The Queen v Alistair John King

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/00

THE QUEEN

ALISTAIR JOHN KING

Hearing:	5 December 2000
Coram:	Keith J Robertson J Goddard J
Appearances:	J B M Henderson for the Respondent J C Pike for the Crown
Judgment:	6 December 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The Solicitor-General applies for leave to appeal against an effective sentence of six and a quarter years imprisonment. The respondent pleaded guilty to three offences relating to two complainants. Concurrent sentences of three months for benefit fraud and breach of periodic detention were imposed at the same time but they are not involved in the appeal.
The six and a quarter years imprisonment is made up of
• One and three quarter years for injuring with intent to injure in May of this year.
• A cumulative term of four and a half years for attempted rape and a concurrent term of two and a half years for injuring with intent to injure the respondent’s partner in July.
The first injuring offence occurred when the respondent’s partner walked past the victim’s group and the victim and his associates exchanged abuse with her. The respondent began fighting with the victim, punching and kicking him and, when the victim was on the ground, the appellant bent down and bit off a large section of the victim’s ear. The respondent continued to punch and kick the victim until a police patrol arrived. The victim has suffered permanent disfigurement, a large section of his ear was amputated because of the damage and his ear drum was perforated. While Mr Pike, for the Crown, submits that this charge was itself very serious and a starting point in the three to four year range would not have been out of order, he accepts that it is not in the end realistic to see this offence as adding more to the sentence for the attempted rape (which he submits should be substantially increased) than it has to the present sentence.
The attempted rape of the respondent’s partner and the related charge of injuring with intent to injure happened in July. The respondent and his partner had been drinking at a friend’s house where he became intoxicated and extremely abusive towards her, calling her “a useless whore”. The hosts asked them to leave. When they arrived home shortly after midnight the respondent continued to abuse his partner and began to beat her. The beating lasted for about three hours. The respondent punched his partner about the head with closed fists, spat on her and pulled her about the room by her arms and hair, pulling out clumps of hair. He urinated on her, pinned her down with his own weight and throttled her to the point where she lost consciousness. When she awoke she was lying on her side and the respondent kicked her in the back a number of times. The respondent allowed the victim to go to the toilet but insisted on standing at the door watching. After that he took off his jeans, demanded that she take off her clothes and get into bed with him which she did out of fear of being beaten again. The respondent then got on top of her, forced her legs open and tried to force his penis inside her. He was however unable to penetrate the victim’s vagina because he could not achieve an erection.
The respondent cut his own face with a scalpel, telling the victim that people would think she had done it. He stood over her bleeding onto her face from cuts he had inflicted on himself. He did in fact justify his violence to the police by claiming that she had cut him.
The victim has suffered severe bruising to her entire body, including her face and head. She was left with areas of her scalp from which clumps of her hair had been pulled out, and both eyes were black and completely swollen over. The bruising on her body took up to four weeks to disappear and, as a result of being kicked in her back, her spine has been put out and she is receiving specialist treatment.
The maximum sentence for attempted rape is 10 years imprisonment, as the sentencing Judge recorded. He then said this:
The outstanding aggravating feature is the violent and degrading circumstances that led up to the offence. It was a long and terrifying ordeal and the victim was, at times, in fear of her life. It may be that she had developed a degree of tolerance to this level of violence and humiliation, or that she had brought herself down by using drugs and alcohol. That does not reduce the seriousness of offending. She is entitled to the protection of the law in the same way as anyone else. The fact that your conduct occurred after substance abuse cannot assist in reducing the sentence. It was very close to full commission of rape, in which case Ms Mann has submitted for the Crown that the sentence would have to exceed eight years.
Balancing those factors, I consider that it warrants a sentence of six years imprisonment before reducing it for a plea of guilty. The plea of guilty was immediate and the sentence is reduced to 4½ years imprisonment. Those sentences will be cumulative sentences of 21 months and 4½ years.
In his submissions for the Solicitor-General, Mr Pike comments that the Judge’s starting point of six years for the attempted rape appeared to encompass the totality of the attack, but it was, he said, not at all clear that it had. There was a possibility that the two and a half years for the injuring offence reflected the violence not immediately connected with the attempted rape. That might explain the rather low starting point adopted, a starting point which was reduced by 18 months on account of the guilty plea. That, he submitted, was a very generous discount given the virtual impossibility of defending the charge.
He referred to the position expressed by five Judges of this Court in R v Hassan [1999] 1 NZLR 14 that it was an error of principle to separate the aspects of the injury charge from the sexual charge where there was one continuing incident which involved the commission of two separate offences closely related in time. In the case of an overall incident, the proper approach is to focus on the total criminality of the offender rather than to approach it from the perspective of individual sentences. The factual content of the separate offences will in many cases overlap. While the distinction is relevant for defining the offence, it is likely to be of no significance for sentencing purposes. He continued that while this Court in Hassan did not think it necessary or desirable to indicate a tariff for this type of offending, an increase in the level of sentences was appropriate; the Court would be failing in its duty if it did not pay regard to the increase in the sexual violation sentences introduced in 1993. He also submitted, by reference to R v Hirawani (CA76/97 18 June 1997), that in assessing culpability for an attempt, it is necessary to take account of how close the offender came to the completed offence.
Mr Henderson, for the respondent, did not challenge these legal propositions.
Turning to the facts of this case, Mr Pike submitted that the sentencing Judge, by separating the injuring charge from sexual offending, and imposing the two sentences concurrently, imposed a manifestly inadequate sentence for the offending against the respondent’s partner. The four and a half year term did not reflect the seriousness of a prolonged but single incident. As the sentencing Judge stated, this was a long, violent and degrading ordeal during which the victim was at times in fear of her life. On the approach in R v Pira (CA382/92, 9 December 1992), requiring separate but contemporaneous offending to be approached on a totality basis, the Judge would impose a sentence for the attempted rape and then impose a cumulative sentence for injuring subject to totality considerations, or, having regard to Hassan, would reach a globalised view. On either approach he submitted that the correct approach to a proper sentence would be to start at nine years imprisonment and allow one and a half to two years for a prompt plea. Further, it is of primary importance that the respondent’s attempt came very close to the completed act and his intention was certainly to rape the victim. Given the nature of the assault, had the respondent completed penetration, the court would be looking at a starting point in the range of 11-12 years and in the circumstances a starting point close to eight year starting point for the attempted rape might have been warranted.
The overall offending against the complainant in this case was more serious than the offending in the Hassan and Hirawani cases in which, after guilty pleas, the defendants received final sentences of six years. Taking account of the fact that this is a Solicitor-General’s appeal, he submitted that the total sentence should be somewhat in excess of eight years.
For the respondent, Mr Henderson said that he had submitted to the sentencing Judge that a global sentence of five years would be appropriate, while the Crown had suggested a range of between eight and ten years.
So far as the injuring, the subject of the first charge, was concerned, he submitted that it was the respondent’s partner, the victim in the subsequent charges, who created the problem. The fighting involved no fewer than 10 persons and the respondent became involved to extract his partner from the fracas. The respondent had explained to the police that he had bitten off the victim’s ear to stop him eye gouging him but denied kicking or punching the victim, saying that a passing group of people had got involved and kicked the victim.
Mr Henderson had contended at sentencing that the cases put froward by the Crown, including Hirawani, were to be distinguished. He appeared to accept in argument in this Court that if anything the six year sentence in that case for attempted sexual violation (given after a guilty plea in a case without the extensive degrading violence in this) would support a higher sentence. He emphasised that the respondent had provided absolute cooperation throughout, that he had shown considerable remorse and that he had apologised and shown remorse, as appears from the letters to both victims submitted to the sentencing court. He was showing, although in a dreadfully inappropriate way, his concern for his and his partner’s children.
We consider that the sentence on the attempted rape and the related injuring with intent to injure is manifestly inadequate. Given the sustained degrading horror of the violence leading to the attempted rape and the fact that the attempt came very close to the completed act, a starting point for the two offences, whether assessed globally (as in Hassan) or cumulatively and on a totality basis (as in Pira), of eight and a half years would be appropriate. That figure takes account of the fact that this is a Solicitor-General appeal. That fact is also relevant to our leaving the discount for the guilty pleas at one and a half years. It follows that the sentence of four and a half years for the attempted rape of the respondent’s partner is quashed and a sentence of seven years substituted. The other sentences remain unchanged.
Accordingly the result is that leave to appeal is granted, the appeal is allowed and the sentence of attempted rape of four and a half years is replaced by a sentence of seven years. The concurrent sentence of two and a half years for injury with intent to injure and the cumulative sentence of one and three-quarter years for injuring with intent to injure stand. The total effective sentence becomes eight and three quarter years.

Solicitors:
Crown Law Office, Wellington

[2000] NZCA 367

6 December 2000