The Queen v Michael James Curry

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 272/00
CA 273/00
CA 326/00

THE QUEEN

MICHAEL JAMES CURRY

AARON JOHN CAMMOCK

JASON ERNEST MILFORD

Hearing:	28 September 2000
Coram:	Gault J Ellis J
Robertson J
Appearances:	W N Dawkins for Curry D G Slater for Cammock K J Phillips for Milford C L Mander for Crown
Judgment:	28 September 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Very early on the morning of 27 February 2000 the three appellants were cruising around Invercargill in a van with other members or associates of the Road Knights gang. Insults were exchanged between this group and a group which included some Maori and Polynesian youths who were in a central city street in Invercargill. The other group moved on but the group including the appellants gave chase and eventually caught up with one of the others. The victim who was a 16 year old 6^th former at a Southland high school had eventually given up trying to escape and had effectively surrendered.
Mr Curry and Mr Milford came upon him and began ferociously beating him. They were soon joined by Mr Cammock. The three appellants who were wearing boots took turns in kicking him and stomping him until he was unconscious. Kicks were rained on his head and body. The group walked away then returned and administered more stomping which included both feet being in the air at times before landing on his head. The word “nigger” was heard coming from the assailants by several witnesses. There were up to 18 eyewitnesses some of whom remonstrated verbally with the attackers but to no avail.
By the time these three eventually finished the attack they left the victim virtually for dead. He had a fractured skull and was bleeding within his skull. When he arrived at the hospital he was critically ill and medical reports indicate that without correct or good care he would probably have died. He was in hospital for two weeks and could not return to school for two months. The available medical information suggests that it will be at least 2 years till the full extent of his recovery will be known.
Each of the appellants was charged with the offence of with intent to cause grievous bodily harm caused grievous bodily harm. There was a preliminary hearing. On the third day of the depositions at which eight civilian witnesses had been called, Mr Cammock requested to be given the opportunity to plead guilty which he did. On 23 June 2000 he was sentenced by Moran DCJ to 7½ years imprisonment. The Judge took a starting point of 9 years and allowed a credit of 18 months for the plea of guilty.
The other two eventually indicated pleas of guilty and appeared in the High Court at Invercargill before Chisholm J on 28 July for sentence. It was submitted on their behalf that the starting point adopted by the Judge in the District Court had been too high. The High Court Judge rejected that submission and concluded that the effective sentence in respect of Mr Curry and Mr Milford had to be higher than that imposed on Mr Cammock. They were each sentenced to 8½ years imprisonment.
All three now appeal against the sentences imposed on the sole ground that the sentences were manifestly excessive having regard to previous decisions in this Court and in particular the conclusion that the offending fell within the third and most serious category identified by this Court in R v Hereoroa [1986] 2 NZLR 164. It was argued that the circumstances more appropriately should have placed their offending within the second category.
The District Court Judge who imposed the first sentence noted :
A sentence today that not only deters you from conduct of this nature, but sends a clear deterrent signal to others who would indulge in this sort of activity is necessary. Personal considerations can carry little weight today.
There are unusually grave features of your offending on this occasion which put your case in the most serious category identified by the Court of Appeal in Hereoroa in 1986 and reiterated in Clotworthy in 1998.
That category calls for a starting point of nine to 12 years imprisonment.
Those unusual grave features comprise the arrogant, racist gang attack that this offence involved, calculated to engender fear in the community, and the stomping on the head of this unconscious victim, which could only have been calculated to cause him substantial injury, if not death.
Your guilty plea is a mitigating factor, notwithstanding its lateness. After all you, for your part, have saved the community a trial with the potential for ending the ordeal of frightened witnesses.
I also give some weight to the lack of serious violence in your previous convictions.
The Judge in the High Court dealing with the other two said :
However this matter is examined, there are plainly a number of aggravating features, as noted by Judge Moran. I simply list the features as I see them :
(a)This attack was arrogant and entirely unprovoked.
(b)It involved a group, in this case a Road Knights gang group, attacking a defenceless victim. In truth it was animal like behaviour.
(c)It was exceptionally vicious and sustained. It is true that there were no weapons, but I wonder what the difference is between using a weapon and jumping on an unconscious person’s head with boots.
(d)The injuries were severe.
(e)Intimidation was rife. It was also rife after the attack, and remained rife since that time. It was necessary for anonymity applications to be made.
(f)It had racist overtones.
(g)Each of you have previous convictions for violence.
And, finally, I note that if there is genuine remorse, it was very late in coming.
The other side of the coin is the question of mitigation. First, you have both pleaded guilty and are entitled to credit for that. I cannot see that a lot would be gained by trying to distinguish between the two of you in that regard. At the same time, you cannot possibly be entitled to the same credit as Cammock who pleaded guilty during the course of the depositions. Secondly, there were no weapons except to the extent that your boots could be seen as constituting weapons. And your personal situations need to be taken into account. You are both young men: Curry, you are 21; Milford, you are 23. But unfortunately both of you have previous convictions for assault and possession of weapons. And both of you have breached periodic detention and parole.
I have not the slightest doubt that when everything is taken into account this is extremely grave offending. Judge Moran, a Judge resident in this district, placed this matter in the third category because of the unusual features that he saw :
Those unusual grave features comprise the arrogance, racist gang attack that this offence involved, calculated to engender fear in the community and the stomping on the head of this unconscious victim which could have only been calculated to cause him substantial injury if not death.
There has been a good deal of debate as to whether this matter falls into the top category of Hereora or the middle category. As was said by the Court of Appeal in R v Clotworthy (1998) 15 CRNZ (CA), rigid adherence to those categories is not really the point. Rather it is a matter of taking all the circumstances into account in order to arrive at a view as to the gravity of the offending.
I am in agreement with Judge Moran as to the broad approach to sentencing in this case. It is also important for there to be some consistency between the sentence that he imposed and the sentences that I impose. He imposed a sentence of seven and a half years imprisonment. It was accepted by your counsel that if I rejected their submissions that the Judge in the District Court was wrong in the approach that he took to sentencing, then it was inevitable that the sentences you receive would be heavier. I have looked at Cammock’s previous record. When I take into account the differences between you and him as I see them, first, as to the time of the plea and, secondly, as to your previous record of violence (which he did not have) I come to a sentence of eight and a half years imprisonment for each of you.
Counsel for the appellants before us responsibly have not endeavoured to suggest that this was anything other than a most serious assault, but it is submitted that even allowing for all the aggravating features the sentencing was outside the available range of discretion and did not fall into the class with “unusually grave aggravating features” justifying its inclusion within the 9 to 12 year sentence band (discussed in Hereora).
Counsel have referred us to a substantial number of decisions in this Court dealing with serious unprovoked assaults. Included among the additional cases referred to were R v Karaitiana (CA 247/93, 5 November 1993), R v Poloa (CA 434/93, 23 February 1994), R v Christie (CA 95/96, 25 July 1996), R v Winter & Ors (CA 452-454/96, 26 February 1997), R v Shannon (CA 97/98, 16 July 1998), R v Brown (CA 378/98, 15 March 1999), R v Wood (CA 28/99, 30 March 1999), R v Robinson (CA 97/98, 21 July 1999) and R v Martin (CA 292/99, 20 October 1999).
We are not attracted by an approach which involves a minute dissection of the factual circumstances of previous cases analysing exhaustively the particular circumstances of the offence and the offender. Such an exercise is frequently skewed as there is not a consistency as to whether what are being compared are starting points or eventual effective sentences. What can be important is the principle which emerges from previous cases in assisting with a determination of the true culpability in the instant case. Similarly, when this Court referred to bands of offending in Hereora that is not to be interpreted as suggesting some mechanical process of pigeon-holing but rather highlighting factors which will influence the particular sentence in the total circumstances of an individual case.
It is impossible to avoid the stark reality that what occurred here was an outrageous attack with racial overtones permeated by arrogance and a total disregard for others by a group of vicious bullying cowards perpetrated on a young and defenceless lad.
Behaviour of this sort is anathema in our society. It has overtones and aspects which call for strong denunciation and the imposition of penalties which will hopefully deter others who are minded to act in this way.
Amongst the aggravating features which are important in this case are :
[a]The intensity of violence which was inflicted by a group on a single defenceless victim.
[b]The degree of premeditation involved in the pursuit of the victim particularly in the absence of any meaningful provocation and the commencement of the onslaught once the victim had virtually given up and surrendered.
[c]The continuation of the attack after the victim was unconscious.
[d]The youth of the victim compared with the ages of these adult appellants.
[e]The racial motivation for at least some of the assailants in the attack.
[f]The arrogance of the attack by members of the gang perpetrating this crime in a city street in the presence of other people whose entreaties for them to stop were ignored.
[g]The fact that although no firearm or weapon was used these appellants wearing boots jumped with both feet on their victim’s head as well as other parts of the body.
[h]The life threatening nature of the injuries which were inflicted and the long term consequences both physical and psychological which have arisen from the appellants’ unrelenting violence.
When these matters are considered in concert we are persuaded that a starting point of 9 years was appropriate to mark the community’s total abhorrence of this sort of behaviour. Men who behave in this way forfeit the right to be in the community for a lengthy period of time. Citizens young and old are entitled to be secure from such attacks and to have them denounced in strong terms.
From that starting point the Court must consider the position of the individual offenders and any mitigating factors.
Mr Curry is 21. He began offending in December 1995. His previous list includes assaults, wilful damage, possessing of offensive weapons, speaks threateningly, wilfully setting fire to property endangering life and various offences under the Misuse of Drugs Act. He claims to be an associate member of the Road Knights gang. He indicated that it was not his initial intention to assault the victim but as he was in a group situation and fired by alcohol, it just happened.
Mr Cammock is 22 years of age. His previous offending which spanned 6½ years included burglary, wilfully setting fire to property, carrying a restricted weapon, wilful damage, and disorderly behaviour. He has been a Road Knight member for about a year and previously had been a member of the Banden Krieg.
He indicated remorse and said that his involvement had been as a result of mistaken identity. He had mistakenly believed that the victim was a person who had on a previous occasion stabbed him in the back.
He pleaded guilty before the conclusion of the depositions, but even that was many months after the offending during which time the victim and others were left the stress and tension of the possibility that they might have to give evidence.
Mr Milford is aged 23. His previous convictions also spanned 6 years and include burglaries, theft, assault, driving while disqualified, wilful damage, possession of offensive weapons, unlawful possession of a firearm and unlawful assembly. He too has an association with the Road Knights gang. He said that he had gone to Invercargill intending to meet friends and party up and that he had got horribly drunk and had no recollection of the offence.
Mr Curry and Mr Milford pleaded guilty after depositions and only once it was clear that members of the public were prepared to come forward and give evidence utilising the witness anonymity legislation. It is the Crown’s submission that their pleas emerged only after it became apparent that their power of intimidation would not overcome the strength and character of ordinary members of the public in coming forward and actually giving evidence.
In the intervening period between the plea of guilty entered by Mr Cammock and those entered by the co-offenders, there had been significant preparation for trial and substantial preparatory work undertaken by the Crown making further application for anonymity orders as required under the legislation.
The reality is that the period of anxiety and stress for the victim, his family and friends, together with the civilian witnesses was extended. Further these two had more serious criminal antecedents than Mr Cammock. On that basis the Judge allowed a discount for a plea of guilty of 6 months not 18 months as in the case of Mr Cammock. Although there was initially a suggestion of a disparity appeal point, at hearing it was not pursued.
There was nothing else that could be said in mitigation. In our judgment the allowances were within range in the unusual circumstances of this case and considering the clear strength of the Crown case.
These are lengthy terms of imprisonment at the upper limit available. Despite the comprehensive and careful submissions advanced we are not persuaded that they were outside the sentencing Judges’ discretions. The appeals against sentence are accordingly dismissed.

SOLICITORS
CROWN LAW OFFICE, WELLINGTON
EAGLES, EAGLES, DAWKINS & REDPATH, INVERCARGILL
MACALISTER TODD PHILLIPS BODKINS, INVERCARGILL

D G Slater, Invercargill

[2000] NZCA 221

28 September 2000