Ross v R

[2010] NZCA 306

IN THE COURT OF APPEAL OF NEW ZEALAND

CA315/2010
[2010] NZCA 306

BETWEENNEIL JOSEPH ROSS

Appellant

ANDTHE QUEEN

Respondent

Hearing:13 July 2010

Court:Hammond, Chisholm and Andrews JJ

Counsel:S A Saunderson-Warner for Appellant

K A L Bicknell for Crown

Judgment:20 July 2010 at 10 am

JUDGMENT OF THE COURT

A            Appeal allowed. 

B            Sentences totalling two years and 11 months imprisonment quashed and replaced with sentences totalling two years and six months imprisonment. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1]        Having pleaded guilty to charges of injuring with intent to injure and breaching a protection order, the appellant was sentenced to a total of two years and 11 months imprisonment by Judge O’Driscoll in the District Court at Dunedin.[1]  He appeals against that sentence on the grounds that in all the circumstances it is manifestly excessive. 

The offending

Injuring with intent

[1]      R v Ross DC Dunedin CRI-2009-012-6393, 4 May 2010.

[2]        At about 6.35pm on 3 November 2009 the appellant approached the victim who was sitting in his car.  The appellant and victim had first met around two years before.  At that time the appellant had told the victim to stay away from his ex girlfriend who was also a friend of the victim. 

[3]        After opening the driver’s door and pinning the victim to his vehicle, the appellant punched the victim on the side of the head with a closed fist on multiple occasions.  The victim attempted to protect himself by holding his arms over his face.  The appellant then violently pulled at the victim’s ear.  Following that the appellant unsuccessfully attempted to burn the victim on the face with a cigarette that the appellant had been smoking.  Then the appellant took the victim’s sunglasses and crushed them.  During the attack the appellant told the victim to stay away from his family.  After striking the victim on the side of the head another two or three times, pulling the victim’s hair “extremely hard”, and telling the victim “Here is your warning”, the appellant left. 

[4]        As a result of the attack the victim had bruising and grazing to his forehead as well as bruising and soreness around his left eye.  The skin at the back of his neck was red and sore, and there was a 15 mm wound at the base of his right ear.  We have seen photographs of the victim’s injuries.   

Breach of protection order

[5]        On 4 November 2008 the appellant was served with a protection order relating to a female with whom he had previously been in a relationship.  On 2 December 2009 the appellant rang the victim at her home address on three occasions.  The first two calls were not answered.  The victim answered the third call and during the conversation that ensued the appellant told the victim “You thought you feared for your life before, I’ve got absolutely nothing now, what do you think I am going to do now?”  When the appellant became “angrier” the victim hung up. 

The appellant

[6]        The appellant is 26 years of age.  He has an extensive previous record for violence:  2009, common assault and resisting police;  2008, resisting police (2), male assaults female, assaulting police;  2005, injuring by an unlawful act;  2003, assault with weapon (2), resisting police (2), common assault;  and 2002, injuring with reckless disregard, common assault (4) and assault with a weapon.  On a number of occasions those convictions have resulted in short sentences of imprisonment.  In addition he has a previous conviction in 2009 for contravening a protection order. 

[7]        According to the probation officer the appellant’s insight into his own behaviour and empathy for the victim is low.  Abuse of alcohol and drugs were considered to have contributed to the offending.  A community based sentence was not recommended by the probation officer. 

Sentencing in the District Court

[8]        After outlining the circumstances of the offending Judge O’Driscoll turned to the aggravating features relating to the offending which he identified as:  sustained violence with multiple blows to the head of the victim;  attempting to burn the victim with a cigarette;  and offending while on bail.  In terms of aggravating features personal to the appellant the Judge referred to the appellant’s previous convictions for violence.  On the mitigating side the Judge took into account the guilty plea and a letter of apology from the appellant to the victim. 

[9]        When imposing sentence the Judge applied the decision of this Court in R v Harris.[2]  Although he considered that the actual injuries suffered by the victim could be described as “moderate”, it was the Judge’s belief that the appellant intended to cause “greater harm to the victim than you actually did”.  After deciding that the appellant’s offending came within band two of Harris and that the appropriate starting point was two years imprisonment, the Judge added six months for the aggravating features relating to the offending and a further six months for aggravating features personal to the appellant. 

[2]      Harris v R [2008] NZCA 528

[10]       Having arrived at a “provisional sentence” of three years imprisonment, the Judge allowed a credit of 20% (seven months) for the guilty plea and imposed a sentence of two years and five months imprisonment on the injuring charge.  Without indicating his starting point, the Judge then added six months (cumulative) on the charge relating to the breach of the protection order.  Thus the total sentence was two years and eleven months imprisonment. 

This appeal

[11]       Ms Saunderson-Warner submitted that the sentence was manifestly excessive by virtue of four primary factors:  the starting point on the injuring with intent charge was too high; the uplift of 12 months for aggravating factors was unreasonable;  no credit had been allowed for the guilty plea to the charge of contravening a protection order;  and the end result contravened the totality principle. 

[12]       With reference to the starting point on the injuring charge, Ms Saunderson-Warner accepted that in terms of Harris the injuries were properly categorised by the Judge as “moderate” and that the offending came within band two of that decision.  However, she submitted that the injuries were nowhere near the most serious end of the band two spectrum and could not, therefore, justify a starting point at the top of that band.  In her submission the appropriate starting point to reflect the injuries suffered by the victim would be 12 - 15 months. 

[13]       Turning to the uplift, Ms Saunderson-Warner claimed that by starting at two years and then applying an uplift of six months for aggravating factors relating to the offending, the Judge had effectively adopted a starting point of two and a half years imprisonment, which came within band three of Harris.  She submitted that band three is reserved for cases where the injuries are serious and that since the victim’s injuries did not fall within this band, the Judge had mis-applied Harris.  She did not, however, dispute the uplift for aggravating features personal to the appellant or the discount of 20% for his guilty plea. 

[14]       In relation to the contravention of the protection order Ms Saunderson-Warner noted the very brief reference to this aspect in the sentencing notes and the failure to indicate a starting point.  She reasoned that if the Judge had applied a 20% discount to this charge his starting point must have been seven and a half months which, in her submission, was too high.  Counsel emphasised that this offending did not involve any physical contact or violence with the protected person and that he only had one previous conviction for a similar offence.  While Ms Saunderson-Warner accepted that the Judge was entitled to impose a cumulative sentence for the breach of the protection order, her submission was that the additional six months was manifestly excessive and, when combined with the sentence on the other charge, it also offended the totality principle. 

Discussion 

[15]       As indicated by this Court in Harris, when determining the starting point for injuring with intent to injure a sentencing Judge is not confined to the extent of the injuries.  In appropriate cases additional aggravating features will also need to be taken into account.  As the Court said:

[11]       Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.  Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act. 

Later in its judgment[3] the Court explained that aggravating features that are intrinsic to the offending contribute to the seriousness of the conduct and the criminality involved. 

[3] At [17].

[16]       We should also add that once additional aggravating features have been taken into account the starting point may be at a level that would theoretically place the offending in a higher Harris band than might be indicated by the injuries alone.  To the extent that Ms Saunderson-Warner was claiming that such an outcome would indicate an incorrect application of Harris, we reject her submission. 

[17]       On the other hand, we accept Ms Saunderson-Warner’s argument that in this case the starting point of two years to reflect the victim’s injuries alone was too high.  Logically a starting point at the top of band two would indicate the most severe injuries that could be categorised as “moderate”.  Without wishing to downplay the injuries suffered by the victim, it is clear to us (from the police summary, the victim impact statement, and the photographs) that his injuries could not be so categorised. 

[18]       We are satisfied, however, that the Judge did not err by adding six months to reflect the aggravating features of the offending and a further six months to reflect the aggravating features personal to the appellant.  Nor did he err by allowing a 20% discount for the guilty plea (which was entered on arraignment).  Before arriving at the appropriate sentence on the injuring charge we will consider the other charge and then determine the appropriate sentences for both charges having regard to the totality principle. 

[19]       Although there is no indication on the face of the Judge’s sentencing remarks relating to the breach of protection order charge that the Judge has allowed a credit for the guilty plea, the primary focus needs to be on the end result, namely, the cumulative sentence of six months imprisonment.  Ms Saunderson-Warner properly conceded that it was appropriate for this to be a cumulative sentence.  But we agree with her that in all the circumstances, particularly the absence of any physical contact between the appellant and victim, a sentence of six months was excessive. 

[20]       Applying the totality principle we consider that the appropriate sentence to reflect the overall offending is two and a half years imprisonment.  Within that umbrella the individual sentences will be two years and three months imprisonment for injuring with intent and a cumulative three months imprisonment for contravening the protection order.

Outcome

[21]       The appeal against sentence is allowed and the sentences imposed by the Judge are quashed.  They will be replaced by a sentence of two years and three months imprisonment on the charge of injuring with intent to injure and a cumulative sentence of three months imprisonment on the charge of contravening a protection order. 

Solicitors:

Aspinall Joel, Dunedin for Appellant

Crown Law Office, Wellington for Respondent