UON v The Queen

[2005] NZCA 168

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/05

THE QUEEN

v

NEIL UON

Hearing:22 June 2005

Court:Chambers, Potter and Doogue JJ

Counsel:S Tait for Appellant

J M Jelas for Crown

Judgment:27 June 2005     

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

REASONS

(Given by Doogue J)

Introduction

[1]        Neil Uon appeals against a sentence totalling seven years imprisonment imposed upon him by Judge Sharp in the District Court at Papakura.  The Judge sentenced the appellant for five separate offences following his being found guilty of them by a jury.  She imposed a sentence of six years imprisonment for the crime of injuring with intent to cause grievous bodily harm.  That offence was committed on 15 September 2003.  Three other offences were committed on the same day in respect of which concurrent sentences were imposed.  Sentences of three years imprisonment were imposed for two separate offences of threatening to do grievous bodily harm and threatening to kill.  A sentence of six months imprisonment was imposed for common assault.  The fifth sentence imposed was of one year’s imprisonment cumulative upon the earlier sentences in respect of the crime of wilfully attempting to pervert the course of justice on 10 June 2004.  No minimum non-parole period was imposed. 

[2]        The appeal is on the basis that the ultimate sentence imposed was manifestly excessive and was wrong in law in that it is submitted that the imposition of a cumulative term of imprisonment was incorrect and that the sentence is inconsistent with totality principles.  The Crown resists the appeal. 

Background

[3]        On 15 September 2003 the appellant and three associates went to the address of one of the appellant’s neighbours.  There were two people at the address.  The appellant entered the premises and immediately grabbed one of them around the throat, choking him, while one of his associates hit this complainant several times in the face area with a closed fist.  This complainant, A, fell backwards into a chair that was behind him, with the appellant falling on top of him.  The appellant then pulled a knife from his pocket and, holding it in his right hand, stabbed A once on the right side of his neck behind his right ear.  The appellant punched A several times to the head using the same fist he was holding the knife in.  As a result A sustained superficial cuts to his right eyelid and left ear from the knife.  This action was taken by the appellant because A had refused to give evidence for the appellant in a dispute the appellant had with his wife.

[4]        The second person at the address, the occupier, B, yelled at the appellant, “why are you hitting him?”  The appellant replied, “if you help him, I’ll stab you also!”

[5]        A’s daughter, who was at home in a neighbouring unit, heard what was happening and called her mother, C, the wife of A.  On seeing A being assaulted, C told the daughter to call the police.  On hearing that the appellant said to C, “if you call the police, I’ll stab you and take your life”. 

[6]        As a result of the attack upon A he required medical treatment for the cut to the right of his neck as well as the superficial cuts to his right eyelid and left ear.  He also received bruising to the face area. 

[7]        The final offence for which the appellant was sentenced occurred on 10 June 2004.  By that time there had been a depositions hearing in respect of the earlier offending.  However, it had not been completed and had been adjourned to a further hearing on 28 June.  On 10 June the appellant arrived with two associates at the address where A and his family lived.  He entered the premises and yelled and swore at A while standing over him in a threatening and intimidating way.  He said to A that if what A said in Court made him go to prison he would stab A.  He also told A that if he went to prison, his two associates would come and get A.  This went on for about 15 minutes in an effort by the appellant to intimidate A from giving further evidence in Court against him.  The complainant was frightened for his life and believed A might do something to him.  As a result, instead of  sleeping at home in the next few days, A slept in his car on the streets for fear of further retribution by the appellant. 

Sentencing

[8]        At the sentencing the Judge, who was the trial Judge, had before her a pre-sentence report and copies of letters written by the appellant to the Court and to the principal complainant.  She also had before her victim impact statements from A, his wife and daughter.  Counsel had lodged memoranda, which they had addressed.

[9]        After referring in a general way to the background, the Judge identified the aggravating features of the offending as being:

(a)     Actual and threatened violence;

(b)Premeditation.  The Judge accepted that the first offending was motivated by the refusal of A to help the appellant in a custody dispute with his wife, whilst the final offence was as a result of the appellant seeking to deter A from giving evidence against him in respect of the earlier offending;

(c)The Judge accepted that there was harm to the complainants, not only the physical harm to A but the fear created by the appellant;

(d)The appellant’s presence in A’s dwellinghouse was uninvited and without consent;

(e)The Judge identified the final offence of attempting to prevent evidence being given in respect of the first offences as an aggravating feature, notwithstanding that it was intrinsic to the offence;

(f)At the time of the final offence the appellant was subject to bail conditions, including a requirement not to associate with the complainants. The final offence was therefore committed in breach of the conditions of bail;

(g)The appellant had previous convictions indicating a propensity for violence.  In 1991 the appellant had been guilty of injuring with intent to injure and of male assaulting a female.  It has to be noted that that offending attracted a non-custodial sentence.

[10]     The Judge found that there were no true mitigating circumstances.  While the appellant was remorseful to a certain extent, this related more to his own circumstances than to the violence that he perpetrated upon the complainants.

[11]     The Judge then identified the maximum sentences for the various offences.  It was relevant to her subsequent consideration of the sentencing that the highest maximum sentence was 10 years imprisonment for the offence of injuring with intent to cause grievous bodily harm.

[12]     In approaching the appropriate sentence for the offence of injuring with intent to cause grievous bodily harm, the Judge gave some consideration to R v Hereora [1986] 2 NZLR 164, acknowledging that it dealt with more serious offending than the present case. (We note that Hereora is at the present time under review in this Court).

[13]     The Judge took the view that the injuring with intent to cause grievous bodily harm offence did not warrant a term of imprisonment that started at or near the maximum penalty but that there were substantial aggravating features which made it a serious one.  She thought that an appropriate starting point, taking into account the aggravating features, most of which were implicit in the crime itself, should be seven years imprisonment.  To the extent that part of the appellant’s remorse could be genuine, the Judge gave a one year discount from that starting point.  She therefore imposed the term of six years imprisonment for that offence.  She then imposed the concurrent sentences in respect of the other offending occurring on the same day.  She did not directly refer to this other offending as an aggravating feature of the principal offence but no doubt, in light of the requirement in s 85(4)(a) Sentencing Act 2002 that, where concurrent sentences are used, “the most serious offence must … receive the penalty that is appropriate for the totality of the offending”, she did take the other offending into account when fixing the six years. 

[14]     The Judge then went on to consider the appropriate sentence in respect of the offence committed some months later of attempting to pervert the course of justice.  She accepted the submissions for the Crown that that sentence should be cumulative and rejected the submissions for the appellant that it should be concurrent.  However, she clearly took into account the totality of sentencing principle, imposing a sentence that was shorter than it would have been if the offence had stood by itself.  She considered that if the offence had stood by itself a term of three years imprisonment would have been appropriate, but that given the totality principle, that figure should be reduced to one year to give the effective total sentence of seven years imprisonment.  She did not consider that there were any mitigating factors in relation to that offence.

Submissions

[15]     In support of the submission that the sentence is manifestly excessive, the appellant submitted that the Judge incorrectly gave weight to the offending being premeditated.  The appellant submitted that there was no evidence to support a conclusion of premeditation, particularly as it is unclear where the knife came from and the complainant was unsure about its exact location.  We reject this submission immediately.  The appellant arrived at the principal complainant’s address on two occasions with associates to assist and to carry out his preconceived intentions.  There could not be better evidence that the offending was premeditated.

[16]     The appellant next took issue with the finding by the Judge that it was an aggravating feature that the appellant was in the homes of his victims uninvited and without their consent.  It was submitted that there was no clear evidence solicited at trial that supported the conclusion that the appellant did not have authority to be on the property of the neighbour, B, in respect of the first offence.  It was conceded that in respect of the later offence there was evidence that A had revoked any licence the appellant might have had to be at the premises.  Once again this submission is not worthy of any detailed consideration.  The sentencing Judge was the trial Judge.  It was entirely open to her to draw the conclusion from the evidence that she had heard, that the appellant was in the home of the complainants uninvited and without their consent.  We again note that the appellant was on each occasion accompanied by associates.  There was no suggestion that the people involved were known to the complainants or invited by them.  In any event, the Judge placed no great weight on this consideration.

[17]     It was then submitted for the appellant that the Judge failed to give adequate weight to the principles and purposes provided for in the Sentencing Act 2002, in particular:

(a)that the Court should assist in the offender’s rehabilitation and reintegration: s 7(1)(h);

(b)that the sentence must be consistent with that for similar offenders committing similar offences in similar circumstances: s 8(c);

(c)that the Court must impose the least restrictive outcome that is appropriate in the circumstances: s 8(g).

[18]     In respect of the submission that the sentence was wrong in law, it was submitted for the appellant that the offence of attempting to pervert the course of justice should have been treated as an aggravating feature affecting the sentence for injuring with intent to cause grievous bodily harm. 

[19]     It was further submitted (although this goes more to whether the sentence is manifestly excessive) that the appellant’s attack on the principal complainant lacked a systematic application of abuse and was not premeditated, notwithstanding that the Judge found to the contrary in respect of the latter matter.  It was further submitted that in respect of the final offending of attempting to pervert the course of justice, that that was limited to verbal threats to discourage the complainant and did not involve actual violence. 

[20]     However, the principal submission for the appellant in respect of the sentence being incorrect in law was that all the offending involves in essence the same criminality and is part of the same transaction.  Thus it was submitted, the imposition of the cumulative sentence involved a doubling up of punishment and was contrary to the provisions of s 84 Sentencing Act 2002.  It was said that that was also contrary to the provisions of s 8(g) of that Act. 

[21]     It was submitted that the sentence was inconsistent with the totality principle and that the cumulative sentence resulted in the total being wholly out of proportion to the gravity of the overall offending on the part of the appellant. 

[22]     Generally it was submitted that the scale of the offending was one where a less restrictive term of imprisonment was more appropriate and the sentence should be reduced to reflect the matters relied upon by the appellant.  Mr Tait, for the appellant, submitted that the sentence should have been in the range of five and a half years to six years. 

[23]     The Crown resisted those submissions and in summary submitted that the final sentence reflected the aggravating circumstances of the particular offences and the overall criminality of the offending.  If a lower starting point were adopted in respect of the first offences, it was submitted the final sentence would remain unchanged, as the final offence would justifiably attract a higher sentence.  It was submitted that the sentence under appeal was within the range available to the sentencing Judge.

Consideration

[24]     We reject the submissions for the appellant.  We start from the perspective that it was entirely appropriate for the Judge to impose a cumulative sentence in respect of the attempt to wilfully pervert the course of justice offence.  While that offence was linked to the earlier offending, it was not part of it or even of the same kind and was separated from it by a considerable period of time and other events.  Indeed, we consider it would have been inappropriate for the Judge to impose a concurrent sentence in respect of such different offending when it was so separated from the first offending. 

[25]     The principal inquiry has to be whether the overall sentence was manifestly excessive having regard to the totality of the offending.  It is quite clear that the Judge approached the sentencing in that way as shown by her comments on the extent of the cumulative sentence.  

[26]     The Judge’s seven year starting point taken by her in respect of the first set of offending may of itself have been high.  However, the effective sentence imposed by her for that offending of six years imprisonment could not be said to be manifestly excessive when there is an overall consideration of the circumstances of the offending and of the offender and of the aggravating and mitigating circumstances involved.  There were no true mitigating circumstances and the aggravating circumstances were somewhat worse than the Judge in fact spelt out. 

[27]     In respect of the first set of offending the appellant had brought with him three other persons and had carried out acts of violence to show that his threats did not lack meaning.  Quite apart from the violence carried out on A, he was prepared to threaten two other persons with serious violence.  The final offence was committed in somewhat similar circumstances with the background of the earlier violent offending and again with other people involved.  When the appellant had shown himself capable of acting violently, supported by associates, the threats were more serious than they might otherwise have been. 

[28]     We have already noted the offending was clearly premeditated on each occasion.  The 34 year old appellant was considered as being at a medium level of risk of re-offending.  He had not taken responsibility for his actions and exhibited limited insight into his offending behaviour.  He had previously been before the Courts in respect of acts of violence and other offending, even if not of a serious nature and not recently. 

[29]     The offence of attempting to pervert the course of justice was when he was already before the Courts in respect of the earlier offending and in direct defiance of the bail condition imposed upon him.  In circumstances such as existed here the Judge was correct in saying that standing alone, a sentence of two to three years imprisonment would have followed: see R v Hillman CA14/92 14 May 1992.

[30]     Overall therefore there was first one serious incident of violence, as the Judge found, combined with serious threats to other people.  There was then the further serious threat to A.  There were also the circumstances in which the offending occurred, which the Judge noted.  While the actual violence may not have been severe, it was more than minor and had the potential of being much more serious.  It was clearly directed towards creating a climate of fear and could well have been successful in its intention.  In those circumstances, while the final sentence of seven years imprisonment may be considerable, it could not be said to be excessive let alone manifestly excessive for the total criminality involved. 

[31]     We make it clear that we think that the general manner in which the Judge structured the sentence under appeal was entirely appropriate, notwithstanding that another Judge might have given slightly different emphases to the elements involved and the aggravating and so-called mitigating circumstances of the case.  If, for example, the Judge had adopted five years imprisonment for the first offending and two years imprisonment for the final offence, the resulting sentence would have been even more clearly within her discretion.

Decision

[32]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington