Setu v R
[2017] NZHC 1839
•4 August 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2017-409-64 [2017] NZHC 1839
BETWEEN LEALOFI SETU
Appellant
AND
THE QUEEN Respondent
Hearing: 13 July 2017 Appearances:
J Eaton QC for Appellant
C J Lange for RespondentJudgment:
4 August 2017
JUDGMENT OF MANDER J
[1] The appellant, Mr Lealofi Setu, pleaded guilty following a sentence indication to two charges of breaching a protection order, a charge of aggravated robbery and one of wounding with intent to cause grievous bodily harm. Judge Neave imposed an effective sentence of five years imprisonment.1
[2] Mr Setu appeals his sentence on the ground the Judge erred by taking a sentence starting point of 10 years imprisonment. He submits this was too high and resulted in a sentence which is manifestly excessive.
Background
[3] Mr Setu’s offending occurred against the background of the breakdown of his marriage. At the time of the offending, he and his victim, his wife, had separated and were living apart. A temporary protection order was issued in February 2016. On
19 March, the victim and her children were at netball courts in Hagley Park when he
came up from behind and kissed her on the back of the neck. She was shocked, and
1 R v Setu [2017] NZDC 10066.
pushed him away. Mr Setu left the area, but he had breached the protection order which was made final on 19 May.
[4] In the early hours of 20 May, Mr Setu went to the victim’s home armed with a large piece of wood. It appears Mr Setu had become distressed and agitated as a result of his belief the victim had entered into a new relationship and that there was a man present at the address.
[5] After accessing the house, Mr Setu entered the victim’s bedroom. He found only his wife asleep in her bed, nonetheless he attacked her. Mr Setu struck his victim violently numerous times around the head with the piece of wood. A young child was sleeping next to her mother in the bed at the time of the attack. Awoken by her mother’s screaming, the eldest child of the relationship entered the bedroom and tried to intervene before Mr Setu left.
[6] The victim suffered injuries and wounds to her head and face. She also incurred defensive injuries to her hands and arms. While the victim did not suffer any critical underlying head injuries, physical scars to her face are likely to leave her marked for the rest of her life.
[7] Mr Setu was apprehended by police attempting to clean the clothing he was wearing and soaking his cell phone in a bucket of water in an effort to avoid detection. While he admitted the first breach of the protection order, Mr Setu denied having attacked his wife.
The sentencing decision
[8] In providing his sentence indication, Judge Neave took a starting point of
10 years imprisonment based upon the guidance provided by the Court of Appeal in R v Taueki.2 Despite submissions at sentencing that this starting point was too high, Judge Neave declined to resile from a 10 year starting point, although he did
acknowledge, by reference to some High Court sentencing decisions, that it may be
2 R v Taueki [2005] 3 NZLR 372 (CA).
considered at the higher end of the appropriate scale. However, the Judge did not consider it to be outside the available range.
[9] After identifying the presence of six of the aggravating features considered by the Court of Appeal in Taueki, together with the relationship setting of the violence and the breach of the protection order, Judge Neave concluded the offending could not be placed anywhere other than in the third band of Taueki, albeit at the bottom end of that band. The sentencing Judge then applied what would amount to a 50 per cent discount for mitigating factors personal to Mr Setu, about which there is no complaint.
The appeal
[10] It is submitted that Judge Neave erred in his approach to Taueki. By simply identifying and accumulating aggravating factors it is contended the sentencing Judge failed to recognise that many of those features overlapped and were “double- counted”. Mr Eaton QC, on behalf of Mr Setu, submitted the sentencing Judge had been overly rigid in his application of Taueki and that his conclusion that the offending fell towards the bottom end of the third band of Taueki (9-14 years) reflected a formulaic, rather than an evaluative, approach to the sentencing exercise. This, it was submitted, had resulted in an inflated starting point.
[11] Mr Eaton submitted this error in the Judge’s approach was underscored by reference to various High Court sentencing decisions where lesser starting points had been adopted for more serious offending. Mr Eaton submitted that sentencing on a charge of wounding with intent to cause grievous bodily harm required a careful review of relevant sentencing authorities to achieve the general desirability of consistency in sentencing.3 When comparison was made with other sentences for like offending, the 10 year starting point breached that principle of sentencing. It was submitted the offending fell into band 2 of Taueki (5 – 10 years) and that the
highest starting point available was one of eight years imprisonment.
3 Sentencing Act 2002, s 8(e).
The Taueki guideline judgment
[12] Twelve years ago the Court of Appeal provided guidelines for sentencing for serious violent offending, and in particular for offences against s 188(1) of the Crimes Act 1961, generically referred to as “GBH offending”. The Court of Appeal observed that the objective of providing the guidelines was to enhance the policy of consistency in sentencing.4 The Court envisaged the decision would provide an appropriate point of reference for submissions and sentencing remarks to assist the sentencing exercise for GBH offending.5
[13] The Court of Appeal emphasised the need to recognise that any GBH offence involves very serious offending which is reflected by its maximum penalty of
14 years imprisonment. 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.6 To set the appropriate starting point for a sentence, an assessment will be required of the features which either add to or reduce the seriousness of the criminality involved in the individual case. The Court of Appeal observed that the particular combination of those variable features will need to be assessed in each case.7
[14] The Court of Appeal identified a series of features which, if present, will contribute to the seriousness of the GBH offending. A number of these factors will be discussed later in this judgment. The guideline judgment proposed three sentencing bands setting out ranges of starting points for GBH offending:
(a) Band 1: 3-6 years which would be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. Where none of the identified aggravating factors are present a starting point at the bottom end of this band would normally be called for. Where one or more of those factors was present a higher starting point
will be required.8
4 R v Taueki, above n 2, at [10].
5 At [11].
6 At [26]-[27].
7 At [28].
8 At [36].
(b)Band 2: 5–10 years will be appropriate for GBH offending which features two or three of the aggravating factors.9
(c) Band 3: 9–14 years which will normally encompass serious offending which has three or more of the aggravating factors where the combination of those factors is particularly grave.10
[15] The Court of Appeal prefaced its approach by emphasising that the important objective of achieving consistency in sentencing by the use of such guidelines does not override the discretion of sentencing Judges, but rather seeks to provide guidance in the manner of the exercise of that discretion.11
[16] The approach to be taken to the assessment of aggravating factors as part of the evaluative task inherent in the exercise of sentencing discretion was captured by the Court of Appeal when it observed, by reference to an earlier guideline sentencing judgment, that:12
… 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.”
[17] In carrying out that task the Court of Appeal cautioned against a formulaic approach:
[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.
9 At [38].
10 At [40].
11 At [10].
12 At [28], citing R v Mako [2000] 2 NZLR 170 (CA).
[18] In the earlier guideline judgment of R v Mako, the Court of Appeal provided sentencing guidance by referring to various examples of different aggravated robberies. In Taueki the Court of Appeal did not consider a range of examples of GBH offending alone would be sufficient to cover the wider spectrum of offending with which sentencing judges must deal. For that reason, the Court took a combined approach, providing bands of starting points together with a list of factors relevant to their application and examples of GBH offending. It was anticipated this would provide the most helpful guidance while preserving the very important discretionary
element of sentencing.13
[19] The Court of Appeal emphasised the need 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 judgment 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…
Relevant aggravating features
[20] A significant part of Mr Eaton’s critique of the approach taken by the sentencing Judge was his analysis of the aggravating factors. It is necessary to examine each in turn.
Premeditation
[21] Mr Eaton, while acknowledging that some premeditation was present, emphasised that Mr Setu had intended to assault a male who he believed he would find at the house. He submitted the offending did not involve a premeditated attack on his wife. Discussing this aggravating feature, Judge Neave recognised that Mr Setu may not possibly have intended at the outset to inflict harm on his wife but the fact remained that he had gone to the house armed and prepared to inflict violence.
[22] While Judge Neave acknowledged that Mr Setu may not initially have set out to attack his wife, it is notable that, far from being relieved at the absence of any male, Mr Setu proceeded to attack his wife. As Judge Neave observed this was no spur of the moment violent reaction. The doubtful reliance placed on Mr Setu wearing a hoodie as some form of disguise adds little to the obvious inference to be drawn from the fact that Mr Setu, having armed himself, travelled to the victim’s house and attacked his victim without warning. The Judge was correct to categorise the offending as premeditated.
Serious injury
[23] The victim suffered serious facial injuries with deep lacerations, bruising and concussion. Surgery was required for the repair of the facial lacerations. In Taueki, the Court of Appeal observed that where the injuries are very serious a higher starting point than in the case of more minor injury will be called for and that this is particularly so where injuries are potentially fatal or cause long term or permanent disability impacting on the victim’s quality of life. Care must be taken not to double-count the level of violence inflicted and the seriousness of the injuries which
is integral to the commission of the offence itself.14
[24] Mr Eaton contrasted the victim’s injuries in the present case which, while nasty and to the face, did not involve any fractures, loss of consciousness or brain injury. He submitted in terms of GBH offending, the victim’s injuries in the present case fall at the less serious end of the range. Judge Neave’s categorisation of those injuries as “fortunately not being as serious as one often sees” is consistent with that assessment. However, it would have been remiss for the sentencing Judge not to have acknowledged, as he did, that the victim suffered permanent scarring to her face as a result of Mr Setu’s attack.
[25] An important part of Mr Setu’s challenge to his sentence rests on the 10 year starting point being applied in the absence of very serious, critical or life threatening injuries having been sustained by the victim. I will address that aspect of the appeal separately.
Use of a weapon
[26] Mr Eaton submitted the piece of wood used to cause the harm to the victim was not of itself lethal. He contrasted it to weapons such as knives or other weapons capable of inflicting far more serious injury. This he submitted was apparent from the extent of the injuries suffered by the victim. However, Judge Neave explicitly acknowledged the weapon was not as lethal as some that may have been used. I consider it indisputable that the piece of timber was capable of doing considerable damage. The introduction of an object capable of administering blunt force to the body of another person heightened the potential for serious injury and, as the Judge himself observed, it was fortunate that greater damage was not caused.
Attack to the head
[27] It was submitted the relevance of this aggravating factor needed to be considered together with the nature of the weapon used and the injury inflicted. That may be so, however, the fact remains that the deliberate targeting of the victim’s head remains an obvious aggravating feature, such is the vulnerability of that part of the body. Mr Setu chose to direct his attack at his wife’s head, rather than any other part of her body. The focus on the head was such that, apart from injuries to her hands and arms in an attempt to defend her head, this was the main part of her body that was injured.
Home invasion
[28] It was submitted in mitigation to this aggravating feature that Mr Setu had, notwithstanding the protection order, been regularly attending at the address to assist with the daily activities of the couple’s children and had a key to the address which meant he did not break in to the premises. However, those aspects do little to diminish the seriousness of covertly entering a house at night and attacking a person in their own home where they are entitled to feel safe. Judge Neave referred to the devastating effect on individuals and the resultant impact on their future ability to feel secure even in their own houses.
Vulnerability
[29] Mr Eaton submitted the fact the victim was in bed did not greatly aggravate the offending. I disagree. The victim was asleep and completely defenceless. Her vulnerability at that time is a discrete aggravating factor.
