Samuel v R
[2012] NZCA 376
•24 August 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA338/2012 [2012] NZCA 376 |
| BETWEEN TAMA-NGAKAU AROHA MORRIS SAMUEL |
| AND THE QUEEN |
| Hearing: 15 August 2012 |
| Court: Stevens, Heath and Andrews JJ |
| Counsel: S A Saunderson-Warner for Appellant |
| Judgment: 24 August 2012 at 3.30 pm |
JUDGMENT OF THE COURT
AAn extension of time to bring the appeal is granted.
BThe appeal is dismissed.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant pleaded guilty on indictment to three charges, consisting of assault with intent to injure, intentional damage, and male assaults female. He was sentenced by Judge Crosbie in the District Court at Dunedin to two years and five months’ imprisonment.[1]
[1] R v Samuel DC Dunedin CRI-2011-012-2056, 7 May 2012.
The appellant now appeals against that sentence on three grounds. Those are: that the starting point of 20 months’ imprisonment was too high; the uplift for the appellant’s previous criminal history was excessive; and the Judge did not acknowledge or make any allowance for compassionate grounds advanced on behalf of the appellant.
The appeal was filed out of time. However, the Crown does not oppose an extension of time. We grant an extension of time to bring the appeal.
Factual background
The background facts are not in dispute. The following summary is drawn from the Judge’s outline at sentencing. The appellant is aged 22 years. The victim of his offending is his former partner. On the afternoon of 8 August 2011 the appellant asked the victim if he could use her laptop computer. The victim permitted the appellant to use the laptop for several minutes before asking him to return it. When he refused, the victim grabbed a cord from the laptop and held it behind her back. The appellant approached her and attempted to retrieve the cord, causing pain to the victim’s arm. When the appellant let go, the victim went to her bedroom and locked the door. The appellant then kicked the bedroom door open and proceeded to punch the victim twice in the face with a closed fist. The force of those blows caused the victim to fall to the floor. The appellant positioned himself on top of her and prevented her from standing up. This continued for about two minutes, during which time the victim’s flatmate came into the room. The appellant said to her “just let me choke her out so she will calm down”.
The appellant then let the victim go, and she went to the living room to call the police. The appellant prevented her from doing so by pulling the telephone jack out of the wall. The appellant approached the victim, prompting the victim’s flatmate to attempt to protect her by standing between the two. The appellant shoved the victim’s flatmate then attempted to punch the victim. His punch struck the victim and also connected with the head of the flatmate. The appellant then retrieved the laptop from the bedroom and threw it onto the floor twice, causing irreparable damage.
At this point the victim’s flatmate locked herself in the bathroom and called the police from her cellphone. The appellant then left the address, taking with him the victim’s cellphone.
As a result of this attack the victim suffered significant facial swelling and a sore eardrum. She was forced to take a week off work and use all her holiday pay. Psychologically, the attack caused her to suffer from anxiety, depression, and lack of sleep.
Sentencing
Judge Crosbie first identified the aggravating features of the offending as being the blows to the victim’s head; the “prolonged, overbearing and cruel” nature of the violence; the fact that the offending occurred in a home where the victim was entitled to feel safe; the appellant’s actions in making it difficult for the victim to call the police; and the “wanton destruction of property” causing real and expensive damage.[2] The Judge noted that counsel were agreed that the offending in relation to the lead charge of assault with intent to injure fell within band two in the decision of this Court in R v Harris.[3] He concluded that a starting point of 20 months’ imprisonment was appropriate. The Judge then imposed an uplift of six months’ imprisonment to take account the male assaults female and intentional damages charges, bringing the total to two years and two months’ imprisonment.
[2] At [21].
[3]R v Harris [2008] NZCA 528.
The aggravating features of the offender were identified as the appellant’s previous convictions for violence[4] and the fact that the appellant was subject to a sentence of community work at the time of the offending. The Judge held that these features justified an uplift of nine months’ imprisonment, bringing the total to two years and eleven months’ imprisonment.
[4]Including injury with intent to injure (x 2), assault with an instrument and common assault (x 2).
The sole mitigating feature was the appellant’s guilty pleas to the three charges. The Judge granted a six month discount to take account of this feature. Counsel for the appellant acknowledged that it would not be appropriate to give a discount for remorse. A final sentence of two years and five months’ imprisonment was imposed.
On the male assaults female charge, the appellant was sentenced to one year’s imprisonment to be served concurrently.
Our evaluation
Starting point
For the appellant, Ms Saunderson-Warner contended that the starting point of 20 months’ imprisonment was too high. She submitted that R v Harris is of assistance by way of analogy only, as that case is the tariff case for injuring with intent to injure rather than assault with intent to injure. Counsel challenged the Judge’s characterisation of the offending as “prolonged”, submitting that the attack lasted only a few minutes. Counsel further challenged the Judge’s decision to take the appellant’s “wanton destruction of property” into account as an aggravating feature in his offending. Because the Judge also took account of the criminal damage charge in imposing an uplift, this amounted to double counting. In support of the submission that the starting point was excessive, the appellant referred to the recent decision of this Court in Luff‑Pycroft v R[5] and several judgments from both the High Court and the Court of Appeal.[6]
[5] Luff-Pycroft v R [2012] NZCA 107.
[6]These included Dewar v New Zealand Police [2012] NZHC 135, Bennett v R [2012] NZCA 173 and R v Richardson [2012] NZHC 1465.
We deal first with the decision of this Court in R v Harris where it was stated:[7]
An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:
·Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];
·Band two: where the injuries are moderate, sentences of up to two years’ imprisonment can be justified;
·Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).
[7]At [10].
That passage dealt with situations where the intent on the part of the offender and the actual injury suffered by the victim broadly correspond. In that situation it would be appropriate to sentence by reference to the seriousness of the injury suffered. Here the circumstances are different. While the mental state of the appellant involved an intention to injure his physical act involved only an assault. In the absence of the broad correspondence between the nature of the act and the relevant intention, as discussed in Harris, we consider that the appropriate starting point is to be determined by reference to all of the circumstances of the offending including the intent involved, any aggravating features and the nature of the injuries sustained.
We agree with the Judge that there were a number of aggravating factors present including those listed at [8] above. We would only add that the “wanton destruction of property” involved would encompass the damage to the bedroom door and not the damage to the computer. The former is indicative of the high level of force that the appellant used and also evidences the degree of his rage at the time of this relatively prolonged incident. We are not persuaded that there was any error in the starting point of 20 months’ imprisonment adopted by the Judge.
Uplifts
The Judge applied two uplifts. The first was of six months’ imprisonment for the male assaults female and the intentional damage charges. This uplift was not challenged by the appellant – and rightly so. The second uplift was of nine months; imprisonment for the appellant’s previous convictions for violence. We agree with counsel that this uplift was significant. However, as the Judge made clear, the appellant had appeared in Court on multiple occasions for violent offending starting in 2008 with injuring with intent to injure and assault with an instrument. Moreover at the time of commission of the present offences the appellant was subject to a sentence of community work. We agree with the Judge’s conclusion that the appellant has a “serious issue in relation to violent offending that must be addressed”.[8]
[8] At [17].
We consider that the adjusted starting point of two years and 11 months’ imprisonment (including the uplifts) was appropriate in all the circumstances. Counsel accepted that the offending was serious. Like the Judge,[9] we consider that the appellant’s treatment of the victim involved “cruel and overbearing” violence. The reference to “choking out” the victim so that she would calm down involved a disturbing element. This ground of challenge must therefore fail.
Discounts
[9] At [21].
There are two discounts to consider. The first was the agreed discount of 15 per cent which was applied for the guilty pleas. In fact the appellant received the equivalent of 17 per cent sentence reduction because of rounding. We consider that whilst possibly generous (having regard to the timing of the pleas), it was nevertheless an appropriate allowance.
The second aspect concerned the fact that the Judge made no allowance on compassionate grounds. Counsel explained that the day prior to the appellant’s sentencing his stepfather died. Before and during the appellant’s sentencing his father was in hospital terminally ill and died within two weeks of sentence being imposed. Finally the appellant’s brother died in February of this year due to brain cancer.
These matters were before the sentencing Judge. The information came before the Judge in the course of a letter written by the appellant to the Judge expressing sorrow for his behaviour. In that letter he said “my brother has recently passed and my father [and] step father are terminally ill”. He added: “it is now obvious to me that life is [too] short to be wasted”. Counsel argued that these matters should be taken into account by way of a further discount on compassionate grounds, citing the judgment of the Supreme Court in R v Jarden.[10] There the Supreme Court observed that the “personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds”.[11]
[10] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
[11] At [14].
The personal circumstances in Jarden were in the form of the loss of the appellant’s partner and their unborn child shortly before his trial was to commence. The lead up to these events is equally important. The background disclosed that Mr Jarden had suffered a form of anxiety and depression for a period of three years. These conditions were said to be in large part due to the mental illness of his partner who, shortly before the trial and at a time when she was seven months’ pregnant with their child, took her own life along with that of the couple’s unborn child.[12]
[12] At [6].
We are satisfied that the circumstances here are not so extreme as to warrant any further discount. As in Jarden, there was no causal link between the illnesses and deaths of the appellant’s relatives and the offending. The only question is whether these personal circumstances warrant a reduction in sentence on purely compassionate grounds. We do not think so. In this case the protection of the community was seen by the sentencing Judge as important. We agree with that assessment. We are not persuaded that any further discount should be given on compassionate grounds.
Result
We do not consider that the sentence imposed was manifestly excessive. Accordingly the appeal must be dismissed.
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
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