Thompson v The King

[2023] NZHC 718

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-119

[2023] NZHC 718

BETWEEN

NATHAN IAN THOMPSON

Appellant

AND

THE KING

Respondent

Hearing:	3 April 2023
Counsel:	T D Clee for Appellant C Lee for Respondent
Judgment:	4 April 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 April 2023 at 9 am

Registrar/Deputy Registrar

Solicitors:

Koo Telle (Auckland) for Appellant

Pollett Legal Ltd (Tauranga) for Respondent

THOMPSON v R [2023] NZHC 718 [4 April 2023]

Introduction

[1]    Mr Thompson appeals the sentence of two years and 11 months’ imprisonment imposed on him by Judge Mabey KC on 15 August 2022.1 He contends the sentence is manifestly excessive.

[2]    Judge Mabey had to sentence Mr Thompson on admitted charges of wounding with intent to cause grievous bodily harm,2 impeding breathing3 and common assault.4

Background

[3]    The summary of facts sets out a series of events which occurred at a family gathering on 2 October 2021.

[4]    Mr Thompson had been drinking and he began to act aggressively towards his father-in-law. Mr Thompson took off his shirt and challenged his father-in-law to fight. A person at the gathering stood between the two men and nothing happened immediately. However, Mr Thompson then threw a garden pot at his father-in-law, and missed him.

[5]    Mr Thompson then dismantled a metal basketball hoop and used half of it as a weapon. He approached his father-in-law, swinging the half of the basketball hoop and struck his father-in-law on the head with it. His father-in-law fell unconscious to the ground and Mr Thompson used the half of the basketball hoop to hit his upper body two or three times as he lay on the ground. Others at the gathering then took the half of the basketball hoop from him.

[6]    A second victim then came to help the father-in-law. In the course of this the victim tried to stop Mr Thompson from taking the half of the basketball hoop. The two wrestled and Mr Thompson put the victim in a headlock. He then constricted the victim’s neck until the victim nearly lost consciousness. Others intervened and the violence stopped.

1      R v Thompson [2022] NZDC 15542.

2      Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.

3      Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.

4      Crimes Act 1961, s 196; maximum penalty one year’s imprisonment.

[7]    The father-in-law had head injuries which required stitching. He had a subdural haematoma and an arachnoid haematoma and was kept in hospital for treatment and observation. The effect of the violence on the father-in-law was long lasting. He was an assistant dairy farm manager and he had to be off work for some time. At the date of sentencing it was reported that the father-in-law could not be standing for the hours needed for him to work in the dairy shed. He was suffering from dizziness and lack of concentration but was making a slow recovery.

[8]    The second victim had a cut chin, and scratching and bruising to his arms and knees.

District Court

[9]    The challenge at sentencing for Judge Mabey was Mr Thompson’s remarkable background.

[10]   Mr Thompson had a very deprived childhood. The deprivation was social, cultural and economic. He amassed quite a lot of Youth Court notations, mainly for burglary, in the period 1993 to 1995. There were no notations for violent offending. But, when he was 17 years old, he enrolled in the Army’s Limited Service Volunteer Scheme. He then turned his life around. He became a qualified diesel mechanic, he entered into a marriage which lasted 21 years and he contributed significantly to the community, including taking a position in the Rangatahi Court run by Judge Bidois.

[11]   Mr Thompson completed a degree in social work and at the time of his sentencing was in his third year of studying law at Waikato University.

[12]   Mr Thompson abstained from alcohol from the age of 17 because he recognised that it had a dangerously disinhibiting effect on him. Due to stresses and family tensions preceding the attack on his father-in-law, he broke his rule and consumed alcohol. As Judge Mabey said, if he had not consumed alcohol the attack would most likely not have occurred.

[13]   Judge Mabey assessed a start point on the lead charge of wounding with intent to cause grievous bodily harm as five years’ imprisonment.5 That was appropriate.

[14]   Judge Mabey uplifted the start point by six months to account for the offending against the second victim. Again, that was appropriate.

[15]   The Judge allowed a 20 per cent discount for the entry of the pleas of guilty, and that was generous. Mr Thompson did not accept the summary of facts and made two attempts to have a disputed facts hearing before entering his pleas. The attack on his father-in-law had been captured on video and so the evidence was extremely strong.

[16]   The Judge considered that this was not a case where prospects for rehabilitation should be met with a discount. Mr Thompson had already rehabilitated himself. The Judge found that Mr Thompson was not a risk for further offending and characterised the offending as being a one-off, out of character event brought about by alcohol. Instead, the Judge gave a discount of 10 per cent to recognise Mr Thompson’s good character established through his rehabilitation.

