The Queen v Brent Stoddart Burne
[2002] NZCA 141
•20 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA367/01 |
THE QUEEN
V
BRENT STODDART BURNE
| Hearing: | 13 June 2002 |
| Coram: | McGrath J Williams J Salmon J |
| Appearances: | E R Fairbrother for Appellant B J Horsley for Crown |
| Judgment: | 20 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Appeal
On 10 October 2001 the appellant, Mr Burne, was sentenced in the District Court to six and a half years’ imprisonment on each of one count of wounding with reckless disregard for the complainant’s safety, to which he had pleaded guilty, and one count of detaining the complainant without her consent with intent to have sexual intercourse with her. He defended the latter count but was convicted by the jury. He appeals to this Court on the grounds that the sentence on the abduction count was manifestly excessive.
On the same day he was sentenced to nine months’ imprisonment on each of one count of burglary and two of theft, to which he had also pleaded guilty. Those terms were concurrent but were imposed cumulatively on the sentences for wounding and abduction. There is no appeal either against those sentences or the fact that they were imposed cumulatively.
Facts
Mr Burne and the complainant were fellow workers. She normally left the premises at about 6.30 pm. On 20 April 2001 Mr Burne was waiting for her outside the external door disguised in dark overalls, balaclava, mask and gumboots. He was carrying a boning knife about 30 cms in length and a laundry bag. Seeing Mr Burne behind the door, the complainant screamed. He attacked her with the knife. She wrestled with him. At one stage he appeared to be trying to stab her. Later he tried to put the laundry bag over her head. She continued to scream, plead unavailingly with him to let her go, and wrestle with him and the knife. She invited him to take the money in her handbag and let her go, but this plea was ignored. She bit Mr Burne on the forearm.
A worker from a nearby plant drove past, saw the struggle and returned to the scene after driving a short distance down the road. That distracted the appellant causing him to lose possession of the knife. The complainant grabbed the knife. She then ran to the person’s car discarding the knife as she did so.
The mask and balaclava came off during the struggle and the complainant was able to identify Mr Burne. When interviewed by the police, he first claimed that he carried out the attack as a practical joke. Later, he explained his actions as designed to highlight the danger to the complainant of leaving work after dark in the manner she did.
These defences were maintained at trial and were bolstered by evidence from other workmates who said that Mr Burne had made such comments previously to them. But that evidence may have been tempered by the workmates’ admission that Mr Burne had also said he wanted to sleep with the complainant.
To the police Mr Burne denied any sexual motivation. But he was unable to explain the presence of three condoms in his gumboots and the prolonged nature of the attack. In any event, by its verdict, the jury plainly rejected the appellant’s version of events.
As a result of the struggle with the knife, the complainant received cuts of 2.5 and 1.5 centimetres in her left hand and 5.5 centimetres in her right, which needed a total of 10 stitches. She also suffered multiple bruises and abrasions around the neck and generally over her body.
The victim impact statement also recorded the complainant’s spectacles being damaged beyond repair and the emotional and psychological impact on her and her partner. Whilst expressing satisfaction at her actions in self-defence on the night, she said the attack robbed her of feelings of security, safety and trust in others, particularly males. She lost a fortnight’s work.
When the police executed a search warrant at Mr Burne’s premises the day after the attack they uplifted property worth in excess of $50,000, identified as coming from two burglaries of his employer’s premises some years previously, plus other property pilfered from his employer’s premises over the previous six years.
Sentencing
The sentencing Judge, who had presided over the trial, described the case as “extremely disturbing”, pointing to the prolonged nature of the attack despite the complainant’s self-defence. The Judge further took the view that the jury’s verdict made clear that it accepted that Mr Burne detained the complainant with intent to have sexual intercourse with her, that also being confirmed by his disguise, the attack itself, his being armed and the use of the bag. He referred to the acceptance of responsibility connoted by the guilty plea to all counts other than abduction and the lack of any previous convictions. He rejected a submission that the episode was poorly planned. He regarded the time of the attack, the location, the violence, the knife, the disguise and the continuation with the attack in the face of resistance as being aggravating features. Then, after referring to R v Bond (CA302/95, 8 November 1995), R v Parker (CA286/97, 2 October 1997) and Solicitor-General v Nahu (CA309/98, 28 October 1998), the Judge accepted the Crown’s suggested starting point of six to seven years’ imprisonment on the abduction and wounding charges in combination, and reduced the sentences to six and a half years on each for the guilty plea on the wounding charge and the lack of previous convictions.
Submissions
For Mr Burne, counsel submitted that the starting point was too high and should have been set at three to four years before allowance for mitigating factors. They were Mr Burne’s co-operation with the police, the relatively brief nature of the incident the fact that both counts were part of the same transaction and the offending occurred in a public place. Estimates varied as to the duration of the attack but it seems it lasted perhaps three minutes or thereabouts. Although not expressly appealed, Mr Fairbrother submitted that the sentence on the wounding charge was also too high given the maximum of seven years’ imprisonment and the fact that the injuries to the complainant, whilst serious, were not in the gravest category.
