Weaver v The Queen
[2013] NZCA 242
•19 June 2013 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA323/2012 [2013] NZCA 242 |
| BETWEEN | GRAYSON WEAVER |
| AND | THE QUEEN |
| Hearing: | 9 May 2013 |
Court: | Wild, Chisholm and Keane JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 19 June 2013 at 3 pm |
JUDGMENT OF THE COURT
A An extension of time to appeal is granted.
BLeave is granted to the appellant to rely on his affidavit and the attached psychological assessment.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
On 16 May 2011 Grayson Weaver, and his co‑offender, Katrina Uncles, were sentenced in the District Court, Palmerston North, for two offences on 1 August 2010 at Feilding: aggravated burglary and causing grievous bodily harm with intent to injure. Judge Dawson sentenced both to imprisonment for four years, seven months.[1] We note Ms Uncles was also sentenced to one month cumulative on this sentence on a charge of driving with excess breath alcohol.
[1]R v Weaver DC Palmerston North CRI-2011-054-99, 16 May 2011.
On 16 April 2012 this Court allowed Ms Uncles’ appeal against sentence.[2] Her sentence was reduced to imprisonment for three years, eight months. At the time she offended, this Court found, she suffered bipolar affective disorder. One consultant psychiatrist considered that it may have afforded her a defence of insanity. At the very least there was a nexus between the mental illness and her offences. That and her willingness to undergo treatment, and her remorse, justified a 20 per cent discount.
[2]Uncles v R [2012] NZCA 144.
This Court accepted that this discount would create a disparity between her sentence and that of Mr Weaver, but considered that to be justified because the evidence as to her serious mental disorder was clear and Mr Weaver was not under any equivalent disability. This Court said:[3]
While there is a statement that Mr Weaver suffered from depression and associated anxiety and paranoia in his pre-sentence report, there is nothing to show any relevant mental illness at the time of the offending.
[3]At [26].
Once that decision was issued Mr Weaver elected to appeal his sentence on three grounds: (i) the Judge took into account two aggravating facts beyond the agreed fact summary; (ii) the Judge’s five year starting point was too high and double-counted aggravating facts; and (iii) no credit was allowed to him for his own mental disorder.
By the time he filed his notice of appeal on 17 May 2012, Mr Weaver was almost a year out of time and the Crown opposed an extension. Given that Mr Weaver has the basis we have just outlined explaining why he did not appeal within time, we extend time for appealing and deal with the appeal on its merits.
Mr Weaver seeks leave to file as fresh evidence an affidavit in which he says that on sentence he wished, as Ms Uncles did, to contend that he was less than fully culpable for his offence because he was raped as a boy by a man and has suffered a level of mental disorder since. He does not recall his then counsel advancing this on sentence.
Mr Weaver does not contend that his counsel was in this or any other way incompetent. That is not a ground of his appeal. He does seek to rely on a psychological assessment, dated 12 October 2011, completed after sentence for the purpose of his claim for accident compensation.
Charge to plea sequence
On the appeal there was an issue as to how Ms Uncles and Mr Weaver came to plead, on what basis and before whom. For that reason, and because if only implicitly Mr Weaver does rely on disparity as a ground of appeal, we have reviewed the record. The sequence from charge to plea is helpfully set out in the submission on sentence for Mr Weaver made by his then counsel. We rely finally on the record itself.
On 2 August 2010 Mr Weaver and Ms Uncles were arrested and charged with causing grievous bodily harm to the complainant C, with that specific intent. On 10 August 2010 they were charged also with aggravated burglary. On 26 October 2010 they were committed for trial and on 20 November 2010, a month before the first callover, the Crown filed an indictment, a statement of facts, a list of potential witnesses, and three witness statements.
On 21 December 2010, at the first callover, their counsel intimated that Ms Uncles and Mr Weaver would plead to both offences in the indictment as long as the intent alleged in the grievous bodily harm count was reduced to intent to injure. On that intimated basis a sentencing indication hearing was set down for 24 February 2011.
On 24 December 2010 the Crown filed the formal written statements of the Crown’s nine proposed witnesses, including C. On 2 February 2011 the Crown filed and sent to Mr Weaver’s counsel a medical report from the Wellington Regional Plastic, Maxillofacial and Burns Unit at Hutt Hospital setting out C’s injuries and treatment. On 22 February 2011 the Crown filed and served C’s victim impact statement.
Submissions, for the purpose of the sentence indication hearing, were filed by the Crown and the defence but, in the event, no sentence indication needed to be given.
On 25 February 2011, before Judge Lynch at the sentencing indication hearing, the Crown tendered a new indictment, reducing the intent in the grievous bodily harm count to intent to injure, and as intimated Ms Uncles and Mr Weaver then pleaded on arraignment and the Judge, after convicting them, remanded them for sentence. In Ms Uncles’ case the Judge required a s 38 assessment,[4] as well as a pre‑sentence report. She continued to be held in a secure unit.
[4]Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.
On 16 May 2011 Judge Dawson imposed the sentence under appeal, relying on submissions from the Crown, dated 2 May, and from Mr Weaver’s then counsel, dated 5 May. (We do not have any submission for Ms Uncles beyond that filed for the sentencing indication hearing, before the grievous bodily harm count was reduced to the lesser offence.)
In the sentences the Judge imposed on Ms Uncles and on Mr Weaver he made no distinction between them.[5]
Facts on sentence
[5]Aside from the driving with excess breath alcohol charge faced by Ms Uncles, see [1] above.
Ms Uncles and Mr Weaver were sentenced on an agreed fact summary to which Mr Weaver accepts the Judge adhered in his remarks on sentence, which as to the offending itself said this:
The Complainant is 62 years old. He was residing in a flat ... on 1 August 2010.
That night, the Complainant had gone to bed early. At around 10pm or 11pm he was awoken by knocking at his door. He heard a voice, which he recognised as belonging to the Accused Uncles. She said “its, [C]’s mother here, open the door”.
The Complainant did not open the door.
The knocking continued and then the door began to be kicked. The Complainant heard yelling.
The Complainant got out of bed and retrieved his phone from his trouser pocket. He intended to call Police. As the Complainant unlocked the key pad on his phone he heard glass smashing. He dialled 111 and said “Police”.
As the Complainant did that, the Accused Uncles came into his room and tried to grab his phone.
The Complainant could recognise the Accused Uncles because there was some light shining through partially open curtains in his bedroom.
The Complainant hit the Accused Uncles with a back hand.
The Accused Uncles called out to someone else. She said something like “get in here” or “come and help”.
The Accused Weaver then ran into the Complainant’s bedroom.
The Accused Weaver was the domestic partner of the Accused Uncles.
The Accused Weaver pushed past the Accused Uncles and came up to the Complainant and punched him in the face.
This knocked the Complainant to the ground. He fell against a tallboy before hitting the ground.
The Complainant got to his hands and knees. He looked up and then the Accused Weaver struck him four more blows to the head. The Complainant does not know whether these blows were struck with hands or feet.
The Complainant was stunned and dazed. He remained on the ground.
A noose, made from rope, was then placed around the Complainant’s neck and tightened.
The Complainant struggled. He was being strangled by the noose. The Complainant’s struggling caused the strangulation to become more persistent.
The Complainant pretended to pass out. This did not stop the strangulation.
The Complainant got to the point where he was not able to resist and started to pass out.
Suddenly the noose was released.
The Complainant became aware of footsteps running away.
…
On 1 August 2010 when Police arrived at the Complainant’s address, they observed glass and the door to be smashed. There was also blood around this area, which was swabbed.
The Complainant was found slumped on the floor, bleeding in his bedroom. He had a noose placed around his neck.
Both the Accused were arrested that night.
The Accused Weaver was observed to have cuts on the knuckles of his right hand.
The agreed summary concluded by describing, succinctly, C’s injuries and treatment. We will return to that description shortly.
First ground – unconceded aggravating facts
Mr Weaver’s first ground of appeal is that the Judge sentenced him excessively, relying on two unconceded, aggravating facts: (i) that he joined with Ms Uncles in carrying to C’s flat the rope used to strangle C, making his offending like hers premeditated in that sense; and (ii) C’s injuries and treatment were not just those set out in the agreed fact summary but those set out more extensively in C’s victim impact statement.
Mr Weaver contends that the Judge could only have taken those unconceded aggravating factors into account if he had first found them to apply to Mr Weaver at a disputed facts hearing.[6] We are unable to agree.
Role as to rope
[6]Sentencing Act 2002, s 24.
The agreed summary states that a length of rope, fashioned into a noose, was used to strangle C. It was still around C’s neck when the police arrived. The statement is silent as to how the rope came to be in the flat. So too are the witness statements from which that statement was presumably derived.
On sentence the Crown submitted that the offending was premeditated, adverting to “the presence of the rope”. Then, to pre-empt any claim that Ms Uncles and Mr Weaver might have been provoked, the Crown asserted that they went to C’s flat “with a rope in their possession”.
Ms Uncles, according to her sentencing indication submission, accepted she had been responsible for the “bulk” of what happened. Also that she had acted with premeditation “to a degree”. As her counsel then said: “In particular, it would appear Ms Uncles armed herself with a rope before going to the scene.” Mr Weaver’s then counsel did not advert to how the rope came to be at the flat. He did concede that “a rope was used in the fashion of a noose around the complainant’s neck”, and that this “use” aggravated Mr Weaver’s offence.
On sentence the Judge did not, when setting out the facts of the offending, go beyond the fact summary. He said that C was strangled with a rope formed as a noose. The use of the rope as a weapon, he said shortly after, was one aggravating feature. Also aggravating, he held, was that this use was premeditated, saying “you went there armed with a rope”.[7]
[7]At [15].
In holding Mr Weaver as accountable as Ms Uncles for taking the rope to C’s flat the Judge may have gone beyond what Mr Weaver expressly conceded, but hardly significantly. Mr Weaver did not dispute that he was as accountable as Ms Uncles for the use of the rope at the flat. Whether he joined with her in taking it there is a relatively minor detail.
Extent of injuries and treatment
Mr Weaver’s related submission that the Judge went beyond the agreed summary and overstated C’s injuries and treatment, drawing illegitimately on the victim impact statement, also lacks substance.
In his remarks on sentence the Judge first described the offending, adhering closely to the agreed summary as Mr Weaver accepts, and he was as scrupulous when he described Mr Weaver’s injuries and treatment. The agreed summary to which the Judge adhered said this:
On 1 August 2010, the Complainant was admitted to Palmerston North Hospital. He presented with multiple facial fractures, including fractures of his jaw. He had nerve damage to his left eye. Plastic surgery was required. In addition, the Complainant suffered bruising, swelling and cuts. He was subsequently transferred to Hutt Hospital.
This agreed description plainly confirms what Mr Weaver conceded by his plea; that when he assaulted C with intent to injure him he caused him grievous bodily harm. That comprehensive agreed description was all that the Judge needed to narrate in order to fix Mr Weaver’s culpability for the purpose of sentence
Later in his remarks, and as he then said, “to take into account the effect ... on the victim”, the Judge narrated what C had to say in his victim impact statement about his injuries and treatment. C said this:
I received very bad injuries. I have had 5 or 6 metal plates inserted into my face and both sides under my eyes. I had very bad vision at the start. This ... improved but I still get watery eyes and double vision at times.
My top teeth were all loosened and I have trouble chewing food as there is hardly any feeling there.
My whole face was pushed in and I required major surgery to my scalp to have it repaired. I now have numbness on my scalp. If I look up or bend down I get very dizzy and have to be careful or I fall over. The Doctor has said there is no cure for it.
From the rope being placed around my neck I now get a lot more phlegm and wheeze quite a bit. My hearing also went for a while due to a build up of blood. This has now come right.
After the attack I was in intensive care for about a week in Palmerston North Hospital. I was then transferred to Hutt Hospital and underwent a 7 hour operation to have my injuries fixed. I was then in intensive care in Hutt Hospital. All up I spent two weeks in Hospital.
At this point in his remarks the Judge was simply complying with his duty to “take into account any information provided to the Court concerning the effect of the offending on the victim”;[8] and we reject the submission that the Judge needed to inform the appellant and his counsel at sentencing that he intended to rely on this statement.
[8]Sentencing Act 2002, s 8(f).
C’s statement, on its face, complied with the Victims Rights Act 2002.[9] It enlarged on, but did not depart from, the agreed fact summary. It was entirely consistent with the letter dated 30 September 2010, disclosed to Mr Weaver’s counsel on 2 February 2011, from the Plastic, Maxillofacial and Burns Unit, Hutt Hospital. The extent of C’s injuries and treatment must surely have been beyond controversy.
Second ground – excessive starting point
[9]Victims Rights Act 2002, ss 17–19.
Mr Weaver’s second ground of appeal, that the five year starting point the Judge adopted for the grievous bodily harm offence, uplifted by nine months for the aggravated burglary offence, was excessive and double-counted aggravating features, is equally unsustainable.
On sentence the Crown contended for a seven–10 year starting point, on the basis that the aggravated burglary was the lead offence and that R v Mako applied.[10] Mr Weaver’s then counsel agreed with that order of priority but not the Crown’s starting point. He accepted that both R v Mako and R v Taueki[11] might apply, but in a limited manner. He contended for a starting point of five years or less; one not significantly different from that taken by the Judge.
[10]R v Mako [2000] 2 NZLR 170 (CA).
[11]R v Taueki [2005] 3 NZLR 372 (CA).
On Ms Uncles’ appeal, moreover, after recording that Ms Uncles did not challenge the Judge’s augmented five year nine month starting point,[12] this Court held it to be “at the lower end of the range”.[13] Ms Uncles and Mr Weaver were “most fortunate”, this Court said, that the grievous bodily harm charge had been reduced to one carrying a seven year maximum. A more serious charge would have been justifiable.[14]
[12]Uncles v R above n 2, at [10].
[13]At [18].
[14]At [17].
We need only say that we agree and we see nothing either in the submission that the Judge double-counted the Taueki aggravating factors. Those factors are not mutually exclusive.
Third ground – mental illness discount
The decisive issue on this appeal, it was accepted for Mr Weaver, is whether, like Ms Uncles, his sentence should be reduced to take account of the fact that at the time of his offence he may have suffered some level of mental disorder.
In assessing that we are not bound by this Court’s conclusion on Ms Uncles’ appeal that Mr Weaver did not deserve any such discount. We must assess that question afresh. But to do that we must contrast Mr Weaver’s claim to such a discount with the reasons why this Court considered Ms Uncles was so deserving of one.
Discount principle
The principle on which Ms Uncles received her discount, which also governs that now claimed by Mr Weaver, is as this Court stated in E(CA689/10) v R:[15]
[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
[69] All relevant considerations must, however, be taken into account in the sentencing process. Mental illness or mental impairment may affect the risk of a repetition of offending. This in turn may direct attention to issues of personal deterrence or public protection.
(Footnotes omitted.)
[15]E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
When Mr Weaver’s claim on appeal to a discount on this principle is contrasted with that accorded Ms Uncles on appeal the contrast is immediate and, we have to say, does not assist Mr Weaver. We begin with Ms Uncles’ claim on sentence and appeal.
Uncles appeal
On sentence Ms Uncles presumably sought the level of discount for mental illness her counsel had identified in his sentencing indication submission, in the range of 40–45 per cent. Certainly counsel for the Crown in submissions on sentence conceded she might be entitled to such a discount of about 20 per cent.
On her appeal against sentence, as this Court said, when granting her a 20 per cent discount, Ms Uncles had the benefit of eight psychiatric reports from two consultant psychiatrists beginning with assessments before plea (going to her fitness to plead) and assessments for the purpose of sentence.[16]
[16]At [12].
The psychiatrists, this Court said, did not agree as to whether she was entitled to rely on the defence of insanity, but they did agree that her mental illness and offending were closely linked.[17]
[17]At [13]–[15].
The psychiatrist who considered that the defence of insanity might have been available to her described her as extremely emotionally aroused when she offended and said that she “appeared to have ‘fused’ the victim’s face with the person who raped her when she was 15 years old”.[18] The psychiatrist who did not go that far, this Court said, described her as “a traumatised woman with a serious mental illness” entitled to “substantial mitigation”.[19]
[18]At [14].
[19]At [15].
As to her state at the time of her offending, this Court said:
[22] When Ms Uncles committed the offending she believed that the complainant was sexually interfering with her 14 year old son. She was suffering from actual delusions at the time she carried out the wounding, confusing the complainant with the person who had raped her when she was 15. She indicated that she was being instructed by spirits as to what to do to the complainant and in particular that a spirit instructed her to make a noose and “to choke [the complainant] until he poos”. The psychiatrists accepted these statements as genuine.
Though this Court held Ms Uncles’ discount to 20 per cent on account of her disorder, her prospects of rehabilitation and her remorse, it described that as “conservative ... in the circumstances”.[20] In holding that Mr Weaver had no right to any such discount this Court took into account his pre-sentence report, to which we now turn.
Weaver discount claim
[20]At [25].
To the extent that it is material to any possibility of mental disorder, Mr Weaver’s pre-sentence report first said that he had given up alcohol, drug use and gambling 13 months before, but subject to this rider:
He did however report having issues in all three areas prior to making the necessary lifestyle changes to support this, stating he self medicated with alcohol from a young age to deal with being raped and molested at the age of 13 years.
The report then went on to say, as to Mr Weaver’s “current health status”, that he said he was “fine”, but he also disclosed that “he suffers from depression and associated anxiety and paranoia which he is currently medicated for and considers to be currently stable”.
When describing why Mr Weaver had offended, his report said he had discovered that C was on bail for child sex offences and he had understood that Ms Uncles’ son, aged 12,[21] and another boy of that age, had visited C a number of times. He had become aware that C was in breach of bail and he had concluded that the police had not responded as they should have. Ms Uncles’ son had denied he had been offended against, but Mr Weaver believed that he must have been too embarrassed to say.
[21]Mr Weaver’s pre-sentence report says the boy was 12, but Ms Uncles’ says he was 14.
Mr Weaver believed, his report said, that his own experience when a young boy had played a part in his offending. It said “this situation struck a personal chord for both himself and Ms Uncles because they were both raped during their early adolescent years”. It then said this:
In all, Mr Weaver informed both he and Ms Uncles were hyper-sensitive to sexual offending due to them both being victims of sexual abuse in the past, however stated “it [his offending] should never have happened, I should have let the police handle it”.
Relying on these passages in the report, Mr Weaver’s then counsel sought a discount for him, not for any mental disorder illness reducing culpability, but because Mr Weaver’s own experience as a victim when young made him less culpable. Referring to the pre-sentence report, his counsel made this submission:
There is self reported sexual abuse in the accused’s history. This abuse appears to be linked to A & D [alcohol and drug] abuse or issues which appear to be self managed rather than treated.
In the contents of the report it is floated that both accused were hyper‑sensitive to sexual offending due to their own histories and that this may have played a factor in the escalation of the offending.
And then:
It is submitted that some allowance can be taken for the possible link between the accused’s prior exposure to sexual offending and the possibility of the accused’s hyper-sensitivity to offending that it was believed was being committed against the co-accused Uncles’ son.
The Judge, we consider, was right not to allow Mr Weaver any such discount. His assault on C had been too sustained and serious. The only question remaining is whether the assessment made after sentence on which Mr Weaver relies demonstrates that his culpability was actually reduced by mental disorder.
ACC psychological assessment
In a report, dated 12 October 2011, the clinical psychologist who assessed Mr Weaver for the Accident Compensation Corporation (ACC) said this:
At age 12 or 13 Grayson reported that he was raped by a male whilst at the beach. He said the perpetrator offered him cigarettes and then took Grayson behind some sand dunes and performed anal intercourse. He threatened him with violence if he told anyone what had happened. At the time he recalls only having a few ideas about sexual matters and wondered what he had done to deserve it. He felt unable to tell his father as he believed his father would have blamed him.
The report set out Mr Weaver’s increasing resort to alcohol and drugs, difficulties in his personal relationships, his depression and the help he obtained through counselling funded by ACC. Then, after reviewing Mr Weaver’s mental state and assessing him psychometrically, it said that Mr Weaver has a number of difficulties resulting first from the fact that he was rejected by both his parents when young, a lasting source of distress that is likely to be responsible for his depression, anxiety and personality problems. The second factor is that he was raped at 12 or 13 years to which he responded by using substances and began engaging in criminal activity and becoming sexually promiscuous. The third factor is the effect of substance abuse on his mental health. Attributable also to his rape when young is that he presented with symptoms of post traumatic stress disorder, though these are likely to have been heightened by his experience of custody.
The psychologist then said this:
It is likely that he had pre-existing mood and anxiety problems preceding the sexual abuse due to his early childhood experiences of neglect, invalidation and abandonment. These factors likely contribute to development of borderline personality traits/disorder. They are not materially linked to the sexual abuse but are likely exacerbated because of it.
There is insufficient evidence to indicate that his use of substances is attributable wholly to the reported sexual abuse. It is most likely multifactorial and that his sexual abuse exacerbated it but did not directly cause it.
Mr Weaver’s assessor, in his assessment and recommendations, did not begin to suggest that Mr Weaver suffered any mental illness requiring psychiatric treatment. He recommended only further counselling.
Conclusion
In the result, we conclude that the Judge made no error of principle or discretion when he imposed on Mr Weaver the sentence under appeal. We conclude also that the assessment on which Mr Weaver now seeks to rely falls well short of suggesting that, when he entered C’s home and assaulted him so severely, he was less than responsible as a result of a mental disorder.
Result
We grant leave to Mr Weaver to rely on his affidavit, including the psychological assessment, but we dismiss his appeal.
Solicitors:
Crown Law Office, Wellington for Respondent