The Queen v Songkane Douangmanivanh
[2002] NZCA 172
•19 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA154/02 |
THE QUEEN
V
SONGKANE DOUANGMANIVANH
| Hearing: | 17 July 2002 |
| Coram: | McGrath J Robertson J Gendall J |
| Appearances: | C J Nicholls for the Appellant B J Horsley for the Crown |
| Judgment: | 19 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
On 14 March 2002, the appellant was sentenced to two years’ imprisonment in respect of one charge of injuring with intent contrary to s188(2) Crimes Act 1961. The sentencing Judge refused to grant leave to apply for home detention pursuant to s21D (iii) of the Criminal Justice Act 1985 and the appeal is in respect of that refusal alone.
The charge arose out of an incident which occurred at a party at a private home on 24 December 2000. The appellant was involved in playing a dice game and an argument arose with the victim which the appellant interpreted as an assertion that he had been cheating. There was an initial confrontation and scuffle between them but they were separated.
The complainant, believing that the matter was at an end, sat on the floor of the lounge and the appellant went into the kitchen and removed a knife from a drawer. He re-entered the lounge and, although a number of people endeavoured to stop him, he ran at the victim and attacked him with the knife. The victim suffered a large cut to his forearm and a severe cut across his face from the bottom of nose up to his left nostril and to just 1cm beneath his left eye. He needed more than 40 stitches. He was unable to work and suffered severe psychological consequences of the attack.
Although he pleaded guilty, the appellant maintained that he had acted in self-defence. He only entered a plea of guilty the day before trial was due to commence in October 2001. There was such a degree of dispute about the facts that it was necessary to hold a fact hearing which took place on 11 March 2002.
The sentencing Judge, having reviewed the evidence firmly rejected any suggestion of self-defence and held that the attack had occurred while the appellant was in a drunken and angry state. Among the aggravating factors were the introduction of the knife and the fact that it was applied to the head area.
On the other hand, he noted that the appellant had a good working record and was in a stable family situation. He recognised an apology had been made although noted that he didn’t think overall there had been a large measure of remorse.
The Judge noted that a term in prison would be hard because of cultural isolation and the appellant’s lack of facility in the English language.
The Judge correctly noted that s5 of the Criminal Justice Act applied and concluded that there were no special circumstances which could override the requirement for a term of imprisonment.
He concluded that a starting point should be 2 years and 9 months but allowed a reduction for the various factors which had been noted.
He rejected any possibility of suspension, noting that it had not been specifically argued for and concluded:
Furthermore, in view of the particular type of offending, the slashing with a knife, I do not think the need to apply for home detention should be granted, so the sentence of the Court will be 2 years’ imprisonment.
The grounds of appeal advanced before us are that the sentence was, in effect, manifestly excessive because of the refusal to grant home detention.
The relevant statutory framework is as follows:
21D Court to consider granting offender leave to apply for release to home detention in certain cases
(1) This section applies if a court sentences an offender to—
(a) A term of imprisonment of not more than 2 years; or
(b) Two or more terms of imprisonment to be served concurrently, each term of which is not more than 2 years; or
(c) Two or more terms of imprisonment that are cumulative, the aggregate term of which is not more than 2 years.
(2) The court must consider whether to grant the offender leave to apply under section 103 to a District Prisons Board for release to home detention.
(3) In considering whether to grant leave under this section, the court must consider—
(a) The nature and seriousness of the offence; and
(b) Any relevant matters in the victim impact statement in that case.
(4) The court must make an order either granting leave or declining to grant leave.
21G Right of appeal against order granting or declining leave to apply for release to home detention
For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under section 21D(4) (either granting or declining to grant leave to apply under section 103 to a District Prisons Board for release to home detention) is a sentence.
It is common ground that any appeal should be to this Court. Counsel in his oral presentation expanded on the written submission that there had been a failure to give sufficient reasons and that the Judge had stressed too much the deterrent aspect of sentence and had failed to give sufficient emphasis to other difficulties with regard to the personal circumstances of the appellant.
Counsel made particular reference to the decision of this Court in R v Husband [2000] 18 CRNZ 229 and submitted that, on the basis of that case and the earlier decision of R v Barton [2000] 2 NZLR 459, the Judge had failed to assess all the competing claims.
While it might be said that there was a degree of economy in the articulation of reasons, we are not persuaded that the Judge fell into error or that the exercise of discretion undertaken was not properly available.
In a nutshell, we are of the view that the Judge was entitled to conclude that where someone introduces a knife into a dispute, is undeterred by people who endeavour to restrain, and then attacks a vulnerable person in the face, a Court should conclude that the condemnation necessary of such behaviour meant that there should be an immediate forfeiting of a right to remain within the community.
That assessment of the facts by a Judge who heard evidence, had been integrally involved with the entire factual circumstances and has acknowledged the various difficulties and problems, could not possibly be said to be wrong. The appeal is accordingly dismissed.
SOLICITORS
Crown Law Office, Wellington
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