Westall v The Queen
[2021] NZCA 3440
•14 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-464
[2021] NZHC 3440
BETWEEN DALTYN NORMAN WESTALL
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 December 2021 Appearances:
A S Bloem for the Appellant H J Bell for the Respondent
Judgment:
14 December 2021
ORAL JUDGMENT OF WYLIE J
Solicitors: Crown Solicitor, Auckland
Bloem & Associates, Auckland
WESTALL v R [2021] NZHC 3440 [14 December 2021]
Introduction
[1] The appellant, Daltyn Westall, appeals the sentence imposed on him by Judge Paul of two years six months’ imprisonment in relation to the following charges:1
(a)Injuring with intent to cause grievous bodily harm;
(b)Reckless driving causing injury;
(c)Reckless driving; and
(d)Failure to stop and ascertain injury.
[2] Mr Westall argues that the Judge erred by failing to give him sufficient discount for personal mitigating factors, including cultural factors, his rehabilitative efforts and his youth. He also argues that the guilty plea discount should have been 20 per cent and not the 15 per cent allowed and that the overall circumstances suggest that an end sentence of home detention was the more appropriate outcome.
[3] The Crown opposes the appeal and submits that the sentence was not manifestly excessive.
The offending
[4] On 10 March 2020, Mr Westall was driving a motor vehicle on Great North Road, Waterview, Auckland. An unidentified male associate was with him. So was his partner.
[5] The victim was also travelling along Great North Road. He was travelling in the same direction as Mr Westall. CCTV footage taken at the time shows that the road was very busy.
1 R v Westall [2021] NZDC 15307.
[6] Mr Westall was tail gating another vehicle, overtaking vehicles at speed, and making multiple lane changes. He suddenly changed lanes and impeded the victim who was driving in the same direction. Mr Westall then came to an unexplained stop in front of the victim’s car, requiring the victim to break heavily. Mr Westall then accelerated away at speed. The victim then changed lanes to continue on his way.
[7] Mr Westall then passed the victim, shouting and yelling abuse at him. He then changed into the victim’s lane, placing his vehicle in front of the victim’s car. They came to a stop at an intersection. Both got out of their vehicles. So did Mr Westall’s associate.
[8] Mr Westall and his associate threw punches at the victim, and chased him around Mr Westall’s car. They punched him to the side of the head and he collapsed to the ground, hitting his head on the road. Mr Westall and his associate continued to assault the victim once he was on the ground. Mr Westall was observed on CCTV footage stomping on the victim’s head while he was lying vulnerable and prone on the road.
[9] A member of the public tried to intervene, but not before Mr Westall had reversed his car, driving over the victim’s legs. Mr Westall then drove off erratically at speed. He was observed travelling on the wrong side of the road and overtaking at speed on a bend, almost colliding with another vehicle.
[10] The victim lost consciousness and was hospitalised for several days. He suffered serious head injuries – namely a traumatic subarachnoid haemorrhage, soft tissue swelling and bruising.
District Court sentencing indication/sentencing
[11] Judge Paul gave a sentence indication to Mr Westall on 26 March 2021.2 He indicated that he would treat the charge of injuring with intent to cause grievous bodily harm as being the most serious charge. He noted various aggravating features, including that the victim suffered traumatic brain injury and the relatively ferocious
2 R v Westall DC Auckland CRI-2020-004-002553, 26 March 2021.
nature of the attack. He noted that there were multiple attackers, that there were blows to the head, and that the victim’s head was stomped on when he was vulnerable and on the ground. He considered R v Taueki,3 and held that the charge of injuring with intent to cause grievous bodily harm should attract a three year starting point. He then looked at the balance of the offending and indicated that he would uplift the sentence by an additional 12 months’ imprisonment, giving him a nominal starting point sentence of four years. He agreed that there should be a 20 per cent discount for any guilty pleas and commented that a small discount for rehabilitation and age might be available, but it would not be significant.
[12] The sentence indication was declined. Mr Westall disputed aspects of the offending. He nevertheless later entered guilty pleas and then proceeded to a disputed facts hearing. I turn to the disputed facts hearing below.
[13] Sentencing took place on 30 July 2021. The Judge stayed with the starting point indication of four years’ imprisonment. He noted that a cultural report prepared under s 27 of the Sentencing Act 2002 had been obtained and that counsel for Mr Westall was seeking a significant discount for matters raised in that report. He also noted that Mr Westall had completed a Community Alcohol and Drug Services (CADS) Course, but noted that despite completing that course, Mr Westall was facing further drug related charges.
[14] The Crown submitted that Mr Westall should not be entitled to a 20 per cent discount as earlier indicated for his guilty pleas because he had gone to a disputed facts hearing, arguing that he had been defending himself.
[15] The Judge agreed that Mr Westall could not retain the 20 per cent discount for his guilty pleas which had earlier been indicated. He noted that there had been a disputed facts hearing to further review the evidence which he had already reviewed when he gave the sentence indication, and that Mr Westall had put the Crown to proof. He therefore reduced the discount for the guilty pleas to one of 15 per cent.
3 R v Taueki [2005] 3 NZLR 372 (CA).
[16] He recorded that he had read the s 27 cultural report and he highlighted various matters in that report. The Judge did not however accept that there was any direct causal link between Mr Westall’s personal history and his offending. Rather, the Judge commented that Mr Westall’s background suggested a tendency to offend in the way that he did. He nevertheless gave Mr Westall a 10 per cent discount for the matters raised in the report.
[17] The Judge also noted that Mr Westall had completed the Man Alive Programme, and observed that that was to his credit. He gave him a five per cent discount for this factor. He also gave him a five per cent discount for youth, giving total discounts of 35 per cent. That took the sentence to one of 31 months. The Judge also noted that Mr Westall had been on electronically-monitored bail, and he indicated that he took that into account as well. The Judge then sentenced Mr Westall to two years and six months’ imprisonment.
The appeal
[18]The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011.
[19] Pursuant to s 250 of that Act, Mr Westall’s appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should have been imposed. However, for Mr Westall to succeed, he must demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.4 The Court does not start afresh and substitute its own opinion for that of the original sentencer.5 Rather, the focus is on the end sentence imposed, and whether it was within range. It is not on the correctness of the process by which the sentence was reached.6
Submissions
[20] Mrs Bloem for Mr Westall submitted that the sentence imposed was manifestly excessive. It was argued that the total 20 per cent discount applied in respect of
4 Tutakangahau v R [2014] NZCA 279 at [32]-[35].
5 At [30].
6 At [36].
Mr Westall’s s 27 factors, his rehabilitative efforts, and youth was insufficient, that the guilty plea discount should not have been reduced to 15 per cent from the initially indicated 20 per cent, and that in the circumstances of this case, an end sentence of home detention was the appropriate outcome.
[21] Mr Bell, for the Crown, argued the various discounts allowed by the Judge were appropriate. He submitted that the end sentence was not outside the available range and that it was not manifestly excessive.
Analysis
[22] There is no challenge to the starting point adopted by the Judge. Rather the focus was on the discounts.
[23] Notwithstanding that there was no challenge to the starting point, I observe that it was lenient to Mr Westall. This case did not involve violence at the lower end of the spectrum. Rather it was serious violence. The injuries inflicted were potentially life threatening. There were other aggravating features to the offending — an attack to the head and multiple attackers. Mr Westall is very lucky that the Judge did not treat the principal offending as falling within band two in Taueki, attracting a starting point sentence in the range of five to 10 years.7
[24]I now turn to the discounts.
[25] I start with the s 27 cultural report. The report was prepared by Jennifer Reid of Report Writers Limited. It records Mr Westall’s experiences with violence growing up – his former step-father was violent toward his mother and was charged with assaulting him in 2015. Mr Westall has a volatile relationship with his biological father who abuses drugs and has faced criminal charges. Mr Westall does however have the support of his mother, sister and current step-father. His family reported that he left high school early and began using several different drugs as a teenager; his recent drug abuse has included methamphetamine, and Mr Westall stated that he had been drinking as well as using cocaine and marijuana at the time of the offending.
7 R v Taueki, above n 3, at [34](b) and [38]-[39].
Mr Westall has an erratic employment history, likely due to his continued substance abuse. The report also noted that he has a history of poor mental health, with family members describing suicidal episodes in the past. He displays a tendency toward anger and aggression which his mother attributes to his drug use. She expressed the view that his participation in the Man Alive and the CADS courses “didn’t do him any good”.
[26] Ultimately, the report writer concluded that “[Mr Westall’s] poor mental health; dysfunctional childhood; disordered parent-child attachments; role-modelled violence, poly-substance abuse and methamphetamine addiction; and antisocial, gang- associated pro-criminal exposures are related to his offending.”
[27]Judge Paul noted as follows:
[9] I read with care the s 27 cultural report, Mr Westall. What that report, in summary, tells me is there is a linkage between your offending, the report writer says, and issues of your poor mental health, your age, an unfortunate childhood, an unfortunate parent-child relationship, role modelling of violence by others around you who should have known better, substance abuse, and that cannot be overlooked, and also exposure to criminal groups, gangs. What I take from that is your personal history suggests you are a person more likely to offend in the way that has occurred here. I do not accept there is any direct causal link between that personal history and this offending. I do accept, however, that background would suggest a tendency to offend in this way. On that basis, I would give you a 10 per cent discount for those personal cultural matters.
[28] In my view, the Judge erred when he commented that there was no direct causal link between Mr Westall’s personal history and his offending.
[29] In Zhang v R,8 the Court of Appeal considered the role of s 27 reports, observing that sentencing must achieve justice in individual cases and that this requires flexibility and discretion. The Court adopted the reasoning of Williams and Whata JJ in R v Rakuraku9 and Solicitor-General v Heta10 respectively. In Heta, Whata J observed that there needs to be some evidence identifying systemic deprivation in an
8 Zhang v R [2019] NZCA 507 at [10].
9 R v Rakuraku [2014] NZHC 3270.
10 Solicitor-General v Heta [2018] NZHC 2453.
offender’s background and a linkage to the offending in respect of which the offender is being sentenced.11
[30] More recently, the Court of Appeal in Carr v R12 considered the need for a linkage. Mr Carr was being sentenced on four charges of aggravated robbery, two of robbery, five of unlawfully using or taking a motor vehicle, two of dishonest use of a document, one of demanding with menaces, one of aggravated assault and two of theft. The offending involved the use of a range of weapons across a number of separate events, and the infliction of serious violence on victims. The sentencing Judge was not satisfied that there was a sufficient link between the offending and Mr Carr’s unfortunate background such as to warrant a discount. The Court of Appeal disagreed, but concluded the extent of the offending precluded a discount greater than 15 per cent. The Court confirmed that where a cultural report contains a credible account of matters such as social and cultural dislocation, poverty, alcohol and drug abuse, unemployment, educational under-achievement and violence as features of an offender’s upbringing, such matters ought to be taken into account in sentencing.13 The Court observed that it is inappropriate to reason that, because other people with disadvantaged backgrounds do not offend, evidence of an offender’s life of deprivation should be put to one side.14
[31] In my view, the Judge erred when he looked for a direct causal link between Mr Westall’s personal history and his offending, but I am not satisfied that he erred in allowing only a 10 per cent discount for Mr Westall’s upbringing and dislocation. The s 27 report does not paint a particularly grim picture. I have read very much sadder reports. I accept that Mr Westall had a turbulent upbringing, characterised by abuse and violence from his stepfather, early membership of a gang and ongoing substance abuse. I also accept that Mr Westall has made poor life choices generally and on the night in question in particular. Nevertheless, it seems to me that the 10 per cent discount given by the Judge was appropriate in the circumstances. The discount was in line with that given in other cases where there was a clearer link between the
11 At [50].
12 Carr v R [2020] NZCA 357.
13 At [60].
14 At [66].
offender’s personal circumstances and the offending.15 Moreover, the offending was serious and that precludes a greater discount.16
[32] I now turn to Mr Westall’s rehabilitative efforts and age. It was submitted on his behalf that the total 10 per cent discount for these factors allowed by the Judge was insufficient, and that the discount allowed should have been in the region of 15 to 20 per cent.
[33] Mr Westall has completed a 16-week Living Without Violence Programme at Man Alive. The Judge acknowledged this, and indicated that it was to Mr Westall’s credit. As against this, he noted that Mr Westall was subject to a sentence of supervision at the time of the offending and that he was on bail for drug-related charges. He also noted that Mr Westall has three family violence related convictions and several other driving related convictions as well.
[34] Regarding rehabilitation, Mrs Bloem submitted that a greater discount was warranted to recognise both the rehabilitative programmes Mr Westall has completed as well as his rehabilitative prospects identified in the s 27 report. The report writer recommended that Mr Westall engage in treatment for his drug abuse. As he is still relatively young, I agree that Mr Westall should be afforded opportunities to address the drivers of his offending (especially the suggested link between his drug use and his violent behaviour). Like the Judge, however, I also note his tendency to exaggerate or inaccurately report the truth, as displayed by his comments recorded in the s 27 report. He admitted to the report writer that he “usually” does not tell psychological assessors the truth and that he is reluctant to fully engage in therapeutic treatment when it is offered to him. He is also charged with drug related offending after completing the CADS course and, despite the Man Alive Living Without Violence programme, he
15 See for example Carr v R, above n 12 at [65] and Biddle v R [2021] NZCA 57 at [95]–[96], in which reductions of 15 per cent and 12 per cent respectively were allowed because the s 27 reports outlined matters relating to the offenders’ lives which were considered to have impaired their decision-making. In Minogue v R [2020] NZCA 515 and in Kreegher v R [2021] NZCA 22, a 15 per cent discount and a 10 per cent discount respectively were considered appropriate to recognise the offenders’ severely disadvantaged backgrounds, which bore undisputed links to their offending.
16 Carr v R, above n 12 at [67].
told the s 27 report writer that he is not a violent person and maintained that the victim instigated the assault at issue in this case.
[35]Turning to his youth, Mr Westall was aged 20 at the time of the offending.
[36] In Churchward v R,17 the Court of Appeal identified three ways in which youth can act as a mitigating feature. First, there are age-related neurological differences between young people and adults. Young people can be more vulnerable or susceptible to negative influences and outside pressures, and can be more impulsive than adults. Secondly, the effects of imprisonment on young people, including the fact that long sentences can be crushing for them. Thirdly, young people have greater capacity for rehabilitation, particularly given the character of a juvenile is not as well formed as that of an adult. The Court emphasised the importance of acknowledging rehabilitative prospects for young people even after serious offending, and noted that rehabilitation is both in the interests of the offender and in the interests of the public.
[37] This approach and analysis has since been repeatedly endorsed by the Court of Appeal and by the High Court.18
[38] In my view, the comments of the Court of Appeal in Churchward are relevant in the present situation. I acknowledge that Mr Westall’s offending was serious. While past the excesses of teenagers, Mr Westall is still relatively young. I note however that 21 years of age has been viewed as being at the higher end of the range for which a youth discount is available.19 I note that Mr Westall has however undertaken a reasonably onerous rehabilitative course. An unnecessarily lengthy sentence of imprisonment could have a counter-productive effect for him.
[39]It is not clear that the Judge properly considered all of these factors.
[40] I accept that Mr Westall’s actions may have been partly motivated by youthful impulsivity and ill judgement resulting in aggression. However, I agree with the Judge’s characterisation of the attack on the victim as “relatively ferocious” and noted
17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
18 For two recent examples, see R v Ngamoki [2021] NZHC 2918 and Diaz v R [2021] NZCA 426.
19 Tafeaga v R [2019] NZHC 261.
that Mr Westall’s behaviour when he drove away from the scene was callous, endangering not only the victim but also the many people on the road that day. Further, as the Judge mentioned, Mr Westall’s previous violent offending means that he cannot have been unaware of the consequences of his offending on this occasion.
[41] A sentencing judge is required to undertake a realistic assessment, weighing the defendant’s age and the reasons why he or she offended against the seriousness of the offending and the prospects of rehabilitation.20
[42] The Judge allowed a total 10 per cent discount for a combination of youth and rehabilitative prospects. In my view, a discount of 15 per cent would have better reflected Mr Westall’s youth and rehabilitative prospects.
[43]I now turn to the guilty plea discount.
