty to one charge of wounding with intent to facilitate the commission of a crime under s 191(1)(a) of the Crimes Act and one charge of aggravated burglary;
(c)CA434/04 – Richard Puna Roberts: Mr Roberts appeals against his conviction for causing grievous bodily harm with intent to cause grievous bodily harm and against the sentence of eight years imprisonment (with a minimum period of imprisonment of five years) imposed by the trial Judge, Judge MacLean in the District Court at Hamilton.
Approach
[62] We propose to adopt the same approach as that adopted by this Court in Mako, where the Court set out guidelines for sentencing for aggravated burglary. In that case the Court dealt with the appeal before it on the basis of the law as it stood at the time, and then set out guidelines for aggravated robbery sentences in the future. The Court said at [21] that it did this because:
It might give the appearance of unfairness to the respondent [Mako] to formulate revised guidelines for sentencing in aggravated robbery cases and then to apply them in his case.
Mr Taueki
[63] Mr Taueki pleaded guilty to a charge of causing grievous bodily harm with intent to cause grievous bodily harm, two charges of assault under s 196 of the Crimes Act, one charge of dangerous driving, one of failing to stop and one of failing to ascertain under the Land Transport Act. He was sentenced to six years imprisonment with a minimum period of imprisonment of three years. He appeals on the basis that the sentence was manifestly excessive.
Facts
[64] Mr Taueki entered without invitation the house of his former partner and three children at 4.00am. His former partner, on becoming aware that there was an intruder in the house, picked up a vacuum cleaner pipe for self defence before confronting Mr Taueki who grabbed it and attacked her with it. Mr Taueki struck her across the face around three times, after which she fell to the floor. He struck her a further six or seven times in the head and face. The 14 year old son of Mr Taueki and his partner witnessed the whole attack and tried unsuccessfully to protect his mother.
[65] On hearing the commotion, members of the victim’s extended family came from a nearby dwelling. The victim’s father protested, whereupon Mr Taueki attacked him by way of punches to the head. Mr Taueki then climbed into a car and drove away.
[66] Police officers later found Mr Taueki in his car. They directed him to stop; he failed to do so and began to drive erratically and then dangerously. The episode ended when Mr Taueki collided with a Police car and then with another car. Mr Taueki then abandoned his car and ran until he was captured by the combined efforts of three constables, one of whom Mr Taueki assaulted.
Sentencing remarks
[67] The sentencing Judge noted the serious injuries sustained by the victim. The victim suffered fractures of her jaw, cheek bone and eye socket. Her nose was broken, she had extensive facial bruising and lost some teeth. At the time of sentencing she had blurred vision which had been a problem for some time and was expected to continue. She would require a complete reconstruction of her jaw bones. In the meantime she had difficulties eating. The sentencing Judge also referred to the non-physical injuries – losing the security of her home, no longer being able to play sport, which was previously important to her, fears for her and her children’s safety. As well their son had suffered from being forced to witness the attack.
[68] Mr Taueki had a modest criminal history, but which notably included three convictions for assault of a female, in each case this same victim. The present offending occurred when Mr Taueki had just finished a term of supervision for a previous offence.
[69] Judge Adeane considered Hereroa and determined that, in view of the number of aggravating features, the offending fell within category two (5-8 years) and the correct starting point was eight years.
[70] The only mitigating factor was Mr Taueki’s guilty plea for which a two year discount was given. Given that the Judge treated certain of the other offences as aggravating features of the principal grievous bodily harm charge, the sentences would be concurrent.
[71] Judge Adeane went on to express the view that Mr Taueki showed an alarming propensity for domestic violence. The consequences for the victim would be long lasting if not permanent and the degree of culpability attributed to Mr Taueki must therefore be very high. He concluded that this was an appropriate case for the imposition of a minimum period of imprisonment, which he fixed at three years.
Submissions for Mr Taueki
[72] For Mr Taueki, Mr Snell said the sentencing Judge failed properly to apply the principles set out in Hereora. He argued the offending fell within category one of Hereora or, alternatively, at the lower end of category two. He submitted that a starting point of five to six years, rather than eight years would have been appropriate.
[73] Mr Snell also submitted that the sentencing Judge failed to take into account a number of features of this case that lessened the overall seriousness of the incident. In particular he highlighted the following:
(a)The offending was impulsive, occurring on the spur of the moment with no planning or premeditation;
(b)Mr Taueki did not himself take the weapon to the place of offending;
(c)While Mr Taueki was not entitled to enter the victim’s home, he had been maintaining an ongoing relationship with his children who lived at the address, and had on a reasonably regular basis been sleeping in his car outside the address;
(d)The factors treated as aggravating by the sentencing Judge, when thought of in the context of other cases, did not lift this case into category two of Hereora. In particular, victim association with the offender is commonplace and the infliction of very serious injuries is inherent in the offence itself.
[74] Mr Snell said there were many cases involving offending of a very similar nature to this case, in which the offenders received a term of imprisonment of less than six years. He referred us to those cases.
[75] Mr Snell also took issue with the imposition of a minimum period of imprisonment on Mr Taueki. He said the decision to impose a minimum period of three years was inappropriate in the circumstances and the imposition of such a minimum period effectively re-sentenced Mr Taueki on the same grounds that the Judge identified in setting the finite sentence. That meant that the effective sentence was the same as a nine year finite term of imprisonment.
Submissions for Crown
[76] Mr Pike submitted that this was a case that involved offending more serious than an impulsive act of violence using a weapon to cause serious injury. He cited the following features of the offending:
(a)The crime was committed in the context of entry into a house at night by a person who was no longer authorised to be there;
(b)The violence was “impulsive” only to a point. There was sustained brutality. One or two blows might be described as impulsive but that is all;
(c)The physical disparity between the parties and the victim’s status of mother to Mr Taueki’s children added to the gravity;
(d)The nature and extent of the injuries inflicted was aggravating, particularly the seemingly indefinite damage to the victim’s eyesight;
(e)The other offending added to the criminality of what Mr Taueki did;
(f)Mr Taueki had twice previously been convicted for assaulting the same victim.
[77] Mr Pike said the sentence was justified on an application of Hereora, and would also be justified on the revised approach to sentencing advocated by the Crown in this case.
Discussion
[78] We have no doubt that the Judge was correct to place the offending in this case within category two of Hereora. Although the first one or two blows with the vacuum cleaner pipe may have been impulsive, the fact is Mr Taueki engaged in a sustained attack on the victim. We do not therefore accept that the present offending could be described as an impulsive act of violence, and it would not therefore be appropriate to place it within category one of Hereora.
[79] The Judge placed the offending at the very top of category two. While that was at the upper end of the available sentencing range, we are not satisfied that the Judge was wrong in his assessment. This case involved serious violence and serious and lasting injuries, and the fact that the offending took place in the victim’s home was an aggravating factor. Further, the Judge had to bring to account the other offences for which Mr Taueki was convicted to ensure the sentence reflected the totality principle.
[80] There was no real dispute that the credit the Judge gave for the mitigating factor (Mr Taueki’s guilty plea) was appropriate. Accordingly, the appeal against sentence must fail.
[81] We do not accept Mr Snell’s submission that a minimum period of imprisonment was inappropriate in this case. The Judge correctly proceeded on the basis set out in Brown. Mr Taueki’s offending pre-dated the 2004 amendment to s 86 of the Sentencing Act, which came into force in July 2004.
[82] In our view, the serious nature of the assault in this case, including the level of violence and the serious injuries inflicted, the fact that the offending involved home invasion, the vulnerability of the victim and the fact that the offending was witnessed by a child are factors which took this offending outside the ordinary range of offending, and justified the imposition of a minimum period of imprisonment. Having regard to those aggravating factors, but giving appropriate recognition to the mitigating factor of the guilty plea, a minimum period of three years, being half of the nominal sentence, was unexceptional.
Result
[83] Mr Taueki’s appeal against sentence is dismissed.
Mr Ridley
[84] Mr Ridley was charged with wounding with intent to facilitate crime and aggravated burglary. He pleaded guilty to both charges.
