Thompson v The King
[2023] NZHC 660
•29 March 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-000001
CRI-2023-476-000002 [2023] NZHC 660
BETWEEN NATHAN THOMPSON
Appellant
AND
THE KING
Respondent
Hearing: 29 March 2023 Counsel:
L M Drummond for Appellant A-M McRae for Respondent
Judgment:
29 March 2023
JUDGMENT OF BREWER J
Solicitors/Counsel:
Linda Drummond (Christchurch) for Appellant Crown Solicitor (Timaru) for Respondent
THOMPSON v R [2023] NZHC 660 [29 March 2023]
Introduction
[1] Mr Thompson appeals against his sentence of two years and one month imprisonment imposed upon him by Judge JD Large on 12 December 2022.1 Ms Drummond for Mr Thompson submits that the sentence is manifestly excessive and must be corrected.
[2] The basis of the appeal is the submission that Judge Large failed to give a sufficiently large discount for the factors set out in Mr Thompson’s s 27 cultural report together with the matters relating to addiction set out in his drug and alcohol report. Judge Large gave a reduction of 15 per cent for these matters and Ms Drummond submits that the discount should have been in the range of 20 to 25 per cent.
Background
[3] Mr Thompson came before Judge Large as a 44-year-old patched member of the Mongrel Mob. He has a lengthy history of violence, including convictions for each of the offences for which Judge Large had to sentence him.
[4]I will refer briefly to the factual background.
[5] The first charge was possession of an offensive weapon,2 which has a maximum term of imprisonment of three years. The factual description given by the Judge in relation to this charge is that the victim, a female, went to Mr Thompson’s address to talk to him about a debt which the victim said Mr Thompson owed her. Mr Thompson told her in the vernacular to “be off”.
[6] The victim left and went into the kitchen. Mr Thompson followed, picked up a serrated breadknife and held it to her neck, stating “who the fuck do you think you are, asking me about money?” He then went to his bedroom and returned wearing his Mongrel Mob patch. He held the knife to her side, saying “I will fuckin stab you”. Mr Thompson then moved about the house, making further verbal threats to the victim who left the address fearing she would be harmed.
1 R v Thompson [2022] NZDC 24547.
2 Crimes Act 1961, s 202A(4)(b).
[7] The second charge was assault with a weapon.3 The maximum penalty is five years’ imprisonment.
[8] The Judge described the facts. Mr Thompson went to the (separate) victim’s address on 25 February 2022 at about 9 am. He had no authority to be on the property but gained access through the back door. He went into the victim’s bedroom where she was asleep. The victim woke to find Mr Thompson standing over her wearing his Mongrel Mob patch and with an oil column heater held above his head. Mr Thompson aggressively demanded money from the victim.
[9] Mr Thompson then used the heater as a weapon by striking the victim forcefully across her legs as she lay in bed. He continued to be aggressive, demanding money from the victim, and he began damaging property in the bedroom. The victim sat up on bed and Mr Thompson again struck her using the heater, this time across the left shoulder. The victim told Mr Thompson she did not have any money and Mr Thompson tossed over drawers, smashed windows and mirrors, and picked up a large mirror, holding it above the victim before throwing it on to her bed. Mr Thompson then left the bedroom.
[10] The victim suffered bruising to her left shoulder and to her upper thigh. She did not feel able to return to her home because she was worried about Mr Thompson returning.
[11] The third charge is one of burglary.4 The maximum penalty is 10 years’ imprisonment.
[12] The charge relates to an incident which occurred when Mr Thompson was driving his motorcar in Timaru. As he passed the complainant’s address he saw a hot water cylinder sitting on the front of the address, back from the street under some trees near the house. Mr Thompson stopped his car, got out and put on his Mongrel Mob patch before entering the property and picking up the hot water cylinder. He loaded
3 Crimes Act 1961, s 202C(1)(a).
4 Section 231(1)(a).
the cylinder on to the back of his vehicle and drove off. Subsequently he stripped the metal sheets from the cylinder and sold them to a metal recycler for $102.
District Court
[13] Judge Large adopted a starting point on the charge of assault with a weapon of two years’ imprisonment. He uplifted that by nine months for the charge of possessing an offensive weapon. A further 12 months was added for the burglary charge, making a total starting point of three years and nine months’ imprisonment. The Judge reduced that starting point for totality by six months, coming to an overall starting point of three years and three months’ imprisonment.
[14] The Judge had already decided that Mr Thompson was entitled to the full discount of 25 per cent for entering guilty pleas. However, and unorthodoxly, the Judge reduced that percentage by 5 per cent to take account of Mr Thompson’s previous criminal history. That resulted in a denial of a further two months discount.
[15] The Judge took into account the s 27 report and the drug and alcohol report. He considered that the two were intertwined and so he considered them together. The Judge decided that a discount of 15 per cent for these personal factors was in order. That resulted in an overall discount of 35 per cent, which the Judge rounded up to 14 months, giving the end sentence of one year and one month imprisonment. In addition, the Judge remitted fines of $2,406.84
Appeal
[16] An appeal against sentence requires the appellate Judge to examine the sentence against all the relevant materials. If an error is identified which means that a different sentence should be imposed, then the Judge will give effect to his or her view of the error and change the sentence. Otherwise, the Judge must confirm the sentence.
[17] I say at this point that Ms Drummond’s submissions concentrate on what she sees as the weak point in the Judge’s sentence – the discount he gave for the personal circumstances appearing in the two reports. Ms Drummond accepts all the other aspects of the Judge’s sentence. But my task is to look at the end sentence and decide
whether it is manifestly excessive. I make the point that there is always a range of sentences which Judges might consider appropriate in a particular case. To be manifestly excessive, a sentence must be beyond the top end of the applicable range.
[18] I will not go into detail about the contents of the two reports. Together they show that Mr Thompson had a socially deprived upbringing in which violence, gang culture and the use of drugs and alcohol were normalised. Ms Drummond submits that his background is causative of his offending. Judge Large accepted that and so, in a general way, do I.
[19] I accept Ms Drummond’s submission that another Judge might have allocated a discount of 20 per cent for the factors in the reports. However, that does not mean that a 15 per cent discount is wrong. That is a discount which is within the range of discounts commonly given by Judges responding to the sort of material set out in the s 27 report and the drug and alcohol report.
[20] Further, as part of my task to identify what would be an acceptable range for Mr Thompson’s offending in this case, I can take issue with the way Judge Large constructed his sentence.
Decision
[21] The charge of possession of an offensive weapon carries a maximum sentence, as I have said, of three years’ imprisonment. The circumstances I have outlined make Mr Thompson’s offending towards the upper end of the range. He used the knife twice to intimidate the victim in the course of an event where he went out of his way to intimidate her. For example, by putting on his Mongrel Mob patch. A starting point for that offence of two years’ imprisonment would be justified.
[22] Likewise, the charge of assault with a weapon. That has a maximum period of imprisonment of five years. It was a serious example of its kind. There was a home invasion. There was intrusion into the victim’s bedroom. There was the use of the oil column heater on two occasions as a weapon. There were the demands for money and the destruction of property. The victim was left bruised and frightened. A starting point of two years to possibly three years’ imprisonment for this offence was justified.
[23] The burglary was at the lower end of the scale. But it was of a residential address in daylight and there was the possibility of confrontation. A starting point of 18 months’ imprisonment would be justified.
[24] So, taking the lower end of those estimates, a starting point of five years and six months’ imprisonment can be justified. Adjusting significantly for totality would still bring four years.
[25] In terms of personal factors, an uplift of eight months’ imprisonment for Mr Thompson’s extensive and relevant history of violence is available, taking the end sentence to four years and eight months’ imprisonment.
[26] Discounting that by the full 25 per cent allowed for pleas of guilty, and attributing to the reports the 20 per cent discount that Ms Drummond contends for, would reduce the end point by 45 per cent to two years and seven months’ imprisonment.
[27] In my view, Judge Large’s sentence sits at the lower end of the range applicable to Mr Thompson’s offending. I do not see an error which would compel me to change the sentence. Accordingly, the appeal is dismissed.
Brewer J
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