The Queen v Wade

[2007] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/06
[2007] NZCA 85

THE QUEEN

v

DWAYNE WADE

Hearing:8 March 2007

Court:Chambers, Gendall and Heath JJ

Counsel:S Tait and I Jayanandran for Appellant

S B Edwards for Crown

Judgment:20 March 2007     at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Gendall J)

[1]       This is an appeal against an effective sentence of five years and three months imprisonment imposed upon the appellant in the District Court at Manukau on 22 September 2006 on a variety of charges.  They comprised:

·Threatening to cause grievous bodily harm (as a representative charge) four years imprisonment; 

·Assault with a weapon (as a representative charge) four years imprisonment; 

·Assault with intent to injure (as a representative charge) two and a half years imprisonment;

·Reckless driving – one month’s imprisonment and 12 months disqualification;

·Failing to stop in breach of the Land Transport Act 1998 – convicted and discharged.

[2]       Those terms were concurrent but the following two terms of imprisonment were cumulative, namely:

·Burglary (four offences) 12 months imprisonment;

·Theft (six offences) three months imprisonment.

Factual background

[3]       Over a period between 1 September 2005 and 10 November 2005 the appellant whilst consuming substantial quantities of methamphetamine harassed, threatened and assaulted a former partner on multiple occasions.  He also committed the crimes of theft of petrol, items from a hotel room in Mangere, and items of stainless steel, unlawfully taking a motor vehicle, other thefts and burglaries, and reckless driving when he was pursued at high speed by the police who were seeking to apprehend him.  As a consequence multiple charges were brought but after some negotiations they were refined down to the representative and other charges referred to in [1] and [2].

[4]       The sentencing Judge had before him two summaries of facts which contained some discrepancies but which, in the end, sufficiently described the raft of offending committed by the appellant.  One summary, however, referred to an event on 23 September 2005 at the Mangere sewerage ponds where it incorrectly said that the appellant hit the complainant in the eye with a rock with which he was threatening her.  The other summary correctly described the act as simply threatening the complainant with the rock, then punching her with his fist to her eye. In relation to events of 1 November 2005 which involved a prolonged four hour beating of the complainant to the face, arms, legs and body one summary referred to the appellant smashing a stereo speaker over the complainant’s head.  That reference was agreed to be incorrect. 

Sentencing remarks

[5]       In imposing sentence Judge Wade referred to the fact that the appellant was sentenced on 17 offences, many committed whilst on bail, and represented what he described as “a one man crime wave”.  He summarised some of the criminal events although incorrectly referred to the allegation that the appellant had hit the complainant in the eye with a rock on 23 September 2005 and that a stereo speaker was smashed over her head during the prolonged attack upon her on 1 November 2005.  The Judge referred to the appalling criminal record of the appellant and that he was addicted to methamphetamine stating:

You are not only someone who inflicts violence regularly but you are also sadistic in the infliction of that violence…there have been occasions when the beatings have gone on for so long you have stopped either to eat food or to smoke a cigarette before resuming the beating you were dealing out.

[6]       The Judge said that the appellant was assessed at a very high risk of re-offending, being unable to control his anger and that he had not been interested in rehabilitative programmes for alcohol or drug problems in the past.  The Judge said he regarded the violent offences as being the most reprehensible and that an aggravating feature was that there had been offending whilst on parole.  The Judge said he could find no mitigating features other than a discount in respect of the guilty pleas which clearly had been negotiated by the substitution of representative charges.  The Judge considered that the violent offending and threats, as well as assault with a weapon, viewed in their totality required a sentence of four years imprisonment which was imposed upon the lead sentence of threatening to cause grievous bodily harm and assault with a weapon.  On the representative charge of assault with intent to injure he imposed a concurrent sentence of two and a half years imprisonment.

[7]       The Judge then dealt with the four offences of burglary noting that they were of commercial premises and that the aggravating feature was that the appellant was a recidivist burglar.  The Judge took as a starting point 15 months imprisonment reduced to 12 months by reason of the guilty plea and the concurrent sentences of 12 months were, however, cumulative on the four year sentence for the violent offending.  In respect of the six crimes of theft the Judge imposed the maximum penalty of three months imprisonment to be served concurrently but also cumulative on the sentences imposed for the violence and burglary conviction.  As a consequence the overall sentence was one of five years three months imprisonment.  The concurrent term of one month’s imprisonment was imposed in respect of the reckless driving charge together with 12 months disqualification and on the charge of failing to stop the appellant was convicted and discharged.

