The Queen v Williams

[2009] NZCA 55

IN THE COURT OF APPEAL OF NEW ZEALAND

CA549/2008
[2009] NZCA 55

THE QUEEN

v

SHADRACH AUGUSTINE LLOYD WILLIAMS

Hearing:24 February 2009

Court:William Young  P, Chisholm and Heath JJ

Counsel:M Ball for Appellant

J H M Eaton for Respondent

Judgment:6 March 2009 at 2.30 pm

JUDGMENT OF THE COURT

ALeave to appeal granted.

BAppeal allowed.  The sentence of three and a half years imprisonment for wounding with intent to cause grievous bodily harm quashed and replaced with a sentence of five years imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1]       Following trial before Judge McKegg and a jury in the District Court at Nelson, Shadrach Williams, the respondent, was found guilty on one count of wounding with intent to cause grievous bodily harm and on a count of threatening to kill.  By the time he was sentenced he had also pleaded guilty to unrelated summary offences of behaving in a threatening manner and obstructing a constable in the execution of his duty.  Judge McKegg sentenced him to a total of three and a half years imprisonment.

[2]       The Solicitor-General seeks leave to appeal that sentence on the grounds that it is manifestly inadequate and wrong in principle.  His primary contention is that in arriving at the sentence the Judge misapplied R v Taueki [2005] 3 NZLR 372.

Background

[3]       The victim, Dean Patching, was a tenant of Mr Williams’ ex-partner, Ursula Case.  Mr Patching lived in a flat below the main house which was occupied by Ms Case.  Mr Williams continued to spend time at the house after separating from Ms Case.  By the time of the events giving rise to this appeal Mr Patching had given notice that he intended to vacate the flat and there appears to have been a degree of tension between him and Ms Case. 

[4]       On 17 September 2007 Ms Case told Mr Patching that his car had spilt some oil on the driveway.  In response Mr Patching suggested, in earshot of Mr Williams, that the oil might have come from Mr Williams’ car.  According to Mr Patching’s evidence at trial Mr Williams then “just flew off the handle” and ordered Mr Patching to clean up the oil.  Mr Patching’s response was “shut the fuck up and leave me alone”. 

[5]       It was Mr Patching’s evidence that Mr Williams then pushed him in the chest, causing him to fall to the ground. After he regained his feet he took off his jersey and held Mr Williams away from him by the scruff of the neck.  He believes that at this time Mr Williams was on the bonnet of his car.  At that point Ms Case came at him and tried to kick him in the groin.  This prompted Mr Patching to also grab Ms Case to stop her kicking him. 

[6]       It was then that the altercation escalated in a way that gave rise to the allegations of wounding with intent to cause grievous bodily harm and threatening to kill.  Mr Patching said that he received several blows to his head which he initially thought had been administered by Mr Williams’ fist.  At the time Mr Williams was saying that he would kill him.  Then he became aware of blood on the ground and noticed that Mr Williams was holding a bar “approximately nine inches long and 20 – 25 millimetres in diameter”.  He tried to hit Mr Williams to stop him administering any further blows.  When Mr Williams ultimately stopped hitting him, he released his grip on Mr Williams and the incident ended. 

[7]       Mr Patching then rang the police on 111.  While he was doing this Mr Williams emerged from the shed and started squirting him with a high pressure hose.  The bar used in the assault was not recovered. 

[8]       Mr Patching suffered numerous cuts and abrasions to his head, many of them deep, which required 50 staples.  He suffered from concussion which involved headaches and blurred vision, and spent time in hospital and respite care.  We have viewed photographs showing extensive stapled cuts to Mr Patching’s head and face. 

[9]       At trial Mr Patching was the sole witness of fact for the prosecution and Ms Case was the only witness of fact for the defence.  By this time Ms Case had pleaded guilty to, and had been sentenced for, assaulting Mr Patching by kicking him.  Her evidence at Mr Williams’ trial was that there had been an altercation between herself and Mr Patching and that she had hit him with the bar.  She claimed that Mr Williams was not present. 

[10]     The jury found Mr Williams guilty on both counts.  Obviously they accepted Mr Patching’s evidence and rejected the evidence given by Ms Case. 

[11]     Mr Williams is 31 years of age.  He has a long list of prior convictions covering dishonesty, drugs, disorder offences, firearms offences and driving offences.  Included in those previous convictions are convictions for threatening to kill or inflict grievous bodily harm in 2001 and for threatening behaviour in 2000.  While Mr Williams was on bail awaiting sentence he was involved in two further incidents which gave rise to the summary charges of threatening behaviour and obstructing a constable in the execution of his duty.  He pleaded guilty to both those charges. 

Sentencing in the District Court

[12]     Judge McKegg noted that Mr Williams continued to deny the charges, claiming that he was not there at the time.  The Judge said that he agreed with the jury’s verdict and noted that Mr Williams did not display any elements of remorse. 

[13]     Having accepted that the law relating to assaults of this nature was governed by R v Taueki, the Judge acknowledged that three of the aggravating features listed in [31] of that decision were present:  serious injuries to the victim;  use of a weapon;  and attack to the victim’s head.  In addition the Judge identified personal aggravating features:  the appellant’s prior convictions;  impact of the assault on the victim, and vulnerability of the victim. 

[14]     Given the existence of these aggravating features it is the following part of the Judge’s sentencing that lies at the heart of this appeal:

[10]     While at first blush the qualification of this matter as a second band offence under Taueki may seem clear, nevertheless, I have come to the conclusion that on the authorities this attack, which seems to have been spontaneous and of fortunately a relatively limited duration, does fall within the first band.  It is to be noted that the first band sentencing overlaps the second band.

[11]     The two offences occurred at the same time, that is, you were threatening to kill the man as you were hitting him on the head, so in that sense they absorb into each other.

