The Queen v Grant Raymond Urwin

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/02

THE QUEEN

GRANT RAYMOND URWIN

Hearing:	24 April 2002
Coram:	Anderson J Salmon J Paterson J
Appearances:	A E Kiernan for Crown M J Levett for Respondent
Judgment:	8 May 2002

JUDGMENT OF THE COURT DELIVERED BY SALMON J

This is an appeal by the Solicitor-General against a sentence of two years imprisonment suspended for two years, imposed after the respondent pleaded guilty to charges of causing grievous bodily harm with intent to injure and of being masked at night.
Shortly before midnight on 5 January 2000, the respondent and an associate went to the victim’s house. When they reached the address they placed balaclavas on their heads. They had with them a bag containing two pistols, a pick axe, pliers, masking tape, plastic gloves and ski gloves. The victim opened the door and the respondent and his associate forced their way into the house. The respondent’s reason for confronting the victim was to obtain information about the whereabouts of some cannabis which he believed the victim had stolen from him.
After entering the house the respondent struck the victim about the head with one of the pistols and with his fists. The victim fell to the ground. The respondent kicked him while on the ground. A neighbour came to the victim’s aid. As a result of the attack, the victim was admitted to hospital with numerous cuts and bruises to the head and other parts of his body, a fractured finger and a sprained wrist. A number of the cuts required suturing.
After recording the facts the Sentencing Judge noted the aggravating features in respect of the offending. These were the fact that the offences occurred at night, that there was an element of planning, that the offence took place in the victim’s home, that the assault was severe and that the victim was kicked while he was on the ground. The Judge recorded that the incident would have caused considerable emotional stress and anxiety to the victim in addition to the physical injuries.
When interviewed the respondent was co-operative and made full admissions, although pleas of guilty were not entered until more than a year after the offending occurred. The sentencing was delayed as a result of adjournments granted by the Court to give the respondent the opportunity to undergo treatment for his narcotic addiction. The Judge records that Mr Urwin responded very positively to the residential drug programme and that his physical and emotional status had greatly improved since he first appeared in the Court. He had renewed a close relationship with his partner and was in steady employment for the first time in many years.
As to sentencing the Judge said at paragraph 26 of the sentencing notes:
The task of assessing the appropriate sentence to impose upon you is very difficult. On the one hand there is the indisputable fact that this was serious offending which warrants a term of imprisonment. Against that factor has to be balanced the tremendous and laudable improvement that you have made in your life as far as both your health, your lifestyle and your working ability since these offences occurred. Notwithstanding the seriousness of your offending, regard has to be taken of the steps that you have undergone towards rehabilitation and you should be encouraged to continue that rehabilitation that you have so successfully commenced.
He then went on to note that a term of imprisonment must be imposed and that the starting point was in the range of four to five years. He recorded the mitigating factors and circumstances, as his initial expressions of remorse coupled with his frankness and co-operation when interviewed by the police, the restrictive bail conditions that he had been on for virtually two years, the fact that no long-term disability had occurred to the victim, the extensive steps taken to address the respondent’s alcohol and drug addiction and the substantial progress made in that regard. Taking all these factors into account, together with the plea of guilty, the Judge sentenced the respondent to two years imprisonment. He then concluded that rehabilitation considerations and the desirability of encouraging the continuation of rehabilitation justified suspension of the prison sentence. The respondent was also placed on supervision for two years, subject to conditions.

The submissions in this Court

For the Solicitor-General Mrs Kiernan submitted that a sentence of two years imprisonment was below the range of sentences available to the Judge for this type of offending which was described as akin to aggravated robbery. Mrs Kiernan submitted that the nature of the attack and the aggravating features warranted a starting point of between four and five years imprisonment before mitigation and home invasion considerations. Counsel referred to the decision of this Court in R v Palmer [2001] 1 NZLR 546 where the need for the Sentencing Judge to make discrete and concrete recognition of the home invasion element of offending was emphasised. Counsel submitted that the Judge failed to do this, and in so doing made an error in approach or principle the effect of which was to render the sentence manifestly inadequate.
Mrs Kiernan submitted that a sentence of no less than three years imprisonment was required in this case and supported that proposition by reference to authorities. Counsel further submitted that suspension of the sentence was wrong in principle given the violent nature of the offending.
Counsel emphasised the importance of the appearance of justice not only to the respondent but also in the wider context, including victims and the public. Nevertheless, she accepted that this was an exceptional case because of the way in which it had unfolded before the Judge. She agreed that there was strong public interest in ensuring that the respondent did not commit further offences and that he became a useful member of society.
For the respondent, Mr Levett emphasised the immediate admission made by the respondent and that guilty pleas were entered as soon as agreement was able to be reached with the police on the nature of the charges brought against the respondent. He put forward a version of the facts which does not coincide with that contained in the sentencing notes. He accepted that we are obliged to accept the facts as recorded by the Judge. Mr Levett referred to the respondent’s remorse, to the fact that his last relevant previous conviction was in 1987 and to matters relating to the respondent’s personal circumstances. In this regard he referred to the depression from which the respondent had suffered for a number of years which at one stage resulted in his admission to hospital. He noted that the sentencing Judge took a personal and continuing interest in the respondent’s well-being and rehabilitation during the lengthy period between plea and sentence. Numerous intermediate appearances were made before the Judge over this period. The Judge used these appearances to monitor the respondent’s progress. The respondent’s parents always attended Court with him and his partner and employer also appeared to address the Court from time to time. He noted that the lengthy remand period between arrest and ultimate disposal of the case in the District Court had enabled the respondent to
Establish a relationship with his daughter.
Address his drug abuse problem.
Deal with his propensity to violence.
Reconcile differences with his father and improve his relationship with both parents.
Terminate contact with previous associates.
Establish a genuine motivation to adopt a positive drug free, crime free and settled lifestyle.

In the words of the pre-sentence report the remand had -
…provided him with the opportunity to rethink his lifestyle and to work out the things he valued most in life.

Counsel submitted that it was almost inevitable that a full-time prison term would undermine the rehabilitation that had taken place and would be totally counter-productive. He referred to this Court’s comments in R v Ihaka (CA293/98, judgment 6 October 1998) where the Court said at pages 4 to 5, after referring to the fact that assaults on police officers will generally be met with a deterrent sentence:
However, that is not to say that in an exceptional case promptings of mercy or genuine rehabilitative prospects may permissibly lead to a different outcome. It is clear that the Judge had the general approach to such cases firmly in mind but considered that in the respondent’s particular circumstances the normal approach could properly be regarded as outweighed by the prospects of breaking his long cycle of offending.
Mr Levett told the Court that the Judge’s initial concern at the time the pleas were entered was with his suicidal tendencies. He was concerned that the respondent should not go to prison while in that state. Mr Levett advised us that the position at the time of the hearing before us was that the respondent was living with his partner, was in good employment and that his relationship with his parents was excellent.

Decision

There is no doubt that the offending giving rise to the charges against the respondent was serious. Section 5 of the Criminal Justice Act is clearly applicable. The Court, therefore, was obliged to impose a full-time custodial sentence unless satisfied, because of the special circumstances of the offence or the offender that the offender should not be so sentenced.
We have referred above to the Crown submission that the Judge did not take the home invasion provisions into account in setting the starting point for sentencing. We do not accept that submission. The Judge noted in paragraph [5] of his sentencing remarks that the home invasion provisions applied and that they increased the maximum penalty. A further reference to the home invasion provisions was made when the Judge was outlining the aggravating features of the offending. While it is correct that when expressing the view that the starting point was in the range of four to five years, he did not specifically refer to the home invasion provisions we have no doubt that he had them in mind.
The Judge imposed what was clearly a compassionate and merciful sentence. He did so in what turned out to be most unusual circumstances. It has already been noted that a year elapsed between the respondent’s arrest and pleas of not guilty being entered. During that time the respondent was subject to restrictive bail conditions including a residence condition that required him to live separate from his partner, reporting conditions and a strict curfew. Although the respondent was frank and co-operated when interviewed by the police and immediately expressed remorse, it took some 12 months before agreement could be reached with the police as to the appropriate charges to which guilty pleas should be entered.
The sentencing Judge noted that when the respondent first appeared in Court there were very grave concerns concerning his physical condition, his mental condition and his ability to cope with the seriousness of the situation. The Court recorded that there had been at least one, possibly two attempts to commit suicide, and on one occasion he had to be placed on life support. Even a year later when the pleas were entered, the respondent’s mental condition was still sufficiently fragile to prompt the Court to remand him on conditions requiring him to undertake a residential drug and alcohol programme. In fact, he took the Salvation Army Bridge Programme at Rotoroa Island.
We were provided with a ruling of the Judge made in April 2001 prior to that programme being undertaken. At that stage the Judge made it clear that the offending deserved a substantial term of imprisonment. He said:
I have formed the opinion that if you were sentenced to imprisonment today you are still in a very highly vulnerable state – you may not accept that yourself but that is the assessment that I have made. It might be ultimately that you have to serve a term of imprisonment but physically and mentally you may be in a better position to cope with that penalty, (if that is the penalty that is ultimately imposed upon you) if you complete the rehabilitation programme and treatment which I hope you will be able to undertake in the next few months because I am concerned that if you do not get the necessary treatment (and it may be a very strict residential treatment that you have got to undergo) re-offending might occur and, indeed, I cannot overlook the fact that self-harm might eventuate. They are two things which concern me and which I wish to guard against and try and help you to overcome.
As is clear from the sentencing notes the Judge continued to monitor the respondent’s progress during the supervening months prior to sentencing, which took place in January of this year. The task that faced the Judge was encapsulated in paragraph [26] of his notes which is set out earlier in this judgment.
It is only rarely in the course of judicial duties that a Judge will come across a case which because of the complex of sentencing objectives and the requirements of even-handed justice warrants the degree of emphasis on rehabilitation evident in this case. But where in the rare case a Judge has given extended and careful consideration to a mercifully rehabilitative sentence, an appellate Court will give that feature appropriate weight.
In Ihaka the Court said at page 4:
We give significant weight to the fact that the sentencing Judge has sat for some years in the Otahuhu Court where the sentencing took place. In the caseload before that Court there cannot be too many realistic opportunities for the rehabilitation of recidivist offenders. A Judge experienced in sitting in that criminal jurisdiction will often be in a better position than this Court to assess the merits of particular opportunities. That does not mean that this Court will resile from its appellate function, but we would be reluctant to differ from the Judge in such an assessment, where there are tenable views on both sides.
In this case, the sentence was imposed by a Judge with lengthy experience in relation to criminal matters, both in practice and on the bench. He monitored the respondent’s progress over a period of about 12 months. He noted that there had been a very positive response to the residential drug programme and that Mr Urwin’s physical and emotional status had greatly improved since he first appeared in Court. He referred to the respondent’s renewal of the close relationship with his partner and the fact that he was now a father. He observed that the writer of the pre-sentence report was of the view that Mr Urwin’s risk of re-offending appeared to be considerably reduced as a result of his abstention from drugs, his residential treatment and his apparent changed attitude.
We have concluded that in the truly exceptional circumstances of this case we ought not disturb the sentence. We emphasise the need for recognition that cases such as the present will be very rare and that nothing we have said is intended to detract from the appropriateness of the approach generally taken by the Courts to offending such as that committed by Mr Urwin. We are bound to remark that in this case the Judge’s starting point of four to five years is quite inconsistent with the indications given in R v Mako [2000] 2NZLR 170, and in particular paragraph [58] thereof. This Court’s disinclination to upset the sentence in this case must be regarded as an exceptional response to an exceptional case.
Leave to appeal is granted, because it was appropriate that the sentence should be examined on appeal, but for the reasons explained herein the appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland

[2002] NZCA 90

8 May 2002