The Queen v Gore

[2006] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND

CA414/05

THE QUEEN

v

BRETT WILLIAM GORE

Hearing:15 February 2006

Court:William Young P, Potter and Rodney Hansen JJ

Counsel:J A Westgate for Appellant

A R Burns for Crown

Judgment:2 March 2006 

JUDGMENT OF THE COURT

The appeal against sentence is allowed to the extent that the minimum period of imprisonment is quashed.

REASONS

(Given by Potter J)

Introduction

[1]       Brett William Gore appeals against a sentence of five and a half years imprisonment with a minimum period of imprisonment of two years nine months imposed by Judge S J O’Driscoll in the District Court at Dunedin on 7 October 2005.  The appellant was convicted following trial of charges of aggravated burglary (maximum penalty 14 years imprisonment), injuring with intent to cause grievous bodily harm (maximum penalty ten years imprisonment) and threatening to kill (maximum penalty seven years imprisonment).

[2]       The grounds of appeal are that the sentence of five and a half years is manifestly excessive and that the imposition of a minimum period of imprisonment of one-half the sentence, was wrong.

[3]       The Crown resists the appeal on the basis that the sentence was within the range available to the Judge and the imposition of a minimum period of imprisonment was within the Judge’s discretion and well supported by the evidence.

Factual background

[4]       The Judge summarised the facts which he accepted for the purposes of sentencing as follows:

You [the appellant] and the victim had been involved in a relationship for a period of time.  At one stage you were due to be married.  You had separated at the time of the offending and the engagement was called off.  On the evening of 26 November, of last year, you went to a hotel in Mosgiel where the victim was.  The evidence as I heard from both the victim and others at the hotel was that the hotel management were concerned about the victim and comments you had made to her.  They placed her in another room in the hotel because of their concerns.

You left the hotel at about 1 a.m. in the morning, went to her flat and gained entry via a window on the second story.  A male friend of hers who called at the flat disturbed you.  At about 2 a.m, when you were talking to the male, the victim and a friend came back to her flat.  They saw you and left, going to the victim’s friend’s address.  At about 3 a.m. the victim was brought back to her place by her friend and friend’s partner.  The rooms of the victim’s flat were searched to ensure it was safe for her to return and that you were not there.

Once her friend and her partner had left the address, you then confronted the victim.  The clear inference from the evidence is that you had been hiding in one of the rooms that had not been searched.  When the victim attempted to use the phone you prevented her from doing so.  There was evidence that you damaged and stomped on her cellphone.  A struggle ensued and the evidence I heard was that she was kicked and punched by you some 30 times over a period of some three hours.  Her evidence, which was clearly accepted by the Jury, was that you had gone to a kitchen and obtained a carving knife.  You made a threat to kill her, removed a ring from her finger, taking some other items and left.

The police spoke to you and you admitted entering the flat via the window.  You said you had gone there to get property that belonged to you.  You admitted speaking to the male that had visited the flat earlier and re-entering the flat.  You also admitted assaulting her, but only admitted kicking her lightly.  You denied using a knife.  Clearly the Jury accepted the victim’s version of what occurred and by doing that they returned verdicts of guilty on the three Counts.

[5]       The Judge also stated:

I do not accept for one minute that it could be said that it was fair, reasonable or appropriate, for you to have entered her [the victim’s] address when and in the manner you did or use as an excuse that you were there to obtain your property.  The evidence that I heard was that you had numerous occasions, prior to that night, to pick up and collect your property if you had wanted to.

Sentence

[6]       The Judge reminded himself that he must sentence on the basis of the jury’s verdict.  He said that the jury’s verdict showed that they accepted that the appellant used his feet, weapons and language to intimidate, frighten and injure the victim.  He detailed the aggravating features as including that this was a domestic attack on the appellant’s former partner in her own home and involved the unlawful entry into the victim’s address.  He noted the use of the weapon (carving knife), the threat to kill and the assault which involved kicking the victim on numerous occasions.  He referred to the extent of the violence used, the threat to use the knife, the presence of the appellant in the victim’s house and his sustained actions over a three hour period against the victim.

[7]       As to mitigating factors, the Judge referred to the testimonials and letters submitted on behalf of the appellant, his expressions of remorse in the pre-sentence report, that it was said that this offending was out of character for the appellant (while noting a previous conviction for assault), and observed that in his view the majority of the appellant’s previous offending had been alcohol related.  He noted that the appellant was aged 42 years. 

[8]       The Judge referred to the purposes and principles of sentencing as requiring a sentence which would take into account the need for deterrence, denunciation and accountability of the appellant.

[9]       The Judge took the aggravated burglary as warranting the lead sentence and imposed a sentence of five and a half years imprisonment.  On the injuring with intent charge he imposed a sentence of three years imprisonment.  (The Judge referred to this charge as “injuring with intent to injure” but the jury found the appellant guilty of the charge of injuring with intent to cause grievous bodily harm under s 189(1) of the Crimes Act, rather than the lesser charge of injuring with intent to injure under s 189(2) which was an alternative count in the indictment).  On the charge of threatening to kill the sentence imposed was two years imprisonment.  All sentences were to be served concurrently. 

[10]     In ordering the minimum period of imprisonment the Judge stated:

On the basis of the seriousness of the offending and the aggravating factors, in my view, a period of imprisonment under s 84 of the Parole Act would be insufficient to hold you accountable, to denounce your conduct and for the need to deter this type of offending.

He imposed a minimum period of imprisonment of one half the sentence.

Submissions

[11]     Mr Westgate for the appellant submitted that the sentence of five and a half years was manifestly excessive and that a sentence in the range of four to four and a half years would have been appropriate in all the circumstances, having regard particularly to the following:

(a)The appellant’s lack of previous convictions for serious violence (common assault 27/6/96, obstruction/hinder Police 14/4/86, and disorderly behaviour likely to cause violence 16/11/79);

(b)Little or no premeditation or planning.  He was not waiting for her return;

(c)Whilst on bail there were no problems at all;

(d)He had expressed remorse;

(e)The pre-sentence report observed that the appellant recognised the inappropriateness of his actions and expressed a high level of motivation to remain offence free and that he has no intentions of re-establishing any type of relationship with the victim in the future;

(f)He has a supportive family and this offending would seem to be largely out of character for him (he referred to the letters submitted).

[12]     We note that those were all matters before the sentencing Judge and referred to in his sentencing notes.  However, in respect of (b) the Judge did not accept that the appellant had reason to enter the address of the victim’s home that night, nor that his purpose was to collect property, he having had previous opportunity to do so.  The Judge drew the clear inference from the evidence that the appellant was hiding in one of the rooms that had been searched, and accepted the Crown’s submission that he was there in wait for the victim.

[13]     Counsel for the appellant focussed his submissions on the injuring with intent charge.  He referred to R v Taueki [2005] 3 NZLR 372 (CA), and submitted that while that case deals with more serious offending (wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act), it was useful in categorising the offending, albeit with an appropriate allowance (suggested as approximately thirty percent) to recognise the lower maximum penalty for offending under s 189. It was submitted that the offending here falls within the equivalent of band 1 of Taueki described as follows:

A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve a use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years.  Where there is a degree of premeditation or there is the use of a weapon (but, again no lasting injuries), the higher starting point could be expected as five years or more.

[14]     Mr Westgate contrasted a premeditated domestic assault falling within band 2 of Taueki described as follows:

A domestic attack on 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 (five-ten years).  The appropriate point in the band would require evaluation of the seriousness of those factors.  Where the attack involves the use of weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

He submitted that the appellant’s offending lacked the elements of premeditation and the inflicting of serious and lasting injury which would indicate a starting point in the band 2 range.

[15]     He listed the injuries suffered by the victim as:

(a)       Bruising over her nose;

(b)Tenderness over both cheek bones;

(c)Tenderness over the right shoulder;

(d)Bruising over the mid back;

(e)Bruising over the right hip;

(f)Bruising over both lower legs; and

(g)Some bruising on the right hand.

[16]     Mr Westgate emphasised that these injuries were neither serious nor lasting and did not require the victim to be admitted to hospital, that there were no broken bones and her treatment consisted of pain relief and her arm being placed in a sling.

[17]     Counsel relied on R v Panine [2003] 3 NZLR 63 (CA) where the appellant was convicted of wounding with intent to cause grievous bodily harm and aggravated burglary. He was sentenced to four years imprisonment on the charge of wounding with intent and three years imprisonment on the aggravated burglary charge. In that case the appellant, having consumed alcohol, armed himself with a fishing knife, walked into the victim’s house without invitation, grabbed her and forced her to sit on a chair and threatened to kill her. He threw her to the ground, sat on top of her, abused her verbally and punched her in the chest a number of times. Neighbours tried to intervene. The appellant told them to leave and began to drag the victim back inside. He sat on her again and told her that he would kill her very quickly and then lifted the knife above her and stabbed at her chest a number of times. The victim required hospital treatment and remained in hospital for observation for two nights.

[18]     Mr Westgate submitted that this was obviously more serious offending than in this case, and noted that the overall sentence of four years imprisonment was upheld on appeal.  He sought to distinguish the aggravated burglary cases relied on by the Crown as being “far more serious”.

[19]     Mr Burns for the Crown emphasised that the lead sentence in this case was for aggravated burglary, and submitted that even if the appellant were correct that the Judge acted outside his discretion in imposing three years imprisonment for the injuring with intent count, the final sentence of five and a half years imposed for the aggravated burglary was appropriate and reflected the seriousness of the offending.  Counsel noted that the Judge accepted there was an element of premeditation in that the appellant climbed through the victim’s window and then hid in the toilet whilst her friends searched the apartment.  He then confronted the victim when she was alone and inflicted systematic abuse with the victim being kicked approximately 30 times over a three hour period.  Counsel referred to the considerable psychological as well as physical effects for the victim noted by the Judge – that she had genuine fear for her life and now suffers from nightmares and panic attacks as a result of reliving the appellant’s offending. 

[20]     In respect of R v Panine relied on by the appellant, the Crown submitted that the aggravated burglary was less serious (the offender walked into the victim’s house uninvited when she opened the front door).  The Judge took the lead sentence to be wounding with intent to cause grievous bodily harm.   A starting point of five years was taken for that charge and reduced to four years on account of the offender’s psychiatric condition, cultural factors that would make imprisonment especially hard for him, and his good criminal record.  The Crown submitted that the appellant in this case could claim no such mitigating factors.

[21]     The Crown also referred to of: R v Rua CA58/02 24 October 2002, R v Spicer CA440/03 1 June 2004 and R v Lafai CA272/04 1 November 2004, cases where sentences were imposed for aggravated burglary.  The thrust of the Crown’s submissions was that starting points of eight years, nine years and seven years respectively were adopted or approved by the Court of Appeal in the aggravated burglary cases.  The factual circumstances of these cases were all somewhat different from those in the present case.  None involved an aggravated burglary in a domestic situation, but other distinguishing factors rendered them in some respects more serious than the present.

[22]     As to Taueki, Mr Burns noted that offending within band 1 attracts a starting point of three to six years and submitted that in any event this offending falls within band 2, which attracts a starting point of five to eight years, given the vulnerability of the victim, the home invasion, the premeditation, the prolonged violence and use of a weapon.  In the Crown’s submission the appellant was fortunate that a higher starting point was not adopted given these factors.

Discussion

[23]     The seriousness of this offending is reflected in the jury’s guilty verdicts on all counts in the indictment, including the more serious alternative charge of injuring with intent to cause grievous bodily harm.  The Judge was required to take into account the totality of the offending and reflected this by taking as the lead charge the aggravated burglary. 

[24]     On the charge of injuring with intent, the Court had to sentence on the basis of intent to inflict grievous bodily harm which was implicit in the jury’s verdict.  However, the appellant’s intent to cause the victim really serious harm must have been fairly transitory, for during the period of some three hours during which he intimidated, terrified and kicked the victim, he had ample opportunity, had his continuing intent been such, to cause her grievous bodily harm.  The physical injuries inflicted were limited, and were neither serious nor lasting.

[25]     The judgment in Taueki concerns “grievous bodily harm” offending.  This case does not fall within the range of cases to which the bands of offending set forth in Taueki are directly applicable.  In Taueki this Court stated at [25] that while the effect of the judgment is to push up starting points for cases at the upper end of the scale of grievous bodily harm offending which were out of step with the Sentencing Act, existing sentencing patterns for less serious offending would not be affected.

[26]     There were seriously aggravating factors of this offending – the elements of premeditation and home invasion, the use of a carving knife, the length of the period during which the appellant stood over, frightened, kicked and threatened the victim, including threatening to kill her.  Even so, we consider the sentence of five and a half years imposed was a very stern one and on the margin where intervention would be justified.

[27]     We turn to the minimum period of imprisonment imposed – one-half or two years nine months.  Section 86 of the Sentencing Act gives the Court a discretion to order an offender to serve a minimum period of imprisonment if a sentence of two years or more is imposed.  The Court may exercise that discretion if it is satisfied that the period otherwise applicable under s 84(1) of the Parole Act 2002 (one-third of the sentence imposed in this case) is insufficient for the purposes of:

(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.

[28]     It is clear that the fourth factor, protection of the community, was not relevant in this case.  The appellant has clearly expressed his remorse and regret for his actions which were fuelled by alcohol and his difficulty in coping with the termination of a long-term relationship with the victim.

[29]     Given the very stern sentence imposed, we do not accept that the minimum period of imprisonment of one-third that follows from that sentence is insufficient to hold the appellant accountable, to denounce his offending and provide an adequate deterrent.  Ultimately, it is the overall impact of the sentence which is important.  We consider that the imposition of a minimum term of imprisonment of one half of the sentence which was, of itself, very stern, results in a sentence which is manifestly excessive.

[30]     We therefore quash the minimum period of imprisonment.

Result

[31]     The appeal is allowed to the extent that the minimum period of imprisonment is quashed.

Solicitors:

Crown Law Office, Wellington