Tryselaar v R
[2012] NZCA 353
•7 August 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA156/2012 [2012] NZCA 353 |
| BETWEEN JOSHUA MARK WILLIAM TRYSELAAR |
| AND THE QUEEN |
| Hearing: 12 July 2012 |
| Court: Arnold, Potter and MacKenzie JJ |
| Counsel: N P Chisnall for Appellant |
| Judgment: 7 August 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant was, on 17 February 2012, sentenced by Judge Spiller in the District Court at Hamilton to eight years’ imprisonment, with a minimum period of four years and eight months’ imprisonment,[1] following pleas of guilty to two charges of aggravated wounding,[2] one charge of unlawful detainment[3] and one charge of wilful damage.[4] The appellant appeals against that sentence.
Background
[1] R v Tryselaar DC Hamilton CRI-2011-019-6085, 17 February 2012.
[2] Crimes Act 1961, s 191(1)(a) – maximum penalty 14 years’ imprisonment.
[3] Section 209(a) – maximum penalty 14 years’ imprisonment.
[4] Section 269(2)(a) – maximum penalty seven years’ imprisonment.
The charges arose out of a prison escape attempt by the appellant and his co-offender, another prisoner, who were serving inmates housed in separate cells in the Nikau Unit, at Waikeria Prison in Te Awamutu.
On 30 July 2011, the appellant and his co-offender each pulled away a metal bracket from the sink in their cells. At about 8:00 pm, they each smashed the glass window located at the front of their cells, covering the window with a duvet to mask the sound. The appellant and his co-offender climbed out their windows and ran over to the guardroom. Two Corrections Officers, Ms Morris and Mr Prasad, who were in the guardroom at the time, heard a commotion outside and went to investigate. Ms Morris opened the guardroom door and saw the appellant and his co-offender approaching the fence. The appellant jumped the fence and hit Ms Morris in the head with the metal bracket. Ms Morris crossed her arms in front of her face and head in a defensive position. The appellant continued to attack her with the metal bracket. He pushed her back towards the guardroom, and told Ms Morris and Mr Prasad not to contact anyone.
By this time, the appellant’s co-offender had jumped over the fence and entered the guardroom, also armed with a metal bracket. The two of them turned on Mr Prasad. They delivered a number of heavy blows to the head, causing him to fall to the ground. They demanded the keys to the unit. When Mr Prasad said he did not have the keys, the co-offender demanded his house and car keys. When Mr Prasad refused, both the offenders struck him a number of times with the metal brackets. Mr Prasad fell unconscious.
Ms Morris radioed communications for help. She ran from the guardroom into a toilet block and locked the door behind her. The two offenders followed her and kicked in the door of the toilet. They walked Ms Morris back toward the guardroom and demanded that she open the gates. Ms Morris radioed Mr Prasad asking him to open the gates but she received no response. The appellant and his co-offender, still armed with the metal brackets, walked Ms Morris to the perimeter fence and entrance gateway. At this point, they were met by other prison officers outside the fence. The appellant and his co-offender held Ms Morris hostage for about 15 minutes while they tried to negotiate with the prison officers, until they handed over their weapons and gave themselves up.
Ms Morris suffered a laceration on her forehead, a large laceration on the top of her head, extensive bruising around her left ear, bruising on her arms and cuts to her hands. Mr Prasad suffered a number of large lacerations to the head, which required stitches and stapling, loss of blood, severe bruising and severe concussion.
The sentencing
The appellant requested a sentencing indication, which was provided by Judge Spiller on 7 October 2011.[5] The Judge considered the lead charge to be the aggravated wounding charge in relation to Mr Prasad. He adopted a starting point of 10 years’ imprisonment. In fixing that, he took into account the high (but not extreme) level of violence, premeditation, serious harm to the victims, use of weapons in attacks to the head, and that the victims were prison guards. He uplifted the starting point to 12 years’ imprisonment to reflect the offending against Ms Morris.
[5] R v Tryselaar DC Hamilton CRI-2011-019-6085, 7 October 2011.
The Judge considered the “totality principle”. He acknowledged that the appellant was already serving a lengthy prison sentence, and that this needed to be considered when determining the sentence to be imposed. He made no deduction. He said:[6]
The Courts have made it clear that violent offending against prison staff by offenders serving sentences for violent offending has to be deterred. I am satisfied that in principle no reduction in the appropriate sentence is warranted simply because a prisoner by his actions while serving a long sentence, as in your case, has rendered himself liable to a further long sentence.
I take the point that it would be wrong for a prisoner effectively to receive a benefit by a reduction in sentence by reason of you serving a lengthy sentence when committing further offences, and this would reduce the deterrent aspect of sentencing.
[6] At [13]–[14].
The Judge allowed a credit of one third for the appellant’s guilty plea. That reduced the final sentence to eight years’ imprisonment. The Judge considered that a minimum period of imprisonment of four years and eight months was appropriate.
On 17 February 2012, in accordance with his sentencing indication, Judge Spiller sentenced the appellant to eight years’ imprisonment cumulative on his existing sentence of seven years’ imprisonment. He imposed a minimum period of four years and eight months’ imprisonment, cumulative on his existing minimum period of four years.
Submissions
In his written submissions, counsel for the appellant submitted that the District Court Judge erred in adopting too high a starting point, and that he failed to properly apply the totality principle to take account of the sentence that the appellant was already serving. In his oral submissions, Mr Chisnall accepted that, viewed on its own, the sentence of eight years was within range. He focussed his submissions on the totality issue. He referred, for the application of the totality principle in the context of reoffending in prison, to R v Connelly,[7] Kepu v R,[8] and R v Campbell.[9] He acknowledged the limited application in these cases of the totality principle to offending in prison. He submitted that the appellant’s circumstances differ from those of the offenders in Connelly and Kepu, who had what Mr Chisnall submitted were much worse histories of previous violent offending, of which the prison offending was a continuation. He submitted that, by contrast, the appellant’s previous offending was much less serious than the prison offending.
[7] R v Connelly [2010] NZCA 52.
[8] Kepu v R [2011] NZCA 104.
[9] R v Campbell CA141/06, 12 October 2006.
Mr Chisnall submitted that the two types of offending involved in this case are different, in that the aggravated robbery for which the appellant was serving a sentence was of a different nature from the violent offending involved in the attack on the prison guards. That attack represented an escalation in the level of the appellant’s offending. Mr Chisnall placed considerable reliance on Campbell, where a reduction from 15 years to 12 years to reflect totality was upheld. He accepted that in that case the appellant was youthful, and the offending was closely proximate in time, neither of which applies here. He submitted that little weight should be attached to the proximity and time of the offending, in applying the totality principle. He submitted that a term of 15 years’ imprisonment with a 60 per cent minimum period of imprisonment is a very long sentence for the appellant, at 28 years of age.
Mr Boldt submitted that the seriousness of the offending, and the near inevitability that the appellant will be involved in further violent offending, combined to require a sentence that had the protection of the public as its paramount consideration. He submitted that a higher starting point might have been expected, and that the one third discount for the guilty plea was an error and no more than three years should have been allowed. Counsel submitted that the totality principle can have limited, if any, application in the context of offending in prison.
Discussion
We consider that Mr Chisnall’s acknowledgement, in his oral submissions, that the sentence of eight years was within range was a responsible one. We agree that it was within range. Further, we consider that, as Mr Chisnall also acknowledged, the 33 per cent discount for the guilty plea was generous. The sole issue is whether the total sentence of 15 years was excessive in the light of the totality of the offending for which the cumulative sentences of seven and eight years’ imprisonment were imposed.
In R v Connelly,[10] this Court addressed the application of the totality principle to a sentence imposed on a prison inmate for wounding another inmate with intent to cause grievous bodily harm. The Court referred to the decision of the English Court of Appeal in R v Ali, and its statement that the sentencing Judge in that case was “right not to be persuaded by the arguments of totality that were put before him to reduce what was otherwise in every other respect a totally justified and correct sentence”.[11] This Court in Connelly said:[12]
We agree with, and endorse the statement of the English Court of Appeal. In a case such as this, where the respondent was subject to a nine-year sentence for previous violent offending, any regard to the totality principle can only be minimal, given the gravity of the overall offending. Re-offending, particularly violent re-offending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.
[10] R v Connelly, above n 7.
[11] R v Ali [1998] 2 Cr App R (S) 123 (CA) at 125.
[12] At [31].
In Kepu, this Court was concerned with the sentence imposed on a charge of manslaughter following an assault on a prison officer.[13] This Court said:[14]
… His was a calculated attack on a prison officer in respect of whom he had been harbouring a grudge for several hours. It occurred within a prison environment, where prison officers have no option but to remain in constant contact with inmates who have the time and disposition to nurse real or imagined grievances against them. The potential for violence to erupt in such an environment is always present and yet, as the present case tragically demonstrates, in many cases it cannot be predicted in advance. Violence in a prison environment also has the potential to escalate rapidly, and may seriously undermine the discipline needed to effectively manage a penal institution.
Where actual violence occurs, prison officers must be entitled to the fullest measure of protection from the courts. Issues of deterrence and denunciation are then to the forefront of the principles that the courts must apply when offenders are sentenced. The sentences to be imposed in such cases must demonstrate to other prisoners that the courts will not tolerate unprovoked attacks on prison officers. We therefore consider that the context within which Mr Kepu’s offending took place sets it firmly apart from the so-called “single punch” cases in which a starting point of three to four years imprisonment will be appropriate. We find it difficult to separate, for sentencing purposes, the physical act that caused the victim’s death from the context within which it occurred.
[13] Kepu v R, above n 8.
[14] At [18]–[19].
In Campbell, the appellant was in custody following arrest on a charge of aggravated robbery.[15] While on remand in custody for that offending, he attempted to escape from the remand centre, using a plastic knife sharpened to a plastic point. He was subsequently sentenced for all offences at the same time. The Judge concluded that the sentences for the two distinct incidents of offending, if added together, would result in a disproportionate overall sentence. This Court agreed with that view, and upheld the reduced sentence imposed. That decision predates Connelly and Kepu. The age of the offender, 19 years, was a significant factor in determining whether the sentence imposed was a crushing one.
[15] R v Campbell, above n 9.
We consider that the proper approach in this case is that expressed in Connelly and Kepu. Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment. In this case, we are satisfied that neither the total sentence of 15 years nor the total minimum period of eight years and eight months is manifestly excessive.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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