Counsel’s submissions

[8]       Mr Tait on behalf of the appellant, submitted that the Judge erred in the manner in which he considered the totality of the offending and that the overall effect of the cumulative sentences when viewed against the totality of criminal behaviour, was manifestly excessive.  He submitted that an effective term of three years imprisonment was appropriate.  He referred the Court to a number of authorities emphasising that consistency in sentencing levels was required and a sentence which arrived at the least restrictive outcome appropriate to the circumstances had to be imposed.  Mr Tait contended that the Judge’s error in referring to the complainant being hit in the eye with a rock or being struck on the head with the stereo speaker were not in fact aggravating features as such did not occur.  He referred to a number of cases involving threats to cause grievous bodily harm and examples of sentences imposed to support the submission that the Judge failed to fix the sentences at a generally consistent level with other cases as required by s8(e) of the Sentencing Act.  That is, that the sentence of four years imprisonment for the violence was manifestly excessive in comparison with other cases. 

[9]       Counsel further submitted the Judge failed to give proper weight to the rehabilitation of the appellant and to imposing the least restrictive outcome appropriate in the circumstances and Mr Tait contended that imprisonment whilst appropriate, the length was so severe to leave no room for rehabilitation.  Counsel submitted that the Judge erred in his assessment of elements of aggravating and mitigating features.  Lastly he submitted that the imposition of cumulative terms was not justified because the charges involved “in essence the same criminality” and were he said part of a connected series of events.

Discussion

[10]     It is well known that the sentencing process is not always or usually amenable to mathematical or precise calculation.  That is especially the case where there has been prolonged offending over a significant period involving multiple different crimes.  A sentencing Judge has to stand back and determine whether the ultimate sentence imposed appropriately reflects the total criminality of the offender’s behaviour.  Of course, in any sentencing exercise the “lead” sentence must properly reflect the circumstances of that offending, and if cumulative sentences are to be imposed for other offending, then they must not be so as to take the total effective term to be served beyond what is appropriate. 

[11]     The most serious offending was the repeated assaults upon the appellant’s former partner.  It was open to the Judge to reach the view that the community needed protection from the appellant and a specifically deterrent sentence was necessary.  His fixing the lead sentences at four years imprisonment on the assault with weapon and threatening to cause grievous bodily harm does not reveal any error of principle so as to be manifestly excessive. 

[12]     There were at least four different occasions when violent attacks occurred upon the victim.  The offending on 1 November 2005 involved a four hour beating together with the use of scissors, and threats to stab her, and was a particularly sadistic episode.  There were no mitigating features at all about the violence and threats to her.

[13]     The nature of a representative charge is where offending has occurred over an extended period of time but precise dates within that period cannot be identified.  It is undesirable for a representative charge to be used in circumstances which involve identifiable occasions of offences being committed but it is apparent from the amendments to the informations that this arose through negotiation and agreement with defence counsel.

[14]     There were some factual errors in the Judge’s recitation of the summaries of fact which is perhaps understandable given that he had two such summaries before him.  There is a need for prosecution and defence counsel to agree on a clear summary of facts upon which the sentencing Judge can proceed to avoid problems that may arise.  However, we do not consider the factual errors in the Judge’s recitation of the facts, which arose from the conflicting summaries of fact, to be material.

[15]     Although the Judge did not articulate his starting point for the offending against the person, it must have been about four to four and a half years – and rightly so.  The Judge was fully entitled then to impose an uplift on the starting point for personal aggravating factors, namely that the offending occurred while the appellant was on parole and that he had five previous convictions for assaulting females.

[16]     Some allowance should be given for the guilty pleas but the appellant initially pleaded not guilty and the indictable charges proceeded to a preliminary hearing which required the complainant, his victim in respect of the offences of violence, to give evidence.  The aggravating features personal to the appellant would balance any allowance for guilty pleas.  The term of four years imprisonment in respect of this overall offending is entirely justified.

[17]     The cumulative 15 months sentences for the burglary and theft charges were warranted.  There were a total of 10 offences, some more serious than others.  Given that the appellant had a total of 92 previous convictions including 48 for offences of dishonesty, nine of which relate to burglary, a starting point of 15 months imprisonment for four offences of commercial burglary was well within the permissible range.  No error arose in the allowance of three months given in respect of the guilty pleas.

[18]     Similarly, the six offences of theft for which the maximum of three months imprisonment (concurrent within themselves) was imposed, this did not lead to the overall sentence being manifestly excessive.  They were discrete thefts undertaken on different occasions as part of prolonged episodes of lawless behaviour.  The Judge was entitled to make those sentences cumulative, especially given the guidance in s 84 of the Act.  The offences were totally different in kind to the attacks on and threats to the woman, whether or not forming part of a connected series.

[19]     There is one criticism that can be made of the Judge.  When a Judge is sentencing for multiple offending, it is important that at some point in the sentencing process he or she stands back and checks that the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending.  That is essential in any case where cumulative sentences of imprisonment are imposed: see s 85(2).  The Judge in his or her sentencing remarks should articulate that he or she has undertaken that task, so that both the offender and any appellate court know that the check has been done.  In this case, the Judge did not articulate that he had undertaken that check.  We have accordingly had to turn our minds to that question.  Having done so, we are quite satisfied that the total sentence of five years and three months imprisonment was within the appropriate range.  The overall sentence was not manifestly excessive.

[20]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington