Smith v R

[2014] NZHC 3033

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2014-406-12 [2014] NZHC 3033

BETWEEN

LEVI JAMES BRIAN SMITH

Appellant

AND

THE CROWN Respondent

Hearing:

25 November 2014

(At Wellington)

Counsel:

R M Gould for Appellant
N McKessar for Respondent

Judgment:

28 November 2014

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      On 11 August 2014 Mr Smith pleaded guilty to two counts of injuring with intent to injure and one charge of possession of an offensive weapon (a knife) in circumstances that showed an intention to use it to commit an offence involving a threat of violence.   On 25 August 2014 Judge Zohrab sentenced Mr Smith to two years  and  nine  months’ imprisonment  on  the  injuring  charges,  and  one  year’s imprisonment  on the offensive  weapon  charge,1   the two  sentences  to be served concurrently.

[2]      Mr Smith now appeals on the grounds that:

(a)       The uplift for previous offending was too great;

(b)      The Judge did not give a sufficient discount for Mr Smith’s mental

impairment and rehabilitative needs.

1      Police v Smith DC Blenheim CRI-2014-006-661, 25 August 2014.

[3]      No challenge is made to the starting point adopted of three and a half years’ imprisonment on the lead charges.   Indeed it was the figure defence counsel had advocated.

Background

[4]      Mr Smith is a 26 year old man.  He has had an extremely difficult upbringing. The Judge described it as “miserable”.2    His mother was a drug addict.  His father was in prison.  His step-father is a member of the Mongrel Mob.  Between the ages of 7 and 16 he was the care of Child, Youth and Family.   He was physically and sexually abused during that time.  He did not achieve any formal qualifications at school.  He has been in and out of prison himself since the age of 17.

[5]     During his most recent stay in prison, Mr Smith received a $40,000 compensation payment from the Ministry of Social Development.  That was for the sexual abuse he suffered while in their care.   His stepfather caught wind of this. Against Mr Smith’s wishes, he picked him up from the prison gate upon his release. He took him to live with him in Napier.  He was regularly assaulted and bullied by his father and his Mob associates.  In less than two months, he had spent all of the

$40,000 on methamphetamine (purchased from his father’s associates) and on cars (which were then taken by the Mob).  Once the money was gone, they threw him out.

[6]      Wanting to escape the influence of the Mob, avoid substance abuse and find a job, Mr Smith and his girlfriend moved to Blenheim in April 2014.   They found seasonal work on vineyards.  The work did not last.   Nor did he manage to abstain from cannabis and alcohol abuse. This created friction in the relationship.

[7]      During this time, Mr Smith’s mental health deteriorated.   He continued his heavy  substance  abuse.    Mr  Metoui,  a  forensic  psychologist,  reports  that  he developed paranoid and bizarre beliefs.  He experienced perceptual disturbances.  He had paranoid ideas about his partner’s infidelity.  He thought a previous partner was

masquerading as his current partner.  He thought she was conspiring to deprive him

2 At [29].

of access to his daughter by having him imprisoned.  He thought one of his cousins

was a “witch”.  He was not, however, legally insane at the time of offending.

[8]      On the night 13 July 2014 Mr Smith and his girlfriend went out drinking in Blenheim.  They returned to the motel with some friends.  Mr Smith began to rant and rave.  He kicked his legs in the air.  He started to swear. The friends left.

[9]      Mr Smith’s girlfriend upbraided him about his behaviour.  He says she began hitting him.  He became angry.  He moved behind her.  He wrapped one arm around her throat.  He applied force.  Strangling her, almost the point of unconsciousness. She broke free and ran to the bathroom.

[10]     The struggle continued.   Mr Smith dragged her from the bathroom to the bedroom.   She attempted to leave.   Mr Smith would not allow her to.  Again, he wrapped one arm around her throat.   He applied force.   He prevented her from escaping or breathing.  She lost consciousness.

[11]     After a period of time unknown, she woke up on the floor of the motel unit. She got to her feet.  After another brief altercation with Mr Smith, she left the motel unit.  She made her way to the police station.  She suffered a haematoma in her left eye, haemorrhaging in both her eyes and bruising to her face, throat and body.

[12]     When police arrived at the motel, they found Mr Smith asleep in bed.  On the table beside him was a sharp kitchen knife.  It was slightly larger than a steak knife. Inside the bed, next to Mr Smith, was a kitchen carving fork.  In his hands he held a screwdrver and pocket knife.  It took a number of requests before he agreed to give up the knife.

[13]     Mr Smith initially denied assaulting the victim.  He now accepts that he did wrap his arm around her neck.  He says he did so in order to calm her down and stop her hitting him.  He says he had not intended her to fall unconscious.  He could not explain why he decided to restrain her with a choke-hold.   That explanation is of course largely inconsistent with the guilty plea entered.

District Court decision

[14]     The Judge found that there were at four Taueki aggravating factors present. First, extreme violence.   There was medical evidence that jugular vein had been obstructed.  Obstruction for more than four minutes leads to death.  Secondly, attack to the head.  Thirdly, prolonged attack.  Fourthly, significant injuries.3   Applying the approach in R v Nuku where the Taueki factors are applied to less serious offending, the Judge placed the offending in band three, attracting a starting point of between three and five years’ imprisonment.4    The Judge took a starting point of three and half years’ imprisonment.5

[15]     The Judge then imposed an uplift of six months’ imprisonment for previous convictions (4 years).  His Honour then allowed the full 25 per cent discount for a guilty plea made at the first reasonable opportunity (3  years).   The Judge then allowed a further 10 per cent discount for the drug-induced psychosis Mr Smith was suffering from at the time of his offending.  That brought the end sentence to two years and nine months’ imprisonment.

Grounds of appeal

Uplift for previous offending

[16]     The  Judge  imposed  an  uplift  of  15  per  cent  to  account  for  Mr  Smith’s previous convictions.   Ms Gould, for the appellant, submits that only a seven per cent uplift was warranted.   She submits that Mr Smith has no history of extreme violence.   His previous offending has mainly involved dishonesty and driving offences.

[17]     For the Crown, Mr McKessar rightly points out that Mr Smith has a very long list of dishonesty and driving offences for a man of 26 years of age.   More importantly, although Ms Gould was minded to de-emphasise it in her submissions,

he does have a history of violent offending.   Those convictions include indecent

3      R v Taueki [2005] 3 NZLR 372 (CA).

4      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

5      Police v Smith DC Blenheim CRI-2014-006-661, 25 August 2014 at [26].

assault (2005), male assaults female (2006) possession of an offensive weapon (2006 and 2008) and assault with intent to injure (2011).   While some of the offending occurred nearly 10 years ago while Mr Smith was a teenager, the 2011 conviction shows his occasional propensity to violence remains.

[18]     In  the  circumstances,  I  do  not  think  an  uplift  of  15  per  cent  could  be impugned.  And in any event the Judge gave no separate uplift for the totality of the offending being sentenced. Taken together, 15 per cent is plainly not excessive.

Discount for mental impairment

[19]     The  Judge  allowed  a  ten  per  cent  discount  for  the  causative  effect  of

Mr Smith’s drug-induced psychosis in relation to his offending.

[20]     Ms Gould submits that a discount in the range of 30 per cent should have been given for Mr Smith’s mental impairment.  A discount of that magnitude would take his sentence down to 2 years’ imprisonment.   That is significant because it would allow me to set release conditions.

[21]     In E (CA689/10) v R the Court of Appeal held that:6

[68]      A  mental  disorder  falling  short  of  exculpating  insanity  may  be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.

[69]     All relevant considerations must, however, be taken into account in the sentencing process. Mental illness or mental impairment may affect the risk of a repetition of offending. This in turn may direct attention to issues of personal deterrence or public protection.