Other aggravating factors
[30] The sentencing Judge noted, as a further aggravating feature of the offending, the attack took place in the context of a domestic relationship. Mr Eaton was critical of the Judge for doing so. He submitted that while the Sentencing Act recognises particular relationships between an offender and his or her victim which may
aggravate the offence, a domestic relationship is not one of them.15 Mr Eaton
acknowledged the Court of Appeal in Taueki had expressly cautioned sentencing Courts from diminishing the seriousness of violence which occurs in a domestic situation but that there was no suggestion that violence within such a setting constituted an aggravating factor. He submitted that Judge Neave, by treating the domestic aspect of the attack as a separate aggravating feature, double-counted the aggravating factors such as home invasion, vulnerability and the existence of a protection order.
[31] I do not consider this criticism bears scrutiny. The Court of Appeal in setting out features which will contribute to the seriousness of the GBH offending sought only to highlight factors that may apply to a particular case. The list provided was not intended to be exhaustive. Judge Neave was aware that a domestic background to the GBH offending was not a factor which had been specifically listed in Taueki as an aggravating feature. He expressly made that observation in his sentencing remarks.
[32] More importantly, the Judge’s consideration of this aspect was directed at the motivation behind the attack which the Judge described as a “proprietoral attitude to a former partner which is utterly unacceptable”. The Judge observed the offending to be a manifestation of “some kind of exercise of power and control in terms of a
domestic relationship” which will not be tolerated. That feature, which in my view
15 Sentencing Act 2002, s 9(1)(f), (fa), (fb) and (h).
Judge Neave was entitled to assess as being present, is distinct from other factors such as the victim being asleep and her entitlement to be safe at night in her own home.
[33] Finally, I observe that s 9 of the Sentencing Act prescribes the aggravating and mitigating factors which must be taken into account by a sentencing Court. The statute does not seek to restrict the matters which a Court may take into account in assessing an offender’s culpability when imposing sentence. It was not contested by Mr Setu that a further aggravating feature of his offending was that at the time of the his attack the victim had the benefit of a protection order which Mr Setu had previously breached.
Analysis of the application of Taueki
[34] There were therefore multiple aggravating features present in Mr Setu’s offending. As the Court of Appeal emphasised, care is required to ensure there is no double-counting and that the evaluative task of imposing an appropriate sentence is not replaced by some mathematical calculation of the number of factors present without careful assessment of the gravity of each feature and their relative seriousness. I do not consider Judge Neave was unaware of this requirement.
[35] The sentencing Judge’s conclusion was that even if he accepted that some of the features may have been present to only a moderate degree, the offending fell within the third band of Taueki. While there will inevitably be some overlap between aggravating features as is the case in Mr Setu’s offending, I do not consider there was double-counting, nor that the sentencing Court simply undertook a box- ticking exercise. Each of the aggravating factors was assessed in turn, and their contribution in combination evaluated to properly reflect the culpability inherent in Mr Setu’s offending.
[36] Band 3 is said to normally encompass serious offending where three or more of the aggravating features discussed in Taueki in combination renders the offending particularly grave.16 If there was any doubt as to whether Mr Setu’s offending in the
circumstances of this case was thought to be sufficient to fall into the bottom of that band, they are largely allayed by the examples provided by the Court of Appeal designed to assist in that assessment:17
Band two (a) ... (b) ...
(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 the band two.
Band three
(a) ...
(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) ...
[37] While the scarring to Mr Setu’s victim which is described to be of “lasting effect” may, in terms of the relative seriousness of injuries caused by GBH offending, be open to contest, the starting point taken was not at the top of band 3 but near its bottom and at the very top of band 2. It follows that based solely upon an application of the guidelines provided by Taueki, the sentencing Judge did not err either in his assessment of the aggravating features, nor in his identification of a
10 year starting point. However, it is necessary now to address the second strand of Mr Setu’s appeal concerning whether more recent High Court sentencing authorities require the starting point to be adjusted in order to meet the principle of consistency in sentencing.
