The Queen v Chadderton

[2004] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/04

THE QUEEN

v

JOSHUA ALLAN CHADDERTON

Hearing:22 November 2004

Court:Chambers, Baragwanath, and Goddard JJ

Counsel:G Matenga for Appellant

S P France for Crown

Judgment:6 December 2004 

JUDGMENT OF THE COURT

A        The appeal is allowed.

B       The minimum period of 15 months imprisonment is set aside.

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REASONS

(Given by Baragwanath J)

[1]       This appeal is against a minimum non-parole period of 15 months imprisonment, half the 30 month term of imprisonment imposed by Judge Burnett in the District Court at Hamilton on 6 August 2004 upon the appellant’s plea of guilty to injuring with intent to cause grievous bodily harm.  A concurrent term of 12 months imprisonment was imposed on the second charge of possession of an offensive weapon.

Background

[2]       In the small hours of 8 February 2004 the appellant was driving north on Victoria Street, Hamilton.  At the intersection with the Claudelands Bridge his vehicle was struck from behind by a stationwagon in which the complainant was a rear seat passenger.  The stationwagon pulled in front of the appellant’s car and stopped.  The appellant reached into the passenger’s seat of his car and picked up a tyre lever with which he delivered three blows to the complainant’s head.  The complainant was taken to hospital by ambulance and was found to have received three separate lacerations to the back and side of his head, one of which required four stitches.

[3]       The Judge found that, while there may have been provocation by the driver of the stationwagon in tailgating the appellant’s car, the appellant had slowed down to annoy the occupants of the following vehicle.  That seems to have resulted in the minor collision.

[4]       The Judge noted that in May 2001 the appellant had been sentenced to nine months imprisonment for common assault.  She described the appellant’s use of alcohol and drugs as a grave concern with which the appellant was not motivated to deal at this stage.  While he had expressed remorse in a statement to the probation officer and in a letter provided to the Court, the appellant at 25 years of age had been employed for a period of only 12 months in his life. 

The Judge’s reasons

[5]       The Judge stated

[19]     Mr Chadderton has a considerable way to go to address those offending factors before he is going to be able to live peaceably in the community and indeed give the appropriate time and dedication to gainful employment, that any employment requires of a reasonable employee. So considerable changes must happen before Mr Chadderton can return to the community in the way that he wishes as is expressed in his letter to the Court.

[20]     Having previously identified the aggravating and mitigating features, in my view an appropriate starting point is three years and three months with a nine month discount for the mitigating features as identified.

[21]     As to the non-parole period, I am satisfied that a minimum non‑parole period is called for given the nature of the attack. Pursuant to s 86 Sentencing Act, subs (2)(b)(c) and (d) apply in my view, namely the need to denounce the conduct, it being an unprovoked attack on a member of the public who was a passenger in the car and not involved in the driving at all. Subsection (c) is a deterrent to the offender or other persons in similar road rage situations and, also subs (d) the need to protect the community from the offender and, in my view, half of the term of imprisonment ought to be served in order to give the prisoner the opportunity to take any advantage of intervention programmes in the prison that are available to him and, also to impress on him that when he returns to the community, it needs to be on a completely changed basis.

[6]       It appears that the Judge’s attention was not drawn to the question of which form of s 86 should apply.

Submissions

[7]       In support of the appeal Mr Matenga submitted that the circumstances did not justify the imposition of a minimum period of imprisonment and they do not take the offence out of the ordinary range of offending in this class of case.  He submitted that the Court should apply s 86 of the Sentencing Act 2002 in its original form that was in force at the time of the offence.  Passages that differ from the later form of s 86 are underlined.

86.      Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of The Parole Act 2002.

(3)For the purposes of this Section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of –

(a)       two-thirds of the full term of the sentence; or

(b)      10 years.

(5)For the purposes of Part IV of the Summary Proceedings Act 1957 and Part XIII of the Crimes Act 1961, an order under this section is a sentence.

[8]       For the Crown Mr France supported the Judge’s use of the form of s 86 as amended at the time of sentencing.  Subsection (3) had been repealed and subs (2) replaced by

(2)       The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

Subsections (4) and (5) remained unchanged.   Material changes are italicised.

[9]       Mr France submitted that, since the amendment Act contained no transitional provision, unless the new version is regarded as a change of penalty so as to engage retrospectivity concerns, s 5(3) applies

Subject to s 6 [retrospectivity]… this Act applies to offences committed before or after the commencement date.

He submitted

The primary change effected by the amendment to s 86 is probably [the addition of] s 86(2)(d) which appears to require reassessment of R v Brown [2002] 3 NZLR 670. Brown emphasised that the focus of a s 86 inquiry was the circumstances of the offence; issues of protection of the public were reserved to the Parole Board.  That approach no longer seems correct in light of the new s 86(2)(d).

[10]     In supporting the Judge’s sentence Mr France argued that minor traffic accidents are to a degree inevitable and that it was legitimate of the Judge to want to mark out society’s rejection of the aftermath.  A small traffic accident was no basis for the extreme assault that the appellant launched at the first person he reached.  The use of a weapon, and blows with it to the head of the victim, emphasised the need to condemn this type of reaction to traffic incidents and related to the need for general condemnation as a need to bring home to the particular offender that he must change his ways.  That the appellant has an anger management problem seems commonly accepted.  It was open to Her Honour to determine that there was a need to emphasise to the appellant the unacceptability and dangerousness of his conduct.  The outcome of his assault could have been much worse.

[11]     Mr France submitted that the changes to s 86 do little more than flesh out the previous tests of “sufficiently serious” and the essentials remain unchanged, namely that there must be a sentence of more than two years and the increased period of non‑parole can be between the range of one-third and two-thirds of the sentence.  He said that one can imagine that in some cases retrospectivity considerations might arise as the sole ground for imposing a greater minimum period for the protection of the public.  However that is not the case in the present sentence and accordingly it is an issue that can wait another day.

Discussion

[12]     It is apparent from para 21 of the Judge’s sentencing remarks that the considerations leading to her decision to impose a minimum non­‑parole period included the new para (d) of s 86(2).  It may be inferred that she was satisfied that the period of ten months otherwise applicable under s 84(1) of the Parole Act 2002 was insufficient for reasons that included the purpose of protecting the community from the offender.

[13]     For the reasons advanced by Mr France, which are summarised at para [9], if the amended Act were clearly applicable we would have much sympathy for the approach adopted by the learned sentencing Judge.  But Mr France was constrained to acknowledge that had the appellant been sentenced under the original form of s 86 this Court could not, without infringing the principle of consistency expressed in s 8(e) of the Sentencing Act 2002,  reject the guidance given in R v Moon CA366/02 27 February 2003 which involved the similar offence of wounding with intent to cause grievous bodily harm

[21]     Adopting what was said in Brown, the minimum period of non-parole must be intended for cases of such seriousness that the Court considers that release after one-third of the sentence has been served would represent insufficient enunciation, punishment and deterrence in all the circumstances.  The focus is on the circumstances of the offence.  The provision is intended to apply in circumstances where culpability is high.

[22]     When this approach is taken, we cannot accept the present offending justifies a minimum non-parole period.  Although a dreadful offence from the point of view of the complainant, it is not of its type one of high culpability.  If it were it would be in the first category in R v Hereora [1986] 2 NZLR 164 (CA), or possibly in the top of the second category, and not in the third, perhaps shading into the second.

Since Judge Burnett found that this case was within the third category of Hereora on such approach the appellant would not have been sentenced to a minimum period of imprisonment.

[14]     Despite the powerful justification for a minimum term provided by the facts, we are not attracted to a result that would be supportable only by reliance on the new form of s 86, not in force at the time of the offending.  If triggered by s 5(3), s 6 requires the application of the former law.  To avoid that result would require us to conclude that although in fact, applying the decision in Moon, there would have been no minimum sentence imposed had the Act not been amended, in law it was always open to impose such sentence and so it is now legitimate to do so, despite the need to rely on the new subcl (d).  That would infringe the policy of s 6, itself an application of s 25(g) of the New Zealand Bill of Rights Act 1990 discussed in R v Pora [2001] 2 NZLR 37 and in turn echoing Article 15 of the International Covenant on Civil and Political Rights.

[15]     Because we are satisfied that the old form of s 86 applies we allow the appeal by setting aside the minimum term imposed by the District Court.  Its decision in other respects will stand.

Solicitors:

Foster Matenga Milroy, Hamilton for Appellant

Crown Law Office, Wellington