The Queen v Stewart

[2006] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA21/06

THE QUEEN

v

DAVID ANDREW STEWART

Hearing:28 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:W N Dollimore for Appellant

M T Davies for Crown

Judgment:31 August 2006 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS OF THE COURT

(Given by Williams J)

Issue

[1]       The appellant, Mr Stewart, was charged in the Hamilton District Court with causing a Mr Hutton grievous bodily harm with intent to cause him such harm, and having an offensive weapon with him in a public place.

[2]       At the commencement of trial, he pleaded guilty to the offensive weapon charge. 

[3]       He went to trial on the grievous bodily harm charge but was convicted by the jury.

[4]       On 19 December 2005 he was sentenced to ten years’ imprisonment on the grievous bodily harm charge with a minimum period of five and a half years and a concurrent sentence of eleven months on the offensive weapon charge.

[5]       He now appeals to this Court on the grounds that both the sentence and the minimum period on the grievous bodily harm charge were manifestly excessive.

Facts

[6]       Although we were not supplied with the notes of evidence, a sufficiently detailed recital of the facts appears in the sentencing notes of the trial Judge, Judge Burnett, the pre-sentence report and the submissions of Mr Dollimore, counsel for Mr Stewart. 

[7]       They show that on 12 February 2005 Mr Stewart drank a considerable amount of alcohol on his own, went to a neighbouring friend’s house where more alcohol was drunk and then he, his friend and Mr Hutton went to a local tavern where more alcohol was consumed.

[8]       During the evening at the hotel, the friend left briefly and returned to find Mr Stewart kneeling over Mr Hutton, who was then lying on the ground, punching him in the head.  The friend pushed the appellant off Mr Hutton and ran for help. 

[9]       As he and two others were returning very shortly afterwards, they heard thumps which they came to believe resulted from Mr Stewart kicking Mr Hutton because as they approached they saw him standing over the recumbent figure on the ground, kicking him forcibly in the head and face “very hard”.  One of the witnesses, according to the Judge, thought the kicks were delivered with force by Mr Stewart who was, “getting them in before he was forcibly restrained”.

[10]     The appellant later suggested, first, that the victim had stolen his wallet – until his wallet was found in his pocket - then that there was some disagreement about prescription pills.  When interviewed the following day he claimed to have little or no recollection of the events of the evening from the time he left home.

[11]     The extendable metal baton in Mr Stewart’s clothing was removed by security guards after the incident.  It was not used in the assault.

[12]     The effect on the victim has been grave indeed.  He is left in a permanent vegetative state.  There was a suggestion in one of the victim impact statements that he might have died had it not been for his youth and the surgical skill he received.

[13]     Victim impact statements from his mother and sister were read to the sentencing Judge and, without objection from Mr Dollimore, we were handed a further statement from Mr Hutton’s brother. 

[14]     They make sobering reading.  Ten months after the assault, Mr Hutton remained in a coma with no sign of recognition of his family, incontinent, fed through a tube in his stomach and with his limbs atrophying through disuse.  The family say they have lost a son and brother to what they term a “fate worse than death”.

Sentencing remarks

[15]     The Judge recounted the facts and relevant sentencing principles.  She regarded as aggravating features the serious violence, the effect on a vulnerable victim arising through his being punched and kicked in the head and the two separate attacks.  The only factors she regarded as mitigating were Mr Stewart’s lack of previous convictions for violence and the guilty plea on the offensive weapon charge.

[16]     After reminding herself of this Court’s decision in R v Taueki [2005] 3 NZLR 372, counsel’s submissions and the pre-sentence report which, unrealistically, seriously discussed a term of imprisonment of not more than two years, the Judge turned to apply Taueki.  She chose a starting point of eleven years’ imprisonment, subtracted one year for his previous good character and expressions of remorse to reach the ten years she imposed.  She regarded the possibility of his being paroled at one-third of the sentence as being insufficient denunciation and punishment, and directed there be a minimum period of imprisonment of five-and-a-half years before parole eligibility.

[17]     As mentioned, she imposed a concurrent sentence of eleven months for the offensive weapon charge.

Submissions

[18]     For the appellant, Mr Dollimore stressed the lack of use of a weapon and what he suggested was a lack of premeditation.  He submitted the offence was impulsive.  He pointed to the appellant’s lack of previous convictions for violence and the submissions made on his behalf at sentencing from his employer.  He pointed to the remorse expressed by the appellant to the Probation Officer and his statement that he had been abstinent from alcohol for ten months by the time the report was prepared.  Mr Dollimore submitted the Judge’s sentencing process over-emphasised the victim’s injuries.

[19]     For the Crown, Mr Davies submitted the Judge, as the trial Judge, was entitled to conclude this was an episode of unprovoked, gratuitous violence with at least two attacks on a defenceless and unconscious victim who was punched and kicked in the head and sustained injuries which were near to life-threatening.  He relied on the observation of this Court in Taueki in dealing with serious injury: at [31]. He also made the point that it mattered little whether Mr Stewart’s offending was at the top of band 2 in that case or towards the bottom of band 3 given the overlap between the two and this Court’s emphasis on sentencers’ discretion. That was particularly the case, he submitted, because Judge Burnett’s discount could be regarded as generous for what were really absence of aggravating features rather than being true mitigating features.

Discussion

[20]     This was an extremely serious assault.  It was mindless, unprovoked, repeated and vicious.  It involved injuries of the gravest kind to the victim’s head, one of the most vulnerable parts of the body.  Not only did it involve repeated punching during the two attacks but also involved numerous “very hard” kicks with the appellant’s boots. 

[21]     As the references to the victim impact statements show, it has had the very gravest results for Mr Hutton.  The appellant could consider himself fortunate not to be facing a charge of murder with the probability of a seventeen year minimum period of imprisonment.

[22]     While it is true the appellant had with him, but did not use, the baton during the assaults, and while it is true he has few, if any, relevant previous convictions, these are, as Mr Davies submitted, an absence of aggravating features rather than features justifying any substantial reduction from the starting point.

[23]     Mr Dollimore stressed the appellant’s remorse for what he had done but in our view the Judge was entitled to be sceptical on that score, particularly given that the victim impact statements remark that there has been no approach by the appellant to Mr Hutton’s family to express remorse.

[24]     And while the appellant is to be commended from abstaining from liquor for about ten months before trial, the Probation Service’s assessment of him as having only a low risk of re-offending was expressly conditional on that abstinence continuing, something which the pre-sentence report made clear could not be guaranteed.

[25]     Having sat through the trial, Judge Burnett was in the best position to assess the appellant’s actions and his criminality and in our view there can be no principled objection in terms of Taueki to the starting point she chose, nor could it be said the sentence finally selected was outside the justifiable range.

[26]     Further, as Mr Dollimore was constrained to accept during argument, a minimum period of imprisonment of 55% of the term imposed could not be said to be manifestly excessive in the circumstances of this case.

Result

[27]     In the result, for all those reasons, there is no basis for us to interfere either with the sentence imposed on the appellant or the minimum period of imprisonment.  The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington