Weke v The Queen

[2005] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA431/04

THE QUEEN

v

KAEL JASON WEKE

Hearing:27 June 2005

Court:Anderson  P, Williams and Doogue JJ

Counsel:C J Tennet for Appellant

M D Downs for Crown

Judgment:29 June 2005 

JUDGMENT OF THE COURT

AThe appeal against the sentence of seven years imprisonment for wounding with intent to cause grievous bodily harm is allowed;

BThat sentence of seven years imprisonment is reduced to five and a half years imprisonment.

CThe appeal is also allowed in respect of the order for a minimum period of imprisonment.

D        The order for a minimum period of imprisonment is quashed.

EThe application for special leave to appeal against conviction is dismissed.

FIn all other respects the sentence is affirmed.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1]       This is an appeal against a total sentence of eight years imprisonment imposed for two groups of offences committed in 2003.  The first comprised theft, assault and wilful damage; the second comprised wounding with intent to cause grievous bodily harm, two counts of injuring with intent to injure and one count of wilful damage.

[2]       On 1 May 2003 the appellant, who was a passenger in a taxi, expressed annoyance at the rate the taxi meter was charging against a prepaid $20 fare.  He reached over and turned off the ignition.  When the taxi driver restarted the vehicle the appellant brought it to a stop with the handbrake.  The appellant tried to get out of the van and this led to a scuffle in the course of which the appellant seized the taxi driver’s wallet and absconded.  As well as suffering fright and upset, the taxi driver lost $1,200 in cash, bank cards and a driver’s licence.  The theft of the documentation caused him considerable inconvenience.

[3]       On the evening of 12 September 2003 the appellant was in a vehicle owned by, and being driven by, an associate to a party which the men had attended and left earlier on.  At one stage, when the vehicle was stationary, the appellant punched his associate in the face and demanded the keys of the vehicle.  When the owner refused, the appellant bit his wrist until he relented and handed the keys over.   The punch and the bite both drew blood.  A short time later, when the owner attempted to retrieve the keys, the appellant responded by taking to the vehicle’s front and spare tyres with a screwdriver he had found in a glove box.  He then abandoned the owner at the side of the road and drove away in the vehicle despite the tyre damage.

[4]       Having returned to the party, the appellant became abusive and argumentative causing two other party attenders, Mr and Mrs George, to tell him to leave the property.  The appellant responded by producing a short wooden club in the nature of a patu with which he struck Mrs George on the side of the head near her temple.  Mrs George fell to the ground.  The blow caused swelling and concussion.  The appellant then struck Mr George on the side of the head causing bruising and swelling of the brain, as well as a laceration which required 15 stitches.

[5]       Another partygoer, Mr Huirama, drove Mr and Mrs George to hospital and returned to the party address.  Later he went outside and sat in his car.  He was approached by the appellant, who had returned to the party supported by a number of associates.  The appellant began swinging a chain at Mr Huirama and struck him on the shoulder.  The appellant then absconded but not before smashing Mr Huirama’s car window with the chain.

[6]       District Court Judge Wolff sentenced the appellant to one year’s imprisonment for the theft of the taxi driver’s wallet and to six months each for the wrist biting incident and the damage to the car tyres.  Those sentences were to be served concurrently with each other but cumulative upon a total of seven years imprisonment for the violence at the party scene.  The longer sentence comprised seven years imprisonment for wounding Mr George with intent to cause grievous bodily harm, three years imprisonment for intentional injuring of Mrs George and Mr Huirama and one year’s imprisonment for the wilful damage to Mr Huirama’s car.  Those four sentences were concurrent with each other.

[7]       In  addition, Judge Wolff imposed a minimum non-parole period of four years in respect of the charge of wounding with intent to cause grievous bodily harm, being satisfied that such should be imposed because of the nature of the injury, the nature of the entire evening’s conduct, and the use of the weapon with its serious consequences.

[8]       At the time of sentencing the appellant had a number of previous convictions relating, in the main, to cannabis offences and dishonesty.  There were also numerous offences in relation to driving.  There were, however, no previous offences for violence, prompting Judge Wolff to comment as follows:

This really, in the light of your history, is inexplicable, and it is inexplicable conduct on any basis that you can advance.  It is conduct that, particularly on the September night, reveals that you were almost frenzied and behaving like a wild man.  The incidents involved violence to a number of people.  The most serious charge is of course the wounding with intent to injure which significantly arose after you had already injured somebody else, so at that point you must have been aware that the weapon that you were using was capable of causing injury and indeed had done so, and that is a particularly significant aggravating feature in this case.  You have received the benefit of a careful considered Probation Officer’s report and it is unable to offer any explanation on your part as to why this offending occurred on this particular occasion.  Apparently you acknowledge violent tendencies and alcohol and drug abuse problems and indeed you have attempted to address those.

Appellant’s arguments

[9]       The appeal was advanced before us in an avoidably complicated way.  The notice of appeal was confined to an appeal against sentence, the appellant having pleaded guilty to each of the counts in question.  He asserted, nevertheless, that his counsel had not represented him competently and had advised him that he would receive a sentence in the range of five to six years having regard to the guilty pleas.  Since it appeared that the appellant was complaining that he would not have pleaded guilty but for the advice he received as to likely outcome, an arguably more appropriate form of appeal would have been against conviction.  Following a judicial conference involving counsel, Mr Tennet filed an application for leave to appeal against conviction out of time in order to cover possible eventualities.  At the hearing of the appeal he conveyed to the Court his instructions to abandon that application.  It will be dismissed in consequence.

[10]     The appellant waived legal professional privilege and this step resulted in his former counsel filing an affidavit which controverted the essential allegations made by the appellant.  However, unresolved by the affidavit evidence was the issue whether the appellant may have been influenced by the anticipated penalty of five to six years not to pursue at a trial any self-defence issues which he thought might arise in relation to the wounding and injuring charges founded on the violence at the party.  The appellant also claimed that his previous counsel had not put forward in mitigation elements of provocation relating to the party incidents. 

[11]     The nature of the appellant’s criticisms of his former counsel and the circumstances which he asserted could or should mitigate his offending envisaged two possible procedural steps on their route to ultimate resolution.  The first would require cross-examination of the appellant and his former counsel on their affidavits relating to the appeal.  The second contemplated a disputed fact hearing for the purposes of settling the basis of culpability for sentencing purposes.  It was not feasible, for various reasons, for either or both of those steps to have been undertaken on the day the appeal was called for hearing.  This was just one of the appeals set down for that day and the two step evidential inquiry would certainly take a day or more, as well as requiring administrative arrangements for the appellant, his former counsel and the complainants to come before the Court.  A potential and significant risk to the appellant was a loss of the credit due for his guilty pleas.

[12]     A more direct and tenable appellate path was to appeal against the sentences imposed by reference to their inherent merits.  Following this Court’s indication to present counsel of such a view, Mr Tennet retired to take instructions from his client by telephone.  He eventually returned to Court to inform it that he was authorised to advance the appeal solely in terms of its merits.  The justification for that election can be observed in the outcome of the appeal.

[13]     Mr Tennet did not take issue with the first group of sentences amounting to one year’s imprisonment, nor with the cumulative structure of the sentencing.  Instead, he focused on the lead sentence of seven years imprisonment for the wounding of Mr George and on the imposing of a minimum non-parole period.  As to the seven years, he submitted that the Judge set the starting point too high at near the upper suggested limit for the second category in R v Hereora [1986] 2 NZLR 164. He referred to R v Tonihi CA391/04 10 March 2005, where this Court reduced a sentence of six years imprisonment to five years, for violence which included one count of causing grievous bodily harm with intent involving an attack to the victim’s head with a golf club which caused a depressed fracture of the skull, eight days hospitalisation, permanent impairment of vision, continuing headaches and epileptic episodes.  Tonihi had a previous list of violent offending, unlike the present appellant.

[14]     Further, although the Judge noted expressions of remorse and some indications of insight into conduct as well as, and one would say evidenced by, guilty pleas, the sentencing notes indicate no discounting from the starting point to take account of those matters.  The Judge had noted that he believed that the nature and seriousness of the offence called for a sentence of seven years imprisonment.

[15]     Counsel also took issue with the imposition of a minimum period of imprisonment, arguing that insufficient regard was paid, in that respect, to the lack of previous convictions for violence. Those, together with insight and the appellant’s age, 28 years, indicated the possibility for reform.  Mr Tennet also argued that in the circumstances of this case it was a double punishment to impose a minimum non-parole period.  We note that particular argument but we are unpersuaded by it.  The process of fixing a minimum non-parole period defines the temporal perameters of a sentence compared with those which apply by default.  That is not in the nature of double punishment.

Crown arguments

[16]     The Crown’s response was that the sentence may have been stern but was not outside the range properly available to the sentencing Judge.  As to the question of a discount for guilty pleas, the Crown noted that the pleas were entered on arraignment, after depositions, and accordingly the victims had been obliged to relive their experiences when testifying at the deposition hearing.

[17]     The Crown submitted that it was open to the sentencing Judge to impose a minimum term of imprisonment on the then relevant criterion of sufficient seriousness.  Although such a minimum period had to be ordered in respect of a particular offence, that did not preclude an assessment of seriousness by reference to the context in which the offence had occurred.  In the present case, the context included serious violence on two separate occasions during the evening in question, one relating to Mr and Mrs George and the other relating to Mr Huirama.

Discussion

[18]     With respect to the Judge, we think that the sentence of seven years imprisonment was as high or higher than could be considered appropriate before taking account of mitigating factors.  Although such mitigating factors as guilty plea, remorse and insight were noted by the Judge, they seem in the result not to have been brought into account, because the starting point of seven years, informed, as the Judge said, by the features of the offending itself, which included the nature of the injury, elements of premeditation and the use of a weapon, was not in fact reduced.

[19]     The policy indications for a real discount for guilty pleas have often been remarked by sentencing Judges and this Court.  They include obviating further victimisation of victims through the trial process; resource benefits in terms of witness time, police, court and judicial resources; the intangible but real emotional benefits to victims of an offender acknowledging and accepting fault; and the increased possibility of rehabilitation of an offender by reason of such acceptance.  These benefits are such that appropriate pleas of guilty are to be encouraged, but a policy of encouragement depends for its efficacy, to a large extent, on discounts being reasonably appreciable and clearly identified.

[20]     In the present case neither of those requirements has been met.  It appears to this Court, as to the appellant, that the Judge has omitted, in fact, to apply a discount.  That omission and the very high starting point compel us to the view that the particular sentence should not have exceeded five and a half years imprisonment notwithstanding the aggravating contextual features.  As for the order fixing a minimum non parole period, which increased the default minimum term from just under two years three months imprisonment to four years, we note that the Judge took into account the following; the nature of the injury, the nature of the entire evening, the use of the weapon, and the serious consequences.  It will be recalled that the weapon was in the nature of a short wooden club which was capable of causing a laceration and concussion.  The injury required 15 stitches and some hospital treatment and the incident occurred in the course of an evening of seemingly aberrant behaviour.  However, as our view on the appropriate length of sentence shows, the Judge took a view of seriousness beyond that we consider justified. 

[21]     The expression “sufficiently serious” imports considerations of judgment, degree and relativity.  The particular conduct in this case was very much out of character and less likely to be repeated than by an offender with a disposition, generally, towards violence.  We took from counsel’s submissions and the appellant’s affidavit that the patu was a home-made implement fashioned from driftwood, and was inherently less dangerous than weapons such as a golf club or knife.  Although the incident was reasonably serious it does not, in our view, reach the threshold of “sufficiently serious” to justify a departure from the statutory default provisions relating to parole after one-third of a sentence.  There is, of course, no assurance to any prisoner that he or she will be released by a decision of the parole board after only one-third of a sentence.  The Board’s assessment of a prisoner in terms of rehabilitation and risk bears on that issue.  We do not think the present case was sufficiently serious to warrant postponement of the parole board’s consideration of this appellant.

Conclusion

[22]     In the result -

(a)   The appeal against the sentence of seven years imprisonment for wounding with intent to cause grievous bodily harm is allowed;

(b)   That sentence of seven years imprisonment is reduced to five and a half years imprisonment.

(c)   The appeal is also allowed in respect of the order for a minimum period of imprisonment.

(d)   The order for a minimum period of imprisonment is quashed.

(e)   The application for special leave to appeal against conviction is dismissed.

(f)    In all other respects the sentence is affirmed.

Solicitors:
Crown Law Office, Wellington