[44] Mrs Bloem submits that Mr Westall’s guilty plea discount should not have been reduced to 15 per cent because a disputed facts hearing was held.
[45] In R v Hessell, the Court of Appeal considered that a guilty plea discount can be reduced in certain circumstances where a disputed facts hearing under s 24 of the Sentencing Act 2002 is required.21 It held that:
[46] … In general, a defendant's insistence on a disputed facts hearing will not count against him or her for the purposes of a guilty plea discount, provided his or her stance has been reasonable.
[47] If, however, the defendant adopts an unreasonable stance, propounding a view of the facts the s 24 Judge completely or largely rejects, then a sentencing Judge should re-evaluate whether the standard guilty plea discount remains appropriate. It will not be appropriate, for instance, if the s 24 hearing effectively turns into a minitrial which the defendant “loses”. Then there will have been little or no saving in costs to the State. As well, victims and other witnesses will still have had the stress of giving evidence.
[48] In circumstances where the s 24 Judge considers the defendant has adopted an unreasonable stance, the Judge should re-evaluate the discount taking into account the extent to which the case was delayed by the need for a disputed facts hearing, the length of the hearing itself, and the number of witnesses that had to be called, including whether any victim was required to give evidence.
20 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83] and [98].
21 R v Hessell [2009] NZCA 450.
[46]In granting a guilty plea discount of 15 per cent, the Judge stated as follows:
[8] In terms of the guilty plea, I do not accept you can retain a 20 per cent discount, which I offered you at sentence indication. You required the Court via disputed facts hearing to review the evidence which I had reviewed, which required judge time and a proper examination of that evidence a second time. When you put the Court and the Crown to the proof in that fashion, you simply cannot enjoy a 20 per cent discount. However, you have pleaded guilty, so on that basis you will receive a 15 per cent discount for your guilty plea.
[47] The disputed facts hearing took place on 28 May 2021 before Judge Gibson in the District Court at Auckland. As I understand it, Mr Westall challenged two aspects of the summary of facts – first, he asserted that the victim was yelling at him while he was driving, and secondly, he alleged that the victim threw the first punch. Judge Gibson found that acting in self-defence, albeit excessive self-defence, was not available as a mitigating factor.
[48] Mrs Bloem argued that on the materials available, the disputed facts hearing was justified, albeit that it did not conclude in Mr Westall’s favour. She submitted that Mr Westall should not be penalised at sentencing for initiating the disputed facts hearing.
[49] A discount for guilty pleas reflects two policy considerations – first, the acceptance of responsibility, and secondly, removing the need for a trial.22 In the present case, Mr Westall did not fully accept responsibility for what occurred. The fact that he took the matter to a disputed facts hearing did not remove the need for a hearing. The Crown had to prepare for the disputed facts hearing. While the victim did not have to give evidence (due to his injuries) the hearing nevertheless took some two hours of Court time.
[50] Unfortunately, there is no written record of Judge Gibson’s ruling. Given the serious violence inflicted on the victim, and Mr Westall’s actions in stomping on the victim’s head while he was lying prone on the ground, an excuse of excessive self- defence was, in my view, never going to be available as a mitigating factor. I note that the latter part of the attack, including the stomping, was recorded on CCTV. The fact that the matter was taken to a disputed facts hearing suggests a reluctance by
22 Rangirangi v R [2016] NZHC 122 at [35]-[36].
Mr Westall to accept full responsibility for all that occurred on the day in question. In my view, the Judge did not err in reducing the discount for the guilty pleas from the 20 per cent indicated in the sentence indication to 15 per cent at sentencing and I note that, in any event, the sentencing indication was not accepted.
[51] It follows that I would have allowed total discounts of 40 per cent from the starting point sentence. Taking the starting point sentence of four years adopted by the Judge, this would have resulted in an end sentence of two years and four months’ imprisonment (with rounding). The Judge imposed a sentence of two years and six months’ imprisonment. The difference, in my judgement, is nothing more than tinkering, and as I have already noted, in my view the starting point adopted by the Judge at the outset was lenient.
[52] I decline to interfere with the sentence imposed by Judge. The appeal is dismissed.
Wylie J
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