The Queen v Peter Tuki Barton
[2002] NZCA 105
•20 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 22/02 |
THE QUEEN
V
PETER TUKI BARTON
| Coram: | Keith J |
| Blanchard J | |
| Counsel: | D J Neutze for Appellant |
| A Markham for Crown | |
| Judgment (on the papers): | 20 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
Offences and sentence
The appellant was convicted by a jury of two counts of aggravated burglary and one of aggravated robbery, one of wounding with intent, one of injuring with intent, one of demanding with menaces and one of threatening to kill. He was sentenced to a total effective term of nine and a half years imprisonment.
Relevant facts
The offending occurred during two incidents on 5 and 11 February 2001. On the first occasion the appellant, after arming himself with a claw hammer, travelled to an address in Papatoetoe seeking to locate Mr Nazim Ali, his former employer. He was accompanied by his brother, Jonathon Barton, who was armed with a cricket bat. The appellant demanded money from Mr Ali and struck him several times on the arms and hands with the hammer. His brother struck the complainant twice with the bat. The victim was then forced into a car to obtain money from a cash machine. He drove instead to the Otahuhu Police Station and managed to escape. The offenders made off in his car.
Mr Ali sustained serious injuries as a consequence of this attack, including fractures to his nose and ribs. He continued to suffer headaches and difficulties with breathing, and as a result of ongoing pain was unable to return to full-time employment. He became fearful of further violence and moved away from his family to avoid putting them at risk.
Six days later, the appellant, his brother and another man went to an address owned by a Mr Hidayt Ali, a business associate of Nazim Ali. He was at home with his wife and two grandchildren aged 7 and 4. Again, the offenders were armed, the appellant held a tomahawk and had a chain wrapped around his fist. One of the other men carried nunchukkas. The offenders burst open the front door and demanded money and the whereabouts of Mr Nazim Ali. This victim was then subjected to a serious assault, including a punch from the appellant which resulted in a broken eye socket and laceration. His wife was grabbed around the neck and dragged into the bedroom. The offenders stole items from the property totalling $4,290 in value, took the victim’s bankcard and demanded his PIN, threatening to kill him if he gave a false number.
As a result of this attack, Mr Hidayat Ali was hospitalised for two days and at the time of trial was awaiting an operation to remedy a fractured facial bone. He suffered ongoing difficulties sleeping, blurred vision and headaches. He and his family were severely traumatised by the incident, and moved addresses twice in fear of further attacks. Their grandchildren no longer live with them, as they are fearful of a recurrence of violence. The attack was all the more shocking because the appellant was considered by Mr Ali to have been a friend, and had previously been a guest at his house.
The motivation for the attacks is unclear. The Judge in sentencing the appellant, noted that he had been employed by Mr Nazim Ali in connection with his plastering business, and that there had been some discussion at trial about Mr Ali owing the appellant wages. The Judge was unsure that this was so, and concluded that the background to the incident had not been fully explained at trial. What was clear was that these were serious, vicious assaults.
The Judge considered that the general principles in R v Mako [2000] 2 NZLR 170 were of relevance but that the circumstances of the offending were of greater similarity to those in R v Kretzchmann & Carroll CA 113/00, judgment 1 June 2000, where, offenders, in the course of what appeared to be “debt collection”, assaulted and stabbed the victim. A starting point of eight years was set in that case. The Judge held that the offending in the present case warranted a starting point of seven and a half years, and that the aggravating and mitigating factors cancelled each other out. He considered that a home invasion element was relevant to both incidents. In order to recognise that factor and the totality of the offending, he increased the effective sentence to nine and a half years imprisonment.
The appellant’s brother was sentenced separately following pleas of guilty. He was given an effective sentence of six years imprisonment. This reflected substantial reductions principally because of the pleas of guilty, the fact that he was not the leader in the incident, his deep remorse and absence of significant offending in the previous two decades.
Grounds of appeal
Counsel for the appellant submitted that the sentence imposed was manifestly excessive in that:
[a] In the context of the guidelines in R v Mako, the mitigating factors were given too little weight;
[b] There is unjustifiable disparity between his sentence and that of his co-offender;
[c] The sentence is out of line with comparable cases.
Counsel contemplated a reduction in sentence to a range of between eight to eight and a half years.
Reasons
The Judge recognised the main mitigating factors in this case as the uncharacteristic nature of the offending, that the appellant’s only previous conviction for violence was 14 years earlier and that the risk of re-offending was not regarded as high. Counsel for the appellant submitted there were further mitigating factors in that the appellant is an unsophisticated man born into a difficult environment and that imprisonment will be a serious set-back to his efforts to “set his life in order”. The aggravating factors in this case are significant. There were two separate incidents, the offending was premeditated, with the appellant being the instigator of the attacks, the offenders bore weapons and property was taken. The victims were threatened and had serious injury and trauma inflicted on them. The appellant has demonstrated no remorse for his actions.
Though regrettable, it is far from unusual for persons appearing for sentencing in relation to offences such as these to have experienced significant difficulties during their lives and the more serious the particular offence is the less the weight which can usually be given to such circumstances. In this case, it was entirely open to the Judge to consider that the aggravating and mitigating factors negated each other. Despite the careful submissions of counsel, we have not been persuaded that the mitigating factors warrant the reduction contended for. The first ground of appeal fails.
Counsel for the appellant submits that there is unjustifiable disparity between the appellant’s sentence of nine and a half years imprisonment, and the sentence of six years imprisonment imposed on his co-offender in the two attacks. Any comparison between the sentence imposed on the appellant and that imposed on his co-offender must take into account all significant and relevant features. The co-offender pleaded guilty at the earliest opportunity and demonstrated considerable remorse. He was not the instigator of the offending. These factors were not present in the appellant’s case. We are satisfied that the different sentences distinguish appropriately between the offending and do not evidence a disparity which can be viewed as unjust. The second ground of appeal accordingly fails.
The authorities cited on behalf of the appellant do not support the ground of manifest excess. In R v Kretzschmann a starting point of eight years imprisonment was set, before consideration of the home invasion element of the offending, for an aggravated robbery by two offenders during which the victim was threatened with a sawn-off rifle and stabbed in the neck. The case was a Solicitor-General appeal, and the Court noted that the final sentences of ten years and eight and a half years could have been higher. In the circumstances of the present case, where there were two incidents of serious assault against different victims, it was open to the sentencing Judge to set a starting point of seven and a half years before consideration of the home invasion. It is accepted that in the case of R v La’ulu CA 560/99, judgment 1 March 2000, the offending was of a more serious nature than that in the present case. However again the case was an appeal by the Solicitor-General, and this Court indicated that an appropriate sentence, absent the guilty plea, would have been at least 13 to 14 years. The sentence in this case cannot be considered to be out of line with these authorities and is in accordance with the guidelines in R v Mako. This ground of appeal also fails.
The sentence in this case appropriately reflects the circumstances of the offending which involved two separate offences of home invasion and caused serious violence and injury to the victims. The sentence cannot be considered to be manifestly excessive.
The appeal is dismissed.
Solicitors
Brookfields, Auckland for Appellant
Crown Law Office, Wellington
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