White v The Queen
[2021] NZHC 2079
•11 August 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-000028
[2021] NZHC 2079
BETWEEN BRIAN TUKI WHITE
Appellant
AND
THE QUEEN
Respondent
Hearing: 10 August 2021 Counsel:
S Hunt for the Appellant (by AVL) T Simpson for the Respondent
Judgment:
11 August 2021
JUDGMENT OF GWYN J
(Appeal against sentence)
Introduction
[1] Mr White pleaded guilty to one charge of injuring with intent to injure.1 He was sentenced to two years and three months’ imprisonment by Judge Greig in the District Court at New Plymouth on 16 March 2021.2 He now appeals his sentence on the basis that it is manifestly excessive, as the Judge:
(a)failed to award a discrete discount for the provocation by the victim; and
(b)did not adequately recognise his remorse and willingness to attend a restorative justice conference.
1 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
2 R v White [2021] NZDC 4689.
WHITE v R [2021] NZHC 2079 [11 August 2021]
The offending
[2] Mr White and the victim were known to each other. There was animosity between them, due to a fairly long-running dispute about the treatment by the victim of his dogs, and Mr White’s daughter had discovered the victim abusing his dog.
[3] On 7 March 2019, Mr White was walking with his son and dog. The victim drove past in his vehicle and pulled onto the side of the road. The victim approached Mr White, who was standing in the middle of the road. They had a verbal argument. Mr White used his dog to intimidate the victim. He then headbutted the victim to the mouth. The victim then unsuccessfully attempted to punch Mr White. Mr White struck the victim in the face with a closed fist, causing him to fall to the ground. He then kicked and stomped on the victim’s head and upper body. Following the attack, he and his son left the scene.
District Court decision
[4] The Judge considered that the extent of the victim’s injuries as they have become known over time warranted a much more serious charge than the charge to which Mr White had pleaded guilty. The summary of facts records that, at the time of the incident, the victim suffered minor abrasions to the left side of his body, a fractured left wrist, and a small cut on the back of his head and outside and inside his bottom lip. However, what is of most concern is the head injury suffered, which resulted in significant symptoms later; some two years after the attack, the victim suffers significant bouts of dizziness and nausea, persistent headaches, cervical dystonia (the spasming of neck muscles), visual disturbances, and fatigue. He has also developed post-traumatic stress disorder symptoms as a result of the assault.
[5] The Judge considered the pre-sentence report recommendation of a sentence of community detention with intensive supervision. This report notes Mr White’s positive work in the community, his role as a Māori warden, and his expressions of remorse. However, the Judge did not accept Mr White’s expressions of remorse, on the basis that it took him 18 months to plead guilty.
[6] Due to the level of violence, including blows to the head, and that the assault occurred on a vulnerable and defenceless victim whilst on the ground, the Judge held denunciation and deterrence were the two most relevant principles to be addressed in sentencing.3 On this basis, he considered the least restrictive sentence available was a sentence of imprisonment.
[7] The Judge referred to the guideline case of Nuku v R.4 He considered the offending fell “well within band two” in Nuku, permitting a starting point of up to three years’ imprisonment where three or fewer of the aggravating factors listed in R v Taueki are present.5 He adopted a starting point of two years and nine months’ imprisonment. He allowed a discount of four months (just over 10 per cent) for Mr White’s guilty plea. He also gave a further two months’ credit for the time Mr White had spent on electronically monitored bail.
[8]This resulted in an end sentence of two years and three months’ imprisonment.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 It is only appropriate for this Court to intervene and substitute its own views if the end sentence being appealed is "manifestly excessive" and not justified by the relevant sentencing principles.7
Mr White’s submissions
[10] Counsel argues that the Judge erred in not providing a discrete reduction for the behaviour of the victim. On the day of the offending, only half an hour before the incident, the victim had flagged down Police and discussed the dispute between
3 At [25]
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
6 Criminal Procedure Act 2011, s 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
himself and Mr White; the Police officer’s notes record that the victim suggested they should both be arrested and left to “fight it out to solve their differences”. The Police cautioned the victim about taking matters into his own hands. Counsel says this was not recognised by the Judge at sentencing, although the Judge did accept that there was a history of hostility between the parties. It is submitted that, but for the actions of the victim, there would have been no confrontation or resulting assault. Counsel submits the Court was entitled to adjust the starting point to accommodate the following key facts:
(a)the background of hostility between the parties;
(b)the victim’s stated desire (to Police) to engage in violence;
(c)Mr White was walking on a public road with one adult son to visit his other adult children;
(d)the victim pulled over and exited his vehicle to confront Mr White; and
(e)it is logical that the victim’s demeanour – what counsel described as a “determined and aggressive stance” – was obvious to Mr White at the time of the offending.
[11] Counsel also submits that the Judge erred in failing to award Mr White any discount for his remorse or willingness to engage in the restorative justice process.
[12] Taking into account these factors, counsel submits Mr White’s sentence should be reduced by three months. This would bring Mr White’s sentence within the range (two years) which the Court may convert to home detention. If the Court reaches the range in which home detention is considered, it is argued home detention is appropriate and should be imposed. If the sentence is converted to one of home detention, it is also submitted the approximately seven months Mr White has spent in custody should be reflected in the length of home detention imposed.
[13] At hearing, counsel also advanced the submission that the Judge’s starting point was at the higher end, even in terms of the Crown’s submissions to the District Court, and could be reduced.
The Crown’s submissions
[14] First, counsel for the Crown says the starting point was well within range and at about the mid-point of what the Crown had suggested in the District Court was appropriate (between two years, six months and three years).
[15] Second, the Crown submits the end sentence was within the available range and appropriately reflected the seriousness of the offending.
[16] The Crown says there is no factual basis to conclude the victim’s behaviour provoked the attack by Mr White. It says it is not known whether Mr White was aware of the victim’s interaction with the Police earlier that afternoon. The assertion by Mr White regarding the victim’s stance is argued to be a bare assertion, unsupported by the summary of facts, or the formal written statements of the eyewitnesses of the assault. Further, a long running dispute could not be considered provocation sufficient to mitigate Mr White’s actions.
[17] As to remorse, the Crown notes that the Judge did consider both remorse and willingness to engage in the restorative justice process, but chose not to give a separate discount for those factors. It is submitted any discount for remorse would sit uncomfortably with Mr White’s continued attitude to his offending, downplaying his culpability and seeking to place responsibility for the offending on the victim.
[18] In any event, the Crown notes Mr White recently received a cumulative sentence of three months’ imprisonment for intentional damage, from an unrelated incident that occurred while on bail for the present offending.8 Accordingly, home detention is regarded as both an inappropriate outcome and one that is not available to Mr White.
8 R v White [2021] NZDC 12163. Mr White had an argument with some of his whānau. Two days later, Mr White saw his whānau driving a car around in Patea, and rammed into them.
The sentence
Starting point
[19] The Judge did not specify the Taueki aggravating factors that he found to be present in the current offending.9 I accept there are at least three aggravating factors present: serious injury; attack to the head; and the vulnerability of the victim, both while he was on the ground, and once he was knocked unconscious. I consider the offending is not only “well within” band two of Nuku,10 but rather sits on the boundary between band two and band three offending. Band three is engaged where at least three aggravating features are present, and the combination of those features is particularly serious. The serious nature of the offending is evident by the extent of the victim’s injuries.
[20] A starting point of two years and nine months’ imprisonment is within range and appropriate. It is consistent with similar cases for injuring with intent to injure. I refer to three:
(a)Brownlee v Police:11 A fight broke out at a bar. In the course of the fight the victim was knocked to the ground and stomped or kicked in the head by the defendant, a security guard at the bar. The Judge considered the aggravating factors present to be extreme violence, injury (although not serious in that case, being limited to a swollen eye, bruises, scratches, and a cut under the victim’s chin and eye), attack to the head, and vulnerability. A starting point of two years and six months’ imprisonment was upheld by the High Court on appeal.
(b)Hala v R:12 The victim collided with the defendant while walking through a crowd. The defendant punched the victim three times in the face, knocking him to the ground. When he stood up, he was punched again. The victim suffered two fractures to his jaw, lost a tooth and was likely to have more dental problems as a result of the injuries. The
9 R v Taueki, above n 5, at [31].
10 Nuku v R, above n 4, at [38].
11 Brownlee v Police [2018] NZHC 215.
12 Hala v R [2013] NZCA 237.
Judge took into account five aggravating factors: attack to the head, premeditation by continuing the assault, use of boxing technique to cause harm, vulnerability of the victim who was not expecting the attack, and the seriousness of harm. A starting point of two years and 10 months’ imprisonment was upheld by the Court of Appeal.
(c)Dean v Police:13 The defendant had been drinking alcohol at a bar. He approached the victim and, without provocation, pushed him and then punched him in the face. The victim fell to the ground. The defendant punched him five more times to the face and stomped on his head. The victim lost consciousness, and suffered a contusion to the right eye, abrasions, and a partial tear to the mouth. A starting point of two years’ imprisonment was upheld by the High Court.
Provocation
[21] I turn to the issue of provocation. The conduct of the victim can in some circumstances be a mitigating factor in sentencing.14 In Wairau v R, the Court of Appeal noted that, at best, a modest discount for a victim’s conduct may be allowed where their behaviour has materially reduced the culpability of the defendant in responding to it.15 This is a fact-dependent assessment, taking into account the nature, duration and gravity of the provocative conduct, the timing of the response of the offender, whether the provocation was an operative cause of the offender’s response, and any other relevant circumstances.16 In Taueki, the Court of Appeal held:17
Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.
13 Dean v Police [2014] NZHC 1542.
14 Sentencing Act 2002, s 9(2)(c).
15 Wairau v R [2015] NZCA 215 at [31].
16 At [29], citing Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [62].
17 R v Taueki, above n 5, at [32].
[22] In Brownlee,18 the victim was the key aggressor. He was drunk and had been ejected from the bar. He stood in front of the barricade where the defendant and other security staff were standing. He picked up multiple steel-framed panels from the barricade and threw them towards the defendant and other patrons. He was also taunting others behind the barrier to come and fight him. The starting point of two years and six months was reduced by three months for provocation.
[23] A discount for provocation by the victim was also allowed in Rafiq v R.19 The victim was a neighbour of the defendant. When dropping a container off at the defendant’s house, he went around to the rear of the premises and saw the defendant’s wife showering. She became aware of this and was upset. The victim then sent her some sexually suggestive messages. She told the defendant about this. The next morning, as the victim brought out his rubbish, the defendant (who laid in wait) attacked him, hitting him multiple items with a piece of wood. He punched and kicked the victim on the ground. A starting point of three years’ imprisonment20 was reduced by six months for his lack of previous convictions and provocation. In upholding the sentence, the Court of Appeal considered the defendant was “fortunate to have received a reduction for the provocation in the circumstances”.21
[24] In the present case, the victim spoke to the police only 30 minutes prior to the assault, expressing his willingness to fight Mr White. He then flagged Mr White down on a public road, pulled over his vehicle, and approached Mr White. I accept counsel for Mr White’s submissions that the close proximity between these two events may have flavoured the incident. The victim had no need to pull over on a main road and confront Mr White.
[25] However, the summary of facts does not indicate that the victim was physically aggressive towards Mr White. The formal written statements of the eyewitnesses of the assault do not support that submission. The statement provided by the witness who saw most of the altercation said he heard two males yelling at each other and then saw
18 Brownlee v Police, above n 11.
19 Rafiq v R [2017] NZCA 220.
20 With more aggravating factors than the present case due to the element of pre-meditation and use of a weapon.
21 Rafiq v R, above n 19, at [17].
them walking towards each other until they were “pretty much face-to-face”. The witness saw the victim fall to the ground. He said that Mr White headbutted the victim hard enough to make him “knocked out”. He also described seeing Mr White kicking the victim in the face and stomping on his head.
[26] The summary of facts notes that it was Mr White who initiated the physical altercation, with the victim unsuccessfully throwing a punch afterwards. While Mr White denies this, this is the summary of facts to which he pleaded guilty and I must proceed on that basis. On these facts, it does not appear that the victim seriously provoked Mr White such that it was an operative cause of the violence inflicted.22
[27] I also accept the Crown’s submission that the prolonged and violent assault, continuing while the victim lay vulnerable on the ground, was a grossly disproportionate reaction to a verbal argument.
[28] This case can be distinguished from Brownlee, which involved very similar offending, but where the victim was himself being actively violent, throwing a heavy metal object towards the public and the defendant several times.
Remorse
[29] Discrete discounts may be available for remorse.23 Remorse must be demonstrated, and the Court is not required to take any unsubstantiated claims at face value.24 It is the defendant who bears the onus of demonstrating their remorse is genuine.25
[30] The Sentencing Act requires the Court to consider any offer of any measures taken or proposed to be taken by the offender to apologise to the victim, their family or whanau, or make good the harm that has occurred.26 However to what extent, if at
22 R v Taueki, above n 5, at [32].
23 Sentencing Act, s 9(2)(f).
24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Moses v R [2020] NZCA 296,
[2020] 3 NZLR 583 at [18].
25 Moses v R, above n 24, at [24].
26 Sentencing Act, s 10(1).
all, this has an impact on sentence depends on whether the offer is genuine, capable of fulfilment, and accepted by the victim as expiating or mitigating the wrong.
[31] This Court has noted that any decision to award a discount for willingness to participate in restorative justice processes is at the discretion of the Judge. This is particularly so now that the Criminal Procedure Act allows for involvement in the restorative justice process as a matter of course.27 A willingness to participate, unaccompanied by other evidence demonstrating an offender has taken responsibility for their offending may, of itself, mean little.28 The restorative justice process requires acceptance by the defendant of the basic facts of the offending.
[32] I accept the Crown’s submissions on this point. Mr White has failed to point to any other evidence that demonstrates he has taken responsibility for the offending. He has continued to deny the extent of the offending (such as the level of violence he inflicted on the victim), despite pleading guilty. For example, the Provision of Advice to Courts (PAC) report records that Mr White said that the victim threw the first punch, and he denies further assault once the victim was on the ground. A Memorandum for Sentencing, prepared by the Taranaki Restorative Justice Trust, records that the facilitators “do not believe it is appropriate to move forward to a Restorative conference” and there is “a high risk of revictimization occurring and safety for participants cannot be ensured.”
[33] I also do not accept that Mr White saying he is “gutted” things turned out this way necessarily points to remorse for the offending. Rather, it seems to me that his concern relates to the outcome that he is facing. It is also relevant that it took Mr White 18 months to plead guilty, although I note the reasons for the delay, which are discussed below. Against this, the Judge had a proper basis on which to exercise his discretion to refuse to grant Mr White any discount for remorse or willingness to engage in the restorative justice process.
27 Henare v R [2017] NZHC 2397 at [17];.
28 Harris v Police [2019] NZHC 3044 at [13].
Guilty plea
[34] Mr White did not plead guilty until 18 months after being charged, on 12 March 2019. However, this can be explained by two factors. First, there was a change of counsel prior to the guilty plea that ultimately allowed a complete reconsideration of the trial evidence. Second, on 10 November 2020, the Crown dropped one of the charges against Mr White (he was initially charged with two counts of intending to injure). Mr White pleaded guilty that day. In my view, a discount of 15 per cent should have been awarded for this. However, this would reduce the sentence by only one month (an end sentence of two years and two months’ imprisonment). This would amount to tinkering.
Result
[35] In conclusion, I find the starting point was within range, and the behaviour of the victim does not reduce Mr White’s culpability. It was within the Judge’s discretion not to allow a discount for remorse and Mr White’s stated willingness to engage in restorative justice. Any increase in the guilty plea discount awarded would be mere tinkering, when what matters is whether the overall sentence is excessive.29 I conclude that the end sentence is not excessive.
[36]I dismiss the appeal.
Gwyn J
Solicitors:
Hannam & Co. Lawyers Ltd, New Plymouth Crown Law Office, Wellington
29 This question was recently considered in Bowring v Police [2021] NZCA 325 at [12], citing
Tutakangahua v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
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