The Queen v Walker

[2006] NZCA 141

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/06

THE QUEEN

v

SIMON PETER WALKER

Hearing:26 June 2006

Court:Robertson, Gendall and Harrison JJ

Counsel:G E H Wilson for Appellant

H D M Lawry for Crown

Judgment:28 June 2006 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

[1]       The appellant, Mr Simon Walker, was found guilty by a jury following trial in the District Court at Hamilton on 5 October 2005 on charges of, first, wounding with intent to cause grievous bodily harm to Brett Clarke and, second, wounding Alistair John McQuarters with reckless disregard for the safety of others.

[2]       Judge Peter Butler convicted Mr Walker and sentenced him on 4 November 2005 to concurrent terms of four years imprisonment on the first charge and 18 months imprisonment on the second.  The maximum penalties were 14 years and seven years respectively.

[3]       Mr Walker appeals against the sentence of four years imprisonment imposed on the first charge on the ground that it was manifestly excessive.

District Court

[4]       The sentencing notes of the Judge, who had presided at trial, set out the relevant circumstances.  The material facts were not in dispute at trial; the real question was whether or not the Crown had proven that Mr Walker was acting with the requisite intention. 

[5]       In summary the factual situation was:

(a)On 17 January 2004 Mr Walker was drinking at a Cambridge hotel with his brother and his brother’s partner.  Mr Clarke was present in another group of about five or six.  One member of that group spilled some beer on Mr Walker’s shirt but the issue was resolved by direct discussion.  However, Mr Walker later overheard members of Mr Clarke’s group making derogatory comments about him and his brother, including words to the effect that they were “silly boys who wanted to fight”;

(b)At closing time Mr Clarke’s group had to walk past Mr Walker and his brother in order to leave the hotel.  Mr Walker was then holding a glass beer handle which he had just finished or was about to finish.  As they walked past either Mr Clarke or another member from his group did or said something to Mr Walker’s brother which the Judge accepted as having a provocative effect;

(c)Mr Walker reacted by hitting Mr Clarke at least three times round the head with the beer handle.  The first blow struck with such force that it broke the glass.  As a result, Mr Clarke sustained wounds to his head, face and neck, requiring hospitalisation and 60 stitches.  One blow severed an artery in Mr Clarke’s jaw muscle and as a consequence he could not chew properly for a long period.  He was unable to work for two weeks.  He has suffered permanent scarring but no other long term physical effects.  The emotional health of his wife and children was adversely affected;

(d)Mr McQuarters was then working as a hotel bouncer.  He intervened during the assault to physically remove Mr Walker from the scene.  He suffered a laceration to his thumb which required seven stitches.  He was admitted to hospital but released the next morning.  He spoke of the effect which the attack had on himself and other patrons.

[6]       At trial Mr Walker raised the defences of self-defence and defence of his brother.  The Judge inferred that the jury’s findings of guilt were a rejection of both defences.  It must have been satisfied that Mr Walker’s response was disproportionate to the risk which he and his brother then faced and was thus unreasonable.  It found that he wounded with the requisite intent to cause grievous bodily harm to Mr Clarke and with reckless disregard for Mr McQuarters’ safety. 

[7]       The Judge fixed a starting point of four years by applying the Court of Appeal’s decision in R v Taueki [2005] 3 NZLR 372, noting its statement (at [27]) that all offences of grievous bodily harm involve both a high degree of criminality and significant injury to the victim, and that accordingly a starting point of less than three years imprisonment will be appropriate only in exceptional circumstances. Mr Walker’s counsel, Mr Gordon Wilson, does not challenge the Judge’s conclusion that there were no exceptional features in this case.

[8]       The Judge, within his assessment of the starting point, took into account three aggravating features identified in Taueki at [31]. One was the seriousness of the injuries suffered by Mr Clarke; a second was Mr Walker’s use of a broken glass as a weapon to inflict the second and subsequent blows; and a third was Mr Walker’s targeting of Mr Clarke’s head. The Judge accepted that mitigating features of the assault were the elements of self-defence which went too far and of provocation.

[9]       The Judge placed the circumstances of Mr Walker’s offending within band one identified in Taueki (at [36]); that is, of offending involving violence at the lower end of the spectrum of grievous bodily harm charges and so justifying a sentence in the range of three to six years imprisonment. However, in Taueki the Court of Appeal noted, as the Judge recognised, that a starting point higher than three years is required where one or more of the three aggravating features recognised in this case was present.  The Judge agreed with the Crown that a starting point of four years imprisonment on the lead sentence was appropriate.

[10]     The Judge then considered factors personal to Mr Walker which might aggravate or mitigate the starting point.  In the former category he referred to Mr Walker’s previous convictions for common assault in 2000 and for aggravated assault in 2002.  He was sentenced to a fine and community work respectively.  In the latter category the Judge acknowledged Mr Walker’s age (he was 23 years), his family responsibilities to his partner and child, his excellent work record and references, and his remorse.  On balance he was satisfied that the aggravating and mitigating features cancelled each other out, leaving four years as the final sentence.

Decision

[11]     Mr Wilson provided a comprehensive written submission in support of Mr Walker’s appeal.  In summary he argued that a starting point of four years was manifestly excessive but accepted that three and a half years would have been appropriate.  He submitted that an end sentence of three years should have been imposed.  However, in oral argument Mr Wilson conceded that a starting point of four years was within the range available to the Judge in the circumstances; the difference of six months between that term and Mr Wilson’s suggestion of three and a half years could not render the former manifestly excessive.

[12]     In our view the Judge could have justifiably adopted a starting point higher than four years.  He did not include any uplift for Mr Walker’s offending against Mr McQuarters in this assessment.  It was of sufficient severity to justify a discrete sentence of 18 months imprisonment.  Its circumstances would normally be taken into account according to the totality principle when fixing the starting point for multiple offending.  The period of four years was clearly within the appropriate range. 

[13]     Mr Wilson was unable to point to any error by the Judge when considering whether and to what extent he should adjust the starting point for personal circumstances.  He submitted only that the Judge should have given more weight to the circumstances relating to Mr Walker’s reaction to Mr Clarke’s provocation.  However, with respect to Mr Wilson, his submission misunderstands the purpose and effect of the sentencing starting point.

[14]     In Taueki this Court identified the constituent elements of a sentencing exercise in a case like this as follows:

[42]     … But the suggested bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that… The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending…

[43]     To achieve the objective of greater consistency, it will be necessary for sentencing Judges to articulate in a transparent way the basis on which they have determined the appropriate band, and the factors which have guided their assessment of the starting point. It will be important that the starting point is identified before attention is turned to the personal circumstances of the offender, because the starting point will provide the basis for assessing the consistency of one case with another.

[44]     Once a starting point has been determined in accordance with the above criteria, it is then necessary to determine whether the aggravating or mitigating factors relating to the offender’s particular personal circumstances require that the actual sentence should be higher or lower than the starting point. This involves consideration of the factors mentioned in ss 8 and 9 of the Sentencing Act which relate to the offender, as opposed to the offending, as well as any other matters relevant to the personal circumstances of the offender. The most significant mitigating factor will normally be an early guilty plea, for which a substantial reduction from the starting point will normally be justified…

[15]     The nature of Mr Walker’s participation was relevant solely to an assessment of ‘the culpability inherent in the offending’ and thus the starting point (Taueki (at [42]), as the Judge correctly found. There was no justification for revisiting it when considering Mr Walker’s particular personal circumstances (Taueki (at [44]). The most significant factor of potential mitigation, a plea of guilty, was absent.

[16]     The Judge weighed all circumstances, both aggravating or mitigating, before concluding that they neutralised each other and that Mr Walker was not entitled to a net discount from the starting point.  There is no basis for concluding that the Judge erred in principle in this approach or that the sentence of four years imprisonment imposed on the charge of wounding with intent to cause grievous bodily harm was manifestly excessive. 

Result

[17]     Mr Walker’s appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington