The Queen v Panapa (Barney) Moon
[2003] NZCA 12
•27 February 2003
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA366/02 |
THE QUEEN
V
PANAPA (BARNEY) MOON
| Hearing: | 27 February 2003 |
| Coram: | Gault P Robertson J Doogue J |
| Appearances: | I Koya for Appellant G C de Graaff for Crown |
| Judgment: | 27 February 2003 |
| JUDGMENT OF THE COURT DELIVERED BY DOOGUE J |
The appellant was found guilty by a jury of wounding with intent to cause grievous bodily harm. An appeal against conviction is abandoned and is dismissed. An appeal against a sentence of eight years imprisonment and a four year minimum non-parole period is pursued.
The basis of the appeal against sentence is that the sentence of eight years imprisonment is manifestly excessive and that the circumstances of the case do not warrant a minimum non-parole period.
Background
The factual basis upon which the appellant was sentenced is set out in the sentencing notes of the sentencing Judge, who was the trial Judge. It has not been suggested that that summary is inconsistent with the evidence at trial. The essential aspects of the facts are as follows.
The complainant and the appellant occupied flats on the third floor of a large multi-tenanted apartment building. In the early hours of the morning the complainant was awakened by a noise. He looked outside his flat. He saw the appellant spraying the letters “KKK” and other graffiti, which had something to do with Christchurch groups, on the exterior wall and door of his apartment. The appellant was at this time completely unclothed. The complainant told the appellant to remove the graffiti. The appellant’s response was to spray paint at the complainant’s face. The complainant punched the appellant. The complainant insisted that the appellant remove the graffiti which he regarded as racial.
About half an hour later there was a further conversation between the complainant and the appellant when the appellant had some shorts on and was removing the graffiti. The complainant’s evidence was that the appellant apologised to him with the complainant accepting the apology so long as the graffiti was removed. The complainant said he went on to tell the appellant that if he cleaned it all up he would go and get him a box of beer to make up for punching him.
It appears that, at this time, unbeknown to the complainant, the appellant had with him a large kitchen knife. When the complainant turned away from him, the appellant stabbed him in the back. The appellant embedded the knife in the complainant’s back and kept it there until the complainant elbowed him away. The complainant removed the knife from his back. There was a further struggle. The complainant was able to get away and obtain assistance. When he returned to his flat the appellant tried to get him to continue the fight but he refused.
The complainant was taken to hospital. He underwent emergency surgery and two further surgical interventions and spent a total of fifteen days in hospital. The attack has had long term consequences for him.
The appellant is 59 years of age. He is an alcoholic. He defended the charge against him upon the basis of self-defence which was clearly rejected by the jury. Nevertheless the appellant continued to rely upon that version of events subsequent to his conviction.
Having dealt with the facts and the general position of the appellant, the sentencing Judge went on to note that the Crown had submitted that the appropriate term of imprisonment for the offence was in the range of 3-5 years as being within the third category identified in R v Hereora [1986] 2 NZLR 164 namely an “impulsive act of violence involving the use of weapon or intent to inflict serious injury”. The Judge, however, did not accept this view and in initially taking a starting point of 8 – 10 years adopted the upper end of the second category and the bottom end of the first category referred to in that decision. The second category embraces a case exhibiting a combination of aggravating features and the first cases where there are unusually grave aggravating factors.
The Judge noted the stabbing was premeditated. The appellant deliberately got the knife. He held on to it for a prolonged period after the initial stabbing. He continued the aggression well after the original stabbing.
In reaching his conclusion as to a starting point, the Judge referred to the use of the weapon, the premeditation, the injuries suffered by the complainant, alleged racial overtones involved in the attack, the assessed high risk of the appellant re-offending, the appellant’s lengthy criminal record and the prolonged course of the assault. He took the view that there were no mitigating features, that there was no acknowledgement by the appellant as to his conduct and no remorse despite a plea that there was. The only possible mitigating feature that he identified was the possible effect upon the appellant of a lengthy term of imprisonment given his age.
The Judge then imposed the sentence under appeal of eight years imprisonment. He went on to have regard to the provisions of s86 of the Sentencing Act 2002. He did not directly address the question of whether the circumstances took it out of the ordinary range of offending of this particular kind. He took the view that the appellant was a serious risk to the community and for the purposes of protection of the community set the minimum non-parole period of four years.
The Appeal
It is submitted for the appellant that the sentencing Judge had erred in principle in imposing a sentence of eight years imprisonment and requiring that the appellant serve a minimum non-parole period of four years imprisonment. It is submitted that the eight years starting point adopted by the Judge is manifestly excessive. It is further submitted that the sentencing Judge failed to take into account sufficiently the appellant’s personal background, particularly his addiction to alcohol, and his need for that to be treated. In addition it is submitted that, notwithstanding that the jury did not accept the self-defence argument, there was some provocation of the appellant by the complainant which could properly have been taken into account by the sentencing Judge.
The Crown accepts that at sentence Crown counsel took the view that the starting point should be between three and five years imprisonment. The Crown stressed the appellant’s violent propensities, his long term abuse of alcohol, his reported high risk of re-offending with a low level of motivation to change and a marked lack of remorse. The Crown notes the appellant’s extensive list of previous convictions including offences of violence, burglaries and wilful damage. While the Crown accepts the appellant’s need for treatment of his alcoholism, it submitted that in terms of s9(3) of the Sentencing Act 2002 that was not a factor which could be raised in mitigation.
The Crown submits that the sentencing Judge is entitled to take a different view from Crown Counsel at the sentencing as to the seriousness of the offending. However, the Crown acknowledges that the sentencing Judge has placed the seriousness of the offending at the top of the second category identified within Hereora. As a result it is accepted that it is a stern sentence compared with sentences for other serious stabbings. The Crown refers to decisions of this Court such as R v Clotworthy [1998] 15 CRNZ 651 and R v Graeme Paul Brown, CA221/02, 21 November 2002. Both those cases involved more serious offending than the present case and yet this Court took the view that the appropriate starting point was no more than five or six years imprisonment. Other recent decisions of this Court involving knifings saw no greater starting point than five years taken for offending somewhat comparable to that in the present case: R v Toan Manh Le and R v Troan Manh Le (CA208/00 and CA209/00), 14 September 2000, and R v Moevasa (CA376/01), 18 April 2002.
The Crown takes issue with the appellant’s submissions. The Crown submits that if the eight year term is sustainable then the four year non-parole period of imprisonment is not manifestly excessive. It submits that it was within the sentencing Judge’s discretion to impose it.
Discussion
We have no doubt that the starting point taken by the sentencing Judge of eight years imprisonment was manifestly excessive. It is inconsistent with all other cases to which we have been referred. The maximum the Judge would have been entitled to look at in the present case is the top of the third category or bottom of the second category identified in Hereora. Having regard to the facts and the cases already referred to, we consider that the appropriate starting point should not have been more than five years imprisonment.
We accept the submissions for the Crown that the sentencing Judge was correct in determining that there were no mitigating features which it was appropriate for him to take into account and that there were the aggravating features that he identified. The matters relied upon by the appellant by way of mitigation do not stand examination. The facts of the case did not justify any allowance for provocation given that the appellant created the problem that led to the complainant’s initial response. In any event that initial response was spent when the complainant met the appellant and both were conciliatory prior to the stabbing.
The appellant is unable to take advantage of his alcoholism as a mitigating factor. It cannot of itself affect his sentence.
So far as the minimum non-parole period is concerned, the sentencing Judge did not have before him the decision of this Court in R v Hayden Carl Brown (CA238/02), 3 July 2002. In that case the Court made clear it is not necessary for the sentencing Court to attempt to assess, at the time of sentencing, the safety of the community in a period commencing after one-third of the sentence has been served. That is a matter for the Parole Board. This appeared to be the matter that most affected the judgment of the sentencing Judge. While we intend no criticism of him when he did not have the decision in Brown before him, it does mean that this part of his sentence was wrong in principle.
Adopting what was said in Brown, the minimum period of non-parole must be intended for cases of such seriousness that the Court considers that release after one-third of the sentence has been served would represent insufficient enunciation, punishment and deterrence in all the circumstances. The focus is on the circumstances of the offence. The provision is intended to apply in circumstances where culpability is high.
When this approach is taken, we cannot accept the present offending justifies a minimum non-parole period. Although a dreadful offence from the point of view of the complainant, it is not of its type one of high culpability. If it were it would be in the first category in Hereora, or possibly in the top of the second category, and not in the third, perhaps shading into the second.
Decision
The appeal against conviction has been dismissed. The appeal against sentence and the minimum non-parole period is upheld. The sentence of eight years imprisonment is quashed and a term of five years imprisonment submitted. The minimum non-parole period of four years imprisonment is quashed.
Comment
We draw to the attention of the Prison Superintendent and the Parole Board the appellant’s need for treatment for his alcoholism and the benefits for the community if he can be successfully treated for it.
Solicitors
Crown Solicitors, Wellington
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