Sheppard v R
[2013] NZCA 639
•11 December 2013 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA530/2013 [2013] NZCA 639 |
| BETWEEN | CHRISTOPHER EDWARD SHEPPARD |
| AND | THE QUEEN |
| Hearing: | 21 November 2013 |
Court: | Harrison, Simon France and Dobson JJ |
Counsel: | C D Savage for Appellant |
Judgment: | 11 December 2013 at 11.00 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of two years and three months’ imprisonment is quashed and a sentence of six months’ home detention is substituted.
C The sentence of home detention is to be served at the address identified in the report prepared for the District Court by the Department of Corrections in July 2013. On his release, Mr Sheppard is to go directly to that address and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
On 15 July 2013, the appellant (Mr Sheppard) was sentenced by Judge Crosbie in the District Court at Dunedin on convictions for one charge each of wounding with intent to injure and possession of an offensive weapon.[1] Mr Sheppard was sentenced to two years and three months’ imprisonment, with a concurrent sentence of nine months’ imprisonment on the less serious conviction. He has appealed the longer sentence, contending that it was manifestly excessive.
[1]R v Sheppard DC Dunedin CRI-2012-012-1812, 15 July 2013.
The charge of wounding with intent to injure carries a maximum penalty of seven years’ imprisonment, and that for possession of an offensive weapon carries a maximum penalty of three years’ imprisonment. On sentencing, the Judge treated the second conviction as carrying a maximum penalty of two, rather than three, years’ imprisonment.[2] We are not concerned that the Judge’s misapprehension as to the maximum penalty had any bearing on the correctness of his analysis on sentencing.
The facts
[2]The penalty had increased from two to three years as from 19 March 2012: Crimes Amendment Act (No 3) 2011, s 8.
The offences occurred around 11.30 pm on 25 May 2012. Mr Sheppard and two female friends were asked to leave a central Dunedin bar. The victim in the wounding was a part-time security guard employed at the bar, who had been called to assist in dealing with Mr Sheppard’s group. There had been an argument between Mr Sheppard and other members of the staff at the bar, and after the victim confirmed a request that they were to leave the premises, Mr Sheppard grabbed the back of the victim’s neck, pulled the victim towards him, and at the same time thrust a small screwdriver into the neck of the victim. The victim sustained a small puncture wound to his throat, which was cleaned and dressed by medical staff. Bruising associated with the attack made it difficult for him to eat solids for about a week and the victim was also emotionally harmed by the experience.
After Mr Sheppard and his companions left the bar, they came across a group of males in the street, one of whom asked Mr Sheppard if he was alright. His response was threatening and abusive and he walked towards the group of males, holding the screwdriver in his fist. He was restrained, Police arrived, and he was subsequently charged with wounding in relation to the first aspect of the incident, and possession of an offensive weapon in relation to the second.
The matter went to trial, but Mr Sheppard entered guilty pleas at the start of the second day of the trial, after the victim and other Crown witnesses had given their evidence.
Approach on sentencing
The sentence was challenged on the basis that Judge Crosbie adopted too high a starting point. The Judge ranked the relative seriousness of the offending by consideration of aggravating features as described by this Court in R v Taueki.[3] The features contended for on behalf of the Crown, and which were essentially accepted by the sentencing Judge, were:
· attack to the head;
· use of a weapon;
· premeditation; and
· vulnerability of the victim.
[3]R v Taueki [2005] 3 NZLR 372 (CA) at [31].
In a conventional way, the Judge considered the relative seriousness by reference to the guideline for sentencings in offences which involve an intent to injure. This Court in Nuku v R stated that where three or more of the aggravating features listed in Taueki are present and the combination of those features is particularly serious, the offending would fall within band three of those provided.[4] That band is reflected in starting points between two years up to the statutory maximum of either five or seven years. The Judge did not consider that any one aggravating feature was present to a level of seriousness that would, of itself, justify the band three classification.
Aggravating factors
[4]Nuku v R [2012] NZCA 584, [2013] NZLR 39 at [38].
First, the Judge treated this as the equivalent of an attack to the head of the victim, which constituted one aggravating feature. We agree that an attack to the neck is similar to an attack to the head of a victim, given the comparable level of risk of causing serious injury.
The second aggravating feature was the use of the screwdriver as a weapon, and that is also appropriate.
Thirdly, the Judge considered that Mr Sheppard having taken the weapon into town with him created the prospect that if he became involved in an altercation he might use it as he did. The Judge treated that as a form of premeditation that qualified as an aggravating feature. This characterisation of how Mr Sheppard came to have the screwdriver is at odds with the pre-sentence report, which relayed Mr Sheppard’s explanation that he had found it earlier the same night and kept it as a tool for lawful use. We have assessed the appeal on the basis of the Judge’s description.
The Judge appears to have initially doubted that this offending reflected premeditation of a type that was a feature worthy of substantial weight.[5] However, the Judge then focused on the point that Mr Sheppard had taken the weapon with him and had been ready to use it if necessary. Although not expressly stated, it is possible this was ultimately treated as meaning the Taueki factor of premeditation was present. If so, it is a conclusion we disagree with. There is no suggestion that Mr Sheppard targeted the victim, who was apparently unknown to him. Nor is there any suggestion he was intent on attacking someone. The incident that occurred was spontaneous and it is incorrect to regard this aggravating factor as being present.
[5]At [16].
Vulnerability of the victim was the fourth aggravating factor considered. The Crown had accepted that there was no inherent vulnerability, but the Judge considered there was an element of vulnerability in that the security guard working in a Dunedin bar should not have any expectation that patrons he confronted would be armed. The Judge referred to authority in this Court to the effect that a surprise nature of a knife attack can be relevant to the vulnerability of a victim.[6]
[6]Graham v R [2011] NZCA 131.
Mr Savage submitted that a lack of expectation that one might be subjected to an attack of the type that ensues does not make the victim vulnerable. For the Crown, Ms Vear supported the recognition of an element of vulnerability by citing appellate decisions in which victims working as taxi drivers, fast food delivery drivers, prostitutes and bank tellers were treated as vulnerable.[7]
[7]See R v Mako [2000] 2 NZLR 170 (CA) at [57]; R v Rapira [2003] 3 NZLR 794 (CA); R v Marsters CA269/05, 29 November 2005; and R v Cassidy CA254/02, 17 October 2002.
Section 9(1)(g) of the Sentencing Act 2002 provides as an aggravating feature:
(g)that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender.
There are well-established categories of vulnerable victims including children,[8] elderly people,[9] and those suffering from a medical or mental health condition or disability.[10] Particular vulnerability can also arise from the temporary state of a victim, such as intoxication, which the defendant exploits.[11]
[8]R v Accused(CA291/90) [1991] 3 NZLR 405 (CA); R v Wilson [2004] 3 NZLR 606 (CA).
[9]R v Puru [1984] 1 NZLR 248 (CA); R v Te Pou [1985] 2 NZLR 508 (CA); and R v Potatau (1989) 4 CRNZ 552 (CA).
[10]R v Jackson (1997) 14 CRNZ 573 (CA); R v Green CA461/04, 2 June 2005.
[11]R v Donaldson (1997) 14 CRNZ 537 (CA).
However, the analysis of victim vulnerability in Taueki marked a shift away from attempts to categorise victims who are automatically considered vulnerable. It is preferable to undertake a more fact-specific enquiry into the features of the victim and the circumstances they were in at the time of the offending. As this Court observed in Graham v R:[12]
Many victims will have been vulnerable to some extent. Whether or not a particular factor truly aggravates offending will be a question of fact and degree requiring judicial assessment.
[12]Graham v R, above n 6, at [13].
Recognising vulnerability in the present situation would mean that all victims suffering an unexpected attack would be classified as vulnerable. It is certainly not vulnerability in the classic sense when security guards, or “bouncers” as the sentencing Judge characterised the victim, are generally physically fit and strong, employed in the expectation that they may have to handle physical confrontations.
The Judge did not explicitly discount any of the aggravating features that had been urged on him on behalf of the Crown. He was not precise in quantifying them:[13]
As I have said, I do not accept that the degree of weight can be attached to each of the features that the Crown has given me, although I accept clearly that there are around three.
That suggests that the Judge either treated one of premeditation and vulnerability as a qualifying aggravating factor, or was prepared to treat each of them as having some application, to an extent that they jointly justified weight as a single aggravating factor.
[13]At [22].
For the reasons given we do not accept that either premeditation, or vulnerability, in the sense these terms are identified in Taueki as specific aggravating factors, were present here.
The starting point and discounts
The Crown contended at sentencing for a starting point of four years’ imprisonment. Mr Savage on behalf of Mr Sheppard contended for a starting point of two years. The Judge opted for a starting point of three years’ imprisonment which is challenged on appeal as being excessive.
We are satisfied that the starting point was too high. Although the Judge expressed doubts about each of vulnerability and premeditation when considering them individually, his overall assessment must have placed some reliance, presumably on a combination of both of them. That has led to him placing the offending relatively higher within the bands from Nuku than was appropriate. Two and a half years was the starting point that would have appropriately reflected the considerations relevant to sentencing.
In arguing the appeal, Ms Vear submitted that the conviction for possession of an offensive weapon should have been treated as an aggravating feature, justifying an uplift in the starting point. We do not accept that approach because the second charge arose very much out of one course of conduct, and did not add to the seriousness of the prior component of it.
From that point, the Judge had adopted a 15 per cent discount because, at the age of 21, Mr Sheppard had led an otherwise decent life with no relevant previous convictions. In addition, a 10 per cent discount was applied for the late guilty plea part way through his trial. The Judge applied those two as a single 25 per cent deduction, coming down to a sentence of two years and three months’ imprisonment. In addition, Mr Sheppard was ordered to make an emotional harm payment of $500.
The Judge imposed a concurrent sentence, for the lesser conviction of possession of an offensive weapon, of nine months’ imprisonment. It is by no means decisive, but we note that as a stand-alone sentence for a relatively minor case of possession of an offensive weapon, for a first offender with a previous good record, a term of imprisonment could seldom, if ever, be warranted.
Ms Vear submitted that the 10 per cent discount for a guilty plea was not justified so that the total discount could be treated as generous in the circumstances. However, the Judge had presided at the trial, there had been a change of stance on behalf of the prosecution in relation to accepting a plea for a lesser charge, and it is not appropriate to uphold what is otherwise an excessive sentence by removing a part of a total discount of 25 per cent, which the sentencing notes record counsel were agreed upon.
From a starting point of two and a half years, applying a discount of 25 per cent would have resulted in a sentence of some 22 and a half months.
Result
The recommendation in the pre-sentence report was for an order for reparation, community detention and community work. In the event of an electronically monitored sentence, an appendix to the report assessed Mr Sheppard’s residential address as suitable. He and his partner have a one year old daughter and, until this proceeding, he had been in regular work in the construction industry. We accept Mr Savage’s submission that once the term of a sentence of imprisonment is below two years, he is an appropriate candidate for an electronically monitored sentence.
Mr Sheppard has now served four and a half months of a total sentence of 27 months, with a realistic expectation of parole after nine months. Accordingly, he has served half of the length that would reasonably be expected, and the appropriate course in transforming a reduced sentence into one of home detention is to give proportionate credit for that.
We accordingly allow the appeal, quash the sentence imposed and substitute one of six months’ home detention on the more serious conviction for wounding with intent to injure. On the conviction for possession of an offensive weapon, the substituted sentence is one of two months’ home detention to be served concurrently. The order for reparation stands.
We direct that on Mr Sheppard’s release, he is to go directly to the home detention address identified in the report prepared for the District Court by the Department of Corrections in July 2013, to await the arrival of those responsible for the electronic monitoring of his sentence of home detention. Mr Sheppard is not to consume or be in possession of alcohol at all times while subject to home detention. Any absence from the property at which the sentence is to be served for work or medical purposes is to be arranged in advance with those monitoring his sentence.
Solicitors:
Public Defence Service, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
17
3
0