The Queen v Panine

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 262/02

THE QUEEN

VLADIMIR PANINE

Hearing:	27 November 2002
Coram:	Glazebrook J Baragwanath J Randerson J
Appearances:	W M Johnson for Appellant F E Guy for Crown
Judgment:	11 February 2003

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

Introduction and result

The appellant was convicted by a jury in the High Court at Wellington on 25 June 2002 on counts of wounding with intent to cause grievous bodily harm and aggravated burglary. He appeals against the latter conviction and against the concurrent sentences of four years imprisonment on the charge of wounding and three years imprisonment on the charge of aggravated burglary.
At the conclusion of the appellant's oral argument we did not call on the Crown in respect of the conviction appeal because it appeared that the plain language of the statute required its dismissal. But having reserved judgment we invited further submissions in writing on certain aspects of the conviction argument. Having received and considered such submissions we are satisfied that the statutory language, read in the light of its legislative history, requires that the conviction appeal be dismissed. The appeal against sentence also fails.

The facts

The appellant had originally been charged with attempted murder as well as wounding with intent to cause grievous bodily harm and aggravated burglary as a result of his entry into the home of the complainant, who is his former wife.
The appellant is a man of 48 born in Russia who has lived in New Zealand since 1995. He has a Russian engineering qualification and excellent references including the description of him by a co-worker at a retirement home where he was a volunteer caregiver as being “gentle, caring and responsible”.
Arguments were frequent throughout the parties’ relationship and resulted in divorce. The complainant lived in fear because of the intensity of the arguments and the damage to property that would occur at numerous times. There had been only one prior episode of physical violence directed at her.
On 2 March 2001 the appellant was living apart from the complainant. He consumed alcohol at his home. He took a fishing knife and placed it in a bag. Between 8 and 9 pm he went to the complainant’s home carrying the bag with the knife. The complainant, who was waiting for her son to arrive, heard a vehicle come up the driveway and heard a light knock on the front door. Assuming it was her son, she opened the door and the appellant walked in without invitation. The appellant asked the complainant to turn off the lights and after they had been successively turned off and on he grabbed her and forced her to sit on a chair he had placed in the middle of the lounge. She asked why he was there and he said that he came to kill her. He reached towards the bag that was on the couch. Fearing for her life, she escaped from his grip and ran out the front door. He caught her as she got outside and pushed her to the ground and sat on top of her. She was screaming and he told her to “shut up” and placed his hand on and in her mouth to muffle her screaming. He told her to wait quietly until he killed her quickly and that she was only stretching it out. As she struggled with him she could feel blows to her chest but registered no pain as she struggled.
Neighbours then tried to intervene and the appellant told them to leave. He began to drag her back inside her house by her trouser leg and as he got her to the front door she was able to resist him further. The neighbours tried to help the complainant by holding her but he eventually dragged her into the address and closed the front door. He sat on her again and she realised he had the knife in his right hand. She kept trying to get away and he said that she should bear it for just a minute, that he would kill her very quickly and that he had no time because the police would soon arrive. He then lifted the knife above her and stabbed at her chest a number of times. She managed to deflect some of the blows with her hands and arms.
After the two had struggled for some time she eventually persuaded him to stop stabbing her and that they needed to talk about the matter. He agreed and they both got up. He put the knife down his sock. He then began to tell her that she was not to tell the police anything and that it was just an ordinary family argument and that she was to clean off the blood and remove the blood-stained shirt she was wearing. The police arrived a short time later. They found that the complainant had received:
·A puncture wound to her right breast, about 3 cm deep that required three stitches.
·        A large bruise around the wound about 5 cm in diameter.
·Several marks on her left breast surrounded by a large bruise about 8 cm in diameter.
·        A bruise measuring 15 cm by 5 cm on her outer left leg.
·        Cuts to her hands.
·        A bruise measuring 15 cm by 4 cm on the back of the right forearm.
·        Bruises of rounded shape to both shoulders.
·        Grazes on the legs and arms.
·        Ulcers and bruises in the mouth.

She received hospital treatment for her injuries and remained there for observation for two nights.

The initial trial took place in November 2001 before Wild J in the High Court at Wellington. The appellant was acquitted on the count of attempted murder and convicted on the other counts. He was sentenced to 3½ years imprisonment on the wounding count and 2½ years imprisonment on the aggravated burglary count, the sentences being concurrent. Following a successful appeal against conviction, a second trial commenced on 16 April 2002. Because of the unavailability of a central Crown witness, a mistrial was declared. The third trial commenced on 24 June 2002 and at its conclusion the jury convicted the appellant on both remaining counts.

The appeal against conviction

An appeal against conviction on Count 1 was abandoned. Count 2 of the indictment alleged:
That [the appellant] on or about the second day of March 2001, at Wellington, having unlawfully entered a building with intent to commit a crime therein, namely the dwelling-house [occupied by the complainant], while still in the building had with him a weapon, namely a knife.
It was the appellant’s argument that the Crown failed to establish that the appellant’s entry into the building was performed unlawfully and that the Crown therefore failed to establish an essential component of its count. The Crown’s response was that the adverb “unlawfully” was not an essential element of the count so that it could be disregarded. Mr Johnson acknowledged that he was unable to demonstrate prejudice in the conduct of the defence by removal of the word “unlawfully” from the count if it were not in fact an essential element. So the appeal on conviction turns on whether it was.
The Crimes Act provides:
240A         Aggravated burglary
(1)     Every one is guilty of aggravated burglary and is liable to imprisonment…, who —
(a)     While breaking and entering, or otherwise unlawfully entering, any building… with intent to commit a crime therein, has any weapon with him or her; or
(b)     Having broken and entered, or otherwise unlawfully entered, any building…, or having entered any building… with intent to commit a crime therein, while still in the building…—
(i)     Has any weapon with him or her; or
(ii)     Uses any thing as a weapon; or
(c)     While breaking out of any building… either after committing a crime therein or having entered with intent to commit a crime therein, has any weapon with him or her.
In his oral argument Mr Johnson submitted that, as its heading states, the section concerns "Aggravated burglary". He argued that burglary of its nature entails a breaking and at least an unlawful entry and therefore lawful entry cannot give rise to the crime of aggravated burglary.
He further submitted that section 240A, inserted by the Crimes Amendment Act (No. 2) 1986, is oddly expressed. Subsection (1)(b) on which the Crown relies reads:
…having entered any building …with intent to commit a crime therein, while still in the building…
(1) has any weapon with him…

That provision is, he argued, inconsistent with the policy adopted in subsections (a) and (c), each of which requires either a breaking or an unlawful entry; if mere entry is enough it also effectively requires the reference elsewhere in subsection (b) to unlawful entry to be treated as surplusage.

The Minute of the Court seeking further submissions invited counsel to address the following points:
(a)     Whether mere entry of a building with intent to commit a crime therein and while still in the building having or using a weapon is truly to be characterised as aggravated burglary when:
·     Subclause (a) of subs (1) requires an unlawful entering (which includes breaking and entering).
·     Subclause (b) speaks of an unlawful entering (which may include breaking and entering, or at least entry without consent).
·     Subclause (c) requires a breaking out.
(b)     Potentially relevant to this question is that burglary (s241) requires a breaking in or out and carries a 10 year sentence. Entry with intent (s242) has only a 5 year maximum. To construe s240A (carrying a 14 year maximum term) as infringed by mere entry with intent, without unlawful entry or exit, entails the potential to add 9 years for the presence of the weapon, which by s202A by itself carries only a 2 year maximum.
(c)     The possible significance of 29 of the New Zealand Bill of Rights Act 1990.
(d)     The possible significance of the legislative history.
We express our appreciation for the quality of the written responses from the appellant and from the Crown.

The submissions

The appellant

In his written submissions in response to the Court's Minute Mr Johnson for the appellant submitted that:
[1]     …the legislative intent of Section 240A(1)(b) is as characterised by the Rt Hon. Geoffrey Palmer (1986 Parliamentary Debates, Violent Offences Bill, Second Reading 4432…
“There has been very serious concern about the use by intruders of weapons in private homes. The response to that concern is the creation of a new offence of aggravated burglary. That offence is committed by anyone who is committing a burglary has with him or her any weapon or uses any weapon. That provision is to cover the case of a person who takes a weapon into a building during a burglary, or who, having unlawfully entered a building, uses anything as a weapon. It is the expectation that that change in the law will send a message to our courts that there is a very great difference between simple burglary and what is to all purposes an aggravated robbery carried out in the victim’s home…”
…
[2]     The legislative intent, (as indicated by the history as provided by The Crown) is aimed at “Burglary” as it has always been understood i.e. breaking and entering or entering without the consent of the occupier (unlawfully) with the intent to commit a crime with the additional factor of the weapon.
[3]     …the language of the section entails unnecessary duplication. Why create three scenarios of breaking and entering, unlawful entering, and mere entry, when two would be sufficient, having broken and entered or having entered with intent to commit a crime?
[4]     …the language used in Section 240A as a whole does not contemplate “mere entry” as being categorised as aggravated burglary. In this context the Crown’s Indictment in this case in two trials, used the word “unlawfully”.
[5]     …if “mere entering with intent” is to be so characterised as “aggravated burglary” then there is difficulty in differentiating degrees of culpability between those caught by the section. Is one who enters with the occupier’s permission but with the intention to commit a crime and in possession of a weapon, to be treated differently to one who enters forcibly with similar intention and weapon? What for example if entry is effected with the consent of the occupier with the intent to commit a crime against at third person visiting the address with the knowledge and connivance of the occupier? Should both theoretically be subject to 14 years imprisonment categorised as “home invasion”?
…
[6]     The penalty for entering with intent (S.242) is half the potential maximum sentence of Burglary (S.241). It is simply disproportionate and nonsensical that the addition of a weapon should create a 9 year increase to the maximum for the less serious offence, and a 4 year increase in respect of the more serious offence merely by the added factor of a weapon.
[7]     The concept of disproportionately severe treatment or punishment (Section 9 of The Bill of Rights Act) appears both objective and subjective, and [has] not often [been] considered in New Zealand.
Marshall J. (Furman v Georgia, 408 U.S. 238 (1972)…
“First, there are certain punishments that inherently involve so much physical pain and suffering that civilised people cannot tolerate them—e.g., use of the rack, the thumbscrew, or other modes of torture. Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence. Third, a penalty may be cruel and unusual because it serves no valid legislative purpose. Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it.”…
But on any view objectively [on the Crown’s construction there are] clear disproportional increases as above stated, in maximum sentences for serious and less serious offences.

The Crown

In her initial written submissions Ms Guy for the Crown submitted that:
…the provisions of subsection 1(b) are disjunctive. Accordingly it is an offence if one has unlawfully entered a building and has any weapon with him or her. It is also an offence if a person having entered any building with intent to commit a crime therein and whilst still in the building has any weapon with him or her. The offence creating provision does not require that the person both unlawfully enter the building and having entered any building with intent to commit a crime therein, has a weapon with him or her. Either of those factual scenarios will suffice. This approach was adopted by Judge T M Abbott in R v Kahui [2000] DCR 837 at page 844. His Honour concluded that the wording and punctuation of s 240A(1)(b) contemplate three alternative scenarios.
In her response to the Court's Minute Ms Guy advanced submissions that:
[1]     It was clearly the intention of Parliament in this subsection to categorise as aggravated burglary a situation where a person having lawfully entered any building but with intent to commit a crime therein whilst still in the building has or uses a weapon. There would otherwise have been no point in including or retaining the phrase “having entered any building or ship with intent to commit a crime therein” in section 240A(1)(b). The scheme of subsection (b) envisages three different forms of culpability or routes to culpability pursuant to this subsection. It is only the third route of a lawful entry which requires the additional element of “an intent to commit a crime therein”.
[2]     The title of the section “aggravated burglary” may not be truly apposite to this form of culpability as there is not a burglary because there is no breaking in or out of the building. This form of culpability could perhaps be better described as aggravated entering with intent. There is no other offence which covers the situation of an entry with intent aggravated by the use or carriage of a weapon and it is submitted that section 240A is the section which covers that type of offending. It would have been overly cumbersome to title the section “Aggravated Burglary and Entering with Intent”.
[3]     The title of the section alone, whether or not technically accurate in covering the elements of the offending identified, cannot alter the correct construction of this subsection. Section 235 which is titled “Aggravated robbery” presents similar issues to those identified by the Court. Subsection 235(1)(b) defines one form of aggravated robbery as:
“(b)    Being together with any other person or persons, robs, or assaults with intent to rob, any person.”
Thus where a person is together with others and assaults someone with intent to rob, that person has committed the offence of “aggravated robbery”. When analysed closely it is notable that no robbery has been committed and yet this offence is titled and falls within what is described as aggravated robbery.
[4]     The same issue also arises in relation to section 191 where a person can be liable for the offence of “Aggravated wounding or injury” where one stupefies to facilitate the commission of a crime despite the fact that stupefaction does not amount to wounding or injuring. If looking at its composite parts it could be described as “aggravated disabling” and yet liability arises pursuant to section 191.
…
[5]     The maximum penalty available and the comparisons between that and penalties for other property offending does not provide assistance as to the correct interpretation and construction of the statute and what is required for culpability.
[6]     The same concerns expressed in paragraph (b) in the Minute arise in relation to liability for aggravated robbery by way of subsection 235(1)(b) where a person is together with others and assaults someone with intent to rob. The maximum penalty for aggravated robbery is 14 years imprisonment. The maximum penalty for robbery (section 234) is 10 years while an offence of assault with intent to rob (section 237) only carries a maximum penalty of seven years. Thus the aspect of being together with others increases liability for penalty for robbery by four years and for assaults with intent to rob by seven years. Accordingly section 240A is not alone in creating offences, the composite forms of which when dissected might have differing maximum penalties. It is submitted that there is nothing improper in that situation.
[7]     It is open to and proper for the sentencing Judge to take into account the form of culpability or factual aspects when assessing the appropriate sentence to be imposed in relation to any particular case.
…
As to the possible significance of s9 of the New Zealand Bill of Rights Act 1990 Ms Guy submitted:
[8]     Section 9 is unlikely to ever be a relevant interpretation aid when the issue is (as here) whether a maximum penalty is disproportionate. That is because the relevant test is whether it is possible to conceive of a set of circumstances falling within the offence that justify the maximum. If so, the maximum is not disproportionate – the issue simply becomes whether, within the spectrum of penalties available, a proportionate sentence has been imposed for the particular offending.
[9]     Section 9 is much more likely to be a relevant interpretation aid where the issue is a minimum sentence (not the case here). The reason why it is more likely to be relevant is because the test is in effect the opposite – do all circumstances that might fall within the section represent a set of circumstances for which the minimum penalty is a proportionate response? Almost all the international s9 jurisprudence occurs in the context of mandatory minimum penalties.
[10]   It is also not relevant that, whilst one can imagine a set of circumstances justifying the maximum, most offending coming within the offence will not be anywhere near that severity. This is in fact true of almost all offences and offending; to take just one example – sexual violation by digital penetration carries a maximum term of 20 years imprisonment. The range for a single offence is 2 – 5 years. The top of the range is accordingly only 25% of the maximum but that does not make, nor has it been suggested to make, the maximum penalty disproportionate.
[11]   Section 9 has potential relevance to an individual sentencing exercise since it can always be argued that an individual sentence is disproportionately severe. However, sentences are never analysed in these terms because sentencing has developed its own concepts and glossary. Nevertheless, at the end of the day the purpose and effect of these settled sentencing principles are to reflect s9 (see, in particular s8 Sentencing Act 2002).
[12]   Finally it is noted that the concepts within s9 are generally interpreted to require extreme examples before a breach is found. The usual test is so excessive as to outrage standards of decency. This again emphasises why it is unlikely that s9 would have relevance to interpretation where the focus is maximum penalties.
[13]   No proportionality issue exists with the present sections. It is plainly possible to envisage worst-case scenarios that are proportionate to the maximum. If a particular form of unlawfulness as to entry or presence in the building is at the lower end of culpability then that is reflected in the individual penalty rather than by altering the definition.

Ms Guy reviewed the history of the legislation, which we record at paras [29]‑[37]. She submitted that the original form of the bill and its amendment:
support the submissions made as to the correct construction of the section. If it was the intention to remove liability for the situation envisaged by subsection (b) of the original draft then the reference to “being in any building or ship with intent to commit a crime therein” would have simply been deleted when the clause covering “breaking out” was inserted. It was not.

