R v Tuwairua

[2009] NZCA 495

IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/2009
[2009] NZCA 495

THE QUEEN

v

LIONEL JAMES TUWAIRUA

Hearing:8 October 2009

Court:William Young P, Panckhurst and MacKenzie JJ

Counsel:D G Slater for Appellant

L C Preston and H McKenzie for Crown

Judgment:21 October 2009 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]        The appellant was sentenced to two years two months’ imprisonment in the District Court upon a charge of wounding with reckless disregard.  He challenges that sentence on the grounds that the starting-point adopted by Judge Phillips was too high, that an uplift of seven months for personal aggravating factors was too much and that the Judge erred in his assessment of the facts in two respects.

The offending

[2]        At about midnight on Christmas Eve 2008 the appellant was at his father’s home.  His father, the victim, arrived home from the hotel in an intoxicated state.  The appellant had also been drinking.  An argument developed.  The summary of facts continued the narrative in this way:

... the [appellant] walked to the kitchen and located a steak knife.  He then returned to confront the victim in the dining area of the house.

He began lunging and pointing the knife at the victim stating “come on then”.

He continued lunging towards the victim with the knife stabbing him in the back of his right hand which was positioned in front of his stomach area.

As a result an artery in the victim’s right hand was severed which caused a large amount of blood loss and as a result the defendant called an ambulance stating that the victim had cut his own wrists.

[3]        In March 2009 the appellant pleaded guilty on request.  After some delay he was sentenced by Judge Phillips on 9 June 2009.  The Crown accepted that the guilty plea was early and warranted full recognition.

The sentencing

[4]        The maximum penalty for wounding with reckless disregard is seven years’ imprisonment.  Judge Phillips fixed a starting-point of two years eight months.  He did so by reference to the guideline decision in R v Taueki [2005] 3 NZLR 372 (CA), while recognising that this case involved a lesser charge and after noting that the intent attributed to the appellant (acting with reckless disregard) was “entirely appropriate”: at [2].

[5] The Judge then made an uplift of seven months because he considered the appellant “a man of a high propensity to commit acts of violence”, as evidenced by his previous convictions for assaults of various types: at [4].

[6]        Finally a reduction of one-third was made for the early guilty plea, whereby the sentence of three years three months was reduced to two years two months’ imprisonment.

The grounds of appeal

Was the starting-point within range?

[7]        We are satisfied that it was.  Although the Judge, after reference to Taueki, commented that the bands in that case had to be reduced by 50 per cent (an approach deprecated in decisions of this Court, see for example R v Harris [2008] NZCA 528), the starting-point was nonetheless well within the appropriate range. Correctly, in our view, the Judge identified that this was an assault with a knife which, as a result of a lunging action, caused a significant wound to the victim. It was these aspects which most dictated the starting-point adopted by the Judge.

Was the uplift of seven months justified?

[8]        Mr Slater submitted that although the appellant has several convictions for violent offending, the uplift was excessive, particularly as the longest sentence previously received by the appellant was six months’ imprisonment.

[9]        The underlying concern, however, is the point identified by the Judge, that the appellant’s record confirms a tendency to resort to violence and, in this instance, to use a knife in doing so.  We are not persuaded that the uplift was beyond range. 

Did the Judge misstate the factual circumstances?

[10]      Two contentions were raised.  The first concerned whether the appellant, having armed himself with a steak knife in the kitchen, returned to the dining area of the house where the wounding occurred; or whether the appellant’s father followed him into the kitchen (as Mr Slater contended). 

[11]      It is apparent that this factual issue was the subject of submissions in the District Court.  We, however, agree with Ms Preston that the distinction is immaterial.  Exactly where the confrontation and the wounding occurred is not of particular moment, certainly not to the point where it might be viewed as an aggravating fact of significance to the assessment of the end sentence.

[12] Secondly, the appellant objected to the Judge’s description of the appellant’s father “guarding his stomach area” at the point that the wounding occurred: at [2]. Counsel submitted that the correct view was that Mr Tuwairua senior’s hand simply happened to be in this position at the operative second.

[13]      Again, we regard this as a distinction without a difference.  Importantly, the appellant was not charged with an offence involving a specific intent, rather with acting with reckless disregard for the safety of his father.  In these circumstances we see the issue of why and where the hand was positioned as it was to be of little or no account.

Some final thoughts

[14]      Although not raised as a specific ground of appeal, we note two features of this case.  The first is the appellant’s disadvantaged childhood which is outlined in depressing terms in the pre-sentence report.  We observe that the Judge was conscious of this aspect and made express reference to it in his sentencing remarks, by registering his concern but then commenting that the use of a knife by someone of the appellant’s background was the predominant sentencing consideration.

[15]      Similarly, we note that both the victim and the appellant’s mother wrote letters to the Judge seeking leniency at sentencing.  Again, the Judge expressly referred to this aspect and gave it such recognition as was possible.

Result

[16]      The appeal against sentence is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch