Wallace v R
[2012] NZCA 546
•26 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA540/2012 [2012] NZCA 546 |
| BETWEEN MICHAEL DESMOND JAMES WALLACE |
| AND THE QUEEN |
| Hearing: 30 October 2012 |
| Court: Ellen France, Allan and Lang JJ |
| Counsel: S A Saunderson-Warner for Appellant |
| Judgment: 26 November 2012 at 10 am |
JUDGMENT OF THE COURT
AAn extension of time to file the appeal is granted and the appeal against sentence is allowed.
B The sentence of 16 months imprisonment on the male assaults female charges is quashed. A sentence of 14 months imprisonment is imposed in its place. The other sentences imposed by the District Court together with the special conditions remain. All sentences to be served concurrently.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
The appellant pleaded guilty to two counts of male assaults female, two counts of common assault and one count of intentional damage. The bulk of the offending related to the appellant’s partner, Ms K. The appellant was sentenced by Judge Crosbie to a term of 16 months imprisonment.[1] He appeals against his sentence on the basis it is manifestly excessive.
[1] R v Wallace DC Dunedin CRI-2011-012-2461, 24 July 2012 [sentencing remarks].
The appeal raises issues about the starting point adopted by the Judge, the uplift for previous convictions, and the discount afforded for time spent on electronic bail.
Factual background
On 28 April 2011, the appellant’s partner, Ms K, was sitting on the couch in their lounge. The appellant went up to her and punched her in the leg. She kicked out in self-defence. The appellant then set upon her, punching her numerous times with both fists about her upper and lower legs. As the Judge said in the sentencing remarks, she tried to protect herself by putting her arms over her legs but “the attack continued and she was struck to her arms, stomach and back”.[2] The complainant was punched with such violence that she landed on the floor and curled into a foetal position. The attack stopped after she lay crying in that position. Ms K suffered severe bruising covering her legs, back, stomach, arms and shoulder. She also suffered soreness and mental stress. This incident gave rise to the first charge of male assaults female.
[2] At [4].
The next day, Ms K and her friend, Ms J, were at the house again. Ms K was getting changed and applying makeup when the appellant entered the room and racially abused her, calling her “a dirty nigger and filthy whore”.[3] Ms K and the appellant went to his bedroom where he continued to abuse her. In an attempt to escape she ran down the hall, wearing just her underwear, towards the front door. The appellant chased her, grabbed her and threw her into another bedroom. He pushed her into an upstanding heater causing it to fall over and Ms K to fall on top of it. Ms K ran to the door in a state of distress and begged Ms J not to go. As a result, Ms K was pushed to the ground again and told to shut up. The first charge of common assault relates to these events.
[3] Sentencing remarks at [5].
The appellant yelled to Ms J that if she did not leave he would smash Ms K. Ms J was afraid for Ms K’s safety. She approached the appellant and told him to leave. She abused him in an attempt to distract him. The appellant threw her out the door where she landed on the ground on her left arm. This resulted in her suffering a sore head from her hair being pulled and bruising and soreness to her left arm. This gave rise to the second charge of common assault.
The other count of male assaults female arose out of events on 3 May 2011. Ms K was at her home address with the appellant. She left the address after the two argued and walked along the road. The appellant approached her from behind and grabbed her leg and pulled at it. He said to her, “Are you planning on not coming home?”[4] She said, “Don’t know, but I’m not hanging around you when you’re all shitty and stuff”.[5] The appellant punched her once to the right side of her head with his right fist.
Sentencing remarks
[4] Sentencing remarks at [7].
[5] Sentencing remarks at [7].
The Judge in assessing the starting point emphasised that this was not a one‑off situation but involved “several bouts” on separate days.[6] The need for deterrence also features strongly in the Judge’s approach.
[6] Sentencing remarks at [13].
Taking into account all of the offending, the Judge adopted a starting point of 15 months imprisonment which was then uplifted by six months for the appellant’s previous convictions. That led to a starting point of 21 months and from that point there was a further uplift of three months for the common assault charge.[7] That left an end starting sentence of 24 months imprisonment in relation to the male assaults female charges.
[7] The Judge erroneously stated that the appellant only pleaded guilty to one count of assault.
From the 24 months starting point the Judge afforded a discount, reducing the sentence to 18 months imprisonment for the guilty pleas. There was a further two month discount for the period spent on electronic bail. This analysis led to an end point of 16 months imprisonment.
On home detention, Judge Crosbie said this:
[25] As to home detention, I note that it is not recommended. This is not a matter where, in my view, you have demonstrated an extraordinary commitment. While I accept that you are saying the right things to the probation service, I believe that the best indicator of the future is the past. Also, in my view, because of your sustained history of violence and the violence on this occasion, a sentence of home detention would be an insufficient deterrent sentence and I decline to impose home detention.
The Judge imposed the finite sentences of 16 months imprisonment on the two male assaults female charges. On the common assault count, a term of six months imprisonment was imposed and on the intentional damage charge three months imprisonment. All sentences were to be served concurrently. The Judge imposed the standard and special conditions of release for six months beyond the sentence expiry date.
The appropriateness of the starting point
The appellant accepts there is no tariff applicable to this offending,[8] but submits that on a comparison with other cases, the starting point adopted was manifestly excessive. For the appellant, Ms Saunderson-Warner submits that on the first incident of male assaults female, a starting point of 10–12 months would have been appropriate. She accepts some uplift is necessary to reflect the second count of male assaults female. However, it is submitted that a starting point of 11–13 months would suffice.
[8] R v Reihana CA143/03, 3 July 2003 at [43].
The Crown supports the approach taken by the Judge. Ms Bicknell says the offending was at the high end of culpability for this type of case, particularly the first incident.
In our view, the starting point adopted was within the available range. The first assault on Ms K was quite serious. Although it did not involve any attack to the head it was sustained. The final attack in which Ms K was punched in the head, while not as serious, was such as to require an uplift. Further, the seriousness of the offending was aggravated by the gratuitous assault on Ms J.
In R v Reihana this Court noted there was no tariff for the offence male assaults female and that the “circumstances of its commission and of offenders can vary greatly”.[9] The decisions relied on by the appellant are accordingly decisions on their facts and do not purport to set out an upper limit. In any event, we do not consider the Judge’s approach was out of step with the comparable cases.
[9] R v Reihana, above n 8, at [43].
In Reihana, the Court reduced the sentence of 10 months imprisonment to five months. Leave was granted to apply for home detention. The appellant in that case was found guilty after trial of one charge of male assaults female. The appellant was being ordered out of the home and punched the complainant once, very hard, in the eye. The complainant’s eyebrow was split and her eye blackened. Her eyesight was temporarily affected.
While the resultant injury in that case appears more severe than in the present, it was a one-off incident.
In Nixon v R, the appellant was convicted after trial of one charge of male assaults female.[10] He was sentenced to 12 months imprisonment with leave to apply for home detention. The incident giving rise to the charge was described by this Court in this way:
[4] … The Crown case was that early in the morning of 17 August 2000 Mr Nixon was at his flat … . A female flatmate, H, arrived at the flat. An argument developed between these two persons regarding the tidiness of the house. Mr Nixon told H to leave. She refused to do so. She said it was her house also. Mr Nixon then grabbed H by her top and pushed her out of the door, thereby causing her to fall onto a concrete area outside; and Mr Nixon then approached her, and kicked her three times in the back across the tailbone. This caused some bruising to the back of her thigh and her right hip area … Undoubtedly H was bruised, and she had to have an x-ray. She was provided with crutches for six days. After the alleged assault, H left the address. She kicked the side of Mr Nixon’s car as she did so.
[10] Nixon v R CA87/01, 19 June 2001.
In dismissing the sentence appeal, this Court described the 12 months sentence as “firm”.[11] When the additional offending in the case before us is put into the mix, we do not see the two sentences as out of line. Further, the first incident in this case was more enduring in nature.
[11]At [26].
Finally, in R v Coker,[12] this Court did not consider a term of 18 months imprisonment was excessive in relation to five counts of male assaults female. The appellant was found guilty after trial.
[12] R v Coker CA421/04, 21 April 2005.
Each of the incidents in Coker took place on a different day during April 2004. The offending in all but one out of the five instances arose out of a difference of opinion or, in the remaining instance, a failure of the complainant to meet the appellant at an agreed time. The appellant in anger would punch or slap the complainant to the head, causing cuts to the face or bleeding of the nose or lip. On one occasion, he punched her twice on the leg and also slapped her face. Another time, he made the complainant slap her own face.
Obviously, that case involves a greater number of charges but some of the assaults in themselves are less serious than the first incident in this case.[13] Further, the aggravating feature of the assault on Ms J is missing.
[13]That case also involved a count of arson but this Court’s comments as to the appropriateness of the sentence were addressed to the assault charges as a separate set of offences.
We do not see the approach taken in the present case as out of line, albeit it is stern.
The uplift for previous convictions
Ms Saunderson-Warner submits that the uplift of six months imprisonment for previous convictions is manifestly excessive. Ms Saunderson-Warner emphasises that although the appellant has previous convictions for violence, only one of these resulted in a sentence of imprisonment.
We can deal with this aspect of the appeal shortly because the Crown accepts the six month uplift is manifestly excessive. Ms Bicknell submits an uplift of three months would be appropriate.
We agree. Some uplift was clearly appropriate. The appellant was convicted of assault on three occasions (once in each of 2006, 2008 and 2009). He was also convicted of two charges of male assaults female in 2008 and of assault with a weapon in 2007. For the latter charge, he was sentenced to six months imprisonment. The Judge was right that deterrence was an important principle in sentencing the appellant. But a six month uplift was manifestly excessive. By its length, it tends to punish the appellant again for past offending. Three months was appropriate.
Ms Bicknell’s submission was that adjusting the uplift to three months should not alter the final sentence. That was because the 25 per cent discount for the guilty plea was overly generous. Instead, it is submitted, a discount of between 10 and 15 per cent was sufficient.
The guilty plea was not entered until a year after the offending took place. Nevertheless, we agree with the appellant that it was entered at the first available opportunity. The procedural history is a little complicated but, essentially, Ms Saunderson-Warner is correct that this was not a case where the appellant could have pleaded guilty and then sought some clarification of the detail in the summary of facts. Rather, he was discharged under s 347 of the Crimes Act 1961 of more serious charges of kidnapping and assault with intent to injure. In the circumstances, the discount afforded for the guilty pleas was appropriate.
Discount for time spent on electronic bail
The appellant was subject to electronic bail with a 24 hour curfew for about six months until December 2011. The curfew was then relaxed to a 12 hour curfew from 7 pm–7 am until mid-2012.
Ms Saunderson-Warner points to other cases such as Schuster v R and R v Tamou where greater allowances were given for time on electronically monitored bail.[14] However, as has been noted previously, the Court does not adopt an arithmetical approach.[15] The two month discount was open to the Judge. Indeed, it was probably generous given, as Judge Crosbie noted, that the appellant had been remanded in custody from June 2012 on charges of driving whilst disqualified, dangerous driving and making a false declaration whilst on electronic bail.
[14] Schuster v R [2011] NZCA 343 and R v Tamou [2008] NZCA 88.
[15] Purua v R [2011] NZCA 489 at [9].
We conclude that the 16 month sentence on the male assaults female charges is manifestly excessive. There has been an error in the uplift for previous convictions so it is necessary for us to consider the matter afresh.
Taking a 15 month starting point, we apply a three month uplift to reflect the totality of the offending. From that we further uplift the starting point by three months for previous convictions. We apply a discount of two months for the time spent on electronic bail and from that point a discount for the guilty plea of approximately 25 per cent. That leaves an end sentence of 14 months imprisonment. We add that Ms Saunderson-Warner confirmed that home detention is not sought.
Result
The appeal against sentence is allowed. The sentence of 16 months imprisonment on the male assaults female charges is quashed. A sentence of 14 months imprisonment is imposed in its place. All sentences are to be served concurrently. The other sentences imposed by the District Court together with the special conditions remain. A short extension of time is sought to file the appeal. The delay is explained. There is no objection to this and we order accordingly.
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
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