[22]     In the cases surveyed by the Court of Appeal, the discounts given for mental disorder ranged from 12 per cent to 30 per cent.7

6      E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 (footnotes omitted).

7 At [71].

[23]     Both Mr Prince and Mr Metoui (forensic psychologists) agree that Mr Smith suffered from a substance-induced psychotic disorder at the time of the offending.8

He had hallucinations and delusions relating to his partner’s identity and fidelity.  He therefore had diminished understanding of his actions.   But it did not render him insane.  Mr Prince and Mr Metoui also agree that Mr Smith does not suffer from any enduring or underlying mental disorder.

[24]     It seems reasonably clear that Mr Smith’s delusions were in part causative of

his offending. The Judge said:9

It is clear from the psychologist’s report, Mr Prince, that your most recent offending that you are appearing for sentence today has been contributed to by what he characterises as a substance-induced psychotic disorder.

Mr Metoui’s report does not articulate the precise mechanism by which Mr Smith’s mental impairment caused his offending.  But it is not hard to see how delusions of infidelity lead to anger and to violence.  Or how hallucinations might lead a man to fall asleep clutching a variety of sharp weapons.

[25]     But, as the Judge noted, Mr Smith’s voluntary intoxication, along with his

propensity to use violence and weapons played the largest part in his offending.10

Therefore any discount must fall at the lower end of the range.

[26]     It is impermissible to give a discount for the fact a defendant was affected by the voluntary consumption of alcohol or drugs at the time of the offending.11    As Mr McKessar points out, the discount was given by the Judge in this case because Mr Smith suffered from a psychosis secondary to drug consumption that developed over a period of weeks.  Mr McKessar accepts that discount was appropriate.  But no discount can be attributed to the immediate effects of intoxication with drugs or

alcohol at the time of the offending.12

8      Mr Metoui’s report was prepared after sentencing.  The Crown says it is fresh evidence and therefore requires leave before it can be relied upon.   However, very fairly leave was not opposed.

9 At [30].

10 At [31].

11     Sentencing Act 2002, s 9(3).

12     See the distinction drawn between the immediate effects of intoxication and diminished capacity in R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 at [54]-[55].

[27]     While a discount of 10 per cent might be conservative, it could not be said to be out of range in the circumstances of this case, or unduly severe.  At most, looking at matters afresh and with Dr Metoui’s report, I might have allowed 12-15 per cent. An  adjustment  of  one  or  two  months  to  Mr  Smith’s  sentence  would  be  mere tinkering. That is not the role of this Court sitting on appeal.13

Rehabilitative prospects

[28]     The thrust of Ms Gould’s submissions appears to be that this appeal is an attempt to have the Court reduce Mr Smith’s sentence to one of two years’ imprisonment.     That  would  engage  the  Court’s  power  to  set  special  release conditions. That is not permissible if a longer sentence is imposed.14  The aim would be to set conditions requiring Mr Smith to reside at Moana House or Odyssey House for a residential drug and alcohol rehabilitation programme.   Mr Smith has stated

that he is highly motivated to participate.

[29]     While that goal is laudable, there are two problems with the submissions. First, it is impermissible for the Court to artifically inflate discounts in order to allow release conditions to be imposed.  In R v N (CA354/03) the Court of Appeal held that such a discount would:15

…involve a perversion of the sentencing process. The appropriate term of imprisonment cannot be manipulated so as to provide the Court with jurisdiction to impose conditions.

[30]     Second, I see no reason why the Parole Board, if it thinks it appropriate, could not impose special conditions of residence and participation in a rehabilitation programme16 as part of conditions of parole.17   The Board will be in a better position than this Court to assess whether Mr Smith’s drive to rehabilitate is durable and sincere.   In doing so it will have the benefit of Dr Metoui’s report, which shows

Mr Smith is making positive progress in prison.

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 402, making clear that the “manifestly excessive” criterion for appeal has not been eradicated by s 250 of the Criminal Procedure Act

2011.

14     Sentencing Act 2002, s 93.

15     R v N (CA354/03) CA354/03, 1 March 2004 at [18].

16     Parole Act 2002, s 15(3).

17     Section 29.

Result

[31]     Appeal against sentence dismissed.

Stephen Kós J

Solicitors:

Crown Solicitor, Blenheim