Facts
[85] Mr Ridley was staying in a backpackers' lodge near Punakaiki. He saw the victim, a 68 year old American tourist and his wife leave their room in the lodge to go for a walk. Armed with a sharp steak knife, he entered their room through a window. He began rummaging through the couple’s belongings. The victim returned to the room unexpectedly. Mr Ridley picked up the knife and stabbed him in the shoulder. The victim fell to the ground. Mr Ridley shut the door and then stabbed the victim’s chest several more times. The victim tried to fend Mr Ridley off, and his index finger was almost severed.
[86] Mr Ridley then aimed for the victim’s head and eyes, inflicting serious cuts to the victim’s face. One of the blows was so severe that the victim lost consciousness. Two other tourists heard what was going on and broke into the room. They prevented further injury.
[87] Mr Ridley ran away and was located soon after by the Police. He then co-operated with the Police. He said he was looking for money and took the knife with him when he entered the victim’s room in case he was disturbed.
[88] The impact on the victim has been severe. He has lost dexterity in his hands and shoulder, has facial scars, and cannot undertake the leisure activities he enjoyed previously.
Sentencing remarks
[89] The Judge noted submissions concerning the Hereora tariffs, but indicated that the matter needed to be considered in the light of the Sentencing Act. He concluded that the offending was caught by the most serious category of cases under s 8(c) of the Sentencing Act, for which a penalty close to the 14 year maximum was justified.
[90] In regard to aggravating factors, the Judge noted that the harm inflicted was very serious and that, had Mr Ridley not been stopped, more injuries would have been inflicted. Mr Ridley was unlawfully in the victim’s room and the burglary was planned, in that Mr Ridley waited until they left before entering the room. The mitigating features were Mr Ridley’s guilty plea, which meant that the victim and his wife did not have to return to New Zealand to give evidence, his co-operation with Police, and the apparent impact of the early onset of schizophrenia. A medical report presented to the Judge indicated that it was likely that Mr Ridley had early symptoms of schizophrenia, and that this contributed to the offending.
[91] The Judge considered that had Mr Ridley gone on to kill the victim he would have faced a lengthy sentence well into double figures. He took the 14 year maximum term as his starting point, and discounted to ten years in light of Mr Ridley’s guilty plea, and the early onset of schizophrenia. This reflected the totality of the offending.
[92] The Judge noted that Mr Ridley’s counsel conceded that a non-parole period was appropriate, and imposed a six year non-parole period. This included a reduction from the statutory maximum of two thirds of the sentence because of the mitigating factors.
Submissions for Mr Ridley
[93] For Mr Ridley, Ms Bulger submitted that a lesser effective sentence, with no minimum period of imprisonment, would have been sufficient to satisfy the principles and purposes of sentencing outlined in ss 7, 8 and 9 of the Sentencing Act.
[94] More specifically Ms Bulger submitted that the sentencing Judge erred in adopting a starting point of the maximum penalty available for the offence. She said that, by relying on s 8(c) of the Sentencing Act in setting the starting point, the Judge set a starting point higher than the effective sentences outlined for category three of Hereora, namely 8 to 12 years imprisonment. This meant that the sentence was out of line with other sentences imposed in similar cases. She said that the present case could not properly be said to be a case in which it was appropriate to impose the maximum sentence available, as it was not within the category of most serious cases for which the penalty is prescribed (as is required by s 8(c)). Instead it was appropriate that the case be placed within category two of Hereora meaning an effective sentence of five to eight years imprisonment.
[95] Ms Bulger also submitted that s 8 requires the sentencing Judge take into account the general desirability of consistency of sentencing, and that the Court impose the least restrictive outcome considered appropriate in the circumstances. In this regard, several cases were cited which counsel submitted involved significantly worse offending than in this case, but have received lesser sentences: R v Burns and Burns CA247/04; CA249/04 26 November 2004; R v Pairama HC WHA CRI 2004-027-001248 2 November 2004; R v Wali Javad Allahyai HC AK CRI 2003-092-026846 13 August 2004.
[96] Ms Bulger contended that the Judge overstated the aggravating features in arriving at what he considered to be the appropriate starting point (the maximum sentence available) and in doing so failed to take into account in any meaningful way the combined effect of mitigating features, principally the early guilty pleas and the mental health of the offender.
[97] Ms Bulger said the imposition of a minimum term of imprisonment was neither necessary nor justified in this case, and was proportionately too long.
