The Queen v Aaron Joseph Walker

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/01

THE QUEEN

AARON JOSEPH WALKER

Hearing:	12 March 2002
Coram:	Keith J Robertson J Gendall J
Appearances:	J C Gwilliam for the appellant S P France for the Crown
Judgment:	13 March 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

This is an appeal against a sentence of three years’ imprisonment imposed on Mr Walker in the Wellington District Court on 3 December 2001. Following a trial in September, Mr Walker had been found guilty on one charge of wounding with intent to injure and one charge of injuring with intent to injure.
These two counts, and a further charge of assault using a beer glass as a weapon, arose out of an incident which occurred at the doorway of the Totara Lodge Tavern in Upper Hutt on the evening of 27-28 September 2000.
It was accepted at sentencing (and it is not disputed now) that what occurred was serious violence in terms of s5 of the Criminal Justice Act 1985 and a custodial sentence was inevitable. The issue then and now is whether a lesser term of imprisonment than three years could have been imposed and, if that sentence was two years or less, whether it should be suspended or leave granted to apply for home detention.
This was yet another situation which arose following excessive drinking at a hotel. There was some evidence which suggested there might have been a degree of tension earlier in the evening involving an associate of one of the complainants, although there was no indication that this had anything to do with the appellant or those he was with.
The sentencing Judge described the incidents as follows:
In the first you broke the beer glass that you were holding, either on a nearby doorframe or on the head of a third person, and then hit the first complainant Mr Goggin in the face with that broken glass. This caused a massive cut across his cheek from his jaw line to just under his eye. Over 50 stitches were required to close the wound and he has been left with quite significant lasting affects. According to his victim impact statement, he spent two nights in the hospital; required stitches; he was off work for 2 weeks; he has seen specialists since then and had plastic surgery. Nerves and his saliva glands were severed by the laceration, and as a result of that injury, he has no feeling on one side of his face and his saliva glands do not function. He has got limited amount of muscle movement, which means that when he smiles only the uninjured side of his face moves, giving a lopsided affect. He has also got a lazy eye caused by nerve damage and the recovery he has made is far from satisfactory. He is conscious of the scar which he sees in the mirror every morning and he is extremely upset from the after affects of the assault.
The assault on Mr Goggin was witnessed by a second complainant, Mr Haughey, who was in a nearby car. He immediately went to the scene and pulled you and another person away from Mr Goggin’s vicinity. That resulted in a second confrontation, in the course of which you punched Mr Haughey in the shoulder region, again holding the broken glass in your hand. There was a much smaller cut involved in this case, four stitches. The complainant backed off, and the matter ended at that point. There have been no long term effects in relation to that injury.
The evidence does not suggest there was more than one blow delivered on either occasion or that there had been any attempt to deliver multiple blows with the broken beer glass.
Although it is difficult to see what defence could possibly have existed we are told the matter proceeded to trial as there was conflicting evidence regarding the identity of the perpetrator of the injuries and the appellant himself had little recollection of what had happened as he had been drinking heavily prior to the incident.
It is noted now that the appellant was on strict bail terms for a period of some 12 months prior to trial and then there were extraordinary delays until sentencing so that the term of imprisonment did not take effect until 14 months after the incident.
The pre-sentence report was optimistic and recommended a suspended term of imprisonment together with periodic detention and supervision including special conditions.
It is clear that Mr Walker had good family support, was in employment and there were favourable references available. At 22 years he had some previous convictions but they were mainly of nuisance value. There was no history of serious violence.
The sentencing Judge took the view that in light of the decisions of this Court in R v McDonald (CA457/93, 16 May 1994) and R v McMillan (CA128/97, 23 September 1997) and having regard to the decision in R v Wikiriwhi [1985] 2 NZLR 501 (CA), a sentence was required which had a deterrent aspect particularly as a weapon (a broken glass) had been used on an unarmed complainant.
The thrust of the appellant’s argument was that his sentence was manifestly excessive by reference to other relevant decisions including those to which the Judge had referred. It was noted that in McMillan this Court had said that for bar fights, which involved resort to glasses as weapons, the sentencing range was 15 months to three years and that with first offenders with otherwise good personal records sentences at the lower end were appropriate. In McMillan itself two and a half years’ imprisonment was reduced to two years to make allowance for that.
Similarly it was noted that in McDonald, where an 18 month sentence was upheld, there had been one blow with no premeditation by a 20 year-old with no previous convictions.
Apparently at sentencing the Crown had submitted that the starting point should be in the range of three to four years because of the two complainants and because of Wikiriwhi Mr Gwilliam now argues that in Wikiriwhi a four year sentence, for what was described by this Court as “an attack of sustained and vicious brutality”, was reduced to three years’ imprisonment. That was a case where the complainant was beaten senseless and suffered multiple injuries including some brain damage.
Counsel also referred to R v Ulufale (District Court Wellington, T010990, 18 October 2001, Judge Frater) where 15 months’ imprisonment was imposed for pushing a glass into a woman’s chin at a club, the injury requiring 43 stitches. That accused had a previous minor conviction for assault.
It was argued that the present case is within the less serious range even though there were two separate assaults because these occurred as part of the same melée and that the starting point in respect of the offending should not be as high as two years.
Further it is argued that when determining the actual starting point, regard must also be had for the personal circumstances of the appellant and that, although the Judge noted the various factors in his favour, he appears not to have reflected them in the sentence which was imposed.
In response the Crown submitted that three years was within the available range and made particular reference to the decision of this Court in R v Hunt (CA134/93, 7 September 1993) (referred to in McMillan) which it was submitted was difficult to see as seriously distinguishable from the present case. Although the offender there was a little older, he had less previous offending.
The Crown did draw to our attention three recent decisions of this Court dealing with glasses being used as weapons, R v Dawson (CA247/98, 13 October 1998), R v Stuart (CA104/99, 12 April 1999) and R v Porter (CA305/01, 27 September 2001) all of which were sentencings at the lower end of the range.
It is always dangerous to fall into the trap of minute analysis of factual situations in previous cases which avoids the thrust and effect of the principles which are of relevance.
We have concluded that the salient factors in this case are:
(a)the glass was broken so that it could be used as a weapon;
(b)the glass was used more than once;
(c)there are serious long-term consequences for one of the complainants;
(d)although the appellant’s criminal record is less serious than some, he is not a first offender;
(e)the elapse of time since the offending and his proven record in that time coupled with his support and work record;
(f)the need for deterrent sentences so that those who act after over-consumption of alcohol in ways which they would not at other times, understand the risks involved in their excess drinking; and
(g)the need for condemnation of the prevalence of mindless violence and its corroding effect in the community.
When those various competing matters are weighed we have been persuaded that the sentence imposed here was beyond the sentencing range properly available to the Judge. It does not appear sufficiently to reflect those positive aspects which could be advanced in Mr Walker’s favour. Accordingly we are satisfied that the appeal must be allowed and the sentence reduced to two years and three months’ imprisonment.
At that level the issues of suspension and/or home detention do not arise. Lest there be any unrealistic expectations harboured we should make clear that, in the circumstances of this case and in light of authorities including R v Petersen [1994] 2 NZLR 533 and Solicitor-General v Lam (CA68/97, CA69/97, CA80/97, CA81/97, 30 June 1997), had we reached the view that a sentence of two years or less was appropriate, we would not have considered suspension of that term of imprisonment.
The appeal against sentence is allowed. In lieu of the sentence of three years’ imprisonment on each count we substitute a term of two years and three months’ imprisonment.

Solicitors

Till Henderson King, Hamilton, for Appellant

Crown Solicitor, Wellington

[2002] NZCA 27

13 March 2002