Discussion

Mr Johnson’s submission that lawful entry does not give rise to any offence is correct in relation to sub-section (a), an essential element of which is some form of unlawful entering, which may include breaking and entering. The second element is intent at the time of the entry to commit a crime inside the building. Having a weapon is the third element.
But sub-section (b) is quite differently expressed. It deals with a later stage than the cases falling with (a) and on a literal reading creates two forms of offence (the elements are numbered in parentheses):
(1) [1] unlawful entry of a building (whether or not following a breaking), coupled with [2] intent to commit a crime therein and [3] while still in the building having a weapon or using any thing as a weapon;
(2) [1] …having entered any building (even if not unlawfully)… [2] with intent to commit a crime therein… [3] while still in the building having a weapon or using any thing as a weapon.
The element of intent to commit a crime, or its actual commission, is common to all aspects of s240A, as in the case of both limbs of simple burglary (breaking in and breaking out) under s241.
Again, like both limbs of simple burglary, both subsection (c) of s240A and the first part of subsection (a) require a breaking. The first part of subsection (b) imposes the lesser requirement that the entry be unlawful. So the second part of subsection (b) is alone in not requiring the act of passing between the exterior and the interior of the building, or vice versa, to be at least unlawful.
Given the untidiness of such construction the question arises whether in subsection (b) it is not the reference to breaking but the reference to simple entering that should be regarded as surplusage. Such construction would do more violence to the language of the measure than the alternative of treating it as containing two offences, one including the element of unlawful entry and the other not. But a construction that abandons the element of unlawful passage to or from the building, seen as essential throughout both simple burglary and the other forms of aggravated burglary, gives cause for reflection.
Simple burglary, requiring both intention to commit a crimes and a breaking either in or out carries a 10 year maximum sentence. Entry with intent (s242) by contrast has only a 5 year maximum. So to construe s240A as incorporating a mere entry with intent entails adding 9 years for the presence of the weapon, which by s202A carries only 2 years. That fact led us to invite submissions whether s9 of the New Zealand Bill of Rights is engaged:
Everyone has the right not to be subjected to…disproportionately severe treatment or punishment.
We are however satisfied that the answer is to be found in the legislative history. In the following passages underlining is added.
Section 240A was inserted by the Crimes Amendment Act (No 2) 1986. That Act started life as the Violent Offences Bill of 1986.
Section 7 of the Violent Offices Bill originally provided:
7. Aggravated burglary – The principal Act is hereby amended by inserting, before section 241, the following section:
‘240A. Every one is guilty of aggravated burglary and is liable to imprisonment for a term not exceeding 14 years who, -
‘(a) While breaking and entering, or otherwise unlawfully entering, any building or ship with intent to commit a crime therein, has any weapon with him or her; or
‘(b) Being in any building or ship with intent to commit a crime therein, -
‘(i) Has any weapon with him or her, or
‘(ii) Uses any thing as a weapon; or
‘(c) Having broken and entered, or otherwise unlawfully entered, any building or ship, while still in the building or ship –
‘(i) Has any weapon with him or her; or
‘(ii) Uses any thing as a weapon.

The explanatory note to the bill provided:

“Clause 7 creates a similar offence of aggravated burglary. In essence, the offence involves burglary while possessing or using an offensive weapon. However, the form of this new provision is unnecessarily somewhat more complicated than that proposed in clause 4. Despite popular belief to the contrary, the crime of burglary is complete when entry with intent has been effected. What happens after that (such as theft) is irrelevant. The new offence is intended to cover the period while the burglary remains in the building or ship, as well as the actual entry. It is also intended to cover the case where the burglar did not have a weapon while entering, but subsequently seized one (for example, a kitchen knife belonging to the householder). The maximum penalty is life imprisonment for a term of 14 years.”

When introducing the bill on 29 May 1986 the Rt Hon Geoffrey Palmer (Minister of Justice) stated “it is a short but significant Bill. It deals with violent offences committed by persons using weapons”. He went on to comment at page 1749 of Hansard:
“The new offence of aggravated burglary is designed to deal with an apparent increase in the incidence of violent burglaries. As with the clauses that deal specifically with firearms, there is an unambiguous message to those whose violent criminal offending is carried out in the victim’s home. Under that clause any persons who, with a weapon in their possession, break into a home, or who, having broken into a home, use a weapon, face 14 years’ imprisonment. On that point the law is strictly written – anyone who breaks and enters and is in possession of a weapon, whether or not he or she intends to use it at the time such a criminal endeavour is commenced faces the new penalty.”
The wording of section 240A(b) was changed at the Select Committee stage. The original subsection (b) worded as follows:
“(b) Being in any building or ship with intent to commit a crime therein, -
(i) Has any weapon with him or her; or
(ii) Uses any thing as a weapon; or

was struck out. The original clause (c) (relettered (b) when enacted) was amended to include the operative words of the original subsection (b):

“(c) Having broken and entered, or otherwise unlawfully entered, any building or shop, or having entered any building or ship with intent to commit a crime therein, while still in the building or ship –
(i) Has any weapon with him or her; or
(ii) Uses any thing as a weapon.”

and a new subsection (d) was included worded as follows:

“(d) While breaking out of any building or ship either after committing a crime therein or having entered with intent to commit a crime therein, has any weapon with him or her.”

Thus what were subsections (b) and (c) were in effect joined together and a new subsection was included to cover the situation of the person breaking out of the building whilst in possession of a weapon. There is nothing in the pro forma report of the Chairman dated 11 September 1986 to explain why these changes were made. In the report back to Parliament of the Justice and Law Reform Committee the Chairman reported that the amendments to the bill were “of a technical nature” (page 4197 Hansard). The Chairman went on to state:
“The provisions of the Bill deal with terms introduced in the Crimes Act referred to as “aggravated burglary”. The Bill deals with the instance of a person coming to a house and carrying a weapon, or being in a house, building or ship and using an instrument as a weapon whilst illegally there. It also deals with occasions when a person is breaking out and has a weapon with him or her. Those offences carry a liability of 14 years’ imprisonment.
The penalty has been dramatically upgraded from what was previously available, in particular for a simple burglary. It is intended to demonstrate to the courts and the people of New Zealand the concern the House has about those kinds of offences.”
In introducing the second reading of the Bill the Rt Hon Geoffrey Palmer stated at page 4433:
“However, points were made in submissions about the new offence of aggravated burglary, which disclosed a drafting fault. That has now been remedied in the Bill as reported back.”
The Crown submitted that the original form of the Bill and its amendment support its submissions as to the correct construction of the section. We accept that submission. It is true that in his introduction speech (para [31]), the Minister of Justice described the section in the manner contended for by the appellant. But in the report back to Parliament of the Justice and Law Reform Committee (para [33]), the Chairman’s account is consistent with the Crown’s submissions as to subsection (b)(ii) - that the crimes is complete upon entry with intent coupled with use of a weapon in a building and does not require a breaking or unlawful entry.
While statements reported in Hansard may sometimes be of help, they are almost inevitably of less significance on interpretation than the precise language used by Parliamentary counsel. The bill's use of "Being in a building" was altered to "Entering", which may have been considered more appropriate as requiring as part of the actus reus of a crime carrying a 14 year sentence a specific act rather than a mere status. But otherwise clause (b) of the bill as introduced suggested precisely what the Crown submits the operative subsection (b) means: entry with intent, plus having or using a weapon, completes the offence.
The legislative history is overall supportive of the Crown argument.
While s5 of the Interpretation Act 1999 permits consideration of the heading "Aggravated burglary" and the fact that there is no simple burglary included within the offence asserted by the Crown, that section makes clear that recourse to such indications is permissive; it is not mandatory. We are satisfied that the argument based on the heading is overridden by the language and the history of the measure.
We turn finally to the question of s9 of the New Zealand Bill of Rights Act 1990 and the appellant's submission that no offence under subsection (b) could possibly justify a 14 year sentence and accordingly Parliament is presumed not to have intended to impose a penalty that must be disproportionate.
There would be force in the argument if one treated as datum the comparable penalties for entry with intent and for possession of a weapon (para [27] above). But we do not accept that as decisive. It cannot be said that the combination of an offender's entering a building or ship with intent to commit a crime and having a weapon with him or her could not reasonably justify a term of up to 14 years. Potential terrorist cases provide an obvious example. We find it unnecessary to embark on a wider discussion of the proportionality argument.
It follows that the appeal against conviction must fail.

The appeal against sentence

The appellant was convicted under s188(1) of wounding with intent to cause grievous bodily harm as well as of the count of aggravated burglary. The maximum sentence on the wounding count was 14 years.
In her victim impact statement she recorded the fact of the arguments giving rise to divorce but said these were never physically violent except on the one occasion when the appellant had tried to strangle her on the day when they both arrived in New Zealand and secured their divorce.
This was only the second time in the 24 years the two had known each other that he had been physically violent towards her. She did not know why he tried to kill her but thought he blamed her for what had happened since arriving in New Zealand, which had been her idea. He is the member of the family who had least adapted to the New Zealand way of life. She found the wound to her right breast very painful and initially any movement caused her pain. She had difficulties in swallowing for a time. The attack has left her very nervous and the complainant is apprehensive that he will come back. She thinks constantly of what to do when he gets released. She is afraid to be at home alone and lies awake listening to every noise. The knife used in the attack has not been found and the complainant is worried that he has hidden it somewhere in the house and will return to it.
A psychiatric report established that significant psychological factors contributed to his offending. Dr Crawshaw, consultant forensic psychiatrist, considered the evidence of his condition as being suggestive of the development of a psychotic process. He displayed at examination a pattern of disorganised thinking consistent with such process and a history suggesting the presence of some dysthymia which pre-existed the offending. The report describes sudden and abrupt change in his beliefs about his former wife and alleged lies to him throughout their life together.
Dr Crawshaw considered that such sudden and abrupt change and the manner in which he incorporated seemingly innocent events into his explanation suggested that the beliefs might well be delusional. The fact that they appear to coincide with an increasing disorganisation in his thinking also supported the conclusion that they were delusional. Such condition was described as consistent with formal thought disorder seen in a psychotic process such as schizophrenia. While the appellant was not legally insane the disorganisation in his thinking, emotional turmoil and possible delusional beliefs helped explain his actions in pursuing his wife and somewhat bizarre aspects of his conduct.
On 12 July 2002 Ronald Young J sentenced the appellant to 4 years imprisonment on the wounding charge and three years imprisonment on the aggravated burglary charge, the sentences to be served concurrently.
In R v Hereora [1986] 2 NZLR 170 at 170 it was stated:
In England it is said, as to cases of wounding or causing grievous bodily harm with intent, that commonly an impulsive act of violence involving the use of a weapon or intent to inflict serious injury will attract a sentence within the bracket of three to five years; and that from five to eight years is reserved for cases exhibiting a combination of aggravating features.
In R v Clotworthy 15 CRNZ 644, 651, it was stated:
Cases of wounding, or causing grievous bodily harm with intent involving impulsive acts of violence with weapons such as knives, conventionally attract sentences within the bracket of 3-5 years’ imprisonment. Five to eight years’ imprisonment is reserved for cases of this kind exhibiting substantial aggravating features. Up to 12 years imprisonment can be imposed when there are present unusually grave aggravating features. Within which category an individual case falls, and where within the band applicable to that category, are matters of judgment depending on all the relevant circumstances of the case. While categories and bands are useful guides in the sentencing process, the question of what sentence is appropriate to the individual case is ultimately a matter of judgment on the basis of all the relevant factors. Care must be taken not to let categorisation result in too rigid or mathematical an approach.
The Crown submitted that aggravating features in the case included:
·A premeditated attack demonstrated by taking a knife to the complainant’s home and telling the complainant on his arrival that he intended to kill her.
·Pursuing her outside the home when she attempted to escape and dragging her back inside and stabbing her with the knife, despite the neighbours trying to intervene to protect her when she was outside the address.
· The element of home invasion.
The Crown submitted that the five year starting point selected by Ronald Young J was reduced to four years by reason of the appellant’s psychiatric condition, very limited English which would make a sentence of imprisonment especially hard for him by reason of isolation in terms of culture and language and, thirdly, his good record to date.
Mr Johnson submitted that Ronald Young J erred in principle in failing to take into account the fact that Wild J had imposed a lesser sentence of 3½ years imprisonment; that we should therefore exercise discretion to re-sentence; and that we should fix the term at 3½ years.
In R v Tuia (CA 312/02, 27 November 2002), this Court recognised the significance of mental illness as a material mitigating factor tending to reduce moral guilt. That element is certainly present in this case. But it cannot be said that Ronald Young J erred in principle when fixing either his five year starting point or the allowance for mitigating factors at one year.
We are satisfied that the previous sentence imposed by Wild J is not relevant to the sentencing by Ronald Young J which must be considered on its own merits. The fact that there was a Crown application for leave to appeal the sentence of Wild J as inadequate adds further weight to the Crown’s submission that no legitimate expectation could arise from the previous sentencing.

Decision

The appeals against both conviction and sentence are dismissed.

Solicitors

Crown Law Office, Wellington

[2003] NZCA 5

11 February 2003