Submissions for the Crown
[98] Mr Pike questioned Ms Bulger’s arguments made by analogy to other cases involving grievous bodily harm. He submitted that the problem with surveying sentencing patterns is that they disclose a wide variation of approaches to serious cases involving the infliction of grievous bodily harm. He said the attack involved the ambush of the victim in his own lodgings with an episode of brutal and protracted stabbing that left the victim with permanent disabilities affecting his future quality of life. This justified the Court in moving towards the maximum penalty, modified downwards by the circumstances of the offender.
[99] In regard to aggravating and mitigating factors Mr Pike argued that s 9(1)(a), (b), (d), (i) and arguably (e) of the Sentencing Act apply. He submitted that entering a room with intent to steal and being equipped with a knife to deal with any disturbance were significant aggravating factors.
[100] Mr Pike said the Judge had taken into account the matters raised in counsel’s submissions regarding Mr Ridley’s mental health and had applied the correct principles. Mr Pike submitted that it was impossible to say whether Mr Ridley’s understanding was ‘diminished’ (s 9(2)(e)) by any pre-psychotic state in which he might have been. The Crown submitted that, in regard to certain medical reports, such a conclusion of diminished understanding could not be reached.
[101] Mr Pike submitted that the imposition of a minimum period of imprisonment was properly open to the Judge.
Discussion
[102] The essential issue in this appeal is whether the Judge was justified in adopting a 14 year starting point. This Court said in Hereora that offending with serious aggravating features could justify the imposition of terms of imprisonment between 8 and 12 years, but as the sentencing Judge noted, that was before the Sentencing Act and, in particular, s 8(c) directed the Court to impose the maximum term for the most serious cases.
[103] In our view, the Judge was wrong to place the present offending in the category of “the most serious of cases for which [the] penalty is prescribed”. We accept the aggravating features, particularly the level of violence, the serious and ongoing consequences for the victim, the invasion of the temporary home of the victim and the entry into those premises with a knife are sufficient to bring this offending within category three of Hereora, and also to call for the application of s 8(d) of the Sentencing Act, which applies to offending “near to the most serious of cases”. But we do not think this was offending “within the most serious of cases” of wounding with intent to cause grievous bodily harm, and therefore do not consider that s 8(c) applied. For that reason, we do not think a starting point of more than 12 years was called for. Placing the offending at the top of category three of Hereora still reflects the Court’s condemnation of Mr Ridley’s behaviour and meets the requirements of s 8(d). That is confirmed by comparative rarity of sentences of this magnitude in the recent past: see [23] above.
[104] In reaching that conclusion, we have given weight to the fact that, while the robbery was planned, the attack on the victim was not, itself, premeditated. Of course, Mr Ridley had a knife with him, which he must have intended to use if disturbed, and this is an aggravating factor. But in our view, the circumstances of this case are less serious than a case of entry into a dwelling knowing the occupants are there, with the intent to rob, and to use violence or the threat of violence to do so.
[105] We see no reason to question the Judge’s treatment of Mr Ridley’s mental health as a mitigating factor, despite the questioning of that by Crown counsel. And the Judge was correct to give particular weight to the early guilty plea and Mr Ridley’s co-operation with the Police. We believe that the allowance of four years was appropriate for those factors, and do not propose to adjust it, despite our lower starting point.
[106] Accordingly, we believe the sentence in this case ought to have been eight years imprisonment.
[107] We now turn to the question of the minimum period of imprisonment. In our view the offending in this case was sufficiently serious to call for the imposition of a minimum period of imprisonment. Applying the test in Brown (Mr Ridley’s offending also pre-dated the 2004 amendment to s 86), we conclude that the very serious violence inflicted and the terrible consequences for the victim are such that release from prison after one-third of the term served would not provide sufficient denunciation, deterrence and punishment for the offending. Having regard to the aggravating factors already referred to, and taking into account the significant mitigating factors, we conclude that a minimum period of imprisonment of five years is appropriate in this case.
Result
[108] Mr Ridley’s appeal against sentence is allowed, and the sentence imposed in the District Court is quashed. In its place we impose a sentence of eight years imprisonment for both the aggravated burglary and aggravated wounding charges, with a minimum period of imprisonment of five years.
Mr Roberts
[109] Mr Roberts was charged with one count of wounding with intent to cause grievous bodily harm and one count of wounding with intent to injure. He was convicted on the former count only and sentenced to eight years imprisonment, with a minimum period of imprisonment of five years. He appeals against both conviction and sentence.
Facts
[110] Mr Roberts, a 23 year old man, became involved in an altercation with the victim outside a bar in Hamilton in the early hours of the morning. This resulted in the count on which he was convicted. The victim was also a young man, who was described by a witness as “muscley” and athletic. During the assault, the victim was seriously injured and eventually became unconscious. He was unable to defend himself. The assault, however, continued until Mr Roberts was dragged off the victim by his associates. The victim did not give evidence at trial, having left New Zealand. He sustained extremely serious injuries. The reason for the altercation was not established at trial, but it may have been that the victim had attempted to encourage Mr Roberts to desist from another assault.
[111] On being taken to the Police Station Mr Roberts punched the constable processing him. That was the basis of a wounding with intent to injure charge, on which a hung jury resulted. Self defence was before the jury on that count.
Rulings and Sentencing Remarks
[112] The defence had sought a direction under s 368(2) of the Crimes Act that a Mr Williams be called by the Crown. He had given evidence at depositions that the accused had, in the aftermath of the incident, come running towards his car and that they had driven to another address. His depositions evidence did not mention the fight having occurred. The witness was overseas and could not be produced. The Judge did not consider his evidence particularly probative and refused to make the order. He also said that, as the Crown had withdrawn its consent to the evidence being read when the defence indicated it wished to cross-examine him, there was no longer sufficient consent for the brief simply to be read.
[113] The Judge also ruled on whether self defence should have been put to the jury. He followed R v Bridger [2003] 1 NZLR 636, holding that if there was any basis for self defence it should be put before the jury. He noted a consensus in the evidence that Mr Roberts continued to kick the victim while he was unconscious. There was no evidence to contradict that, only a denial of any involvement at all, so there was no basis for the jury to consider self defence.
[114] In sentencing, Judge MacLean referred to Hereora, and concluded that the case fell within category two, at least. Counsel for Mr Roberts submitted that the aggravating features did not put the case at the upper end of category two. The Judge however said that the attack was a callous, brutal and highly aggressive beating of a man who quickly became helpless. Whatever caused the altercation, the latter stages of it made the case very serious. The Judge considered that there were no relevant mitigating factors and therefore imposed an eight year sentence. The Judge concluded that the seriousness of the offending required a minimum period of imprisonment of five years.
Submissions for Mr Roberts
(i) Conviction
[115] For Mr Roberts, Mr King claimed a miscarriage of justice and appealed against conviction on three grounds:
(a)That the complainant did not give evidence (having elected not to return to New Zealand): the jury was thus not able to properly assess how the fight started or progressed especially given there was varying evidence as to what happened, and counsel for Mr Roberts was precluded from cross-examining the complainant in respect of self defence;
(b)That the evidence of a witness (Mr Williams) was not read to the jury. Mr King submitted that Mr Williams’ evidence contradicted other evidence put to the jury, and that the trial Judge considered the matter too narrowly, not taking into account s 184 of the Summary Proceedings Act 1957; and
(c)That the failure by the trial Judge to allow self defence to go to the jury was wrong in law and fact. It was submitted that on the evidence the altercation between the two men was mutual, and that the Judge disregarded or made only selective reference to evidence that favoured Mr Roberts. It was submitted that there was a sufficient evidential foundation for self defence to be put to the jury.
(ii) Sentence
[116] In relation to sentence, Mr King submitted that the starting and finishing point of eight years imprisonment was not justified. The offending involved no premeditation and occurred within a very short period of time. The altercation started as a mutual fight, and the complainant is expected to make a full recovery. Mr King distinguished Hereora, where the offender received a sentence of six years, on the basis that there was no premeditation here, no actual weapon was used, and one kick to the head was involved. He submitted that this conduct should fall into category one of Hereora, albeit at the upper end of the range. He accepted it was open to the Court to conclude that there were no mitigating factors justifying a reduction from the starting point, but said a starting/finishing point of four to five years imprisonment was appropriate.
[117] Mr King also argued that no minimum period of imprisonment should have been imposed. He said that factors were double counted in a consideration of minimum period because the same factors were considered in both setting the length of the sentence and setting the minimum period. He said that minimum periods of imprisonment should be used very sparingly and limited to cases where the normal principles of denunciation, punishment and deterrence cannot be achieved through a longer finite sentence.
Submissions for Crown
(i) Conviction
[118] In regard to Mr Roberts’ first ground of appeal, Mr Pike submitted that the fact that the complainant did not testify could not materially disadvantage Mr Roberts, and in fact the converse may be true. He said the contentions made on behalf of Mr Roberts regarding evidential inconsistencies were of little significance at the appellate level.
[119] In regard to Mr Roberts’ second ground of appeal, Mr Pike accepted that an order could have been made under s 184(1) of the Summary Proceedings Act to permit Mr Williams’ depositions to be read as evidence for any party. Plainly if trial counsel had wished to have the evidence read treating the deponent as a witness for the defence the Judge could have so ordered. However this was not what the Judge was asked to do: the record discloses that the order sought was for the deposition to be read as part of the Crown case. If that were done the Crown could not effectively impeach the testimony. The Judge was right to categorise the application as akin to a direction to the Crown to call a witness and it was within his discretion to rule that he would not do so.
[120] In regard to the third ground of appeal, Mr Pike submitted that Mr Roberts’ proposition that self defence should have been put to the jury was “wafer-thin”. The Crown in essence submitted that the evidence cited by Mr Roberts was of doubtful persuasiveness. To have allowed self defence to go to the jury would have brought the law into disrepute.
(ii) Sentence
[121] Mr Pike said that Mr Roberts was a dangerously violent man, had earlier convictions for serious violence, and was on parole in relation to a conviction for wounding with intent to injure. He submitted that the principle in R v Ward [1976] 1 NZLR 588 applied.
[122] Mr Pike also submitted that the brutal and protracted violence meted out to the victim, which ceased only because of the intervention of bystanders, and its consequences in sheer physical damage plainly qualified the case in Hereora terms for inclusion in category two, which applies to impulsive acts of violence with seriously aggravating features.
[123] In regard to minimum period of imprisonment, Mr Pike submitted that, under s 86 of the Sentencing Act, the Judge was required to ask whether possible release on one-third of the sentence being served would sufficiently mark out the case for the purposes of deterrence and denunciation. He said the Judge did what was mandated by s 86, and was by an appreciable margin within his available discretion (citing Brown).
Discussion
(i) Conviction
[124] We can see no reason for interfering with a jury’s verdict simply because a complainant did not give evidence. There is no obligation on the Crown to call a complainant to give evidence: indeed in cases of murder or manslaughter that is obviously impossible. Mr King said there was prejudice because the complainant’s brother described the incident differently from the description given by an eye witness, a taxi driver who happened to be parked on the opposite side of the road from the scene of the incident. Mr King said that the complainant’s failure to give evidence might have left the jury with a negative impression of Mr Roberts, but that is mere speculation. He also said the fact that the complainant did not give evidence meant he could not be cross-examined about self defence, which meant there was no opportunity to lay a further evidential foundation for that defence. But Mr Roberts could have remedied that, had he chosen to do so, by giving evidence of his version of events. The Crown would not have been able to contradict that evidence with evidence from the complainant himself.
[125] We conclude that there is nothing in this ground of appeal against conviction.
[126] Mr King’s complaint about the Judge’s ruling preventing the reading of the brief of evidence of Mr Williams is also baseless. As Mr Pike pointed out, the Judge’s ruling responded to the application that was made by defence counsel. The Judge was asked to make an order under s 368(2) directing the Crown to call evidence from Mr Williams, on the basis that this evidence would be read because Mr Williams lived in Australia and was not able to be contacted at short notice. Before the trial, Crown counsel had indicated to Mr Roberts’ trial counsel that Mr Williams’ evidence would not be led if it could not be read. Mr Roberts’ counsel responded by saying that he wished to cross-examine Mr Williams if Mr Williams gave evidence, so he should be dropped by the Crown. Crown counsel was reluctant to have the evidence led as part of the Crown case because there were concerns from the Crown’s point of view as to the reliability of the evidence of Mr Williams who was seen as an associate of Mr Roberts.
[127] Mr King’s argument was that the Judge could have made a direction under s 184(1) of the Summary Proceedings Act admitting the deposition statement of Mr Williams as evidence at the request of the defence. That would have meant that the evidence was part of the defence case rather than the Crown case. The Judge was not asked to do that, and in our view it is not appropriate to revisit the issue on a hypothetical basis in this Court. In the absence of an allegation of radical error on the part of trial counsel for not requesting direction under s 184(1), there is no basis for pursuing this alternative strategy on appeal. Mr King did not suggest that this was a case of radical error by trial counsel, and the matter must rest there.
[128] The last ground of appeal against conviction relates to the decision not to leave self defence to the jury. Mr King’s argument was that the Judge had focused on the evidence from the complainant’s brother and from the taxi driver that the complainant had been kicked while lying on the ground. He said that this did not give sufficient weight to the fact that, in cross examination, the brother had agreed with the proposition put to him by defence counsel that “as [the complainant] was dropping to the ground he got kicked fair and square in the face, didn’t he?”. He said this differed from the other evidence before the jury about the fight, which was to the effect that the complainant had been on the ground unconscious when he was kicked. He said this different view of events justified putting self defence to the jury.
[129] We do not think there is anything in this submission. Even if the jury had accepted that the complainant had been kicked fair and square in the face as he was dropping to the ground, that did not, of itself, raise a self defence issue. There was no indication that Mr Roberts was defending himself when he kicked the victim in the face, whether on the ground or as he fell to the ground. The evidence was that the victim fell to the ground as a result of the severe beating he had taken while on his feet. Whether the kicking was only when the victim was on the ground, or as he was in the act of falling to the ground as a result of the beating he had undergone, the Judge was entitled to reach the view, on the totality of the evidence, that a properly directed jury could not possibly think that the elements of self defence arose.
[130] In any event, the general effect of the Judge’s summing up was that the jury should not convict if it thought the assaults were confined to the fight and the alleged kick as the victim fell, although the Judge did not put that proposition to the jury in such precise terms. In the light of the jury’s decision to convict, it appears the jury accepted the kicking took place while the victim was on the ground. In those circumstances, self defence would have failed even if left to the jury.
(ii)Sentence
[131] The real issue on the sentence appeal is whether the offending fell within category one or category two of Hereora. We are satisfied that the Judge was entitled to find that it came within category two. Although no weapon was used, the attack on the complainant was extremely vicious, and the injuries he suffered were serious: the surgeon who treated the complainant said the injuries were of the kind which one would expect to see from high velocity trauma in a motor vehicle accident requiring major reconstruction. The Judge gave particular weight to the fact that the principal injuries appeared to have been caused by the kick to the head which was inflicted when the complainant was helpless on the ground.
[132] The Judge appears to have taken into account in the categorisation of the offending certain aggravating factors relating to Mr Roberts, particularly the fact that he has 28 previous convictions including four involving violence, and that he was on parole following a term of imprisonment imposed on a previous charge of wounding with intent to injure. These should not have been taken into account in setting the starting point under the Hereora guideline, but rather should have been brought to account as factors justifying an increase from the starting point.
[133] Nevertheless, we conclude that the resulting sentence of eight years was within the sentencing discretion. The offending did properly fall within category two of Hereora and justified a starting point within the region of five to six years. The aggravating factors, particularly the fact that this offending occurred while on parole from a term of imprisonment for very similar offending justified an increase in the sentence to the seven-eight year bracket. We are satisfied, therefore, that the sentence was not manifestly excessive.
[134] We are also satisfied that there is no basis for interfering with the minimum period of imprisonment imposed in this case. Mr King was critical of the Judge for taking into account again the factors which he had taken into account in setting the finite term, but, as we indicated earlier in this judgment, that is an inevitable consequence of the requirements of s 86. What the Judge did was consistent with the process mandated by this Court in Brown, and we see no basis for interfering with the conclusion which the Judge reached.
Result
[135] Accordingly, Mr Roberts’ appeals against conviction and sentence are dismissed.
Solicitors:
Layburn Hodgins, Christchurch for Appellant RidleyCrown Law Office, Wellington
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