Neither counsel appearing before us had appeared in the District Court and they were not able to help us as to the authorities other than Taueki that the Judge might have had in mind when commenting at [10] that he was relying on the authorities.

[15]     After expressing the view that Mr Williams needed help but that help would be delayed until such time as Mr Williams had “the wisdom to reach out for it”, the Judge said that he had read the probation officer’s report and taken into account the submissions of Mr Williams’ counsel.  He said that he had come to the view that a starting point of three and a half years for the lead offence of wounding with intent to cause grievous bodily harm was appropriate, and that sentence was imposed.  A concurrent sentence of one year’s imprisonment was imposed for the threatening to kill, together with concurrent sentences of one month for each of the summary matters. 

This appeal 

[16]     In support of the appeal Ms Ball contended that it was contrary to principle for the Judge to have accepted that three of the aggravating features identified in Taueki existed and to then impose sentence for the wounding with intent to cause grievous bodily harm on the basis that the offending fell at the lower end of band one.  She said that it was clear from Taueki that a starting point at the lower end of band one was only available where none of the aggravating features identified in that case were present.  At the very least, submitted Ms Ball, the starting point should have been at the upper end of band one. 

[17]     Ms Ball noted that for one-on-one offending involving the use of weapons and attacks to the head this Court had previously upheld starting points of five to six years imprisonment.  In support of that proposition she referred to R v Finn [2007] NZCA 257 and R v McGregor [2007] NZCA 435. She also noted that the latter case, which attracted a starting point of five and a half years, involved an assault that was spontaneous and of limited duration.

[18]     In opposition to the appeal Mr Eaton reminded us that this was a Solicitor-General’s appeal and that, when assessing the appellant’s culpability, the very experienced trial Judge had a real advantage of having seen and heard the witnesses at trial.  He emphasised that the starting points in the bands referred to in Taueki were expressly stated to be for guidance only and should be used flexibly. 

[19]     In this case, submitted Mr Eaton, the trial Judge had correctly concluded that the true culpability of Mr Williams justified a starting point at the lower end of band one.  Amongst other things, this reflected that Mr Patching had been both aggressive and confrontational and had displayed a willingness to physically engage (removing his jersey).  Thus there were genuine issues of provocation and self-defence.  Mr Eaton said that it was also significant that Mr Williams only came into possession of the bar, and used it, when he was being assaulted by Mr Patching and that his reaction was spontaneous.  Counsel noted that Mr Patching had made a complete recovery and that it was entirely within the discretion of the Judge to conclude that Mr Williams’ prior convictions (which did not include any actual violence) did not justify any uplift to the starting point. 

Discussion

[20]     In Taueki this Court described three sentencing bands for offending involving grievous bodily harm.  It said that band one (starting point of three to six years) was appropriate for offending involving violence at the lower end of the spectrum.  The Court explained:

[36]     … where none of the aggravating factors referred to in para [31] are present, a starting point at the bottom end of this band would normally be called for.  Where one or more of those factors is present, a higher starting point would be required. 

Examples of band one were given.  In the case of an impulsive street attack where no weapon was involved the Court said a starting point at the lower end of the band one range would be indicated, but where the attack featured the use of a weapon then a starting point of around five years may well be appropriate.  And in the case of an impulsive domestic assault involving a weapon the Court suggested that a starting point of “perhaps five years or more” could be expected. 

[21] In relation to band two (starting point 5 to 10 years) the Court said that this band would be appropriate for grievous bodily harm offending which features two or three of the aggravating factors referred to at [31] of its judgment: at [38]. Band three was described as serious offending which had three or more of the aggravating features referred to where the combination of the aggravating features is particularly grave: at [40].

[22]     The Court went on to say that the illustrations it had given were intended for guidance only and that the suggested bands and starting points should be used flexibly: at [42]. On the other hand, it noted that the objective of greater consistency required 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: at [43].

[23]     While we accept that Judge McKegg is a very experienced Judge, it is not apparent to us why, having accepted that three of the aggravating features referred to in Taueki existed, he then saw fit to start near the bottom of band one.  His sentencing remarks suggest that he was influenced by the spontaneous nature of the attack and its limited duration.  There is, however, no indication that he was influenced by issues of provocation and/or self defence, and on our reading of the transcript of evidence the foothold for any such arguments is slender, to say the least. 

[24]     Notwithstanding the need for flexibility in applying the starting points indicated in Taueki, a principled approach to sentencing is essential if consistency of sentences is to be achieved.  This case involved a vicious attack against the victim with a bar resulting in serious injuries (as is evident from the photographs).  Without question the three aggravating features listed in Taueki and identified by the Judge were present.  Under those circumstances a principled approach in conformity with Taueki effectively ruled out any possibility of a starting point towards the lower end of the band one.  To the contrary, a starting point either at the top of band one or the bottom of band two, namely in the range of five to six years, was indicated. 

[25]     We agree with Mr Eaton that it was within the discretion of the Judge whether or not to factor in any uplift for the appellant’s previous record.  The Judge decided not to, and there is no basis on which we could or should disagree.  No mitigating factors were identified by the Judge.  So that starting point for the wounding with intent to cause grievous bodily harm will represent the final sentence. 

[26]     Given those considerations we are satisfied that the sentence of three and a half years imprisonment was contrary to principle and manifestly inadequate and that a sentence of at least five years would have been justified.  The sentence will accordingly be increased to five years imprisonment. 

Result

[27]     Leave to appeal is granted and the Solicitor-General’s appeal is allowed.  The sentence of three and a half years imprisonment on the charge of wounding with intent to cause grievous bodily harm is quashed and replaced with a sentence of five years imprisonment.  The other sentences stand. 

Solicitors:
Crown Law Office, Wellington