Webber v R
[2012] NZCA 594
•17 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA349/2012 [2012] NZCA 594 |
| BETWEEN MATTHEW WEBBER |
| AND THE QUEEN |
| Hearing: 4 December 2012 |
| Court: Arnold, Wild and White JJ |
| Counsel: E J Forster for Appellant |
| Judgment: 17 December 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal, which is against sentesnce only, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Webber appeals against a sentence of three years and six months imprisonment imposed on him by Judge Atkins QC in the District Court at Palmerston North on 23 May 2012.[1]
[1] R v Webber DC Palmerston North CRI-2010-031-1607, 23 May 2012.
Only one point is taken on appeal. It is that the sentence imposed by Judge Atkins was disproportionately severe and crushing when viewed together with an earlier sentence of one year and eight months imprisonment, and then a further short sentence of 21 days imprisonment, earlier imposed on Mr Webber. Mr Forster contends that Judge Atkins erred in declining to look at the totality of Mr Webber’s criminal behaviour, including that for which the earlier sentences had been imposed. In Mr Forster’s submission, such a totality approach demanded a reduction in the sentence imposed by Judge Atkins.
Background
Mr Webber was convicted of involvement in two separate incidents of violent offending, four months apart.
The first incident was on 13 May 2010. Mr Webber and his father were drinking at a bar in Waikanae. They got into an argument with another patron. Without warning, Mr Webber head butted the other patron who fell over backwards. While the victim was on the floor Mr Webber and his father punched him and kicked him until bar staff and other patrons intervened.
The victim suffered very serious injuries. His jaw and eye socket were broken and his face and head severely bruised. He was in hospital for three days receiving treatment and surgery.
Mr Webber’s father was arrested soon after the incident, but the police were not able to locate and arrest Mr Webber until 1 October 2010 – four and a half months later. Once charged, Mr Webber pleaded guilty to wounding with intent to injure. He was sentenced to 20 months’ imprisonment by Judge Davidson in the District Court at Wellington on 18 February 2011.[2] Although Judge Davidson granted Mr Webber leave to apply for substitution of that sentence with one of home detention, Mr Webber served out his prison sentence.
[2] R v Webber DC Wellington CRI-2010-091-3604, 18 February 2011.
In sentencing Mr Webber Judge Davidson referred to his “growing list of previous convictions over a 3 year period, from 2006 to 2009”, but noted that those for violence were “quite limited”.[3] Of the incident itself, the Judge commented:
[9] The aggravating features of your offending are self-evident. This was unprovoked and gratuitous. You suggest that the victim baited you and your father. Even if that is correct, it just simply does not justify a reprisal of this kind. Your initial blow was to the victim’s head where, of course, there is always a real risk of quite serious injury. Your father joined in and, at that point, there were 2 of you onto the victim. At that point he was vulnerable and outnumbered. The offending, of course, has had a significant effect on the victim.
[3] At [6].
The second incident was on 29 September 2010 – that is, over four months after the first incident. In the early hours of that day, two young men were walking down Hokio Beach Road. One of them was using his laptop as he walked along.
Mr Webber and four other men drove past the two young men, who were not known to them. Their car then turned around, came back and stopped beside the two young men. All five men got out. Mr Webber, who was wearing his Nomad gang patch, punched one of the young men in the head and then in the stomach. One of the other men tried to grab the laptop but its owner ran away and was chased.
Mr Webber, who had stayed, then punched the other young man in the face. Another of the assailants, Mr Matekaka, joined in the assault. The young man was struck repeatedly and knocked to the ground. He was then kicked several times in the head. Mr Webber then stole the young man’s cellphone and Eftpos card, later trying unsuccessfully to use the card at a service station in Levin.
The five men then drove off, leaving the second young man lying on the footpath where he was assisted by his companion. As he walked from the scene he collapsed, but with assistance was able to get home.
The first victim received minor bruising. The second young man, who was knocked down and kicked on the ground, was taken to hospital by ambulance and treated for facial swelling, mouth lacerations, bruising and grazing.
When spoken to by the police on 1 October 2010 about the second incident, Mr Webber claimed he had been out of town on the day in question. As already mentioned, he was arrested that day and charged with the first incident offending.
Mr Webber was arrested on 19 October for the second incident offending. He then admitted to the police punching one of the young men twice but denied anything further.
Mr Webber was charged with assaulting the first young man with intent to rob him, and with aggravated robbery in relation to the second young man. He pleaded not guilty and was tried in the District Court at Palmerston North in March 2012. The jury found him guilty on both counts.
When sentencing Mr Webber on 23 May Judge Atkins was, of course, well aware of the sentence that had been imposed on Mr Webber after he pleaded guilty to the first incident offending. The Judge dealt with that in the following two passages in his sentencing remarks:
[10] You are in your early twenties and have previously appeared. Since 2006 there have been a string of offences, including traffic offences, and among those there have been excess blood or breath alcohol, three of those and four driving while disqualified. You also have three for burglary and 13 for theft. With respect to offences of violence, there is one of wounding with intent to injure for which you received one year and eight months’ imprisonment in 2011. You have also received imprisonment for wilful damage, wilful trespass, possession of an offensive weapon and being a male assaulting a female. There was a prison sentence for obstructing or perverting the course of justice.
[11] After your last sentence ended in August last year you elected to remain in custody until your trial which took place seven months later, and you have been in custody almost two months since your trial.
Mr Forster, who appeared for Mr Webber when he was sentenced, made to Judge Atkins the same submissions that he has made to us in support of this appeal. In his sentencing remarks Judge Atkins carefully recorded Mr Forster’s submissions, and those of Ms Read for the Crown to opposite effect. The Judge accepted the Crown’s submissions. He said:
[34] … I do not consider that I should look at the issue of totality as between the sentencing for that matter [the first incident offending] and the sentencing for the matters that you are being sentenced for today, and I do not accept the submission made by your counsel relying on that case.
Our approach
We do not consider that a totality approach to sentencing would have resulted in, or required, a lesser sentence. We therefore need not decide whether Judge Atkins erred in holding that he did not need to take a totality approach, factoring in the sentence that had been imposed on Mr Webber for the first incident offending, and the short sentences later imposed for the offences Mr Webber committed in prison.
We merely observe that whether or not s 85 of the Sentencing Act 2002 applies in a situation such as that here is not a straightforward issue. Between them, counsel referred us to R v Nuku, R v Te Hei, R v Johansen, Skelton v R, R v Kapa, and R v Tryselaar.[4] In addition, there are this Court’s decisions in R v Fissenden, R v Stusky and Skipper v R.[5] In Fissenden this Court applied a totality approach, notwithstanding that the first sentence had already been served. In Stusky this Court held that the first term of imprisonment “was probably no longer operative” by the time of the second sentencing.[6] In that situation, the Court held that the totality principles embodied in s 85 did not apply, because the second sentence was not imposed cumulative upon the term the appellant was already serving.[7]
[4]R v Nuku [1969] NZLR 343; R v Te Hei CA411/97; R v Johansen (1997) 15 CRNZ 111; Skelton v R [2011] NZCA 35; R v Kapa [2011] NZCA 504 and R v Tryselaar [2012] NZCA 353.
[5]R v Fissenden CA364/95, 21 February 1996; R v Stusky [2009] NZCA 197 and Skipper v R [2011] NZCA 250.
[6] At [7].
[7] At [18].
Skipper involved a situation very similar to the present. Mr Skipper was sentenced on 29 October 2009 to 18 months imprisonment after pleading guilty to several dishonesty offences committed in or about August 2009. His trial on two burglaries, committed on 11 October 2009 (that is, about two weeks before he was sentenced on the dishonesty offences) did not take place until about a year later. By the time he was sentenced, having been found guilty of those burglaries, he had completed the earlier prison sentence. He was on remand. This Court held that that situation “is not itself an automatic bar to the application of the totality principle, although it may tell against it”.[8] However, the Court distinguished Fissenden because, unlike the position in Fissenden, Mr Skipper committed the burglaries after the offending for which he was sent to prison for 18 months. Further, the dishonesty offending occurred while Mr Skipper was on bail. The Court said:
[36] … Those circumstances, combined with the fact it was unrelated offending and the sentence had already been served, persuade us that this was not an appropriate case for totality to apply …
[8] At [35].
Even if s 85 of the Sentencing Act does not apply here, totality may still be relevant given the purposes and principles of sentencing set out in ss 7 and 8 of the Act.
We are satisfied that a total effective sentence of five years, two months and 21 days’ imprisonment would not have been manifestly excessive, had Mr Webber been sentenced by the same Judge at the same time for all the offending. First, Judge Davidson’s sentencing starting point of two and three-quarter years’ imprisonment for the first incident offending is unassailable, based on analogy with R v Taueki,[9] appropriately adjusted downward to reflect the fact that Mr Webber was being sentenced for a lesser crime than that n Taueki. The Judge’s full 25 per cent discount for Mr Webber’s guilty plea and further discount of three months for his remorse were generous, given the circumstances we have outlined in [6] above. In short, a sentence of three years’ imprisonment for that first incident offending would have been difficult to challenge, and the sentence actually imposed was comfortably within the available range. Mr Forster did not suggest otherwise.
[9] R v Taueki [2005] 3 NZLR 372 (CA).
Secondly, the lead sentence of three years and six months’ imprisonment imposed by Judge Atkins on the aggravated robbery charge is also well within the available range. The Judge adopted that starting point because it was the one taken by Judge Garland when he sentenced one of the co-offenders, Mr Matekaka.[10] Ms Salmond provided us with Judge Garland’s sentencing remarks. They include a careful consideration of this Court’s decisions in R v Mako[11] and R v Taylor.[12] In Taylor, in circumstances comparable to those of the second incident offending here, this Court upheld the three years starting point that had been adopted for Mr Taylor and the four years starting point for his co-offender, Mr Taia, though commenting that the latter was stern and at the top of the permissible range.[13] In the present case, after uplifting his sentencing starting point by four months to reflect Mr Webber’s previous convictions, Judge Atkins then reduced it by four months to reflect Mr Webber’s “belated expressions of regret and remorse and the need for rehabilitation”.[14] Those expressions can be contrasted with Mr Webber’s denial of any involvement when the police spoke to him on 1 October 2010, and his pleas of not guilty to the second incident offending. The Judge imposed a concurrent sentence of two years and seven months’ imprisonment for the assault with intent to rob. Again, Mr Forster did not challenge any of that; we do not think he could have.
[10] R v Matekaka DC Levin CRI-2010-031-1519, 9 February 2011.
[11] R v Mako [2000] 2 NZLR 170.
[12] R v Taylor [2009] NZCA 586.
[13] At [14].
[14] R v Webber, above n1, at [39].
We should mention that the 21 days’ imprisonment comprised sentences imposed on Mr Webber under the Corrections Act 2004 on three separate occasions for three difference offences he committed in prison while serving his sentence for the first incident offending. They were obviously rather minor offences. Judge Atkins noted them in his sentencing remarks. We need say nothing further about them.
Thirdly, and critically, we agree with Ms Salmond that a sentencing judge, stepping back and assessing Mr Webber’s offending as a whole, could not have thought that imposing a total effective sentence of five years, two months and 21 days’ imprisonment was “wholly out of proportion to the gravity of the overall offending”,[15] or was a crushing sentence that left Mr Webber bereft of hope. Somewhat obviously, Mr Forster accepted that cumulative sentences would have been appropriate given the two, discrete incidents of offending.
[15] The wording of s 85(2) of the Sentencing Act 2000.
The first incident involved unprovoked violence inflicted by Mr Webber and his father on one man, including punching and kicking him while he was on the ground. Serious injury requiring surgery resulted. The sentencing remarks of Judge Davidson which we have set out in [7] above were entirely apt.
The second incident offending was committed four months later, while Mr Webber was still “on the run” in respect of the first incident offending. The following remarks by Judge Atkins, if anything, understate the seriousness of that offending:
[35] … What you engaged in, in relation to these two young persons, was a cowardly attack on two young men who had done nothing at all to provoke it. I have read today the victim impact statement. Neither of those two persons are able to understand why they were attacked and it has affected them both. …
It is evident from Judge Atkin’s sentencing remarks that he was persuaded that material placed before him, only on the morning of sentencing, demonstrated that Mr Webber had resolved to put criminal offending behind him, and that there was a genuine possibility of rehabilitation that warranted the encouragement and support of the Court. Notwithstanding that, a total effective sentence of five years, two months and 21 days’ imprisonment could not have been viewed as manifestly excessive, and in particular could not be viewed as wholly out of all proportion to the totality of Mr Webber’s serious offending.
Result
In the result, this appeal is dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent
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