Recent, post-Taueki, approach to sentencing for GBH offending
[38] Mr Eaton was critical of the Crown’s reliance at sentencing on two decisions concerned with the imposition of sentences for attempted murder in support of its argument that a starting point of 10-11 years of imprisonment was appropriate. Despite GBH offending and attempted murder charges attracting the same maximum penalty of 14 years imprisonment, there is generally a higher level of culpability associated with the latter offence which derives from the specific murderous intent
that is a component of that offending.18 However, as is apparent from the record of
Judge Neave’s sentence indication, he was alive to that distinction, noting the observations of Miller J in R v Fotuaika that there is a greater degree of culpability arising from the charge of attempted murder.19
[39] As with cases of manslaughter Taueki is often used as an aid when sentencing for other violent offences. However, different violence charges may involve different degrees of criminality. As is often remarked in respect of the charge of manslaughter, the circumstances of the offending and therefore the appropriate sentence may vary across a wide spectrum. Such cases may not provide much assistance, and the utility, at least for the purpose of providing consistency in GBH sentencing, will often be limited.
[40] Mr Eaton’s argument centred on his analysis of sentences imposed for GBH offending where starting points of 10 years or less have been adopted in circumstances more serious than the present offending. In particular, Mr Eaton emphasised the very serious and often life threatening injuries which he submitted were required to be present in order to attract a starting point of 10 years or more.
[41] In support of his submission that a starting point of no more than eight years imprisonment was available to the sentencing Court, Mr Eaton referred to the
following cases:
18 R v Poole [2014] NZHC 1126 at [45].
19 R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008 at [8].
(a) R v Falemaka20 – the defendant arrived home in the early hours highly intoxicated and argued with his partner. He armed himself with a machete and took the complainant to a bedroom where he held her down by the hair. Whilst making threats to kill he struck her twice with the machete causing his victim a deep wound, a skull fracture and brain bleed, and a second superficial cut to the head. Based upon the level of extreme violence, use of a very dangerous weapon, blows to the head, extent of the harm caused, abuse of trust, and vulnerability, the sentencing Judge held the case fell into band 2 of Taueki and took a starting point of eight years imprisonment.
(b)Rowles v R21 – a starting point of 10 and a half years imprisonment, while described as high, was upheld by the Court of Appeal as being within range. The defendant was one of two attackers who had punched and kicked their victim repeatedly in a convenience store. Both offenders stomped on the victim’s head whilst unconscious and defenceless resulting in critical life threatening injuries. The victim was required to relearn to walk, speak, eat, shower and toilet. The extreme nature of the violence, the serious injury and the deliberate targeting of the head of a vulnerable victim were factors that placed the offending in the upper range of violent offending of its type.
(c) Shen v R22 – the appellant went to his wife’s workplace armed with a butchers’ knife. He attacked her from behind stabbing her in the chest, flank, knee and hand. The blood loss required the victim to be resuscitated at the scene and led to her losing a kidney. The victim attempted to flee but was grabbed and dragged back inside where the assault continued. The Court of Appeal confirmed the sentencing Judge’s starting point at the very top of band 2 of 10 years imprisonment. In coming to that conclusion the Court referred to Hu
v R where a starting point of eight years and six months imprisonment
20 R v Falemaka [2016] NZDC 21827.
21 Rowles v R [2016] NZCA 208.
22 Shen v R [2017] NZCA 103.
had been applied. In that case a young woman had attacked a woman in her sixties with a knife causing lacerations to the head, face and hands.23 It was observed that, while the offender had taken a knife to the scene, the violence involved and the injury caused was significantly less. In another case referred to by the Court, R v Heta, the offender had taken a knife to the scene of the attack. He punched his female partner in the face before using the knife to stab her in the back. Serious injury was caused requiring emergency surgery. A
starting point of eight years and six months imprisonment was upheld.24
(d)R v Emery25 – in the course of a family argument the defendant obtained a boning knife from the kitchen and struck his former partner in the neck and upper body at least four times. When her uncle attempted to restrain the defendant he too was cut twice on the arm. The female victim suffered grievous injuries and was left semi- conscious with stab wounds to the base of her neck, through to her chest and additional defensive lacerations to her forearms, all of which required her to undergo extensive surgery. The injuries were life threatening. By reference to Taueki, Gendall J considered the attack on the female partner by itself attracted a starting point of six and a half or seven years imprisonment, but, together with the assault on the uncle, applied a starting point of eight years imprisonment.