[17]   The Judge also recognised that Mr Thompson was remorseful, and allowed a further discount of five per cent.

[18]   The Judge had the benefit of a s 27 cultural report which concentrated largely on Mr Thompson’s deprived upbringing. But the Judge struggled to see any causative link between the deprived upbringing and the offending given that more than 20 years had passed during which Mr Thompson had become something of a model citizen. Nevertheless, as an experienced Judge, Judge Mabey recognised on a common sense basis that the effects of such a traumatic childhood do not just disappear. The Judge referred to this as “some hard wiring”. He allowed a discount of 10 per cent for this factor.

5      Upper end of band 1, lower end of band 2 – R v Taueki [2005] 3 NZLR 372.

[19]   Finally, the Judge referred to the seven months Mr Thompson had spent on EM bail, noted that the terms of EM bail were not very restrictive, and allowed a discrete discount of one month.

[20]   Therefore, the Judge reduced the start point of five years and six months’ imprisonment by 45 per cent for Mr Thompson’s personal factors, plus a further month for a period spent on EM bail. That took the final sentence to two years and 11 months’ imprisonment.

The appeal

[21]   First, Mr Clee for Mr Thompson applies for leave to adduce as evidence on the appeal a new s 27 report. He submits that the first s 27 report was deficient in that it concentrated on Mr Thompson’s deprived childhood but did not link those deprivations to Mr Thompson’s adult behaviour in the period before the current offending.

[22]   The Crown, rightly, points out that this is not fresh evidence. However, I have read the new s 27 report and it does contain material that is relevant to the way in which the Court should treat Mr Thompson as an individual having regard to the whole of his life history. I think it is in the interests of justice for me to take the new s 27 report into account, and so I will.

[23]   Mr Clee makes submissions that more credit should have been given for the time Mr Thompson spent on EM bail and that he should get a separate credit for rehabilitative work done by Mr Thompson during the period of his EM bail. That is largely in respect of study by Mr Thompson at the Faith Bible College.

[24]   As I said to Mr Clee, sentencing is not a box-ticking exercise. Neither is there a single end point that is right, with any other being wrong. In all cases there is a range in which the end point can properly lie. My focus is on whether the end sentence is manifestly excessive.

[25]   I agree with Judge Mabey that a one month reduction in the sentence for the quite loose EM bail restrictions was appropriate. Mr Thompson’s study at Faith Bible

College does not represent a rehabilitative step of such moment that it should be recognised outside the general discount for good character.

[26]   The key point of appeal, and the one I will focus on, is whether in the light of the new cultural report the discount of 10 per cent given by Judge Mabey was too low.

[27]   The new s 27 report encompasses the positive features of Mr Thompson’s life that led Judge Mabey to give a discount of 10 per cent for character. The issue, really, is whether 20 per cent for character and life history is a sufficient discount after careful consideration of both Mr Thompson’s traumatised childhood and his adult history of achievement and good works.

[28]   The Crown’s submission is that 20 per cent is well within range. Mr Thompson had a fall from grace but that does not warrant a further significant discount.

[29]   Mr Clee submits, and I accept, that the new s 27 report does show that       Mr Thompson’s traumatic early life has continued to affect him throughout his adult life. He has never had counselling and he has just done his best. I accept Mr Clee’s submission that in recent years Mr Thompson’s family relationship has been characterised by emotional outbursts. The pre-sentence report notes 22 family harm incidents from 2018 through to 2021. In these, Mr Thompson was a mix of being the victim, the mutual aggressor or the aggressor. There have been four police safety orders. Mr Thompson clearly had unresolved long-term issues in his private life which, as the s 27 report writer says, must go back to the life he endured as a young person.

[30]   In my view, if Judge Mabey had had the benefit of the new s 27 report he might well have considered increasing the overall discount of 20 per cent to mark both the causative relationship between Mr Thompson’s early life and the current offending and the way he had, for the most part successfully, struggled against those causative effects.

[31]   I have decided that the start point should be further reduced by six months’ imprisonment (a discount of nine per cent) for the demonstrated causal nexus in these quite unusual circumstances.

Result

[32]The appeal is allowed.

[33]   The sentence of two years and 11 months’ imprisonment is quashed and a sentence of two years and five months’ imprisonment on the charge of wounding with intent to cause grievous bodily harm is substituted.

[34]There is no change to the sentences on the other two charges.

Brewer J