The King v Jesse Marcel Wright

[2023] NZHC 2457

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2023-083-000209

[2023] NZHC 2457

THE KING

v

JESSE MARCEL WRIGHT

Counsel:

J J Harvey for Crown

J H C Waugh for Mr Wright

Sentencing:

1 September 2023

SENTENCING NOTES OF RADICH J

Introduction

[1]                 Jesse Marcel Wright, you appear for sentence today having pleaded to a charge of attempted murder.1

[2]                 While a good part of what I am going to say today was included within the sentencing indication that I gave you in July, it is important for this decision to contain a complete record of the basis for my decision. Accordingly, this decision incorporates reasons upon which the sentencing indication was based and, in addition, addresses matters arising subsequently from further submissions that have been made by your lawyer and by the Crown and from the sentencing reports and other information provided to the Court.

1      Crimes Act 1961, s 173 (maximum penalty 14 years’ imprisonment, offence category 4).

R v WRIGHT [2023] NZHC 2457 [1 September 2023]

[3]In sentencing you today, I am going to explain several things:

(a)the alleged offending;

(b)the starting point I have adopted for an appropriate sentence;

(c)the adjustments I would make to this starting point taking into account your personal circumstances; and

(d)the finite sentence I will impose.

Summary of facts

[4]                 In pleading guilty, you have agreed with the summary of facts prepared by the Crown. I go on now to outline the nature of your offending as described in that summary.

[5]                 You had been in a relationship with the victim for about five years. The relationship ended in around December 2022. You have a child with the victim, who was not present at the time of the alleged offending. You are recorded as having been responsible for four previous family violence incidents involving the victim.

[6]                 You suspected for about a week before the alleged offending that the victim had started a new sexual relationship with another male.

[7]                 On 7 February 2023 you went to the victim’s house in Springvale, Whanganui and you spent time talking to each other amicably on the couch in the living room. You stayed at the victim’s house overnight.

[8]                 After your child went to school the next day, you accused the victim of sleeping with someone else. When she turned away to get her phone, you struck her in the back right side of her head, using what is described in the summary of facts as a “cowards punch”. She fell to the ground face first. While she was on the ground, you punched her more than 20 times on the back and top of her head with your fists. You intended to kill the victim. You then dragged the victim off by the scruff of her hoodie into the bedroom in order to get away from her dog.

[9]                 At that point, you picked up a hammer from a small dresser and struck the victim, aiming for her head, more than 20 times. You placed your right hand around the victim’s windpipe and squeezed with force for 20 to 30 seconds, restricting her ability to breathe. The victim began to make choking noises and you pushed her to the ground. You then grabbed the straps of a nearby shopping bag, flipped the victim over onto her front, placed the bag handle or straps around her neck and pulled upwards with force. You placed your foot on the victim’s back and pulled the bag handle or straps up, causing her to arch her back and to lift her head about 30 cm off the ground. You continued to pull the bag handle for about 30 seconds. The victim was choking during this time. You slammed the victim’s head on the ground before letting her go.

[10]             It is said in the summary of facts that you accept that during the entirety of the assault you were trying to kill the victim.

[11]             The victim asked what she could do to make you stop and said that you would kill her if you kept going. You told her to get on the bed. When she moved her hair from her face, you saw her injuries, you put her in your car and you drove her to the Whanganui Hospital where you dropped her at the door and drove away.

[12]             As a result of the offending, the victim suffered five lacerations to her head; bruising and swelling to her head, neck and face including two black eyes; petechial bruising around her left eye; red eyes including a small subconjunctival haemorrhage (a burst blood vessel in the eye); pain in her jaw joints and back; injuries to her throat presenting as a difficulty in speaking and swallowing, a painful throat and voice changes; other injuries in the facial area including scratch marks; and defensive injuries to her hands including a tender knuckle and two fractured fingertips. She received 14 stitches to her head for her head wounds. After presenting to the hospital, she was admitted to the surgical ward and remained there overnight.

[13]             In the victim impact statement, as we have heard, the victim referred to the stitches and staples she received for large cuts on her head. She referred to having a broken index finger, and to being battered and bruised all over her body. She referred to having long-term effects from the offending including tinnitus in her left ear and to

a loss of some hearing capacity in that ear, requiring her to have further medical attention.

[14]             Moreover, in the victim impact statement, the victim has referred to the significant mental injury she has suffered from the offending. She referred to having severe anxiety, severe depression and severe PTSD (post-traumatic stress disorder). Her sleeping patterns have been disturbed and medication is needed to assist with sleep. The victim has referred to effects upon her thinking, processing of information and to her ongoing dissociation with the event.

[15]             When you spoke initially with police by video interview, you said, in relation to the offending, that you were jealous of the victim sleeping with another person and you referred to your having a personality problem. You are recorded as saying that you intended to kill the victim when striking her with your fists, when hitting her with the hammer and when strangling her. You said that it was a case of “If I can’t have her no one can”.

Starting point

[16]             There is no tariff judgment for the offence that you face of attempted murder. However, the Court of Appeal has said that a case that both your counsel and counsel for the Crown have referred me to, that of R v Taueki, can provide some assistance.2 I will be, Mr Wright, mentioning in the course of this sentencing some legal principles. I need to do so because the cases – the precedent decisions – are of relevance to the approach that I need to take here today. As I come on to mention a little later, there are real differences between the grievous bodily harm offending to which Taueki relates, and offending that amounts to attempted murder. For example, the injuries in the grievous bodily harm offending may be more significant while the intended consequences of attempted murder offending may be more severe. But with those comments in mind, the bands and the examples given in Taueki are relevant in considering the right starting point for this offending. I would add that, as the Court

2      Torrance v R [2020] NZCA 57 at [33], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [9].

of Appeal indicated in Taueki, these bands of which I speak are intended for guidance only and should be used flexibly.3

[17]             The Crown submitted that, in considering the seriousness of your offending, a number of factors are relevant. It says that extreme violence is present to a high degree, that predetermination is present to a moderate degree, that serious injury was caused, that you used a lethal weapon, that your offending involved attacks to the victim’s head, that the victim was vulnerable, that she was impacted severely, that the offending occurred in the victim’s home where she was entitled to feel safe and that you were, as is recorded in the summary of facts, intending to kill her.

[18]             Of the three bands of offending in Taueki, the Crown submitted that your offending falls within the third band, which is for the most serious offending and carries, consistent with that band, a sentence of between nine and 14 years’ imprisonment as a starting point. The Crown submitted that, in your case, a starting point of 11 years’ imprisonment would be appropriate. It provided a number of cases with which it regarded as having comparable facts to those that are being considered here and where starting points have ranged from between 10 and 11 years’ imprisonment.4 The Crown emphasised a need to have a “stern response to family violence offending”.5

[19]             Your lawyer said that the starting point should be seven years’ imprisonment on the basis that, by comparison with the other attempted murder cases the Crown has referred me to, the victim’s injuries were less serious. Your lawyer has relied upon the domestic assault examples given for band one offending in Taueki, which are in the following terms:6

(b)Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may

3      R v Taueki, above n 2, at [42].

4      R v Nuku [2021] NZHC 410; R v Nelson HC Rotorua CRI-2004-077-0015577, 16 August 2005; R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009; R v Walker [2015] NZHC 3214; R v Owens [2017] NZHC 319; R v Wenzlick [2021] NZHC 320; and R v Armstrong [2019] NZHC 2904.

5      Everett v R [2019] NZCA 68 at [17]–[19].

6      R v Taueki, above n 2 at [37].

require a starting point in the region of four years. Where there is a degree of premeditation (predetermination) or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

[20]Your lawyer referred also to the following example of band two offending in

Taueki:7

(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 at the higher end of band two.

[21]             It was submitted by your lawyer that, although there are at least five aggravating features to your offending, together with an intention to kill, your offending fits more comfortably in the band one Taueki example and that it could be seen as being less serious than conduct that is described in the band two example. He submitted that your offending would fall at the top of band one or at the bottom of band two. Although your lawyer accepts that the extreme violence you used – the attacks to the head, the use of a weapon and the occurrence of the offending in the victim’s home – are aggravating features, it is said that they are present to a low degree. That is said to be because the nature and extent of the injuries are relevant in considering how serious each of the aggravating factors is.

[22]             As I come on to discuss, I do not agree that the victim has not suffered serious or lasting injuries and that she has no long-term effects from the attack on her but, in any event, I do not see it as appropriate for multiple aggravating features of the offending to each be mitigated by the assessment of the extent of the injuries suffered. That would be to double count the assessment of the injuries in cases where they are moderate. The aggravating factors of any offending should be considered on their face and any mitigation that might be applied through injuries being of a moderate nature should, in my view, be taken into account once each of the other aggravating factors has been assessed.

7 At [39].

[23]             Moreover, as indicated earlier, while Taueki provides guidance for offences of serious violence, the sentencing ranges in the cases referenced there reflect offences where there must be an intention to cause grievous bodily harm and an infliction of that grievous bodily harm.8 That is the very nature of the offence that those cases are addressing. Attempted murder involves a more serious intention but it does not necessarily involve the same level of injury.9

[24]             Accordingly, when setting a starting point for a sentence here, I need to have regard not only to the guidance provided through the Taueki bands to which I have referred but to the aggravating features of the offending in this case and the way in which they compare with aggravating features in other cases. Counsel for the Crown and your counsel have identified correctly the culpability features that are present. But they disagree over the level to which they are present. I agree that the following aggravating features are relevant to your offending:

(a)The attack involved extreme violence. You punched the victim in the head more than 20 times. You struck her on the head over 20 times with a hammer. You strangled her twice. The attack was unprovoked and prolonged. This is a significant aggravating feature.

(b)A significant part of your attack was directed to the victim’s head. The head is the most vulnerable part of the body. Attacks to the head are viewed most seriously. You used weapons – a hammer and bag straps. A hammer is a lethal weapon and this is a particular aggravating feature of your offending.

(c)The attack was predetermined. You suspected the victim was in a relationship with another male for a period of time before the alleged offending and, as mentioned, you said in your interview: “If I can’t have her no one can”. You had waited for your child to go to school before you assaulted the victim. I do regard predetermination as being present here to a moderate degree.

8 At [26].

9      R v Butler HC Christchurch CRI-2008-009-3105, 15 May 2008 at [16]–[17].

(d)The victim was vulnerable. There was a clear difference in strength between you and the victim. That is evidenced by your ability to overpower her throughout your attack on her. The Court of Appeal in Solicitor-General v Hutchinson made the point that family violence is a scourge of society in Aotearoa New Zealand. Occupants should be entitled to feel safe in their family home.10 I do not see the fact that you were invited into the house and that things were amicable before the offending lowers the degree to which this aggravating factor is present. In fact, in many ways, it works in the opposite way to emphasise the breach of trust. I see this factor as being present to a moderate degree.

(e)Real harm was caused. I accept the point that has been made for you that the physical injuries suffered by the victim were not life- threatening injuries of the type suffered by victims in some of the comparative cases referred to by your lawyer. However, it is clear to me that the victim suffered both physical and mental injuries and that they were significant. As I have mentioned, the victim needed a number of stitches, suffered a fractured finger (which still does not bend properly), has lasting tinnitus in one ear and is suffering significant mental injuries – psychological trauma – as described in her victim impact statement. Mental injuries can be as significant as physical injuries. I am satisfied that the level of harm is a factor here that is present to a moderate degree.

(f)You intended to kill the victim throughout the offending and that is a significant aggravating factor.

[25]             For these reasons, I see there to be six aggravating features to your offending. If Taueki is applied, that would place your offending in band three. It is necessary to observe, and the Crown accepts, that the aggravating factors I have mentioned are linked. Using extreme violence, using a weapon and directing attacks to the victim’s head are factors that are intertwined. It is important that I avoid double counting so as not to inflate the starting point.

10     Solicitor General v Hutchinson [2018] NZCA 162 at [27].

[26]             I have reviewed the authorities provided to me by your lawyer and by counsel for the Crown carefully to ensure that the starting point is not out of step with the comparable cases. None of the cases referred to me were directly analogous with your offending and most involved slightly higher levels of predetermination. Some involved more serious physical injuries to the victim, some of them life-threatening.

[27]             Moreover, in several of the cases, the attacks only stopped because the offender thought that he had achieved his goal or had been interrupted. You stopped your attack on the victim when you saw the injuries you had inflicted, to her face in particular, and you took her to the hospital. I see this as being a factor that distinguishes some of the cases, in your favour.

[28]             The Crown and your lawyer both identified a range of cases in which different starting points have been adopted for sentences following convictions for attempted murder. A number of the cases involve the use of a weapon and blows to the head. The cases are useful in helping the Court to determine, by comparison with them, where the offending in this case sits for the purpose of considering an appropriate starting point. In the written version of this decision, footnotes will describe the factual background in each of the cases that I go on to mention.

[29]             I do not agree that the present offending is more serious than the offending in Walker as the Crown suggested.11 While the extremity of the attack in that case is similar to the extremity of the attack here, the injuries sustained by the victim in the Walker case were more serious than those sustained here and, in this case, there was a slightly lower level of predetermination on your part. Accordingly, a lower starting point than the 10 years’ imprisonment adopted in Walker would be warranted here.

[30]             Similarly, I do not consider that the offending in this case is as serious as was the offending in Nuku.12 The level of predetermination in that case can be seen to be

11 R v Walker, above n 4.  In that case, Mr Walker invited his ex-partner over for a drink and in order to “test her”. When she declined to sleep with him, he stabbed her in a frenzied attack with a knife 15 times, only stopping when the knife broke. The victim received a 10-to-12-centimetre stab wound to her chest that went through her lung and into her chest. The Court placed this offending within band three of Taueki with the most aggravating factors being the high level of premeditation, the extreme violence, intent to kill the victim and very serious injury suffered by the victim. The Court adopted a starting point of 10 years.

12 R v Nuku, above n 4. In that case, the defendant pleaded guilty to manslaughter, breach of a

at a similar level to your predetermination in this case. The nature of the other aggravating factors is similar but the injuries were more severe in that case. Accordingly, this would justify a lower starting point than the 11 years taken in that case.

[31]             Your lawyer referred to R v Ae in which the offending was in many ways comparable to the offending here.13 In Ae, the victim received injuries of a nature that in broad terms are similar to those received by the victim in this case. They were serious but not life-threatening injuries. However, the level of predetermination in Ae would appear to be higher than was the case here. A starting point of nine-and-a-half years was taken in Ae.

[32]             Your lawyer referred to sentencing decisions in several cases dealing with grievous bodily harm offences. The cases referred to have involved aggravating factors that are similar to those that are relevant in this case and adopted starting points of between seven and eight years’ imprisonment.14 While some of the cases mentioned involved injuries that are more significant than those that were caused by your offending, they did not involve the use of a weapon and, as mentioned already, they did not feature on the part of the defendant an intention to murder the victim. That intention sees the offending here as being more serious than in the cases that have been mentioned.

protection order and breaching release conditions. The defendant saw the victim’s vehicle parked outside a dairy. He walked over to the vehicle with his face covered, opened the door with a gloved hand and dove across the passenger seat and began stabbing the victim with a knife. The attack was frenzied and sustained and lasted for around 40 seconds, during which the defendant stabbed the victim in the torso and neck. In total, the victim suffered 15 stab wounds. The aggravating factors were the extreme and unprovoked and prolonged violence, use of a lethal weapon, serious injury, premeditation, murderous intent, targeting of the neck, and the victim’s vulnerability as she was trapped in the vehicle. The Court adopted a starting point of 11 years.

13  R v Ae [2016] NZHC 965. Mr Ae had been drinking heavily and became agitated over the way the victim had treated his children from a previous relationship. The victim and Mr Ae were at that time in a relationship and living together. Mr Ae lured the victim home, preparing two lengths of rope and three knives in anticipation of her arrival. When the victim arrived home, he picked up a knife. The victim ran out of the house and down the street. Mr Ae pursued her, cornering her in a sunroom of a nearby property. Mr Ae forced her to the ground, knelt over her and stabbed her, resulting in lacerations to the hands, arms, face and scalp. The Court identified that the relevant aggravating features were the level of premeditation, the use of weapons, extreme violence, attacking the head, serious injury, and the vulnerability of the victim. A starting point of nine-and- a-half-years' imprisonment was adopted.

14 Tekuri-Reid v R [2018] NZHC 2419; R v Tikena-Stuchbery [2022] NZHC 1266; Kawau v Police

[2018] NZHC 2508; and R v Vela [2019] NZHC 714.

[33]             Having regard to the guidance provided by Taueki, to the aggravating factors in this case and to comparable cases, I am satisfied that a starting point of nine years’ imprisonment would be appropriate. That is a starting point at the higher end of band two or the lower end of band three. It is in my view the appropriate point, having regard also to the sentencing purposes and the principles of denunciation and deterrence.

Personal aggravating and mitigating factors

[34]             Having adopted a starting point, the Court goes on, when considering an appropriate sentence, to take into account aggravating and mitigating factors that relate to you as a person, rather than to the offending itself.

[35]             You are 25 years old and you have no previous convictions. A family violence report shows you to have been involved in four recorded incidents of family harm between 2018 and 2020. However, there is no basis here for the starting point to be increased as a result of any previous offending.

[36]             Your lawyer has argued that discounts from the starting point I have identified should be available having regard to your previous good character, your potential for rehabilitation, the genuine remorse you have expressed and for the role that mental health issues have played in the offending. The Crown has not made any particular proposals on discounts but it questions whether a factual basis exists for discounts of the type that have been proposed – with the exception of the prospects for your rehabilitation.

[37]             I turn now to consider each of the grounds upon which a discount could be applied having regard to your particular circumstances.

Guilty plea

[38]             A starting point is able to be reduced if a guilty plea is entered at a sufficiently early point in time. You entered a guilty plea promptly after your sentence indication. It is appropriate to allow a discount of 25 per cent from the starting point to reflect that you pleaded guilty at the first reasonable opportunity.

General background

[39]             Your background has been described in two reports. The first is a psychological report, ordered by the Court under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and written by a psychologist. The second is a pre-sentence report prepared by the Department of Corrections.

[40]             The psychological report describes your upbringing as being positive – you were raised in a caring environment where your emotional and material needs were met, you were not exposed to violence, and you were socially integrated. After leaving school, you obtained employment in the forestry industry and have worked hard to attain a good position. You continue to be close to your caring parents.

[41]             The report writer found that you have a vulnerability to poor self-regulation within the context of an intimate relationship. And he found that you have a longstanding pattern of cannabis abuse and dependence.

[42]             The report writer referred to the current offending coming about at a time when you were distressed about your intimate relationship with the victim having deteriorated to the point that you had separated. He referred to you having become enraged when you learnt explicitly that the victim had engaged sexually with another individual and that it was this that precipitated the offending. However, he makes the point that, at the time of your offending, you were neither mentally disordered nor mentally impaired.

[43]             In a similar vein, the pre-sentence report writer refers to you having said that “I got to a breaking point and I snapped”. The writer refers to your emotions having overpowered you and to the cause of those emotions having been, in part, the stressful relationship you had with the victim and, in part, a childhood trauma caused by your accidental involvement in a fire.

[44]             The pre-sentence report writer said that you are assessed as being at “low risk of reoffending given [you have] no previous convictions”, but that “the serious violent nature of [your] behaviour poses a significant risk of direct harm to others”.

[45]             Your father has written a letter to the Court in terms that are quite compelling and moving. He has referred to you having struggled with mental health since you were a young child. He referred to the hard-working and loving family home in which you and your sister grew up. He has spoken of your journey through your schooling and of the way in which you, through your own initiative, enrolled in a Papatoa forestry course in which you excelled and which led to full-time employment and a range of promotions. He spoke of the birth of your son and to the long working hours that you were putting in at that time which had real impacts upon your coping mechanisms and mental well-being. He spoke, nonetheless, of your determination to be a good dad. However, he referred to the initial bond between you and the victim as having been tainted through the use of marijuana and, ultimately, to your dream being turned into “a nightmare” and leaving your mental health in “tatters”. He described you as being a good man who will be able to be a contributing member of the community again one day. He has emphasised that your family will always be there for you.

[46]             You have written to the Court yourself. I will make further reference to your letter a little later but mention here the comment that you have made to the effect that you are focused on rehabilitation and to being the best father that you can be for your son in the future.

[47]             There are no aspects of your general background and upbringing which, in and of themselves, warrant a discount. The matters I have described to this point relate to your background as a whole. However, I come on to consider grounds for specific discounts in discussing your previous good character, your remorse, the prospects for your rehabilitation, your cannabis addiction and your mental health issues.

Previous good character

[48]             An allowance can be made available to a defendant if, previously, they have shown themselves to have been law-abiding and of good character.15 There are two factors which underpin the potential for mitigation under this head:16

15     R v Howe 1 NZLR 618 (CA) at 629.

16     R v Findlay [2007] NZCA 553 at [91]; R v Davidson [2011] NZCA 356.

(a)It recognises that a fall from grace can be punishment in itself (it can, for example, have adverse consequences for a career); and

(b)It recognises that there might be a greater potential for rehabilitation and a reduced probability of reoffending.

[49]             Generally speaking, Mr Wright, you have been of good character. You have no prior convictions and have contributed to society through your efforts in sustaining your employment and in being a father. However, there are two blemishes on your character. First, the summary of facts records four previous family harm incidents. Secondly, and related to that, the psychological report writer reports you as admitting that, during the course of an argument with the victim, you slapped her and claimed retaliation for a physical act she had directed towards you.

[50]             However, a record of a family harm incident tells us little about the nature of the incident or the aggressor. In the circumstances, I am satisfied that your character was sound until the time of the offending that led to your conviction and that your conviction will be a “fall from grace”. Further, your previous good character does demonstrate a potential for rehabilitation that might reduce the likelihood of your reoffending. This point is bolstered further by your family support and your willingness to engage in rehabilitation, as discussed in the psychological report.

[51]             In some cases that are similar, a discount of 10 per cent has been applied.17 However, I must balance that against the need for any discount to be proportionate to the overall sentence I will give you and against the slight blemishes I have mentioned.18 I apply a discount of seven per cent on this basis.

17 Chai v R [2020] NZCA 202, where the defendant had no prior convictions and made extensive efforts to undertake self improvement, but had engaged in relatively protracted offending; Singh v R [2020] NZCA 211, where the defendant had no prior convictions, a low risk of reoffending, and good rehabilitation prospects; and Faiyum v R [2020] NZCA 523, where the defendant had no prior convictions and went “out of control”, but had good prospects for rehabilitation due to family support and his shame at offending.

18 Manawaiti v R [2013] NZCA 88 at [19].

Remorse

[52]             Genuine remorse can justify a discount on your sentence.19 Remorse need not be extraordinary to earn a discount, but a discount does require more than a bare acceptance of responsibility.20

[53]             The psychological report found that you have taken responsibility for your actions and to have shown genuine remorse for the long-lasting negative impact they have caused the victim. The author of the psychological report referred to you having indicated that you felt “shocked” by your offending and to you having commented, “I wish I’d seen the warning signs … She didn’t deserve it.” Similarly, the author of the pre-sentence report has concluded that you are remorseful and that you said (with reference to the victim and to your son) “they did not deserve what they went through”.

[54]             You have written to the Court directly, referring to your actions as having been “disgusting and cruel” and saying that there is not a day that goes by during which you do not wish you could go back and change what you have done. You have said that the victim did not deserve to be beaten and that your son did not deserve to see his mother having been hurt by his father. As you said, you were once a family and your actions have left all of you traumatised. You have referred to the steps that you are taking while in prison to seek help and to rehabilitate yourself. And you have made it plain that, as you put it, you are prepared to face the consequences for your poor decision-making.

[55]             Furthermore, you have made an offer of financial amends to the victim. You have, in a letter to the victim and in your letter to the Court, offered what I know for you will be a relatively significant payment to help with counselling and rehabilitation that the victim may need. You have said that you know that the apologies and the proposal will not fix what you have done but that you wish to make this offer to the victim and to your son in the hope that will make life a little better for them.

19     Sentencing Act, s 9(2)(f). Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298, (2009) 24 CRNZ

612 at [64].

20     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, (2020) 29 CRNZ 381 at [24].

[56]             The Court is required to take into account any offers by an offender to make amends to a victim, including proposals for compensation.21 The Court must consider whether the offer is genuine and capable of fulfilment and whether or not it has been accepted by the victim as expiating or mitigating the wrong.

[57]             Because the letter has only recently been received, the victim’s views on the proposal are not known. However, I do accept that it represents a genuine effort by you to accept responsibility for the offence and to take a small step towards putting things right.22

[58]             Your remorse is demonstrated also by your willingness to engage in restorative justice. The Crown acknowledges that willingness on your part. However, the Crown has gone on to express concerns about the following comments made by the victim in her victim impact statement. We have heard them before but for completeness I read them again:

Jesse hasn’t taken much accountability of anything. Since he’s been in custody, he’s sent me 20-30 letters that are all addressed to our five year old son who can’t read. These letters cause me further anxiety and in them, he doesn’t seem to take any accountability and just blames his mental health which I think is unfair.

[59]             The Crown accepts that, on the surface, the letters reflect a level of demonstrable remorse. However, the Crown says that there are several factors which causes it to view the letters cynically. The first is that, as your son is aged four to five, he cannot read and the Crown says that it must therefore be implied you intended the letters to be read to him. Secondly, because the letters are all addressed to the victim’s address, the Crown’s concern is that the intention was that the victim would need to read the letters, both for herself and to your son. Its concern is that it can be inferred that you might be seeking to directly influence the victim through the letters. It has referred also to the fact that a non-contact order was previously to have been in place

–   preventing you from contacting the victim – but it had slipped for administrative reasons.

21     Sentencing Act 2002, s 10.

22     Moses v R [2020] NZCA 296, 2023 NZLR 583, (2020) 29 CRNZ 381 at [24]–[26].

[60]             Several conflicting things can be taken from the letters. At one level, they have had the effect of causing further anxiety for the victim – having been addressed to her

–  and the risk of this consequence should have been apparent. The Crown referred to it today as emotional manipulation. I do not see them in those terms and I do observe that at another level the Court can understand your wish to communicate with and to explain things to your son so that, either now or in the future, he can take something from them. As a related point, the things you have said and the ways in which you have expressed yourself in the letters are consistent with the remorse you have expressed in interviews with report writers, in your letter to the Court and through the points that your father has made.

[61]             Consistent with the points you have made, the psychological report found that you have demonstrated a willingness to engage in rehabilitation, both for your emotional issues and for your drug problems. You have, while on remand, begun taking a psychotropic medication to address your depressed mood. These steps do demonstrate a willingness to take steps to avoid the patterns that led to the harm that you have caused.

[62]             Overall, your remorse is accepted. It is genuine. It enables me to see a pathway of hope for you in the future. Accordingly, I apply a discount of 10 per cent.

Cannabis addiction and mental health issues

[63]             I do not consider your mental health problems or your addiction to cannabis to be mitigating factors. The Supreme Court in Berkland v R said that a background factor will warrant a sentence discount if it is either the operative or proximate cause of offending, or if the factor makes a causative contribution.23 A background factor will make a causative contribution if it helps to explain how you came to offend against the victim.24 This principle reflects the need to capture background factors that are broader or more general in nature – in the sentence that they reflect intergenerational factors that may contribute to offending.25

23     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].

24     Berkland v R, above n 23, at [121].

25     Berkland v R, above n 23, at [109].

[64]             Your cannabis addiction did not make a causative contribution to your attack on the victim, nor was it the operative or proximate cause of offending. The pre- sentence report writer reported that you admitted to being under the influence of cannabis at the time of your offending. However, that does not provide any assistance in explaining the aggressive attack and so I do not see a discount as being available under this head.

[65]             Neither did your mental health problems make a causative contribution to your attack. While I do understand the mental health issues you have faced, I accept the conclusion reached by the psychological report writer on this point. He found that you were, at the time of your offending, neither mentally disordered nor mentally impaired.

Diminished capacity

[66]             An allowance may be available for a defendant who demonstrates diminished capacity.26

[67]             The psychological report refers to you having struggled with self-control, to being sensitive to negative evaluation and to expressing yourself dramatically when upset. However, while those tendencies are an issue that it is most important for you to address, they are not the kind of persuasive evidence that is needed to establish that you have any form of diminished capacity that would enable a further discount to be given.27

Sentence calculation

[68]             For those reasons, I will apply a discount to your sentence of 25 per cent for your guilty plea, a discount of seven per cent for your previous good character and a discount of 10 per cent for your remorse – a total discount of 42 per cent. The end sentence – rounded down to the nearest month – is then five years and two months’ imprisonment.

26     E(CA689/10) v R [2011] NZCA 13 at [60]–[70].

27     Spence v R [2021] NZCA 499 at [80].

Protection order

[69]             The Crown seeks the imposition of a protection order, in favour of the victim, under s 123B of the Sentencing Act. There is no protection order in place at present and the Crown advises that the victim does not object to an order being made. Your lawyer has confirmed in written submissions that the order is not opposed.

[70]             I am satisfied that the prerequisites for a protection order are met and that an order should be granted accordingly.

Conclusion

[71]             Mr Wright, the Court sentences you to five years and two months’ imprisonment.

[72]             A protection order under s 123B of the Sentencing Act 2002 is granted in favour of the victim.

[73]Charge 2 is dismissed.

[74]             I direct accordingly that the s 38 report is released to the Department of Corrections and to the Parole Board.

[75]Mr Wright, please now stand down.

Radich J

Solicitors:

Crown Solicitor, Whanganui for Crown Crowley Waugh, Whanganui for Mr Wright