(e) R v Grindrod26 – the prisoner made an uninvited visit to the home of his ex-partner. He observed a workmate in her company and upon being let inside the house confronted the friend and became angry. He left but worked himself into a violent rage causing him to arm himself with a hammer and go to the workmate’s house. There he smashed his way through the front door, broke into his victim’s barricaded
bedroom and attacked him. The defendant struck the victim with a
23 Hu v R [2011] NZCA 412.
24 R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011.
25 R v Emery [2012] NZHC 391.
26 R v Grindrod HC Wellington CRI-2009-032-131, 11 September 2009.
hammer about the head, face and body leaving him unconscious. The defendant then attempted to strangle the victim and smashed his head into the posts of a bed frame. The victim was hospitalised with lacerations to his scalp and arm, a broken nose, and bruising and abrasions to his limbs, neck and throat requiring several months of physiotherapy. A starting point of 10 years imprisonment for the GBH offence and the aggravated burglary charge was applied.
(f) R v W27 – the defendant arrived at the victim’s home in the small hours of the morning in breach of a protection order. He demanded the complainant open the door which she did. Fearing for her safety, she escaped into the street to call the police. However, the defendant pursued her with a large knife taken from the kitchen. Upon catching her by the throat, he forced her to the ground and abused her, yelling intimidating gang slogans. He attempted to stab her in the face. The victim managed to grab the blade, causing deep lacerations to her hand, and snapped the blade. However, the defendant stabbed the victim with the broken blade three to four times in the head before dragging her back towards the house, threatening to kill her, and stomping on her while she was on the ground. The Crown and defence accepted the case fell within the top end of band 2. Muir J considered six of the aggravating features identified in Taueki to be present and applied a nine year starting point noting that only limited premeditation prevented it from falling into a more serious category of case.
(g)Wairau v R28 - the Court of Appeal upheld a starting point of 11 years imprisonment for GBH offending where the defendant had driven to a property, and broken into the house. He stabbed his wife in the chest causing a four centimetre stab wound before further kicking and punching his victim. The appellant, as in the present case, faced the
additional charge of aggravated burglary. The offending was
27 R v W [2016] NZHC 1076.
28 Wairau v R [2015] NZCA 215.
considered to fall squarely within band 3 of Taueki. Five aggravating features were identified as being present: premeditation, serious injury, use of a knife, vulnerable victims (asleep in bed in the early hours of the morning) and forced invasion of the home. The Court of Appeal observed there was some contest as to the seriousness of the wound but nevertheless proceeded on the basis that the four centimetre wound to the chest had been inflicted. It described the end sentence as being within the available range and not manifestly excessive.
(h)R v Singh29 - the defendant travelled to his former wife’s home carrying a pistol in the back of his trousers. The defendant was on leave from the Mason Clinic at the time and explained to his ex-wife the reason he was carrying a pistol was because “gangs were coming for [him]” and that it was for his protection. He remained at the house for some hours where his children were also present. He had dinner with his former wife, after which they went to the bedroom. While his victim was getting dressed he assaulted her and held the pistol, which was later identified as likely to have been an air pistol, to her head. Upon hearing their mother crying, the children entered the bedroom. The defendant picked up an ornamental sword and attacked the victim, inflicting a number of wounds to her upper chest and head before the couple’s son was able to intervene, striking the defendant with a blunt end of a small axe. The defendant ceased his attack and left the scene. The victim suffered a number of injuries which required hospitalisation, including a skull bone fracture with underlining bleeding, facial laceration, and a 15 centimetre cut across her eye. Screws and plates had to be inserted to treat a facial bone fracture below her eye socket. There were also a number of superficial wounds to her breasts, shoulder, arms and head, and a deep laceration to her elbow which caused ongoing sensory impairment.
