The Queen v Martin

[2009] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA560/2008
[2009] NZCA 8

THE QUEEN

v

DWAYNE RUDY MARTIN

Hearing:9 February 2009

Court:O'Regan, Hugh Williams and Miller JJ

Counsel:M B Ryan  for Appellant

A Markham for Crown

Judgment:13 February 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       The appellant, Dwayne Martin, along with his younger twin brothers, Windsor and Cleveland Martin, and one or two other associates, were involved in a serious violent assault.  Charges were laid against the three brothers.  The appellant subsequently pleaded guilty in the District Court to causing grievous bodily harm and was sentenced to seven years and eight months’ imprisonment.  He now appeals against that sentence.

[2]       The sole ground of appeal is an alleged disparity between the sentence imposed on the appellant and the sentences imposed on his brothers, particularly Windsor Martin.

Background

[3]       On the evening of 2 June 2006, the victim and two associates assaulted Windsor Martin at an address in Palmerston North.  Windsor Martin fled on foot to his home, where he told the appellant and other associates about the incident.  The appellant, Windsor Martin and another family member then drove back to the address at which the assault occurred.

[4]       When they arrived at this address, they encountered the victim and his associates leaving in another vehicle.  As the cars passed, there was an exchange of projectiles.  The appellant then drove to another address at which he picked up Cleveland Martin; later, two other male associates joined the group.

[5]       The group, wanting revenge, went in search of the victim’s car.  They located it and forced it to stop.  Both groups of people, armed with weapons, got out of their cars.  A confrontation ensued, during which the victim became isolated from his associates.

[6]       At this point, the victim became the focus of the appellant and his associates.  The group commenced a violent and prolonged attack.  Various weapons, including claw hammers, were used.  The victim attempted to escape but was caught and overwhelmed by kicks and punches.  He fell to the ground and the violent assault continued: his head was stomped on and further kicks were administered.  When the attack finished, the victim was left unconscious and lying in a pool of his own blood.

[7]       The effects of this assault on the victim and his family have been very significant.  He was hospitalised for a number of weeks, suffering a severe traumatic brain injury and a depressed fracture of the skull.  Fifteen months later, the victim is still unable to work and is cared for by his sister.  He has experienced a decline in cognitive functioning and requires supervision in order to complete ordinary tasks of daily living.

The sentencing

[8]       The appellant and his younger twin brothers were charged with causing grievous bodily harm with intent to cause grievous bodily harm.  At the final pre-trial callover, eight days before the trial, the three brothers advised their respective counsel that they would enter guilty pleas to the charges upon arraignment.  However, the appellant absconded while on bail and did not appear in Court for another six months.  Windsor Martin also absconded but appeared about three weeks after the intended trial date.

[9]       Windsor and Cleveland Martin were arraigned and pleaded guilty to the charge.  They were sentenced on 14 March 2008.  The appellant did not plead guilty until 17 July and was sentenced on 15 August.

[10]     Judge Garland sentenced all three brothers.  He placed the offending in Band 3 of R v Taueki [2005] 3 NZLR 372 (CA) and adopted a starting point of nine years’ imprisonment in each case. No issue is taken with that aspect of the sentence.

[11]     In assessing the aggravating and mitigating factors personal to each offender, the Judge dealt with Windsor and Cleveland Martin in the following way in his sentencing notes of 14 March 2008:

[59]     Dealing with you first of all, Mr Windsor Martin.  In aggravation I note that you have two previous convictions for assault.  However, both of those offences post-date this offending.  In mitigation I take into account your age.  That is a very important mitigating factor.  You were only 17 years old at the time of the offence.  You are only 19 years of age now.  Secondly, I take into account your guilty plea and your acceptance of responsibility.  Your Trial date was due to start on 22 January 2008.  You entered a guilty plea on 15 February 2008 after you had absconded.  The guilty plea was therefore entered very late.  In my view your contrition and remorse is limited.  The probation officer, however, believes that you are thinking about making changes to your lifestyle.  Overall, I consider that a reduction of three years imprisonment is warranted.  I therefore sentence you to six years imprisonment.

[60]     I turn now to deal with Cleveland Martin.  Dealing first of all with the aggravating factors personal to you.  This is not your first violent offending.  In 2005 you were convicted of aggravated robbery using a machete which involved the kidnapping of a six year old boy.  You were then 16 years of age.  You received a sentence of two years imprisonment with leave to apply for home detention.  It is a further serious aggravating factor that you committed the present offence within two weeks of your release from prison while you were still on release conditions.  In mitigation, I take into account your age.  As with your brother, this is an important mitigating factor.  You also were only 17 years old at the time of this offence.  You are only 19 years of age now.  I taken into account your guilty plea and your acceptance of responsibility for this offending.  Your plea was also very late.  It was indicated at the callover on 18 January and you entered your plea of guilty on 22 January this year.  That was the day that your Trial was due to start.  You seem to have no empathy or remorse for your offending.  Overall, I consider that a reduction of two years is warranted for you.  I therefore sentence you to seven years imprisonment.

[12]     Accordingly, Windsor Martin received a discount of three years and Cleveland Martin received a discount of two years.  A minimum term of imprisonment of three years and six months was imposed on Cleveland Martin, to reflect the risk he posed to the community.  The Judge imposed a cumulative term of two months’ imprisonment on Windsor Martin for unrelated offending.

[13]     At the appellant’s sentencing on 15 August, the appellant’s counsel submitted that the same sentence discount as that received by Windsor Martin should be given to his client.  The Judge dealt with the aggravating and mitigating factors personal to the appellant in this way:

[16]     … The only aggravating factor personal to you is your previous conviction for assault.  I agree with Mr Ryan’s submission that that does not warrant any uplift in the starting point.

[17]     I turn now to mitigating factors.  You are now 21 years of age.  You were 19 at the time of the offending.  Significantly you were the eldest of the three offenders.  Your two brothers were only aged 17 at the time.  Both your brothers received significant credit for the fact of their age at the time of the offending.  Both your co-offenders received an allowance of 10 percent for late guilty pleas.  They entered their pleas of guilty just before trial of all three of you was due to commence.  As Mr Ryan has quite rightly submitted, you indicated at that time that you would enter a guilty plea but unfortunately you absconded.  You did enter a guilty plea once you were apprehended and when the outcome was really almost inevitable.  However having said that you still avoided the necessity of a trial.  I therefore allow a reduction of 10 percent on account of your guilty plea.  I also allow a small reduction on account of your age.  The reduction that I allow is one of 16 months imprisonment.

[14]     On the charge of breaching bail, the appellant was convicted and discharged.  The final sentence imposed on the appellant was therefore seven years and eight months imprisonment.

Was the disparity in sentences justifiable?

[15]     Counsel for the appellant, Mr Ryan, acknowledged that the threshold for successful appeals on the basis of disparity was high.  As this Court put it in R v Lawson [1982] 2 NZLR 219 at 223:

It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[16]     Mr Ryan argued that it was comparatively easier to assess the disparity argument in this case than in others because:

(a)       The appellant and the other two offenders are brothers;

(b)All were sentenced on the basis that their separate involvement in the attack on the victim could not be identified, but that each was equally culpable;

(c)They were sentenced by the same Judge;

(d)The Judge had clearly identified the basis on which he had calculated the discounts from the nine year starting point in relation to each offender.

[17]     Mr Ryan argued that the principal difference between the appellant and his twin brothers was age, and that the two year age difference in this case did not justify the significant difference in the end sentences.  He argued that the age difference was not as significant as the Judge appeared to consider it to be, because, especially in the case of Cleveland Martin, his youth had not been a barrier to significant offending (the present offence was committed within two weeks of his release from prison for aggravated robbery and kidnapping).  He accepted that the delay in the appellant entering his guilty plea, which was due to the fact that he had absconded while on bail and remained at large for a considerable period, was a factor counting against the appellant.  He had submitted in the District Court that this should be reflected in a short cumulative sentence, but the Judge appears to have simply seen it as an aggravating factor in relation to the lead sentence and factored it into the end sentence of seven years and eight months imprisonment. 

[18]     Mr Ryan sought to minimise the distinction which the Judge had made between the appellant and Windsor Martin.  He said that both had similar life styles, and their prior and subsequent offending had been similar.  Both had significant outstanding fines (though those of the appellant were less significant than those of Windsor Martin) and both had responsibilities in respect of dependant children.  Both were described by the probation service as being at medium risk of further offending.

Our assessment

[19]     In our view, Windsor Martin can regard himself as fortunate to have had such a generous discount on the basis of his age.  The sentence for the appellant is unexceptional when taken in isolation from those of his brothers, and indeed the gravity of the offending was so high that the sentence imposed on Windsor Martin is at the bottom of the range available to the Judge.  The very high discount provided to Windsor Martin on account of his youth appears to be more generous than was justified.  But for present purposes the important point is that, as a 19 year old (at the time of offending), the appellant simply was not eligible for a discount of that kind, which is why the Judge did not provide for one in sentencing him.

[20]     Standing back and looking at matters in the round, we are satisfied that the Lawson test is not met in the present case.  The reality is that the appellant is two years older than his brothers and, although Mr Ryan sought to limit the significance of this difference, the sentencing Judge was well placed to assess the position.  The appellant absconding while on bail delayed the entry of his guilty plea until several months after the pleas entered by his brothers, during which the victim would have remained uncertain as to the possibility of a trial.  A ten per cent discount for a plea entered in those circumstances was itself generous.  Although the difference between the sentence imposed on Windsor Martin and that imposed on the appellant is significant, we are satisfied that the unavailability of the generous discount for age to the appellant, the recognition of his having absconded while on bail and the much later guilty plea are, in combination, sufficient to persuade us that an appeal on the basis of disparity should not succeed.

[21]     In our view, the only criticism which could be made of the sentencing Judge was that the discount for youth which he gave to Windsor Martin was too high and the resulting sentence too lenient.  As this Court said in R v Rameka [1973] 2 NZLR 592 at 593:

The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other.  What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 Cr App R 191).

[22]     We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington