The Queen v Haua and Burt

[2007] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

CA360/07
CA513/07
[2007] NZCA 446

THE QUEEN

v

RICHARD DANIEL HAUA
RORY JOHN BURT

Hearing:11 October 2007

Court:Hammond, Baragwanath and Keane JJ

Counsel:J A Westgate for Appellants

S B Edwards for Crown

Judgment:17 October 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

The appeal

[1]       The appellants do not challenge the sentences of five years and three months imprisonment (Mr Haua) and five years imprisonment (Mr Burt) imposed following conviction after jury trial for wounding with intent to cause grievous bodily harm.  Their appeal is against the imposition of minimum non‑parole periods of imprisonment of two years and eight months for Mr Haua (approximately fifty percent) and two years and six months for Mr Burt (fifty percent).

The facts

[2]       Mr Downie and his wife Dr Downie were walking along Rattray St, Dunedin, just after midnight after dining in the city. Ahead of them were two female associates of the appellants who were standing on the footpath using loud and foul language in a verbal dispute with one another. As Mr and Dr Downie approached the pair, the women yelled abuse right in the faces of the couple, particularly Dr Downie, as they passed.  Dr Downie responded colloquially, telling them to “get off”.  One of the women punched Dr Downie twice in the face and the other joined in.  Dr Downie was struck about a dozen times and was knocked to the ground.  At that point the appellants attacked her husband.  Mr Haua administered a king hit to Mr Downie’s face with a closed fist, causing him immediately to collapse to the ground.  While he lay there unconscious Mr Haua began kicking Mr Downie repeatedly in the head and shoulders area with considerable force.  Mr Burt joined in and also kicked Mr Downie to the back and stomach areas while he was on the ground.  He stomped on Mr Downie’s head.

[3]       The beating was described by witnesses as “frenzied”, “incredibly vicious”, “very, very deliberate”, “savage” and “brutal”.  The kicks were so hard that Mr Downie was physically lifted off the ground as they connected. Judge Garland found that each appellant was involved in repeatedly kicking Mr Downie on the ground.  Dr Downie sought to intervene, but what the Judge described as a “vicious, brutal and unprovoked attack” only stopped when members of the public ran to his aid.

[4]       As a result of the attack Mr Downie was hospitalised for five days and sustained fractures to the right cheekbone, a fracture to the left cheekbone, a fracture to the right maxilla at the nasal aperture level, a fracture of the midline of the palate, swelling and bruising of the face, and a minimally displaced fracture of the mandible at the left‑condylar region.  He required surgery.  His fractures were reduced and joined with four titanium plates and 30 or 40 screws implanted in his mouth.  Arch‑bars were attached to his upper and lower teeth to keep his mouth closed with elastic bands during a six week healing period.  During that time he was restricted to drinking from a straw or eating a pureed diet.  While the fractures will heal satisfactorily over time patients with such injuries tend to develop chronic pain.  Other consequences included pain around the eyes, mouth and jaw and the need regularly to attend the dental hospital for treatment.  Mr Downie suffered digestive problems, lack of sleep, fatigue, shortened attention span and short‑term memory problems.  He has difficulty absorbing new information and suffers from claustrophobia.  There has been a major impact on his life.  There have been substantial financial consequences as Mr Downie was unable to work in his new business for some eight months and at the time of sentence could only work six hours a week.  He and his wife were gravely traumatised by the event.

Submissions in support of appeal

[5]       In support of the appeal Mr Westgate focused upon a concession by the Crown at sentencing that the appellants did not present a risk to the community.  He advanced the following points: the Judge had described the incident as not necessarily involving extreme violence; the incident was not planned; it did not involve the use of weapons and was not prolonged; there had been expression of remorse; and the offenders were considered to be at low risk of reoffending.  He referred to s 86 of the Sentencing Act 2002 which states the objectives of a minimum non‑parole sentence:

·     punishment;

·     deterrence;

·     denunciation; and

·     protection of the community from the offender.

[6]       He submitted that as the last of these had been disavowed by the Crown the decision by the learned Judge to impose a minimum non‑parole period was wrong.  Combined with the sentences of five years or more, Mr Westgate submitted that this resulted  in sentences that were manifestly excessive.

Discussion

[7]       We disagree emphatically.The head sentences were clearly justified, as the appellants conceded by refraining from challenging them on appeal.  They accord with the guidelines in R v Taueki [2005] 3 NZLR 372 (CA) in which a Full Court provided sentencing guidelines for serious violent offending. At [55] it identified the question before the Court as whether serving one‑third of the nominal sentence was insufficient for all or any of the four purposes. There could be no clearer case than this of the need to punish, deter and denounce the offenders’ conduct.  It is unnecessary for us to consider the topic of protection of the public, as to which the appellants may consider themselves fortunate to have secured the Crown’s concession.

[8]       We called upon Ms Edwards only to comment on decisions of this Court relied upon by Mr Westgate as cases where there had been no minimum parole term imposed for serious violent offending.  She demonstrated that they were ones where there had been no such term imposed at first instance; the issue had not been argued before this Court.  They therefore do not bind the decision of this Court on the point: In re Hetherington (deceased) [1990] Ch 1 per Sir Nicolas Browne-Wilkinson V-C.

Decision

[9]       The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington