The Queen v Richard John McMillan

[2001] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND CA317/01

THE QUEEN

V

RICHARD JOHN MCMILLAN

Hearing:	30 October 2001
Coram:	Gault J Gendall J William Young J
Appearances:	D N Bunce for Appellant J A Farish for Crown
Judgment:	31 October 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

1. The appellant was convicted after pleading guilty in the District Court at Christchurch to assault with a weapon contrary to s202C Crimes Act 1961.  On 14 September 2001 he was sentenced to two years and nine months imprisonment.  He now appeals against that sentence.

2. The circumstances giving rise to the charges were that on 19 May 2001 the appellant and his victim attended a party at a Christchurch address which operated as the headquarters of a local gang known as the Backyard Boozers.  During the party a member of the gang assaulted the victim with a glass and he suffered cuts to his head from which he was bleeding freely.  The victim and his partner went to leave the premises.  They were escorted by the appellant who unlocked a door and a gate.  As the victim was following his partner out the gate he turned to the appellant and told him he intended to complain to the police.  There was a statement at depositions suggesting the victim may have lunged and spat at the appellant though there would seem to have been little reason to do so.  The appellant then pushed the metal gate catching the victim’s head between the gate and a brick post.  The appellant then picked up a long piece of wood and used it to strike him about the head with a chopping motion.  After the assault the victim went to the police where he made a complaint and obtained medical attention.

3. The sentencing Judge noted, correctly, that s5 of the Criminal Justice Act applied.  He went on to list the aggravating factors as being the manner in which the appellant used the weapon, his knowledge that the victim was already injured at the time of the attack, and his five previous convictions involving weapons.  He thought that these factors put the offending at the higher end of the range.  This led him to adopt a starting point of three and a half years imprisonment.  From that point the Judge then made an allowance of nine months for the appellant’s guilty plea resulting in a final sentence of two years nine months imprisonment.

4. In support of the appeal Mr Bunce submitted that the sentence was manifestly excessive in light of the circumstances of the offence.  While accepting that s5 of the Criminal Justice Act applied and that there is no established tariff for offending of this type, he submitted that the starting point of three and a half years adopted by the sentencing Judge was excessive.  The particular circumstances of the offending relied upon were provocation in respect of the attack and medical evidence that the victim suffered no discernible injury as a result of the appellant’s actions.

5. Ms Farish for the Crown supported the starting point of three and a half years by reference to the seriousness of the offending.  She submitted that given the serious nature of the attack on a vulnerable victim, the absence of serious injuries should not necessarily affect the starting point for such an offence.  Any provocation there might have been, she submitted, was in no way proportionate to the conduct of the already injured victim.

6. The sentencing Judge cited no authority to support his adoption of the starting point of three and a half years.  Neither did counsel refer to any previous sentencing decisions in the course of argument on the appeal.  That was not helpful.

7. Where there are few previous cases, it is appropriate to look at those dealing with offences from which some analogy might be drawn.  Section 202C is a relatively new provision presumably inserted to emphasise the aggravating feature of assaults where weapons are used.  The maximum sentence of five years is to be compared with that of one year for common assault (s196).

8. While there appear to have been few recorded decisions on sentencing under s202C, there are a number of cases where the offences charged were wounding or injuring with intent where the facts included use of weapons and which can be compared for culpability.  A brief review of those suggests that for an assault involving pushing a gate against the head of the victim and then striking him about the head with a piece of wood, yet causing no injuries discernible to a doctor, a sentence of three and a half years is well above comparable sentences.

9. In R v Reece CA74-78/95, judgment 22 May 1995, on a Solicitor-General’s appeal, the sentences on members of a motorcycle club were increased to imprisonment for nine months.  They had entered the home of the victims believed to have stolen a motorcycle.  They were carrying weapons (wooden batons and an iron bar).  The victims were struck about the head and sustained injuries.  Section 5 Criminal Justice Act applied.  The offenders pleaded guilty.

10. In R v Baldwin CA518/95, judgment 4 December 1995, a sentence of nine months imprisonment was reduced for a first offender to four months.  The appellant had approached a group that had caused a disturbance in a camping ground the night before.  He struck one of them on the head, arms and legs with a cricket bat.  He also pushed a woman so that she fell against a vehicle.

11. In the present case, even if little credence is given to the statement of a fellow gang member that the appellant was provoked by more than the statement of intention to inform the police, the offending in this case cannot be placed high on the scale of seriousness.  The potential for serious injury undoubtedly was there.  Further, the assault was considerably aggravated by the fact that the victim already was quite badly injured from the earlier assault.  Those matters must be taken into account.  But so must the fact that the most accurate measure of the degree of force used is the absence of any additional injuries beyond those sustained earlier.  This was nevertheless a violent act, seemingly spontaneous, to which s5 must be applied.

12. The appellant is not a first offender.  He has previous convictions, some involving a period of imprisonment imposed in 1998.  In spite of a resolution not to do so, on release he resumed his gang association.

13. We are persuaded that the Judge’s starting point of three and a half years was too high for this offence.  A sentence of no more than two years would have been an adequate response to a conviction after a defended trial.  The appellant pleaded guilty as soon as the charge was reduced to that he eventually faced and he is entitled to credit for that.

14. The appeal is allowed.  The sentence of imprisonment for two years nine months is quashed and there is substituted a sentence of 18 months.  The fines remittance is undisturbed.

15. The hearing of this appeal proceeded on the statement of facts recording that the appellant pleaded guilty after depositions.  On investigation, it has become apparent that the appellant pleaded guilty at the deposition hearing pursuant to s168 Summary Proceedings Act 1957.  In that case an appeal against sentence is to the High Court and this Court has no jurisdiction.  However, since the members of the Court are also High Court Judges we deliver judgment in that capacity.

Solicitors

Crown Solicitor, Christchurch.