Swan v Police

[2014] NZHC 69

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000058 [2014] NZHC 69

BETWEEN  IVAN RICHARD SWAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   4 February 2014

Appearances:           J S Gurnick for Appellant

L Dunn for Respondent

Judgment:                5 February 2014

JUDGMENT OF COURTNEY J

SWAN v NZ POLICE [2014] NZHC 69 [5 February 2014]

Introduction

[1]      Ivan Richard Swan pleaded guilty to  three charges arising from separate incidents of domestic violence.  They were male assaults female in February 2012, followed by assault on a child in June 2012 and wounding with reckless disregard in February 2013.  He appeals the sentence imposed on him by Judge Connell of two years and one month’s imprisonment.1

[2]      The grounds of the appeal are that the sentence is manifestly excessive by reason of the Judge taking starting points that were too high, failing to address the issue of totality and failing to give sufficient discount for mitigating factors.

Were the starting points too high?

[3]      The Judge took the charge of wounding with reckless disregard as the lead offence.   This incident occurred when Mr Swan was coming down off a methamphetamine-induced high.  He became angry with his partner and threw a pair of scissors at her.  It was not asserted that there was a deliberate aim but the scissors hit the victim’s head resulting in a laceration to the back of the head which bled heavily.  Although the Judge did not go into details, he referred to the injury as one that caused problems later in terms of its treatment and care.

[4]      In determining the appropriate starting point the Judge considered authorities provided by Mr Swan’s counsel, Mr Gurnick, including R v Tuwairua2 in which the starting  point  had  been  two  years  eight  months.    The  Judge  accepted  that  the offending was less serious than the circumstances of Tuwairua and took a starting point of two years two months.

[5]      Mr Gurnick submitted that the present case was much less serious than both Tuwairua and also two other recent cases involving the same charge, R v Grimshaw- Jones3  and Middlemiss v Police.4     Mr Gurnick pointed out that Grimshaw-Jones

involved two separate charges of wounding with reckless disregard, which attracted

1      R v Swan DC Hamilton CRI-2013-019-001528, 27 September 2013.

2      R v Tuwairua [2009] NZCA 495.

3      R v Grimshaw-Jones [2010] NZCA 490.

4      Middlemiss v Police HC Dunedin CRI-2009-412-38, 11 February 2010.

concurrent sentences for which starting points of two years eight months was taken. In  Middlemiss a starting point of three  years had been taken for serious injury inflicted with a knife.   He submitted that the much greater seriousness of the offending in these cases suggested a difference of eight to ten months between the starting points in these cases and the present case was insufficient.  He submitted that it should be closer to 15-18 months.

[6]      Ms  Dunn  resisted  the  suggestion  that  the  starting  point  was  too  high, submitting that the assessment of the seriousness of the offending was to be made on the distinct factual basis that existed and that Mr Swan’s offending could not be regarded as trivial.

[7]      I consider that the nature of the offending in Grimshaw-Jones, Middlemiss and Tuwairua, was, in each case, significantly worse than the present case.   They involved the use of knives in close proximity to the victims and significant wounds to  the  victims,  with  either  permanent  consequences  (scarring  in  the  case  of Grimshaw-Jones) or a period of hospitalisation (in the case of Middlemiss).  In the present case Mr Swan was not armed, but merely picked up scissors that were at hand.  He was not using a weapon in close proximity to the victim so that the risk of serious injury was not as high.  Although there was a moderately serious wound, the information does not suggest that it was as serious or its consequences so long term as those in the other cases.   I agree with Mr Gurnick that the difference of eight months between the starting point taken in this case and the starting point taken in Tuwairua and Grimshaw-Jones does not properly reflect the difference in the seriousness of the offending.   I consider that a starting point of 18 months would have been appropriate.

[8]      Mr Gurnick also submitted that the starting points of nine months taken on each of the assault on a female and assault on a child were too high.  He suggested that, viewed in isolation, these kinds of offences would probably not result in imprisonment at all.  I do not accept that the Judge was wrong in his assessment of the starting point for the charges.

[9]      The assault on a female charge related to a vicious and sustained assault, in which Mr Swan punched his partner around the head for some half-hour, resulting in a black-eye and bruising.   The assault on a child charge related to an incident in which Mr Swan slammed his three-year-old son against a wall hard enough to put a hole in the wall.   Although the child himself was not injured the facts speak for themselves in terms of the fear and distress that the assault would have caused.

Totality

[10]     Having identified the starting points the Judge indicated that the two assault charges would attract concurrent sentences and uplifted the starting point for assault on the child by three months, presumably to reflect the totality of those offences, though he referred to this as being to reflect the concurrency of the offences:

[23]      ... On the charge of assault on a child, to cover the concurrency of the two separate offences, I would give an uplift of three months.   That would be a 12 month term.

[11]    The Judge imposed the sentence for wounding with reckless disregard cumulatively, and allowed an 11 month deduction, apparently from the wounding charge for Mr Swan’s guilty plea:

[24]      If I add the 12 months to the 24, you will understand that is a total of

36 months.

[12]     Mr Gurnick submitted that the Judge also failed to turn his mind to the issue of totality, which I accept.   The Judge did consider totality in relation to the two assault charges but failed to consider it at the point he imposed the cumulative charge.  Although there was no criticism of the Judge’s imposition of the two assault charges cumulative on the wounding charge, the reason for doing so is not clear; the three offences took place several months apart and were quite different.   In the circumstances, the sentencing exercise would have been more straightforward if all the sentences had been either concurrent or cumulative, with totality considered only once.

[13]     Having concluded that the Judge was in error in relation to both the starting point on the wounding charge and the issue of totality, I therefore consider what an

appropriate  sentence  would  have  been.    A starting  point  of  18  months  on  the wounding charge and all three sentences imposed cumulatively would have resulted in a total of 36 months.  I consider that this would have been disproportionate to the seriousness of the overall offending, given that none of the offences have resulted in long term physical harm.  The lead sentence should therefore be reduced by eight months to 28 months.

Mitigating factors

[14]     The  judge  gave  a  single  discount  of  11  months  (30  per  cent)  for  the mitigating factors, including the guilty plea:

What I propose to do though is give you credit for your lack of previous convictions, credit for the plea of guilty, because in this case it is very much one where considerable trauma has been saved to your family by not having them come to court and give evidence about these matters.  On that basis I have come to a conclusion that I should allow an 11 month credit, taking into account  all  of  those  things.    So  you  will  understand  today  that  I  have imposed a sentence of two years and one month’s total because the 12 months is cumulative on the 24, less the 11 months, gives you that end sentence of two years and one month’s imprisonment.

[15]     I note that the proper course is to consider the discount for the guilty plea separately from other mitigating factors.5    Although one might infer that a 25 per cent discount was allowed for the plea, it is not certain.  As a result, nor can I tell what discount was allowed for Mr Swan’s good record.

[16]     Mr Gurnick submitted that insufficient attention was given to remorse and Mr Swan’s medical conditions.  The issue of remorse seemed to be based on a letter written by Mr Swan and put before the Judge at sentencing.  Although the letter was mentioned, it seems that the deduction for mitigating factors did not include remorse. However, I am not persuaded that this was an error; even assuming that the letter contained material that suggested genuine remorse justifying a separate deduction, reported statements contained in the probation report would have countered any such conclusion.  Although Mr Swan has some insight into the effect of his offending on

his children, it is also evident from the pre-sentence report that he has a tendency to

5      R v Hessell [2010] 2 NZLR 298; [2009] NZCA 450.

shift responsibility for his offending, blaming his methamphetamine habit and his

partner’s choice of work for his behaviour.

[17]     Nor do I consider that Mr Swan’s medical conditions would have justified a separate deduction.  There was evidence that he had had a heart attack in mid-2013 and had been diagnosed with an adjustment disorder and depression earlier in 2013. However, at the time of the pre-sentence report he was only on medication for his heart condition.  There was no evidence from which the Judge could have concluded that his medical condition would make a term of imprisonment excessively harsh.

[18]     As a result, I consider that the only mitigating factors justifying a deduction were the guilty plea and Mr Swan’s clean record.  A discount of 25 per cent for the guilty plea was appropriate.  However, I think that a slightly higher discount of 10 per cent was warranted for the previous good record.   This would mean the provisional  sentence of  28  months  would  be reduced  to  a  final  sentence of 18 months.

Home detention

[19]     Mr Swan also appeals the Judge’s refusal to give leave to apply for home detention in the event that a suitable address became available.  Mr Gurnick pointed out that at the sentencing hearing the Crown had indicated that it would not oppose a sentence of home detention.  In fact, because no suitable address was available, that aspect was (and still is) hypothetical only.

[20]     Mr Gurnick advanced this aspect of the appeal on the basis of s 8(g) of the Sentencing Act 2002 and the statements of the Court of Appeal in  R v Rawiri regarding the desirability of keeping an offender in the community as far as that is practicable and consonant with the community’s safety.6

[21]     In refusing leave to apply for home detention the Judge said:

In terms of home detention my views on this are that  this offending is marked by its cruelty.  It is one of those factors that the Sentencing Act asks that the Court takes into account and I do not see that this sentence would be

6      R v Rawiri [2011] NZCA 244.

able to be served by home detention without making sure that I mark this offending in the way that it should be marked.   I refuse the application to consider home detention and your ability to apply for it.  You will serve this sentence.

[22]     Having regard to the nature of the offending and the pre-sentence report I am not satisfied that the Judge made any error in his assessment.  Although Mr Swan had no previous convictions he was nevertheless assessed as being of medium to high risk mainly because it was considered that he did not have the coping skills necessary to deal with his emotional fluctuations.  In addition, Mr Swan was clearly vulnerable as a result of his alcohol and drug use.  In these circumstances a sentence of home detention is not appropriate.

Result

[23]     The appeal against sentence is allowed. The sentence imposed by the District

Court is quashed and a sentence of imprisonment of 18 months substituted.

[24]     The appeal against the refusal to grant leave to apply for home detention is dismissed.

P Courtney J