By reference to the Court of Appeal’s decision in Rowles, the
29 R v Singh [2016] NZHC 1666.
sentencing Court considered the offending fell into band 3 of Taueki, involving as it did an extremely violent and sustained attack on the victim causing her serious injuries. A starting point of 10 years imprisonment was adopted.
[42] Mr Eaton also referred to a number of sentencing decisions concerning charges of attempted murder which involved attacks on former partners, including:
(a) R v Ae30 - the defendant pleaded guilty to charges of attempted murder and breaching a protection order. The victim was the defendant’s wife. He had been drinking heavily. He telephoned her at church and told her to come home. He had prepared two lengths of rope and three knives which he laid out in the hallway in anticipation of her return. When she arrived an argument developed. The wife sought to run away, however, the defendant chased her to another property where he cornered her and forced her to the ground before stabbing her in the head. Despite attempting to protect herself she suffered multiple deep lacerations to her hands and forearms, and wounds to her face and scalp, nearly losing a finger. Moore J, after noting the aggravating features of premeditation, use of weapons, extreme violence, attacking the head, serious injury and the vulnerability of the victim, agreed with the assessment of both the Crown and the defence that the offending fell into the lower end of band 3 of Taueki, and took a starting point of nine and half years imprisonment.
(b)R v Walker31 - the defendant invited his victim to his house before attacking her with a knife and inflicting at least 15 stab wounds to the upper part of her body. The High Court adopted a starting point of
10 years imprisonment.
30 R v Ae [2016] NZHC 965.
31 R v Walker [2015] NZHC 3214.
Discussion
[43] The reviewed cases support Mr Eaton’s submission that the starting point taken by the District Court was high and that having regard to the particular circumstances of Mr Setu’s case a lower starting point could have been adopted. However, some of the cases are of comparable seriousness and demonstrate the difficulty of achieving much more than a broad level of consistency notwithstanding the availability of a comprehensive guideline judgment.
[44] It is trite to observe that each case will turn on its own particular facts and that invariably, each case will have their differences. There are instances of offending more serious than that of Mr Setu’s where lesser starting points have been adopted. There are also those cases, albeit fewer, where the relative seriousness is not dissimilar and a commensurate starting point applied.
[45] Mr Eaton emphasised the important principle of consistency in sentencing, and has endeavoured to demonstrate the 10 year starting point adopted by the District Court is inconsistent with the approach that appears to have been taken, in particular by this Court, when applying the Taueki guidance. However, discretion and flexibility in sentencing remain important aspects of the sentencing exercise. The Taueki guideline judgment recognised that by providing bands of sentence to demonstrate an appropriate range based upon the relative seriousness of the GBH offending by reference to the presence and nature of a number of combinations of aggravating features. I accept Judge Neave could well have concluded that the offending fell into the top of band 2. However, such a categorisation does not exclude a 10 year starting point having regard to the overlap between the bands.
[46] Judge Neave was aware in taking a starting point of 10 years that there were sentencing decisions, indeed a majority of cases, where a lesser starting point has been applied. He noted the tension between those cases and the direct application of the Court of Appeal’s Taueki guidance, based upon the presence of identified aggravating features to which Mr Setu’s offending gives rise. A sentencing Judge is entitled to return to first principles and, in particular, to apply the guidance provided by the Court of Appeal when setting a starting point. This is particularly so when
over the years since the 2005 Taueki decision, a body of decisions have accumulated which illustrate some variation in sentencing levels and perhaps to some extent “sentence drift” from the original guidance provided by the Court of Appeal.
[47] That development of itself may simply reflect what the Court of Appeal acknowledged in its Taueki decision, namely that sentencing ultimately involves the exercise of discretion and must allow for flexibility. The fact that some sentencing Courts have chosen, as they are entitled, to apply Taueki in a particular way does not, in my view, render another sentencing Court’s application of the Taueki guidance in another case inappropriate, so long as the starting point arrived at can be reconciled with the range the Court of Appeal has held to be available because of the nature and combination of aggravating features.
[48] To suggest otherwise would effectively relegate Taueki to a secondary source of guidance in favour of a requirement that a sentencing Court undertake a comprehensive review of cases, the circumstances of which will almost inevitably vary, before it may confidently impose a sentence for GBH offending. While assistance from other sentencing decisions provides a useful check, such an approach would largely defeat the purpose and utility of the guideline authority.
Lethality of weapon and seriousness of injury
[49] I return to the question of the lethality of the weapon used and the seriousness of the injuries inflicted upon which Mr Setu’s argument of an excessive starting point primarily rests.
[50] Mr Eaton submitted the cases upon which he relies, particularly where starting points of 10 years or more have been taken, are notable for both the use of a lethal weapon in the form of a knife or sword and/or the infliction of very serious injuries which involved more than the severance of the skin and placed the victim’s life in danger. Absent those features in cases similar to the present, and notwithstanding premeditation and a vulnerable victim, he submitted a 10 year starting point must be too high.
[51] There are obvious fatal risks associated with the use of a knife or a sword or indeed any implement specifically designed as a weapon. That was recognised by the Court of Appeal in Taueki when it referred to the use of a lethal weapon such as a firearm or a knife. Similarly, however, the use of a club, particularly when aimed at the head which can cause significant and permanent injury, was an example the Court also expressly mentioned. I accept there is an inherent serious danger when an offender confronts his victim with a knife and uses it as a weapon, but there is a comparable level of danger arising from a person arming himself with a piece of wood, effectively a club, standing over his victim asleep in her bed, and using it to strike blows to the head. It is of course the use of the blunt instrument to the head of a vulnerable victim, which in combination aggravates the attack. In that regard, the overlap of the aggravating factors and the risk of double-counting must be guarded against.
[52] In terms of the seriousness of the injury, it must be acknowledged the wounds suffered by Mr Setu’s victim were not life threatening and can be distinguished from some of the critical injuries and damage that in other cases have resulted from the GBH offending. Two points however need to be borne in mind. The first is that the victim has suffered physical scarring to her face as a result of the attack. In terms of a long term injury, I do not consider that outcome as being less serious than broken bones or fractures. The injury is likely to remain as a constant reminder to the victim of this traumatic event. Secondly, as Judge Neave observed, attacks of this type involving the use of a club to target the head of a prone victim can, and do, result in very serious head and brain injuries. However, I accept that such a consideration goes to the nature of the attack rather than its outcome.
Conclusion
[53] Returning to the assessment of the aggravating features calibrated by these observations and taking into account the way in which a number of these factors overlap, were only moderately present, or are linked with other aggravating features, I consider it likely the eight factors identified by Judge Neave might, in another GBH case, be the equivalent of perhaps three or four substantive separate or discrete aggravating factors. It is the combined overall effect of these aggravating features
which must be assessed when applying the Taueki guidance. Taking that into account, I conclude the offending still fell within the higher end of band 2 and the lower range of band 3. A 10 year starting point therefore, while stern, does not fall outside the range available to the sentencing Court, notwithstanding other sentencing decisions which would have permitted the District Court to have taken a lower starting point. I do not consider the starting point that was applied to have led to the ultimate sentence imposed on Mr Setu being manifestly excessive.
[54] The appeal is dismissed.
Solicitors:
Jonathan Eaton Queens Counsel, Christchurch
Raymond Donnelly & Co, Christchurch
7
9
0