Welsh v Police
[2024] NZHC 3455
•19 November 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-58
[2024] NZHC 3455
BETWEEN CAMERON ANDREW WELSH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 November 2024 Appearances:
S A Saunderson-Warner for Appellant P A Norman for Respondent
Judgment:
19 November 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 19 November 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
WELSH v POLICE [2024] NZHC 3455 [19 November 2024]
Introduction
[1] Cameron Welsh was sentenced in the Dunedin District Court to three years and nine months’ imprisonment1 for one charge of injuring with intent to injure,2 one charge of strangulation3 and five charges of assault with intent to injure.4 Mr Welsh seeks to appeal that sentence on the basis it was manifestly excessive. He alleges an excessive starting point was adopted for the injuring with intent to injure and strangulation offences and that the sentencing Judge gave insufficient credit for personal mitigating factors.
[2] Notice of the appeal was filed out of time as a result of an error made by Mr Welsh’s previous counsel. However, the appeal was filed promptly after the error was realised and the Crown does not oppose an extension of time. In the circumstances, leave is granted.5
Facts of offending
[3] In early October 2023, an argument took place between Mr Welsh and his partner which resulted in him punching her multiple times in the stomach and face with extreme force. The victim suffered a black eye and suspected cracked ribs. Later that afternoon, Mr Welsh attempted to initiate sex with the victim. When she declined, Mr Welsh climbed on top of her and gripped her throat firmly for between one and two minutes. This was done with sufficient force to cause her to lose consciousness for some 10–15 seconds.
[4] Between 7 and 24 December 2023, Mr Welsh assaulted the victim on five further occasions. The Judge summarised the offending as follows:6
(a)First, following a dispute you punched your partner, the victim, with a closed fist in the head. The force made her head hit the fridge causing her to lose consciousness.
1 Police v Welsh [2024] NZDC 20636.
2 Crimes Act 1961, s 189(2)—maximum penalty five years’ imprisonment.
3 Section 189A—maximum penalty seven years’ imprisonment.
4 Section 193—maximum penalty three years’ imprisonment.
5 Criminal Procedure Act 2011, s 248(4)(a).
6 Police v Welsh, above n 1, at [5].
(b)Second, for unknown reasons you punched your partner, the victim, with one closed fist. This rendered her unconscious and she landed on the floor.
(c)Third, you headbutted the victim, your partner, due to the police attending and speaking to her about a prior episode.
(d)Fourth, you punched the victim, your partner, in the face with a closed fist then threw a milk bottle at her from a close distance. It struck her in the face. As you exited the house, you squashed the victim between the wall and the door causing bruising down the front of [her] ribcage.
(e)Fifth, when the victim, your partner, requested that you return her house keys, you lunged at her and bit her on the left shoulder. As she was removed by other occupants, you reached forward and punched her in the face in an upward motion. She received bite marks to her shoulder and bruising to her lip and a swollen nose.
[5] Mr Welsh first appeared in relation to this offending on 27 December 2023. Following discussions between his counsel and police and amendments to the charges and the summaries of fact, he pleaded guilty on 7 March 2024.
District Court decision
[6] The sentencing Judge adopted a starting point of 36 months’ imprisonment for the charge of strangulation. In reaching that starting point, the Judge took into account the leading Court of Appeal authority of Shramka v R and other sentence decisions of this Court.7 The strangulation was placed within the middle or moderate range of categories identified in Shramka, such offending typically receiving starting points in the region of three and four years’ imprisonment.
[7] Relevant aggravating features identified by the Judge included Mr Welsh’s prior serious domestic violence, including his severe assault on the victim earlier that day. The Judge described the strangulation as being inextricably linked with earlier assaults and commented that had the strangulation been viewed in isolation, it may not have resulted in it being placed “as high in the middle or moderate range of offending as I place it here”. The Judge described the earlier assault as being “very relevant”.8
7 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348; T v Police [2019] NZHC 3375, [2020] 2
NZLR 270; and Whichman v R [2022] NZHC 1223.
8 Police v Welsh, above n 1, at [17].
[8] Other identified aggravating features were the vulnerability of the victim as a result of the physical disparity between herself and the offender, the aggravated nature of the violence arising from the victim having lost consciousness, and the physical and emotional harm suffered by the victim.
[9] In relation to the charge of injuring with intent to injure, the Judge, after referring to a number of relevant sentencing authorities, also identified several applicable aggravating factors.9 These included the fact the violence involved an attack to the head was extreme, given the prolonged and unprovoked nature of it and the victim’s vulnerability, which included the fact the offending occurred within her home. These features were found to justify a starting point of 25 months’ imprisonment.10
[10] Similar aggravating factors were identified in relation to the five charges of assault with intent to injure. It was noted that one of those assaults was further aggravated by having occurred in response to the victim having spoken to police. An uplift of 15 months’ imprisonment was imposed for all five charges.11
[11] A combined starting point of 76 months’ imprisonment was discounted by 20 per cent for totality and resulted in a final starting point of 61 months’ imprisonment. A two-month uplift was added for Mr Welsh’s previous convictions for violent offending.
[12] A 25 per cent discount was applied for Mr Welsh’s guilty pleas, in respect of which the Judge also took into account his remorse and attendance at a restorative justice conference. That resulted (after rounding) in a term of 47 months and an end sentence of three years and nine months’ imprisonment.
9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).
10 After referencing R v Collins [2012] NZHC 2850; and Nand v R [2011] NZCA 566.
11 After referring to the following “relevant cases”— Cunningham v R [2019] NZCA 622; Davies v Police [2021] NZHC 3077; and Police v Reneti [2022] NZDC 718.
The appeal
[13] The appeal is brought on the basis of two alleged errors. First, that the starting point adopted by the sentencing Court was excessive. Ms Saunderson-Warner, who appeared on behalf of Mr Welsh, submitted the sentencing Judge effectively double- counted the injuring with intent charge by factoring the earlier violence that day into his assessment of the seriousness of the strangulation, but also imposed a discrete uplift for that charge. It was argued this resulted in an inflated starting point. No objection was taken to the 15-month uplift imposed in respect of the five charges of assault with intent to injure.
[14] The second ground of appeal concerns the sentencing Court’s approach to personal mitigating factors. Ms Saunderson-Warner submitted that insufficient credit had been given for aspects of Mr Welsh’s response to the charges and his personal situation It was submitted that further credit, in addition to the 25 per cent deduction for early guilty pleas, should have been applied in recognition for Mr Welsh’s remorse and his attendance at a restorative justice conference. Further, that a discrete credit should have been afforded for matters relating to Mr Welsh’s background and the rehabilitative efforts he has made since his arrest.
[15] The Crown opposes the appeal. Ms Norman submitted the end sentence was within the range available to the Judge in the exercise of his sentencing discretion having regard to the serious and repeated nature of the family violence. Ms Norman argued the sentencing Judge was entitled to take the approach he did to relevant personal factors and that, in any event, Mr Welsh obtained the benefit of arithmetical miscalculations made by the Judge and the relatively modest uplifts imposed for the successive assaults committed in February 2023, as well as Mr Welsh’s record of past violence.
Approach to appeal
[16] It is trite to observe that an appeal against sentence will only be successful if there has been an error in the imposition of that sentence and the appellate court is
satisfied a different sentence should be substituted.12 If error is identified, the appellate Court may form its own view as to the appropriate sentence.13 However, if the sentence imposed is within the available range and one that can properly be justified on the application of relevant sentencing principles, it will not intervene.14 When assessing whether the sentence the subject of the appeal is “manifestly excessive”, the focus must be on whether the sentence ultimately imposed is within range, rather than the process by which that sentence was reached or its component parts.15
The starting point
[17] When assessing the seriousness of the strangulation, the sentencing Judge placed considerable emphasis on the violence inflicted on the victim earlier in the morning of the same day. Ms Saunderson-Warner took no issue with that approach when assessing the starting point for the strangulation charge. It was acknowledged the victim would have been experiencing the effects of the injuries she had earlier sustained when she was attacked in that manner later that day. However, counsel submitted the application of a separate and substantial uplift for the injuring charge had resulted in the sentencing Court double-counting this feature of the offending. By adopting a starting point of 36 months for the strangulation charge and imposing a further uplift of 25 months for the earlier injuring offending, it was argued the starting point as it relates to these two charges was illegitimately inflated. The subsequent 20 per cent adjustment for totality was acknowledged, but it was submitted this was insufficient to compensate for this error.
