Tout v Police
[2021] NZHC 2227
•31 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000065
[2021] NZHC 2227
BETWEEN DAMIEN CHARLES PHILLIP TOUT
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 27 August 2021 Via VMR Appearances:
A C Trinder for Appellant
J A Lancaster for Respondent
Judgment:
31 August 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 31 August 2021 at 2.30 pm
Registrar/Deputy Registrar Date:
TOUT v NEW ZEALAND POLICE [2021] NZHC 2227 [31 August 2021]
Introduction
[1] The appellant, Damien Tout, was sentenced to four years imprisonment by District Court Judge Kellar on 22 April 20121 for the following charges:
Charge
Section
Maximum Penalty
1
Injuring with intent to cause grievous bodily harm
Crimes Act 1961, s 189(1)
10 years’ imprisonment
2
Intentional damage
Crimes Act 1961, s 269(2)(a)
7 years’ imprisonment
3
Injuring with reckless disregard
Crimes A 1961, s 189(2)
5 years’ imprisonment
4
Assault with intent to injure
Crimes Act 1961, s 193
3 years’ imprisonment
5
Theft (over $1,000)
Crimes Act 1961, ss 219 & 223(b)
7 years’ imprisonment
6-9
Theft ($500-$1,000) x4
Crimes Act 1961, ss 219 & 223(c)
1 year’s imprisonment
10-12
Theft (under $500) x3
Crimes Act 1961, ss 219 & 223(d)
3 months’ imprisonment
[2] Mr Tout does not challenge the starting point adopted by the Judge but appeals the sentence on the basis that the Judge erred in the uplifts and discounts applied for personal factors.
Background facts
[3] The charges for violence and intentional damage arose on 21 October 2020, when Mr Tout was at his home address. He resided at the address with his girlfriend and three of the victims.
[4] Mr Tout’s housemates had left the address to purchase a vehicle in Ashburton. Mr Tout became angry that his girlfriend had not consulted him about it. He went into
1 Police v Tout [2021] NZDC 7563.
the kitchen and threw a microwave onto the floor, smashing it, tipped a fridge over on its side and smashed a vacuum cleaner. He put holes in the wall in the kitchen and hallway and gouged holes in the new kitchen table.
[5] The victims arrived home at about 9 pm, while Mr Tout was out. They were cleaning the kitchen when he arrived home. Mr Tout lunged at the first victim with a kitchen knife. The victim brought his right hand up to block the strike and suffered a small laceration to his hand. He and Mr Tout fell to the ground. The other victims tried to pull Mr Tout off while he continued to try to stab the first victim.
[6] The victims managed to pull the Mr Tout away, allowing the first victim to run from the house. Mr Tout turned on the others, waving the knife in a slashing motion and stabbing at them. One victim suffered a 15 cm long cut to the inside of her right forearm during this struggle.
[7] Mr Tout left the house and went out looking for the first victim, using the knife to repeatedly smash the front door as he did so. As he stood on the street yelling for the victim, he was confronted by the fourth victim who was not known to him. The fourth victim told Mr Tout he was on the phone to police. Mr Tout charged at him, punching him to the face and ribs causing him to fall against a fence.
[8] The dishonesty offending relates to a spree of shoplifting-type thefts that were committed over a relatively short period of time.
District Court decision
[9] Judge Kellar took the charge of injuring with intent to cause grievous bodily harm as the lead offending. He identified the aggravating features as an element of premeditation, the use of a knife and that the offending occurred in the victims’ home. He adopted a starting point of three and a half years’ imprisonment for that charge.
[10] On the remaining October 2020 offending, the Judge applied an uplift of 18 months. He added a further 18 months for the dishonesty offending, resulting in a total starting point of six and a half years’ imprisonment.
[11] Turning to personal circumstances, the Judge uplifted the sentence by six months for the appellant’s criminal history and a further six months for the fact the offending occurred while Mr Tout was on release conditions and bail (which had been granted just two days prior to the offending).
[12] The Judge allowed a full guilty plea discount of 25 per cent. A further 12 months was deducted for the appellant’s background and addiction.
[13] The resulting sentence was four years and 10 months’ imprisonment. Having regard to totality, the Judge reduced that to four years’ imprisonment.
[14]The following table informs the ensuing discussion of the sentence.
Description
Starting point
Injuring with intent to cause GBH
42 months
Uplift for charges of intentional damage,
injuring with reckless disregard and common assault
18 months
Uplift for theft charges
18 months
Starting point
78 months (6 years 6 months)
Discount for guilty plea (25 per cent)
20 months
Uplift for previous convictions
6 months
Uplift for offending while subject to release conditions and while on bail (October 2020 offending)
6 months
Discount for addiction
12 months
Provisional end sentence
58 months (4 years 10 months)
Adjustment for totality
10 months
End sentence
48 months (4 years)
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[16] Ms Trinder accepted that the Judge’s starting point of three years and six months was within the range available to him.
[17] Ms Trinder submitted, however, the six-month uplift for Mr Tout’s previous convictions and a further six-month uplift because the violence offending occurred within two days of Mr Tout having been granted bail were excessive. Ms Trinder submitted the total of these two uplifts ought not to have exceeded six months.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
[18] Ms Trinder submitted whilst Mr Tout’s criminal history is not insignificant there is a limited amount of previous violent offending. Further, she submitted it was historical, having occurred in 2010. She submitted the majority of the convictions were for dishonesty and driving-related offending.
[19] In summary, Ms Trinder submitted any credit for personal mitigating factors was essentially negated by these uplifts, resulting in an end sentence that was manifestly excessive and that the Judge ought to have given Mr Tout a 14-month discount for his personal mitigating factors in recognition of a real shift in Mr Tout’s thinking and attitude towards his substance abuse difficulties.
Respondent’s submissions
[20] Having reviewed the relevant authorities, Ms Lancaster for the respondent submitted a starting point in the vicinity of four years would have been more appropriate for the lead charge of injuring with intent to do grievous bodily harm rather than the three and a half years imposed by the Judge.
[21] Ms Lancaster submitted all the uplifts imposed by the Judge were appropriate or less than he could or should have imposed and the discounts were generous.
[22] She submitted the Judge took totality into account appropriately at the end of the sentencing exercise, giving Mr Tout a modest end sentence.
[23] Having regard to these factors, Ms Lancaster submitted the sentence was not manifestly unjust.
Discussion
Starting point
[24] The Judge correctly took the lead offending as injuring with intent to cause grievous bodily harm. The following cases are relevant in assessing the starting point for that charge (the latter two of which were cited by the Judge).
[25] R v Wilkie-Morris:5 The defendant’s co-offender lured the victim to an address, where they both confronted him. The defendant struck the victim with a hammer on the head and the knee. The co-offender then stabbed the victim three times with a knife, causing his death. The defendant pleaded guilty to injuring with intent to cause grievous bodily harm (for the attack with the hammer) and accessory after the fact to murder.
[26] The High Court began by considering the starting point for the injuring with intent to cause grievous bodily harm charge. The aggravating features were premeditation, use of a weapon, attack to the head and multiple attackers. The Court placed the offending in band two and adopted a starting point of four and a half years’ imprisonment on that charge alone.
[27] Rapana v R:6 The appellant and his co-offender were at a party when the co-offender rushed at the victim with a knife and stabbed him. The victim put his hand up in defence, meaning the primary stabbing injury was to a tendon in his hand. The appellant and the co-offender then both physically assaulted the victim.
[28] The Court of Appeal upheld a starting point of four years for the appellant on the basis he did not know the victim had been stabbed when he joined in the assault. More relevantly, the Court noted the co-offender had received an overall starting point of five years (although it is not specified what charges the co-offender was sentenced on).
[29] Sun v R:7 The appellant’s ex-partner invited him to a restaurant, where she and the victim were. The victim was described by the Judge as “the rival for the hand of [the appellant’s ex-partner]”.8 The appellant arrived at the restaurant, got into a verbal argument with his ex-partner and slapped her. When the victim intervened, the appellant turned on him. They fell onto the ground with the appellant on top, who
5 R v Wilkie-Morris [2016] NZHC 259.
6 Rapana v R [2014] NZCA 231.
7 Sun v R [2014] NZCA 278.
8 At [2].
proceeded to repeatedly strike the victim with a broken bottle. The victim suffered “significant and long-term injuries”.9
[30] The appellant was convicted of wounding with intent to cause grievous bodily harm. The Court of Appeal lowered the starting point from seven and a half years to six years, placing the offending within the bottom half of band two. The Court observed:10
… the attack was not premeditated. It was at least in part provoked by [the appellant’s ex-partner], in requesting the appellant to come to the restaurant and taunting him when he arrived. The injuries to [the victim] were quite serious, but we would not classify the violence on the part of the appellant as extreme. The bottle which was used as a weapon was not taken to the scene, and it was not deliberately broken before it was used.
[31] The present offending is similar to Sun in terms of the seriousness of the appellant’s actions, although the injuries sustained in Sun were more significant than the present case, as reflected by the charge.
[32] The principal offender’s actions in Rapana appear most aligned to the present facts, given the use of a knife and the fact the injury was sustained to an arm raised in defence. The offender in Rapana did then continue to assault the victim, although Mr Tout attempted to do the same but was restrained by other victims.
[33] R v Wilkie-Morris is similarly comparative when restricted to the hammer attack alone, which is what the four-and-a-half-year starting point was based on.
[34] On the basis of these cases a starting point in the vicinity of four years would have been appropriate on the lead charge, as opposed to the three and a half years taken by the Judge.
Uplift for other violence charges
[35] For the charges of intentional damage, injuring with intent to injure and assault with intent to injure, the Judge applied an uplift of 18 months’ imprisonment.
9 At [2].
10 At [10].
[36] Mr Tout caused considerable damage to property, as well as fairly serious harm to the victim whose arm was slashed. Mr Tout also assaulted a stranger who attempted to assist the other victims by calling the police. For these reasons I consider 18 months was within the range available to the Judge.
Uplift for dishonesty offending
[37] Mr Tout engaged in a spree of dishonesty offending, during which he stole goods valued at approximately $6,380. The Judge applied a further uplift of 18 months to account for this.
[38] In Collier v Police, the appellant was sentenced for a spree of shoplifting during which she had stolen approximately $6,180 worth of goods.11 The High Court on appeal did not disturb the starting point of two years and eight months.
[39] With regard to totality, a further uplift of two years would have been available to the Judge for the dishonesty charges. The 18 months imposed was modest, but again within range.
Overall starting point
[40] If the Judge had applied the full uplifts that were available to him based on comparable cases this would have resulted in an overall starting point of eight years’ imprisonment. The Judge did adopt a starting point that was within range, if not modest.
Personal aggravating factors
[41] Mr Tout has a substantial criminal history, including some 26 dishonesty convictions over the last 12 years, three for possessing an offensive weapon or a knife in a public place, two for assault with a weapon and two for assaulting police.
11 Collier v Police [2017] NZHC 2222.
[42] Mr Tout was sentenced to imprisonment for 13 months in February 2020 for a number of driving and dishonesty charges. He was therefore subject to a sentence at the time of the offending.
[43] In addition, Mr Tout was granted bail on 19 October 2020. The violence offending occurred two days later, while he was subject to that bail.
[44] A significant uplift was warranted for these factors. The uplift of 12 months applied by the Judge was appropriate.
Personal mitigating factors
[45] The Judge was correct to allow a full guilty plea discount of 25 per cent given the early stage at which the Mr Tout pleaded guilty.
[46] The Judge also deducted 12 months in recognition of Mr Tout’s addiction and other personal circumstances.
[47] The Judge had limited information before him concerning Mr Tout’s longer-term personal history. The best that can be found is in the Drug and Alcohol Assessment (DAA) provided to the Court. This report records that Mr Tout’s parents separated when he was six years old and, other than for a period of 12 months, Mr Tout lived with his mother before leaving home and school at aged 15. It also records Mr Tout was the subject of some unspecified abuse as a young person. He attended five different schools before leaving.
[48] The DAA reports that Mr Tout was diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of 15 and this is Mr Tout’s most significant mental health issue. As a result, if unmedicated Mr Tout has poor concentration levels. However, if properly medicated this condition does not affect his daily functioning.
[49] The DAA reports that Mr Tout also has suffered head injuries in the past due to sports injuries, but these do not continue to impact his daily life currently.
[50]The DAA records Mr Tout’s long-term addiction to opiates.
[51] The report from Corrections records Mr Tout has come to the realisation he is addicted to morphine and that he will need significant assistance in addressing his addiction issues.
[52] The 12-month discount adopted by the Judge equated to a discount of just over 15 per cent. This was an appropriate discount having regard to the circumstances outlined above. The fact that the same uplift was applied for personal aggravating factors is not a basis for justification of a greater discount for personal mitigating factors.
Reduction for totality
[53] Having reached an end sentence of four years and ten months, the Judge then applied a further totality discount of ten months, resulting in an end sentence of four years’ imprisonment.
[54] Therefore, even if the Judge erred in his assessment of personal aggravating and mitigating factors (which I find he did not), the end sentence still could not be said to be manifestly excessive.
Conclusion
[55] The sentence imposed in the District Court was not manifestly excessive. The appeal should accordingly be dismissed.
Result
[56]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Christchurch CC:
A Trinder, Christchurch
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