The Crown’s submissions were that the guilty plea on the wounding resulted from inevitability of conviction and did not obviate the need for the complainant to give evidence. Counsel drew attention to differences between this case and the three on which the Judge relied, submitting that the decision in Parker was closer to the present case than Nahu.
Discussion
In Bond a sentence of 9 years following a plea of guilty on one charge of taking away a woman without consent with intent to have sexual intercourse with her was reduced by this Court to 7½ years, the discount being for the plea. That case involved the appellant watching the woman on a number of occasions and attacking her one morning while she was jogging. She was punched, partially strangled, dragged to a car and driven away. Her attempts at escape were prevented and she was shut in the boot but was able to escape by jumping out. The appellant accepted he intended to rape her when he attacked her. The sentencing Judge regarded the case as being (p 3) “well up the ladder of seriousness and indeed closer to the maximum than the middle”. This Court reached the view that the proper sentence on the abduction was of the order of nine years but that after mitigating factors, including the plea of guilty, were taken into account, the lesser term was justified.
Parker involved an appeal against a sentence of 3½ years’ imprisonment following conviction by a jury on one count of detaining a woman without her consent with intent to have sexual intercourse. The accused and the complainant met in a bar, a good deal of alcohol was imbibed, she accepted a lift home and unsuccessfully tried to persuade the appellant to desist when he took the wrong route. In an unlit and unpopulated area the appellant kissed her after repeatedly making threats of a sexual nature to her. By chance, a police dog handler carrying out a routine patrol came on the scene. The victim complained to him. Again, counsel submitted that the events covered only a short period. After referring to earlier authorities, including Bond, this Court upheld the sentence saying that it was impossible to regard 3½ years’ imprisonment in that case as manifestly excessive. The Court was not called on to consider the appropriate starting-point in abduction cases.
Nahu was a Solicitor-General’s appeal on pleas of guilty to one count of unlawfully detaining the complainant with intent to cause her to be confined – ie a charge under s 209 (1)(a) not, as here, s 208 (1)(a) - and causing grievous bodily harm with intent. The appellant was sentenced to 3½ years’ imprisonment. The sentencing Judge took a starting point of 5 years. The parties had been in a relationship but separated. Some time afterwards when she arrived home after working late, he was there with a knife. He ordered her into a car, drove to an isolated area, dragged her from the car by her hair, kicked her, rammed her into the side of the car, and caught her and made threats to kill when she tried to escape. He continued to threaten her with the knife until she managed to calm him down by promising to stay with him. During this period the sentencing Judge and this Court accepted (p 2) that the “complainant had good reason to feel her life was in real danger”. The pair then went back to the appellant’s home. Her injuries included a broken nose, black eye requiring stitches, bruising and damage to teeth, with dizzy spells, repetitive headaches and serious emotional harm. The appellant had four convictions for assault or male assaults female, and one for possessing a weapon but had never been sentenced to imprisonment.
The Judge regarded the events as being on the border between the lowest and the middle categories of R v Hereora [1986] 2 NZLR 164. This Court took the view that such was tenable for the charge of causing grievous bodily harm with intent on its own but not when the abduction and the prolonged nature of the event were taken into account. A starting point of 6-7 years would have been appropriate. The allowance of 18 months for the plea of guilty on the grievous bodily harm charge was described (p 5) as “unduly generous” given the inevitability of conviction. Applying the principles relating to the Solicitor-General’s appeals, this Court reached the view that the minimum sentence should be five years and increased the term accordingly.
Discussion and Result
The view we take of this case is that it was a serious assault. Quite apart from bruising and abrasions it resulted in three lacerations to the complainant’s hands all of which needed stitching. It left the complainant with significant psychological scarring in addition to her physical injuries. The attack was planned. The appellant secured a knife and bag to assist in effecting his designs and disguised himself. The jury rejected the suggestion that it was a joke or was designed to draw attention to the dangers inherent in the complainant’s actions and accepted that the circumstances of the attack, particularly the carrying of the condoms, left no doubt that had it not been for the fortuitous intervention of the passer-by, rape may have followed. The attack was persisted in despite the complainant’s efforts at self-defence and, as we have said, ended only because of the intervention.
This case has some factual similarity to both Parker and Nahu though it is closer to the latter. However, in Nahu the violence was rather more prolonged and the injuries more serious than here though the appellant pleaded guilty.
We agree with the Judge that the abduction count was to be regarded as the lead sentence, though the wounding charge also required to be taken into account.
Having reflected on the facts of this matter in the light of the authorities, in our view the sentence of 6½ years’ imprisonment on the abduction count was too high. The appropriate sentence is one of 5½ years’ imprisonment and the appeal is allowed and that sentence substituted.
Although there was no appeal against the sentence on the wounding count, for the reasons earlier mentioned, it follows that the sentence on that count should also be reduced particularly when compared against the maximum available. In our view, the appropriate term is again 5½ years.
The sentences on the burglary and theft charges and the order that they be served cumulatively, stand, there having been no appeal against either.
Solicitors
Crown Law Office, Wellington
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