The Queen v Highley

[2006] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/06

THE QUEEN

v

GRAHAM FREDERICK HIGHLEY

Hearing:29 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ

Counsel:H T Young for Appellant

M N Zarifeh and R M Thomas for Crown

Judgment:13 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       On 6 May 2005 the appellant was drinking in a bar in Invercargill.  He received information to the effect that the complainant had engaged in sexual improprieties with a distant relative of the appellant.  He went to the complainant’s house, forced his way in past the complainant’s mother, abused the complainant and then assaulted him.  In the course of this, he punched the complainant to the head on a number of occasions and, after the complainant fell to the ground, kicked him up to twelve or thirteen times.  He assaulted the complainant’s mother by pushing her away when she tried to intervene.  As he was leaving, he threatened the complainant that he would kill him if he went to the police.  He then returned to the bar. 

[2]       Following a trial at which the appellant’s defence was one of alibi, he was found guilty by a jury on charges of injuring the complainant with intent to injure (laid under s 189(2) of the Crimes Act 1961), threatening to kill him and assaulting his mother.  He was found not guilty of a more serious charge, laid under s 189(1) of the Crimes Act, of injuring the complainant with intent to cause grievous bodily harm.  He was subsequently sentenced to two years nine months imprisonment.

[3]       He now appeals against sentence and the only issue for us is whether the sentence of two years nine months imprisonment was excessive.  Before addressing that question directly, we will refer briefly to the appellant’s background, the significance of the assault on the complainant and the Judge’s reasons for imposing the sentence now under challenge.

The appellant’s background

[4]       The appellant is now 44 years of age.  He has a significant list of convictions for a diverse range of offences, including two assaults, one in 1982 and one in 1986.  Up until his remand in custody following conviction, he had been in full time employment.  He claimed to the pre-sentence report writer that alcohol, which contributed to much of his previous offending, was no longer a problem for him. 

The impact of the offending on the complainant

[5]       The assault was serious.  It involved more than one punch to the complainant’s head and he was kicked on a number of occasions while he was on the ground.  The complainant lost consciousness for approximately five minutes.   A CT head scan which was subsequently carried out reported a small bleed posterior to the pineal gland and a small trace of blood on his cerebellum.  As well, the complainant suffered a dislocated thumb.

The Judge’s reasoning

[6]       In his sentencing remarks the Judge identified the following aggravating features:

·     This was an act of vigilante justice on your part.  I see it as being unprovoked.

·     There is an element of home invasion with this charge.  You went to the victim’s address and beat him up in his own house.

·     There is the nature of the violence which includes both punches and kicks.  There are the injuries that he suffered.

·     There was both actual violence and threatened violence on your part.  There is the physical and emotional harm which has occurred as a result of your offending.  The nature of the attack, as I have said, involved both punches and kicks.  Kicks to such an extent that there was clear medical evidence of bleeding to the brain.

·     There was a degree of premeditation involved from the point of view of getting in your car and driving to the victim’s home.

·     While you have some previous convictions, previous convictions for violence are some time ago.  There was a matter in the late 1990s where a suspended sentence was imposed.

[7]       Then, having referred to the absence of any mitigating features, the Judge imposed concurrent sentences as follows:

(a)On the charge of injuring with intent to injure, two years nine months imprisonment.

(b)On the charge of threatening to kill, imprisonment for 18 months.

(c)On the charge of assault, imprisonment for six months. 

Was the sentence excessive?

[8]       Mr Young, for the appellant, sought to advance the appeal on two grounds, first an alleged mistake on the part of the Judge as to bleeding to the complainant’s brain and, secondly, and more importantly, an assertion that the sentence lay outside the range that was appropriate to the appellant’s culpability.  It became apparent from the material filed by the Crown that the Judge’s reference to bleeding to the brain was justified by the medical evidence which he had before him and that aspect of the case was not pursued by Mr Young. 

[9]       We are satisfied that the sentence was within the appropriate range available to the Judge. 

[10]     Sections 188 and 189 of the Crimes Act create a number of offences associated with serious assaults.  The highest maximum penalty (14 years imprisonment) is provided for offending under s 188(1) which addresses the infliction of serious injuries with intent to cause grievous bodily harm and the lowest maximum penalty (five years imprisonment) is provided for offending under s 189(2) for the infliction of injury with intent to injure (or reckless disregard for safety).  The charge under s 189(1) on which the appellant was acquitted carried a maximum penalty of ten years imprisonment.

[11]     R v Taueki [2005] 3 NZLR 372 (CA) provides tariff guidance for offending more serious than that committed by the appellant. But it is nonetheless of substantial assistance in the present context - indeed very much more so than the other sentencing decisions relied upon by the appellant, none of which could fairly be regarded as giving tariff guidance.

[12]     The appellant’s offending did not fall far short of offending which is within band one of the Taueki bands (offending which will almost always attract a starting point sentence of at least three years).  In saying this we recognise that the injuries inflicted were not sufficiently serious to warrant a charge under s 188(1) and that the appellant was acquitted on the charge laid under s 189(1), presumably because the jury was not satisfied that he had intended to cause the victim grievous bodily harm.  But it was, nonetheless, a serious assault and, as well, involved a number of the aggravating features which were recognised in Taueki, in particular premeditation (at least to the extent that this was implicit in the appellant’s decision to leave the bar at which he was drinking and drive to the complainant’s house), attacking the head, home invasion, and vigilante action.  As well, there were the additional aggravating features of the threat to kill and the assault against the victim’s mother.

[13]     We are accordingly satisfied that the sentence lay within the range available to the Judge. 

Conclusion

[14]     The appeal is dismissed

Solicitors:
Raymond Donnelly, Christchurch for Crown