The Queen v Savelio
[2007] NZCA 333
•6 August 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA134/07
[2007] NZCA 333
THE QUEEN
POPE PATRICK SAVELIO
Hearing:
Court:
Counsel:
17 July 2007
Arnold , Potter and Venning JJ
G Boot for Appellant M D Downs for Crown
Judgment: 6 August 2007 at 3 pm
JUDGMENT OF THE COURT
A Leave to appeal is granted.
B The appeal against sentence is allowed to the extent that the sentence of 15 months for breach of a protection order is quashed and a sentence of six months is substituted. The appeal is otherwise dismissed.
REASONS OF THE COURT
(Given by Potter J)
R V SA VELIO CA CA134/07 [6 August 2007]
Introduction
[1] Pope Patrick Savelio appeals against an effective sentence of eight years imprisonment with a minimum period of imprisonment of four years, imposed following guilty pleas entered to a range of offences which arose from a domestic incident on 6 September 2006.
[2] The appellant seeks leave to appeal out of time which is not opposed by the Crown.
[3] The appellant submits that the eight year term of imprisonment is manifestly excessive (the 50% minimum period of imprisonment is not directly challenged). Also that the sentence of 15 months imposed for breach of a protection order exceeds the maximum penalty available (six months).
[4] The Crown submits that the sentence of eight years imprisonment is consistent with the guidelines in R v Taueki [2005] 3 NZLR 372 (CA), and was within the sentencing Judge's discretion given the totality of the offending and the aggravating factors. The Crown accepts that the sentence of 15 months for breach of a protection order is outside the Judge's jurisdiction and should be reduced.
Sentences
The sentences imposed by Judge Rollo on 18 January 2007 were:
(a)Eight years for wounding with intent to cause grievous bodily harm
with a minimum period of imprisonment of four years (maximum
penalty 14 years imprisonment).(b)Two and a half years for aggravated burglary (maximum penalty
14 years imprisonment).(c)Fifteen months for assault with intent to injure (maximum penalty
three years imprisonment).
(d)Fifteen months for male assaults female (maximum penalty two years
imprisonment).(e)Fifteen months for breach of a protection order (maximum penalty
six months imprisonment).
Background facts
[6] The detailed facts as set out in the summary of facts on the basis of which the appellant entered the guilty pleas, are important.
[7] The appellant and the female complainant had been in a de facto relationship for four years. The relationship ended in February 2006. There were two children of the relationship of whom the younger was aged one year at the time of the offending.
[8] The female complainant had obtained a protection order against the appellant which was in force at the time of the offending. She had formed a relationship with the male complainant from May 2006.
[9] On 6 September 2006 the appellant had been in the neighbourhood of the home occupied by the complainants and had been consuming alcohol. At approximately 2.30 a.m. he went to the complainants' house. He tapped on the window to wake up the female complainant who was asleep in bed with the male complainant. She got out of bed in response to the knocking and spoke to the appellant through the closed locked rear door of the house. She declined his requests and demands to be let in so he could speak to her. He demanded to know whether the male complainant was in the house, to which she did not reply.
[10] The appellant then began yelling out to the male complainant challenging him to come outside, and threatened to start smashing up the house.
[11] The appellant then kicked in the bottom glass panel of the rear door and reached in to unlock the door. He was unable to do so. He punched a hole in the top
pane of glass in the door and smashed out the glass in order to gain entry. He cut himself severely in the process.
[12] The appellant then saw the male complainant standing inside the garage and again called out to him, challenging him to come outside:
... so I can waste you.
[13] The male complainant tried to calm the appellant, telling him that his children were inside and "freaking out".
[14] The appellant, unable to gain access through the back door, went around to the front door which he found open. He entered the house and went directly to the kitchen where he armed himself with a number of steak knives from the cutlery draw. Seeing this, the female complainant directed the male complainant to leave the house via the back door. As the male complainant tried to unlock the back door he was accosted by the appellant who had a knife in each hand.
[15] The appellant began lunging at the male complainant trying to stab him in his mid-section. In trying to deflect these lunges, the male complainant suffered a number of lacerations to his arms which later required medical attention and sutures. The appellant sustained the attack on the male complainant for a number of minutes before turning his attention to the female complainant. The male complainant managed to dive through the broken top pane of the back door and escape.
[16] The female complainant was in the lounge holding her son aged one year. The appellant approached her still carrying a knife in his left hand. She pleaded with him to leave her alone but he punched her on the left side of her face with his right fist a number of times. She began losing consciousness and fell to the floor on her knees. She placed her son on the ground in front of her and went down on all fours in order to shield the boy from the appellant.
[17] The appellant then stomped the female complainant on the right side of her head and as he did so his foot also connected with the left side of the child's head. (The appellant contested that he stomped the head of the female complainant but his
counsel in submissions accepted there was no evidence to contradict the summary of facts on the basis of which he entered the guilty pleas).
[18] The appellant then stopped assaulting the female complainant and walked down the hallway, calling out to the male complainant. She seized the opportunity, and carried her younger son and led her older son out of the house to the safety of neighbours.
[19] The appellant then also left the house, picked up a spade and started smashing the windows of the Mitsubishi Chariot car belonging to the female complainant. He then turned his attention to the Isuzu four wheel drive belonging to the male complainant and smashed a number of windows in that vehicle.
[20] The appellant was located by Police and apprehended with the assistance of a Police dog.
[21] He admitted to Police that he went into the kitchen and grabbed three knives. He commented:
I was trying to kill him, that's how we do it the Samoan way. It's not over yet either, I'll get him or my family will, either way he's dead.
(A charge of attempted murder founded on the statement was subsequently withdrawn by the Crown).
The sentence
[22] Judge Rollo approached sentencing for the lead offence of wounding with intent to cause grievous bodily harm, in accordance with the principles in Taueki. He referred to the three sentencing bands detailed in the judgment of the Court of Appeal:
Band 1 - starting point three-six years. Band 2 - starting point five-ten years.
Band 3 - starting point nine-fourteen years.
He noted that the bands overlap and in Taueki at [42] the Court of Appeal said the suggested bands and starting points should be used flexibly.
Aggravating features of the offending
The Judge identified that the offending in this case included the following aggravating factors highlighted in Taueki:
(a) Use of lethal weapons (knives);
(b)Extreme violence to both victims, witnessed by two children who
were present;(c) Unlawful entry into the dwelling place at night;
(d) Vulnerability of the victims;
(e) Premeditation.Premeditation was acknowledged by the Crown to be limited. The Judge said at [25]:
I take the view, in that regard Mr Savelio, that you were very foolish to have gone around there. You should have known that the provisions of the protection order excluded you going around at 2.30 AM in the morning. Once you were first told to leave by the complainant, your legal obligations were very clear. Instead you remained and carried out this frenzied attack.
Aggravating features of the offender
The aggravating features of the offender identified by the Judge were:
(a)The offending occurred while the appellant was on bail on two charges of male assaults female in relation to the female complainant.
These occurred on 11 July 2006. On 6 November 2006 the appellant was sentenced to 14 days imprisonment and denied leave to apply for home detention.
(b)The offending was in breach of a protection order obtained by the female complainant.
Mitigating factors
The mitigating factors identified by the Judge were:
(a)Early guilty pleas. The charges were laid on 8 September 2006 and
pleas were entered on 21 November 2006.(b) The appellant's remorse.
(c) Strong family support;
(d)Previous good character, subject to the two assaults in July 2006
which the Judge noted were at the lower end of the range for such
offending as reflected by the sentence imposed.
Starting point and end sentence
[28] The Judge took an initial starting point of ten years six months. He considered the offending, viewed in its totality, to fit between the extreme top of band 2 and the lower range of band 3. He noted there were two complainants and serious violence was used against each of them. Further, that the lead offence of wounding with intent to cause grievous bodily harm together with the aggravated burglary (which was necessary for the appellant to gain access to the male complainant), would require a starting point at the top of band 2. He considered the further offences against the female complainant required an uplift to bring the starting point within the range of ten to eleven years.
[29] The Judge then increased the starting point to eleven years to take account of the aggravating features of the offender, notably that the offending occurred while the appellant was on bail and was in breach of a protection order.
[30] He allowed a reduction of three years (approximately 30 per cent) for the mitigating factors, to reach an end sentence of eight years on the lead charge of wounding with intent to cause grievous bodily harm.
Submissions for the appellant
[31] Mr Boot submitted that the sentence of eight years was manifestly excessive and way beyond the norm. He conceded that this was "a bad situation" with many aggravating features. However, he focused on the absence of premeditation, pointing out that this was a single incident against a background where the appellant had continued contact with the female complainant in relation to the children. He submitted that the appellant did not go to the house to commit a crime (noting that he did not take a weapon with him), but when he realised the situation, he acted badly and "lost it". He submitted that the sentencing Judge was influenced by the initial charge of attempted murder.
[32] The second limb of the appellant's argument focused on the injuries suffered by the complainants being minor. Mr Boot submitted that this was:
... an overwhelming factor that has been overlooked by the sentencing Judge in fixing a starting point ...
[33] He accepted that there was no evidence to support the appellant's assertion that he did not stomp on the female complainant's head, and also accepted that the injuries to the male complainant were mainly defensive, but he submitted the injuries inflicted were not serious and did not evidence "extreme violence" such as would place this offending in category 3 of Taueki. He submitted that a sentence in the range of five and a half to six years was appropriate.
Crown's submissions
[34] Mr Downs accepted that serious and permanent injury and premeditation were often factors that were present in relation to category 3 offending. However, he said, the Court of Appeal in Taueki emphasised flexibility and the necessity for an evaluative approach to be taken in sentencing which looked at the culpability of the offending and the offender in its totality.
[35] He submitted that the aggravating features of this offending - the appellant was on bail for previous assaults to the female complainant and in breach of a protection order in relation to her, the element of home invasion, the violence which followed was not impulsive and was ongoing with a sustained attack on the male complainant which could have resulted in injuries much more severe than the defensive injuries suffered, the vulnerability of the complainants and the gratuitous damaging of the complainants' vehicles - together placed the offending at the bottom of band 3. He submitted that had there been permanent injury or clear evidence of premeditation then a starting point higher in band 3 would have been justified.
[36] He accepted that the sentence of eight years imposed was a stiff one, but submitted there was a relevant element of protection of the public.
Discussion
[37] This was completely unprovoked, serious violent offending in a domestic situation where the complainants were extremely vulnerable. While permanent injury fortunately did not result to the complainants, the physical and emotional effects of the appellant's offending cannot be minimised. The female complainant and her older son continue, not surprisingly, to suffer from fear and anxiety.
[38] The Court of Appeal in Taueki at [31] emphasised that the suggested bands and starting points should be used flexibly:
... the sentencing Judge will need to consider the combination of factors applying in a particular case when assessing the appropriate sentencing band and the starting point within that band.
At [42], the Court stated that the starting point must properly reflect the culpability inherent in the offending.
[39] The Judge adopted the principled approach to this sentencing identified in Taueki. He took account of the combination of aggravating factors in determining the culpability of the offending and the appropriate starting point. It is the combination of factors and the assessment of overall culpability, rather than the presence or absence of any particular factor, which will determine the appropriate band and starting point.
[40] The aggravating features identified by the Judge, would place this offending at the very top of band 2. In combination with the fact that the offending took place while the appellant was on bail for violent offending against the female complainant and in breach of a protection order relating to her, the starting point of eleven years was within the range available to the sentencing Judge. The end sentence of eight years was stern but in our view, was not manifestly excessive.
Result
Leave to appeal is granted.
The appeal is allowed to the extent that the 15 months sentence for breach of a protection order is quashed and a sentence of six months is substituted.
The appeal is otherwise dismissed.
Solicitors:
Crown Law Office, Wellington
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