[18] In support of this ground of the appeal, reliance was placed on a number of authorities. Care is required when making comparisons with other cases as the circumstances of each will inevitably vary. However, authoritative guidance was provided by the Court of Appeal in Shramka.16 That case and a number of other sentencing decisions referred to by counsel provide some assistance:
12 Criminal Procedure Act, s 250(2).
13 R (CA391/05) v A [2007] 2 NZLR 218 at [140].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
15 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
16 Shramka v R, above n 7.
(a)Shramka v R:17 In this case, a protection order was in force against the appellant. He visited the victim’s home with her permission. An argument developed between the couple and the appellant refused to leave. He thereby breached the protection order. He took possession of the victim’s phone and prevented her from calling police. He then grabbed her neck with one hand and squeezed, pushing the victim onto a bed while doing so. This continued for some 30 seconds and resulted in the victim nearly passing out. When the victim managed to struggle away from her assailant, the appellant punched her in the back of her head and then in her face. She was described as having suffered enduring psychological harm and physical injures that included scratches, a laceration to her face and bruising to her head.
A starting point of three years’ imprisonment was held to be appropriate. This reflected not only the strangulation but also an injuring with intent to injure charge relating to the associated violence. Further uplifts were imposed for breaches of the protection order and for the appellant’s prior offending. The Court expressly observed that it had excluded the appellant’s history of domestic violence as an aggravating factor in setting the starting point in order to avoid double- counting. An uplift of 12 months, imposed by the sentencing Court for two breaches of the protection order, was reduced to nine months because they had been taken into account as an aggravating factor when setting the starting point for the violence charges. This was to avoid further double-counting.
(b)Whichman v R:18 This case involved an appellant who, in breach of a police safety order, entered the victim’s home by climbing onto a second storey balcony and opening a sliding door. Once inside, he punched the victim multiple times in the head and face before throwing a chair at her. He then held her down and choked her until she lost consciousness. When she attempted to escape, the offender followed
17 Shramka v R, above n 7.
18 Whichman v R, above n 7.
her and struck her with sufficient force to cause her to lose consciousness. When she awakened, the assault continued for a further 15 minutes before she was able to escape. The victim was hospitalised.
A starting point of three years was adopted for the strangulation charge, to which a further nine months was added for the associated charges of burglary, assault with a weapon, and injuring with intent. However, those starting points were not the subject of the appeal to this Court, which focussed on the extent of the credit allowed for personal factors.
(c)Hurndell v Police:19 The appellant was involved in a physical altercation with the victim that involved him pushing and shoving her, and at one point throwing a clothes horse at her. When she attempted to phone for help, he snatched her phone, stomped on her laptop and hid both devices. He grabbed her by the arms and pushed her onto a bed with sufficient force to cause the bed slats to collapse. He hit her with a damp towel to the head as she lay prone. The offender then choked the victim and appears to have attempted to “waterboard” her by squirting water into her mouth and nose while strangling her. This caused sufficient terror to make the victim believe she was going to die. She suffered physical injuries and ongoing mental health issues.
A four-year starting point for the strangulation and an associated assault in a family relationship charge that was treated as a further aggravating factor, was upheld by the Court, albeit as being at the “upper end of the range”.20
(d)Jackson v Police:21 The appellant pleaded guilty to a charge of strangulation, injuring with reckless disregard and breaching a protection order. The victim had taken issue with the appellant consuming alcohol in front of their children in breach of a parenting
19 Hurndell v R [2023] NZHC 3416.
20 At [32].
21 Jackson v Police [2023] NZHC 1100.
order. During the course of an ensuing argument when the victim declared she was leaving, the appellant shoved her from behind and placed his arm around her throat. He then lifted her and carried her outside where he threw her onto some pot plants. He then placed his hands around her throat before she resisted. When they returned inside, the appellant pulled the victim’s hair and again took her to ground, gripping her throat. The appellant let her go when the children entered the room. The victim suffered grazes to her knee and arm, as well as suspected broken ribs.
Observing the need to avoid double-counting, this Court adopted a starting point of two years and three months’ imprisonment for the strangulation, to which respective uplifts of three months and four months imprisonment were applied for the breach of the protection order and the injuring charge.22
[19] Based on a comparison with these cases, Ms Saunderson-Warner submitted that a starting point of no more than three years and three months’ imprisonment was available to the sentencing Court for the strangulation and injuring charges. It was submitted the offending was comparable to that in Shramka, which included both a strangulation charge and an associated charge of injuring with intent to injure. Unlike in that case, the present offending did not involve a breach of a protection order, although it was acknowledged the injuries suffered by the victim, in particular the suspected cracked ribs, may have warranted a three-month higher starting point.
[20] Whichman was also relied upon as being a case that involved more serious offending because of the police safety order that was in place and the element of home invasion marked by the burglary charge. It was emphasised the violence in the present case is similar, involving, as it did, a loss of consciousness and the infliction of numerous injuries, although, perhaps slightly worse in that case because the victim was hospitalised. It was argued the approach taken in that case resulted in a starting
22 F v R [2024] NZHC 227 was referred to by the appellant in support of his appeal. However, having regard to the combination and nature of the charges, I did not consider that case to be of assistance.
point of three years, which also encompassed the injuring charge, and that a similar approach should have been adopted in the present case. The case was to be contrasted with the additional 25-month uplift imposed for the injuring charge which Ms Saunderson-Warner submitted caused the starting point to be elevated well beyond the available range.
[21] Insofar as the case of Jackson is concerned, Ms Saunderson-Warner acknowledged, in the absence of the victim having lost consciousness, the strangulation was less serious in that case, but noted the presence of a breached protection order. It was submitted a comparable total starting point (34 months in Jackson) should have been imposed for Mr Welsh’s offending.
[22] In Shramka, the Court of Appeal identified a number of aggravating factors that may be taken into account when assessing the seriousness of the strangulation in any given case. Three of those factors have relevance to the issues arising on this appeal. Those factors are:23
…
(b) History of strangulation or prior very serious domestic violence: this factor is required to recognise the particular risk of strangulation as a precursor to a future fatal attack, and to recognise that there is a pronounced risk of fatality where strangulation is repeated. This factor is not meant to re-punish the defendant, but to recognise the increased risk of fatality for the victim.
…
(d)Home invasion/breach of protection order: we consider these two factors should be taken together, although the presence of both requires a more condign response. They recognise the right of the victim not to be harmed in her own dwelling place, whether or not reinforced by formal court protection order. Invasion of the sanctity of the home is an aggravating factor in all violent offending.
(e)Aggravated violence: repeated or extended strangulation, in particular where loss of consciousness arises, indicates, as Cooke J noted in Ackland, “a longer, purposeful period of strangulation warranting higher culpability”. To that we would add loss of control of bodily functions.
…
23 Shramka v R, above n 7, at [42].
[23] Ms Saunderson-Warner emphasised that in the present case there was no breach of a protection or similar orders, nor invasion of the home as there was in Shramka and Whichman. However, that submission tends to overlook that a separate uplift of nine months was imposed for the breach of the protection order in Shramka. The Court of Appeal also observed, in that case, that “had home invasion been involved, and the attack had resulted in unconsciousness, a starting point of four years or more would have been justified”.24 The latter feature is present in Mr Welsh’s offending.
[24] Some difficulties arise with how some of the aggravating factors identified in Shramka are to be approached. For example, an offender’s history of strangulation or prior very serious domestic violence and the breach of protection orders. The Court of Appeal were wary of avoiding double-counting when taking into account past domestic violence as an aggravating factor. It was recognised in that case by a separate three-month uplift for prior offending and expressly excluded as an aggravating factor in setting the starting point for the violence charges. However, a different approach was taken to the breaches of the protection order which were assessed as an aggravating feature of the strangulation yet still made the subject of a separate uplift, albeit one reduced from 12 to nine months’ imprisonment.
[25] Both Mr Welsh and the Crown accepted the Judge was correct, or at least entitled, to take into account the earlier violence that day when assessing the seriousness of the strangulation charge. I make that observation because, unlike in the other cases to which reference has been made, the injuring charge concerned a separate attack that occurred earlier on the same day. The multiple punches inflicted on the victim, which caused her to receive a black eye and suspected cracked ribs, amounted to a separate episode of violence from the strangulation that preceded Mr Welsh’s attempt to initiate sex with the victim in the afternoon. This is to be contrasted with other cases where there was contemporaneous violence that either accompanied the strangulation or was part of the narrative of the same incident. However, the parties are agreed that it was appropriate for the Judge to consider the injuring with intent charge in setting the starting point for the lead strangulation offence.
24 Shramka v R, above n 7, at [53].
[26] Whether categorised as falling within the identified aggravating feature of prior serious domestic violence, or assessed as an instance of aggravated violence, the preceding or associated assault which the injuring with intent to injure charge represented was part of the violence that occurred over the course of the day. The earlier serious assault was relevant because it demonstrated a pattern of serious family violence which contextualised the strangulation and arguably elevated the risk associated with the commission of such an act. The prior attack injured the victim and contributed to her vulnerability at the time of the strangulation, as well as her ability to resist. This added to the seriousness of the strangulation which, because of the victim’s loss of consciousness, was particularly serious. I accept it would have been artificial to view the risks arising from the strangulation separately from the severeness of the attack the victim suffered earlier that morning. Besides the proximity in time between the two episodes, the act of impeding the victim’s breathing represents an escalation of that earlier violence and increased the physical and psychological harm to the victim as a result. However, that conclusion does not assist the question of how the sentencing Court is to approach or adjust any separate sentence or uplift (if any) to be imposed for the associated injuring charge.
[27] In support of the approach taken by the sentencing Judge to the setting of a starting point, Ms Norman submitted that for comparison purposes the 20 per cent adjustment for totality must be taken into account when assessing the 36-month starting point for the strangulation charge and the 25-month starting point for the injuring with intent to injure charge. That must be so. It follows that the final combined starting point for the two offences that is in issue was 48.8 months, or just over four years’ imprisonment.
[28] Ultimately, the appellant’s submission there was double-counting which resulted in an excessive starting point crystalises into an assessment as to whether the effective four-year starting point for the strangulation and injuring charges fell outside the available range when assessed against comparable cases. The assistance that can be obtained from Whichman is limited because the approach taken to the starting point(s) in that case was not the focus of the appeal. The present offending, insofar as it relates to the violence committed on the victim on the day of the strangulation, falls somewhere between that committed in Hurndell and that which was inflicted in
Jackson. However, I consider the best guidance remains that provided by the Court of Appeal in Shramka. There, the victim’s vulnerability, the use of aggravated violence, the breach of a protection order, and the enduring psychological harm suffered by the victim resulted in a starting point of three years. However, as emphasised by the Crown, the Court of Appeal further observed that had the offending involved a home invasion and the attack resulted in the victim being rendered unconscious, a starting point of four years or more would have been justified. Ms Norman stressed that in the present case the victim was rendered unconscious.
[29] There is a paucity of information regarding the harm, both physical and psychological, the victim has suffered. However, having regard to the ongoing nature of the violence to which she has been subjected, I do not consider the Judge can be faulted for concluding that she undoubtedly suffered emotional harm, even if that may not have yet been entirely acknowledged by the victim who remains loyal to Mr Welsh. In considering whether a four-year starting point was available, it is to be acknowledged that the present offending did not involve a home invasion, nor did it include breaches of court orders, as was the case in Shramka. However, the strangulation rendered the victim unconscious. That is a very concerning feature of Mr Welsh’s offending. When assessing individual aggravating factors to gauge the seriousness of the violence offending there is a need for a qualitative assessment, rather than simple “factor-counting”. As the Court of Appeal observed in Shramka, a sentencing court is required to carry out an evaluative exercise whereby the intensity of a certain factor(s) or the absence of another may have particular significance.25 The particular nature of the violence deployed and the harm caused to the victim, will require careful assessment.26
[30] I accept the way the Judge assessed the seriousness of the strangulation charge and then imposed without qualification a substantial uplift for the injuring with intent offence may have given rise to the appearance of double-counting. However, for the following reasons, I do not consider the final starting point of 61 months’ imprisonment, after allowing for totality adjustment, was outside the available range for all the offending for which Mr Welsh was for sentence.
25 Shramka v R, above n 7, at [43]–[44].
26 At [44], citing R v Taueki, above n 9, at [30].
[31] I accept that had Mr Welsh been for sentence on the violence he committed on the victim on that single day (strangulation and injuring with intent charges) a four- year starting point would not have been justified. Because of the mixture of aggravating features present, I consider a starting point of no more than three years and six months (42 months) could have been set. However, in assessing whether the starting point was excessive the focus has to be on the final starting point applied in respect of all the offending for which Mr Welsh was for sentence. That includes five discrete assaults committed over the course of a month on separate occasions, during which the victim was twice rendered unconscious. All that offending involved attacks to the head. After the 20 per cent deduction for totality, the effective uplift imposed for that further separate offending was 12 months’ imprisonment. I consider an uplift of 18 months would have been unremarkable having regard to the circumstances of those assaults and the totality principle.
[32] Even though the Judge may have erred in the length of the combined starting point he adopted for the strangulation and injuring charges, I have concluded that the 61-month (five year, one-month) starting point adopted for all the offending did not result in an excessive final starting point. Accordingly, I have concluded this part of the appeal cannot succeed.
Personal mitigating factors
[33] The Judge applied a credit of 25 per cent for Mr Welsh’s guilty pleas. While acknowledging Mr Welsh’s remorse and his participation in a restorative justice conference, the Judge considered those matters were adequately recognised in the discount provided for his guilty pleas. Ms Saunderson-Warner submitted the Judge fell into error in combining the early guilty plea with Mr Welsh’s remorse and his positive involvement in the restorative justice process. It was argued that a further 10 per cent deduction was warranted. In response, the Crown submitted the Judge was entitled to take the approach he did, particularly because of Mr Welsh’s comments to the pre- sentence report writer that disputed the level of harm caused to the victim and, its view that the pleas had not been entered at the earliest opportunity.
[34] In respect to Mr Welsh having potentially minimised the harm caused to the victim, while the Judge noted Mr Welsh had not agreed with the level of harm disclosed in the summary of facts, it was also noted that Mr Welsh, in questioning the portrayal of the harm caused, did not wish to be “taking the seriousness away from it”. He said, “I know what I have done”. It is not apparent from the Judge’s remarks that he viewed Mr Welsh’s comments as detracting from his regret and remorse for his offending. In that regard, the Judge recorded that Mr Welsh had apologised to the victim at the restorative justice conference and indicated a willingness to engage in programmes, continue to take his medication for his ADHD (which he had previously failed to do over the course of the majority of the previous year) and to address other issues. His involvement in that process was described by the Judge as positive and noteworthy.
[35] On balance, I consider some further discrete credit should have been allowed in recognition of Mr Welsh’s remorse separate from the reduction made for his guilty pleas. The acts of pleading guilty, expressing genuine remorse and participation in a restorative justice conference are, to varying degrees, overlapping mitigating features. The early guilty plea and attendance at a restorative justice conference, are means by which remorse can be truly conveyed, but it does not mean simply because they are present they will necessarily attract a discrete discount. However, in the present case, despite the seriousness of the offences he faced, it is notable that the guilty pleas were entered at a very early point in the proceeding, a little more than two months after Mr Welsh’s first appearance. Unlike in some cases where a full credit is extended to a defendant for entering pleas some considerable period along the procedural pathway, the timing of Mr Welsh’s guilty pleas fall within the range of having been entered at the first reasonable opportunity. I do not consider discussion relating to the charges with the prosecution detracts from that categorisation.
[36] As was held by the Supreme Court in Hessell v R, remorse is to be assessed as a separate mitigating factor from credit for guilty pleas.27 An additional five per cent should have been extended to Mr Welsh for remorse and a further five per cent for rehabilitative efforts, about which I will comment more shortly. His participation in
27 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
restorative justice was a manifestation of that remorse and underlined the need for his remorse to be separately recognised, but his attendance in that process, in my view, did not warrant any further separate credit. This was not a situation where reparation had been offered to the victim and, to that extent, is distinguishable from Whichman where $10,000 was paid by the offender in recognition of his victim’s trauma.
[37] The other aspect of this ground of appeal was a submission that credit ought to have been afforded to Mr Welsh in recognition of his personal background. The pre- sentence report referred to Mr Welsh having been raised by his uncle until he was about six years old when his mother wanted him back in her care. However, he only remained with her for a short time before being placed into State care and ended up being rotated through Youth Justice facilities. On the appeal, two letters were relied upon, the first from Mr Welsh’s uncle and one written by a mental health clinician based at the Otago Corrections facility. It is not clear whether these were available to the sentencing Court.
[38] The uncle’s letter attested to Mr Welsh’s difficult background, while the information from the clinician documented Mr Welsh’s request to participate in counselling “due to unmedicated ADHD, sleep issues, low mood, anxiety and emotional deregulation”. The letter informed that Mr Welsh has been “working well on these issues” and is now medicated for ADHD, anxiety and sleep. This is said to have benefitted his mood and is described as helping him to “concentrate on goals for the future and family relationships”. Reference is made to Mr Welsh and his partner having agreed to undertake couple counselling.
[39] Ms Saunderson-Warner was critical of the Judge for appearing to have put aside consideration of personal background matters without having independent reports available to him, notwithstanding it now being understood that funding for s 27 reports is no longer available as a result of them no longer being funded out of legal aid. It was acknowledged the information made available to the Court was limited, but it was submitted to have been sufficient for the Court to conclude that Mr Welsh’s background had some bearing on his offending. It was argued that a discrete 10 per cent credit was warranted.
[40] I do not consider on the available information that a sufficiently proximate causal nexus has been established between Mr Welsh’s upbringing in State care and his violent offending against his partner. While I accept Mr Welsh’s experience of State care must have had an alienating and negative impact upon him, there is nothing that has been disclosed to indicate he was a victim of violence or was exposed to violent conduct which may account for his offending against his partner. Often that is the case with offenders who have shared a similar upbringing to that experienced by Mr Welsh but, in the absence of such information or disclosure by him of having suffered exposure to such violence, the Court cannot speculate. Further, as noted by the Crown, Mr Welsh himself attributes his violent actions to not taking his ADHD medication and the increased financial stress that he was under at the time, rather than any influences from his background.
[41] As earlier flagged, what can be taken into account is the information that points to Mr Welsh’s willingness to engage in steps to assist his rehabilitation. I consider those matters should have been acknowledged in some way. In large measure, the initiatives he is prepared to take in an effort to curb his violence are linked with his remorse and can also be taken as a manifestation of it. Taken together, his remorse and willingness to rehabilitate himself would have warranted a 10 per cent credit. However, as I will explain, unfortunately, as a result of arithmetical errors made by the sentencing Judge in calculating Mr Welsh’s sentence, any such adjustment is rendered inconsequential.
[42] The Crown identified two inaccuracies in the calculation of the sentence, both of which favoured Mr Welsh. The first concerns the two months (for previous family violence convictions) that was added to the nominal starting point of 61 months, after which a 25 per cent discount was applied. This resulted in an end sentence of 47.25 months, which was rounded down to 47 months. That approach did not strictly accord with the method of calculating a sentence, as laid down by the Court of Appeal in R v Moses.28 The adjustment should have been calculated by combining the two-month uplift and the 25 per cent discount (15.25 months). This would have resulted in a total reduction of 13.25 months and in an adjusted sentence of 47.75 months.
28 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[43] Ordinarily, such a difference would be wholly negligible and not worthy of mention. However, it combines with an arithmetical miscalculation in arriving at the end sentence of 47 months. The Judge erred when he converted that figure into a sentence of three years and nine months’ imprisonment. In fact, 47 months equates to three years and 11 months. Overall, therefore, by mistake, Mr Welsh effectively received the benefit of a three-month reduction in his sentence that was not intended.
[44] When the 10 per cent reduction for personal mitigating factors (four months) that I have identified is applied to the actual end sentence that should have been imposed had it been correctly calculated, namely one of four years, it would have resulted in an adjusted sentence of three years and eight months’ imprisonment. As the actual sentence passed on Mr Welsh was only one month greater, I am unable to conclude that as a final sentence it fell outside the available legitimate length of sentence or could be described as manifestly excessive. That being the case, the appeal must fail.
Result
[45]The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Dunedin
Counsel:
S A Saunderson-Warner, Dunedin
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