Ransfield v Police

[2014] NZHC 1046

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-470-000006 [2014] NZHC 1046

RAYMOND JOHN RANSFIELD Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	8 May 2014
Appearances:	Nicholas Dutch for the Appellant Hayley Sheridan for the Respondent
Judgment:	19 May 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by  on 19 May 2014 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

RANSFIELD v NEW ZEALAND POLICE [2014] NZHC 1046 [19 May 2014]

Introduction

[1]      The  appellant,  Raymond  John  Ransfield,  was  sentenced  in  the  Tauranga

District Court on 29 January 2014 having pleaded guilty to

(a)       one charge of assault with intent to injure;

(b)      one charge of breach of intensive supervision; and

(c)       one charge of breach of community work.

[2]      On the charge of assault with intent to injure he was sentenced to a term of imprisonment of two years, one month and two weeks.  In respect of the charges of breach of intensive supervision and community work he was sentenced to two months’ imprisonment, cumulative on the sentence imposed on the charge of assault with intent to injure.

[3]      He appeals this sentence.

Grounds of appeal

[4]      Although the appellant specified nine grounds of appeal in the notice, these can be summarised as follows:

(a)       The sentence was wrong in principle. This is on the basis that:

(i)R v Nuku was incorrectly applied in that the Court failed to adjust for the lesser maximum penalty the appellant faced. Furthermore, band 1 in Nuku applied rather than band 2;1

(ii)the Court failed to accept that the absence of injury justified a lesser sentence.

1 R v Nuku [2012] NZCA 584.

(b)      The sentence was manifestly excessive.  In particular:

(i)the sentence was too long having regard to the principle of totality;

(ii)insufficient weight was given to the fact the incident occurred in 2012 and there had been no subsequent incidents;

(iii)insufficient weight was given to the fact that following the assault the victim requested to reside with the appellant and then resided with the appellant without further incident;

(iv)the individual sentences on the other charges were manifestly excessive with the excessiveness increased by the totality of the sentence that was imposed.

Background facts

Assault with intent to injure

[5]      The appellant is the father of the victim.  At the time of the offending the victim lived with his father and other family members.

[6]      On the morning of 18 August 2012 the victim left home without telling anyone and went horse riding with family members.   As he neared home on his return some hours later the appellant, who was home at the time learned from others that his son was on a horse nearby.  Angry he had been away so long, the appellant ran onto the road yelling and swearing at his son.  He grabbed him and tried to pull him off his mount but was unsuccessful.  He then grasped the victim by the wrist but still could not remove him.  Finally, he grabbed him by the throat and pulled him off the horse onto the ground.

[7]      Once on the ground, the victim was kicked in his right side multiple times. The appellant was wearing steel capped boots.

[8]      A passing car drove slowly past the scene.  The appellant pushed the victim against the side of the car which drove off. The appellant continued to kick his son.

[9]      The victim’s attempts to escape were prevented by the appellant holding his wrist.  The appellant then dragged the victim along the road and into their property, punching him twice in the back of the head with a closed fist.

[10]     The victim was taken inside and sent to his room.   He suffered no serious injuries except he later reported his body felt tired and sore.   The victim impact statement recorded he had grazing and bruising to his back and could not sit down as his bottom was sore.

Breach of police conditions

[11]     On 2 September 2013 the appellant was sentenced to 12 months’ intensive supervision for breaching his Court release conditions.  He failed to report on eight occasions and as a result none of the special conditions was complied with. Furthermore, he was issued with a written non association instruction as well as an instruction not to reside at a particular, specified address.   He breached both conditions.

Breach of community work

[12]     On 10 July 2013 the appellant was sentenced to 150 hours’ community work

following his conviction on a charge of male assaults female.  He completed only

16.25 hours leaving 133.25 hours outstanding.

District Court decision

[13]     After traversing the facts and the appellant’s previous convictions, notably involving offences of violence and breaches of Court imposed orders, his Honour described the offending as a brutal assault of a 12 year old boy.   Of particular concern to his Honour was the appellant’s minimising of the offending, the lack of any expression of remorse and the apparent absence of insight into the longer term consequences of his behaviour.  His Honour referred to Nuku which he said provided a broad guideline for offending of this sort, although it dealt with a more serious

category of offending.  He considered that the index offending fitted within band 2 in

Nuku where a starting point of up to three years’ imprisonment might be appropriate.

[14]     In  response  to  counsel’s  submission  that  the  absence  of  injury  was  a significant factor in reaching an appropriate starting point, his Honour accepted that while that might be so the absence of injury in the present case was “more through good luck than anything else”.

[15]     A two year starting point was taken in recognition of the prolonged nature of the assault and the fact the victim was struck in the head.  An uplift of six months was given to reflect previous offending and a 15 per cent discount was given for the guilty plea which was not entered at the earliest opportunity.

[16]     Although the sentence was beyond the scope which permitted the Judge to consider home detention, his Honour noted he would not have considered this sentencing option in any event due to prior breaches of home detention and the appellant’s past failures to comply with Court imposed orders.

[17]     A sentence of two years one month and two weeks was imposed on the assault with intent to injure charge.  In respect of the two other offences the appellant was sentenced to two months’ imprisonment cumulative on the assault charge.

Appeal against sentence

[18]     Section 250 of the Criminal Procedure Act 2011, states that the Court must allow the appeal if satisfied that:

(a)for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[19]      In any other case, the Court must dismiss the appeal.2

2 Criminal Procedure Act 2011, s 250(3).

[20]     Section 250 confirms the approach taken by the courts under the former Summary Proceedings Act 1957. This approach to set out in Yorston v Police where the Court said: 3

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[21]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Incorrect band

[22]     The appellant submits the Judge was incorrect to consider the offending fell within band 2 of Nuku and that band 1 would have been more appropriate.  In my view the offending falls squarely within band 2.  The violence cannot be described as “relatively  low”  considering  the  assault  was  prolonged  and  involved  sustained kicking with steel capped boots.   Band 2 is appropriate where there are three or

fewer aggravating features as identified in Taueki.4    In the present case there were

three aggravating features namely attacking the head, the vulnerability of the victim and the implicit breach of trust.5

Failure to lower starting point to reflect lesser sentence

[23]     In  Nuku  a  starting  point  of  three  years’  imprisonment  is  considered

appropriate for band 2 offending.  The appellant submitted the Judge erred when he did not  explicitly lower  the starting point  within  this  band  to  reflect  the lower

3 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

4 R v Taueki [2005] 3 NZLR 372; (2005) 21 CRNZ 769 (CA).

5 The final two factors are mandatory considerations under s 9A of the Sentencing Act 2002.

maximum penalty assault with intent to injure.  I accept the respondent’s submission that given that band 2 in Nuku permits starting points of up to three years, his Honour’s selection of a two year starting point was consistent with the lower maximum penalty available in the present case.  Regardless, this factor, in my view, goes to the issue of the final sentence and would not, of itself, justify interfering with

the sentence unless it was manifestly excessive.6

[24]     Furthermore other cases refer to Nuku in the context assessing the appropriate penalty in assault with intent to injure cases without explicitly lowering the sentence to reflect the different maximum penalties.7

Manifestly excessive

Failure to acknowledge the absence of injury

[25]     In this context I acknowledge the statements in Kojeunikov v Police8  and Tiplady-Koroheke v R.9   The level of violence in the present case was serious despite the fact relatively few injuries were received.  The Judge was entitled to take this into account.

Insufficient weight on certain factors

[26]     The fact there was no reported offending against the same victim over a 12 month period is not a mitigating feature.  Nor is it, in my view, significant that after the offending the victim requested to live with the appellant and moved in with him. The Court of Appeal’s comments in Taueki on this aspect have application:10

The Court should not condone violent conduct even if the  victim does. While the views of the victim are not to be ignored, those views do not outweigh the public interest.

6 Rewita v Police [2013] NZHC 2175 at [13].

7 Kohu v Police [2013] NZHC 944.
8 Kojeunikov v Police [2013] NZHC 551 at [24].
9 Tiplady-Koroheke v R [2012] NZCA 477 at [14].

10 R v Taueki, above n 5, at [33(b)]

Totality

[27]     In my view, the principal consideration in this appeal is whether the sentence was manifestly excessive in that it was too long having regard to the totality of the offending.    The  index  offending  is  less  serious  than  Tiplady-Koroheke  which involved three victims.  However, it is more serious that Kojenikov given the present offending involved an attack of a more prolonged nature.  Tiplady-Koroheke took a starting point of two years resulting in an end sentence of 18 months’ imprisonment. Kojenikov took a starting point of one year with a final sentence of 11 months. Against these two cases I am satisfied that the end sentence of 2 years, 3 months and

2 weeks was manifestly excessive considering the totality of the offending.

Re-sentencing

[28]     It    follows  that  it  is  necessary  for  this  Court  to  re-exercise  the  Court’s sentencing discretion.   In my view a starting point of 18 months’ imprisonment would have been appropriate sitting, as it does, between Tiplady-Koroheke and Kojenikov.   The starting point is based principally on the violence and prolonged nature of the attack, the fact it involved both kicking and punching, the attack to the head, the vulnerability of the victim and the implicit breach of trust.  In my view an uplift of three months’ imprisonment is appropriate recognising the prior offending. Adjusting for the guilty plea   this results in a final sentence of 18 months’ imprisonment which I consider to be appropriate in the circumstances of the offending.

[29]     In relation to the other two charges, in my view his Honour was correct in ordering these to be cumulative and I agree that a sentence of one month on each charge is appropriate.

[30]     This results in an end sentence of 20 months’ imprisonment.

Home detention

[31]     I deal with home detention because a sentence of 20 months’ imprisonment is a   short   term   sentence   of   imprisonment.11    Rehabilitative   considerations   are considered to be important in determining whether a sentence of home detention should be imposed.12However, in the present case, the appellant demonstrates little or no desire to change his conduct.   He exhibits minimal insight into his actions. Furthermore, he has not engaged with rehabilitative sentences in the past.  He has an unenviable history of breaching Court orders and release conditions.

[32]     In the circumstances home detention is not an appropriate sentence.

Result

[33]     The  appeal  is  allowed  on  the  grounds  the  end  sentence  was  manifestly excessive having regard to the totality of the offending.  The sentence is quashed and replaced with a sentence of 20 months’ imprisonment, being 18 months’ imprisonment on the assault charge and a cumulative two months’ imprisonment on

the other charges.

Moore J

Solicitors:

N Dutch, Tauranga

Crown Solicitor, Tauranga

11 Section 15A(1)(b).

12 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.